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Lucciola v. Home Depot


March 11, 2008


On appeal from New Jersey Department of Labor, Division of Workers' Compensation, Claim Petition No. 2001-17050.

Per curiam.


Argued February 6, 2008

Before Judges Parker, R. B. Coleman and Lyons.

Petitioner Josephine Lucciola appeals from an order for total disability entered on October 18, 2006, by a workers' compensation judge. Because we find that the judge's findings were reasonably reached on the basis of sufficient credible evidence in the record, after giving due regard to the Division of Workers' Compensation's expertise, we affirm.

The following factual and procedural history is relevant to our consideration of the issues raised on appeal. On April 8, 2000, petitioner was employed by The Home Depot (Home Depot) in the paint department. On that date, she was injured when deck stain splashed into both of her eyes. Immediately following the incident, petitioner was taken for medical treatment and was discharged with instructions to follow-up with her own doctor.

Petitioner remained employed by Home Depot until December 15, 2000. Thereafter, she worked intermittently with various employers, but was unable to continue in any positions due to her eye injuries. As a result of the accident, petitioner was diagnosed with chronic dry eye syndrome. Because of her condition, she has received frequent eye moisturizers, punctal plugs, and protective eyewear. Her treating physician, Dr. Wisda, has opined that petitioner will need continued medical treatment for the rest of her life and that she is permanently disabled due to the injury.

On October 10, 2006, the compensation judge found that petitioner suffered from a compensable accident while employed by Home Depot. The compensation judge found that petitioner suffered from the residuals of "bilateral chronic conjunctivitis with scarring, bilateral mild keratitis and bilateral dry eye syndrome with punctal plug insertion." The judge concluded that this was a permanent total disability based on petitioner's eye condition. He then found that petitioner was totally and permanently disabled as of November 11, 2004.

The compensation judge decided that petitioner was entitled to one hundred weeks of temporary disability benefits at the rate of $308.55. He calculated the credit entitled to Home Depot to be $11,883.66, with a balance due petitioner of $18,971.34, with respect to her temporary disability. The compensation judge went on to find petitioner was entitled to 450 weeks of permanent disability at $308.55, for a total due on that account of $138,847.50. Petitioner's disability rate was calculated pursuant to the statute, based on wage reports showing that petitioner's average wage was $440.79 a week for the twenty-six week period prior to her injury. The order also provided that all medical bills, which were authorized, are to be paid by Home Depot. Additionally, the compensation judge found that because petitioner was awarded Social Security disability benefits, petitioner may need to reimburse Home Depot for any workers' compensation benefits paid to petitioner in excess of the statutory off-set rate during the time period petitioner has received Social Security disability benefits. The compensation judge, therefore, ordered petitioner to cooperate with Home Depot in executing the necessary documents so that the appropriate information on potential reimbursement could be received and the amount resolved.

By letter dated October 26, 2006, the compensation judge advised petitioner that, should she fail to cooperate in gathering the information necessary to determine this Social Security disability off-set information, he was authorizing Home Depot and its carrier to withhold payments of disability until that cooperation or information is supplied.

The disability order also provides that Home Depot is to furnish petitioner such medical attention as her condition may require. In conjunction with that order, Home Depot authorized Dr. Wisda, the Wills Eye Hospital, including Dr. Rapuano, and Drs. Hart and Kornfeld to be designated treating physicians.

The compensation judge noted that the 450 week period of permanent disability would expire on June 27, 2013, and that the benefits thereafter would continue in accordance with N.J.S.A. 34:15-12(b). Petitioner was referred to the Division of Vocational Rehabilitation Services, and, lastly, Home Depot was authorized to file a petition to join the Second Injury Fund following the expiration of petitioner's right to appeal. Following the entry of this order, petitioner timely filed this appeal.

On appeal, petitioner sets forth more than thirteen points for us to consider. Some of the points are directed at the substantive provisions of the order, while others relate to allegations of procedural errors or misconduct by the court or counsel for Home Depot.

Initially, we note the standard of appellate review of a workers' compensation judge's determination "is equivalent to that used for review of any non-jury case, which requires the reviewing court to determine whether the findings reasonably could have been reached on the basis of sufficient credible evidence in the record, with due regard to the agency's expertise." Brock v. Pub. Serv. Elec. & Gas Co., 149 N.J. 378, 383 (1997).

We have thoroughly reviewed the extensive record, including the transcripts of the various hearings, and find that the compensation judge's decision was supported by sufficient credible evidence on the record as a whole, and that the arguments made by petitioner are without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(D) & -3(e)(1)(E).

We note in particular that the infirmities with petitioner's arguments flow primarily from petitioner's lack of proofs in the record to support her arguments. For instance, petitioner argues that the weekly award amount is incorrect. Yet, Home Depot submitted appropriate proofs demonstrating the last twenty-six weeks of wages earned by petitioner. When that average wage of $440.79 was then applied to the statutory formula in N.J.S.A. 34:15-12(b), the $308.55 amount was the result. There were no competent proofs provided by petitioner which contested these sums.

With respect to petitioner's complaints that certain medical treatment has not been authorized, the order specifically provides that medical treatment shall be provided as her condition requires, not all medical treatment, but only that relating to her condition must be paid for. However, in order to obtain that treatment, proper medical records and reports are required, and they were not furnished appropriately to the court according to the record. Likewise, petitioner's complaints regarding transportation costs were not appropriately substantiated in the record such that the court could grant an award sought by petitioner.

Petitioner also seeks an additional amount of twenty-five percent on the amounts due apparently pursuant to N.J.S.A. 34:15-28.1. That statute provides for a twenty-five percent additional payment amount if a respondent "unreasonably or negligently delays or refuses to pay temporary disability compensation, or unreasonably or negligently delays denial of a claim . . . ." That is not the situation in this case. The delays in resolving this matter are in large measure attributable to petitioner's failure to produce the appropriate records and are currently due to petitioner's failure to execute the Social Security and Medicare authorizations so that payments can be made.

Petitioner's point that she is entitled to a twenty-five percent increase in her benefits due to visual disfigurement is without support in the law. Where there are multiple injuries, a judge of compensation is to make a "reasonable assessment of the extent of the combined disability in terms of a percentage of permanent and total disability." Poswiatowski v. Standard Chlorine Chemical Co., 96 N.J. 321, 334 (1984). While there are circumstances where a visual disfigurement could be compensable in addition to a permanent partial injury claim, see, e.g., Englishman v. Faber Cement Block Co., 137 N.J. Super. 313, 319 (App. Div. 1975), petitioner in this case was awarded a one-hundred percent total permanent disability, which compensates for both the loss of vision and any disfigurement. Moreover, petitioner did not submit competent proofs which would entitle her to a visual disfigurement benefit. Perez v. Pantasote, Inc., 95 N.J. 105, 118 (1984).

As to the dates of permanent and temporary disability, those dates are derived from the submissions before the court and there is substantial credible evidence to support them. Petitioner argues that glasses and certain goggles were not included in the order. However, the order does provide that appropriate medical prosthesis and medical supplies shall be paid and specifically lists the doctors who fit petitioner. Again, what is required is the appropriate medical documentation and authorization to obtain these benefits.

As to petitioner's arguments concerning procedural deficiencies, we do not find, based on our review of the entire record, that they have sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

In summary, therefore, after a careful and thorough review of the record and arguments by petitioner and Home Depot, we find that the compensation judge's findings are supported by sufficient credible evidence in the record, particularly after giving due regard to the Division of Workers' Compensation's expertise. As to any of petitioner's specific points raised in her brief which we have not discussed, we find them to be without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E). Accordingly, we affirm the order.



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