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Donald Carey v. Jersey Central Power and Light Company

October 20, 2011


On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, CP No. 2004-19502.

Per curiam.


Argued September 19, 2011

Before Judges Sabatino and Ashrafi.

In this workers' compensation appeal, the employer, Jersey Central Power and Light Company (JCP&L), appeals from a judgment after trial that apportioned liability for benefits between two periods of petitioner Donald Carey's employment, one while the employer carried workers' compensation insurance and the second while it was self-insured. Carey and the insurance carrier oppose the appeal. JCP&L challenges the findings and conclusions of the Division of Workers' Compensation (the Division) that Carey's prior work-related injuries and disability increased as a result of continuing employment with JCP&L and that the increase should be attributed equally to both periods of employment.

The Judge of Compensation heard testimony from Carey and five medical witnesses over six days of trial. He rendered an oral opinion by which he concluded that a 15% increase in Carey's disability was caused equally by the exacerbation of his prior injuries and new occupational injury. He held JCP&L as insured before 2004 liable for 71/2 % and JCP&L as self-insured beginning in 2004, liable for the other 71/2 % of Carey's benefits.*fn1

Finding no error in the proceedings conducted by the Division, and substantial evidentiary support in the record for the judge's findings and conclusions, we affirm.


Carey is a long-time employee of GPU and JCP&L. In March 2000, he was injured in a workplace accident. He suffered headaches and periodic numbness and pain in his neck, shoulders, and right arm and fingers. His ability to lift objects and to perform household tasks was diminished, and he experienced difficulties with thinking and memory. Carey filed a claim for workers' compensation benefits in 2000. An MRI was taken of his spine that year.

In 2002, Carey and GPU entered into a settlement agreement, and the Division approved the settlement by order dated September 12, 2002. The order provided that Carey had a 45% permanent partial disability as a result of a herniated cervical disk at C5-6, a bulges at C2-C5, lumbosacral sprain and myositis, cervical radiculpathy, and post-concussion syndrome.

Carey continued to work for JCP&L after his March 2000 accident and the 2002 settlement. From 2000 to 2005, he was employed as a lineman and troubleman. These positions required rigorous physical exertion, including regularly lifting and manipulating heavy objects, boring with augers, installing poles, and climbing ladders while carrying ten-foot one-hundred pound cross-arms. In the spring of 2003, Carey began to complain that his neurological ailments had worsened.

In January 2004, shortly after JCP&L became self-insured, Carey asked his supervisor for additional medical treatment because the pain in his neck and lower back had become severe. JCP&L sent Carey to be examined by a doctor, who reported in January 2004 that Carey's complaints were the result of an "exacerbation of his pre-existing cervical and lumbar strain" caused by the March 2000 accident.

Carey contends JCP&L refused to provide further medical treatment after it received its doctor's report. Consequently, in February 2004, Carey sought treatment from his family physician, who ordered a new MRI. After comparing the 2004 MRI to the 2000 MRI, the family doctor concluded there were new injuries to Carey's spine: herniated disks at L5-S1, C3-4, and C4-5, an annular tear at L5-S1, and a disk bulge at L4-5.

In June and July 2004, Carey initiated new workers' compensation claims, alleging both aggravation of his prior injury and new occupational injury. Five years later, the matter was finally tried before the Judge of Compensation. Carey testified at the trial that the intensity and duration of the pain and numbness in his head, neck, lower back, shoulders, and right arm and hand had increased from 2000 to 2009. Additionally, the pain and numbness had spread to his legs, feet, and left arm and hand. The judge found Carey to be a candid and credible witness and also observed that Carey seemed to be suffering significant pain during the proceedings.

Dr. Sidney Tobias, an orthopedic expert, testified on behalf of Carey. He had examined Carey three times from February 2006 to November 2009. He had also read Carey's testimony and reviewed his medical history, including the 2000 and 2004 MRIs. Dr. Tobias concluded that Carey's orthopedic health had substantially worsened after 2002. On the issue of causation, he testified that Carey's condition deteriorated between January 2004 ...

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