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Michelle Marier v. Marshall's Department Store

May 11, 2011

MICHELLE MARIER, PETITIONER-APPELLANT,
v.
MARSHALL'S DEPARTMENT STORE, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 11, 2011

Before Judges Sabatino and Ostrer.

This appeal arises out of a workers' compensation case that stretches back to an accident that occurred almost twenty-three years ago. For the reasons that follow, we affirm.

On October 11, 1988, petitioner Michelle Marier, who is the present appellant, was working for respondent Marshall's Department Store ("Marshall's) when she was injured while attempting to lift a heavy rack of bathrobes. The rack fell on her neck and right shoulder. This resulted in intermittent paralysis of petitioner's upper extremities. In addition, it left her with a psychiatric disability known as a "conversion disorder."*fn1 Petitioner did not use her right arm for several years thereafter, apparently because of the conversion disorder, which made her think or feel that she could not move the arm regardless of its physical condition.

Petitioner continued working for Marshall's for a period of time while she received treatment. About two years later, she left Marshall's and began working for a different retail company. Petitioner had another accident in December 1990, which prevented her from working. That employer terminated her in 1991, and petitioner has not worked since that time.

In 1991 petitioner filed a workers' compensation claim against Marshall's arising out of the 1988 accident. Through a series of decisions in the early 1990s, petitioner received temporary disability benefits.

Marshall's, as the employer from the 1988 accident, contended that the 1990 accident was the cause of petitioner's limitations. The compensation judge who heard that case, Judge Beverly Karch, rejected Marshall's argument and found the petitioner was indeed suffering from a disability, i.e., conversion disorder, related to the October 1988 accident and not the December 1990 accident, that she was unable to work, and that she was in need of further treatment.

Judge Karch's opinion concerning the December 1990 accident was appealed to this court. In an unpublished opinion, we affirmed her decision. Marier v. Marshall's, Inc., No. A-5214-93 (July 27, 1995). Petitioner continued to receive treatment, and did not resume working.

Then, on September 16, 1998, petitioner had an episode in which she had four grand mal seizures. These seizures resulted in petitioner falling and fracturing her right shoulder. She had two surgeries to attempt to address the shoulder issues, one in 1998 and a second in 2003.

As we have noted, petitioner has not worked since 1990. She has been paid over $100,000 in temporary disability benefits and over $60,000 in medical bills.

The pivotal question is whether the 1998 seizures independently produced injuries to plaintiff's shoulder and psychological damage that were not proximately caused by the 1988 accident. Petitioner contends that all of her present problems are an outgrowth of her 1988 workplace accident. Marshall's, conversely, argues that the 1998 accident severed the chain of causation.

For reasons that are not readily apparent from the record supplied to us, there was a gap of nearly a decade before the present case was tried on intermittent days in 2008 and 2009 ...


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