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Rezendes v. American Insulated Wire1/31/2005
DECISION OF THE APPELLATE DIVISION
These two (2) matters have been consolidated by the court on appeal in the same manner that they traveled together at the trial level. W.C.C. No. 02-07148 is an Employer's Petition to Review alleging that the employee has returned to work and is receiving wages of Five Hundred Twelve and 29/100 ($512.29) Dollars a week. The trial judge granted the employer's request to set an earnings capacity based upon those wages. The employee has appealed from that decision. After review of the record, we grant the employee's appeal and reverse the decision and decree of the trial judge.
W.C.C. No. 03-00265 is an Employee's Petition to Review requesting that the description of the employee's work-related injury in the Memorandum of Agreement be amended to include the back and right leg. The petition also alleges that the employee sustained a return or increase of incapacity beginning January 27, 2003 due to his work-related injuries. The trial judge granted the request to amend the description of the injury, but he found that the employee had failed to prove that he was disabled as of January 27, 2003 and that the employee's claim for weekly benefits was time barred. The employee duly filed a claim of appeal from this decision. After reviewing the record and considering the arguments of the parties, we deny the employee's appeal and affirm the decision and decree of the trial judge.
The employee sustained a work-related injury on July 23, 1988. A Memorandum of Agreement dated August 22, 1988 describes the injury as "tendonitis, left calf and thigh" and indicates that the employee was totally disabled as of August 7, 1988. Pursuant to a decree entered in W.C.C. No. 89-09213 on December 6, 1989, the employee's weekly benefits were modified from those for total incapacity to partial incapacity.
Mr. Rezendes testified that he began working for the employer in 1979. He was out of work after the 1988 injury until April 1991 when he accepted a light duty job as a security guard for the employer. On November 22, 2002, he was laid off and has not returned to work since that date. During the period he was working as a security guard, he was earning slightly less than his pre-injury average weekly wage and so he was paid a small amount of weekly workers' compensation benefits from the insurer. The employee asserted that he cannot return to his original job with the employer because it requires standing all day and lifting up to sixty (60) pounds, although he felt that he could still perform his former duties as a security guard. He indicated that in 1988 he sustained injuries to his right leg and back in addition to his left leg.
The deposition and records of Dr. Mehrdad M. Motamed were introduced into evidence. The records included reports of Dr. Manoel A. Falcao, who began treating the employee in November 1989. At that time, the employee told the doctor that at the time of the injury, he had low back pain radiating into his left leg. After about six (6) weeks, the left leg pain subsided, but he developed more severe pain radiating down his right leg. In his November 1989 report, Dr. Falcao stated that the employee's condition was due to the work injury and he was partially disabled.
Dr. Motamed began treating the employee sometime in 1995 after Dr. Falcao retired. The doctor's impression was that the employee suffered from a chronic lumbar strain with residual sciatic neuroradiculitis as well as a herniated disc at L5-S1 by MRI. He found that he was partially disabled and that the diagnosis and disability were caused by the injury at work. The employee has been treated conservatively with medication and periodic checkups.
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