Opinion
DOCKET NO. A-4399-09T4
08-31-2011
WINDALE SIMPSON, Petitioner-Appellant, v. ALCOA KAMA CORP., Respondent-Respondent.
Windale Simpson, appellant pro se. Biancamano & DiStefano, P.C., attorneys for respondent (James Passantino, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Espinosa and Roe.
On appeal from the Department of Labor, Division of Worker's Compensation, Claim Petition No. 2008-18157.
Windale Simpson, appellant pro se.
Biancamano & DiStefano, P.C., attorneys for respondent (James Passantino, on the brief). PER CURIAM
Petitioner Windale Simpson appeals from the dismissal of his workers compensation claim petition. We affirm.
Petitioner was employed by respondent Alcoa Kama Corp. on January 20, 2008, the date of his claimed injury. He filed a claim petition on July 2, 2008, in which he alleged he sustained injuries to his left shoulder, low back and left leg during the course of his employment. He also filed a motion, seeking to have respondent provide him temporary and/or medical benefits. Respondent filed an answer, denying petitioner's allegations. The parties agreed to a bifurcation of petitioner's motion, first proceeding with a hearing limited to the question whether petitioner had suffered a compensable injury.
At the hearing, the parties stipulated to the petitioner's compensation and that respondent provided him with medical treatment and temporary disability benefits from January 21 through March 23, 2008, without an admission of liability.
Petitioner testified that he had worked for respondent for approximately four months as of January 20, 2008, and was working as an extrusion packer that day. He explained that this work entails monitoring, unloading and loading a two hundred pound "spindle-type thing so that raw plastic can be spun onto these rolls and then taken off to be shipped to other companies[.]" A mechanical device, requiring two people, is "supposed to" assist in the lifting. He punched in at approximately 7:55 a.m. and said the accident occurred between that time and 1:00 p.m., when he realized his back was sore and stiff. The main stiffness was in his lower back. He did not recall any specific event that morning which caused this stiffness. Asked what he attributed the injury to, petitioner stated:
I attributed to I'd been off for what we call a long weekend. We work 12 hour shifts, four days on, three days off, three days on and four days off, again I said 12 hours. That was what we call a long weekend. So I attributed to the fact that I was on a long weekend or long day off, that this was the first day back that I was just stiff from, you know, not doing this for four days.He did not report the injury to anyone that day and completed his twelve hour shift.
The next morning, petitioner was stiff. He could not get out of bed and his "back was like totally spas'ing." He had pain in his lower back and his left shoulder between the shoulder blade and his neck. However, he went to work because he was short on sick days. He again punched in at about 8:00 a.m.
Petitioner told Jose Contreras, the lead operator, that he hurt his back the night before and could not perform his normal tasks. He asked if he could work on the computer instead. Jose told him they could not give him an alternative work assignment because of seniority and union concerns. Doug Griswold, the plant manager, overheard this conversation and called petitioner into his office. Griswold wanted to know what had happened. Petitioner said, "I'm not sure, it could have been from when I was taking off the heavy rolls or responding to a tear in refeeding the machine." Griswold referred petitioner to Bruce Gandarillas, Human Resource Manager, who told petitioner to go to his personal physician and get a note saying when he would be eligible to return to work. Petitioner left work by 9:00 a.m.
Griswold testified that when he questioned him, petitioner said he woke up with a sore, stiff back and repeatedly stated he did not know how or where it happened. Bruce Ganderillas also testified that petitioner never advised him of a work-related injury. Ganderillas stated that if petitioner had done so, he would have referred him to their authorized medical provider rather than telling him to see his personal physician.
Griswold spoke to petitioner again in February 2008, when he called to complain that he was not getting any disability checks. Once again, petitioner stated he did not know how his injury occurred. Griswold told petitioner that they were "not calling this a Workers' Compensation case[,]" that they had not written an incident report for it, but said they were willing to turn it over to their workers' compensation carrier.
The workers compensation judge did not find petitioner to be credible. The claim petition alleged an injury to petitioner's left shoulder, low back and left leg that occurred while lifting and pushing. The workers compensation judge noted deficiencies in petitioner's testimony to support this allegation:
He did not testify that he injured his back while lifting and pushing. He did not testify as to any injuries to his left shoulder or left leg. On direct examination, petitioner testified he cannot pinpoint the exact activity he was doing that caused him to injure his back on the date of the alleged accident, but his back became stiff around lunchtime and attributed this to the fact that he had been off from work the previous four days. Petitioner testified that on the day of the alleged injury, he did not notify the respondent of his injury, he did not seek any medical treatment, he continued to work and then went home at the end of the day and went to bed. Upon questioning by the court, petitioner again testified that he cannot pinpoint the exact activity he was doing when he injured his back.
Concluding that petitioner's claim he suffered an accident arising out of and in the course of his employment was without merit, the workers compensation judge dismissed his petition with prejudice and denied his motion for temporary and/or medical benefits.
Petitioner argues that this decision was fundamentally unfair. We disagree.
Our review of the workers compensation judge's decision is limited to
whether the findings made could reasonably have been reached on sufficient credible evidence present in the record, considering
the proofs as a whole, with due regard to the opportunity of the one who heard the witnesses to judge of their credibility and, in the case of agency review, with due regard also to the agency's expertise where such expertise is a pertinent factor.
[Sager v. O.A. Peterson Constr., Co., 182 N.J. 156, 163-64 (2004) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (citation and internal quotation marks omitted).]
Petitioner bore the burden of proving that his injury arose out of his employment and was therefore compensable under the Workers Compensation Act, N.J.S.A. 34:15-1 to -128, by establishing a causal connection between the employment and the accident. Coleman v. Cycle Transformer Corp., 105 N.J. 285, 290 (1986); Acikgoz v. N.J. Tpk Auth., 398 N.J. Super. 79, 87 (App. Div.), certif. denied, 195 N.J. 418 (2008). We are satisfied that, giving appropriate deference to the workers' compensation judge's opportunity to assess credibility and his expertise in the area, there was sufficient credible evidence to support his decision and we affirm, substantially for the reasons set forth in his opinion.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
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CLERK OF THE APPELLATE DIVISION