On appeal from the Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition No. 2002-7953.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Baxter and King.
A judge of compensation found petitioner Peter T. Nolan totally and permanently disabled, and assessed 100% of disability against petitioner's last employer, Kleinknecht Electric Company (Kleinknecht). The judge of compensation dismissed the claim petitions that petitioner had filed against all of his other employers. Kleinknecht now appeals from that May 30, 2008 Order of Judgment, arguing that responsibility should instead have been assessed against Century Electric, for whom petitioner worked in 1998. Kleinknecht further argues that the Judge of compensation erred by accepting as credible the opinion of petitioner's expert, Dr. Riss, whose opinion Kleinknecht characterizes as a net opinion; and that he erred by dismissing the claim against the Second Injury Fund (Fund). We agree with Kleinknecht that the assessment of full responsibility against it and the dismissal of the claim petitions that had been filed against all of petitioner's prior employers were the result of a mistaken application of controlling precedent. We reverse and remand.
Kleinknecht does not challenge the judge of compensation's conclusion that petitioner is totally and permanently disabled. Instead, Kleinknecht challenges his determination that it was solely responsible for that disability. Kleinknecht did not seek a credit for any pre-existing disability petitioner may have had, and does not argue for one on appeal. Instead, Kleinknecht takes the position that it bears no responsibility for petitioner's inability to work.
These are the relevant facts concerning petitioner's employment history. His first job after his discharge from the Navy was with Petro Chemical (Petro). In 1978, while in the course of his employment with Petro, petitioner's vehicle was rear-ended by a car traveling at seventy miles per hour, causing petitioner to "break through the front seat of [his] car and [his] head exited the rear window." He did not undergo surgery, but was in traction for approximately a year and a half. Through exercise and rehabilitation, petitioner was able to strengthen his back and pass the medical entrance examination for membership in an electrical workers union.
From February 1990 through October 1992, petitioner worked for Mehl Electric, again performing heavy work, and was involved in "a couple of accidents while on the job" and was out of work for a week. He did not file a claim petition for either injury.
Then, while employed by SM Electric in 1993, petitioner fell, tore his right rotator cuff and underwent surgical repair; again, however, he did not file a compensation claim. After leaving SM Electric, petitioner began work at Lessner Electric (Lessner) in 1993, where he continued to perform heavy lifting work. Again, he sustained a work-related injury, this time when he slipped and fell on ice while leaving a worksite. After he left Lessner in 1994, petitioner worked for Viking Electric and Linear Electric from 1994 through 1996. He sustained no work-related injuries during this period.
Petitioner worked at Fischbach and Moore (Fischbach) during 1996 and 1997. One day, while feeding fiber optic cable along a road bed, he felt his back "pop" and he experienced what felt like "electric shocks down [his] legs." Although he had been seeing a chiropractor fairly regularly before that injury, and the chiropractor had generally been able to resolve his back pain, the chiropractor had a "hard time" treating this 1996 injury and "was not able to pop [his back] in place anymore."
Petitioner testified that even before his 1996 injury at Fischbach, there were other occasions when he injured his back at work. He commented, "I was doing very heavy work and I would just see my chiropractor and he would pop me back in place and I would just continue on my merry way . . . ." Petitioner testified that after completing five days of chiropractic treatment following his injury at Fischbach, his back was "the same as it had been previously before [the] accident at Fischbach." He explained that the five days of treatment "brought it back to normal again . . . because I would have to work. I couldn't stay home."
From 1997 to 1998, petitioner worked for Electrical Contractors where he again injured his back, this time while working in the switch gear room; however, he lost no time from work and did not file a compensation claim. In fact, despite the numerous occupational injuries petitioner sustained, he did not file any claim petitions until he injured his left shoulder and underwent two surgical repairs while working for AMP Electric in 1998. He received an award of 27.5% of partial total disability on October 2, 2001.
Later in 1998, petitioner worked for Century Electric (Century) where he injured his back when he slipped on a pipe. He also lost several teeth in this incident. However, the claim petition he filed was limited to the loss of his teeth.
In response to a question posed by the judge of compensation, petitioner commented that after he sustained the back injury at Century, "on all the jobs, [I] started to notice [my] back progressively starting to get worse and worse." He explained, "I first started noticing it probably when I was working with Century because I was out a week or more at a time when I slipped on some pipe and jerked my back pretty good." He added that "it took [the chiropractor] almost a week or a little longer than a week for him to finally get me to relax enough so that he could manipulate the spine back to where it was supposed to go." Petitioner testified that his chiropractor was reluctant to treat his neck, and "afraid he was going to hurt me again so I would work through most of the pain most of the time."
In 1999, when petitioner began work at Communication Electric, the nature of his work responsibilities changed. As a project manager, he began driving 300 miles per day. Although petitioner could not recall any specific accidents that occurred while he was working for Communication Electric, he commented that he encountered "problems because of all the driving, sitting down for long periods of time."
On December 28, 2000, petitioner began work at Kleinknecht. His responsibilities were identical to those at Communication Electric. He testified that while working for Kleinknecht, he drove 300 miles each day from his home in Staten Island to supervise four construction jobs in Fairfield, Weehawken, Carteret and Trenton. Although petitioner had no specific accidents while at Kleinknecht, the pain became so intolerable in September 2001 that he could no longer work. He described his symptoms in the following terms: "I was noticing things happening to me, like I was losing feeling in my hands and my arms. I was getting . . . pain down the arms, which is [sic] like severe. I noticed that my step, when I was walking, was affected. It was hard to explain. I was losing my balance quite a bit."
He explained that when he arrived home from work each day at Kleinknecht, "it would literally take [him] fifteen minutes to get into the house, because [he] really couldn't move getting out of the car . . . ." Petitioner's concern for his health intensified when, while running across a street to avoid oncoming cars, he "stumbled," which "scared" him because "it was getting to the point where [he] couldn't walk."
Petitioner consulted with an orthopedic surgeon, Casey Lee, M.D., who told him that unless he underwent spinal surgery, he was at risk of becoming quadriplegic. September 18, 2001 was the last day plaintiff ever worked. The next day he went to the hospital for pre-admission testing and never returned to work. Dr. Lee diagnosed numerous severe disc herniations. The surgery he performed included cervical and lumbar disc ...