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Louis Gallo v. Township of Woodbridge

May 19, 2011

LOUIS GALLO, PETITIONER-RESPONDENT,
v.
TOWNSHIP OF WOODBRIDGE, RESPONDENT-APPELLANT,
v.
SECOND INJURY FUND, RESPONDENT-RESPONDENT.



On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition No. 2002-27733.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 4, 2011

Before Judges Lihotz and J. N. Harris.

The Township of Woodbridge (the Township) appeals from the final orders of the Department of Labor and Workforce Development, Division of Workers' Compensation (the Division), that awarded petitioner Louis Gallo permanent disability benefits under the Workers' Compensation Act, N.J.S.A. 34:15-1 to -128 (the WCA), and dismissed the associated Second Injury Fund application, N.J.S.A. 34:15-95. The Township contends that the Workers' Compensation judge erred in finding Gallo's injury to have arisen out of his employment and in awarding him permanent disability benefits. We have considered the arguments raised in light of the record and applicable legal standards. We affirm.

I.

Gallo was employed as a truck driver by the Township, where his duties included hauling materials used by highway crews in the maintenance of the Township's road network. On February 19, 2002, when alighting from his truck after bringing asphalt to co-workers performing pothole repairs, Gallo "touched the ground [when he] felt a pop in [his] back and [he] was hunched over from that point." Describing the pain in his lower back as "devastating," Gallo without delay sought out his immediate supervisor who, after further consultation with his boss, drove Gallo to the JFK Medical Center in Edison. At the hospital, Gallo was evaluated, treated, and released after receiving an injection of the pain medication Toradol.

Still in severe pain and discomfort, Gallo was soon thereafter examined by Dr. Gregory Gallick, who recommended physical therapy. Gallo did not improve, and later came under the care of Dr. Joseph Lombardi, who recommended back surgery. In June 2002, and again in May 2003, Gallo endured lumbar fusion surgeries in what became vain efforts to alleviate the constant pain he was experiencing in his back. These procedures did not produce the desired result, but Gallo nevertheless continued treatment with Dr. Lombardi, which included a regimen of pain medication, facet injections, and regular surveillance of Gallo's condition.

Gallo filed his claim petition on May 22, 2002. In it, he sought workers compensation benefits for the events of February 19, 2002, which he described as "[o]rthopaedic injury to lumbar spine necessitating surgery with installation of hardware." The petition also included a claim for an occupational injury caused by the long-term effects of his employment as a truck driver by the Township.*fn1

On November 11, 2003, while Gallo was on his way for a pre-operative consultation with Dr. Lombardi relating to the evacuation of a hematoma, Gallo was involved in an automobile accident. Gallo testified that he did not sustain any personal injuries as a result of that incident.

On September 26, 2006, Gallo filed the associated application for Second Injury Fund benefits, which was bifurcated pursuant to N.J.A.C. 12:235-5.1(a)(2).

The case was tried over three discontinuous days in 2008 and 2009. Three witnesses testified: Gallo; his expert, Dr. David Weiss, D.O.; and the Township's expert, Dr. Kenneth C. Peacock, M.D. Over the course of trial, much was made of Gallo's prior medical history, which the Township claimed was fraudulently withheld from Dr. Weiss. That history disclosed four prior instances of back trouble -- described by the court as "minor insults" -- between 1992 and 1995. The Township further claimed that Dr. Weiss's opinions concerning the link between Gallo's back condition and his employment with the Township were tainted because Gallo had failed to inform him of the November 2003 automobile accident. In light of Dr. Weiss's truncated evaluation -- through no fault of the physician -- the Township argued that Dr. Peacock's opinion, which considered the full spectrum of Gallo's medical history, was the more accurate barometer of Gallo's supposed degenerative disc disease, arthritis, and pre-existing back condition.

Following the close of evidence, the court reserved decision and ultimately issued a detailed written opinion on May 26, 2009. The court found that Gallo had satisfied his burden of proof regarding the nexus to his employment of the accidental injury, but not the occupational injury. It further held that from March 20, 2002 until July 19, 2004, Gallo was temporarily totally disabled, and the date of Gallo's permanent total disability was July 20, 2004, when he received the treatment that "was the last before [Gallo] reached maximum medical improvement." The order memorializing the court's ...


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