PETER T. NOLAN - v. KLEINKNECHT ELECTRIC CO., INC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5347-07T35347-07T3

PETER T. NOLAN,

Petitioner-Respondent,

v.

KLEINKNECHT ELECTRIC CO., INC.,

Respondent-Appellant,

and

SECOND INJURY FUND, ANHEUSER-BUSCH,

INC., FISCHBACH & MOORE, INC.,

COMMUNICATION ELECTRICAL CONTRACTORS,

INC., ELECTRICAL CONTRACTORS, INC.,

SM ELECTRIC CO., INC., VIKING

ELECTRIC CO., INC., LINEAR ELECTRIC

CO., LESSNER ELECTRIC CO. and

MEHL ELECTRIC CO.,

Respondents-Respondents.

________________________________________________________________

 

Argued March 18, 2009 - Decided

Before Judges Cuff, Baxter and King.

On appeal from the Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition No. 2002-7953.

Alan A. Arsenis argued the cause for appellant (Weber, Gallagher, Simpson, Stapleton, Fires & Newby, LLP, attorneys; Mr. Arsenis, on the brief).

Gillen M. Geldhauser argued the cause for respondent Peter Nolan (Geldhauser, Shiffman & Rizzo, P.C., attorneys; Ms. Geldhauser, on the brief).

Anthony R. DiStefano argued the cause for respondent Fischbach & Moore, Inc. (Biancamano & DiStefano, P.C., attorneys; Mr. DiStefano, on the brief).

Richard L. Williams, Jr., argued the cause for respondents, SM Electrical Co., Linear Electric Co. and Lessner Electric Co. (McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys; Michael J. Marone, of counsel; Mr. Williams, on the brief).

Peter Ventrice argued the cause for respondent Communication Electrical Contractors, Inc. (Brause, Brause & Ventrice, L.L.C., attorneys; Mr. Ventrice, on the brief).

Anne Milgram, Attorney General, attorney for respondent, Second Injury Fund (Linda Schober, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

A judge of compensation found petitioner Peter T. Nolan totally and permanently disabled, and assessed 100% of disability against petitioner's last employer, Kleinknecht Electric Company (Kleinknecht). The judge of compensation dismissed the claim petitions that petitioner had filed against all of his other employers. Kleinknecht now appeals from that May 30, 2008 Order of Judgment, arguing that responsibility should instead have been assessed against Century Electric, for whom petitioner worked in 1998. Kleinknecht further argues that the Judge of compensation erred by accepting as credible the opinion of petitioner's expert, Dr. Riss, whose opinion Kleinknecht characterizes as a net opinion; and that he erred by dismissing the claim against the Second Injury Fund (Fund). We agree with Kleinknecht that the assessment of full responsibility against it and the dismissal of the claim petitions that had been filed against all of petitioner's prior employers were the result of a mistaken application of controlling precedent. We reverse and remand.

I.

Kleinknecht does not challenge the judge of compensation's conclusion that petitioner is totally and permanently disabled. Instead, Kleinknecht challenges his determination that it was solely responsible for that disability. Kleinknecht did not seek a credit for any pre-existing disability petitioner may have had, and does not argue for one on appeal. Instead, Kleinknecht takes the position that it bears no responsibility for petitioner's inability to work.

These are the relevant facts concerning petitioner's employment history. His first job after his discharge from the Navy was with Petro Chemical (Petro). In 1978, while in the course of his employment with Petro, petitioner's vehicle was rear-ended by a car traveling at seventy miles per hour, causing petitioner to "break through the front seat of [his] car and [his] head exited the rear window." He did not undergo surgery, but was in traction for approximately a year and a half. Through exercise and rehabilitation, petitioner was able to strengthen his back and pass the medical entrance examination for membership in an electrical workers union.

From February 1990 through October 1992, petitioner worked for Mehl Electric, again performing heavy work, and was involved in "a couple of accidents while on the job" and was out of work for a week. He did not file a claim petition for either injury. Then, while employed by SM Electric in 1993, petitioner fell, tore his right rotator cuff and underwent surgical repair; again, however, he did not file a compensation claim. After leaving SM Electric, petitioner began work at Lessner Electric (Lessner) in 1993, where he continued to perform heavy lifting work. Again, he sustained a work-related injury, this time when he slipped and fell on ice while leaving a worksite. After he left Lessner in 1994, petitioner worked for Viking Electric and Linear Electric from 1994 through 1996. He sustained no work-related injuries during this period.

Petitioner worked at Fischbach and Moore (Fischbach) during 1996 and 1997. One day, while feeding fiber optic cable along a road bed, he felt his back "pop" and he experienced what felt like "electric shocks down [his] legs." Although he had been seeing a chiropractor fairly regularly before that injury, and the chiropractor had generally been able to resolve his back pain, the chiropractor had a "hard time" treating this 1996 injury and "was not able to pop [his back] in place anymore."

Petitioner testified that even before his 1996 injury at Fischbach, there were other occasions when he injured his back at work. He commented, "I was doing very heavy work and I would just see my chiropractor and he would pop me back in place and I would just continue on my merry way . . . ." Petitioner testified that after completing five days of chiropractic treatment following his injury at Fischbach, his back was "the same as it had been previously before [the] accident at Fischbach." He explained that the five days of treatment "brought it back to normal again . . . because I would have to work. I couldn't stay home."

From 1997 to 1998, petitioner worked for Electrical Contractors where he again injured his back, this time while working in the switch gear room; however, he lost no time from work and did not file a compensation claim. In fact, despite the numerous occupational injuries petitioner sustained, he did not file any claim petitions until he injured his left shoulder and underwent two surgical repairs while working for AMP Electric in 1998. He received an award of 27.5% of partial total disability on October 2, 2001.

Later in 1998, petitioner worked for Century Electric (Century) where he injured his back when he slipped on a pipe. He also lost several teeth in this incident. However, the claim petition he filed was limited to the loss of his teeth.

In response to a question posed by the judge of compensation, petitioner commented that after he sustained the back injury at Century, "on all the jobs, [I] started to notice [my] back progressively starting to get worse and worse." He explained, "I first started noticing it probably when I was working with Century because I was out a week or more at a time when I slipped on some pipe and jerked my back pretty good." He added that "it took [the chiropractor] almost a week or a little longer than a week for him to finally get me to relax enough so that he could manipulate the spine back to where it was supposed to go." Petitioner testified that his chiropractor was reluctant to treat his neck, and "afraid he was going to hurt me again so I would work through most of the pain most of the time."

In 1999, when petitioner began work at Communication Electric, the nature of his work responsibilities changed. As a project manager, he began driving 300 miles per day. Although petitioner could not recall any specific accidents that occurred while he was working for Communication Electric, he commented that he encountered "problems because of all the driving, sitting down for long periods of time."

On December 28, 2000, petitioner began work at Kleinknecht. His responsibilities were identical to those at Communication Electric. He testified that while working for Kleinknecht, he drove 300 miles each day from his home in Staten Island to supervise four construction jobs in Fairfield, Weehawken, Carteret and Trenton. Although petitioner had no specific accidents while at Kleinknecht, the pain became so intolerable in September 2001 that he could no longer work. He described his symptoms in the following terms: "I was noticing things happening to me, like I was losing feeling in my hands and my arms. I was getting . . . pain down the arms, which is [sic] like severe. I noticed that my step, when I was walking, was affected. It was hard to explain. I was losing my balance quite a bit."

He explained that when he arrived home from work each day at Kleinknecht, "it would literally take [him] fifteen minutes to get into the house, because [he] really couldn't move getting out of the car . . . ." Petitioner's concern for his health intensified when, while running across a street to avoid oncoming cars, he "stumbled," which "scared" him because "it was getting to the point where [he] couldn't walk."

Petitioner consulted with an orthopedic surgeon, Casey Lee, M.D., who told him that unless he underwent spinal surgery, he was at risk of becoming quadriplegic. September 18, 2001 was the last day plaintiff ever worked. The next day he went to the hospital for pre-admission testing and never returned to work. Dr. Lee diagnosed numerous severe disc herniations. The surgery he performed included cervical and lumbar disc excision, foraminotomies, spinal fusion and bone grafts, and the insertion of a pedicle screw and titanium rods.

Martin Riss, D.O., testified on petitioner's behalf as an expert in orthopedic medicine. After examining petitioner and reviewing his medical records, Dr. Riss concluded that petitioner was 100% totally and permanently disabled. Riss attributed the disability to petitioner's occupational exposure from 1987 to 2001. When asked, Riss opined that it was not possible to apportion responsibility for petitioner's disabilities among the various employers based on the work petitioner did for each of them over the course of his career. However, Riss was able to say "that ultimately [petitioner's] last employment was the straw that broke the camel's back and at that point he became 100% totally disabled." Riss explained that although petitioner's work for Kleinknecht did not involve heavy lifting or construction work, it nonetheless contributed substantially to the deterioration of his back and to his ultimate disability. Riss opined:

Well, this last employment, although not involving lifting, pulling and twisting the way the other jobs did, still it was my understanding it was a driving job on an already impaired and seriously impaired back, you again cause further damage to that impaired back. So I feel that it did contribute to the ultimate disability.

Riss explained that driving aggravates a pre-existing back condition because of prolonged sitting in the same position without the ability to move and change positions. When asked on cross-examination whether any of the petitioner's prior workplace accidents or the 1978 car accident would "in any way contribute to his disability," Riss answered "yes, but unfortunately, these . . . are the type of injuries which leave their mark on a person's neck and back and shoulders and so forth, but, once again, I couldn't quantify that amount of disability, and I do know that after each one of those he did again return to the work place." Riss opined that "petitioner was able to work until his last day of employment in some capacity, and at that point his employment ended and his working ability ended." At the conclusion of his testimony, Riss was asked to review the medical bills from all of petitioner's hospitalizations and opined that the charges were reasonable and customary.

Arthur Canario, M.D. testified on behalf of all respondents. While agreeing that petitioner was totally disabled, Dr. Canario declined to relate that disability to petitioner's employment. Instead, Canario concluded that petitioner injured his back in the 1978 motor vehicle accident, "never recovered from that, and he had a slow degenerative process that happened over the years." Canario also opined that "if [petitioner] didn't work one day from that accident forward, he would have wound up the same way."

Canario was also asked to comment upon Riss's opinion that sitting in a car and driving 300 miles per day could cause an aggravation of a prior low back injury. Rather than comment on petitioner's prolonged sitting while driving, Canario answered by explaining that:

[S]tretching of the muscles is a classic way we treat low-back pain. Anybody that says that stretching the muscles will worsen you, you would have to discount all the physical therapy and all of the studies by Williams, by McKenzie, and all the classic things we do to treat low-back pain. That makes no sense.

When asked on cross-examination whether sitting in one position for long periods of time could cause a substantial aggravation of a prior low-back injury, Canario commented that sitting in one position "could cause your back to be painful, but it won't cause an overall [e]ffect. . . . There is absolutely nothing in the orthopedic literature that says if you sit, that it's going to cause a permanent injury to your back." He opined that sitting can cause "transient" symptoms, but could not cause damage.

In an oral opinion on May 28, 2008, the judge of compensation found the testimony of petitioner's expert, Riss, credible and credited Riss's opinion that Kleinknecht was responsible for petitioner's disability. In contrast, the judge of compensation rejected the opinion offered by Canario, reasoning that Canario's opinion, attributing petitioner's disability to employment with Electric Contractors in 1998, did not account for petitioner's ability "to work after that several years and did not stop work until the end of 2001 . . . when he was working for Kleinknecht." Also significant was the frequent medical treatment petitioner received during his employment with Kleinknecht, in contrast to the relative absence of treatment during prior periods of employment.

The judge of compensation therefore concluded:

So while the many past respondents were employers of the petitioner, there is nothing to make them responsible. Since petitioner continued to work after them and ha[d] very little treatment prior to his employment with Kleinknecht and very few complaints prior to that. Also, the law in New Jersey generally assesses responsibility under the Bond Decision on the final employer of the petitioner when there are multiple respondents and no other reasons to select a prior respondent. Again, I must state that petitioner himself felt that he could continue to work until he was working for [Kleinknecht] for some period of time and then the pain became so severe that he could not continue to work when he was working for them.

The judge of compensation also noted that Kleinknecht offered no evidence to apportion liability to any other employer. He explained:

While it is true that petitioner did have back problems, including a herniated disc, prior to working for Kleinknecht, he was able to continue his work and his normal activities until he worked for Kleinknecht, which put the final blow to his health and caused the total permanent disability. There is no testimony from expert witnesses to allocate the disability to the prior respondents except for the testimony of Dr. Canario, which I have referred to earlier, but [Canario] had no number of permanent disability he could assess to any prior employer.

The judge of compensation concluded that because there was no evidence of an inability to function during petitioner's prior employment, there was no basis to apportion liability:

When petitioner testified that he was able to work until his last day of employment of Kleinknecht, at which time he then became totally and permanent[ly] disabled, there was no testimony by [Kleinknecht] to contradict this. Further, the petitioner explained how the driving at Kleinknecht aggravated his back and how it got worse over time while he was driving. . . . Therefore, his condition was exacerbated, aggravated and accelerated by the driving at Kleinknecht. There was also no proof of any loss of function at any of the prior respondents since petitioner was able to do all of the work assigned to him, which was the work he had done all of his life and was heavy work which further supports my conclusion regarding Kleinknecht.

On appeal, Kleinknecht presents the following arguments: First, the judge of compensation erred when he applied Bond v. Rose Ribbon & Carbon Manufacturing Co., 42 N.J. 308 (1964), to the present matter, because Kozinsky v. Edison Products Co., 222 N.J. Super. 530 (App. Div. 1988), and Peterson v. Hermann Forwarding Co., 267 N.J. Super. 493 (App. Div. 1993), certif. denied, 135 N.J. 304 (1994), are controlling. Second, the judge of compensation erred when he accepted Riss's testimony because it was an impermissible net opinion. Third, the judge of compensation's determination that petitioner's medical bills were reasonable and customary for the treatment petitioner received was not supported by substantial credible evidence in the record. Fourth, the judge of compensation erred when he dismissed the petition against the Fund and exonerated the Fund from all responsibility for petitioner's injuries.

II.

Our scope of review in a workers' compensation case is narrow. Sager v. O.A. Peterson Constr. Co., 182 N.J. 156, 163-64 (2004). Our function is limited to a determination of "'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 of their credibility . . . .'" Ibid. (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). We are not authorized to independently assess the evidence in the record as though we were the original factfinder. Id. at 164. Accordingly, if the judge of compensation's decision is supported by sufficient credible evidence in the record, we must uphold those findings, even if we would have reached a different result. Ibid.

We turn to Kleinknecht's first argument, in which he asserts that the judge of compensation erred by applying Bond to the record before him. In Bond, the petitioner was exposed to work conditions that activated a pre-existing, but dormant, occupationally-induced tuberculosis, causing it to become active and spread. The Court observed that the precise time when the petitioner's tuberculosis began could not be ascertained, and that continued occupational exposure to dust and fumes at each successive employment had insidiously and progressively exacerbated the petitioner's underlying tuberculosis. Bond, supra, 42 N.J. at 311. The Court recognized that in such circumstances a retrospective "pinpoint[ing]" of the dates of onset and the dates of each successive aggravation is impossible:

Where, as here, an employee is exposed to work conditions which activate or cause a progressive occupational disease, and the existence of such disease remains undisclosed and unknown over a period time, it is impossible upon ultimate revelation of its existence by medical examination, work incapacity, or manifest loss of physical function, to pinpoint in retrospect, the triggering date of such activation or inception. It is also impossible to reconstruct the daily rate of progress of the disease from its genesis to discovery through one of the afore-mentioned means, where such employee continues to be exposed to work conditions which aggravate the existing disease in unascertainable stages.

[Ibid. (emphasis added).]

Therefore, where the disease was present, yet not observable, during the periods of prior employment, the Court held that in such circumstances, liability should be imposed only on the final employer:

To avoid the morass into which litigation would be pitched were apportionment required, and to eliminate the recognized unsatisfactory nature of any such attempted ascertainment, we conceive that the most workable rule and that most consistent with the philosophy and public policy of the Workmen's Compensation Act is to hold liable that employer or carrier during whose employment or coverage the disease was disclosed as above noted, i.e., by medical examination, work incapacity, or manifest loss of physical function. Although this test is admittedly arbitrary and may on occasion cause some apparently unfair results, over the years it should result in an equitable balancing of liability. Under the circumstances, we conceive it to be the fairest and most workable thesis.

[Ibid.]

Kleinknecht argues that the Bond rule only applies "where there are no accidents and the claim involves occupational exposure over a period of time with different employers or carriers. . . . [The judge of compensation's] decision ignored the petitioner's testimony regarding his significant history of prior accidents and injuries." Kleinknecht also argues that "based on the petitioner's testimony regarding these specific accidents," the judge of compensation should have applied Peterson and Kozinsky, where "the petitioner suffered one traumatic accident and continued to hurt through each subsequent employment."

We now turn to an analysis of Peterson and Kozinsky, as well as a case not cited by Kleinknecht, Levas v. Midway Sheet Metal, 317 N.J. Super. 160 (App. Div. 1998) (Levas I), which demonstrates that the judge of compensation's reliance on Bond was mistaken. In Peterson, the petitioner filed a claim petition against Hermann Forwarding Company (Hermann) alleging injuries as a result of an accident on October 1, 1982, while employed as a tractor-trailer driver. 267 N.J. Super. at 496. The petitioner had completed a delivery and while getting back into the tractor, his right foot slipped off the fuel tank. To avoid falling to the ground, he held onto the grab rail with his right arm extended. Hanging from the grab rail caused injury to his shoulders, neck and low-back. Id. at 496-97.

The petitioner next secured work with Mid-Florida Mining (Mid-Florida) as a truck driver, and testified that, although he was not involved in any accidents while at Mid-Florida, the long hours of driving, bouncing up and down in the truck, and labor that required bending, caused pain in his back and a stiffening of his neck. Id. at 497. The same was true of his subsequent employment at Pilot Trucking and McDonnell Douglas. Id. at 498. His final employer was Yellow Freight, where he worked for six days in 1984. Ibid.

We held that the record did not support the finding of the judge of compensation assessing responsibility against Yellow Freight, the last employer, but instead supported assessing responsibility against the petitioner's first employer, Hermann, as well as the Fund. Id. at 504. We observed that the petitioner returned to work after the 1982 accident at Hermann, "out of economic need, despite his prior disability," but the pain he experienced on his last day of work at Yellow Freight was in the same areas he had injured in his accident of October 1982 at Hermann. Ibid. In reversing the judge of compensation's decision, we held that a mere exacerbation of pain, without an additional injury, is not sufficient to impose responsibility:

Clearly, because of his 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.

. . . .

[Petitioner's doctor's] testimony that "an accumulation of repeated episodes of pain" caused an "emotional drain, a breakdown" which caused him to give up, appears to best explain petitioner's termination of work effort. However, we are persuaded that 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 504-05 (emphasis added) (internal citation omitted).]

In Peterson, we discussed the Bond rule, and characterized the Court's approach in Bond as one imposing responsibility on the final employer only in those instances where the inability to work does not become manifest, or is not disclosed, until the conclusion of a long period of successive employments. Id. at 507. We cautioned that "responsibility for the consequences of [an earlier] accident cannot be heaped on a subsequent employer under an occupational disease theory merely because of difficulty in fixing the disability caused by the prior accident." Ibid.

In contrast, we observed that the condition suffered by the petitioner in Peterson was disclosed, or manifested, long before the petitioner was employed at his final place of employment, Yellow Freight. Ibid. The petitioner's last, and only "disabling accident," had occurred at Hermann, and that disability manifested continuously thereafter. Ibid. The work the petitioner performed after the earlier October 1982 accident at Hermann "was in spite of his disability." Ibid. Thus, in Peterson, we reversed the assessment of responsibility that the judge of compensation had imposed against the petitioner's last and final employer. Instead, we focused on the injury that the petitioner had sustained years earlier at Hermann; and in the absence of any subsequent injury, we held that a subsequent employer, such as the last employer, should not have been held responsible. Id. at 508-09. We reversed and remanded for amendment of the order of judgment to impose liability upon Hermann, rather than upon Yellow Freight. Id. at 510. We reached a similar result in Kozinsky, supra, 222 N.J. Super. at 537.

Our reasoning in Peterson, supra, is instructive here. We observed that "[t]raumatic injuries are quite different" from occupational diseases, whose "insidious etiology" and long existence "without objective manifestation" make "apportion[ment] . . . among the relevant historical employers . . . totally speculative." 267 N.J. Super. at 509 (quoting Baijnath v. Eagle Plywood & Door Mfrs., Inc., 261 N.J. Super. 309, 315-16 (App. Div. 1993)). In contrast, we held that the onset of traumatic injuries "is fixed and determinable," and while "[t]he allocation of responsibility may be difficult [and] the proofs may not permit of certainty[,] . . . there are distinct harms and some reasonable basis in the facts for allocation." Ibid. (quoting Baijnath, supra, 261 N.J. Super. at 315-16). We reasoned that the lack of certainty is not a justification for a refusal to apportion liability. Ibid.

In Levas I, supra, we again reversed the assessment of full responsibility against the petitioner's final employer. 317 N.J. Super. at 173-74. As here, the judge of compensation in Levas I imposed full responsibility upon the petitioner's final employer, Midway Sheet Metal (Midway), because Midway "was the straw that broke the camel's back." Id. at 170. We concluded that the judge of compensation misapplied Bond when he held Midway totally responsible for the petitioner's disability, and we remanded for an allocation determination. Id. at 173. We observed that the judge of compensation erred when he concluded that the Bond rule was applicable merely because the partial disability--known and manifest--slowly progressed until it became total. Id. at 172.

We held that, in the context of a progressive condition, the final employer "can no longer be held subject to the entire risk of liability for total disability when it is established by competent evidence that there is a previous measurable functional [which may not then be total] disability." Ibid. (alteration in the original) (quoting Gulick v. H.M. Enoch, Inc., 280 N.J. Super. 96, 115 (App. Div. 1995)). So long as the "previous loss of function is established by competent medical evidence, whether compensable or not, the subsequent employer is only liable for that portion of the disability arising out of employment with that employer." Id. at 173 (quoting Gulick, supra, 280 N.J. Super. at 111); N.J.S.A. 34:15-12d.

With these principles in mind, we turn to a review of the record before us. The judge of compensation concluded that because petitioner was able to work throughout his prior employments, despite the various work-related injuries, Kleinknecht should be held fully responsible because it was only at Kleinknecht that petitioner's ability to function ceased. That conclusion ignores our admonition in Levas that where various employments contribute in a material degree to the ultimate total disability, a percentage of responsibility must be assessed to each. Imposing responsibility only upon the final employer because it was there that the employee gave out and could no longer function is not permitted. Levas I, supra, 317 N.J. Super. at 173-74. Our rejection of the "straw that broke the camel's back" reasoning there, ibid., is equally applicable here.

Even a full acceptance of Riss's opinion does not justify imposing the entire responsibility on Kleinknecht. Riss opined that the rigors and exertion of petitioner's employment from "1987 to 2001" caused petitioner's disability. Specifically, he acknowledged that the 1978 car accident and some of petitioner's prior workplace accidents had contributed to petitioner's disability. At best, Riss's testimony supports a conclusion that driving 300 miles per day at Kleinknecht significantly aggravated a pre-existing, known and recognized disability. Under those circumstances, apportionment is required. Ibid.

We recognize, as did the judge of compensation, that petitioner was able to return to work after each of his prior work-related injuries. However, for any progressively-worsening injury that eventually results in a total and permanent disability, there will always come a day when the employee's physical condition has become intolerable, and he is no longer able to work. That fact does not justify heaping the full responsibility upon the last employer. Peterson, supra, 267 N.J. Super. at 505.

Moreover, the judge of compensation's determination that the Bond rule governs ignores the rationale of the Court's opinion in Bond. There, the Court imposed full responsibility upon the petitioner's last employer only because the "existence of [the] disease remain[ed] undisclosed and unknown over a period of time" and a retrospective analysis of the "triggering date" of its onset was impossible. Bond, supra, 42 N.J. at 311. In this case, whether the etiology is the 1978 car accident at Petro, the "pop" petitioner experienced in his back while laying fiber optic cable for Fischbach in 1996, the "jerk[] of his back" when he slipped on a pipe at Century in 1998, driving 300 miles per day at Communication Electric and Kleinknecht, or a combination of some or all incidents, petitioner's prior injuries are "distinct harms" that provide "some reasonable basis in the facts for allocation." Peterson, supra, 267 N.J. Super. at 509 (quoting Baijnath, supra, 261 N.J. Super. at 315-16). Contrary to the judge of compensation's conclusion, the record here does not support his determination that petitioner's medical history was marked by an unknowable date of onset and an insidious progression. As in Levas I, supra, the judge of compensation "was simply wrong in ignoring [the] prior manifestation because the condition was not then total." 317 N.J. Super. at 173.

The erroneous result here no doubt springs from the judge of compensation's mischaracterization of the Bond rule, which he described as "assess[ing] responsibility . . . on the final employer of the petitioner when there are multiple respondents and no other reasons to select a prior respondent." His description of the Bond holding ignores its doctrinal underpinnings: "an insidious etiology" that "exist[s] for a protracted period without objective manifestation." Peterson, supra, 267 N.J. Super. at 509 (quoting Baijnath, supra, 261 N.J. Super. at 315). That is not this case, which has "fixed and determinable" injuries. Ibid. (quoting Baijnath, supra, 261 N.J. Super. at 315). As we observed in Baijnath, supra, although the "allocation of responsibility may be difficult" and "the proofs may not permit of certainty," the "distinct harms" afford "some reasonable basis in the facts of allocation[.]" 261 N.J. Super. at 315-16.

We therefore reverse that portion of the judgment that assessed full responsibility against Kleinknecht, and remand for an apportionment of responsibility.

On remand, the judge of compensation should determine whether further evidence should be required from the various respondents to "properly assess their causative role in petitioner's total disability[.]" Levas I, supra, 317 N.J. Super. at 176. In light of the lack of any apportionment testimony by Riss and Canario, further expert testimony will likely be required. In determining apportionment, the judge of compensation and the parties should focus on petitioner's relevant injury and medical history during his periods of employment with respondents. See Levas v. Midway Sheet Metal, 337 N.J. Super. 341, 358-59 (App. Div. 2001) (Levas II) (voluminous medical records should have been canvassed to determine the incremental, measurable increases along the way).

III.

We now turn to an analysis of Kleinknecht's remaining contentions. In light of our disposition, we need not decide whether Kleinknecht's characterization of Riss's testimony as an impermissible net opinion is meritorious, nor is there any need to decide whether the judge of compensation erred when he accepted Riss's conclusions.

We turn next to Kleinknecht's contentions concerning the judge of compensation's dismissal of the Fund. In light of the judge of compensation's assignment of full responsibility to Kleinknecht, he had no need to assess the Fund's potential liability. On remand, the judge of compensation is directed to determine whether any portion of petitioner's total disability is the result of "successive, unassignable injury," Gulick, supra, 280 N.J. Super. at 116, for which the Fund may be potentially liable.

IV.

Finally, in Point V, Kleinknecht argues that the judge of compensation's approval of the bills for petitioner's hospitalization was not based upon sufficient credible evidence in the record. In particular, Kleinknecht points to the portion of Riss's testimony in which he was asked to review all of the bills in the aggregate and offer an opinion as to their reasonableness, rather than be asked to comment upon them individually. Riss testified that he had already reviewed each of the bills.

Under those circumstances, there was no need for a laborious and tedious discussion of each one. Each respondent had the opportunity to cross-examine Riss and challenge the reasonableness of each bill. We have been presented with no meritorious basis upon which to reject the judge of compensation's acceptance of those bills, as his findings were supported by substantial credible evidence in the record. Sager, supra, 182 N.J. at 164. On remand, the assignment of responsibility for payment of the bills should be reconsidered in light the ultimate apportionment determination.

Reversed and remanded. We do not retain jurisdiction.

We left intact the 27.5% of total disability assessed against the Second Injury Fund. Ibid.

(continued)

(continued)

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A-5347-07T3

April 17, 2009