IVO ZRNO - v. WEGMAN'S

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4025-07T14025-07T1

IVO ZRNO,

Petitioner-Respondent,

v.

WEGMAN'S,

Respondent-Appellant,

and

WAKEFERN FOOD CORP.,

Respondent-Respondent.

___________________________________

 

Argued February 11, 2009 - Decided

Before Judges Axelrad and Lihotz.

On appeal from Superior Court of New Jersey Department of Labor, Division of Workers' Compensation, Claim Petition No. 2004-18445.

Jammie N. Jackson argued the cause for appellant (Marshall, Dennehey, Warner, Coleman & Goggin, attorneys; Ms. Jackson and Angela Y. DeMary, on the brief).

Pamela J. Johnson argued the cause for respondent, Ivo Zrno (Garces & Grabler, P.C., attorneys; William N. Grabler, of counsel and on the brief; Seth A. Kurs, on the brief).

Richard J. Williams, Jr., argued the cause for respondent Wakefern Food Corp. (McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys; Michael J. Marone, of counsel; Mr. Williams, on the brief).

PER CURIAM

Respondent Wegman's appeals from a March 10, 2008 Order of Judgment directing payment of partial total workers' compensation disability benefits to petitioner Ivo Zrno. The judge of compensation concluded Zrno's current occupational claim related to a disability he experienced while employed at Wegman's, rather than an aggravation of a prior work-related injury, which occurred while Zrno worked for Wakefern Food Corporation (Wakefern). Zrno successfully petitioned and on December 16, 2002, was awarded compensation payable by Wakefern. Zrno's reopener petition against Wakefern, which was filed contemporaneously with his petition against Wegman's, was dismissed. Wegman's asserts Zrno did not experience any specific incident of injury while employed at Wegman's but rather had a preexisting orthopedic and neurological condition resulting from his Wakefern injury. Wegman's argues it is not liable for any aggravation of the alleged disabling condition caused by Zrno's prior employment. We agree and reverse.

I

Zrno sustained an injury to his lumbar spine on February 13, 2000, while working for Wakefern as a "selector," unloading pallets of product. An April 13, 2000 MRI confirmed Zrno suffered a "small central and right sided disc herniation at L4-L5," a "small right sided paramedian disc herniation at L5-S1," and a "slight enlargement of the nerve roots on the right which may be due to edema or inflammation."

Zrno filed a claim petition with the Workers' Compensation Court on June 19, 2000. Wakefern's compensation carrier accepted the claim and authorized treatment. On September 13, 2000, Zrno underwent a right-side laminectomy and discectomy at L5-S1. The Order Approving Settlement, filed on December 16, 2002, provided for permanent disability benefits of twenty-seven and one-half percent partial total disability, resulting from orthopedic and neurological residuals caused by the February 13, 2000 injury.

Zrno's employment with Wakefern ended in March 2001. He commenced employment with Wegman's in April 2001, and generally worked forty hours per week as a selector in the grocery department. Zrno's job at Wegman's was similar in nature to the one he performed at Wakefern: once or twice per week he used a pallet jack to unload product from trucks, stacked the goods on empty wooden pallets, pushed the pallets into the store, and stocked the product onto the store shelves. The pallets weighed approximately 100 pounds.

In order to provide context to Wegman's arguments on appeal, it is necessary to relate a detailed recitation of Zrno's testimony of symptoms and the experts' medical testing and treatment, which was presented in support of Zrno's initial claim petition against Wakefern. Zrno described his limitations following the accident and surgery in this way:

Q. Do you have any problems doing the job [at Wegman's] because of the way your back feels?

A. Yes, sir.

Q. What type of problems do you have there?

A. I have back pain, very strong back pain if I'm lifting something heavy.

. . . .

Q. Do you have problems sitting for long periods of time?

A. Yes sir. If I am sitting more than an hour, I get problems.

Q. How about driving in a car? Does that give you a problem?

A. Just short distance.

Q. That's all you can manage?

A. Yes, sir.

Q. Does the weather have an effect on you?

A. Mostly when it's cold.

Q. Do you take medication at the present time for your back?

. . . .

A. Vioxx and Tylenol sometimes.

. . . .

Q. Are there any activities around your house or socially that you don't do anymore because of the way your back feels or perhaps you do them differently?

A. There's a lot of them. Any job I have to bend and lift something, I can't do it. On my job I am doing it because I am afraid of losing my job and I like [Wegman's]. It's a very good company, and they have an understanding of my health problems.

In addition to Zrno's testimony, the reports by Drs. Albert E. Thrower and L. Scott Eisenberg were introduced by the employer, Wakefern, along with the examination reports of Drs. Morris Horwitz and Ana Miguel Komotar, presented on behalf of Zrno. Dr. Thrower saw Zrno on September 21, 2001, as a result of complaints of "persistent pain across the lower back" and "[o]ccasional burning pain in the right leg and cramps in the right leg." Dr. Thrower, an orthopedist, diagnosed Zrno with a "right L5-S1 disc herniation" causing "permanent disability of 7-1/2% of partial total," and concluded he remained capable of performing light work. Dr. Eisenberg's neurological evaluation report dated February 15, 2002, stated Zrno's symptoms of occasional pain in his back and right leg, which was "[a] more consistent and troubling problem for him," resulted from "residuals of an S1 radiculopathy for which [he] would estimate a disability of 4% of partial total posttraumatically." Dr. Eisenberg assessed an additional disability of one per cent of partial total due to a "mild superimposed adjustment reaction."

Dr. Horwitz's orthopedic examination findings were consistent with Dr. Thrower's, as he too diagnosed residual strain in the right lumbarsacral region caused by the February 13, 2000 accident and resultant surgery scarification. However, Dr. Horwitz concluded Zrno suffered "an orthopedic disability of 50% of total." Dr. Komotar's neurological diagnosis of right lumbosacral radiculopathy, related to the February 13, 2000 accident and the lower back surgery, amounted to "a permanent neurological disability of 35% of partial total."

Crediting Zrno's testimony, the judge of compensation approved the proposed settlement and ordered Wakefern to pay Zrno compensation for "27 1/2% partial total disability, orthopedic and neurological in nature" for "165 weeks of disability at a rate of $178.84 [per week] for a total payment of $29,508, less appropriate costs and fees."

On December 31, 2002, fifteen days after the hearing, Zrno terminated his Wegman's employment. Thereafter, he began driving an eighteen wheeled truck. For the first year he drove six to eight hours per day, five days a week, for Warner Company. Next he worked for Central Transport for approximately six months, driving trucks from New Jersey to Allentown, Pennsylvania. The following year, Zrno drove trucks from Jamesburg to North Bergen for Wells Company, working over forty hours per week, six days a week. At the time of this trial, Zrno was employed by Selective Transportation. Generally, he drove forty hour work weeks, but sometimes drove up to twenty-two hours a day, making two sixty to seventy mile trips.

Zrno continued to complain of pain in his right leg. In October 2003, he returned to the physician who performed his surgery, Robert Bercik, M.D, for examination. Dr. Bercik evaluated Zrno's complaints and reported "[a]t this point, I think we are just dealing with the residuals of his back surgery. I don't think there is any evidence of radiculitis or radiculopathy . . . ." Dr. Bercik recommended continuation of home exercise and over the counter pain medication. Dr. Bercik concluded Zrno "possessed the ability to work regular duty."

Thereafter, Dr. Bercik ordered an MRI, which was performed on January 28, 2004. The imaging revealed:

Postoperative changes seen at L5-S1 without definite evidence for recurrent or residual disc herniation. Minimal bulge persists at L5-S1 and L4-L5 without significant spinal stenosis or foraminal narrowing. There is epidural enhancement consistent with enhancing scar on the right at L5-S1. Note is made of enhancement of the L5-S1 disc in its posterior aspect. Findings may represent postoperative change through discitis cannot entirely be ruled out. There is no definite evidence for adjacent osteomyelitis.

In his February 6, 2004 report, Dr. Bercik reviewed the MRI, which he noted showed "scar tissue at the L5-S1 surgical site." Dr. Bercik dismissed Zrno's concerns that he might have a recurrent disc herniation or that another level may have herniated, opining, "I think in all likelihood this is just a post surgical change." Dr. Bercik concluded, "I think at this point [Zrno's] pain is mostly secondary to his former problem in his back surgery [sic]. I don't think there is anything else that can be made better with surgery. I think he probably has some scar tissue which is giving him some discomfort . . . ."

On March 29, 2004, Zrno filed a re-opener petition against Wakefern. On July 12, 2004, he filed a claim petition against Wegman's, alleging occupational exposure during the course of his employment, resulting in an injury to his lumbar spine. Wegman's filed an answer denying Zrno sustained any work-related disability during his twenty-one-month period of employment. The two matters were consolidated for trial and evidence was presented over five days.

In the consolidated proceeding, Zrno testified in his own behalf regarding his condition. He explained the repeated bending and lifting associated with his job at Wegman's specifically caused him pain, so that "[a] lot of times [he] came home with pain. . . . [and] was tired." He described what he characterized as an increase in his disability since his last court appearance in this colloquy:

Q. Has the condition with regard to your back stayed the same, gotten better or gotten worse since you were last in court?

A. It's worsened.

Q. In what way or ways would you say it's gotten worse?

A. My pain is much stronger and actually I have almost the same symptoms. My lower back pain, but it's worse now. Also, my right leg, especially the muscle and right bottom of my foot, that is what is bothering me the most.

Q. Would you say the pain is stronger?

A. Stronger, much stronger.

Q. What is it that you feel into your right leg and right foot, can you describe that?

A. It's pain. I don't know how to describe it, but sometimes it's so strong that I can[]not bend at all on my right leg and very, very often I get cramps.

Q. Cramps. In what part of your right leg do you get cramps at times?

A. Feet always. Always the feet.

Zrno described his experienced limitations:

The one big thing is that I cannot lift anything in my home. Always when I need to lift something I have to call my son or friends or something because it's impossible for me to lift some heavy stuff.

Like a couple of days ago I couldn't even put the air conditioning in the windows.

Zrno related the pain in his right leg impeded his ability to play basketball and soccer with his children, and prevented him from swimming.

Zrno could not identify one incident where he injured his back, stating, "I cannot say I remember one day I injured myself or had something bad happen to me which I would remember. I cannot say that because I don't remember that." He admitted he was not sure his job at Wegman's caused him any injury at all. Zrno further testified he stopped taking Vioxx and was only taking Tylenol approximately every other week for leg pain.

Dr. Horwitz explained his findings following Zrno's April 26, 2005 examination and compared them to what he observed in an examination performed as part of the claim against Wakefern in 2001. Dr. Horwitz stated there was a worsening in Zrno's condition between his two physical examinations, describing the changes as follows:

Comparing the original evaluation on 3-13-01 to the evaluation on 4-26-05 the ranges of motion ha[ve] worsened.

With respect to the lumbodorsal, lumbar and bilateral lower extremity areas flexion originally was to 50 degrees, subsequent to that time now 40 degrees. Extension originally was to 15 degrees, now to 10 degrees. Lateral rotation to the right originally was to 40 degrees and now 25 degrees. Lateral rotation to the left originally was to 45 degrees, now to 30 degrees. Lateral bending originally was to 40 degrees, now to 30 degrees. Lateral bending to the left originally was to 45 degrees, now to 35 degrees. Straight leg raising test originally on the right was carried out to 40 degrees, now to 30 degrees. Straight leg raising test on the left originally was carried out to 55 degrees, now to 35 degrees . . . .

There was marked curve flattening involving the lumbodorsal and lumbar curves extending through the sacrum with increased loss of lumbar lordosis. There is hardness of a fibrotic nature through the lumbar paraspinals, iliolumbars and sacraoiliacs.

Dr. Horwitz also compared the two MRI studies, describing the differences in the findings as follows:

With the original report dated 10-23-02 the impression revealed mild disc bulge with facet degenerative changes L4-L5 and a disc bulge with a smallest paracentral HNP of the L5-S1.

[The MRI] subsequent to [Zrno's] surgical procedural . . . revealed postop changes at the L5-S1 level. Now disc bulging minimal in nature at the L5-S1, L4-L5. However, now there is epidural enhancement consistent with enhancing scar on the right L5-S1, and now the findings state that this may represent postop change through discitis and no evidence of adjacent osteomyelitis.

Dr. Horwitz testified the structural integrity between Zrno's two discs was compromised, as extrusion of fibroelastic material extended to the left, as well as right. He opined the percentage of permanent disability had increased, which he attributed to Zrno's "work environment," stating:

[I]t was basically his work employment both at Wakefern as well as subsequent to this time at Wegman's in which he was required to do heavy lifting, use of the forklift, carrying, and various other types of jobs both in his employment.

Dr. Horwitz concluded "[t]he subsequent employment at Wegman[]s aggravated, accelerated and exacerbated [Zrno's] preexisting condition while working at Wakefern." However, he could not quantify how much, if any, of Zrno's condition had worsened due to his job at Wegman's following his Wakefern employment or "separate out the disability or attribute [it] to each employer."

On cross-examination, Dr. Horwitz conceded Zrno did not return to Dr. Bercik for treatment for approximately ten months after he stopped working for Wegman's. He noted, "[i]t is not a matter of weeks. It takes months[,]" before one would start to feel pain from occupational exposure. Thus, Dr. Horwitz concluded, the ten month delay was "normal and acceptable." Dr. Horwitz also acknowledged Zrno waited two and a half years after his Wegman's employment ended before returning for re-examination. Also, Dr. Horwitz admitted he neither inquired nor considered the effect of Zrno's intervening employment.

Dr. Komotar compared Zrno's condition as noted in her 2001 examination to the more recent neurological examinations on June 22, 2005 and February 10, 2006. She concluded, "[t]he condition of the patient in my second evaluation showed worsening compared to my first one. . . ." She found a "sensory loss over the right lower extremity in the distribution of L4-L5 and S1 root," and stated, "this individual had, following the surgery, performed the kind of work that requires a lot of physical activities; bending, lifting, pushing, which worsen the back injury."

Dr. Komotar also compared the MRI studies taken over time stating:

The first MRI had findings at two levels being L5-S1. They were more pronounced, the herniated disc. L4-L5 had some bulging noted in the first one. The patient had surgical procedure in L5-S1. The level above L4-L5 was not included in the surgical procedure.

As we move along with this patient and the complaints, he ends up getting more medical treatment. The MRI to follow shows findings on the level L4 and 5 and the postoperative changes that we see at the level where the procedure was done, which is L5-S1 and there is scar tissue with enhancement in the MRI at that particular level and those are the changes as seen in the MRI as compared to the other.

What we see in a patient after the surgical procedure is the scar tissue is of significance in this case . . . . The scar tissue produces symptoms because it compresses.

Dr. Komotar identified an increase from thirty-five percent of partial total to forty-five percent of partial total in Zrno's neurological disability. She related it to his employment in this way:

I think there is a natural progression, but in addition to that there seems to be[,] obvious in a person with that experience[,] that there is a worsening related to the activities of the individual[,] and in this case[,] the type of work that he was doing that requires a lot of bending, twisting, pulling, pushing, which is not medically good for the back.

She opined Zrno would likely have neurological trouble in the future because "[h]is working abilities are affected[,] [his] living activities are affected[,] and [h]e worries about the future and what is he going to be with the back in a few years from now and that adjustment causes anxiety and causes depression to different degrees." However, when asked to separate the degree to which Zrno's condition worsened while he worked at Wegman's, she could not do so.

On cross-examination, Dr. Komotar conceded she too did not inquire or assess the affect of Zrno's subsequent employment on his back condition. Although she admitted his duties as a truck driver would be important to determine his present level of disability she suggested the fact Zrno sought treatment in 2003 suggested the symptoms related to his Wegman's employment.

The final expert who testified was Vijay Paharia, M.D., who examined Zrno on August, 15, 2005. Dr. Paharia assessed Zrno's complaints of "very strong low back pain radiating in the right leg with cramping of the low back and right leg." He attributed the pain to surgical and post-surgical changes. Dr. Paharia disagreed with Dr. Komotar's opinion that there were changes in the MRI studies stating, "The . . . very insignificant differentials" resulted from "the progressive changes, postsurgical changes, and the degenerative changes . . . . They are minor which is insignificant." In fact, as to the surgically repaired disc at L5-S1, Dr. Paharia found "that herniation has improved considerably, which means from a pathological point of view it seems to be better than the findings in 2002."

Dr. Paharia testified that the development of the scar tissue was a natural result of the surgery and he found no change in the level of disability. Additionally, Dr. Paharia opined aggravation by certain work related activity "should show up within a few days if not, you know, immediately," requiring Zrno to "seek the treatment right after that," and certainly long before ten months after his employment ended. In Dr. Paharia's view, Zrno's complaints did "not seem to be related to" his work at Wegman's. He summarized his findings:

I was asked to evaluate the changes or any increase as a result of the occupational exposure at Wegman's and based on that evaluation, and I performed physical evaluation and reviewed the medical records, and I felt it already had been taken into consideration and I did not feel there was any increase since then.

The oral determination by the workers' compensation judge was delivered on March 10, 2008. Based upon his review, he found Zrno suffered a new medical condition "at another root level, i.e., the problem now in 2005 is the L4-L5, S1" and concluded the condition "occurred while [Zrno] was moving freight and stocking shelves at Wegman's." The re-opener petition against Wakefern was dismissed and an award of disability against Wegman's was established at thirty-two percent partial total, apportioned one percent neurological and four percent orthopedic, requiring payment of $24,027.

On appeal, Wegman's argues the compensation judge erred as a matter of law in applying N.J.S.A. 34:15-36 and N.J.S.A. 15-31. Wegman's seeks a reversal of the permanent disability award.

II

We recite the standard governing our review of determinations made in workers' compensation cases. "Courts generally give 'substantial deference' to administrative determinations." Earl v. Johnson & Johnson, 158 N.J. 155, 161, (1999) (quoting R & R Mktg., L.L.C. v. Brown-Forman Corp., 158 N.J. 170, 172 (1999)). Our review is limited to "whether the findings made could reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole, with due regard to the opportunity of the one who heard the witnesses to judge their credibility." Close v. Kordulak Bros., 44 N.J. 589, 590, 599 (1994) (citations and quotation marks omitted); Ramos v. M&F Fashions, 154 N.J. 583, 594 (1998). Deference must be accorded to the factual findings and legal determinations made by a judge of compensation. Ramos, supra, 154 N.J. at 594. "[T]he 'choice of accepting or rejecting testimony of witnesses rests with the administrative agency and where such choice is reasonably made, it is conclusive on appeal.'" Perez v. Monmouth Cable Vision, 278 N.J. Super. 275, 284 (App. Div. 1994) (quoting Renan Realty Corp. v. Cmty. Affairs Dep't, 182 N.J. Super. 415, 421 (App. Div. 1981)), certif. denied, 140 N.J. 277 (1995).

Thus, unless the factual findings and the conclusion drawn therefrom are "'manifestly unsupported by or inconsistent with competent relevant and reasonably credible evidence as to offend the interests of justice[.]'" Id. at 282 (quoting Rova Farms Resort v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)), reversal is not warranted. It is only in such an instance that we may "appraise the record as if [we] were deciding the matter at inception and make [our] findings and conclusions." Pioneer Nat'l Title Ins. Co. v. Lucas, 155 N.J. Super. 332, 338 (App. Div.), aff'd o.b., 78 N.J 320 (1978); De Angelo v. Alsan Masons, Inc., 122 N.J. Super. 88, 90 (App. Div.), aff'd o.b., 62 N.J. 581 (1973).

We also recite the principles undergirding the workers' compensation statute, as applied to this matter. Adoption of the New Jersey Workers' Compensation Act, N.J.S.A. 43:15-1 to -69.3, "'involved a historic trade-off whereby employees relinquished their rights to pursue common-law remedies in exchange for automatic entitlement to certain, but reduced, benefits whenever they suffered injuries by [compensable] accident.'" Lindquist v. City of Jersey City Fire Dep't, 175 N.J. 244, 257 (2003) (quoting Millison v. E. I. du Pont de Nemours & Co., 101 N.J. 161, 174 (1985)). "[T]he quid pro quo . . . was that employees would receive assurance of relatively swift and certain compensation payments, but would relinquish their rights to pursue a potentially larger recovery in a common-law action." Millison, supra, 101 N.J. at 174.

"[T]he entire workers' compensation law is based on disability caused by injury." Brunell v. Wildwood Crest Police Dep't, 176 N.J. 225, 237 (2003). Thus, there must be proof of a work related injury or condition resulting in permanent disability. See N.J.S.A. 34:15-36. "A worker simply has no claim unless he can demonstrate either temporary or permanent disability." Brunell, supra, 176 N.J. at 237 (citing N.J.S.A. 34:15-12). The statute provides this definition:

"Disability permanent in quality and partial in character" means a permanent impairment caused by a compensable accident or compensable occupational disease, based upon demonstrable objective medical evidence, which restricts the function of the body or of its members or organs; included in the criteria which shall be considered shall be whether there has been a lessening to a material degree of an employee's working ability. Subject to the above provisions, nothing in this definition shall be construed to preclude benefits to a worker who returns to work following a compensable accident even if there be no reduction in earnings. Injuries such as minor lacerations, minor contusions, minor sprains, and scars which do not constitute significant permanent disfigurement, and occupational disease of a minor nature such as mild dermatitis and mild bronchitis shall not constitute permanent disability within the meaning of this definition.

 
"Disability permanent in quality and total in character" means a physical or neuropsychiatry total permanent impairment caused by a compensable accident or compensable occupational disease, where no fundamental or marked improvement in such condition can be reasonably expected.

[N.J.S.A. 34:15-36.]

The claimed disability, whether permanent and total or permanent and partial, must diminish the employee's capability to perform his work duties. Perez v. Pantasote, Inc., 95 N.J. 105, 117 (1984). "[A]n employer is not required to compensate an employee for pain." Peterson v. Hermann Forwarding Co., 267 N.J. Super. 493, 504 (App. Div. 1993), certif. denied, 135 N.J. 304 (1994).

The petition against Wegman's alleged occupational exposure subsequent to his February 13, 2000 accident at Wakefern. Compensable occupational disease is defined as:

a. For the purpose of this article, the phrase "compensable occupational disease" shall include all diseases arising out of and in the course of employment, which are due in a material degree to causes and conditions which are or were characteristic of or peculiar to a particular trade, occupation, process or place of employment.
 
b. Deterioration of a tissue, organ or part of the body in which the function of such tissue, organ or part of the body is diminished due to the natural aging process thereof is not compensable.

 
[N.J.S.A. 34:15-31.]

"By 'characteristic of or peculiar to' is meant conditions that one engaged in that particular employment would view as creating a likely risk of injury. Those conditions must 'cause' the disease as a natural incident of either the occupation in general or the place of employment." Brunell, supra, 176 N.J. at 238 (quoting Walck v. Johns-Mansville Prods. Corp., 56 N.J. 533, 556 (1970)).

An employee alleging a compensable occupational disease must demonstrate, by a preponderance of the evidence, that his or her environmental exposure was a substantial contributing cause of his or her occupational injury or disease. Ibid. To be successful, a claimant "must prove both legal and medical causation when those issues are contested." Lindquist, supra, 175 N.J. at 259. The petitioner is not required to "prove that the nexus between the disease and the place of employment is certain." Magaw v. Middletown Bd. of Educ., 323 N.J. Super. 1, 11 (App. Div.), certif. denied, 162 N.J. 485, (1999). Nevertheless, there must be proof "the disability is due in a 'material degree' to causes characteristic of a particular trade or occupation." Peterson, supra, 267 N.J. Super. at 503. "'Material degree'" means 'a degree [substantially] greater than de minimis.'" Id. at 504.

Finally, the statute addresses the possibility that there may be dual causes of an injury or disease resulting in a disability. In such an instance, N.J.S.A. 34:15-12(d) provides a credit to a subsequent employer for a prior loss of function experienced in previous employment. The burden of proof rests on the employer. The purpose of the provision "ameliorate[s] the effect of prior law that an employer takes an employee as he finds the employee" and "encourage[s] [the] hiring [of] workers with pre-existing disabilities." Lindquist, supra, 175 N.J. at 265 (quoting Field v. Johns-Manville Sales Corp., 209 N.J. Super. 528, 530-31 (App. Div.), certif. denied, 105 N.J. 531 (1986)).

III

After he summarized the evidence presented, the judge of compensation found Zrno suffered a new lower back injury at L4-5, and concluded, "the condition that [Zrno] complains of occurred while he was moving freight and stocking shelves at Wegman's." In support of this conclusion, these limited findings were stated:

Clearly, the moving of freight with a pallet jack, the unloading of trucks and the bending and lifting of the freight onto shelves caused this condition to worsen. At the time of the prior award, [Zrno] was not even working at Wakefern, but was, in fact, employed by Wegman's. The workload at Wegman's forced him to have to quit work. There is no claim for aggravation of his condition by reason of a present subsequent employment since he does not unload trucks, he merely drives them according to the testimony.

Our review of the record cannot sustain a determination that Zrno suffered a new injury. Moreover, no proofs support Zrno's continued complaints of right leg pain resulted from his subsequent employment at Wegman's.

Although Zrno's surgery repaired the injured L5-S1 disc, the 2000 injury had also compromised the structural integrity of the L4-L5 disc. The April 13, 2000 MRI confirmed a "small central and right sided disc herniation at L4-L5." This finding was confirmed by Dr. Horwitz's March 22, 2001 report, Dr. Eisenberg's February 13, 2002 report, Dr. Thrower's September 27, 2001 report, and Dr. Komotor's June 1, 2001 report, all of which were introduced in support of Zrno's initial claim petition against Wakefern.

More recent evidence is consistent, not different, from the original finding. The second MRI report, completed on October 23, 2002, "revealed mild disc bulge with facet degenerative changes L4-L5." Finally, the most recent MRI study again showed "minimal bulge persists as . . . L4-L5 without significant spinal stenosis or foraminal narrowing."

At trial, the essence of Dr. Horwitz's testimony was Zrno experienced increased limitation of the previously injured back areas. The only identified changes, as related to the L5-S1 disc, was the existence of scarification, secondary to Zrno's back surgery. The objective range of motion limitations measured by Dr. Horwitz showed only an exacerbation of the pre-existing condition. Additionally, Dr. Komotar stated Zrno experienced neurological progression following surgery and a worsening of the prior condition, due to "a lot of bending, twisting, pulling, [and] pushing, which is not good for the back." Her inference that the bulging at L4-L5 was a new finding is unsupportable.

Moreover, there is no evidence to sustain a claim that the Wegman's employment caused aggravation of the February 13, 2000 trauma. Neither physician was able to apportion the increased disability to the work at Wegman's, and neither considered the effect, if any, of Zrno's subsequent work responsibilities as a tractor-trailer driver.

In Peterson, supra, 267 N.J. Super. at 504, we addressed the apportionment of liability against subsequent employers following an employee's initial compensable injury while working for a prior employer. The employee slipped and fell while working as a tractor-trailer driver on October 1, 1982. Id. at 496. Thereafter, he filed and received payment on that claim. Ibid. Two years later, the employee filed petitions against his subsequent employers alleging injury as a result of occupational exposure. Ibid. We reversed the judgment of total disability against the subsequent employer holding: "There must be proof of a work related injury or condition resulting in a permanent disability" from the subsequent employment, pursuant to N.J.S.A. 34:15-31, as opposed to mere pain experienced when performing physical activity, as a result of the pre-existing injury. Id. at 504.

Clearly, because of [the petitioner's] pre-existing conditions, petitioner's work activities at the subsequent employment caused him to suffer greater pain than he would have experienced had he remained sedentary. However, an employer is not required to compensate an employee for pain. There must be proof of a work related injury or condition resulting in permanent disability. See N.J.S.A. 34:15-36. All of these subsequent jobs required physical activity, including lifting, loading and unloading of trucks. The work, however, did not appear to be any more strenuous than petitioner, or others in his occupation, would otherwise routinely encounter as a truck driver. Nor should the work have caused injury resulting in permanent disability, despite the fact that petitioner suffered pain while engaged in such activities.

[Id. at 504-05.]

We concluded:

where the subsequent employment, without the intervention of additional trauma or physical insult, merely causes pain from pre-existent conditions to be manifested, that liability should not attach to the subsequent employer even where the result is that the employee then realizes that continued employment is not feasible. A contrary holding would surely discourage employers from hiring persons who had suffered prior injuries but needed to work even though it might be painful.

[Id. at 505.]

The facts and legal analysis set forth in Peterson squarely

apply to the matter at hand. Although the work at Wegman's may have caused more pain than Zrno would have experienced had he remained sedentary, "the subsequent employment was performed without the intervention of additional trauma or physical insult." Zrno was fully performing his Wegman's employment with pain when he testified during the hearing on his claim petition against Wakefern. There was nothing inherently harmful about the job. In fact, Zrno would have been absolutely capable of working without any limitation had he not been injured in 2000.

Zrno himself testified to this effect in support of his claim for permanent partial disability. Zrno stated the 2000 Wakefern injury caused him to work with very strong back pain; limited his ability to drive; resulted in sensitivity to cold weather; and necessitated daily prescription pain medication. His testimony in this matter related similar limitations, however, he no longer took prescription pain medication and drove up to seventy miles one way in performing his employment as a truck driving.

Summarizing our review, we find the record contains insufficient medical evidence of any trauma or physical insult to Zrno's back during his employment at Wegman's. No evidence supports a change in his condition at root level L4-L5, as asserted by Dr. Komotar and the judge of compensation. Additionally, all of the medical experts consistently testified the continued discomfort Zrno experienced was due to progressive changes in the injury incurred while working for Wakefern, along with the post-operative build-up of scar tissue. Kozinsky v. Edison Prods. Co., 222 N.J. Super. 530, 539 (App. Div. 1988). Consequently, there was no significant increase in Zrno's disability resulting from his Wegman's job.

We conclude no credible evidence supports that the discernable increased disability evinced by Zrno's more limited range of motion was due in a "material degree" to the employment at Wegman's. Id. at 537. Zrno's employer, when he sustained his final compensable accident, was Wakefern. Accordingly, the Order of Judgment entered on March 10, 2008 against Wegman's fixing liability is reversed.

 
We also mention Zrno filed a reopener petition against Wakefern seeking modification of the prior award because the determined disability increased. See N.J.S.A. 34:15-27 (formal award may be reviewed within two years of receipt of last payment thereunder "on the ground that the incapacity . . . has subsequently increased"). No appeal of that order was taken. We therefore take no position on Zrno's ability to present a claim request against Wakefern.

Reversed.

In later testimony, Zrno references a period of unemployment between his departure from Wegman's and the commencement of his position as a truck driver.

(continued)

(continued)

28

A-4025-07T1

April 27, 2009