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Grasso v. State

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 19, 2008

DAWN GRASSO, PETITIONER-RESPONDENT,
v.
STATE OF NEW JERSEY, DEPARTMENT OF THE JUDICIARY, RESPONDENT-APPELLANT.

On appeal from New Jersey Department of Labor, Division of Workers' Compensation.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 5, 2008

Before Judges Skillman and LeWinn.

In 1999, petitioner Dawn Grasso filed a claim for workers' compensation benefits for alleged injuries to her right hand and arm as a result of work performed for respondent on a computer keyboard, telephone and typewriter. This claim was settled on December 19, 2001 by a partial, permanent award of 45% of the right arm, which equaled 1481/2 weeks of compensation at a rate of $163.43 per week, for a total of $24,270. The order memorializing this award stated that it "approximates 30% right arm and 20% of the hand."

In July 2003, petitioner applied for an increase in the compensation award on the ground that her condition had worsened and as a result she needed additional medical care including surgery. Petitioner also filed a new claim petition, which was consolidated with her application for an increase in the original award. Petitioner's claims were tried before the Division of Workers' Compensation in a five-day hearing.

Petitioner testified she had to have a third surgery on her wrist and forearm after the original compensation award. After the surgery, petitioner had three months of four-day per week physical therapy before returning to work. Despite the surgery and physical therapy, petitioner testified that she continued to suffer severe pain performing her work and was planning to retire early because she could not stand the pain any longer. Petitioner also testified that she no longer goes fishing with her husband because she cannot hook the bait, needs help carrying groceries and cannot garden.

Petitioner's application for an increase in her compensation award was supported by the testimony of two medical experts. Dr. Martin Riss testified that he first examined petitioner in 2000, after she filed her original claim for workers' compensation benefits, at which time he concluded that she suffered a 45% total disability of her right arm and 45% total disability of her right hand. Dr. Riss again examined petitioner after she filed her application for an increase in her workers' compensation award, at which time he found an increase in the loss of motion in both her wrist and elbow. He also found a positive Tinel's sign, which indicated carpal tunnel dysfunction, which was not present during the 2000 exam. Dr. Riss concluded that petitioner has orthopedic disabilities of 65% of the right arm and 75% of the right hand.

Dr. Lawrence Eisenstein, a psychiatrist/neurologist, who only evaluated petitioner after she filed the application for an increase in her compensation award, concluded that she had a neurological disability in her right hand and forearm of 35% and a psychiatric disability of 25%.

Respondent presented the testimony of two medical experts who concluded that petitioner had not suffered any additional disability to her arm and hand since the original compensation award.

The Judge of Compensation credited the testimony of petitioner and Dr. Riss and found that "petitioner had demonstrated increased disability and additional functional loss with respect to both her arm and hand." However, he did not "find any objective medical evidence to support any psychiatric disability." Thus, the Judge of Compensation rejected the part of Dr. Eisenstein's testimony relating to that alleged disability. The Judge found that petitioner's "present disability [is] 40% of [her] arm and 50% of the hand, which is the equivalent of 42.42% partial total for the residuals of orthopedic and neurological consequences[.]"

Based on these findings, the Judge awarded petitioner both 40% of the total loss of an arm (330 weeks), see N.J.S.A. 34:15-12c(9), which equals 132 weeks, and 50% of the total loss of a hand (245 weeks), see N.J.S.A. 34:15-12c(8), which equals 122.50 weeks, for a total of 254.50 weeks. The Judge deducted the number of weeks petitioner had already been paid on her original award, which resulted in a net award of 179.49 weeks at $383 per week, for a total of $68,726.

On appeal, the State argues that petitioner failed to prove any increase in the disability to her arm or hand after the original compensation award. The State also argues, in the alternative, that the award to petitioner was improperly calculated and excessive.

Our review of the factual findings of a Judge of Compensation is limited to determining "'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." Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). We are satisfied that the Judge of Compensation's finding that petitioner suffered "increased disability and additional functional loss with respect to both her arm and hand" after the original 2001 partial, permanent award is supported by sufficient credible evidence and therefore must be affirmed. This evidence consisted of testimony by petitioner and two medical experts. One of those experts, Dr. Riss, examined petitioner both at the time of her original application and at the time of her application for increased benefits. Dr. Riss detailed the differences in petitioner's range of motion tests in his original and subsequent examinations of her, which indicated that her injury had substantially worsened. Additionally, Dr. Riss concluded that petitioner should not return to her current work or to any occupation that involves the manual use of hands, which is a conclusion he did not reach at the time of his prior evaluation. Even the respondent's expert, Dr. Paharia, acknowledged petitioner had undergone an additional surgery since 2001, and he agreed with the surgeon's findings as to "severe scarring of the median nerve in the distal forearm[.]" He also concurred with the finding of the presence of a "neuroma" that "developed as a result of the damage to the nerve that the original doctor tried to repair[.]"

Although we find sufficient evidence in the record to support the Judge of Compensation's finding that petitioner suffered increased disability and functional loss of her arm and hand after the 2001 compensation award, we agree with the State's argument that the Judge of Compensation improperly calculated the amount of the increased award and as a result the award was excessive. In Poswiatowski v. City of Atlantic City, 96 N.J. 321, 330, 334 (1984), the Court held that if a worker suffers permanent, partial disabilities of different parts of the body, a Judge of Compensation should not determine the award based on a mechanical application of the scheduled number of weeks for each injury separately but should instead consider the combined effect of those injuries upon the worker without being limited by the statutory schedules:

Compensation judges must make findings that reflect an evaluation of the multiple injuries in determining whether there is a compensable disability; they must treat the individual as a whole in determining the statutory disability. The method is familiar: "It is not to be solved by adding up the fractional parts, but upon the basis of the percentage of total and permanent disability reasonably found to be produced by the several injuries considered collectively and with due regard to their cumulative effect."

. . . . . . . The compensation court is not to determine the scheduled number of weeks for each injury separately; rather, it is to look at the effect of the injuries and to make a reasonable assessment of the extent of the combined disability in terms of a percentage of permanent and total disability. This requires the court to make a judgment about the extent of impairment resulting from the combined injuries without being limited by the statutory schedules. [Citations omitted.]

The method of determination of partial, permanent disability mandated by Poswiatowski, under which a Judge of Compensation determines the combined effect upon a worker of injuries to multiple parts of the body rather than mechanically applying the scheduled number of weeks for each injury separately, "serve[s] as a cross-check against the duplication of disability awards when there are separate, but overlapping, areas of disability." Ventre v. CPC Int'l, Inc., 285 N.J. Super. 567, 575 (App. Div. 1995). Thus, it is especially important to use this methodology when a worker has suffered injuries to closely related parts of the body.

Petitioner's injuries are to her right hand and right arm. Thus, her areas of disability are clearly overlapping, and it was improper for the Judge of Compensation to calculate the extent of her partial, permanent disability by simply determining the percentages of the disabilities to her hand and arm separately and then mechanically applying those percentages to the statutorily prescribed scheduled of benefits for the total loss of a hand and arm. Instead, the Judge of Compensation should have determined "the extent of impairment resulting from the combined injuries without being limited by the statutory schedules." Poswiatowski, supra, 96 N.J. at 334.

Accordingly, the order for judgment of the Division of Workers' Compensation is reversed, and the case is remanded to the Division for a redetermination of the award to petitioner in conformity with this opinion.

20080319

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