Second employer escapes liability for finisher's spinal injury

In New Jersey, when a worker suffered only one compensable incident while working for a first employer but continued to experience pain while working for a second employer, only the first employer is liable for his disability.

Case name: Allison v. L&J Contracting Co. Inc., No. A-1352-11T4 (N.J. Super. Ct. App. Div. 09/27/12).

Ruling: The New Jersey Superior Court, Appellate Division held that a worker's first employer was liable for benefits and his second employer was not liable.

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What it means: In New Jersey, when a worker suffered only one compensable incident while working for a first employer but continued to experience pain while working for a second employer, only the first employer is liable for his disability.

Summary: A tile finisher for a construction company injured his lumbar spine when he fell into a hole at work. His position involved frequent bending and lifting of heavy bags weighing up to 100 pounds. He continued to experience pain but went back to work for a second employer. He claimed that he was injured twice while working for the second employer. He did not report the incidents to the employer or seek treatment. He said that he considered his symptoms a "flare up" of the previous injury. He sought workers' compensation benefits. The first employer claimed that the second employer should be liable for benefits. The New Jersey Superior Court, Appellate Division dismissed the claim against the second employer and held that the first employer was liable for all of the finisher's benefits.

The court found that the finisher's disability was attributable to the accident he sustained while working for the first employer, and not due to the incidents that occurred while he was working for the second employer. The incidents while he was working for the second employer were "repetitive occupational activities" rather than accidents or traumatic events. The court pointed out that after the incident while working for the first employer, the finisher continued to suffer pain and regularly used pain medication. The finisher's physician wrote that he never fully recovered from the first incident. The physician also consistently failed to attribute his symptoms to a new accident until the first employer inquired as to whether he sustained a new injury.

The court pointed out that this case did not involve an occupational injury that existed over time without objective manifestation. Rather, this case involved a "fixed and determinable" traumatic injury.

Read more at the WorkersComp Forum homepage.

January 3, 2013

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