January 28, 2008
MICHAEL LONGO, RESPONDENT,
ROADWAY EXPRESS, APPELLANT.
On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 12, 2007
Before Judges Sapp-Peterson and Messano.
In this appeal, respondent in the underlying matter, Roadway Express, appeals from the order of judgment entered by a judge of the Division of Workers' Compensation (Division) on October 31, 2006, finding that petitioner, Michael Longo, suffered a compensable injury on February 14, 2006, and directing respondent to (1) reimburse State Temporary Disability Insurance (TDI) for payments made to petitioner, (2) pay the difference between those TDI benefits and compensation benefits to petitioner, (3) pay any additional temporary disability benefits due, and (4) provide medical benefits. We affirm in part and reverse in part.
Petitioner filed a claim petition with the Division on March 3, 2006, as a result of an alleged injury to his left leg that occurred on February 14, 2006 when he slipped on ice. In the petition, petitioner also sought benefits for "an injury to [his] right and left leg, which took place on February 18, 2006 as a result of an innocent aggravation"*fn1 that occurred when his "left leg gave completely out and [he] fell on [his] right leg and [he] couldn't walk." The parties agreed to bifurcate the case and have the judge first decide the issue of whether petitioner suffered a compensable injury.
At oral argument before us, the parties agreed that the sole issue that was litigated before the workers' compensation judge over the course of the two-day hearing was whether petitioner sustained a compensable injury on February 14, 2006, and the judge's oral opinion, delivered on October 31, 2006, confirms that the limited issue before the court was "whether or not petitioner sustained a compensable injury to his right knee."*fn2 Despite the limited issue, the judge, after finding that petitioner sustained a compensable injury, concluded that respondent should pay the necessary reasonable temporary disability, if there [was] still any owing. There is a differential between this and the earlier injury or TDI. It will have to make that up. There is a State TDI and they will have to reimburse State TDI and pay petitioner the difference and they will also be responsible for providing the appropriate medical care.
In view of the limited issue before the judge, we reverse that portion of the order directing the reimbursement of TDI, payment of any differential, and payment of additional TDI. We also reverse that portion of the court's decision finding that petitioner sustained a compensable injury to his right leg, which, during oral argument before us, the parties also agreed was not before the judge. We affirm, however, the judge's determination that petitioner sustained a compensable injury to his left knee on February 14, 2006.
The relevant facts presented to the judge during the hearing revealed that on February 14, 2006, petitioner arrived for work at respondent's Farmingdale location at about 6:00 a.m. Petitioner testified that when he began the actual work at approximately 6:10 a.m., he used a forklift to lift a pallet out of a truck and the pallet fell over. As he was going around the base of the pallet to re-wrap it with shrink wrap, he slipped on a piece of ice and twisted his left knee. He testified that immediately following the slip, he had difficulty bending his knee and could not climb on the forklift. He attempted to continue working, but his knee started to swell up about twenty minutes later. He then reported the incident to his supervisor, who salted the area where he slipped. Petitioner continued to attempt to work, but the swelling of his left knee continued and the pain he was experiencing intensified. Petitioner was initially treated by respondent's doctor, but the treatment discontinued after respondent disputed that petitioner had in fact slipped on ice.
Respondent's employees Dean Fink (Fink) and David Gutshall (Gutshall) testified on behalf of respondent. In addition, respondent provided the court with surveillance videos dated February 14, 2006 that depicted the area where the alleged incident occurred that morning. The tapes covered three camera angles.
Fink testified that on the day of petitioner's accident, he was the terminal manger at respondent's Farmingdale location and it was mid-morning when he was informed of the incident. Although he was located in respondent's Millville terminal on that particular day, he testified that he returned to the Farmingdale terminal either a day or two later. He testified that his knowledge of petitioner's alleged injury came from reviewing footage recorded by the security cameras that were located on the dock and from talking with a supervisor named Dave.
During his testimony, Fink detailed how respondent's security system operated. Specifically, Fink testified that although there were nine cameras at the Farmingdale location, he only saved three camera angles because he thought they were the only angles pertaining to petitioner's injury since they were the only angles from which petitioner was visible at the time the alleged accident occurred. He explained that the footage is routinely saved for thirty days, at which point it is overwritten by the security system. Fink also testified that the camera angles he saved were complete from start to finish, as he did not edit out anything in the middle. He indicated that he was alone when he "[downloaded] the stuff onto the disks" and it was his decision as to which camera angles to save. During questioning from the judge, Fink could not remember the time period covered in the videos or at what point he cut them off. When questioned as to why he did not save the angle that would have shown petitioner as he reported for work and whether he walked normally or with a limp at that time, as opposed to how he walked when he left work after the injury, Fink responded that he did not save that angle because he did not "see it as relevant."
Gutshall, respondent's operations supervisor, testified that he was present on the day petitioner's claimed accident occurred. Petitioner reported the injury to him around 6:30 a.m. He advised petitioner to stretch the leg out a bit and let him know "how it goes." He also testified that petitioner came back to him sometime between eight or nine o'clock, requested to see a doctor, and filled out medical information paperwork. After completing the paperwork, petitioner left work.
Gutshall testified that as operations supervisor, his duties included clearing ice and snow. He acknowledged that he cleared snow on the morning of the accident and did not see any ice, just a damp spot. He described the spot where the injury allegedly occurred as five inches wide and ten inches long. He did not salt the area where petitioner was reportedly injured until after petitioner left work. Gutshall also testified that he reviewed petitioner's timecards just prior to testifying and that the last day petitioner worked before the day of the accident was the Wednesday of the week prior to the accident.
The court reviewed the video from the first two angles and concluded that it did not record whether or not petitioner slipped on ice. The judge did note, however, that petitioner appeared to be favoring his right side. Following Gutshall's testimony, the court asked the parties to put their contentions on the record. Petitioner's counsel contended that while petitioner "admitted he didn't fall[,]" he twisted his knee, and although he attempted to keep working, his injuries prevented him from doing so. On the other hand, citing Klein v. New York Times, 317 N.J. Super. 41 (App. Div. 1998), respondent's counsel asserted that petitioner's injury was the result of petitioner intentionally kicking the pallet after it broke. Respondent argued that under those circumstances, petitioner's injury was not compensable.
On October 31, 2006, the judge entered his oral opinion in which he noted that he had "reviewed the transcripts, [his] notes and the surveillance material" and was "prepared to enter a decision on whether or not petitioner sustained a compensable injury to his right knee." (emphasis added). The judge went on to find,
The hearing before me includes two types of claims, one is the reopener claiming there was a derivative injury, in other words, his damaged left leg collapsed, causing further injury and the new accident claim that he twisted his left knee when he slipped on black ice [and] twist[ed] his left knee. [(emphasis added).]
This gentleman was working on the dock at respondent's terminal. The terminal is subject to a series of several surveillance cameras, which are necessary for the protection, security, of respondent's facility against breakage and material that is entrusted to this compan[y's] care. I found petitioner to be a credible witness. He did not engage in any self-contradiction in his testimony. He told a straight forward story. He reported the accident promptly to the respondent, actually not the second it happened, but within an hour or so later when he realized the swelling and pain was [not] something transitory, he had every reason to be concerned about his left knee, his left leg. He had some prior problems to his right leg. He had prior problems to his left leg of a serious nature. What happened on the day in question is he is at work moving [palletized] merchandise around the dock with a forklift and loading trucks. He described in detail how this incident occurred. The story has been the same ever since it was reported to his employer. Now, the doors of the truck were open, this is where the tractor trailers back up and while some bays were open the trucks do not fully fill up the openings. It had snowed, it was so cold that there was some wet areas in the terminal, either it was ice from the trucks or whatever, whatever it was, whether it was black ice on the terminal floor or just water which froze, this gentleman was in one area bending over and his left knee twisted and he sustained the injury to his knee. He did report this within an hour [or] two to the supervisors at the terminal. He told the shop steward or assistant shop steward about the accident. He tried to work for an hour and a half after the accident. Somebody put salt on the concrete where he had walked. He reported his comments to his co-workers. He started work at 6 o'clock in the morning. There was no direct trauma to this injured leg. He claims he sustained a twisting injury to his left knee. It occurred. I reviewed the videotapes. I considered the testimony of the management people who, I believe, were sincere in discharging their obligations to the company. They reviewed all the videos that they had running that day. They did not see the actual accident. Neither did I when I looked at the videos which showed the area where petitioner worked. I looked at the videos very carefully and I noted at a point where [petitioner] says he injured his leg, he is partially behind some palletized merchandise. While the respondent's testimony that the entire dock was covered by the surveillance cameras was credible, believable. Still, there are obscured areas when there are obstacles in the way such as palletized merchandise. This fellow was behind a pallet and partially blocked from view. For a brief moment, enough for a fall, he was apparently at an angle to the ground. I find his story is completely consistent to the respondent's videos. The injury was promptly reported. David Gutshall, the operations manager, was the most helpful in determining the details of exactly what happened. He was there around 6:30 a.m. He saw [petitioner] standing by his skid. He said what are you doing and [petitioner] said I hurt my leg. Mr. [Gutshall] told him to stretch it out. A couple hours later, [petitioner] said he wanted to see the doctor. He had to do paperwork reporting the accident and he did it. He made his report to the appropriate person. Mr. [Gutshall] saw the damp spot. It had snowed earlier that day. The damp spot was about five-foot by ten inches wide. After [petitioner] left, he salted that area. He discussed the injury with [petitioner]. [Petitioner] said he wasn't hurt that bad and tried to continue working.
For all the forgoing reasons, I have concluded that petitioner did, in fact, sustain a compensable injury on February 14, 2006. [(emphasis added).]
On January 2, 2007, respondent filed the present appeal. The next day, respondent filed a motion seeking a stay of the judgment pending the appeal pursuant to Rule 2:9-7, which the judge denied. Respondent then moved for a stay before this court, which was granted on May 17, 2007.
On appeal, respondent raises the following points for our consideration:
BASED ON THE STANDARD OF REVIEW ON APPEAL IN WORKERS' COMPENSATION CASES, THE TRIAL COURT'S DECISION MUST BE REVERSED.
THE TRIAL COURT ERRED IN DETERMINING THAT PETITIONER SUFFERED A COMPENSABLE ACCIDENT ON FEBRUARY 14, 2006. ACCORDINGLY, THE PORTION OF THE AWARD FINDING COMPENSABILITY MUST BE REVERSED AND THE CLAIM DISMISSED.
THE PETITIONER FAILED TO SUSTAIN THE [BURDEN] OF PROOF OF THE HAPPENING OF A COMPENSABLE ACCIDENT. ACCORDINGLY, THE TRIAL COURT'S DECISION MUST BE REVERSED.
THE TRIAL COURT IMPROPERLY CONSIDERED THE CLAIM FOR PETITIONER'S RIGHT LEG AS THE ONLY ISSUE BEFORE THE COURT WAS THE CLAIM FOR THE LEFT LEG.
THE TRIAL COURT'S ORDER FOR PAYMENT OF MEDICAL AND TEMPORARY DISABILITY BENEFITS CLEARLY EXCEEDED THE ISSUE PENDING BEFORE THE COURT. AS SUCH, THAT PORTION OF THE ORDER MUST BE REVERSED.
In view of our reversal of the judge's determinations related to petitioner's right leg, temporary disability, and medical benefits because those issues were not before the judge, there is no need to address the issues raised in Points IV and V. As for the remaining points, after analyzing the record in light of the written and oral arguments of the parties, we conclude that the issues presented by respondent are without sufficient merit to warrant extensive discussion in a written opinion, R. 2:11-3(e)(1)(D) and (E), and we affirm substantially for the reasons articulated by the workers' compensation judge in his October 30, 2006 oral decision. We add the following.
The standard of appellate review in a workers' compensation case is found in Close v. Kordulak Bros., 44 N.J. 589 (1965), where the Court held that a review of factual findings made by administrative bodies is the same as that on appeal in any non-jury case, i.e., '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 and, in the case of agency review, with due regard also to the agency's expertise where such expertise is a pertinent factor. [Id. at 599 (internal citations omitted).]
Where compensability is contested by the respondent, the burden of proof is on the petitioner to produce the evidence and persuade the trier of fact, by a preponderance of credible evidence, of the existence of each element of the claim. Lindquist v. City of Jersey City Fire Dep't, 175 N.J. 244, 258-59 (2003).
In his oral opinion, the judge noted that there were some discrepancies between petitioner's testimony as compared to the testimony of respondent's two witnesses and that each of the witnesses, on occasion, had difficulty remembering certain facts. The judge noted, "I reviewed the videotapes. I considered the testimony of the management people who, I believe, were sincere in discharging their obligations to the company." Regarding the videos, the court did not find the angles depicted in the videos helpful in resolving the disputed issue and noted that merchandise loaded on the pallets obstructed the court's view of petitioner at different times in the videos. After weighing all of the evidence, the judge ultimately found petitioner's testimony more credible. Giving due regard to the workers' compensation judge's opportunity to directly evaluate the credibility of the witnesses and his feel of the case, we are satisfied that his findings were reached on sufficient, credible evidence present in the record. Close, supra, 44 N.J. at 599.
Likewise, the judge rejected respondent's contention that petitioner's claimed injury is not compensable because it was the result of petitioner's act of intentionally kicking the broken pieces of pallet. The judge, as the trier of fact, was free to accept or reject this contention in light of his consideration of the testimony and other evidence presented. His finding on this issue is entitled to deference. Ibid.
Affirmed in part, reversed in part. We do not retain jurisdiction.