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Buell v. Coca-Cola Enterprises3/31/2005
DECISION OF THE APPELLATE DIVISION
This matter is before the Appellate Division on the petitioner/employee's appeal from the decision and decree of the trial judge denying his original petition for workers' compensation benefits for a back injury. After careful review of the record and consideration of the arguments of the parties, we deny the employee's appeal and affirm the findings and orders of the trial judge.
The employee, a forty-eight (48) year old male, testified that he had been working almost seventeen (17) years for the respondent as a full service driver. His duties as a driver involved driving to stops on a specific route, checking what stock was needed for the vending machine at the stop, loading a hand truck with cases of soda and filling the machine. The cases of soda weighed about twenty (20) pounds each and he would load as many as ten (10) cases on the hand truck at a time. Occasionally, he would have to pull the loaded hand truck up or down sets of stairs to get to the machines.
He stated that he did not have any problems with his back prior to starting his employment with Coca-Cola. About fourteen (14) years ago, he injured his back for the first time when he lifted a case of soda off of the floor and felt his back pull. He was out of work for a few months and then returned to his regular job . The employee recalled that he probably injured his back about six (6) or seven (7) times at work. He explained that usually he was only out of work for about three (3) days and then he would return to a light duty job in the warehouse for a while before returning to his regular job. He also injured his back at least once at home.
The employee testified that throughout the summer of 2002 he experienced back pain that grew progressively worse. On Monday, November 4, 2002, he called his supervisor, David Motta, and informed him he would not be at work because his back was hurting and he was going to see his doctor. He stated that he was not any more specific than that on the telephone and had not suffered any recent specific trauma or injury at work or outside of work.
Mr. Buell had been treating with Dr. John T. Sotis, a chiropractic neurologist, since the early 1990's for his periodic back problems. On November 4, 2002, he saw Dr. Sotis and told him that he was in severe pain. An MRI was done one (1) week later which revealed degenerative disc disease from L2-3 to L5-S1 and possibly a small left lateral disc herniation at L2-3 displacing the exiting left nerve root at that level. The employee continued to treat with Dr. Sotis. At the time of the trial in 2003, he was seeing the doctor once a month. He continued to complain of low back pain and worsening radiation of pain down his right leg. He asserted that he had never had pain down his leg during any of his previous problems with his back.
The employee testified that he contacted Mr. Motta a day or two (2) later and told him he would be out of work for a bit and might need an MRI if it did not improve. He has had no conversation with Mr. Motta regarding his back since then and has not returned to work in any capacity. He collected Temporary Disability Insurance benefits and short term disability benefits from the employer until they ran out in May 2003 and he then applied for and was granted long- term disability benefits through the employer. Mr. Buell asserted that he cannot perform his duties as a driver because his back pain limits his ability to lift and riding in a vehicle tires him out.
On cross-examination, the employee acknowledged that he had applied for a management position as a route supervisor with the employer in September or October 2002. He admi
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