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Illions v. Sayreville Board of Education


April 14, 2008


On appeal from the Department of Labor, Division of Workers' Compensation, Docket No. 2005-37863.

Per curiam.


Argued January 24, 2008

Before Judges Parker and Coleman.

Respondent Sayreville Board of Education appeals from an order entered in the court of workers' compensation on January 11, 2007 awarding petitioner temporary disability and medical care benefits as directed by the expert physician. Petitioner was also awarded $460 in fees. We affirm.

Petitioner's claim arose when she fell on Board of Education property on December 8, 2005. Prior to the accident, petitioner had arthroscopic surgeries performed on both knees. Just prior to the fall, on November 17, 2005, petitioner had an MRI of her left knee, which indicated that she had a medial meniscal tear and joint effusion. Petitioner was treated by Michael Cunningham, M.D., who had performed the arthroscopic surgery.

On December 12, 2005, she saw Steven Lisser, M.D., and reported severe pain in her left knee. Dr. Lisser prescribed physical therapy for petitioner's knee, neck and back. On December 19, 2005, petitioner returned to Dr. Lisser who then indicated that she had sprains and strains in her neck, lower back and both knees.

On January 5, 2006, an MRI of the left knee showed a tear in the body and posterior horns of the medial meniscus considered to be degenerative in etiology; the lateral meniscus and ligaments were intact, but there were mild to moderate degenerative changes of the patellofemoral joint with more permanent change involving the medial aspect of the patellofemoral; mild degenerative changes in the medial compartment; and small joint effusion.

Petitioner continued treatment and physical therapy after the fall, but experienced on-going discomfort. On May 1, 2006, she had a second arthroscopic surgery on her left knee. The operative report indicated, among other things, that there was a complex tearing of the posterior third into the posterior horn of the medial meniscus.

The issues before the court of compensation were (1) whether petitioner's fall on December 8, 2005 caused a worsening of her condition and the need for the second arthroscopic surgery; and (2) whether petitioner required further treatment for her back, neck and shoulders.

After hearing the testimony, the workers' compensation court found that petitioner was "a very credible witness" and "was very credible with respect to her complaints as to her pre-existing knee problems." The court reviewed the medical testimony, including the conflicting testimony as to whether the tear in the meniscus was aggravated by the December 8, 2005 fall, and accepted the testimony of Dr. Berkowitz who concluded that petitioner "had a pre-existing small tear in her left knee and that that small tear became a large tear as a result of her work-related accident." The court of compensation specifically noted that there were MRIs shortly before and after the December 8 fall that supported petitioner's claim. Accordingly, the compensation court found "aggravation of that tear and that the widening and increasing was not degenerative in nature, and that Dr. Lisser was wrong in his opinion with respect to his analysis of this [p]petitioner's injuries," and awarded petitioner medical care and temporary disability benefits.

In this appeal, respondent argues that (1) the compensation court's findings of fact are contrary to the evidence and should be reversed; and (2) petitioner requires no additional treatment after the May 1, 2006 surgery and the January 11, 2007 order is moot.

Our scope of review of a workers' compensation award "is limited to a determination of whether the findings and conclusions of the [court] of compensation could reasonably have been reached on sufficient credible evidence in the record, considering the proofs as a whole, giving due regard to [its] expertise in the field of workers' compensation and [its] opportunity of seeing the witnesses and evaluating their credibility." Perez v. Capitol Ornamental, 288 N.J. Super. 359, 367 (App. Div. 1996); accord Close v. Kordulak Bros. Inc., 44 N.J. 589, 599 (1965). The factual findings and legal conclusions of the workers' compensation court shall not be disturbed unless they are "'manifestly unsupported by or inconsistent with competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Perez v. Monmouth Cable Vision, 278 N.J. Super. 275, 282 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995) (quoting Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 484 (1974)).

A petitioner has the burden of establishing that there is a "'causal connection between the employment and the injury.'" Verge v. County of Morris, 272 N.J. Super. 118, 124 (App. Div. 1994) (quoting Coleman v. Cycle Transformer Corp., 105 N.J. 285, 290 (1986)). Petitioner must establish this causal link by the "preponderance of the evidence." Laffey v. City of Jersey City, 289 N.J. Super. 292, 303 (App. Div.), certif. denied, 146 N.J. 500 (1996).

The standard is one of reasonable probability; i.e., whether or not the evidence is of sufficient quality to generate a belief that the tendered hypothesis is in all likelihood the truth. The evidence must be such as to lead a reasonably cautious mind to the given conclusion. "It need not have the attribute of certainty, but it must be well founded in reason and logic; mere guess or conjecture is not a substitute for legal proof." [Lister v. J.B. Eurell Co., 234 N.J. Super. 64, 72 (App. Div. 1989) (quoting Ciuba v. Irvington Varnish and Insulator Co., 27 N.J. 127, 139 (1958).]

Here, respondent argues that the compensation judge should not have relied upon Dr. Berkowitz's report dated January 20, 2006, because it was outdated. Respondent suggests that because petitioner did not complete physical therapy under Dr. Lisser until March of 2006, Dr. Berkowitz's recommendation of physical therapy and surgery was unreliable. We disagree.

Petitioner had the benefit of an MRI scan taken less than a month before her accident and another taken approximately 90 days later. Dr. Berkowitz had the opportunity to review petitioner's MRI reports and testify to the changes he observed in petitioner's left knee. He testified that there was a "small tear of the posterior horn of the medial meniscus" prior to the December 8, 2005 injury, and after the injury there was a large tear of the posterior horn of the medial meniscus. He opined that the large tear in the knee was caused by "[a]n extension of the small tear as a result of the accident."

In his January 20, 2006 report, Dr. Berkowitz prescribed physical therapy for petitioner's cervical spine and shoulders but not her left knee. Rather, he stated that petitioner was "a candidate for arthroscopic surgery of her left knee." This infers that physical therapy prior to surgery would not have improved the tear in petitioner's left knee. The fact that petitioner continued physical therapy until March under Dr. Lisser's care has no effect on the reliability of Dr. Berkowitz's report.

Respondent further argues that Dr. Lisser's "cogent" and "logical explanation" as to the extent of the medial meniscus tear should be accorded greater weight than Dr. Berkowitz's opinion because Dr. Lisser was the treating physician.

A compensation court must give consideration to medical "testimony and evaluate it based upon the doctor's qualifications and demeanor, the inherent trustworthiness of the testimony, and the quality of the underlying examination upon which the opinions are based." Margaritondo v. Stauffer Chemical Co., 217 N.J. Super. 560, 563-64 (App. Div. 1985). Where medical testimony conflicts, greater weight is generally accorded to the treating physician's testimony. Bialko v. H. Baker Milk Co., 38 N.J. Super. 169, 171 (App. Div. 1955), certif. denied, 20 N.J. 535 (1956); accord, Bird v. Somerset Hills Country Club, 309 N.J. Super. 517, 522-23 (App. Div. 1998). The "treating physician is often in a better position to express opinions as to cause and effect." Bird, supra, 309 N.J. Super. at 522.

It is, however, "undisputed that the judge of compensation 'is not bound by the conclusional opinions of any one or more, or all of the medical experts.'" Perez, supra, 288 N.J. Super. at 367 (quoting Lightner v. Cohn, 78 N.J. Super. 461, 465 (App. Div. 1962). "That [a compensation court] gave more weight to the opinion of one physician as opposed to the other provides no reason to reverse . . . judgment." Smith v. Montgomery Nursing Home, 327 N.J. Super. 575, 579 (App. Div. 2000). Moreover, "so long as the judge's findings are supported by articulated reasons grounded in the evidence, [the appellate court] must give deference to his [or her] expertise in assessing disability." Perez, supra, 288 N.J. Super. at 367.

The compensation court adopted Dr. Berkowitz's testimony in concluding that petitioner's small pre-existing tear became a large tear as a result of her work related accident. In doing so, the compensation court found that Dr. Berkowitz's testimony "[made] more sense based upon the [p]petitioner's complaints, the MRIs, and the relatively short time frame of approximately 90 days" between the two reports.

The compensation court stated it was "very cognizant of the law with respect to providing greater weight to the authorized treating doctor's opinion as opposed to that of an examining doctor." Nevertheless, it found that "Dr. Lisser's opinion as to the tear being solely degenerative in nature [was] not supported by the weight of the evidence, either through Petitioner's testimony of how she felt before [and after] the fall . . . or the actual viewing of the prefall MRI versus the postfall MRI." We are satisfied that the findings of the compensation court as to petitioner's motion for medical benefits are supported by sufficient credible evidence in the record. R. 2:11-3(e)(1)(A).

Respondent next argues that the compensation court's decision has been rendered moot because petitioner no longer requires the treatment outlined by Dr. Berkowitz in his January 2006 report. We disagree.

Pursuant to N.J.S.A. 34:15-15, "[t]he employer shall furnish to the injured worker such medical, surgical and other treatment . . . as shall be necessary to cure and relieve the worker of the effects of the injury and to restore the functions of the injured member . . . where such restoration is possible." Moreover, "[i]f the employer . . . refuse[s] or neglect[s] to comply with the foregoing . . . the employee may secure such treatment and services as may be necessary . . . and the employer shall be liable to pay." Ibid.

To be entitled to payment of its medical bills, the petitioner must have suffered a compensable injury; that is an injury "arising out of and in the course" of employment. N.J.S.A. 34:15-7. Additionally, the medical services received by the petitioner must be necessary for treatment of the injury, and the fees for such services must be reasonable. N.J.S.A. 34:15-15.

Here, petitioner filed a workers' compensation claim petition on December 30, 2005 and a notice of motion for temporary disability and medical benefits on January 25, 2006. The trial on petitioner's motion for temporary benefits and medical treatment commenced in April 2006 with petitioner's testimony. In May, prior to completion of the trial, petitioner had arthroscopic surgery on her left knee, as has been recommended by Dr. Berkowitz in his report. Payment for the surgery was processed through petitioner's private health insurance carrier.

The compensation court rendered its decision on January 11, 2007, and adopted Dr. Berkowitz's testimony. Respondent now argues that because the medical care as described in the report had already been furnished at the time the decision was rendered, and because there is no outstanding treatment required by petitioner, it is unable to comply with the workers' compensation order.

Although petitioner may not be in current need of medical treatment, she is not precluded from making a later application on the ground that her disability has increased. See N.J.S.A. 34:15-27. "A formal award, determination and rule for judgment or order approving settlement may be reviewed within 2 years from the date when the injured person last received a payment" provided an application is made "on the ground that the incapacity of the injured employee has subsequently increased." N.J.S.A. 34:15-27.

In Colbert v. Consolidated Laundry, 31 N.J. Super. 588, 592 (App. Div. 1954), we determined that under N.J.S.A. 34:15-27, an injured employee, who had previously been awarded temporary disability and medical expenses, can recover compensation for temporary disability and medical expenses upon a relapse that did not increase permanent disability. The fact that petitioner sought medical treatment on her own after respondent refused to furnish the necessary and reasonable treatment prescribed by Dr. Berkowitz does not relieve respondent of its statutory obligation. See N.J.S.A. 34:15-15. The fact that petitioner obtained treatment, paid by her private health insurance carrier, prior to the decision of the workers' compensation court does not render moot the decision requiring respondent to furnish treatment.



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