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Zimbitskiy v. County of Morris

January 15, 2010

KATERINA ZIMBITSKIY, PETITIONER-APPELLANT/ CROSS-RESPONDENT,
v.
COUNTY OF MORRIS, RESPONDENT-RESPONDENT/CROSS-APPELLANT.



On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, No. 1999-13005.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 1, 2009

Before Judges Messano and Lewinn.

Petitioner Katerina Zimbitskiy appeals from the final judgment of the Department of Labor, Division of Workers' Compensation, that awarded her "10% of partial total [permanent disability] for the residuals of bilateral carpal tunnel syndrome . . . ." Respondent, County of Morris, County College of Morris (the County), cross-appeals from an earlier order that restored her petition to the "active list," thus permitting the matter to proceed to trial. We have considered the arguments raised in light of the record and applicable legal standards. We affirm.

Petitioner was employed by respondent as a custodian. She testified that on February 10, 1999, while vacuuming a large auditorium, her hands and arms became red and swollen. Shortly thereafter, petitioner received medical treatment on her hands and arms for a period of three weeks, and remained out of work for three months. When she returned to work in early May, she was not given a "light job," but rather one that required heavy lifting. After her "hands collapsed" and she dropped a heavy object, petitioner was again sent by the County for further medical treatment of her hands which were "red . . . and . . . very painful."

On May 3, 1999, petitioner filed a workers' compensation claim for the orthopedic injuries she sustained on February 10, 1999, specifically "carpal tunnel" syndrome. A June 30, 2006 trial date was set. At that time, petitioner was represented by the Law Offices of Russell P. Trocano and Associates. Petitioner did not appear, and her petition was dismissed. By letter dated November 17, 2006, Trocano's firm advised petitioner that it would no longer represent her, and that she had one year from June 30, 2006 to file a motion to restore the petition. By certified mail, petitioner forwarded a pro se "Motion to Restore" her claim, signed by her on June 29, 2007, and marked filed by the Division of Workers' Compensation on July 3, 2007. The County opposed the motion to restore.

A hearing was held on April 11, 2008. The judge noted two other petitions had also been previously dismissed, but that the motion to restore only addressed the claim for injuries to petitioner's "hands."*fn1 Attorney James F. Paguiligan from the Trocano law firm testified that sometime before the June 30, 2006 trial date, his firm sent petitioner a letter by regular and certified mail, notifying her of the date. The certified mail was returned to Trocano's office while the regular mail was not. Petitioner testified that she was unaware of the trial date, and was not notified of the dismissal until "the end of December[]" 2006. She further claimed that she did not receive her file from the law firm until several days before the one-year statutory period expired, and her attempts to retain new counsel at that point were fruitless.

The judge concluded that petitioner complied with the one-year statute of limitations governing restoration of her claim. He also reasoned that even if she had not strictly complied with the statute, denial of the motion "would deprive the petitioner of her right to have the matter heard by the [c]court, . . . have her matter disposed of in a judicial fashion, [and] that it would be inconceivable for th[e] [c]court to . . . enforce a statute wherein the petitioner did in fact comply by mailing the Motion to Restore within a timely fashion within the statut[ory] period." The judge reinstated the petition and transferred venue to the county of petitioner's residence.

A trial on the underlying claim was held on August 11, 2008, before a different judge. Petitioner testified that she still experienced problems with her hands; that she could not sleep at night because the pain was too severe; that the swelling in her hands never went down; and that she had difficulty gripping things. She also testified that her right hand was "much worse . . . [m]ore often[]" than her left hand. Petitioner's medical reports were admitted into evidence.

Dr. Marc A. Cohen diagnosed petitioner with carpal tunnel syndrome in late February 1999. In a report dated April 8, 1999, Cohen diagnosed petitioner with "[b]ilateral carpal tunnel syndrome" and recommended that she "[c]ontinue . . . occupational therapy and obtain neurological EMG's to rule out bilateral carpal tunnel syndrome."*fn2 Petitioner remained on prescription medication to control her pain after her return to work.

After the second work incident in May 1999, petitioner was seen by Dr. Steven A. Maser. Although the trial transcript reveals that Dr. Maser's reports were introduced into evidence by the County, we have been supplied with only a single page of office notes that petitioner herself introduced into evidence at trial. It diagnosed petitioner with "pain, arm." Petitioner testified she was seen by her family doctor, John Porcaro, who recommended she see another orthopedist, Dr. Barry J. Efros.

Efros saw petitioner "every two weeks," provided "some kind of massage," and sent her for a "surgery consultation." Apparently, a number of reports from Efros were admitted at trial, although the appellate record contains only one report dated August 18, 2000, addressed to the "Federal Disability Determination Services." In that report, Efros found petitioner "totally disabled from any meaningful employment" based upon "her inflammatory arthritis and her accelerated and very elevated hypertension . . . ."

Surgery was apparently recommended for petitioner's bilateral carpal tunnel syndrome by Dr. John A. Faccone. It is unclear whether his August 14, 2003 report was actually admitted into evidence at the trial, but it is part of the appellate record. Faccone prescribed "bilateral cock-up wrists splints," and encouraged petitioner's continued use of Vioxx. Faccone also prescribed "occupational therapy" and an EMG, and ...


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