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Colleen Fitzgerald filed a claim petition alleging that on April 26, 2010 she was walking down an alley as a zone merchandising supervisor for Walmart, when she suddenly felt a “pop” in her lower back. She admitted that she was simply walking at the time the incident occurred. However, prior to this popping incident she said she was doing some lifting at work. She experienced severe pain radiating into her buttocks and down her legs.
Fitzgerald reported the injury to her zone manager but she did not fill out an accident report at that time. She thought the pain would subside. The next day at work the pain was more severe, causing her leg to give out and requiring her to leave work. She saw her family doctor on April 29, 2010 who prescribed for her two medications and an MRI.
Fitzgerald took FMLA leave for the next 12 weeks. On May 13, 2010 the MRI was performed revealing protruding discs at L4-5 and L5-S1 with mild displacement of the right L5 and S1 nerve roots. Fitzgerald also saw a chiropractor in May 2010.
Fitzgerald attempted to return to work following her FMLA leave but still had pain. In June 2011, she sought additional care when her back pain increased after a coughing spell. She then took a second leave of absence while getting epidural injections.
In September 2011, Fitzgerald was involved in a non-work-related slip-and-fall in which she broke her elbow, requiring a third leave of absence. She did not return to work and her employment was terminated. However, her back treatment continued into December 2013.
Fitzgerald filed two claim petitions in April 2012: first, she argued that a traumatic accident occurred on April 26, 2010; second, she argued that her injuries were the result of occupational exposures from December 2008 until April 2010. In December 2013 she filed a motion for medical and temporary disability benefits. Petitioner testified in support of her motion as well as her medical and psychiatric experts. Respondent produced its orthopedic expert and offered the report of its psychiatrist in evidence.
Both experts agreed that petitioner had protruding discs at L4-5 and L5-S1 but they disagreed completely on causation. The Judge of Compensation ruled for Walmart and dismissed both petitions. Petitioner filed an appeal and the Appellate Division affirmed the dismissal of the cases. The Court reviewed prior case law for the requirement that petitioner prove her injury would not have occurred but for her employment.
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.
This case was handled successfully for Walmart by Lora Northen, Esq., partner with Capehart Scatchard, with assistance from Andrea Schlafer, Esq. on the legal briefs. The case underscores the rule that just because an event happens at work does not mean it is compensable. There are many health issues that occur during work but are not necessarily caused by work. Feeling pain in one’s joints or spine while walking is not work related unless work effort or work premises cause or contribute to the medical condition. This case can be found at Fitzgerald v. Walmart, A-1186-14T3 (App. Div. November 20, 2015).
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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.