The NJ Court of Appeals, in an unreported decision, has upheld the compensability of a repetitive traumatic condition asserted by a United Parcel Service (UPS) truck driver who for 39 years drove vehicles with poor suspension and hitched trailers together at depots.
The Appellate Court rejected the defense of the statute of limitations asserted by UPS for pre-existing back conditions and its defense expert medical opinion relating the back condition to both pre-existing and unrelated conditions.
In NJ, it is well established that, “….The Court relies heavily upon the evidence presented in reaching decisions regarding back injuries. In reaching its determination to assess appropriate disability, the court must rely upon findings that have been reached based on sufficient credible evidence presented in the entire record.” Gelman, Jon L, NJ Workers’ Compensation Law, 38 NJ Prac. § 8.2.
The continued employment at UPS for 39 years and the daily trauma to his back, negated the defense of the statute of limitations. The Court stated, “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).”
Hendrickson v United Parcel Service, DOCKET NO. A-3267-15T2, N.J. App. Div. 2017, 2017 WL 2953709. Only the Westlaw citation is currently available. Decided July 11, 2017. “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.”
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Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (West-Thomson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thomson-Reuters).
For over 4 decades theLaw Offices of Jon L Gelman 1.973.696.7900 jon@gelmans.com has been representing injured workers and their families who have suffered occupational accidents and illnesses.
