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Polidori v. J.L.P. Contracting Co.

February 21, 2008


On appeal from the Department of Labor, Division of Workers' Compensation, 98-32097.

Per curiam.


Argued: November 5, 2007

Before Judges Collester and C.L. Miniman.

Petitioner Louis Polidori appeals from a workers' compensation judgment entered against his employer, respondent J.L.P. Contracting Co. (wholly owned by Polidori), on November 14, 2006, finding him permanently partially disabled and awarding 131 weeks disability plus fees and costs. We affirm.

It was undisputed that petitioner suffered a compensable accident on October 10, 1997, when he fell from a scaffold at work. He received temporary disability benefits until April 27, 1998. When initially filed, his claim petition alleged the following injuries: "[h]earing and tinnitus, eyes, loss of two teeth, left knee, back and head." He sought medical treatment for his two missing teeth and later sought treatment for problems with his head, right elbow, left leg and back. Petitioner also claimed at trial that he continually complained about pain in his groin area. At trial he offered complaints about pain in tinnitus and pain in his back and groin and occasional his knee. The major portion of petitioner's testimony related to his groin and his hernia surgery.

Although petitioner claimed entitlement to additional temporary disability benefits over a three-year period in connection with his hernia together with reimbursement for medical bills, he conceded that he never filed a motion seeking this relief with the Division of Workers' Compensation. The judge found that defendant did not submit any proofs from any medical provider that he lost time from work during those years and denied these claims.

With respect to the claimed injury to his groin, Judge George E. Pollard noted that the initial claim petition on February 10, 1998, made reference to petitioner's claimed groin injury and made the following findings of fact: Petitioner had knee surgery on March 6, 1998, and his disability benefits ended seven weeks later. He had a neurological examination in September 1998 and did not complaint of a groin injury. He also did not complain of a groin injury when he was seen by another doctor on February 16, 1999. It was not until May of 2000 that petitioner had hernia surgery. When he was examined on April 5, 2001, he complained about his left knee, back and head and was diagnosed with degenerative lumbar spine and left knee disability. He did not complain about his groin or hernia. In May 2001 petitioner had a second hernia operation and received State Disability benefits until June 2, 2001. In July 2001 the petitioner obtained new counsel and on January 11, 2002, filed an amended claim petition "alleging for the first time, 'hernia and complications from hernia repair surgery.'"

The medical evidence at the Workers' Compensation hearing revealed that the petitioner was examined on May 23, 2002, by two physicians and claimed that he was disabled as a result of the hernia. But another physician, Dr. Doss, examined petitioner on June 14, 2002, and stated that his "right inguinal pain 'started in the year 2000' following the surgery." When asked at trial if the hernia was caused by the fall, Dr. Doss testified that he did not believe it was. Even the petitioner admitted to another physician on September 24, 2002, that he did not know if the hernia was related to the accident. Additionally, Dr. Effron examined petitioner on October 17 and November 4, 2002, and reviewed the treatment records. He testified that the groin pain began in April 2000 and led to the surgery in May 2000. Dr. Effron opined that if the hernia was related to the accident petitioner would have been symptomatic long before April 2000.

The judge found that there was not a shred of documentary or testimonial corroboration for petitioner's vague claims regarding when the pain commenced. The judge concluded that petitioner had failed to meet his burden of proof that the condition was caused by the accident. The judge also found that those of petitioner's treating physicians who opined that the hernia was caused by the fall "were forced to use inaccurate information as a partial basis in rendering their opinions" because petitioner exaggerated the residuals of the accident, claimed that his inguinal pain began after the accident and failed to inform them about the type of physical labor her performed. As a consequence, the judge found the opinions of petitioner's experts to be "tainted" and that "the petitioner's credibility has been most affected and found to be wanting."

The judge awarded permanent partial disability for petitioner's orthopedic injuries and for the loss of two teeth but rejected the claims for head trauma, hearing loss and tinnitus because there was no objective proof of any of these alleged injuries. The judge also rejected petitioner's neuropsychiatric claims because they related to the hernia, which was not compensable. This appeal followed.

Petitioner contends on appeal that the judge's findings are not supported by sufficient credible evidence in the record and he failed to compensate petitioner for "even a fraction of the medical expenses and lost wages" resulting from the accident.

The standard for appellate review of a determination of a judge of compensation is equivalent to that used for review of any non-jury case. Brock v. Pub. Serv. Elec. & Gas Co., 149 N.J. 378, 383 (1997). We may not substitute our own fact-finding for that of the trial judge, even if we are inclined to do so. Lombardo v. Revlon, Inc., 328 N.J. Super. 484, 488 (App. Div. 2000). Rather, we will only decide "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record,' considering 'the proofs as a whole.'" Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (citation omitted). In performing that function, we must give due weight to the compensation judge's "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.), aff'd o.b., 62 N.J. 581 (1973). Because we are not in a good position to judge credibility, we ordinarily should not make new credibility findings. Dolson v. Anastasia, 55 N.J. 2, 7 (1969); Trusky v. Ford Motor Co., 19 N.J. Super. 100, 104 (1952);. It is only where we are "thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction . . . [that we] appraise the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions." State v. Johnson, 42 N.J. 146, 162 (1964).

After carefully reviewing the record in the light of the written and oral arguments advanced by the parties, we conclude that the issues presented by petitioner are without sufficient merit to warrant extensive discussion in this opinion, R. 2:11-3(e)(1)(A), (E), and we affirm substantially for the reasons expressed by the trial judge in his oral opinion delivered on November 13, 2006. The findings and conclusions of the judge are supported by substantial, ...

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