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Forker v. Circuit Foil

November 26, 2008

RICHARD FORKER, PETITIONER,
v.
CIRCUIT FOIL, USA, INC., RESPONDENT-APPELLANT, AND SECOND INJURY FUND, RESPONDENT.



On appeal from the New Jersey Department of Labor, Division of Worker's Compensation, Claim No. 2002-8751.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 16, 2008

Before Judges Parrillo, Lihotz and Messano.

Respondent Circuit Foil U.S.A., Inc. (Circuit Foil) appeals from the December 20, 2007 order that found petitioner Richard Forker "to be permanently and totally disabled as a result of [a] traumatic event on May 21, 1997 and a pre-existing disability," and ordered a thirty percent contribution by respondent, the Second Injury Fund (the Fund). N.J.S.A. 34:15-95. Circuit Foil and the Fund argue that petitioner failed to prove by "demonstrable objective medical evidence" a functional loss resulting in "a lessening to a material degree of [his] working ability." N.J.S.A. 34:15-36. They further contend that petitioner's experts rendered net opinions regarding the May 1997 accident, that the judge "failed to distinguish [petitioner's] pre-existing condition" from the results of the May 1997 accident, and otherwise failed to make appropriate findings of fact and conclusions of law. We have considered these arguments in light of the record and applicable legal standards. We reverse and remand.

I.

Three workers' compensation claim petitions were the subject of the trial below. Claim petition #97-036680, filed on October 22, 1997, alleged petitioner suffered a work-related accident on May 23, 1997 resulting in a lumbosacral sprain, superimposed upon a prior back injury, and bilateral radiculitis.*fn1 The second claim petition, #01-23669, filed on July 23, 2001, alleged injuries, specifically a broken arm requiring surgery and neurological sequelae, caused by a "fall down" after petitioner's "leg gave way because of [a] foot drop" resulting from the injuries suffered in the May 1997 accident. Petitioner's third claim petition, #02-8751, filed on March 11, 2002, alleged occupational exposure from May 21, 1997 through June 26, 1999, petitioner's last day of work with Circuit Foil, resulting in "reinjury to [his] low back."

The trial testimony that occurred over several days between January 29, 2007 and July 16, 2007 revealed that petitioner, who was fifty-three years old at the time of the May 1997 accident, had worked as a laborer for his entire career. He began working for Circuit Foil in 1968, and, but for a brief interruption when he worked elsewhere, had remained in its employ until 1999 when he was compelled to retire because of back pain. Petitioner began his career as a mechanic, then became a welder, and ultimately finished his career as a machinist.

Petitioner's typical work day consisted of lifting rollers that weighed between 300 and 1500 pounds using overhead crane machines. He would usually lift the rollers by himself four to six times per day and also had to "jog drums" that weighed six to seven tons into place. On the day in question, petitioner injured his back lifting one of these rollers.

Petitioner had a long history of back problems, dating back to 1970, when he slipped, fell, and experienced lower back pain as a result. Sometime in the early 1970's, he injured his back again when he attempted to move stainless steel plates. Petitioner testified he injured his back again in 1989 and thereafter experienced continuous pain on a daily basis, requiring him to "use heat packs on [his] back almost everyday." He was advised against lifting heavy objects by his doctors, but he testified it was a necessary part of his job and he continued to do so against medical advice. Petitioner asserted, however, that his condition substantially worsened after the May 1997 accident.

Subsequently, he was unable to sleep through the night because of back pain, and he experienced pain radiating down his legs. Against the advice of his doctors, petitioner returned to work after the May accident and coped with the pain by taking medications, doing physical therapy exercises prescribed after his 1989 accident, and wearing a back brace. He was unable to do routine chores around his home. In October 1997, petitioner sought emergency medical treatment because he was unable to stand or move because of intense back pain. He continued to work until June 1999 when he retired because of his condition.

In July 2001, petitioner was sitting on the front porch of his home and fell because "[his] legs just gave out." Petitioner testified that after the 1997 accident, he would "lose all strength in [his] leg." As a result of the fall, he fractured his arm, requiring surgery.

Over the years, petitioner received treatment for his back from several doctors. He acknowledged that as early as 1994, one of his doctors, Francis J. Pizzi, recommended spinal fusion surgery, but he rejected that option. Beginning in 1998, he received facet block injections for his pain but did not receive any other treatment until 2001 after the fall from his porch. After leaving Circuit Foil, he applied for and qualified for disability benefits from the Social Security Administration. In addition to his back problems, petitioner suffered from a host of other physical ailments including hypertension, diabetes, sleep apnea, erectile dysfunction, Lyme disease, cellulitis and had "three, maybe four" hernia surgeries. In February 2006, he underwent "gastric banding" surgery in an effort to deal with his obesity.

Petitioner's work-related accidents that occurred prior to the May 1997 incident resulted in the filing of multiple workers' compensation claims and multiple awards. In 1995, the year the last claim petition was filed before those at issue in this case, petitioner received an award of ...


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