KEVIN J. FLYNN - v. INTERSTATE DRYWALL CORPORATION

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4857-06T34857-06T3

KEVIN J. FLYNN,

Petitioner-Respondent,

v.

INTERSTATE DRYWALL CORPORATION,

Respondent-Appellant,

and

COBRA CONSTRUCTION COMPANY,

Respondent-Respondent.

___________________________________

 

Argued May 13, 2008 - Decided

Before Judges Fuentes and Chambers.

On appeal from the New Jersey Department of

Labor, Division of Workers' Compensation,

Claim Petition Nos. 2006-12440 and 2006-06570.

Joseph G. Racioppi argued the cause for

appellant (Stevens & Schwab, attorneys;

Mr. Racioppi, on the brief).

Richard J. Williams, Jr. argued the cause for

respondent (McElroy, Deutsch, Mulvaney &

Carpenter, attorneys; Michael J. Marone, of

counsel; Mr. Williams, on the brief).

Respondent Kevin Flynn did not file a brief.

PER CURIAM

This appeal from the court of workers' compensation concerns a dispute between two insurance carriers over who should bear responsibility for a second injury sustained by petitioner Kevin Flynn while employed by Interstate Drywall Corp.

Petitioner first fractured his right wrist on August 30, 2004, while working for Cobra Construction Company. Cobra's workers' compensation carrier, New Jersey Manufacturers Insurance Company, provided coverage for that claim. The injury was ultimately treated by a surgical procedure in October 2005, in which orthopedic hardware, consisting of a supporting metal plate and screws, was implanted in petitioner's arm to secure the fracture while it healed.

Approximately six months after the surgery, on March 27, 2006, petitioner re-injured his right wrist in the same location, while employed by Interstate Drywall, after being medically cleared to return to work by his treating physician. The judge of compensation issued a memorandum of opinion finding that the second injury constituted a separate and distinct injury, obligating Interstate Drywall to provide coverage under its workers' compensation policy.

Our standard of review of decisions made by the court of compensation is well-settled. We must defer to "the factual findings and legal determinations made by the Judge of Compensation unless they are 'manifestly unsupported by or inconsistent with competent relevant and reasonably credible evidence as to offend the interests of justice.'" Sroczynski v. Milek, 396 N.J. Super. 248, 254 (App. Div.), appeal granted, 102 N.J. 591 (2007) (quoting Lindquist v. City of Jersey City Fire Dep't, 175 N.J. 244, 262 (2003)).

Here, the medical evidence presented supports Interstate Drywall's claim for apportionment. The following testimony from Dr. Kirschenbaum illustrates the point.

[Dr. Kirschenbaum] My opinion is that [the second accident] is related to the original accident. The hardware came loose. So, my impression is that this is related to a failure of my surgical procedure, and therefore, to the original accident and not to the injury that he sustained at work subsequently.

. . . .

[Respondent Attorney] Doctor, again, I guess the crux of the matter is based on your records, your treatment, reviewing the reasonable medical probability that the nonunion you found in March and April, was one caused by the original accident, is that correct?

[Dr. Kirschenbaum] It was caused by the surgery I performed to treat the original to treat the results of the original accident.

Thus, the surgical screws implanted to address the first injury were slowly stripping away. This was at least a partial cause for the second injury. As a consequence, we remand the matter of apportionment to the court of compensation. Baijnath v. Eagle Plywood, 261 N.J. Super. 309, 315 (App. Div. 1993).

Reversed and remanded.

 

(continued)

(continued)

4

A-4857-06T3

August 25, 2008