On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, 2002-3816.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Winkelstein and LeWinn.
The Second Injury Fund appeals from a final judgment of the Division of Workers' Compensation holding the Fund liable for fifty percent of petitioner Lawrence Brown's permanent total disability. We reverse.
Petitioner is sixty-four years old. Among other jobs, he was employed as a part-time bus driver for Monmouth Crossing from 1997 through December 2001. While so employed, he sustained a compensable accident to his left knee on October 28, 2000. He nevertheless continued his employment until December 2001, when he left his job after losing vision in his right eye.
In 2002, petitioner filed a claim for workers' compensation benefits based on his knee and leg disability. He did not seek benefits for his eye disorder. The workers' compensation court entered an order on June 11, 2003, authorizing a permanent disability award of thirty percent for petitioner's left leg and knee, with a "credit for 5% of the leg."
In March 2005, petitioner filed an application for review or modification of the June 2003 award, and in November 2005, he petitioned for Second Injury Fund benefits. The workers' compensation court bifurcated the case, and the trial between petitioner and Monmouth Crossing commenced on April 26, 2006, and continued on June 28, 2006; September 20, 2006; and October 6, 2006. The Fund was not a party to this trial, during which the following facts were elicited.
Petitioner continued to receive treatment for his left knee, which caused him difficulty walking. As a result of favoring his left knee, he developed a right knee injury, a torn meniscus, for which he required two surgeries. He suffers from constant pain and swelling in his right knee and wears braces on both legs.
Dr. Floyd Krengel, D.O., who examined petitioner in 2005, diagnosed him with left and right knee disorders. He estimated petitioner's disability at sixty-six and two-thirds percent on the left leg and fifty-five percent on the right leg. He opined that the petitioner was "100 percent totally and permanently disabled" based on his knee disorders and his "other disabilities, pulmonary and eye, which are most serious."
As Dr. Krengel observed, petitioner has a history of other medical conditions. In the early 1990's, he began having problems with his lower back. He has asthma dating back to 2000, and an enlarged heart and high blood pressure that require medication. He had surgery in the late 1990's to remove his thyroid and requires daily medication to treat that condition. As noted, in December 2001 petitioner was found to have lost his vision in his right eye. It is the date of the onset of that condition that is primarily at issue in this appeal.
Dr. Warren Klein, a board certified ophthalmologist, testified that petitioner was diagnosed with a chronic branch vein occlusion of the right eye on December 1, 2001, which required surgery. A branch vein occlusion is the "closing of the main veins in the retina related to [sic] usually hypertension." Symptoms are "visual disturbances. . . . He could see spots. He could see floaters. He would have [more difficulty] using the eye. If his eye waters, it's more from strain than anything else." Dr. Klein opined that petitioner was one hundred percent disabled in the right eye, and seventy-five percent disabled in both eyes because of cataracts in the left eye. As to the onset of the disabling right eye disorder, Dr. Klein testified that:
The records that I have indicate that [petitioner] had some visual complaints in his eyes dating back to 1997, but this vein occlusion is a result of hypertension. I have retinopathy that occurs spontaneously.
I mean, basically he didn't have a retinal branch vein occlusion that was decompensating his vision in 1997. Basically the symptomology started before. All we know is that in the 12-1-01, that was when the doctor noted a chronic branch occlusion of the right eye. I don't know exactly when it started.
Dr. Klein was of the opinion that, based solely on petitioner's knees, he was not totally and permanently disabled because he could perform sedentary activities. The doctor did not testify as to what extent petitioner's eye disorder contributed to his overall disability.
On November 17, 2006, the compensation court found that petitioner was totally and permanently disabled. The ...