Submitted by New Jersey Workers Compensation Lawyer, Jeffrey Hark.
Fitzgerald v. Walmart
Can you file a Workers Compensation case for suffering an injury of you are merely ‘walking down the hall way or aisle and you become injured. In other words, with no actual ‘acute trauma’, such as slipping on water, falling down a step, picking up a heavy object, while at work, can you file a claim of you suddenly are in pain? In this case the Appellate Division affirmed the dismissal of a Workers Compensation petitioner after a hearing took place in the Workers Compensation court. The court said NO! The positional risk test dictates that a) but for the job duties specifically, you would not have been injured and there has to be a medical causal relationship between the injury and the job duties. Walking down the aisle at Walmart and hearing your back “pop” is not enough!
The facts are relatively simple. Petitioner alleged on April 26, 2010, while working as a zone merchandising supervisor for respondent, Walmart, she was walking down an action alley when she suddenly felt a “pop” in her lower back. She was not engaged in any activity other than walking at the moment of the injury, though testimony revealed that at some time prior to the injury she was engaged in her everyday activities while on the job, which included lifting of some kind. In April 2012, petitioner filed two claim petitions with the Division of Workers’ Compensation, asserting alternative causes of injury. The first claim petition alleged petitioner sustained an injury in an accident suffered while working for respondent on April 26, 2010. The second claim petition alleged, in the alternative, that petitioner’s injury resulted from occupational exposure from her start date in December have been 2008, and that it was occupationally aggravated following the injury. Respondent filed answers to both petitions denying compensability of the claims. Petitioner’s medical expert diagnosed protruding discs at L4-L5 and L5-S1 with an annular tear at the S1 nerve root. He found her to be suffering from lumbar radiculopathy, lumbar and cervical fibromyositis syndrome, and cervical radiculopathy. He opined that petitioner’s physical condition was causally related to her employment with respondent. Respondent’s medical expert diagnosed petitioner with an annular tear and disc protrusion at L4-L5 and L5-S1, and opined that her physical condition or injury from the April 26, 2010 incident was not causally related to her employment with respondent. Petitioner and respondent both submitted psychiatric evaluations, suggesting that petitioner suffers from depressive disorder and other similar disorders, and that her injury was a contributing factor to her emotional condition.
The court provided the following specific discussion of the long standing case law and determined the workers compensation judge correctly applied the law to Ms. Fitzgerald’s facts and ruled that her ‘injury’ suffered (either acute or occupational) was not one related to her employment, and there was no causal relationship between the alleged injury and the mechanics of what she testified to regarding the circumstances surrounding how she came to be injured.
In reaching his decision, the judge engaged in an extensive discussion of the underlying facts and his findings were well- reasoned, supported by the credible evidence in the record, and were not “so wide off the mark as to be manifestly mistaken.” Tlumac v. High Bridge Stone, 187 N.J. 567, 573 (2006). Moreover, the judge properly engaged in an analysis of the two-step test for determining whether the injury arose out of the course of employment, known as the “positional risk test,” set forth in Sexton v. County of Cumberland/Cumberland Manor, 404 N.J. Super. 542, 549-50 (App. Div. 2009) (citing Coleman v. Cycle Transformer Corp., 105 N.J. 285, 290 (1986)).3 In the first step of the positional risk test, a court must determine whether “but for” the fact of employment, the injury would not have happened. Sexton, supra, 404 N.J. Super. at 553 (citing Howard v. Hardwood’s Rest. Co., 25 N.J. 72, 83 (1957)). Next, a court must analyze the “nature of the risk” that caused the injury. Sexton, supra, 404 N.J. Super. at 553; Coleman, supra, 105 N.J. at 291; Howard, supra, 25 N.J. at 85 (“Thus establishing the positional relation of the employment to the injury we must next determine the nature of the risk involved.”).
Applying the test, the judge concluded the petitioner failed to satisfy the first step of the test, in part because “[t]he facts here do not establish that the petitioner would not have been exposed to the risk if she had not been at work.” An appellate court must give “due regard to the opportunity of the one who heard the witnesses to judge of their credibility” and owes deference to the judge’s expertise in workers’ compensation issues. Close, supra, 44 N.J. at 599 (citation omitted).
3 It is undisputed that petitioner’s injury arose during or “in the course of” petitioner’s employment. Thus, the relevant inquiry was whether the injury arose “out of” the course of, or because of, petitioner’s employment. See N.J.S.A. 34:15-7; Seiken v. Todd Dry Dock, 2 N.J. 469, 474-75 (1949) (citation omitted).
For more information on this case, see our post here: