Hodgdon v. Project Packaging, Inc.

• Decision Date: 08 December 1986
• Citation: 519 A.2d 881,214 N.J.Super. 352
• Parties: Terry HODGDON, Petitioner-Respondent, v. PROJECT PACKAGING, INC., Respondent-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 352

214 N.J.Super. 352

519 A.2d 881

Terry HODGDON, Petitioner-Respondent, v. PROJECT PACKAGING, INC., Respondent-Appellant.

Superior Court of New Jersey Appellate Division.

Submitted Nov. 13, 1986.

Decided Dec. 8, 1986.

Fred S. Brause, Jr., Metuchen, for respondent-appellant Project Packaging, Inc., through its insurance carrier, Pennsylvania Mfrs. Ins. Co. (Sheldon Schiffman, Short Hills, on the brief).

Michals, Wahl, Silver & Leitner, Woodbridge, for respondent-appellant Project Packaging, Inc., through its insurance carrier, North River Ins. Co. (Robert Silver, on the brief).

Freeman & Barton, Haddonfield, for respondent-appellant Project Packaging, Inc., through its insurance carrier, Harleysville Ins. Co. (Michael Huber, on the brief).

Wysoker, Glassner & Weingartner, for petitioner-respondent (Lester S. Goldblatt, New Brunswick, and John J. Sharkey, Jr., Perth Amboy, on the brief).

Before Judges FURMAN, SHEBELL and STERN.

The opinion of the court was delivered by

SHEBELL, J.A.D.

Pennsylvania Manufacturers Insurance Company ("PMA"), appeals from an order finding that petitioner, Terry Hodgdon, suffered a compensable accident on September 28, 1983 and that only PMA was liable for providing the necessary medical treatment, including surgery to relieve petitioner's carpal tunnel syndrome, and for the payment of temporary disability benefits, rather than any of the other carriers who previously insured respondent.

Petitioner filed a claim petition seeking workers' compensation benefits for injury to his right shoulder and neck based on his allegation that during the period from September 13 to September 28, 1983, "[h]ard work for respondent in use of right arm overhead aggravated, accelerated, exacerbated the compensable injuries of 5/6/81 & 7/27[/82]-9/21/82." Respondent's insurer at the time was PMA.

Petitioner had previously filed a claim petition alleging an accidental injury to his right shoulder on May 6, 1981. At that time respondent was insured by Harleysville Mutual Insurance Company who paid temporary disability payments for 11 4/7 weeks.

Subsequently petitioner filed a claim petition in which he alleged the shoulder condition became worse during the period from July 27, 1982 to September 21, 1982, the date upon which he stopped work as a result of that condition. At that time respondent was insured by North River Insurance Company.

Petitioner filed a motion seeking medical treatment and temporary disability benefits starting from September 29, 1983. He then amended his first claim petition, alleging that on September 28, 1983 he injured his right shoulder and neck as follows: "Standing on top of truck holding wire, attempting to put rope on, crew down the line pulled wire taught [sic ], petitioner's right arm was pulled up and over his head almost lifting his body from the truck." Thereafter, petitioner filed a motion for medical care and temporary disability against all three insurance carriers for respondent.

Petitioner next filed a second amended claim petition, alleging an injury to his left arm and left hand in addition to the right shoulder and neck, wherein he described the September 28, 1983 injury as follows:

Standing on top of truck, holding wire by means of rope in left hand, with right hand pushing cables up to put dolly on, crew down line, pulled wire tight, this caused wires to go up and out, pulling right arm overhead almost lifting body from truck. petitioner [sic ] let go with right hand, now petitioner off truck in air; left wrist snagged in rope being used to hold wires, freed slef [sic ] and dropped to ground, injured right shoulder, neck, left arm and left hand.

The three petitions were joined for purposes of the hearings on the motions. The judge of compensation held that PMA was solely responsible for supplying medical treatment to petitioner and for the payment of temporary disability benefits beginning September 29, 1983.

PMA filed a motion for leave to appeal which this court denied. The judge of compensation then signed an order submitted by PMA which contained the following paragraph:

14. The Court does further certify that the finding that the Pennsylvania Manufacturer's Association Insurance Co. is responsible for the total temporary disability since September 28, 1983 for the treatment for said conditions is a Final Judgment assessing liability for said conditions, thence the respondent through its insurance company Pennsylvania Manufacturer's Association Insurance Co. and the insurance carriers for the respondent under Claim Petitions No. 82-292 and 82-36091 are hereby absolved from any liability in connection with any injuries sustained in the accident of September 28, 1983, or for any sequelae thereof.

Petitioner, who was 33 years old on the date of the first hearing, testified that he injured his right shoulder when he fell from a pole on May 6, 1981. He was treated and was out of work for three months. When he returned to work, he did "[o]verhead aerial construction," which involved "putting cables on overhead poles."

In August or September 1982 petitioner went back to his doctor complaining of a snapping sensation in his right shoulder and difficulty holding his hand above his head for any length of time. Petitioner claimed he was doing less physical work during the preceding year because of his shoulder. In June 1983 the doctor performed surgery on petitioner's right shoulder. Temporary disability benefits and medical treatment were the subject of a consent order involving Harleysville and North River Insurance Companies.

Petitioner was released to return to work on September 13, 1983, but was told there was no light duty, and went back to doing aerial overhead construction. On September 27 or 28, 1983, he was standing on a truck pushing up a cable, when "the whole thing released off the brake on the jig, shot off in the air, turned the rope, spun me off the truck and left me hanging in the air before I got off the rope." His right shoulder and elbow were caught under the cable and his left arm was also involved. He continued to work for a couple of hours even though his right shoulder hurt, and went to his doctor the next day.

At the end of October petitioner experienced pain radiating down his left arm into the elbow and fingers; his left hand "fell asleep" for about 19 weeks after which the numbness began to subside. In the summer of 1984 he was referred to a neurologist, and it was recommended that he undergo surgery on the left wrist. Petitioner did not return to work following the September cable accident. On June 20, 1984, surgery was recommended to avoid a permanent problem from the carpal tunnel syndrome, as the condition failed to respond to conservative measures.

When asked if the September 28 accident in which petitioner's left hand became tangled in the rope was causally related to the carpal tunnel syndrome, his doctor stated that it was possible, but he could not say that it was probable. He agreed that petitioner's job, which involved considerable overhead work, could, within a reasonable degree of medical probability, "predispose or cause or aggravate" petitioner's carpal tunnel syndrome.

A specialist in surgery and traumatic orthopedic injuries examined petitioner's left hand on January 28, 1985 and testified on his behalf. He concurred in the diagnosis of carpal tunnel syndrome and stated that petitioner's required surgery was "causally related to his occupation, and to the incident which, apparently, happened on the 28th of September of 1983" to a reasonable degree of medical probability.

PMA produced the testimony of a board-certified general surgeon, who examined petitioner on February 8 and July 11, 1984. He found no evidence of carpal tunnel syndrome and stated that evidence of carpal tunnel syndrome would have had to have developed within four to six weeks from the incident in order for there to be a causal relationship.

At the close of the evidence the judge granted petitioner's motion to conform the pleadings to the proofs.

I.

We entertain this appeal at this time although it is arguably interlocutory. PMA has asserted that the appeal is not interlocutory. It states the judgment was certified pursuant to R. 4:42-2 as final by the compensation judge and therefore must be considered a final judgment for appeal purposes under R. 2:2-3(a)(3). We find no indication that R. 4:42-2 was intended to cover workers' compensation orders directing the employer to furnish medical care and awarding temporary disability benefits, or indeed that the rule was intended to apply to decisions of administrative agencies at all. Both R. 2:2-3(a)(3) and 4:42-2 refer to courts and not administrative agencies.

Judah v. General Super Markets, Inc., 99 N.J.Super. 389, 240 A.2d 44 (Middlesex Cty.Ct.1968) considered whether an award of temporary disability benefits and medical expenses was a final judgment for purposes of appeal, as the procedure then stood, to the county court. The county court held:

An employee is not required to wait until his permanent disability is fixed and evaluated before applying for relief. Medical attention or temporary compensation may be ordered by the Workmen's Compensation Division in accordance with R.S. 34:15-15. Voorhees v. Glenwal Co., Inc., 77 N.J.Super. 65 (App.Div.1962).

The statute providing awards for medical service and temporary compensation creates independent rights apart from the statute authorizing an award for permanent total disability. While the remedy of permanent disability is still to be determined, this is an independent right arising from a common remedy of workmen's compensation and is merely a matter of continuing that portion of the case until the results can be measured. Chickachop v. Manpower, Inc., 84 N.J.Super. 129 (Law Div.1964). [Id. at 392, 240 A.2d 44].

Other courts have taken a contrary view. As stated in Andersen v. Well-Built Homes of Central...