On appeal from the Department of Labor and Workforce Development, Division of Workers' Compensation, No. 2008-30697.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves, J. N. Harris, and Koblitz.
Petitioner Johnnie Jackson appeals from a December 2, 2011 amended order of the Department of Labor and Workforce Development, Division of Workers' Compensation, which denied his claim for workers' compensation benefits and required him to repay a portion of the temporary benefits that he previously received. After reviewing the record and the applicable law in light of the arguments advanced on appeal, we affirm.
Petitioner sustained injuries to his right knee as a result of an automobile accident that occurred on April 13, 2007. Following the accident, petitioner was treated by Jerald P. Vizzone, M.D., an orthopedic surgeon. An MRI taken on August 25, 2007, revealed the following injuries to petitioner's right knee: a "tear of the posterior horn of the medial meniscus," a "partial tear of the anterior cruciate ligament," "suprapatellar joint effusion," and a "small Baker's cyst posteromedially." Dr. Vizzone treated petitioner with "intraarticular injections to the right knee for pain relief." After an October 10, 2007 evaluation, Dr. Vizzone wrote in his notes that petitioner "will require surgical arthroscopy of the right knee" and that he would review the films, then "discuss [petitioner's] surgical options with him at that point." However, petitioner did not see Dr. Vizzone again after that visit and never received the recommended surgery.
On August 4, 2008, petitioner was moving large boxes of books as part of his job in the maintenance department at the Montclair Public Library when he "heard something pop" in his right knee. Petitioner immediately stopped working and told the assistant director of the library that he "wanted to get it checked out." Petitioner was taken to Mountainside Hospital where a brace was put on his right knee and he was given crutches.
Two days later, on August 6, 2008, petitioner was seen by Britt H. Hatfield, M.D., at Concentra Urgent Care Center. In his post-examination report, Dr. Hatfield wrote that petitioner stated he was "moving boxes when [he] injured his knee" and that petitioner reported "no direct trauma to his right knee." Dr. Hatfield's report did not indicate whether petitioner disclosed any prior knee injuries. An MRI of petitioner's right knee taken on August 28, 2008, showed "a tear involving the posterior horn, body of the medial meniscus," a "sprain" of both the anterior cruciate ligament and the medial collateral ligament, and a "trace" Baker's cyst.
On September 11, 2008, petitioner was seen by John F. Mendes, M.D. In his report, Dr. Mendes stated that petitioner "felt a pop in the medial side of his right knee" while "loading or shifting boxes" at work. Dr. Mendes wrote that petitioner "denie[d] any history of knee injuries or pain in the past." After examining petitioner's knee, Dr. Mendes recommended that petitioner undergo surgery, and on September 18, 2008, Dr. Mendes performed an "arthroscopic partial medial meniscectomy" on petitioner's right knee. At a follow-up appointment it was discovered that petitioner had a staphylococcal infection, and an "arthroscopic irrigation and debridement of the right knee" was performed by Dr. Mendes on September 26, 2008.
On November 5, 2008, petitioner filed a workers' compensation claim, in which he alleged that he injured his right knee in an accident "arising out of and in the course of [his] employment."
On December 15, 2008, petitioner provided answers to interrogatories in connection with a civil lawsuit he had filed following the April 2007 automobile accident. In his answers, petitioner stated that the injuries he suffered in the automobile accident, which included the injury to his right knee, "are considered to be permanent" and that they "continue to limit his activities" and "cause great pain on a daily basis." Petitioner also stated that he suffered "pain" and "discomfort" while working, bending, lifting, sitting, and sleeping.
Petitioner underwent another MRI on February 13, 2009, and he saw Wayne A. Colizza, M.D., on March 5, 2009. In his report, Dr. Colizza noted petitioner "injured his right knee" in a workplace accident in August 2008, and he "denie[d] any problems with respect to his right knee prior to his work injury." Dr. Colizza stated that petitioner had undergone "extensive physical therapy" and was seeing him "for a second opinion at the request of Dr. John Mendes." Dr. Colizza wrote that petitioner still had "some difficulty with squatting and crawling," but there was considerable improvement in his overall function. Dr. Colizza concluded that petitioner had "reached maximum medical improvement and that physical therapy [was] no longer required."
In connection with petitioner's workers' compensation claim, an independent medical evaluation was conducted at respondent's request by Carl F. Mercurio, M.D. In his report dated August 18, 2009, Dr. Mercurio noted that during the interview, petitioner "was able to sit normally," his "[g]ait was normal," and he "was able to go into a full squat without difficulty." Dr. Mercurio found petitioner had "an internal derangement of the right knee with a tear of the medial meniscus," and there was a "causal relationship" between this injury and the August 2008 workplace accident. However, Dr. Mercurio noted there was "a prior injury as a result of a motor vehicle accident in 2007" and "[i]f these records could be provided, this may affect [his] opinion."
At his attorney's request, petitioner was evaluated by Arthur M. Tiger, M.D., on September 8, 2009. Dr. Tiger noted in his report that petitioner had been injured in an automobile accident prior to his workplace injury. After examining petitioner's right knee and reviewing his medical records, including the records from the April 2007 automobile accident, Dr. Tiger estimated "a disability for [the workplace] accident of 55% of the leg" and a ...