Opinion
DOCKET NO. A-4095-14T1 DOCKET NO. A-4096-14T1
01-26-2017
DAVID S. MCLAUGHLIN, Petitioner-Appellant, v. ACTIVE DISPOSAL SERVICE, INC., and SECOND INJURY FUND, Respondents-Respondents.
Robert J. Ferb argued the cause for appellant. John J. Jasieniecki argued the cause for the respondent Active Disposal Service, Inc. (Green, Jasieniecki & Riordan, LLC, attorneys; Mr. Jasieniecki, of counsel and on the brief). Linda Schober, Deputy Attorney General, argued the cause for the respondent Second Injury Fund (Christopher S. Porrino, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Linda A. Lockard-Phillips, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Ostrer and Vernoia. On appeal from the Division of Workers' Compensation, Department of Labor and Workforce Development, Claim Petition Nos. 2000-26956 and 2001-14156. Robert J. Ferb argued the cause for appellant. John J. Jasieniecki argued the cause for the respondent Active Disposal Service, Inc. (Green, Jasieniecki & Riordan, LLC, attorneys; Mr. Jasieniecki, of counsel and on the brief). Linda Schober, Deputy Attorney General, argued the cause for the respondent Second Injury Fund (Christopher S. Porrino, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Linda A. Lockard-Phillips, Deputy Attorney General, on the brief). PER CURIAM
In these two appeals, which were argued back-to-back and consolidated for purposes of this opinion, petitioner David S. McLaughlin challenges two April 1, 2015 orders entered by the Division of Workers' Compensation (Division) dismissing with prejudice his claim petitions for review and modification of two prior claims awards and for Second Injury Fund benefits. We affirm.
I.
The evidence adduced during petitioner's hearing showed petitioner had a history of lower back and neck problems, and underwent surgeries in 1993 and 1995. In 1999 petitioner received an award (1999 award) as the result of injuries he sustained to his left leg during a work-related accident that occurred that year.
In 2000, petitioner suffered back injuries as the result of a second work-related accident, filed a petition for workers' compensation benefits, and received an award (2000 award) based on findings he suffered lumbosacral and cervical injuries resulting in a partial total disability.
In 2005, petitioner suffered injuries to his right arm as a result of a third work-related accident and filed a petition (2005 claim) for benefits. In 2006, petitioner filed an application to modify the 1999 and 2000 awards, claiming an increase in his permanent disability to his left leg and lumbar and cervical spines. In 2008, he filed an application for Second Injury Fund benefits claiming his last compensable accident resulted in a total disability.
Petitioner's three applications were the subject of a trial before a workers' compensation judge. Various medical records related to petitioner's injuries and treatment were admitted into evidence. The judge also heard testimony from petitioner, and his medical experts Dr. Vijaykumer Kulkarni and Dr. Cheryl Wong. Respondent Active Disposal Service Inc. presented testimony from Dr. Robert Morrison. Following the hearing, the judge issued a detailed written decision concluding petitioner failed to sustain his burden of establishing an entitlement to a modification of the 1999 and 2000 awards or to Second Injury Fund benefits.
The judge awarded benefits on petitioner's 2005 claim. Neither petitioner nor respondent appealed the award. --------
The judge first found petitioner was not entitled to Second Injury Fund benefits because petitioner "became totally disabled as a result of his diabetic condition, not his lumbar, cervical, left knee or right elbow injuries." The judge found petitioner's testimony showed he removed himself from the workforce due to his uncontrolled diabetes. The judge noted petitioner was unable to continue working because he took insulin for his diabetes, and the taking of insulin barred his use of the commercial driver's license that was essential to the performance of his job duties. The judge found petitioner's claim he was totally disabled and unable to return to work due to his claimed lumbar radiculopathy was not supported by the testimony of petitioner's treating physicians, and "[t]he MRIs revealed no changes in his spine."
The judge rejected petitioner's application to reopen the 1999 and 2000 awards based on his finding there was no credible evidence petitioner suffered from an "increase in permanent disability to either [his] left leg, [or] the cervical or lumbar spines . . . ." The judge found the evidence showed that following the 1999 and 2000 awards, petitioner suffered from "numerous medical conditions including osteoarthritis, rheumatoid arthritis and peripheral neuropathy" and that petitioner's "current complaints are related to those conditions," and not an increase in permanent disability from the injuries underlying his 1999 and 2000 awards.
The judge entered orders denying petitioner's application for modification of the 1999 and 2000 awards, and for Second Injury Fund benefits. This appeal followed.
II.
"[T]he scope of appellate review of factual findings by a judge of compensation is limited." Renner v. AT&T, 218 N.J. 435, 448 (2014) (citing Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). "The question for a court is 'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole, with due regard to the opportunity of the one who heard the witnesses to judge of their credibility.'" Hobson v. N.J. State Parole Bd., 435 N.J. Super. 377, 388 (App. Div. 2014) (quoting Close, supra, 44 N.J. at 599).
We defer to the expertise of a workers' compensation judge in assessing the disability of an employee, "so long as the judge's findings are supported by articulated reasons grounded in the evidence" in the record. Perez v. Capitol Ornamental Concrete Specialties, Inc., 288 N.J. Super. 359, 367 (App. Div. 1996) (citing Lewicki v. New Jersey Art Foundry, 88 N.J. 75, 88-90 (1981)). Worker's compensation judges are considered experts with respect to weighing the testimony of competing medical experts and appraising the validity of compensation claims. Ramos v. M & F Fashions, Inc., 154 N.J. 583, 598 (1998). However, "[a] decision without proper factual findings and a reasoned explanation of the ultimate result 'does not satisfy the requirements of the adjudicatory process'" and is not entitled deference. Colon v. Coordinated Transp., Inc., 141 N.J. 1, 11 (1995) (quoting Lister v. J.B. Eurell Co., 234 N.J. Super. 64, 73 (App. Div. 1989)).
Petitioner claims the Division erred by denying his application for a modification of the 1999 and 2000 awards. The Workers' Compensation Act, N.J.S.A. 34:15-1 to -128, permits an award to be reviewed and modified. N.J.S.A. 34:15-27 provides in pertinent part the following:
An agreement for compensation may be modified at any time by a subsequent agreement. Upon the application of any party, a formal award, determination, judgment, or order approving settlement may be reviewed within two years from the date when the injured person last received a payment on the ground that the incapacity of the injured employee has subsequently increased.Thus, once awarded partial disability benefits, a petitioner may subsequently apply to have the award reopened and modified if the compensable condition worsens. See, e.g., Milos v. Exxon Co., USA, 281 N.J. Super. 194, 197 (App. Div.), aff'd o.b., 143 N.J. 333 (1996).
A worker seeking benefits based upon increased incapacity bears the "burden of proving by a preponderance of the evidence not only the fact of increase but also that it is causally related to the original accident and resulting injury." Schiffres v. Kittatinny Lodge, Inc., 39 N.J. 139, 148-49 (1963). Proof of increased disability must be based upon "demonstrable objective medical evidence," and not solely on the "petitioner's subjective complaints." Perez v. Pantasote, Inc., 95 N.J. 105, 116 (1984).
Petitioner argues the judge's rejection of his requests for modifications of the 1999 and 2000 awards is not supported by credible evidence. To be sure, the judge was presented with voluminous and conflicting testimony and evidence concerning the injuries which were the subject of the awards and their alleged progression. Based on careful review of the record, however, we are convinced there is sufficient credible evidence supporting the judge's determination there was no increase in permanent disability to petitioner's left leg, for which he received the 1999 award, or to his lumbar or cervical spines, for which he received the 2000 award. "[G]iving due weight to the judge['s] . . . expertise and opportunity to view the witnesses and evidence," there is sufficient credible evidence supporting the judge's determination. Zabita v. Chatham Shop Rite Inc., 208 N.J. Super. 215, 221 (App. Div. 1986). We therefore affirm the Division's denial of petitioner's applications to modify the awards. Perez, supra, 288 N.J. Super. at 367.
For the same reason, we affirm the Division's denial of petitioner's application for Second Injury Fund benefits. The Second Injury Fund statute, N.J.S.A. 34:15-94 to -95.5, provides for an annual surcharge upon all policyholders and self-insured employers for the purpose of providing moneys to the Second Injury Fund. N.J.S.A. 34:15-95 provides in pertinent part that compensation payments shall be made from the Second Injury Fund:
to persons totally disabled, as a result of experiencing a subsequent permanent injury under conditions entitling such persons to compensation therefor, when such persons had previously been permanently and partially disabled from some other cause . . . provided further, however, that no person shall be eligible to receive payments from the Second Injury Fund:
(a) If the disability resulting from the injury caused by the person's last compensable accident in itself and irrespective of any previous condition or disability constitutes total and permanent disability within the meaning of this Title.
(b) (Deleted by amendment.)
(c) If the disease or condition existing prior to the last compensable accident is progressive and by reason of such progression subsequent to the last compensable accident renders the person totally disabled within the meaning of this Title.
The burden of proving eligibility for the receipt of Second Injury Fund benefits is on the petitioner. Lewicki, supra, 88 N.J. at 84. "[T]he Fund is liable when a partially permanently disabled worker becomes totally and permanently disabled as a result of a work-connected accident or occupational illness that, in combination with the preexisting physical impairment, results in permanent total disability." Id. at 83.
Here, the judge found defendant became totally disabled but not as the result of a work-connected action or occupational illness. The judge determined defendant "became totally disabled as a result of his diabetic condition." Thus, petitioner did not satisfy his burden of proving an entitlement to Second Injury Fund benefits under N.J.S.A. 34:15-95. Lewicki, supra, 88 N.J. at 84. Our review of the record confirms there is sufficient credible evidence in the record supporting the judge's findings and conclusion. We therefore affirm the Division's denial of petitioner's application for Second Injury Fund benefits.
For the first time on appeal, petitioner seeks reimbursement for medical expenses he incurred for treatment received at a Veteran's Administration hospital. We decline to consider the argument because it was not properly raised before the Division and does not involve jurisdictional or public interest concerns. Zaman v. Felton, 219 N.J. 199, 226-27 (2014); see also Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) ("[O]ur appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available 'unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.'" (quoting Reynolds Offset Co., Inc. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959), certif. denied, 31 N.J. 554 (1960))).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION