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Alvarez v. Continental Airlines

Superior Court of New Jersey, Appellate Division

October 18, 2013

SMILE ALVAREZ, Petitioner-Appellant,
v.
CONTINENTAL AIRLINES, Respondent-Respondent.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 7, 2013

On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition No. 2002-22421.

D. Gayle Loftis argued the cause for appellant.

Joseph V. Biancamano argued the cause for respondent (Biancamano & DiStefano, attorneys; Mr. Biancamano, of counsel and on the brief).

Before Judges Harris and Guadagno.

PER CURIAM

Plaintiff Smile Alvarez appeals from the January 25, 2013 order of the Division of Workers' Compensation dismissing his petition to receive compensation for injuries allegedly sustained while performing his duties as an employee of defendant Continental Airlines.[1] The compensation court found that Alvarez did not give timely notice of the incident to his employer as required by N.J.S.A. 34:15-17. We agree and affirm.

I. The incident from which Alvarez seeks compensation occurred on October 21, 2001, while he was employed as an international service manager. According to Alvarez, after arriving in Quito, Ecuador as part of a routine flight, he "went to check [his], double check [his] door to make sure it was in the disarm position so it wouldn't accidentally be a deploy . . . ." Upon entering the airplane's galley, he reached "the vinyl flooring [and] both [his] feet went right up from underneath [him] and [he] flipped over on his back and shoulders." Alvarez was launched "high enough that [his] feet went over [his] shoulders and backwards and hit the floor." Ultimately, Alvarez's head, shoulders, and neck struck the airplane's floor. Alvarez refused to seek professional medical treatment in Ecuador. Instead, he self-medicated by soaking in his hotel's hot tub. Alvarez described himself as being "pretty sore. I was banged up."

After returning to the United States, Alvarez eschewed treatment at Continental's Whole Health Clinic in Newark.[2]Instead, he directly embarked upon a pre-planned (and authorized) extended leave of absence to care for his terminally ill mother. While on leave, Alvarez did not engage in any physical activity, but noticed a deterioration in his health. Alvarez testified that within a month, he "would get a sharp pain radiate down my left arm to the point where it would bring me down to my knees. It would hurt really bad. Also my hand was going numb."

During April 2002, Alvarez returned to duty in Houston, Texas. When he attempted to check in for a series of day flights, he stated, "you know what I can't go. I can't do this. The pain in my arm was hurting too bad." Alvarez consulted a doctor at Continental's Whole Health Clinic who prescribed Ibuprofen and sent him home. Alvarez immediately went on sick leave, and did not return to work for almost one year.

On April 12, 2002, Alvarez consulted Dr. Diaz, a neurologist.[3] Dr. Diaz prescribed a painkiller, and ordered a Magnetic Resonance Imaging (MRI) test. The MRI revealed a herniated disc.[4]

On April 19, 2002, Alvarez filed a workers' compensation claim with the Texas Department of Workers' Compensation.

On June 6, 2002, Continental's insurance carrier informed Alvarez that it was denying his compensation claim on the ground that he did not ...


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