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White v. Warehouse Services

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 14, 2008

ROYAL WHITE, PETITIONER-RESPONDENT,
v.
WAREHOUSE SERVICES, INC., RESPONDENT-APPELLANT.

On appeal from the Division of Workers' Compensation, Department of Labor, 2001-27223.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 11, 2007

Before Judges Grall and Chambers.

Appellant, employer Warehouse Services, Inc. (Warehouse), appeals from the workers' compensation award to its employee, petitioner Royal White. The workers' compensation judge found that White sustained a forty percent disability of his right foot due to a fracture in his right tibia and contusion and strain to his right ankle. While White sustained an admittedly work-related accident on April 3, 2001, no fracture was diagnosed at that time. The fracture was diagnosed after White's subsequent fall on May 13, 2001, when he fell on a curb while walking with his fiancée. Although the workers' compensation judge found that the fracture was caused by the April 3, 2001 fall, Warehouse contends that the proofs do not support this finding. We agree and reverse and remand for the reasons set forth below.

The following facts are undisputed. On April 3, 2001, White was injured when he jumped off a loading dock while at work. Warehouse acknowledges that White received a compensable injury to his right ankle for that event. The final diagnosis by the treating physician, Dr. Robert Sperry, M.D., F.A.C.S., was a right ankle sprain. The x-rays taken of the right foot at Greenville Hospital on April 4, 2001, the day after the accident, were negative for fractures. Additional x-rays of White's ankle, foot, tibia, and fibula, taken on April 12, 2001, by Dr. Patel, a private doctor, were also negative for fractures. White was prescribed an air cast by Dr. Sperry on April 20, 2001. On April 24, 2001, Dr. Sperry found that White was "doing very well" and not using his air cast. White was discharged and given a note to return to work on April 30, 2001, which he did. When he returned to work, White was given light duty, although his job still required that he be on his feet about ten hours per day.

On Sunday, May 13, 2001, while walking with his fiancée Donna Hurtte to the store, White fell off the curb and fell to the ground. He experienced immediate and severe pain. White was hospitalized for this injury from May 16 to 18, 2001. The x-rays taken on May 17, 2001, revealed a spiral incomplete fracture with no deformity or displacement of the distal right tibia. When White subsequently applied for temporary disability benefits from the State, both he and Dr. Sperry indicated in writing that the fracture was not work-related.

In the workers' compensation proceeding arising out of the work-related fall of April 3, 2001, White nonetheless contended that the fracture discovered after the May 13, 2001 fall was caused by the earlier accident. White proffered two theories, first that the tibia was fractured during the April 3, 2001 fall, and second, that the leg gave way on May 13, 2001, due to the earlier sprain, and the fracture then occurred. Both White and his fiancée testified that White experienced pain in his leg about four inches above the ankle after the April 3, 2001 accident and that, despite their requests, Dr. Sperry refused to x-ray the leg. However, as noted above, the fibula and tibia were x-rayed on April 12, 2001.

White presented the report and testimony of Dr. Morris Horwitz, M.D., P.A., F.A.A.D.E.P., B.C.F.E., who opined that within a reasonable degree of medical probability a causal relationship existed between the fracture and the April 3, 2001 accident. There is no indication in Dr. Horwitz's report that White advised that doctor of the May 13, 2001 fall. Warehouse's motion to strike Dr. Horwitz's opinion as a net opinion was denied by the workers' compensation judge. The judge took the position that once the witness testified as an expert, his testimony could not be stricken, but that the objection went to the weight and credibility to be given to the expert's testimony.

Arthur Canario, M.D., an orthopedic surgeon, testified for Warehouse, maintaining that the fracture was caused by the second fall. Dr. Sperry, the treating physician, was deceased by the time of trial, so his testimony was not available, although his note that the fracture was not related to the previous injury is part of the record. When White was examined by Dr. Canario, White did not tell the doctor about the fall of May 13, 2001; the doctor learned of the fall from the medical records.

In finding that the fracture was caused by the fall at work, the workers' compensation judge found the testimony of White and his fiancée to be credible and placed greater weight on the testimony of Dr. Horowitz than that of Dr. Canario.

In conducting our review of this record we are mindful of the long held view that we must affirm the determination of the workers' compensation court if the credible evidence in the record is sufficient to support its findings. Close v. Kordulak Bros., 44 N.J. 589, 598-99 (1965). We must also accord "due weight to his [the workers' compensation judge's] expertise in the field and his opportunity of hearing and seeing the witnesses." DeAngelo v. Alsan Masons, Inc., 122 N.J. Super. 88, 89-90 (App. Div.), aff'd o.b., 62 N.J. 581 (1973).

For an accident to be compensable under the workers' compensation system, it must arise "out of and in the course" of the petitioner's employment. N.J.S.A. 34:15-7. Further, the petitioner must prove the claim by "demonstrable objective medical evidence." N.J.S.A. 34:15-36.

Warehouse contends that the decision in this case must be set aside because the record is devoid of competent credible evidence connecting the fracture to the fall at work, and contends that Dr. Horwitz gave only a net opinion on causation. We agree.

An expert's opinion must rest on "facts or data." N.J.R.E. 703. An opinion by an expert that is unsupported by factual evidence is considered a "net opinion" and is inadmissible. Buckelew v. Grossbard, 87 N.J. 512, 524-25 (1981). An expert must "'give the why and wherefore' of his or her opinion, rather than a mere conclusion." Creanga v. Jardal, 185 N.J. 345, 360 (2005) (quoting Rosenberg v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002)).

Here Dr. Horwitz found that the fall of April 3, 2001, caused the fracture in White's right distal tibia, despite contrary findings in the April 12, 2001, preliminary x-ray report. His explanation for these findings was:

Within a reasonable degree of medical certainty and probability, based on the petitioner's subjective complaints being consistent with demonstrable loss of function with respect to the right ankle and foot, review of the objective medical records the pathophysiological understanding of the trauma so involved, I found there was

[a] causal relationship between the diagnosis so stated and the accident of April 3, 2001.

He explained that the April 12 x-ray would "not necessarily" have shown the fracture depending on the angle the pictures were taken. However, he had not reviewed the x-rays themselves; he saw the reports only. He did not testify that the x-rays were taken at an angle that missed the fractures; but merely testified that such a circumstance could have happened. Nor was there any other evidence in the record to demonstrate that the angle of the April 12, 2001, x-rays was different from those taken on May 17, 2001. Doctor Horwitz also indicated that he relied on the "petitioner's subjective complaints being consistent with demonstrable loss of function with respect to the right ankle and foot." While the record contains evidence that White continued to have pain in his leg, the record is undisputed that his pain increased dramatically after the second fall, and led to his hospitalization. Accordingly, we find no facts and data in this record to support an expert opinion that the tibia was fractured during the April 3, 2001 fall.

Dr. Horwitz expressed the alternative theory that the leg could have given out on May 13, 2001, due to injuries sustained in the April 3, 2001 accident. The testimony with respect to this theory was the following:

Question: Doctor, he [White] also testified that a month after the accident his foot gave way causing him to fall walking off a curb. Would you say that the cause of that was the original injury to the ankle? Answer: Yes, because actually a sprain and strain can be actually worse than a fracture itself based on the fact of the ligament being over stretched and torn. So that could have also produced the instability to have caused the petitioner to fall.

Once again, no facts are asserted to support this conclusion. While the doctor explains in general that a sprain and strain can cause instability sufficient to cause a fall, he provides no analysis of White's injury and presents no facts or data to support a conclusion that this happened in this case.

For these reasons, we find that Dr. Horwitz's testimony should have been stricken as a net opinion. Without his testimony, the record cannot support a finding that the fracture was caused by the April 3, 2001, work-related accident.

Reversed and remanded.

20080114

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