CP# 2001-7310 (2005). MARK A. RICCIARDO Petitioner, v STROEHMANN/MAIERS BAKERY, Respondent.

CourtNew Jersey
New Jersey Worker's Compensation 2005. CP# 2001-7310 (2005). MARK A. RICCIARDO Petitioner, v STROEHMANN/MAIERS BAKERY, Respondent CP# 2001-7310 Ricciardo v. Stroehmann/Maiers BakeryNEW JERSEY DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT DIVISION OF WORKERS' COMPENSATIONCLAIM PETITION NO. 2001-7310 MARK A. RICCIARDO Petitioner, vSTROEHMANN/MAIERS BAKERY, Respondent. DATE: FRIDAY, OCTOBER 10, 2004 TIME: 2:00 P.M. PLACE:TRENTON, NEW JERSEYBEFORE: THE HONORABLE RENEE C. RICCIARDELLI ADMINISTRATIVE SUPERVISORY JUDGEAPPEARANCES: DEVLIN, CITTADINO, AND SHAW BY: PAUL DEVLIN, ESQ. ON BEHALF OF THE PETITIONER WEBER, GALLAGHER, SIMPSON, STAPLETON, FIRES AND NEWBY BY: RICHARD TAVANI, ESQ. ON BEHALF OF THE RESPONDENT PETER C. HARVEY, ATTORNEY GENERAL BY: CHERYL KLINE, D.A.G. ON BEHALF OF THE SECOND INJURY FUND This is the matter of Mark A. Ricciardo v. Stroehmann/Maiers Bakery, claim petition number 2001-7310. Mr. Ricciardo was involved in an admittedly compensable accident on April 28, 1999. He was earning a weekly wage of $700 per week which gives rise to a temporary disability benefit rate of $409 per week. Petitioner filed a Motion to Join the Second Injury Fund on January 16, 2003. Petitioner started his testimony on August 8, 2003. Following that testimony, respondent's attorney asked for and received leave to have petitioner undergo x-rays of his hands and knees and to be re-evaluated by Doctor Herman in regard to any hand or knee injury or pre-existing condition. This was in an effort to prove pre-existing disability in order to receive contribution by the Second Injury Fund. On March 8, 2004 the Social Security Administration approved petitioner's application for benefits finding that he was totally disabled as of October 1, 1999. As a result, petitioner began receiving an initial entitlement of $1,616 per month beginning in August of 2002. The Social Security Administration also advised that petitioner's 80% average current earnings was $2,332.80. This calculates to an offset rate from August 1, 2002 until the petitioner turns 62 years old on August 7, 2008 of $165.42 per week. The two issues before the court are: 1) nature and extent of permanent disability as a result of the accident; and 2) if the petitioner is deemed to be totally disabled should there be contribution from the Second Injury Fund or is this disability due solely to the April 28, 1999 injury. When petitioner testified in August of 2003, he was then 57 years old, had been married for 35 years and had one child, a son 34 years old. He has worked for the respondent since 1986 as a route salesman. He was injured on April 28, 1999 when lifting a stack of trays and twisting awkwardly. Respondent referred petitioner to Professional Health Care Services where a course of treatment was begun. Eventually, Mr. Ricciardo had an MRI ordered by Doctor John Tydings who then proceeded to inject Mr. Ricciardo with two epidural injections. On February 28, 2000 he underwent an anterior lumbar disectomy and interbody fusion with right iliac crest bone graft and BAK cages. The surgery was unsuccessful and Doctor Tydings performed a second procedure on November 15, 2000 consisting of a posterior spinal fusion at L4/L5, another right iliac bone graft, placement of an EBI stimulator, a graft and matrix and non-segmental pedigal screw instrumentation. On June 18, 2001 Mr. Ricciardo underwent a third surgical procedure to remove the batteries from the EBI stimulator. When petitioner testified he indicated that he could neither stand nor walk for more than fifteen minutes without pain. It was very difficult for him to get out of the chair because of the pain. He has a stabbing pain daily from his spine down his left leg into his left foot and cramping of the leg. Sometimes the pain is so profound that it awakens him from a sound sleep. He also has a pins and needles sensation in his left...

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