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Cano v. Johnson & Johnson Consumer Products

July 8, 2010

PAUL CANO, PETITIONER-APPELLANT,
v.
JOHNSON & JOHNSON CONSUMER PRODUCTS, RESPONDENT-RESPONDENT.



On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 21, 2010

Before Judges Stern and Sabatino.

After three intermittent days of hearings before a compensation judge, the Division of Workers' Compensation determined that petitioner Paul Cano sustained no compensable injury on November 11, 2003 in the course of his employment with respondent, Johnson & Johnson.*fn1 We affirm that determination, as it is supported by substantial credible evidence and it comports with the applicable law.

The crux of the parties' dispute concerns whether the pain and medical problems that petitioner complains of in this case arise from the alleged November 11, 2003 accident, or whether they instead are attributable to a prior workplace injury he sustained while with a different employer in 1999, or, alternatively, stem from a motor vehicle accident--also unrelated to petitioner's work for respondent--that occurred in 2004. With respect to those key issues, the record contains the following pertinent facts and medical proofs.

In 1999, petitioner injured his lower back while working for a prior employer, Frigidaire. That injury resulted in lower back pain and limitations to petitioner's range of motion of his back, as he suffered difficulties with squatting, bending, and twisting. Petitioner consequently filed a workers' compensation claim against Frigidaire. He was awarded twenty-five percent of partial total disability for the injury. After this award, petitioner received no further treatment for his back.

On November 11, 2003, while installing a conveyor belt during the course of his employment for respondent, petitioner allegedly felt a pain in his lower back, which traveled down his left leg. He informed his supervisor of the circumstances and was treated with ice at a first aid station on the premises. Petitioner returned to work the following day, but still allegedly felt pain in his lower back and leg.

To address his back pain and discomfort, petitioner began a course of physical therapy, authorized by his employer, within a week of the November 2003 incident. He was also examined by an orthopaedic specialist, Frederic A. Kleinbart, M.D., who initially cleared petitioner to resume work on a "light duty" basis, and prescribed additional physical therapy. After completing his brief course of physical therapy, petitioner underwent a functional capacity test. Following that test, he was cleared to resume "[m]edium-heavy" work. He then discontinued his physical therapy regimen.

Petitioner routinely worked out at a gym both before and after the November 2003 workplace incident, although, according to his testimony, he only did so at a "reduced level" after the incident. Nevertheless, after the November 2003 incident, petitioner was captured on videotape performing several tasks that required him to use his back muscles, including operating a self-propelled snow blower, moving a forty or fifty pound bag of sand, and pumping up a car tire. Petitioner subsequently admitted doing these tasks during the period in which he was allegedly too injured to work at full duty. He was thereafter terminated from his employment with respondent.

The record further reflects that, subsequent to the November 2003 incident and through April 2004, petitioner was in training to compete in the bench-press portion of a weightlifting competition. During this time frame, petitioner trained at a gym five days per week for varying periods of time, depending on what part of his body he was exercising. According to petitioner, he would avoid certain exercises if his back was bothering him.

Petitioner was involved in an automobile collision in June 2004. The record indicates that he injured his neck and right shoulder in the collision. The shoulder was repaired in surgery in June 2005. Petitioner also underwent a cervical fusion of disc levels C5 through C7 for his neck injury in November 2007.

Petitioner denied in the present case that he injured his back in the June 2004 motor vehicle accident. Even so, at the time of trial, petitioner believed that the pain in his lower back and leg was getting progressively worse.

Petitioner testified that he no longer does cardiopulmonary exercises, such as riding a bicycle, or using a treadmill. Nor does he continue to work out at a health club. He claimed that he frequently has to stretch his back and do movements that he was taught in therapy to allow for easier mobility. He stated that when he wakes up in the morning, his back is "crooked" and that he has to ...


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