ROY HENDRICKSON VS. UNITED PARCEL SERVICE â€" EDISON  (DIVISION OF WORKERS' COMPENSATION) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3267-15T2
ROY HENDRICKSON,
Petitioner-Respondent,
v.
UNITED PARCEL SERVICE - EDISON,
Respondent-Appellant.
________________________________
Argued June 7, 2017 – Decided July 11, 2017
Before Judges Alvarez and Accurso.
On appeal from the New Jersey Department of
Labor, Division of Workers' Compensation,
Claim Petition No. 2014-10726.
Shealtiel Weinberg argued the cause for
appellant (Brown & Connery, LLP, attorneys;
Mr. Weinberg, on the brief).
Richard N. Schibell argued the cause for
respondent (Schibell & Mennie, LLC,
attorneys; Mr. Schibell, of counsel; Ellen
D. Fertakos, on the brief).
PER CURIAM
United Parcel Service – Edison appeals from the March 16,
2016 decision of the Division of Workers' Compensation granting
petitioner Roy Hendrickson's motion for temporary benefits and
medical treatment. Because the decision by the Judge of
Compensation finds ample support in the record, we affirm.
Hendrickson was fifty-nine years old and had worked for UPS
for almost thirty years at the time of the hearing in this
matter. For his first nineteen years with the company, he
worked as a package car driver. The job entailed making over
one hundred stops a day to deliver or pick up packages weighing
up to one hundred and fifty pounds. Although drivers were
entitled to assistance with packages weighing over seventy
pounds, Hendrickson testified he never received such assistance.
He suffered his first back problem while working a Staten Island
route within the first four or five years of his employment. He
testified that sometime around 1992, his "[l]ower back gave out"
and his "legs went out from under [him]." He did not file a
workers' compensation claim. He received chiropractic treatment
and returned to work with no residual effects.
Ten years later, in 2002, Hendrickson's route had changed.
He was driving out of Lakewood, serving industrial customers.
He hurt his back lifting a heavy package and was out of work for
almost two months. Hendrickson was diagnosed with "residuals of
repetitive lumbar sprains," "degenerative disc disease at
multiple levels with bulging discs at L4-L5 and L5-S1," "mild
foraminal stenosis at L5-S1," and "chronic lumbar myositis and
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fibromyositis." After a course of physical therapy, he returned
to work. Hendrickson filed a claim and was awarded 15% partial
total disability.
The claim was reopened in 2004, after Hendrickson
complained of constant and severe pain in his mid to low back
radiating into his left leg. It was settled in 2006 for an
increase to 17.5% permanent partial total with a credit for the
prior award.
Shortly before the claim was settled in 2006, Hendrickson
began working as a feeder driver for UPS, driving tractor-
trailers to New York City, the Meadowlands, Secaucus and
Cranbury, as well as to other locations in New York, Connecticut
and Rhode Island. He drove single-axle International or Mack
trucks without air ride suspensions, which he testified
transmitted pronounced shock and vibration over the pot-hole
ridden roads he drove regularly. Hendrickson's back was still
painful, exacerbated by the poor suspensions and bad roads he
confronted on a daily basis. He underwent occasional
acupuncture treatment, which was not successful.
In 2008 or 2009, Hendrickson, while still working as a
feeder driver, also began working as a shifter driver. A
shifter uses his tractor to move trailers at slow speeds (five
miles per hour or less), repositioning them around the terminal.
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The work involves backing the truck into a trailer and "hitting
the pin" to connect the two. Hendrickson testified that every
time he made that connection, at least seventy-five times a day,
there is "a good impact," which he likened to "getting punched
in the back."
Hendrickson testified he collapsed at a mall in 2012 or
2013 as a result of pain and numbness radiating down his legs
from his low back. When he told his chiropractor that he was
losing feeling in his legs, the chiropractor sent him for an
MRI. An MRI of Hendrickson's spine taken in August 2013,
revealed focal disc herniation at L3-4 and L4-5, substantial
foraminal and lateral recess stenosis at L3-4 and severe
stenosis at L4-5, substantial nerve root impingement at L3-4 and
a minimal disc bulge at L5-S1. When the results of the MRI came
back, Hendrickson's chiropractor refused to continue to treat
him.
Hendrickson began treatment with a physician in 2014, who,
after examining him and reviewing the MRI, diagnosed him with
severe sciatica, lumbar disc herniation at L3-4 and L4-5, and
lumbar radiculopathy. The doctor recommended bilateral nerve
root blocks at L4-5 and disc decompression at L3-4 and L4-5.
Hendrickson continued to try and work, notwithstanding his pain,
but testified his situation soon became intolerable. He
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underwent surgery in March 2014 to decompress the disc at L4-5,
and remained out of work for six weeks.
Hendrickson got pain relief from the procedure for about
three months. In June, the pain returned and Hendrickson's
doctor again put him out of work while he underwent a new MRI
and was further assessed for surgery. Hendrickson's MRI
revealed persistent left lateral recess and foraminal disc
herniation at L4-5 causing severe narrowing of the left lateral
recess and foramen and impingement upon the left L5 nerve root.
The study also revealed left foraminal disc herniation at L3-4.
At the time of the trial, Hendrickson testified he was
still working, although putting his pain most days at a level of
about seven or eight on a scale of ten. He generally eschews
medication, but admitted to having recently taken a six-day
course of steroids, muscle relaxers and anti-inflammatories for
"temporary relief to keep [his] sanity." He testified he is
restricted and careful regarding his activities outside of work
"because [he] need[s] to work to pay the bills." There was no
evidence to suggest Hendrickson had ever suffered any injury
outside of work that would have contributed to his back
condition.
At trial, both Hendrickson's and UPS's experts agreed that
Hendrickson likely required additional surgery, they disagreed
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as to why. Relying on the operative notes of the spine surgeon,
Hendrickson's expert, Dr. Michael M. Cohen, testified the
surgeon observed significant disc disruption creating entrapment
and compression including inflammatory tissue effacing the route
consistent with evidence of acute and chronic inflammatory
changes, including annular disruption, degeneration, and
neurovascularization. In other words, Hendrickson's disc was
broken apart around the nerve, causing the body to react with
white blood cells, which caused the tissue to become inflamed
and likely caused the pain he experienced.
In Dr. Cohen's opinion, that injury was a result of the
stresses Hendrickson suffered as a feeder driver and shifter,
the vibration, compression and rotation of his discs from being
bounced around on bad roads in a truck with poor suspension and
the repetitive impact of backing his tractor into trailers in
the yard. In his view, Hendrickson's injuries were not the
natural progression of the trauma he suffered in 2002, but the
result of "a rather extreme form of repetitive occupational
stress," rapidly accelerating the degeneration of the discs in
Hendrickson's spine.
UPS's expert, Dr. Nirav Shah, disagreed. Dr. Shah
testified to his understanding that Hendrickson suffered an
injury to his back on April 16, 2014 from lifting packages at
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work.1 Upon examination, he found Hendrickson had subjective
limitations, but no significant deficits attributable to his
spine. After reviewing the 2013 and 2014 MRIs, Dr. Shah agreed
with Hendrickson's spine surgeon that they revealed herniations
at L3-L4, L4-L5 and "a little bit so at L5-S1" that may have
caused radiculopathy, an inflammation of the nerve root, making
him a surgical candidate. He concluded, however, that those
injuries were the result of chronic degenerative changes flowing
from the "2002 disability and injury that progressed naturally"
and not from repetitive occupational activity. In his opinion,
Hendrickson's job duties as a feeder driver and shifter had no
impact on the development of his current condition.
The compensation judge rejected the testimony of UPS's
expert. After summarizing the procedural history and testimony
presented, the judge began his findings with Hendrickson, who he
deemed
very credible. He appeared honest and
forthright in his responses. He never
attempted to hide or diminish the fact that
he did suffer previously work-related trauma
to the same area of his lumbar spine.
It is the court's belief that the
petitioner has been a faithful, hard working
and honest employee of UPS for 29 years.
Unlike many individuals in this day and age,
1
Hendrickson was at home on disability on that date, recovering
from his discectomy and neural decompression surgery.
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this petitioner believes in working through
the average ailments caused by stressful
work conditions. The court believed him
when he said that his 2006 transfer to
feeder and shifter driver worsened his back
condition due to the different types of
stresses he underwent there as opposed to
when he was a package car driver, and the
court also believes that he intended to work
as long as he could as he thought it was
just the right thing to do. The court was
very impressed with his testimony and found
him credible.
Turning to Hendrickson's expert, Dr. Cohen, the judge
stated he was
exceedingly impressed with Dr. Cohen. His
examination and history were very thorough.
He explained from a medical point of view
how the stresses which the human body
endures while driving a tractor trailer can
greatly exacerbate an underlying,
preexisting traumatic condition. The
doctor's explanations and conclusions just
made sense to the court, and the court
believes that the doctor has shown with
objective medical evidence that the
petitioner's occupational exposure worsened
to a material degree his preexisting
condition and is, in fact, the direct and
proximate cause for the petitioner's current
need for treatment.
Regarding UPS's expert, Dr. Shah, the judge stated he was
impressed with Dr. Shah as a physician. His
resume and history are undeniably
preeminent. As a witness, however, the
court was not impressed. This case alleged
an exposure between 2006 and 2013 and the
court observed that the doctor would not
answer questions directly regarding the
exposure period. Instead he would
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consistently talk about the 2013, 2014 MRI's
and their lack of findings. He seemed to
actively avoid the fact that there was a
surgical procedure in between these two MRIs
and that all the doctors now recognize that
the need for treatment due to, among other
things, nerve root compression which was not
mentioned at any time during the 2002 claim
or its reopener and not diagnosed until well
into the occupational exposure period.
Furthermore, the doctor mistakenly
believed at the time of his examination of
the petitioner that there was a 2014
accident. There was not.
This court was not impressed with the
doctor's testimony, and the court believes
that the doctor was merely defending a
position he was asked to defend to the point
of being evasive and nonresponsive to the
questions being asked. At one point, the
court implored the doctor to attempt to
decide the overall case without mentioning
the 2013, 2014 MRI's. The doctor could not
do this. For these reasons, the court does
not find Dr. Shah's testimony persuasive.
Applying the law to his factual findings, the judge
concluded that Hendrickson had
shown by a preponderance of the credible
evidence that the occupational activities he
engaged in with United Parcel Service from
2006 to 2013 accelerated and exacerbated his
preexisting lumbar condition.
Furthermore, the court finds that the
specific work as a feeder driver and a
shifter driver were of such a nature that
the stresses on Mr. Hendrickson's lumbar
spine were characteristic of and peculiar to
that type of employment.
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Beginning in 2006 and continuing until
2012, Mr. Hendrickson, as a feeder driver
for respondent, drove single-axle trucks
over roads ridden with potholes and
unevenness and under construction. Mr.
Hendrickson testified in detail as to the
constant bouncing around in the cab of his
truck. When Mr. Hendrickson's truck hit a
bump or a pothole or any other sort of road
imperfection, he would receive a "complete
shock" to his lower back, a feeling which he
likened to playing football and taking a
solid punch to the back. At times his body
would be bounced around so much that his
head would hit the ceiling of the cab.
Beginning in 2008 and continuing to the
present, Mr. Hendrickson has been a shifter
for respondent. He described what a rough
ride this was and how 75 times a day he
would have to back up and connect to a
trailer, which is commonly referred to as
hitting the pin, and that this sensation was
equivalent to getting hit in the back.
Outside of his employment it should be
noted Mr. Hendrickson has an exceptionally
sedentary life.
The court rejects in total respondent's
arguments that no objective evidence exists
to show a worsening and that his condition
is merely related to the 2002 claim. There
are new levels of disc involvement[,] nerve
root compression and all parties believe
that Mr. Hendrickson is now a candidate for
further treatment.
The court finds that Mr. Hendrickson's
job at UPS from 2006 to 2013 is the
overwhelming cause of his current medical
condition, and the court finds in favor of
the petitioner and grants his motion for
medical treatment.
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UPS appeals, contending Hendrickson's claim is barred by
the two-year statute of limitations for occupational claims,
that the "claim is barred by the holding in Peterson v. Hermann
Forwarding[2] regarding filing occupational claims subsequent to
accidental claims for overlapping injuries" and that the judge's
"factual and procedural errors" undermine the finding that
Hendrickson "proved he incurred a compensable occupation injury
for which he required treatment." We reject those arguments as
unpersuasive.
Although UPS claims the judge of compensation "failed to
properly apply the law" regarding the statute of limitations for
compensation claims and "the filing of an occupational claim
when a petitioner fails to timely 'reopen' a prior accidental
workers' compensation claim," it is plain its arguments are
premised entirely on its disagreements with the compensation
judge's fact findings. Those findings, however, are binding on
us because they have ample support in the record. See Sager v.
O.A. Peterson Constr., Co., 182 N.J. 156, 164 (2004). The
Supreme Court has commanded that "[d]eference must be accorded
the factual findings and legal determinations made by the Judge
of Compensation unless they are manifestly unsupported by or
2
Peterson v. Hermann Forwarding Co., 267 N.J. Super. 493 (App.
Div. 1993), certif. denied, 135 N.J. 304 (1994).
11 A-3267-15T2
inconsistent with competent relevant and reasonably credible
evidence as to offend the interests of justice." Lindquist v.
City of Jersey City Fire Dep't, 175 N.J. 244, 262 (2003)
(internal quotation marks omitted); see also Kovach v. Gen.
Motors Corp., 151 N.J. Super. 546, 549 (App. Div. 1978) ("It
must be kept in mind that judges of compensation are regarded as
experts.").
Here, there is no question but that the Judge of
Compensation properly understood the deadlines for filing a
compensation claim and a reopener. The judge did not
misunderstand the law. His ruling was premised on the facts he
found after evaluating the testimony. The timeliness of
Hendrickson's claim turned on whether his continued employment
at UPS, "merely cause[d] pain from pre-existing conditions to be
manifested" as in Peterson, supra, 267 N.J. Super. at 505, or
whether it resulted from "additional 'physical insult,' . . .
materially attributable to [his] job duties" as in Singletary v.
Wawa, 406 N.J. Super. 558, 568 (App. Div. 2009).
Based on Hendrickson's detailed testimony about the
different stresses to his back from the different jobs he held
at UPS, and Dr. Cohen's testimony linking Hendrickson's duties
as a feeder driver and shifter to the 2013 and 2014 MRIs and his
opinion that Hendrickson's need for treatment resulted from
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occupational exposure and not the 2002 injury, the judge
concluded "the overwhelming cause of [Hendrickson's] current
medical condition" was his work at UPS from 2006 to 2013, making
this case consistent with Singletary and unlike Peterson. The
judge expressly rejected Dr. Shah's view that Hendrickson's
current complaints and the 2013 and 2014 MRIs reflected the
natural progression of the 2002 injury, and thus the factual
basis for UPS's arguments that the claim was untimely.3 We find
no error in that conclusion based on the judge's assessment of
the evidence in the record.
We reject UPS's argument that factual errors in the judge's
rendition of the testimony undermines the deference ordinarily
due his findings. Our review of the testimony and the judge's
findings do not lead us to conclude the judge misread
Hendrickson's testimony or misunderstood the MRI findings. The
3
Even assuming a 2012 date as when Hendrickson collapsed at the
mall with pain and numbness in both legs as the date for accrual
of the claim, instead of the date of the 2013 MRI revealing new
herniation and substantial nerve root impingement at L3-4,
Hendrickson's April 15, 2014 petition would be timely. See Earl
v. Johnson & Johnson, 158 N.J. 155, 163 (1999) (noting "it is
possible to have a work-related health problem that is not
sufficiently debilitating to be compensable"). The judge
accepted Hendrickson's testimony acknowledging his back pain had
progressively worsened over the years, but that it was not until
the end of 2012 or 2013 when he sought treatment for new pain
and numbness greater than anything he had previously
experienced.
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judge's findings were "reasonably . . . reached on sufficient
credible evidence present in the whole record." Kozinsky v.
Edison Prods. Co., 222 N.J. Super. 530, 537 (App. Div. 1988).
UPS's remaining arguments, to the extent we have not addressed
them, lack sufficient merit to warrant discussion in a written
opinion. See R. 2:11-3(e)(1)(D) and (E).
Affirmed.
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