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DiGiovanni v. Borough of Eatontown


June 8, 2007


On appeal from the New Jersey Department of Labor, Division of Workers' Compensation.

Per curiam.


Argued April 30, 2007

Before Judges Lintner, Seltzer and C.L. Miniman.

In this workers' compensation case, respondent, Borough of Eatontown, appeals from a September 22, 2006, order entering an award on behalf of petitioner, John DiGiovanni, in the amount of "47 l/2% of partial total, with credit for 42 1/2% for the prior award for residuals of injuries to the cervical and lumbosacral spine." We affirm.

Petitioner had sustained work-related injuries in two separate 1995 incidents. His claim petitions were consolidated for the purposes of entering a settlement award in the amount of "42 1/2% of partial total" with credit for a prior injury.

Thereafter, petitioner sought to review the awards, asserting increased disability. See N.J.S.A. 34:15-27. Those applications were consolidated with a new petition alleging work-related injuries as the result of a July 13, 2003, incident.

Petitioner produced testimony from Dr. Floyd Krengel and respondent produced testimony from Dr. Fredric Brustein. Dr. Brustein, whose examination was limited to petitioner's cervical spine, shoulder girdle, and upper extremities, opined petitioner had a disability attributable to his cervical spine of "5% partial total." Brustein's July 2, 2005, report, admitted into evidence, also fixed an impairment at "5% partial total." Dr. Krengel, on the other hand, fixed partial total disability at "66 2/3%." The judge accepted the testimony of respondent's expert, Dr. Brustein, and found:

Petitioner testified before me and gave numerous complaints to his neck and his back. I found him to be credible, and he indicated that his complaints had increased since the July 2003 accident.

Petitioner had a complaint with regard to his ability to walk and stand, but I believe this is related to his knee accident which he had as part of another case, and, therefore, that is not related to these cases as far as the proofs go before me.

Petitioner's doctor, Dr. Floyd Krengel, indicated that petitioner did have an increase overall to two-thirds of partial total. Respondent's doctor, Dr. Brustein, indicated an increase of 5% of partial total. Based upon petitioner's credible complaints, which increased after the July accident, and the findings of the two doctors, I find that his permanent disability increased, but only to the extent of 5% of total as indicated in Dr. Brustein's report based on the mild increase in complaints and the fact that petitioner had either no treatment or no significant treatment after the July 2003 accident.

I find that the increase of 5% of partial total is sufficient based upon the factors that I indicated above, which include the complaints and the findings of the two doctors. I find that the increase in disability is to petitioner's lumbosacral area and his neck as both doctors found increased disability in the neck, and Dr. Krengel found increased disability in the lumbosacral area. . . .

Since both doctors found permanent disability, there is no issue except as to the extent of that increase, and I indicated why I found an increase in petitioner's overall condition, and I have related it to the 2003 accident rather than to the two reopeners because of his increase in complaints after the 2003 accident and because Dr. Brustein's finding of 5% of partial total disability was also after that accident, and he did not indicate that it was due to the reopeners for the two prior accidents.

The applications relating to the pre-2003 incidents were dismissed and the judgment under appeal was entered.

Our review of the judge's decision is limited. We decide only "whether the findings of the judge of compensation could reasonably have been reached on sufficient credible evidence present in the whole record, after giving due weight to his expertise in the field and his opportunity of hearing and seeing the witnesses." De Angelo v. Alsan Masons, Inc., 122 N.J. Super. 88, 89-90 (App. Div.) (citing Jackson v. Concord Co., 54 N.J. 113, 117-18 (1969); Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)), aff'd, 62 N.J. 521 (1973).

The decision of the judge was amply supported by the record and, in fact, was based in large part on the report and testimony of respondent's witness. Respondent's arguments to the contrary lack sufficient merit to justify discussion in a written opinion. R. 2:11-3(e)(1)(A), (E).



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