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Thomas v. Newark Board of Education

March 30, 2009

RICHARD THOMAS, PETITIONER-APPELLANT,
v.
NEWARK BOARD OF EDUCATION, RESPONDENT-RESPONDENT.



On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, Claim Petition Nos. 1998-035656, 1999-010490 and 1999-017962.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 4, 2009

Before Judges C.L. Miniman and Baxter.

In this workers' compensation appeal, petitioner challenges three orders, two of which dismissed his corresponding claim petitions. The third order awarded 22.5% of partial total disability arising from a work-related injury to petitioner's lumbar spine. We affirm.

I.

Petitioner, Richard Thomas, was employed as a laborer for respondent Newark Board of Education. He began working for respondent in the late 1990's, having previously worked in the construction industry for thirty to thirty-five years. On July 13, 1998, at the time of his first alleged work-related injury, petitioner was fifty years old, and had been treated in the past for a work-related cervical spine injury for which he received 2.5% of a partial total disability award in the early 1980's. Petitioner's medical history also included 1978 gunshot wounds to his right leg and right arm for which he was hospitalized. Two years later, he sustained another gunshot wound, this time to his left arm, which required surgical repair. Petitioner admitted smoking one to two packs of cigarettes a day beginning when he was a teenager and ending in the early 1970's; however, he reported to hospital staff in 1998 that he had not stopped smoking until 1989. We describe each of the three claim petitions separately.*fn1

A. Claim Petition No. 1998-035656

This petition alleges a specific injury that occurred on October 16, 1998, when petitioner tripped over a 2 x 4 while lifting heavy stones at work. The claim petition alleged a "severe injury to low back and nervous system." Petitioner filed this claim petition approximately two weeks later on October 30, 1998. Respondent filed an answer, admitting that the injury was work-related, but otherwise leaving petitioner to his proofs. Respondent authorized temporary medical payments and treatment with an orthopedic surgeon. After petitioner had undergone x-rays and several MRI exams, respondent authorized spinal surgery, but advised petitioner that if he refused the surgery, any further treatment costs and disability benefits would be terminated. Petitioner testified that he refused the surgery because he was afraid of the surgery and its consequences. His benefits consequently ceased. Petitioner never returned to work after sustaining the October 16, 1998 injury.

B. Claim Petition No. 1999-010490

On March 3, 1999, petitioner experienced shortness of breath while at home watching television. He was admitted to an area hospital where he was diagnosed with a right-side spontaneous pneumothorax.*fn2 Petitioner remained hospitalized until March 10, 1999; however, he returned to the emergency room again on March 29 and April 7, 1999, after again experiencing shortness of breath. After an exploratory thoracoscopy, petitioner eventually underwent surgery performed by Randolph Scott, M.D. in 2002 to treat this condition.

In his testimony, petitioner described the working conditions as "really dusty" whenever he used a jackhammer or performed demolition work. Claim petition no. 1999-010490 was filed on March 31, 1999, alleging "severe injuries to head, neck, back, shoulders, chest, extremities, pulmonary, cardiac, internal, nasal, throat, eyes and nervous system." The petition attributed those injuries to "repeated bending, lifting, and other arduous labor as well as exposure to dust, smoke, chemicals, fumes and other deleterious matters." In its answer, respondent denied that the alleged injuries were work-related.

C. Claim Petition No. 1999-017962

Petitioner's third claim petition was not filed until June 4, 1999, even though it described an alleged accident that had occurred before the October 16, 1998 work-related injury that is the subject of claim petition no. 1998-035656. In this third petition, petitioner alleged that while "carrying heavy weights" on July 14, 1998,*fn3 he sustained "severe injury to [his] chest and nervous system."

Petitioner testified that while lifting ninety-five pound bags of mortar at work, he developed a sharp pain in his chest. He was admitted to Irvington General Hospital, where he remained until July 16, 1998. A CAT scan showed bullous changes in the upper lobes of the lungs, which one expert described as "swiss-cheese"-like "holes" in the lungs. His physician diagnosed an "acute right side pneumothorax." Petitioner remained out of work for four to five weeks. Because respondent denied that the claimed injury was work-related, petitioner received disability payments from the State of New Jersey during his period of convalescence, rather than workers' compensation benefits. Petitioner returned to work in August 1998, where he remained until he sustained the October 16, 1998 injury that is the subject of claim petition 1998-035656.

In his testimony, petitioner described the work-related incidents, and the resulting symptoms that are the basis of the three claim petitions. He also testified that the pain and limitations from his work-related injuries caused him to become depressed, although he admitted on cross-examination that he never told any of his treating physicians about his depression. When affirmatively asked by a doctor whether he was depressed, petitioner stated "I take care of my own self in that respect. I managed to handle the situation." He has never been seen by a psychiatrist or psychotherapist, and has never taken anti-depressant medication or received psychotherapy.

On cross-examination, petitioner conceded that on two occasions prior to July 13, 1998, he had been treated for shortness of breath and an inhaler had been prescribed. He also acknowledged that before starting work for respondent, his prior employment involved dust and heavy lifting, and that he injured his back on one of those jobs.

D. Testimony of Petitioner's Expert Witnesses

Petitioner's first witness was Cheryl Wong, M.D. Before Wong's testimony began, respondent made a motion in limine to bar Wong from offering any testimony related to psychiatric injury. Respondent argued that none of petitioner's three claim petitions asserted a claim for such an injury. The judge of compensation (JOC) reviewed the portion of each claim petition that asked petitioner to "describe [the] extent and character of injury." After reading each of the three responses into the record, the JOC concluded that none of the three petitions alleged a psychiatric injury. The JOC specifically rejected petitioner's claim that the reference to a "severe injury to . . . nervous system" in claim petition 1998-035656 encompassed a psychiatric injury. The JOC ...


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