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James Allen v. the Great Atlantic & Pacific Tea Company

December 21, 2010

JAMES ALLEN, PETITIONER-RESPONDENT,
v.
THE GREAT ATLANTIC & PACIFIC TEA COMPANY, RESPONDENT-APPELLANT,
AND SECOND INJURY FUND, RESPONDENT-RESPONDENT.



On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, Case No. 2005-13683.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 17, 2010 - Decided Before Judges Fuentes, Ashrafi and Nugent.

In this workers' compensation matter, respondent Great Atlantic & Pacific Tea Co. (A&P) appeals from a final order entered on October 5, 2009, that determined petitioner James Allen was totally and permanently disabled solely from injuries he suffered in a work-related automobile accident. A&P contends that the Judge of Compensation (JOC) erred by dismissing Allen's claim against the Second Injury Fund (the Fund). We affirm.

Petitioner James Allen seriously injured his lower back in an automobile accident that occurred during the course of his employment with A&P on February 4, 1999. He sustained a disc herniation at L4-5 and underwent three surgical procedures: a hemilaminectomy with bilateral nerve root decompression and intraoperative discometry, arthrodesis posteriorly, discectomy and fusion; re-exploration and posterolateral fusion of L4, L5, and S1 with implementation of a bone growth stimulator; and the subsequent removal of the bone growth stimulator. In addition to the surgical procedures, Allen underwent physical therapy, pain management, and counseling.

Despite his extensive medical treatment, Allen developed severe depression and continues to suffer from L5-S1 radiculopathy and bilateral foot drop. He has constant pain in his back, right leg, and right foot; and periodic pain in his left leg and thigh. He uses a cane because his right foot drop is unstable, takes daily medications that affect his memory, and continues to suffer from anxiety and depression.

In addition to the injuries he sustained in the work-related accident, Allen had two pre-existing conditions relevant to the issues on appeal: a herniated L5-S1 disc operated on in 1994, and post-traumatic stress disorder (PTSD) relating to the Vietnam war.

Allen filed a workers' compensation claim petition on April 15, 2005. A&P filed an answer on June 27, 2005. On April 14, 2008, Allen filed a verified petition with the Fund alleging he was totally and permanently disabled from a combination of work-related and pre-existing disabilities. The workers' compensation trial took place periodically between September 24, 2008 and June 24, 2009. Allen and four medical experts testified. On October 5, 2009, the JOC entered an order awarding Allen total permanent disability and dismissed his claim against the Fund. A&P filed a notice of appeal on November 13, 2009.

As it did below, A&P concedes on appeal that Allen is totally and permanently disabled, but disputes that the disability is attributable solely to the February 4, 1999 automobile accident. A&P contends that the JOC erred by not allocating to the Fund some percentage of Allen's disability, arguing the undisputed trial testimony, particularly that of the experts, demonstrates that Allen's disability is at least in part attributable to the 1994 lower back injury and to the PTSD Allen has suffered since the Vietnam war.

In reaching her decision, the JOC acknowledged Allen's pre-existing lower back injury requiring an L5-S1 discectomy, and his pre-existing PTSD, but emphasized that neither condition limited his ability to work, maintain his home, or pursue his hobbies and interests. The JOC noted that A&P had not presented one piece of evidence establishing that the pre-existing conditions caused a "material lessening of Allen's working ability or an impairment in his carrying on the ordinary pursuits of life." Her findings are supported by the trial record.

According to Allen's trial testimony, he worked as the Director of Construction for two divisions of A&P, Atlanta and New Orleans. Despite his 1994 lower back surgery, an L5-S1 discectomy, he eventually returned to work without any difficulty. Before the 1999 automobile accident, he traveled approximately 100,000 miles per year. His job required him to be physically fit and mentally active. He worked fifty-five to seventy hours per week meeting with realtors, developers, architects and engineers; preparing bids and hiring contractors; and purchasing equipment. He also conducted job inspections requiring him to climb to the roof of stores under construction.

Allen also worked at home as a computer programmer writing construction programs for his software company. He was an avid outdoorsman, hunter, and fisherman. He taught Sunday school and served as an associate pastor at his church, which he helped to remodel.

Although suffering from PTSD from the Vietnam war, Allen took no medication for the condition. He had recurring nightmares, but the PTSD caused him neither mental nor physical impairment at work. He testified that before the automobile accident, he kept so busy he was able to "keep it buried." After the accident, the nightmares and anxiety from his PTSD almost put him "over the deep end."

Notwithstanding Allen's testimony, A&P argues that the testimony of the four medical experts establishes that Allen's pre-existing conditions contributed to his total permanent disability. Dr. Theodora Maio, a board certified general surgeon who testified on behalf of Allen, examined him once approximately eight years after the accident. She testified that the lower back injury Allen suffered at L5-S1 in 1994 predisposed him to an injury at a higher level: [H]e had a prior L5-S1 discectomy from which he recovered, gone back to work. However, one must also consider that any lumbar surgery is going to have some degree of restriction afterwards, even if the patient is back to work. It doesn't voice too many complaints. Also, when there's surgery at one ...


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