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Peterson v. Home Depot Supply

Superior Court of New Jersey, Appellate Division

June 28, 2013

SIMON PETERSON, Petitioner-Appellant,
v.
HOME DEPOT SUPPLY and M. BERNSTEIN & SONS, Respondents-Respondents.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 22, 2013

On appeal from the Board of Review, Department of Labor and Workforce Development, Division of Worker's Compensation, Claim Petition No. 2007-13601.

Sander Perl argued the cause for appellant (Law Offices of Marc A. Futterweit, attorneys; Mr. Perl, on the briefs).

James Passantino argued the cause for respondent (Biancamano & DiStefano, P.C., attorneys; Mr. Passantino, on the brief).

Respondent M. Bernstein & Sons has not filed a brief.

Before Judges Fasciale and Maven.

PER CURIAM

Simon Peterson (Peterson) appeals from the Judge of Compensation's May 11, 2012 decision to dismiss his claim petition for workers' compensation benefits. We affirm.

I.

Peterson filed a Claim Petition in the Division of Workers' Compensation on May 3, 2007, where he alleged that, as a result of his employment with Home Depot Supply (Home Depot) from October 2004 to May 2006, he suffered from multiple permanent orthopedic and neurological injuries. Home Depot opposed the petition. The court granted Home Depot's motion to implead Peterson's previous employer, M. Bernstein & Sons (Bernstein).

A fifteen-day trial was held before the Judge of Compensation (JOC) over the course of almost two years, beginning with Peterson's five-day testimony, followed by the testimony of his wife, as well as his experts, Arthur C. Rothman, M.D., Ph.D., P.A., Arthur H. Tiger, M.D., P.A., and treating doctor, David Idank, D.O. The court also heard testimony from Bernstein's examining doctor, Malcolm G. Coblentz, M.D., and Home Depot's examining doctor, Joseph Corona, M.D.

We derive the following relevant facts from the trial record. Peterson testified that he worked as a full-time delivery driver for Bernstein for approximately fourteen years. During the course of his employment, he loaded and unloaded from his employer's delivery truck. He testified that his job duties consisted of "driving and loading, going up stairs, [and] going down stairs."

Peterson began working for Home Depot in May 2004, where he delivered items of "heavy weight, " such as refrigerators, air conditioners, washers, dryers, freezers, plumbing supplies, large mirrors, doors, snow blowers and seventy-five-pound bags of salt. These duties "required repetitive bending, lifting, ...


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