On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, CP Nos. 2004-37094; 2004-37096.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 21, 2011 -
Before Judges Waugh and St. John.
James Graf appeals from orders of dismissal with prejudice entered by
the Division of Workers' Compensation on November 4, 2010. The appeal
involves denial of Claim Petition No. 2004-37094 for benefits from S&A
Wood Floors, Inc., and Claim Petition No. 2004-37096 for benefits from
Mitchell Park Flooring, Inc., which have been consolidated.*fn1
We affirm the decision of Jill M. Fader, Judge of
We derive the following facts from the evidence presented at trial. From 1982 to December 2002, Graf worked refinishing wood floors. During the course of his employment, he operated a 230-pound sander, a 50-pound edging machine, and a radiator sander. Graf would typically remove pieces of heavy equipment from his employer's van and carry them up one or more flights of stairs to reach the area where the work was to be performed. Graf also worked staining sanded floors, during which he would move around the area on his hands and knees.
Graf worked for S&A from July 1, 1998 until July 15, 1999. In his claim against S&A, Graf asserted a disability to his back that manifested in July 1999, resulting from occupational exposure while employed at S&A. There was no testimony regarding a specific accident or incident on or around July 15, 1999. However, Graf sought treatment and his Pascack Valley Hospital record dated July 23, 1999 indicates the following history:
[He was] moving a sanding machine that he was able to lift it up to the second floor. When he went home, he started having pain to the low back area. The patient states the pain is localized and does not go down his legs or to his abdominal area. The patient states that he went and saw a chiropractor on Monday, Tuesday and Wednesday. States that he was in bed on Thursday. States that it did not get much better. The patient states he took Advil 600 milligrams every six hours.
An x-ray was performed, which was normal.
Graf was treated by a chiropractor from July to September 1999, and then for one visit in December 1999. Graf testified that he sought treatment from two chiropractors while he worked at S&A. One doctor's records showed Graf's low back treatment from July 21, 1999 through September 29, 1999. Graf asserted that the chiropractors told him that he had "disc problems, back problems." The Judge of Compensation asked if he was seen by them because of the nature of his work, to which he answered, "yes." Graf's testimony related only to the fact that he visited the chiropractors, but he presented no testimony regarding any treatment received as a result of alleged exposure during his employment with S&A, nor how his alleged exposure caused a disability that had any impact on his work or out of work abilities. The Judge of Compensation determined "[t]here is no evidence before the court either by way of testimony, or medical records, that [Graf] was unable to work during this period of chiropractic treatment, or impeded in any way in his out of work abilities."
Graf worked for Mitchell from October 1999 through December 22, 2002. Graf asserts that he experienced a sharp pain in his lower back as he was lifting a heavy machine out of Mitchell's van on December 6, 2002. The pain subsided after a few minutes. Graf continued to work the remainder of that day. On December 8, while at home, Graf was assisting his wife in retrieving Christmas decorations from the attic. The attic, which was no more than a crawl space, was accessed by means of a fold-down ladder. His wife was in the crawl space, handing down the decorations to him. He was on the second rung from the bottom of the ladder and steadied himself against it to receive the decorations. Graf's wife handed him a small box of Christmas decorations weighing approximately three pounds eight ounces. Graf took the box, bent down to place it on the floor near the ladder and felt a sharp pain in his back. Graf characterized the pain as so severe that he required bed rest. The next day, Monday, he awakened in pain. He reported to work and informed his employer that he was in intense pain. He performed light-duty work that day, and could not install a new wood floor the next day because of his back pain. He left work, returned home, and since then has not worked in the flooring industry or held gainful employment.
Subsequent to the Christmas decorations injury, in January 2003, Graf was referred to a pain management specialist. Thereafter, in June 2003, Graf underwent laminectomy surgery, and in October 2004, spinal fusion surgery, performed by orthopedic surgeons. He was also treated by a pain management specialist. The Judge of ...