On appeal from Superior Court of New Jersey Department of Labor, Division of Workers' Compensation, Claim Petition No. 2004-18445.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Lihotz.
Respondent Wegman's appeals from a March 10, 2008 Order of Judgment directing payment of partial total workers' compensation disability benefits to petitioner Ivo Zrno. The judge of compensation concluded Zrno's current occupational claim related to a disability he experienced while employed at Wegman's, rather than an aggravation of a prior work-related injury, which occurred while Zrno worked for Wakefern Food Corporation (Wakefern). Zrno successfully petitioned and on December 16, 2002, was awarded compensation payable by Wakefern. Zrno's reopener petition against Wakefern, which was filed contemporaneously with his petition against Wegman's, was dismissed. Wegman's asserts Zrno did not experience any specific incident of injury while employed at Wegman's but rather had a pre-existing orthopedic and neurological condition resulting from his Wakefern injury. Wegman's argues it is not liable for any aggravation of the alleged disabling condition caused by Zrno's prior employment. We agree and reverse.
Zrno sustained an injury to his lumbar spine on February 13, 2000, while working for Wakefern as a "selector," unloading pallets of product. An April 13, 2000 MRI confirmed Zrno suffered a "small central and right sided disc herniation at L4-L5," a "small right sided paramedian disc herniation at L5-S1," and a "slight enlargement of the nerve roots on the right which may be due to edema or inflammation."
Zrno filed a claim petition with the Workers' Compensation Court on June 19, 2000. Wakefern's compensation carrier accepted the claim and authorized treatment. On September 13, 2000, Zrno underwent a right-side laminectomy and discectomy at L5-S1. The Order Approving Settlement, filed on December 16, 2002, provided for permanent disability benefits of twenty-seven and one-half percent partial total disability, resulting from orthopedic and neurological residuals caused by the February 13, 2000 injury.
Zrno's employment with Wakefern ended in March 2001. He commenced employment with Wegman's in April 2001, and generally worked forty hours per week as a selector in the grocery department. Zrno's job at Wegman's was similar in nature to the one he performed at Wakefern: once or twice per week he used a pallet jack to unload product from trucks, stacked the goods on empty wooden pallets, pushed the pallets into the store, and stocked the product onto the store shelves. The pallets weighed approximately 100 pounds.
In order to provide context to Wegman's arguments on appeal, it is necessary to relate a detailed recitation of Zrno's testimony of symptoms and the experts' medical testing and treatment, which was presented in support of Zrno's initial claim petition against Wakefern. Zrno described his limitations following the accident and surgery in this way:
Q: Do you have any problems doing the job [at Wegman's] because of the way your back feels?
Q: What type of problems do you have there?
A: I have back pain, very strong back pain if I'm lifting something heavy.
Q: Do you have problems sitting for long periods of time?
A: Yes sir. If I am sitting more than an hour, I get problems.
Q: How about driving in a car? Does that give you a problem?
Q: That's all you can manage?
Q: Does the weather have an effect on you?
A: Mostly when it's cold.
Q: Do you take medication at the present time for your back?
A: Vioxx and Tylenol sometimes.....
Q: Are there any activities around your house or socially that you don't do anymore because of the way your back feels or perhaps you do them differently?
A: There's a lot of them. Any job I have to bend and lift something, I can't do it. On my job I am doing it because I am afraid of losing my job and I like [Wegman's]. It's a very good company, and they have an understanding of my health problems.
In addition to Zrno's testimony, the reports by Drs. Albert E. Thrower and L. Scott Eisenberg were introduced by the employer, Wakefern, along with the examination reports of Drs. Morris Horwitz and Ana Miguel Komotar, presented on behalf of Zrno. Dr. Thrower saw Zrno on September 21, 2001, as a result of complaints of "persistent pain across the lower back" and "[o]ccasional burning pain in the right leg and cramps in the right leg." Dr. Thrower, an orthopedist, diagnosed Zrno with a "right L5-S1 disc herniation" causing "permanent disability of 7-1/2% of partial total," and concluded he remained capable of performing light work. Dr. Eisenberg's neurological evaluation report dated February 15, 2002, stated Zrno's symptoms of occasional pain in his back and right leg, which was "[a] more consistent and troubling problem for him," resulted from "residuals of an S1 radiculopathy for which [he] would estimate a disability of 4% of partial total posttraumatically." Dr. Eisenberg assessed an additional disability of one per cent of partial total due to a "mild superimposed adjustment reaction."
Dr. Horwitz's orthopedic examination findings were consistent with Dr. Thrower's, as he too diagnosed residual strain in the right lumbarsacral region caused by the February 13, 2000 accident and resultant surgery scarification. However, Dr. Horwitz concluded Zrno suffered "an orthopedic disability of 50% of total." Dr. Komotar's neurological diagnosis of right lumbosacral radiculopathy, related to the February 13, 2000 accident and the lower back surgery, amounted to "a permanent neurological disability of 35% of partial total."
Crediting Zrno's testimony, the judge of compensation approved the proposed settlement and ordered Wakefern to pay Zrno compensation for "27 1/2% partial total disability, orthopedic and neurological in nature" for "165 weeks of disability at a rate of $178.84 [per week] for a total payment of $29,508, less appropriate costs and fees."
On December 31, 2002, fifteen days after the hearing, Zrno terminated his Wegman's employment. Thereafter, he began driving an eighteen wheeled truck.*fn1 For the first year he drove six to eight hours per day, five days a week, for Warner Company. Next he worked for Central Transport for approximately six months, driving trucks from New Jersey to Allentown, Pennsylvania. The following year, Zrno drove trucks from Jamesburg to North Bergen for Wells Company, working over forty hours per week, six days a week. At the time of this trial, Zrno was employed by Selective Transportation. Generally, he drove forty hour work weeks, but sometimes drove up to twenty-two hours a day, making two sixty to seventy mile trips.
Zrno continued to complain of pain in his right leg. In October 2003, he returned to the physician who performed his surgery, Robert Bercik, M.D, for examination. Dr. Bercik evaluated Zrno's complaints and reported "[a]t this point, I think we are just dealing with the residuals of his back surgery. I don't think there is any evidence of radiculitis or radiculopathy...." Dr. Bercik recommended continuation of home exercise ...