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Flynn v. Henkels & Mccoy

July 3, 2007

EDWARD FLYNN, PETITIONER-APPELLANT,
v.
HENKELS & MCCOY, INC., RESPONDENT-RESPONDENT.



On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, 2000-22054.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued June 4, 2007

Before Judges Seltzer and C.L. Miniman.

Petitioner, Edward Flynn, appeals from a February 23, 2006, order of Emille R. Cox, Judge of Workers' Compensation, that awarded petitioner, for the reasons set out in the judge's written January 21, 2006, opinion, "22 1/2% partial total for residual of low back surgery." We affirm.

Judge Cox heard testimony from petitioner and from his experts, Dr. Floyd Krengel, an orthopedist, and Dr. Paul J. Kiell, a neuropsychiatrist, as well as respondent's experts, Dr. Kenneth C. Peacock, an orthopedist and Dr. Charles R. Effron, a psychiatrist and neurologist. The judge summarized the conclusions of the experts: "Petitioner's experts estimate Petitioner to be 40% disabled orthopedically and 50% neurologically and 30% neuropsychiatrically" while "Respondent's experts estimate Petitioner to be 5% disabled orthopedically and find no psychiatric disability."

The judge found no psychiatric disability and that finding is not challenged on appeal. The judge then proceeded to deal with the orthopedic and neurological disability. He concluded that:

This court also agrees with Respondent's assertion that a separate award for a neurological disability is not warranted in this case. Most damaging to Petitioner's claim for such an award, is the testimony of his own expert who, when asked on direct examination, the difference between an orthopedic and neurological disability, responded with refreshing candor:

They're not different, really . . . I think the courts are behind the times in trying to make them separate. If this person had an illness like Parkinson's or multiple sclerosis or had a stroke, then that's separate . . . I don't think they should be separate . . . but since the court still thinks there is, I have given a neurologic diagnosis. So I'm putting in a pitch for enlightenment, but he does have a lumbosacral radiculopathy.

This Court considers Dr. Kiell's contention that it is the courts that adhere to the stated distinction to be debatable. Nevertheless I willingly embrace the invitation to enlightenment and adopt his conclusion that there is no such distinction in this case. Indeed, Petitioner testified to no deficits that approach the debilitating conditions associated with the referenced Parkinson's disease or multiple sclerosis. There will be no separate award for neurological disability.

The court then dealt with the degree of disability and agreed with "[r]espondent's contention that Petitioner obtained a very good result [because it] is supported by the treatment records." The judge concluded: "Based on all of the testimony and evidence presented, I find Petitioner's permanent partial disability to be 22 1/2%."

On appeal, petitioner asserts that Judge Cox failed to make sufficient specific factual findings to support his decision as to the extent of petitioner's disability and that he was required to award a neurological disability. We disagree with both contentions.

Our review of a decision of a judge of compensation is limited. We determine only "'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." Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).

Nevertheless, we recognize the obligation of the judge to provide "articulated reasons grounded in the evidence," for the decision. Lewicki v. N.J. Art Foundry, 88 N.J. 75, 89-90 (1981). The judge here referenced the result petitioner had obtained and his testimony regarding his complaints. He also considered the opinions of the testifying experts. Given that evidential base, the judge quantified the disability at a point slightly lower than the mid-range between the competing experts. Under ...


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