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McGlinsey v. George H. Buchanan Co.

September 30, 2010


On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition No. 2003-13580.

Per curiam.


Argued September 15, 2010

Before Judges R. B. Coleman and J. N. Harris.

In this workers' compensation case, we affirm -- on jurisdictional grounds -- the dismissal of petitioner's claim for benefits due to an occupational injury. We agree with Judge Jose A. LaBoy that petitioner did not satisfactorily demonstrate that the New Jersey Division of Workers' Compensation (Division) had subject matter jurisdiction based upon approximately sixteen months of exposure in New Jersey that antedated approximately twenty-seven years (1974 to 2001) of previous exposure in Pennsylvania. Applying the principles of Williams v. Port Auth. of N.Y. & N.J., 175 N.J. 82 (2003) to the undisputed facts, we are firmly convinced that petitioner's remedies, if any, lie elsewhere.


Petitioner Gerald McGlinsey, a lifelong resident of Pennsylvania, was employed as a manual laborer from 1974 until 2001 in that state. In that span of years he performed many different job functions for several employers in the printing business, including acting as a general laborer, flyboy, baler, forklift driver, carpenter, and pressman. Starting in September 1995, petitioner became employed by respondent George H. Buchanan Co. (Buchanan) as a pressman. From that date until June 1, 2001, petitioner's place of work, as noted, was in Pennsylvania. Thereafter, however, when his employer moved to New Jersey, petitioner performed the duties of pressman for Buchanan in New Jersey until September 13, 2002, a total of approximately sixteen months.

In order to function as a pressman, petitioner was obliged to engage in strenuous physical activity. As the judge of compensation found, "as a pressman, these machines require him to climb, bend, lift, jump, hop up and down to make settings as the machines ran, to reach, pull and push hand-trucks or dollies into place under the press." Judge LaBoy also found that for the two decades of petitioner's work-life before joining Buchanan, petitioner "performed these job duties since [1974] in Pennsylvania for different employers."

In 1987, due to severe back problems, petitioner underwent spinal surgery that included L4-5 decompressive laminectomy, bilateral L5 foraminotomies, and L4-5 disc excision. In 1996, he underwent a magnetic resonance imaging (MRI) examination of the cervical spine, which revealed four moderate to small disc herniations. Another MRI was performed in 1997, this time examining petitioner's right knee and left shoulder, which revealed degenerative joint disease and a torn meniscus. Thereafter, arthroscopic surgery was performed on petitioner's right knee to effect partial and medial lateral meniscectomies and chondral debridement. According to his answers to interrogatories, petitioner was advised by a representative of Buchanan in 1999 that he "could have pursued a workers' compensation claim" relating to some or all of these conditions.

The medical records available to the judge of compensation indicated that petitioner began a series of extensive medical examinations relating to his neck beginning in May 2002, which culminated in cervical spine surgery in September of that year. In the following May, petitioner underwent a right total knee arthroplasty. Further treatment to his neck, back, and knee continued until early 2005, when he reached a plateau and no further treatment was indicated.

Also available to the judge of compensation was petitioner's Second Injury Fund petition, which sought remedies relating to petitioner's cervical, lumbar, and right leg problems. Attached to the Second Injury Fund petition was an unauthenticated letter from Dr. Ralph G. Cataldo, D.O. that outlined petitioner's medical history and summarily stated, "[a]s a result of the occupational stress and strain of the patient's job activities from 1995 to September 13, 2002, this patient has [] permanent disabilities based on a reasonable degree of medical probability." The report went on to list the five body parts affected, including the cervical spine, lumbar spine, right leg, left leg, and pelvis (iliac crest).

Following the filing of the petition for workers' compensation benefits in New Jersey and the conclusion of several months of procedural maneuverings by various insurers, Buchanan filed a motion to dismiss for lack of subject matter jurisdiction, and expressly relied upon Williams. Petitioner responded with opposition that likewise cited Williams. At no time did the parties seek an evidentiary hearing on the question of the Division's subject matter jurisdiction.

In an oral decision rendered on March 26, 2009, Judge LaBoy applied his understanding of the Williams three-part test,*fn1 and concluded:

[petitioner's] occupational disease, in fact continued to get worse prior to his employment in New Jersey and therefore, his [fifteen-]month employment in New Jersey for Respondent was de minimis and insubstantial taking into consideration, my findings of fact regarding his employment history and pre-existing medical ...

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