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Kevin Durnien worked as a tractor-trailer driver for United Parcel Service (UPS) from 1996 to 2008. He was diagnosed with Parkinson’s disease in 2003 but continued to drive for UPS for several years.
On October 25, 2007, Durnien was injured when he fell on his elbow while making a warehouse pickup. He injured his rotator cuff and underwent arthroscopic surgery on his shoulder. The case was accepted and benefits were paid.
Several weeks after his surgery, Durnien noticed that his Parkinson’s disease was getting worse: he was experiencing tremors and his medication was increased.
Durnien filed a claim petition against UPS on December 5, 2007 for his shoulder injury. On April 6, 2009, he applied for Second Injury Fund benefits claiming he was totally disabled as a result of a combination of a work injury and a preexisting Parkinson’s condition. Durnien was separated from his employment in October 2008.
The matter was tried before the Chief Judge of Compensation, the Honorable Peter J. Calderone. Four experts testified in the case, two for each side. The Chief Judge found that the work injury did not materially worsen petitioner’s Parkinson’s disease, nor was petitioner entitled to Second Injury Fund benefits. However, he did award petitioner 20% permanent partial disability for the shoulder. Petitioner appealed.
The Appellate Division first focused on the issue of whether the work accident materially worsened petitioner’s Parkinson’s disease. The Court noted that Judge Calderone rejected the testimony of petitioner’s neurologist, Dr. Bereanu, because she was “not a credible witness [and was] ill prepared for her testimony which was essentially a repetitive without foundation assertion that the work accident somehow aggravated petitioner’s Parkinson’s Disease in some non-measurable way.”
In respect to respondent’s neurologist, Dr. Steven Mandel, the Court observed that the Chief Judge found his testimony to be sound in stating that the Parkinson’s condition was not aggravated by the work accident. The Chief Judge was impressed as well that Dr. Mandel actively treats patients with Parkinson’s disease.
In regard to the entitlement to Second Injury Fund benefits, the Court again affirmed the Chief Judge because the claimant, following his separation from employment in 2008, actually applied for unemployment benefits. As the Court said, one must be able to work and be available for work to obtain unemployment benefits underN.J.S.A. 43:21-4 (c) (1). In essence, the petitioner’s application for unemployment benefits was inconsistent with his contention that he was totally disabled, which is a requirement for Second Injury Fund eligibility.
The Court also agreed with the Chief Judge that an independent reason to reject the Second Injury Fund claim was that petitioner’s Parkinsons’s condition progressed AFTER the work injury. The statute precludes Fund benefits“[i]f a person who is rendered permanently partially disabled by the last compensable injury subsequently becomes permanently totally disabled by reason of progressive physical deterioration or preexisting condition or disease.” N.J.S.A. 34:15-95 (d).
While it was true that the Parkinson’s condition preexisted the work injury, petitioner had been able to work and had been certified for a CDL license. The condition apparently worsened after the work accident for reasons unconnected to the accident. The Court said, “Although Durnien’s physician would not certify him for a CDL, Durnien testified that he was capable of continuing to work at UPS and sought a position that did not require a CDL. He failed to obtain a lighter-duty job not because of a disability, but due to his lack of seniority.”
This case illustrates several important points. First and foremost, practitioners need to spend time choosing the right expert witness. In this case, UPS made a wise choice in selecting its expert because he was well qualified and treated patients with Parkinson’s disease. Secondly, Second Injury Fund eligibility depends on preexisting conditions and will not be available to those whose prior condition worsens after the work injury and only then become totally disabled. Lastly, the case illustrates that an expert’s testimony must contain more than just a bald assertion that a given condition is work related. The Chief Judge rejected the expert opinion of the petitioner’s neurologist because there was no scientific foundation for it.