Allocation of liability among respondents. A questionable application of the Peterson Doctrine.

By Dario J. Badalamenti, Esq. of Marshall Dennehey Warner Coleman & Goggin, P.C.

Allison v. L&J Contracting Co., Inc., Docket No. A-1352-11T4, 2012 N.J. Super. Unpub. LEXIS 2197 (App. Div., decided September 27, 2012)

The petitioner was employed as a tile finisher with the respondent. On July 27, 2006, the petitioner fell in a hole while in the course of his employment and sustained injury to his lumbar spine. The petitioner filed a claim for workers' compensation benefits. The respondent filed a motion to join the petitioner's subsequent employer, with whom the respondent alleged the petitioner had sustained two subsequent accidents. The Judge of Compensation granted the respondent's motion, and the subsequent employer was joined as a party to the claim. The petitioner thereafter filed a separate claim for workers' compensation benefits against his second employer. A consolidated trial of these claims ensued.

At trial, the petitioner testified that, although he continued to experience low back pain with radiation into his right leg on a daily basis following his July 27, 2006, accident, he did resume work as a tile finisher in March of 2007 with the second employer, where he performed functions very similar to those he did while employed with the respondent. The petitioner testified that he was initially able to function normally, but his back and leg pain worsened over time. He further testified that the pain he experienced while working for the second employer was the same pain he experienced after his July 27, 2006, accident. As to the respondent's allegations that the petitioner sustained two subsequent accidents while in the employ of the second employer, the petitioner admitted to the occurrence of lifting incidents in June of 2007 and March of 2008. However, the petitioner testified that he neither reported these incidents to the second employer nor did he seek treatment for his complaints, as he considered the symptoms from these incidents to be a "flare up of his previous symptoms."

At the conclusion of trial, the Judge of Compensation dismissed the petitioner's claim against the second employer and entered an order for judgment against the respondent. The Judge reasoned that the petitioner's current disability was related solely to the progression of his disability from the original accident of July 27, 2006, and that the incidents in June 2007 and March 2008 were "descriptive of occupational activities" rather than "accidents or traumatic events," as contemplated by the Workers' Compensation Act, N.J.S.A. 34:15- 1 et seq. The respondent appealed.

In affirming the Judge's holding, the Appellate Division relied on Peterson v. Hermann Forwarding Co., 267 N.J. Super. 493 ( App. Div. 1993), in which the claimant was injured in an accident that occurred on October 1, 1982, while in the employ of Hermann Forwarding Company. The claimant filed claims against several subsequent employers alleging that he had suffered an aggravation of his injuries due to occupational exposure following his October 1, 1982, accident. In reversing the Judge's finding of permanent and total disability against the claimant's last employer, the Peterson Court found that the evidence showed that the claimant suffered his injury while working for Hermann and had manifested his disability continuously thereafter. The Peterson Court found no credible evidence that the claimant's subsequent employments materially contributed to his increase in disability but, instead, concluded that the claimant's increased disability was due to the natural progression of his disease.

As in Peterson, the Appellate Division in this case determined that the evidence presented established that the petitioner's ultimate disability was attributable to the injuries he sustained as a result of his July 27, 2006, accident, which progressively worsened over time. The Appellate Division found that the evidence supported the Judge's finding that the petitioner did not suffer any subsequent injury while in the employ of the second employer that materially contributed to his disability and, as such, there was no basis to support an apportionment of liability to the second employer.

SIDE BAR: Despite the Appellate Division's affirmation, the Judge's findings in this matter are somewhat questionable from a defense perspective. At trial, the petitioner's treating physician testified that the petitioner had been doing well following his return to work with the second employer in March of 2007, until he had a recurrence of "severe low back pain with radiation into the right leg" while lifting a "bag of material" in June of 2007. Similarly, the petitioner's symptoms had been largely quiescent when he again experienced low back pain with right-sided sciatica after lifting "a ninety-two pound bag of sand" at work. Of significance, the petitioner's treating physician noted on several occasions that his pathology increased with activity and decreased with "rest and recumbancy." In light of the petitioner's pattern of worsening symptoms with increased work activity—as well as the occurrence of two subsequent lifting incidents after which the petitioner reported the return of severe back pain with radiculopathy—it is difficult to understand how neither the Judge nor the Appellate Division found that the petitioner's employment with the second employer contributed materially to his disability.

For additional information, please contact Dario at djbadalamenti@mdwcg.com or 973.618.4122

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Allocation of liability among respondents. A questionable application of the Peterson Doctrine.

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