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Giuseppe Zito v. Aic

September 26, 2011


On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, C.P. No. 2008-6134.

Per curiam.


Argued June 6, 2011

Before Judges Grall and C.L. Miniman.

Petitioner Giuseppe Zito appeals from the dismissal of his petition for workers' compensation benefits from respondent AIC, his former employer, arising from injuries he sustained during the course of his employment. The judge of the Division of Workers' Compensation dismissed his petition on motion of AIC because the petition was filed more than two years after his last receipt of benefits. We now affirm.

Zito began working as a mechanic for AIC in 2002. On June 18, 2004, he injured his back at work while lifting manhole covers. At the time of this accident, Zito was twenty-nine years old. He was seen at Hackensack Hospital, after which he followed up with a Dr. Strika. He was later referred to Dr. John Marinkovic, who treated him for one or two weeks. At some point, Zito requested medical treatment from AIC, reporting his injury to Joanne Patrino. On July 6, 2004, Dr. Samuel J. Snyder, an authorized workers' compensation treating physician, evaluated Zito and issued a report dated July 9, 2004, to Gloria Treihart of Horizon Casualty Services (Horizon), the third-party administrator (TPA) for AIC's workers' compensation carrier. He advised that Zito was "showing signs and symptoms of lumbosacral strain and sprain," but Dr. Snyder found that Zito's x-rays were "completely normal and do not show any post[-]traumatic abnormalities." Dr. Snyder recommended medication and physical therapy.

Dr. Snyder evaluated Zito again on September 14 after Zito completed seven weeks of physical therapy. Dr. Snyder reported to Treihart that Zito was "at maximum medical improvement" and discharged him from care.

On November 22, 2004, Zito underwent an IME with Dr. Rodney W. Cranston to determine permanency. Dr. Cranston reported to Treihart that Zito's gait, stance, lateral bending, and extension were normal. He noted Zito's previously described treatment and an MRI from July 22 which "demonstrate[d] a moderate central right extrusion type of disc herniation at L4-5" and three minor disc extrusions at adjacent levels. However, in Dr. Cranston's opinion, Zito was "currently stable." He opined that Zito had partial permanent disability of seven and one-half percent of total.

On February 22, 2005, Treihart sent Zito a letter, which referenced an incorrect claim number, an incorrect name of the insured/employer, and an incorrect February 21, 2004, date of accident. She wrote, We are currently in receipt of Dr. Cranston's report of 11/22/04 exam which estimates disability at 7-1/2% of partial total. Under separate cover we will be issuing you a voluntary offer and tender of 7-1/2% which equals 45 weeks at 173.00 per week or $7,785.00. We will be paying you for the time accrued from 6/19/04-2/26/05 which equals 36 weeks at 173.00 which totals $6,228.00. The balance of 9 weeks will be paid every 4 weeks until the full amount is paid.

Further medical treatment is considered unauthorized. Please be guided accordingly. Thereafter, Zito received and endorsed three checks from Horizon dated February 23, March 23, and April 20, 2005, in the amounts of $6228, $692, and $865 respectively. Zito lost his job when AIC closed its operations and he then began working for Hertz Rental as a mechanic. According to Zito, several months after receiving Treihart's letter, he contacted her by telephone to advise that he "was in pain and needed more treatment, but her response . . . simply was that the case was closed and that [he] should get treatment on [his] own." Zito did so and had a second MRI on September 21, 2005, which indicated that his condition did "not appear significantly changed as compared" to his July 2004 MRI.

Zito suffered another back injury while moving a piece of glass for Hertz on December 18, 2006. He had an IME in April 2007, and the doctor noted that Zito's back pain dated back to his 2004 injury with subsequent "exacerbations," including his 2006 injury. The doctor concluded, in part, that Zito had a "degenerative disc disease with associated mechanical back pain," which he "would not specifically correlate . . . with a single incident occurring at work," and opined that Zito should "obtain additional management of this condition through his personal health insurance." At the suggestion of a co- worker, Zito first consulted an attorney about his injuries in 2007, who then filed a claim petition on Zito's behalf for his 2006 injury on August 20, 2007.

Zito's attorney filed a claim petition for Zito's 2004 injury on March 5, 2008, almost three years after Zito received his last check from Horizon. The attorney, relying on Treihart's February 22, 2005, letter, reported her erroneous claim number and erroneous date of accident on the claim petition. His amended July 15, 2008, claim petition reflects the correct information. AIC raised a statute-of-limitations defense in both of its answers and then moved for a dismissal of the petition based on this defense.

Zito's counsel submitted her own affidavit in opposition to AIC's motion on January 30, 2009.*fn1 She averred that Zito told her "that he suffers from dyslexia and cannot read maps, manuals or most other written materials"; his "writing skills are largely restricted to writing his name, address and telephone number." She claimed that Zito could not read Treihart's letter, and "he was not able to question the accuracy of its contents." She also claimed that Horizon had "indicated to a largely illiterate [Zito] that he should get treatment on his own after providing, and then terminating, authorized treatment, and gave the unrepresented [Zito] no information that would have permitted him to protect his rights."

In a July 28, 2010, certification, Zito's counsel asserted that the checks sent in 2005 did not contain any information "that would have indicated a date of accident, a claim number or the identity of the employer." She argued that the information provided in Treihart's letter "was inaccurate in almost every respect, [and] did not permit [Zito] to pursue any remedies he may have been able to exercise had he been able ...

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