JASON CUEVAS v. S & J ELECTRIC

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4336-03T14336-03T1

JASON CUEVAS,

Petitioner-Respondent/

Cross-Appellant,

v.

S & J ELECTRIC,

Respondent-Appellant/

Cross-Respondent.

_____________________________________________________

 

Argued September 19, 2005 - Decided

Before Judges Alley, C.S. Fisher and Yannotti.

On appeal from the Division of Workers' Compensation, Camden District, C.P. No. 2001-19100.

Prudence M. Higbee argued the cause for respondent-appellant/cross-respondent (Cape-hart & Scatchard, attorneys; Ms. Higbee, of counsel and on the brief).

Blair C. Lane, Sr. argued the cause for petitioner-respondent/cross-appellant.

PER CURIAM

In this appeal, we conclude there was adequate evidence in the record to support the workers' compensation judge's determination to hold respondent responsible for injuries triggered when petitioner sneezed while recuperating from his earlier work-related back injury.

On October 28, 2000, while working at Newark Airport as an electrician for respondent S & J Electric, petitioner Jason Cuevas struck his head on a metal bar and fell backwards into a four to six foot deep hole. After a trial over the course of seven days, a final judgment was entered on March 22, 2004 requiring respondent to pay medical expenses of $55,340.79, and compelling the further evaluation of petitioner by a New Jersey physician to determine whether additional treatment is necessary and whether petitioner is permanently disabled.

Respondent appealed, raising the following arguments for our consideration:

I. THE TRIAL COURT'S DECISION WITH REGARD TO THE CERVICAL SPINE IS CONTRARY TO ITS FINDINGS OF FACT AND SHOULD THEREFORE BE REVERSED.

II. THE LOWER COURT'S DECISION IS CONTRARY TO THE MEDICAL EVIDENCE IN THE RECORD AND DEFIES THE COURT'S OWN FINDING THAT RESPONDENT'S EXPERT WAS MORE CREDIBLE.

III. THE TRIAL COURT FAILED TO APPLY THE APPLICABLE LAW IN REACHING ITS DECISION.

IV. THE LOWER COURT FAILED TO MAKE ANY FINDINGS OF FACT WITH REGARD TO THE LUMBAR SPINE, RIGHT ARM AND LEFT HAND.

V. THERE IS INSUFFICIENT CREDIBLE EVIDENCE IN THE RECORD TO SUPPORT THE LOWER COURT'S DECISION THAT THE PETITIONER IS IN NEED OF A MEDICAL EVALUATION REGARDING HIS LUMBAR SPINE.

VI. THERE IS INSUFFICIENT CREDIBLE EVIDENCE IN THE RECORD TO SUPPORT THE LOWER COURT'S DECISION THAT THE PETITIONER IS IN NEED OF A MEDICAL EVALUATION REGARDING HIS RIGHT ARM.

VII. THERE IS INSUFFICIENT CREDIBLE EVIDENCE IN THE RECORD TO SUPPORT THE LOWER COURT'S DECISION THAT THE PETITIONER IS IN NEED OF A MEDICAL EVALUATION REGARDING HIS LEFT HAND.

VIII. THE TRIAL COURT DECISION TO AWARD ADDITIONAL TEMPORARY DISABILITY BENEFITS IS CONTRARY TO THE MEDICAL EVIDENCE.

Petitioner has cross-appealed, raising the following arguments:

I. THE JUDGE BELOW ERRED BY NOT ORDERING THE RESPONDENT TO PAY FOR AND PROVIDE MEDICAL BENEFITS TO THE PETITIONER BASED UPON THE SUFFICIENT CREDIBLE EVIDENCE IN THE RECORD THAT THE PETITIONER IS IN NEED OF ADDITIONAL MEDICAL TREATMENT.

II. THE JUDGE ERRED BELOW BY NOT AWARDING THE PETITIONER TEMPORARY DISABILITY COMPEN-SATION FROM 2/13/01 THROUGH PRESENT OR UNTIL THE PETITIONER IS ABLE TO RETURN TO WORK OR IS AS FAR RESTORED AS THE PERMANENT CHARACTER OF THE INJURY WILL PERMIT.

III. THE COURT BELOW ERRED BY NOT AWARDING THE PETITIONER A 25% PENALTY PURSUANT TO N.J.S.A. 34:15-28.1 DUE TO THE RESPONDENT'S UNREASONABLE NEGLIGENT DELAY OR REFUSAL TO PAY PETITIONER TEMPORARY DISABILITY COMPEN-SATION.

IV. THE COURT BELOW ERRED BY NOT AWARDING THAT THE PETITIONER'S MEDICAL FEES, TRANSCRIPT FEES AND INTEREST THEREON BE ASSESSED AGAINST THE RESPONDENT BASED UPON GRANTING OF THE PETITIONER'S MOTION FOR MED/TEMP BENEFITS.

With the exception of the argument raised by respondent in its Point III, portions of which may also be found in other points asserted by respondent, we reject all the other issues raised in both respondent's appeal and petitioner's cross-appeal, finding they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

We also reject the arguments contained in respondent's Point III. We conclude there was sufficient evidence and a legal basis for the determination that respondent should be held responsible for the consequences of the sneeze-generated injuries.

Our decision is informed by the standard of review that we must apply. It is well established that our appellate courts will not disturb a compensation judge's finding that could reasonably have been reached on sufficient credible evidence present in the record, and that "due regard" should be given to the compensation judge's "expertise where such expertise is a pertinent factor," Close v. Kordulak Brothers, 44 N.J. 589, 599 (1995), although we also recognize that no special deference is owed to the compensation judge's interpretation of the law or application of the law to established facts, Auletta v. Bergen Ctr. for Child Dev., 338 N.J. Super. 464, 470 (App. Div. 2001). We are also obligated to consider that the Workers' Compensation Act, N.J.S.A. 34:15-1 to -128, is remedial social legislation and should be given a liberal construction in order to "implement the legislative policy of affording coverage to as many workers as possible." Brower v. ICT Group, 164 N.J. 367, 373 (2000); Torres v. Trenton Times Newspaper, 64 N.J. 458, 461 (1974).

In considering the legitimacy of the compensation judge's rulings regarding the consequences of a sneeze, we need only briefly recount the relevant facts and circumstances that led up to that point.

As noted earlier, petitioner was working as an electrician for respondent on October 28, 2000 when he struck his head on a metal bar and fell into a hole. As a result, petitioner went to a health clinic where his neck and arm were examined and a CT scan of the brain performed. Petitioner soon thereafter returned to his Mississippi home and began receiving treatment. At that time he was complaining of migraines, neck pain and tingling in his left arm. There is evidence in the record to suggest that petitioner did not then complain of pain on the right side of his neck or his right arm. He also did not then complain of low back pain.

On March 22, 2001, while recuperating from these work-related injuries, petitioner was lying in bed at home and suffering from considerable back pain. He then sneezed. Immediately after sneezing, petitioner suffered increased and immobilizing pain and, as a result, was transported from his home to the emergency room of a local hospital. Petitioner was later diagnosed as having a disc herniation.

Respondent's expert acknowledged that the symptoms following the March 22, 2001 sneeze were consistent with a herniated disc. However, respondent argued that these new symptoms were not caused by the October 28, 2000 work-related injury, which, according to respondent's expert, only involved petitioner's left side. Instead, the expert asserted that the sneeze-generated troubles with petitioner's right side were not causally-related to the October 28, 2000 event. The compensation judge rejected respondent's contentions and we defer to that factual determination.

We initially observe that there was medical testimony to suggest that the sneeze could have caused a disc herniation. Indeed, respondent's expert acknowledged this, causing the judge to observe that he was petitioner's best witness on this point. Respondent's expert explained that a sneeze causes the pressure "inside the disc [to] rise[] dramatically," as demonstrated by studies that have analyzed the significant impact on discs caused by sneezing, which he discussed at some length. As a result, respondent's expert concluded:

So, my point being, is that sneezing causes significant increases in the pressure. If you find an already damaged disc, yes, it would make it easier to herniate but you're also, in some instances doubling the pressure within the disc and even in a normal disc it may. The annulus may not be able to withstand the pressure and there may be a disc herniation.

The record reflects that at the time of the sneeze, petitioner was already in considerable pain, having hardly slept the night before. The compensation judge relied upon the opinion of the respondent's expert and we interpret her findings as implicitly containing the conclusion that this sneeze triggered a herniation to an area of petitioner's spine that was also weakened or damaged by the October 28, 2000 fall. After carefully examining the record, we conclude that the evidence supports such a finding.

The judge also determined that, as a matter of law, the sneeze was not the type of intervening, superseding event that would insulate the respondent from further liability. The leading treatise provides the guidelines to be followed when additional or secondary injuries have been brought about by a subsequent event occurring outside the workplace:

When the primary injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury likewise arises out of the employment, unless it is the result of an independent intervening cause attri-butable to claimant's own intentional conduct, [and that the employer will remain liable for the consequences when the later event] appears to have been purely accidental, and no substantial question of independent intervening cause based on the claimant's conduct [has figured in the causing of the second injury].

[Arthur Larson, Larson Workmen's Compen-sation Laws, Vol. I, 13.00 and 13.12(b) (1990)].

These principles have been thoroughly discussed and are consistent with the approach taken by our courts in considering similar claims of subsequent injuries. See McDonough v. Sears, Roebuck & Co., 130 N.J.L. 530 (E. & A. 1943), aff'g., 127 N.J.L. 158 (Sup. Ct. 1941); Selak v. Murray Rubber Co., 108 N.J.L. 548 (E. & A. 1932), aff'g o.b., 8 N.J. Misc. 838 (Sup. Ct. 1930); Amey v. Friendly Ice Cream Shop, 231 N.J. Super. 278, 281-84 (App. Div. 1989); Kelly v. Federal Shipbuilding & Dry Dock Co., 1 N.J. Super. 245, 248 (App. Div. 1949); Randolph v. E.I. du Pont de Nemours & Co., 130 N.J.L. 353, 356 (Sup. Ct. 1943). We need not further describe the rule except to emphasize what we said in Amey:

[C]ompensability can be defeated by a certain degree of employee misconduct, and . . . that degree is something beyond simple negligence, and can best be described as an intentional violation of an express or implied prohibition in the matter of performing the act. . . . As to what constitutes negligence, in these cases it often takes the form of rashly undertaking a line of action with knowledge of the risk created by the weakened member.

[231 N.J. Super. at 284 (quoting Larson, supra, 13.11(d) and 13.12).]

The past experiences of our courts with these principles demonstrate the type of petitioner conduct that will either permit or preclude recovery of benefits for a so-called second injury.

Recovery, for example, was permitted in Selak, where petitioner broke his arm on the job. Before his injury was completely healed, petitioner slipped and fell in a public street, re-fracturing his arm in the same place. 8 N.J. Misc. at 839. In Kelly, as the result of a workplace accident, the company doctor placed petitioner's leg in a cast. While at a wedding, and while still wearing the cast, petitioner slipped and fell off steps in an "attempt to save a falling tot from harm." 1 N.J. Super. at 248. We found petitioner in Kelly to have engaged in an "instinctive act" that "innocently" contributed to the second injury, and permitted recovery. Ibid. And, in Randolph, petitioner sustained an eye injury at work and was prescribed dark glasses to wear as a result. His eye was more severely injured when he fell downstairs in his home while wearing the dark glasses, causing the glasses to break and glass to enter his eye. The employer was held obligated to pay benefits as a consequence of petitioner's fall. 130 N.J.L. at 355-56. See also Hartford Fire Ins. Co. Group v. Beeler, 244 F. Supp. 188 (E.D. Tenn. 1965) (employer found liable for aggravation to a work-related back injury caused by petitioner's picking of peaches and driving cows on his farm); Interlake, Inc. v. Industrial Comm'n, 515 N.E.2d 202 (Ill. App. 1987) (employer found liable for aggravation to a work-related back injury caused by the act of bending over to pick up a screwdriver); Doty v. Aetna Life & Cas. Co., 350 N.W.2d 7 (Neb. 1984) (employer found liable for aggravation to a work-related back injury caused by petitioner's act of bending down and picking up his two-year old daughter); DiSimone v. Underwriters Adjusting Co., 457 N.Y.S.2d 1009 (App. Div. 1982) (employer found liable for a work-related back injury aggravated by petitioner's placing a package in his car); GTE Sylvania v. Workmen's Comp. App. Bd., 458 A.2d 1050 (Pa. 1983) (employer found liable for a work-related back injury aggravated by petitioner's lifting of light firewood in his home).

On the other hand, recovery of benefits for a second injury has been barred where the petitioner acted recklessly or contrary to doctor's orders. In Amey, for example, petitioner sustained a work-related hand injury that required surgical repair of the flexor tendon. The tendon was later ruptured when, contrary to doctor's orders, petitioner worked on his car at home. We held that petitioner's claim for benefits based upon this second injury was properly rejected. 231 N.J. Super. 278. In McDonough, the Court of Errors and Appeals denied recovery when petitioner, who had suffered a work-related injury that required the amputation of his left index finger, ignored doctor's orders and lit a match near the alcohol dressing on his wound, causing it to catch fire. The resulting severe burns required the amputation of petitioner's remaining fingers and thumb. Recovery was denied because of petitioner's reckless conduct. 130 N.J.L. 530-31.

While these decisions may suggest that the nature of a petitioner's conduct might at times generate perplexing problems in ascertaining whether the chain of causation commenced with a work-related injury has been broken, there can be no legitimate dispute that the involuntary act of sneezing cannot be equated with the type of petitioner wrongdoing found significant in Amey and McDonough. Indeed, in Perchelli v. Utah State Indus. Comm'n, 475 P.2d 835, 837 (Utah 1970), the court considered the precise issue before us and determined that the petitioner's sneezing, which triggered a disc herniation, could not be found to be an independent cause that would relieve the employer of liability. Professor Larson discussed the case in his treatise, concluding that the Utah Supreme Court's decision "is clearly correct," and explaining that the case "should be no different if the triggering episode is some nonemployment exertion like raising a window or hanging up a suit, so long as it is clear that the real operative factor is the progression of the compensable injury, associated with an exertion that in itself would not be unreasonable in the circumstances." Larson, supra, 13.11(a). We agree. Petitioner's act of sneezing was purely innocent and involuntary and cannot, as a matter of law, constitute an intervening superseding event that would free respondent of liability for the consequences of the second injury that occurred in petitioner's home. Since the evidence supported the judge's implicit finding that the injuries caused by petitioner's sneeze represented a logical progression from the original, work-related injury, respondent's contention that it cannot be held liable for the consequences of the sneeze is without merit.

 
Affirmed.

Since the March 22, 2004 order under review left additional steps to be taken, we question but need not decide whether it is a final judgment. Notwithstanding, to the extent necessary, we grant leave to appeal nunc pro tunc in the interests of justice to resolve the issues presented. See Panetta v. Equity One, Inc., 378 N.J. Super. 298, 309 (App. Div. 2005); Mango v. Pierce-Coombs, 370 N.J. Super. 239, 245 n.1 (App. Div. 2004).

See also Pino v. Wyoming Worker's Safety & Comp. Div., 996 P.2d 679, 685-87 (Wyo. 2000) (petitioner held entitled to benefits when a cough triggered a disc herniation to which petitioner was predisposed by a workplace injury suffered two years earlier).

It should also be plainly apparent from a review of the cases we have cited that there is no merit in respondent's contention that, to recover, the petitioner's second injury must have occurred while petitioner was in the workplace. Each of the decisions of our courts that we have cited involved second injuries that occurred in places other than the job site. Accord Pino, supra, 996 P.2d at 685 ("[T]here is nothing in the second compensable injury rule that attributes any significance to the place where the worker happened to be when the injury manifested itself . . .").

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A-4336-03T1

October 20, 2005