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Howard S. Dare, Jr v. Atmostemp

August 2, 2012

HOWARD S. DARE, JR., PETITIONER-RESPONDENT,
v.
ATMOSTEMP, LLC, RESPONDENT-APPELLANT, AND ULTIMATE COOL, LLC, RESPONDENT-RESPONDENT.



On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, Claim Petition Nos. 2009-3018 and 2009-3025.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued June 5, 2012

Before Judges Simonelli and Hayden.

Appellant Atmostemp, LLC (Atmostemp) appeals from the December 16, 2011 judgment of the Division of Workers' Compensation, which found that respondent Howard Dare (Dare) suffered a compensable injury while in Atmostemp's employ, awarded Dare compensation benefits payable by Atmostemp, and dismissed the claim petition against respondent Ultimate Cool, LLC (Ultimate). We affirm.

Dare began working for Atmostemp in 1978 as a heating and air conditioning (HVAC) installer, and worked there until January 6, 2001. At all times relevant to this appeal, Dare's job as an HVAC installer required manual labor, including kneeling, stooping and squatting for extended periods of time in crawl spaces and attics in new homes under construction, lifting and carrying heavy equipment up and down stairs or ladders, and jumping from different levels if the home had no stairs.

Dare began experiencing left knee pain in 1998 or 1999. He testified that he had been having pain in his left knee for some time and used ice packs and Advil for years to alleviate the pain before seeing a doctor. Dare saw Dr. Larry Rosenberg on July 13, 1999, complaining of "left knee stiffness for a month's duration" and "increasing pain with steps, walking and sitting for any long periods of time." On examination, Dare had "pain with flexion and rotation about the posterior joint line centrally." Dr. Rosenberg injected Lidocaine and Depo-Medrol into Dare's left knee, which temporarily relieved the pain.

Dare saw Dr. Rosenberg again on July 27, 1999. X-rays of Dare's left knee revealed "medial compartment arthritis without any chondrocalcinosis." Dr. Rosenberg recommended that Dare take an anti-inflammatory and use ice to alleviate the pain.

Dare stopped working at Atmostemp on January 6, 2001, but returned to work there on August 27, 2001. On October 18, 2001, he saw Dr. Roy Friedenthal and reported that on September 9, 2001, he had been working in an attic and stepped between the attic's trusses, which were twenty-four inches apart, when his left knee "started bothering [him] and [he] was getting a twinge in there." According to Dare, the pain in his left knee "kind of built up to that, but . . . walking through the trusses that day it kind of put the topping on the cake and [he] had to see [a doctor];" his left knee "had been slowly bothering" him, and "stepping cross the trusses that day was the straw that broke the camel's back."

On October 18, 2001, Dr. Friedenthal injected Dare's left knee with Lidocaine and Depo-Medrol. Dare had some relief, but the pain returned by October 25, 2001, when he again saw Dr. Friedenthal, who ordered an MRI of Dare's left knee. A November 2001 MRI revealed "a moderate osteoarthritic change in both medial and lateral compartments with cartilage thinning and some erosive changes[,]" as well as "a complex tear of the posterior horn of the medial meniscus."

On January 8, 2002, Dr. Friedenthal performed arthroscopic surgery on Dare's left knee. During the surgery, the doctor discovered that Dare had "degeneration of the whole posterior third of the meniscus[,] . . . degenerative tearing in the medial portion of the lateral meniscus . . . and moderate degenerative changes throughout the medial lateral compartments."

Following rehabilitation, Dare returned to work at Atmostemp in March 2002, performing the same job duties with certain restrictions.*fn1 According to Dr. Friedenthal, Dare was working in April 2002 and continued to improve, but had "moderate pain towards the end of the day." On May 9, 2002, Dr. Friedenthal noted that Dare still had "some sensitivity at the medial side of the joint[,]" as well as "post traumatic changes in [the] joint [that] are going to be a source of sensitivity." Dare testified that he had experienced some relief after the surgery, but his left knee "[j]ust progressively got[] worse."

Dare claimed that in addition to his left knee, he began experiencing right knee pain in 2005 or 2006. He testified that while working for Atmostemp, he told the owner, Joe DeServo, Sr., about his knee pain and that both knees "were killing [him,]" and DeServo knew both of Dare's knees "were in bad shape." Dare also testified that any time DeServo would give him a tough job he would tell DeServo his knees were killing him but DeServo would just laugh at him.

Dare ceased working at Atmostemp on May 26, 2006, and began working for Ultimate on May 27, 2006.*fn2 Prior to starting his employment with Ultimate, Dare informed Ultimate's owner that he anticipated having "significant treatment" to his right knee. Three months later, on August 7, 2006, Dr. Gregg Pearson treated Dare for right knee pain. X-rays of both knees revealed that Dare had a complete loss of medial ...


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