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Altair Alves Da Silva v. Best Transportation

July 10, 2012

ALTAIR ALVES DA SILVA, APPELLANT,
v.
BEST TRANSPORTATION, RESPONDENT.



On appeal from New Jersey Department of Labor, Division of Workers' Compensation, Claim Petition No. 2010-10121.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 1, 2012

Before Judges Cuff and St. John.

Altair Alves Da Silva appeals from a March 29, 2011 order of the Division of Workers' Compensation (the Division), dismissing his claim for medical and temporary benefits. We affirm.

I.

We derive the following facts from the evidence presented at trial. On April 23, 2010, Da Silva filed a claim petition with the Division, indicating an accident date of January 25, 2010, which was later amended to February 8, 2010. In its answer, Best Transportation (Best) contested that Da Silva's injury arose out of and in the course of employment.

A three-day hearing commenced on September 16 and concluded on December 14, 2010. The parties stipulated that Da Silva was employed by Best on February 8, 2010. The Judge of Compensation issued a written decision on March 23, 2010, dismissing Da Silva's claim petition for failure to sustain his burden of proof, memorialized in an order of March 29, 2011. Specifically, the Judge of Compensation found Da Silva "was not a credible witness" and "did not suffer a fall which lead[] to the injuries complained of."

Da Silva testified that he worked for Best as a truck driver and was injured when he "fell down from the top of the truck" while trying to make a delivery. He asserted that he was "confused with the date." Da Silva testified, "I cannot remember, but I know it was -- I believe it was February, but I don't remember the exact date."

The alleged incident occurred during a delivery in Pennsylvania. Best provided a wrong delivery address and Da Silva arrived in a residential neighborhood with no radio signal. While maneuvering to turn the truck around, "the hose that connects the tractor to the trailer, [] disconnected." Da Silva testified,

And since I was trying to connect the hose again -- the air hose, and when I was connecting it, I was on top of the chassises of the trailer. I lost -- I lost control of my leg that was on top of the fuel tank and I fell backwards. And as I fell, I went --I fall straight on the street with my whole body backwards. And I lost a little bit of conscious and I was not understating much and I had a lot of pain.

And at that point, I can not communicate. The phone was -- I could not get a signal where I was in the area.

Da Silva allegedly fell a distance "higher than [his] own height" onto the blacktop. He "could not get up forward" so he "pushed [him]self on [his] back to the steps of the truck and then [he] got up with a lot of difficulty" into the truck. He stated that he was in so much pain he was "90% impaired." When he obtained a radio signal, Da Silva called Best and spoke with a female dispatcher, who he could not identify by name but stated she was new to the company. Da Silva explained he was lost and the address was incorrect. He told the dispatcher he "had had an accident; that [his] back was hurting a lot and that [he] did not know if [he] could make the delivery[,]" as he "had just fallen from the top of the truck." Da Silva contacted another driver headed to the same destination with the correct address and proceeded to make the delivery. On his way back to New Jersey, he stopped and purchased Ibuprofen but did not go to the emergency room, see a doctor, or call any family members about the incident.

The following day, Da Silva notified dispatcher Allen Renta about the incident, but Da Silva asserted he was ignored and told to continue working. On March 1, 2010, he informed Best that the pain was too intense and he could "not even stand up." He stated that at the time, the human resources manager "started to get worried" and said that the "government" would give him care. He never returned to work. ...


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