Appeal Argued by Lora V. Northen, Esq.

Briefed by Andrea L. Schlafer, Esq.

Just because an incident occurs at work does not mean that it is compensable.  In fact, there are many health issues that manifest during work that are not necessarily caused by work.  In Fitzgerald v. Walmart, the Appellate Division recently affirmed the decision of the trail court finding the petitioner’s claim to be unrelated to work.

Ms. Fitzgerald, a zone merchandising supervisor at Walmart, filed a claim petition alleging that on April 26, 2010 she was walking down a store aisle when she felt a “pop” in her back.  This “pop” accompanied severe pain radiating down her legs.  Although she testified at trial that she was only walking at the time of the incident, she also testified that prior to the incident she was doing some lifting at work.

The petitioner reported the injury to her manager, but did not fill out an accident report as she believed the pain would subside. She returned to work the following day, but left early to see her family doctor when the pain became more severe and her leg gave out.

Ms. Fitzgerald then took FMLA leave for 12 weeks.  During this period an MRI was performed that showed multiple disc protrusions in the lumbar spine.  She was also treated by a chiropractor.  Ms. Fitzgerald returned to work following her FMLA leave but her pain did not subside.  In June of 2011 she sought additional medical treatment when her back pain increased following a coughing spell.  She subsequently took a second leave of absence and received additional treatment including epidural injections.  Three months later in September of 2011 Ms. Fitzgerald was involved in a non-work-related slip-and-fall that required a third leave of absence.  She did not return to work following the leave of absence and her employment was terminated.  Despite her termination she continued receiving medical treatment through December of 2013.

Ms. Fitzgerald filed a pair of Claim Petitions.  In the first, she claimed that a traumatic accident occurred on April 26, 2010.  In the second, she claimed her injuries were the result of occupational exposures from December of 2008 through April of 2010.

In December of 2013 Ms. Fitzgerald filed a motion for medical and temporary benefits.  The ensuing trial centered on the issue of causation.  Ms. Fitzgerald’s motion was supported by her own testimony as well as the testimony of her medical and psychiatric experts.  Respondent relied upon the expert testimony of its orthopedic expert as well as the report of its psychiatrist.  After weighing the evidence at trial the Judge of Compensation dismissed both claim petitions.  Ms. Fitzgerald appealed the decision.  The Appellate Division affirmed the dismissal of both cases citing the requirement that petitioner prove her injury would not have occurred but for her employment.

In affirming the decision, the Appellate Division concluded that ‘[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.’  The decision also noted that the 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.

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