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Vicki L. Ham v. Anchor Glass Container Corporation

January 20, 2011

VICKI L. HAM, PETITIONER-RESPONDENT,
v.
ANCHOR GLASS CONTAINER CORPORATION, RESPONDENT-APPELLANT.



On appeal from a Final Decision of the New Jersey Department of Labor, Division of Workers' Compensation, Agency No. 2005-9454.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 6, 2010

Before Judges Fuentes, Gilroy and Ashrafi.

Respondent-employer Anchor Glass Container Corporation appeals from a judgment of the Division of Workers' Compensation dated November 6, 2009, granting benefits and attorney's fees to petitioner Vicki Ham. We affirm.

Briefly summarized, the facts are that Ham slipped and fell on a wet surface while working at Anchor Glass on January 31, 2005. She reported the fall to her supervisor and was treated at Salem Hospital, initially complaining of pain in her shoulder and wrist. Ham continued to work after the fall, but the pain and stiffness in her shoulder and wrist worsened. Anchor Glass referred her for further treatment to an orthopedic surgeon, Dr. Richard DiVerniero. After a course of treatment that included injections to treat the pain, Dr. DiVerniero performed arthroscopic surgery on July 14, 2005, to repair a torn rotator cuff in Ham's right shoulder.

Within two days after the surgery, Ham left New Jersey for North Carolina to aid her husband in addressing a serious family emergency involving their teenage son. She notified her attorney, whose office made calls and wrote to the attorney for Anchor Glass and the claims representative for the insurance carrier, Chubb Group of Insurance Companies, to notify them that Ham would be in North Carolina. As a result of her absence, Ham missed follow-up visits with Dr. DiVerniero and physical therapy that was necessary to rehabilitate her shoulder and arm.

While in North Carolina, Ham called the claims representative at Chubb seeking authorization for physical therapy and other medical treatment in North Carolina. Chubb refused to authorize treatment in North Carolina and insisted that Ham return to New Jersey for further examination by Dr. DiVerniero. Chubb also terminated the temporary disability payments Ham was receiving on the ground that she had not complied with treatment directives of Dr. DiVerniero. Consequently, Ham received no post-surgery treatment for a period of forty days while she was in North Carolina. During that time, she kept her arm and shoulder immobile in a sling, and her husband had to remove the surgical sutures after Chubb would not authorize a visit to a hospital emergency room for that purpose.

Ham eventually returned to New Jersey and went to see Dr. DiVerniero on August 24, 2005. By that time, she had developed adhesive capsulitis of the shoulder, commonly called a "frozen shoulder." Dr. DiVerniero believed that failure to obtain physical therapy after surgery "played a role" in Ham's development of that condition.

After some months of physical therapy following her return, Ham returned to work at Anchor Glass in December 2005. She could not perform the same job as she had previously, and Anchor Glass changed her job duties. Her shoulder continued to be very stiff, and she felt pain when stretching her arm. She also had pain and numbness in her hand, elbow, and wrist, which worsened over time. Dr. DiVerniero diagnosed cubital tunnel syndrome, a stretching and relocation of the ulnar nerve, which can cause stiffness and limited mobility in the elbow.

In April 2006, Ham underwent a second surgical procedure, nerve manipulation of her elbow. Because Chubb denied her claim for coverage of the surgical procedure, Ham was required to obtain the services of Dr. DiVerniero as a private patient.

At the trial of her claim petition for benefits, the Judge of Compensation heard testimony over eleven days from May 21, 2008, to July 15, 2009. He issued a lengthy oral decision on October 16, 2009, followed by adjustments and corrections of the award by oral decision on November 6, 2009. The judge found Anchor Glass liable for medical expenses of the second surgery in April 2006, temporary disability benefits from July 14 to August 24, 2005, and from February 8 to June 2, 2006, a monetary penalty for failure to pay temporary disability benefits, and permanent partial disability benefits of seventy-five percent of total for the injuries to Ham's shoulder and arm. The judgment awarded specific monetary amounts and attorney's fees to Ham.

On appeal, Anchor Glass makes a number of arguments, which we list verbatim to highlight that the appeal predominantly challenges the compensation judge's factual findings after trial:

A. THE TRIAL COURT ERRED IN ITS LEGAL CONCLUSION THAT ANCHOR GLASS AND ITS INSURANCE CARRIER CHUBB INSURANCE W[ERE] OBLIGATED TO PROVIDE VICKIE HAM ...


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