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Dorsey v. First Atlantic Federal Credit Union

January 18, 2008

ERIN DORSEY, PETITIONER-RESPONDENT,
v.
FIRST ATLANTIC FEDERAL CREDIT UNION, DEFENDANT-APPELLANT.



On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, Case No. 2005-23944.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 17, 2007

Before Judges R. B. Coleman and Sapp-Peterson.

Appellant First Atlantic Federal Credit Union (First Atlantic) appeals from a September 19, 2006, order of the Division of Workers' Compensation that granted petitioner Erin Dorsey's motion for temporary disability benefits. More specifically, the September 19 order provides:

Respondent shall pay petitioner temporary benefits beginning July 14, 2006 to present and continuing in future until such time as petitioner completes her pregnancy, receives EMG/NCV study, repeat MRI and subsequent anterior cervical diskectomy if deemed necessary by Dr. Rosenblum after tests and until discharged by Dr. Rosenblum or her return to work. Payment to be made within 20 days of order.

First Atlantic sought a stay of the order pending appeal, but its application was denied first by the Division and then by this court. We now affirm the order from which the appeal has been taken.

Petitioner's motion for benefits arose out of a work-related accident on March 16, 2005. At that time, she sustained injuries to her neck and back after tripping and falling in First Atlantic's parking lot. Petitioner was treated in the emergency room that day and the next, and later received additional medical treatment. On or about April 1, 2005, petitioner filed a Claim Petition with the Division. The claim was accepted as compensable and authorized medical treatment and temporary total disability benefits were initially provided.

Petitioner was terminated from her employment with First Atlantic for cause, effective April 6, 2005. The disciplinary notice advised petitioner that the termination was due to the discovery of a teller shortage of $1,800 on March 11, 2005, after written warnings had been given to petitioner for two prior instances of differences of $100 each.*fn1 In spite of the termination, First Atlantic continued to authorize certain medical treatments for petitioner including an MRI, an EMG, epidural steroid injections and a diagnostic nerve root block to treat the pain in petitioner's neck and back, which radiates down her left arm and hand. It refused, however, to continue to pay temporary disability benefits.

At the request of the insurance company, petitioner's treating physician, Dr. Jonathan Lester, reevaluated petitioner. Beginning in September 2005, Dr. Lester repeatedly recommended a consultation with an orthopedic spine surgeon to explore surgical treatment options for petitioner. These recommendations were not approved or implemented by First Atlantic and its carrier.

Eventually, on July 14, 2006, at the request of First Atlantic, petitioner was examined by Dr. Bruce R. Rosenblum, a board certified neurological surgeon. Dr. Rosenblum indicated in his report, which was admitted into evidence, that petitioner had a post-traumatic cervical radiculopathy. Dr. Rosenblum also noted that petitioner was then pregnant; he, therefore, recommended that she undergo a new MRI and an EMG/NCV study after delivery of the baby. Among other things, his report noted that "[d]ue to the problems . . . entailed in this report, [petitioner] has been unable to hold down a job and has held multiple jobs, the longest of which she has worked at for approximately three months." Dr. Rosenblum recommended that petitioner remain out of work pending reevaluation and surgery after the completion of her pregnancy.

On or about August 28, 2006, petitioner filed her motion for medical and temporary benefits based on the report of Dr. Rosenblum and the failure of counsel for First Atlantic to respond to petitioner's request for temporary benefits. On September 5, 2006, First Atlantic did respond, through counsel. It indicated that it would authorize the updated cervical MRI as well as the EMG/NCV recommended by Dr. Rosenblum. On the other hand, it stated that it would not authorize additional temporary total disability benefits until petitioner undergoes the authorized electrodiagnostic studies. On September 7, 2006, counsel for First Atlantic filed a certification in opposition to petitioner's motion, wherein he confirmed both the authorization for medical treatments and the refusal to reinstate temporary total disability benefits. In that certification, counsel urged that petitioner's motion should be dismissed because petitioner was unable currently to undergo the treatment due to her pregnancy and because petitioner was not currently disabled as a result of a work-related injury, but rather because of her pregnancy.

The hearing on petitioner's motion was conducted on September 19, 2006, after which Judge Jerry J. Massell of the Workers' Compensation Court issued the order compelling First Atlantic to pay petitioner temporary disability wages from which First Atlantic has appealed.

This court's review of a final administrative decision "is quite circumscribed." Fraternal Order of Police v. Bd. of Trs. of the Police and Firemen's Ret. Sys., 340 N.J. Super. 473, 479 (2001). Substantial deference is given to an agency's expertise. See Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (giving high regard to an agency's expertise in the area). An agency's determination is reversed "only if it is arbitrary, capricious or unreasonable or it is not ...


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