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Hugh Mcneil v. Township of South Brunswick Police

May 9, 2012

HUGH MCNEIL, PETITIONER-APPELLANT,
v.
TOWNSHIP OF SOUTH BRUNSWICK POLICE, RESPONDENT-RESPONDENT.



On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, Claim Petition No. 2010-25026.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 23, 2012

Before Judges Ashrafi and Fasciale.

Petitioner Hugh McNeil appeals from an order dismissing his petition for workers' compensation benefits. The primary dispute at trial was whether McNeil's injury was caused by a work-related incident. McNeil argues that the workers' compensation judge reached a decision unsupported by the credible evidence. We disagree and affirm.

Respondent Township of South Brunswick (the Township) employed McNeil as a police officer. At approximately 4:00 a.m., on April 3, 2010, McNeil responded to an emergency call and drove his police vehicle to the scene of a fire. McNeil, who is five feet and ten inches tall and weighed 250 pounds, was wearing his bulletproof vest and gun belt, approximately fifteen pounds. He testified that it was a "tight fit" inside his police vehicle. He further testified that when he arrived at the site of the fire and exited his vehicle, he "might have hit" the steering wheel with part of his body. He remained at the scene of the fire, supervised the investigation, and then finished his shift at 6:30 a.m. that morning.

McNeil went to the hospital later that day and was examined and released. On April 5, 2010, McNeil formally reported the incident to his supervisor, Lt. Joseph Charmello. McNeil was placed out of work, began a regimen of physical therapy three times per week, and received epidural cortisone injections. After an MRI examination on May 11, 2010, it was recommended that McNeil undergo surgery. He has not followed up.

McNeil has had an extensive history of back pain, going back to the early 1990s. In June 1992, an MRI revealed that McNeil had bulging discs at the L3-4 and L4-5 levels. In July 1994, McNeil was injured in an altercation with a suspect, and thereafter complained of pain radiating from his lower back to his right leg. An MRI revealed degenerative disc changes and minimal bulging. In 1995, McNeil injured his back diving for cover, and in 1996 while stretching before exercising. An MRI revealed a herniated disc with superiorly extruded fragment and degenerative disc changes at the L2-3 level, and a herniated disc at the L5-S1 level.

On June 25, 1996, McNeil underwent a discectomy at L2-3. On February 21, 1997, he returned to work. On the next day, he "stumbled," complained of radiating pain in his lower back, and was sent for physical therapy. McNeil was out of work for three months. In February 1998, he was examined by Dr. David M.

Myers, M.D., who concluded that McNeil had permanent orthopedic disability of 42.5 percent of total. In that same year, McNeil was also examined by Drs. Francis DeLuca*fn1 and Gerald Ross, each of whom separately noted that the 1994 MRI indicated degenerative disc disease.

On November 17, 2002, McNeil tripped ascending stairs, causing severe radiating pain in his lower back. Dr. Jeffrey Miller diagnosed McNeil with acute intractable back pain, and an MRI revealed left paracentral lesion at L2-3 and diffuse disc bulge at L3-4. McNeil was admitted into a rehabilitation center for inpatient physical and occupational therapy, and after two weeks, he was discharged with physical therapy to continue on an outpatient basis. In December 2002, Dr. Chu-Kuang Chen diagnosed McNeil with lumbar degenerative disc disease, possible right sacroiliac joint arthropathy and low back pain. In January 2003, McNeil underwent a series of transforaminal epidural cortisone injections. In April 2003, Dr. Miller reevaluated McNeil and diagnosed him with recurrent mechanical low back pain secondary to degenerative disc disease.

On April 11, 2004, McNeil went to an emergency room complaining of low back pain, and informed medical staff that he had injured himself while restraining a suspect. X-rays revealed mild disc space narrowing at L3-4 and L4-5, small anterior osteophytes and degenerative disc disease. In January 2005, Dr. David Weiss examined McNeil and noted tenderness over the posterior midline from L3 through S1. McNeil complained of difficulty sitting comfortably for more than 15-20 minutes, sleeping, engaging in recreational activities, and driving or riding in a car. Dr. Weiss concluded that the "work related injuries of November 17, 2002 and April 11, 2004 [were] the competent producing factor for [McNeil's] subjective and objective findings of today." In September 2006, Dr. Kenneth C. Peacock evaluated McNeil and concluded that he had a central herniated disc at L5-S1 with disc bulge, degenerative disc changes at L3-4 and L5-S1, with left L5 root involvement.

On November 1, 2007, McNeil injured his back lifting an accident victim in a stretcher. He complained of low back pain radiating through his right leg, and Dr. Miller prescribed physical therapy and epidural injections. On December 8, 2007, an MRI indicated disc herniation at L5-S1. In April 2008, McNeil saw Dr. Miller for lumbar radiculopathy.

As for the underlying event that forms the basis of this appeal, by letter dated June 8, 2010, the Township's insurance carrier informed McNeil that his "[w]orkers' [c]ompensation disability benefits [were] being terminated, effective immediately."*fn2 The letter stated: "We have been recently advised by [Dr. DeLuca] that your back symptoms are not work related, that getting in ...


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