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Jason Allison v. L&J Contracting Company

September 27, 2012


On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, Claim Petition Nos. 2006-25970 and 2008-25471.

Per curiam.


Argued September 11, 2012

Before Judges Reisner and Yannotti.

L&J Contracting Company, Inc. (L&J) appeals from an order entered by the Division of Workers' Compensation (Division) on October 3, 2011, dismissing a claim by petitioner Jason Allison (Allison) against Baumgardner Floor Covering (Baumgardner), and a judgment entered by the Division on October 19, 2011, against L&J on Allison's claim. For the reasons that follow, we affirm.

On July 27, 2006, Allison injured his lumbar spine while working for L&J, and thereafter, filed a claim petition against L&J, seeking compensation benefits. L&J filed an answer admitting employment and the occurrence of the accident, but asserted that Allison had the burden of establishing his injuries.

On July 8, 2008, L&J filed a motion to join Baumgardner in the matter. L&J alleged that, after the accident on July 27, 2006, Allison suffered injuries in two separate accidents while working for Baumgardner. On August 14, 2008, the compensation judge entered an order granting the motion. Allison thereafter filed a separate claim petition against Baumgardner for injuries allegedly sustained while Allison was working for Baumgardner.

The compensation judge conducted a trial in the matter, beginning on September 15, 2010. At the trial, Allison testified that he worked as a tile finisher. He said that his job entailed providing the tile setters materials they needed for their work, which involved frequent bending and lifting of heavy bags weighing up to one hundred pounds. Allison said that on July 27, 2006, while he was working for L&J, he fell in a hole and injured his lumbar spine.

Following the accident, Allison continued to experience back and leg pain on a daily basis. Allison claimed that activities such as bending, lifting, getting out of bed and going down stairs triggered back and leg pain. He said that he experienced increased pain in cold or rainy weather.

Allison returned to work in March 2007. He said that initially he was able to function normally but his back and leg pain worsened over time. He began to take Percocet three times a day, one in the morning, one at lunch and one when he returned home in the evening. He said taking the medication was the only way he could get through the day.

Allison further testified that the pain he experienced while working for Baumgardner was the same pain that he experienced after the July 7, 2006 accident. Allison claimed that he was injured in June 2007 and March 2008 while working for Baumgardner. Allison did not, however, report those incidents to Baumgardner, nor did he seek treatment. He stated that he considered the symptoms resulting from the June 2007 and March 2008 incidents as "[a] flare up of [his] previous symptoms."

Dr. Steven J. Valentino (Dr. Valentino), an expert in the field of spinal surgery and orthopedics, testified that he first saw Allison on August 28, 2006. Allison complained of low back pain with intermittent radiation primarily into the right leg. Allison related these symptoms to the July 27, 2006 accident.

Dr. Valentino stated that the MRI films taken in 2006 showed that Allison had small disc herniations at the lower two levels of his spine, and a bulging disc at the L3-L4 level. Dr. Valentino formulated a treatment plan for Allison that included therapy and Percocet for pain in doses of 7.5 milligrams.

Dr. Valentino continued to treat Allison until March 2007. He explained that on March 9, 2007, he administered three epidural injections of cortisone "to quiet down the inflammation." According to Dr. Valentino, the injections seemed to provide Allison some improvement "to the point where his exam essentially turned normal."

On March 22, 2007, Dr. Valentino released Allison to return to work. He noted that Allison's only complaint at the time was "minimal back pain" and Allison was endeavoring to wean himself off the pain medicine. Dr. Valentino said he found "absolutely no radicular pain" or "numbness or weakness" in the legs. Allison told Dr. Valentino he believed he was capable or returning to work without restriction.

Allison returned to work. He performed the same tasks he had been performing before his July 27, 2006 accident. Allison returned to see Dr. Valentino on June 25, 2007. Dr. Valentino's treatment notes indicate that Allison had been doing well until the previous week, when he picked up a bag of material while working and ...

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