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Cucciniello v. Sports Authority

September 24, 2008

COREY CUCCINIELLO, PETITIONER-RESPONDENT,
v.
THE SPORTS AUTHORITY, RESPONDENT-APPELLANT.



On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, Docket No. 2006-3843.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 9, 2008

Before Judges Wefing, Parker and Yannotti.

In this workers' compensation case, respondent The Sports Authority, a retail sporting goods chain, appeals from a judgment entered on October 30, 2007 granting petitioner's motion to compel respondent to pay medical and temporary disability benefits for injuries sustained while petitioner was working. We affirm.

On December 22, 2004, petitioner was struck by a forklift and pinned against a wall while he was working. He was not immediately treated for the injury, but four days later, he visited his own doctor when he experienced pain in his right hip and groin area. An X-ray indicated no fracture, and anti-inflammatory and pain medications were prescribed by Dr. Paul Lombardi, an orthopedic surgeon. An MRI of petitioner's right hip indicated an anterior labral tear. Dr. Lombardi referred petitioner to Dr. Brian Kelly, a hip specialist in New York. Dr. Kelly initially treated petitioner conservatively with injections and chiropractic treatment. Nine months after the accident, in September 2005, petitioner was authorized to return to work part time with restrictions not to lift anything over twenty pounds and to remain seated. Petitioner was authorized to return to work full time with no restrictions in December 2005. Thereafter, petitioner felt comfortable and did not seek further treatment.

In February 2006, however, while petitioner was walking through deep snow, he felt pain in his right hip which persisted. He also experienced a limitation of movement in his right leg that continued until Dr. Kelly performed arthroscopic hip surgery on March 13, 2007.

In February 2006, prior to the surgery, petitioner filed a claim for workers' compensation. Respondent denied liability but provided medical treatment and temporary disability benefits. In July 2006, after the February 2006 incident, petitioner moved for medical and disability benefits, alleging that his condition had worsened and that he now required surgery. Respondent denied liability, claiming that this was a subsequent, superseding injury.

During hearings before the compensation court, various experts testified with respect to petitioner's injury and need for further treatment. At the conclusion of the testimony, the compensation court rendered a written decision on December 19, 2007 in which it evaluated the evidence and concluded that petitioner was entitled to temporary disability benefits and reimbursement for his out-of-pocket payment to Dr. Kelly for the arthroscopic surgery in March 2007.

In this appeal, respondent argues that (1) petitioner's claim should have been dismissed as moot because petitioner showed no current need for emergent medical treatment; (2) the judgment should be reversed because it was not supported by credible medical proofs; and (3) petitioner should have been denied medical treatment and temporary disability because his walking through the snow caused a subsequent superseding injury.

Respondent initially contends that the compensation court erred in denying its request to dismiss petitioner's motion for medical and temporary disability benefits because it was rendered moot and non-emergent when petitioner had arthroscopic hip surgery.

At the March 20, 2007 hearing, petitioner's counsel advised the court that petitioner had arthroscopic hip surgery performed by Dr. Kelly on March 13, 2007. Petitioner required several months of post-surgery treatment and, therefore, sought future temporary disability benefits from the date of the surgery to the date he would be determined able to return to work. Respondent's counsel objected to the motion, arguing that it was rendered moot by the hip surgery.

The judge accepted petitioner's proffer that he would present medical testimony regarding the reasonableness and necessity of the post-surgery treatment. Noting that it was for the court to determine whether such post-surgery treatment was reasonable and necessary, the court determined that petitioner's hip surgery did not render the motion moot and allowed petitioner to proceed with his proofs.

"A case is moot if the disputed issue has been resolved, at least with respect to the parties who instituted the litigation." Caput Mortuum, L.L.C. v. S & S Crown Servs., Ltd., 366 N.J. Super. 323, 330 (App. Div. 2004). If an employer refuses or neglects to provide medical treatment, "the employee may secure such treatment and services as may be necessary . . . and the employer shall be liable to pay therefor[.]" N.J.S.A. 34:15-15. See also Dunlevy v. Kemper Ins. Group, 220 N.J. Super. 464, 468 (App. Div. 1987) ("[T]o alleviate delay of treatment in the event of a refusal or neglect to provide the required benefits, [the Workers' Compensation Act] authoriz[es] the employee to secure his own treatment and services making the employer liable for cost thereof."), certif. denied, 110 N.J. 176 (1988). If the employee obtains medical treatment on his own, the employer may be held liable to the medical provider for treatment costs. See Stafford v. Pabco Prods., Inc., 53 N.J. Super. 300, 304-05 (App. Div. 1958) ("[P]arties who furnish medical or hospital services to employees were intended to have ...


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