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Josiah M. Onyebuchi v. Mark Lighting Company

April 21, 2011

JOSIAH M. ONYEBUCHI, PETITIONER-APPELLANT,
v.
MARK LIGHTING COMPANY, RESPONDENT-RESPONDENT.



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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 12, 2010

Before Judges Graves and Waugh.

Petitioner Josiah Onyebuchi appeals from an order of the Division of Workers' Compensation (the Division) denying his motion to reinstate his employee claim petitions. We reverse and remand for a hearing on the merits.

Petitioner's employment as a packer for defendant Mark Lighting Company (Mark Lighting) involved bending, pulling, and lifting various items throughout the course of each workday. During 2002 through 2004, petitioner filed multiple claims for benefits under the New Jersey Workers' Compensation Act (Act), N.J.S.A. 34:15-1 to -128. In a certification in support of a motion for temporary disability benefits and medical treatment, petitioner summarized his work-related injuries, which occurred between December 10, 2002, and December 15, 2003, as follows:

I have had numerous accidents; to wit: December 10, 2002, I was hit by a staple gun in the head; September 24, 2003, I hurt my back while pulling a box; February 4, 2003, while lifting a box, I injured my right knee and lower back. February 24, 2003, while pulling merchandise, I injured my back and right knee; September 24, 2003, while lifting a box, I injured my right [knee] and lower back; November 1, 2003 while lifting a box, I injured my lower back and right [knee]; December 15, 2003 while lifting a heavy box, I felt pain in my right knee and lower back.

In the same certification, petitioner stated he was experiencing pain and stiffness in his lower back, swelling and pain in his right knee, and severe headaches and dizziness. In addition, petitioner claimed his "thinking [was] not clear" and that he "had memory lapses." Petitioner asked the workers' compensation court to reinstate his temporary disability payments, and he submitted a written report by Dr. Theodora Maio in support of his motion. In an answering statement dated May 13, 2005, Mark Lighting noted that petitioner had "been under almost continuous treatment for various complaints," and argued that he had "reached maximum benefit there from."*fn1

On May 16, 2005, Cheryl Wong, M.D., examined petitioner and determined that there was a "significant impairment in social and occupational functioning." Wong diagnosed petitioner with "[p]ost-concussive disorder with gross ataxia and post-traumatic vertigo with speech difficulties, perseveration and stuttering, and cognitive dysfunction."

On September 7, 2005, petitioner's brother, Peter Onyebuchi, who lives in Texas, notified petitioner's attorney that he "brought [petitioner] to Texas [on] 9/3/05 due to depression, and to further continue his medical treatment." A social services assessment conducted on September 3, 2005, by the Arlington Memorial Hospital confirmed that petitioner was in need of social services, and the Texas Department of Assistive and Rehabilitative Services subsequently referred petitioner to Edward G. Bleker, Ph.D., for a neuropsychological evaluation.

In his report, Bleker noted that petitioner was "a forty-five Nigerian male whose presenting problem . . . was an on-the-job traumatic brain injury in 2002, as well as depression." Bleker determined that petitioner's "ability to initiate and terminate behavioral sequences effectively [was] severely restricted, and his capacity to monitor his own behavior and adjust to changing circumstances with advanced planning for unanticipated consequence [was] . . . almost non-existent."

In a letter dated May 16, 2006, the Social Security Administration notified petitioner that he had satisfied "the medical requirements for disability payments." In addition, petitioner returned to New Jersey in 2006 for evaluations by Dr. Josephs and Dr. Gross on behalf of Mark Lighting. Petitioner was also reevaluated by Dr. Maio for the injuries to his lower back and right knee, and by Dr. Wong for any neuropsychiatric disability. Based on petitioner's "orthopedic, neurological and psychiatric difficulties," Wong concluded that he was "totally disabled as a functioning working unit." She also stated that "the accidents of 12/10/2002, 02/24/2003, 09/24/2003, 11/01/2003 and 12/15/2003 were the proximate cause of her findings and conclusions.

On August 30, 2007, the compensation judge signed a pretrial memorandum, which was also signed by the attorneys for both parties. The memorandum referred to each of the accidents that had occurred between December 10, 2002, and December 15, 2003, and it indicated that the only issues in dispute were the nature and extent of petitioner's disability.

In a letter to the Division dated September 7, 2007, petitioner's attorney requested that the matter be scheduled for trial on October 11, 2007, so that petitioner's brother, Peter, could arrange "to bring the petitioner to New Jersey to testify in court." However, petitioner did not appear for trial on that date, and the matter ...


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