CP# 99-28097 and 2002-20675 (2005). JUAN A. TEJERAS, SR., Petitioner, vs KENNEDY CONCRETE, GARDEN STATE SPRING, INC. t/a GENERAL SPRING and ALIGNMENT, Respondent.

• Court: New Jersey

New Jersey Worker's Compensation 2005. CP# 99-28097 and 2002-20675 (2005). JUAN A. TEJERAS, SR., Petitioner, vs KENNEDY CONCRETE, GARDEN STATE SPRING, INC. t/a GENERAL SPRING and ALIGNMENT, Respondent CP# 99-28097; 02-20675 Tejeras v. Kennedy ConcreteNEW JERSEY DEPARTMENT OF LABOR and WORKFORCE DEVELOPMENT DIVISION OF WORKERS' COMPENSATION BRIDGETON, CUMBERLAND COUNTY DISTRICT CLAIM PETITION NO. 99-28097 and 2002-20675JUAN A. TEJERAS, SR., Petitioner, vsKENNEDY CONCRETE, GARDEN STATE SPRING, INC. t/a GENERAL SPRING and ALIGNMENT, Respondent. TESTIMONY OF PROCEEDINGSMonday, February 28, 2005BEFORE: THE HONORABLE ROBERT F. BUTLERJudge of CompensationAPPEARANCES: MICHAEL T. GRIMES, ESQ. 311 West Landis Avenue Vineland, New Jersey 08360For the Petitioner.HOWARD W. CRUSEY, ESQ. BY: ALLEN S. JACOBI, JR., ESQ., 301 Sullivan Way CN 00128 West Trenton, New Jersey 08628 For the Respondent.CHRISTINE RHOADES Certified Shorthand ReporterFREEMAN, BARTON, HUBER and SACKS, ESQS. BY: RICHARD A. BARTON, ESQ., 20 Tanner Street P.O. Box 10 Haddonfield, New Jersey 08033 For the Respondent, Garden State Spring as insured by Highland.COOPER, LEVENSON, APRIL, NIEDELMAN and WAGENHEIM, PA BY: WILLIAM T. MEADOWS, ESQ., B-8 11423 Manklin Creek Road Ocean Pines, Maryland 21811 For the Respondent, General Spring as insured by Hartford.CHERYL B. KLINE, D.A.G., Box 105 Trenton, New Jersey 08625 For the Respondent.THE COURT: This is the return day with respect to several claim petitions that have been filed -- I should say two claim petitions that have been filed on behalf of the Petitioner, Juan Tejeras. In one claim petition, the Respondent is Kennedy Concrete, Inc. In the other, the Respondent is General Spring with various carriers on the risk. Would you note your appearance. MR. GRIMES: Michael Grimes on behalf of the Petitioner. MR. JACOBI: Allen S. Jacobi, Jr., on behalf of Kennedy Concrete. MR. BARTON: Richard Barton on behalf of General Spring, your Honor, through the carrier SRS or Highlands Group. I'm sorry. It's Highlands. MR. MEADOWS: William Meadows. I'm on behalf of SRS. MS. KLINE: Cheryl Kline, Deputy Attorney General, on behalf of the Commissioner of Labor as custodian for the Second Injury Fund. THE COURT: Counsel, we concluded the testimony in this matter and the proofs several weeks ago. I received your briefs three weeks ago and indicated that I would be in a position to render my decision today, and that is what I am going to do at this point. This case consolidates a claim arising from an admittedly compensable accident with several occupational claims involving a disability to the same part of the Petitioner's body. There are several issues that this Court must decide, the primary one being the nature and extent of the Petitioner's permanent disability. If the Petitioner is found to be permanently and totally disabled, his entitlement to Second Injury Fund benefits from the State of New Jersey would then have to be decided. The traumatic claim was presented to the Court based upon the Petitioner's Application for Modification of a Prior Award entered by this Court, which is the subject of Claim Petition No. 99-28097, and that award occurred on November 2, 2000. That award occurred as a result of an injury to the low back of the Petitioner, Juan Tejeras, while he was employed by the Respondent, Kennedy Concrete (hereinafter referred to as "Kennedy"). That accident occurred on July 8, 1998 when he attempted to lift an air compressor. His job at the time was that of a truck mechanic. His duties included working on mixers and trucks. Following this lifting incident, the Petitioner developed both low back and left leg pain. When seen by the Respondent's authorized doctor, Dr. Scott Williams, on July 13, 1998, he noted tenderness of the low back and left buttock as well as a straight leg raising test that was positive on the left for low back pain. The doctor's impression was that of "probable nerve root compression." His treatment consisted of six physical therapy visits, and he received temporary disability benefits of five weeks returning to work on August 19, 1998. On July 23, 1998, Dr. Williams indicated that if the Petitioner's symptoms did not ameliorate an MRI and physical therapy would be recommended. The Petitioner never underwent the MRI. As a result of that accident, the Petitioner was the recipient of an award of 10 percent permanent partial total disability on November 2, 2000. That disability was found by the Court to represent the residuals of a lumbosacral strain and sprain with a left-sided radiculopathy. In preparation for that award, the Petitioner was evaluated by two physicians for the purpose of diagnosing and estimating his disability. He was evaluated on his own behalf by Dr. Marshall Pressman on October 19, 1999. His diagnosis was post traumatic lumbosacral strain and sprain, and his estimate of disability was 25 percent permanent partial total. He was evaluated on behalf of Kennedy by Dr. John G. Costino on March 28, 2000. His diagnosis was that of an acute lumbar strain and sprain with early disc disruption. His estimate of disability was 5 percent permanent partial total. The Petitioner had terminated his employment with Kennedy in November of 1998. He then worked as a diesel mechanic for Levari Trucking (hereinafter referred to as "Levari") from December 1998 until June of 1999. He described this as an easier job than that which he had with Kennedy. He began working for General Spring and Equipment Company (hereinafter referred to as "General") as a diesel mechanic in June 1999. He testified that his duties there required him to repair truck engines, transmissions, differentials and hydraulic systems. He also performed wheel alignments and welding duties. He found that he was lifting items weighing up to 90 pounds and was doing so up to 20 times daily. The Petitioner was working for General at the time of his November 2, 2000 award. During that hearing, he testified that he experienced back pain every time he moved or bent quickly or when he would lift or try to hold something weighing 25 pounds or more. He would also experience left leg and knee numbness when he would lift and hold 25 pounds or more. What appears from the record as the Petitioner's first medical treatment for his low back since 1998 occurred on December 27, 2000. He then visited the office of Delaware Valley Primary Care because of back pain. He was prescribed Lortab and told not to lift more than 20 pounds and to avoid excessive bending. He was also referred for an MRI. That study occurred on January 18, 2001, and it revealed the presence of a moderately large central to left disc herniation at the L5-S1 level of the lumbosacral spine. The Petitioner then returned to the care of Dr. Scott Williams. The Petitioner underwent three epidural steroid injections to his low back. They were administered in March, September and October of 2001. He was noted by Dr. Williams as being in severe pain and unable to work as of September 20, 2001. His employment was terminated by General on August 27, 2001 because of his inability to work. In October, 2001, Dr. Williams suggested that the Petitioner be scheduled for a lumbar laminectomy. On January 2, 2002, the Petitioner was evaluated by Dr. Marc Levitsky, an orthopedic surgeon, at the request of Kennedy. Thereafter, on February 11, 2002, Dr. Levitsky performed a hemilaminectomy at the L5 level and a discectomy at the L5-S1 level. The Petitioner was discharged by Dr. Levitsky on July 15, 2002. Because he continued to suffer from significant pain, he returned to Dr. Williams who in turn referred him for an additional MRI. That November 10, 2002 study revealed a moderate recurrent left paracentral disc herniation impinging on the nerve root and thecal sac at the L5-S1 level. The Petitioner testified that since that time he continues to suffer from both low back and left leg pain. He has not returned to any form of employment since he was terminated by General. The procedural history of this case began with the filing of the Petitioner's application for modification of his prior award against Kennedy. That was filed in April 2001. Kennedy filed a responsive pleading on June 1, 2001 in which it denied that it was responsible for any further benefits to the Petitioner. On November 26, 2001, a Motion for Temporary and Medical Benefits was filed by the Petitioner in which he asserted both a need for the surgery suggested by Dr. Williams as well as temporary disability benefits. The responsive pleading filed by Kennedy once again denied liability as to both requests. Following a conference with the Court on the return day of that motion, Kennedy agreed to have the Petitioner evaluated by an orthopedic surgeon concerning the need for surgery as well as the causative factors for that need. Following that eexamination by Dr. Levitsky, Kennedy agreed to provide authorization for surgery as well as the related temporary disability benefits on a "without prejudice" basis. Kennedy reserved its right to seek reimbursement for these benefits and further conditioned its offer upon the Petitioners's filing of occupational claims as to General. In June 2002, Claim Petition No. 2002-20675 was filed against Garden State Spring, Inc. trading as General Spring and Alignment in which it was alleged that the Petitioner suffered an injury to his lumbar spine due to repetitive lifting and bending while working for...