Opinion
DOCKET NO. A-1013-13T2
04-08-2015
THOMAS AMEDEO, Petitioner-Appellant, v. UNITED PARCEL SERVICE, Respondent-Respondent.
Law Offices of Robert A. Olkowitz, P.C., attorneys for appellant (Mr. Olkowitz, on the brief). Freeman, Huber, Sacks, Brennan & Fingerman, attorneys for respondent (Deborah C. Brennan, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hayden and Sumners. On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition No. 2010-14502. Law Offices of Robert A. Olkowitz, P.C., attorneys for appellant (Mr. Olkowitz, on the brief). Freeman, Huber, Sacks, Brennan & Fingerman, attorneys for respondent (Deborah C. Brennan, of counsel and on the brief). PER CURIAM
Petitioner Thomas Amedeo appeals from the October 4, 2013 order of the Department of Labor and Workforce Development, Division of Workers' Compensation, dismissing without prejudice his motion for medical treatment and temporary benefits. For the reasons that follow, we affirm.
The record establishes that petitioner suffered a work-related injury in 2009 while employed by respondent United Parcel Service. Thereafter, petitioner filed a claim for workers' compensation benefits under the Workers' Compensation Act, N.J.S.A. 34:15-1 to -127. Pursuant to a June 2012 settlement agreement, petitioner was found to be "disabled to the extent of 30% of partial total" for residuals from the injuries to his right hip and lower back. In October 2012, petitioner filed an application for review or modification of the settlement award and submitted a request that respondent assign an orthopedist to treat him for a degenerative hip condition.
Respondent's expert, Dr. Joseph Corona, an orthopedic surgeon, evaluated petitioner on May 1, 2013. Dr. Corona found that petitioner was at maximum medical improvement and that there was no increase in the extent of his permanent injuries. As such, Dr. Corona opined that there was no need for further treatment. A week later, after reviewing surveillance information respondent obtained in March 2013, Dr. Corona issued a second report, which largely mirrored his first report.
While the motion for modification was pending, petitioner's attorney asked for adjournments or failed to appear several times. Hence, the motion, which was originally listed for a hearing on December 14, 2012, was rescheduled multiple times. In response to these delays, respondent filed a motion to dismiss for lack of prosecution on July 15, 2013. Petitioner filed a letter in opposition to the motion.
On September 9, 2013, petitioner filed a motion for medical and temporary disability benefits based on an August 23, 2013 report by petitioner's expert, Dr. Frederic Brustein. Respondent opposed the motion based on the May 2013 reports of Dr. Corona.
The case was scheduled for a hearing on October 4, 2013. In denying petitioner's attorney's request for an adjournment, the judge of compensation stated that the October 4 hearing would proceed as a motion to dismiss based on the "attorney's failure to appear on several occasions[,]" but that she would also discuss petitioner's motion. Respondent and an attorney covering for petitioner's attorney were present at the hearing, but petitioner was not. The judge dismissed without prejudice petitioner's motion for medical and temporary benefits due to insufficient medical proofs. The record does not reveal how the judge disposed of the motion to dismiss the pending modification petition. Petitioner appealed.
No transcript of the hearing exists.
The dismissal of the motion without prejudice did not dispose of all issues as to the parties and clearly was interlocutory in nature. See Grow Co., Inc. v. Chokshi, 403 N.J. Super. 443, 450, 457-58 (App. Div. 2008); see also Kwiatkowski v. Gruber, 390 N.J. Super. 235, 236 (App. Div. 2007) (finding that a dismissal of the complaint without prejudice was not a final order). Petitioner failed to seek leave to appeal. See R. 2:2-4. Notwithstanding our firm commitment to the fair application of the Rules, which ordinarily would result in the dismissal of this appeal, see Vitanza v. James, 397 N.J. Super. 516, 519 (App. Div. 2008), the interest of justice will be furthered by a prompt disposition of the matter. R. 2:2-4. Accordingly, we sua sponte grant defendant leave to appeal as within time and will decide the issues presented.
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Subsequently, the judge of compensation filed a written statement of reasons pursuant to R. 2:5-1(b). In her November 7, 2013 written statement of reasons, the judge rejected the notion that she had already determined that petitioner's moving papers warranted an evidentiary hearing. Rather, upon her initial review, she determined the papers to be insufficient and informed petitioner's attorney at the scheduled hearing. The judge also observed that because petitioner was not at the hearing, no testimony could have been taken from him.
The judge of compensation explained that she dismissed petitioner's motion for medical treatment and benefits without prejudice because "the moving papers . . . did not meet the requirements of [N.J.A.C.] 12:235-3.2(b)2." The judge reasoned that Dr. Brustein's report failed to "state the specific type of treatment being sought as required by the [regulation]." Absent a "precise description of the type of medical treatment . . . opine[d] to be necessary[,]" the judge concluded, petitioner could not establish a prima facie basis for the relief sought.
In particular, the judge of compensation noted that Dr. Brustein was not an orthopedic surgeon but practiced internal medicine and physiatry, and that he "had no intention to treat the petitioner" because any proposed treatment to the injured areas would be outside of "his area of expertise." Rather, the judge found that Dr. Brustein's report merely suggested that petitioner seek out other specialists such as a "university affiliated orthopedist" specializing in hips, a spinal orthopedist, and a pain management specialist. The judge of compensation reasoned that N.J.A.C. 12:235-3.2(b)(2) was designed to eliminate non-specific reports such as Dr. Brustein's by requiring applicants to obtain precise and detailed opinions by appropriate experts. The judge asserted that she denied petitioner's motion for medical treatment and benefits without prejudice in order to give petitioner's attorney the opportunity to submit sufficient support for his pleadings.
On appeal, petitioner argues that the judge of compensation abused her discretion by dismissing his motion. Petitioner contends that the judge reviewed his papers, found that they were sufficient to warrant a hearing, and then inexplicably changed her mind by stating that there were insufficient proofs. Petitioner also contends that the judge ordered respondent to file a motion to dismiss due to petitioner's attorney's numerous adjournments and nonappearances. Based on these allegations, petitioner asserts that the judge must be removed from the case and her order reversed. Petitioner also requests that his motion be remanded for an immediate hearing because the judge of compensation denied the motion without any explanation. We find these arguments unpersuasive.
We begin with a review of the well-established legal principles that guide our analysis. In workers' compensation cases, our scope of review is limited to "whether the findings made could reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole[.]" Lindquist v. City of Jersey City Fire Dep't, 175 N.J. 244, 262 (2003) (internal quotation marks and citations omitted). Judges of compensation are regarded to be "expert[s] with respect to weighing the testimony of competing medical experts and appraising the validity of [the petitioner's] compensation claim." Ramos v. M & F Fashions, Inc., 154 N.J. 583, 598 (1998). We accord deference to the judge's factual findings and legal determinations unless they are "'manifestly unsupported by or inconsistent with competent relevant and reasonably credible evidence as to offend the interests of justice.'" Lindquist, supra, 175 N.J. at 262 (quoting Perez v. Monmouth Cable Vision, 278 N.J. Super. 275, 282 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995)).
N.J.A.C. 12:235-3.2(a) provides that "[m]otions for temporary disability and/or medical benefits shall evidence that petitioner is . . . in need of current medical treatment." In support of the motion, "[a]ffidavits or certifications made on personal knowledge by the petitioner or the petitioner's attorney, as well as the report(s) of a physician(s) stating the medical diagnosis and the specific type of diagnostic study, referral to specialist, or treatment being sought" shall be submitted. N.J.A.C. 12:235-3.2(b)(2) (emphasis added). Such "[a]ffidavits, certifications and medical reports . . . may constitute a prima facie case . . . unless respondent files supporting affidavits or certifications to oppose said motion on a legal or factual basis, or files medical reports if there is a medical basis to oppose said motion." N.J.A.C. 12:235-3.2(f).
Here, we agree with the judge of compensation that petitioner failed to provide evidence adequate to present a prima facie case in support of his motion. Specifically, Dr. Brustein's report did not recommend a definite course of treatment, state that petitioner needed a particular medical treatment, or sufficiently support a referral to a specialist. Rather, Dr. Brustein's report "merely suggested several options for other specialist[s] to try[.]" These suggestions are not sufficient to satisfy the regulation, which requires specificity in order for the compensation judge to evaluate "and apprais[e] the validity" of such motions. Ramos, supra, 154 N.J. at 598. Moreover, because such an evaluation relied on the expertise of the judge of compensation, we accord deference to the judge's determination. See Perez v. Capitol Ornamental, Concrete Specialties, Inc., 288 N.J. Super. 359, 367 (App. Div. 1996). The judge of compensation's decision to deny petitioner's motion for medical treatment and benefits was supported by adequate credible evidence in the record and does not offend the interests of justice. See Lindquist, supra, 175 N.J. at 262.
Petitioner's claim that the case must be assigned to another judge of compensation is completely unsupported by the record and without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION