May 30, 2008
PETER R. DELLI SANTI, PETITIONER-APPELLANT,
ESSEX RECYCLING & FIBERS, INC., NEWARK DISPOSAL SERVICE, INC., AND THE SECOND INJURY FUND, RESPONDENTS-RESPONDENTS.
On appeal from the New Jersey Department of Labor and Work Force Development, Division of Workers' Compensation, Nos. 95-22307, 98-12045, 98-12040 and 98-12572.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 12, 2008
Before Judges Graves and Sabatino.
Petitioner, Peter R. Delli Santi, appeals as insufficient a March 26, 2007 final judgment of the Division of Workers' Compensation awarding him certain benefits. The judgment was entered after a multi-day trial, at which petitioner testified and the parties presented five medical experts. We affirm.
Petitioner is a fifty-nine-year-old man who worked for almost thirty years in the garbage hauling business. At the age of nineteen he started his own company, Newark Disposal Services, Inc. ("Newark Disposal"). In the early 1980's, he formed a second related company, Essex Recycling & Fibers, Inc. ("Essex Recycling"). Petitioner was involved in virtually all non-clerical aspects of the businesses, including driving the trucks, loading and unloading garbage, sorting recyclables, and repairing the equipment.
In April 1992, petitioner injured his back at work while replacing the wheel bearings on a loader. Based upon post- accident medical examinations and an MRI study taken in the fall of 1993, petitioner's doctors concluded that he had suffered a herniated disc between the fourth and fifth lumbar vertebrae ("L4-5"). Another MRI taken in August 1993 showed that petitioner also had degenerative disc disease, as well as bulging discs, in several other lumbar vertebrae. A later MRI study taken in 1995 showed that the L4-5 herniated disc had resolved. That 1995 MRI also showed that petitioner had developed mild spinal stenosis at the L3-5 levels, as well as mild to moderate degenerative changes and several bulging discs intermittently within the L2-S1 levels.
In June 1996 petitioner filed a workers' compensation disability claim based upon his 1992 accident. Petitioner and Essex Recycling reached a settlement on that claim, which was approved by the compensation court on January 21, 1998. Petitioner received a 37.5% partial total disability, for what was specified in the settlement order as "orthopedic and neuro-psychiatric residuals of a herniated disc [at] L4-5 in remission with stenosis and left radiculopathy and adjustment disorder with depression." As a result of the settlement, petitioner received $218 weekly for 205.5 weeks, or $43,164.
Petitioner also filed a claim for disability benefits with the Social Security Administration. After his initial claim was rejected in 1994, he re-filed in December 1998. Following a hearing, a Federal administrative law judge (ALJ) deemed petitioner "disabled," for purposes of Social Security law, after August 1, 1997. This finding was largely based on the ALJ's determination that petitioner had injuries in his back and his right knee.
Petitioner alleges that his health declined following the April 1992 accident that led to his initial workers' compensation claim. A May 1998 MRI showed that he had a new herniated disk at the L1-2 level. Another MRI performed in July 1998 showed annular tears of multiple levels, a cervical disc herniation at C4-5, and a chronic disc osteophyte complex at C5-6. Further MRI testing showed that petitioner had developed severe spinal stenosis and other degenerative problems with his back. Eventually, petitioner underwent back surgery in March 2002, which fused the discs at the L2-3, L3-4, and L5-S1 levels.*fn1
Petitioner also contends that he has developed asthma and other pulmonary illnesses and his knee condition has worsened. He also began seeing a psychiatrist in the late 1990's and was prescribed various antidepressants, which he continues to take. He has sold his two garbage businesses, and he alleges that he has not worked since 1992. Since that time, petitioner has become a full-time commercial landlord. He contends that he only does incidental chores, such as driving monthly to collect rent checks from his tenants and helping his wife with her limousine business by occasionally taking cars to the car wash or gas station.
On April 7, 1998, petitioner filed three new claim petitions seeking workers' compensation from his former employers, Essex Recycling and Newark Disposal. These claims were identical in nature, alleging that petitioner was totally disabled due to injuries to his pulmonary system, ears, nose, throat and eyes. Petitioner further alleged that these injuries were caused by "[exposure] to dust[,] fumes, noxious substances, industr[ial] waste, asbestos, hazardous [hospital] disposal chemicals, and other deleterious substances," as well as exposure to loud and repetitive noises.
Two of these new claim petitions, 98-12040 and 98-12045, were filed against Essex Recycling. The first claim listed Liberty Mutual Insurance as Essex Recycling's insurer and pertained to the dates of that insurance coverage, from August 22, 1989 to October 1, 1991. The second petition listed CIGNA WCC as an insurer for the ensuing policy period. The third claim petition, 98-12572, was filed against Newark Disposal, which was insured by New Jersey Manufacturers. Respondents opposed these claims. On August 16, 2001, petitioner amended his three claims to add injuries to his neck, back, knees and legs, and to claim neurological and psychiatric injuries. Petitioner specifically alleged that he had become "totally disabled."
Petitioner also filed an application in December 1999 seeking a review and modification of his original award from January 1998 under claim 95-22307. Petitioner alleged that the pain in his back and legs, since the time of the settlement, had worsened, forcing him to take more medication, and causing increased depression. Petitioner also asserted claims against the Second Injury Fund.
Petitioner's claims were consolidated and listed for trial. The trial took place over intermittent dates between December 2004 and September 2006, before Compensation Judge Rose Mary Granados.
Petitioner presented at trial testimony from three expert witnesses: Edwin A. Turner, M.D., a specialist in preventative and occupational medicine; Paul J. Kiell, M.D., a neurologist and neuropsychiatrist; and Malcolm H. Hermele, M.D., an internist. Petitioner did not present expert testimony regarding his claims related to his eyes, ears, and nose, but instead relied upon written reports admitted into evidence.
Petitioner also testified himself, and described his health problems at length.
The defense presented two expert witnesses in its own case. First, it offered the testimony of Walter Flax, M.D., an orthopedist who had examined petitioner on several occasions in 1992, 1993, 1994, 1997 and 2002. Dr. Flax acknowledged that petitioner has a disabling back condition, but opined that the disability is primarily the result of his surgery.
The defense also called Ivan Dressner, M.D., a neurologist and neuropsychiatrist. Dr. Dressner examined petitioner in August 2002. He opined that petitioner's chronic back pain was not caused by the 1992 accident, but rather by degeneration and other causes associated with the aging process. He particularly noted that the original herniated disc at L4-5 diagnosed after the 1992 accident had disappeared by 1995, and that subsequent MRIs had not found objective evidence of a disc herniation at that location. He further opined that the stenosis appearing at other levels of the spine had not resulted from the 1992 accident. Consequently, he found that petitioner had no present disability stemming from the 1992 accident.
With respect to petitioner's psychiatric claims, Dr. Dressner noted other difficulties that petitioner has had in his life, including a long-standing dispute with the Internal Revenue Service, the divorce of his first wife, who died of lung cancer, difficulties with his children, and surgery to remove polyps from his throat and a sarcoid from his tongue. Dr. Dressner opined that it was impossible for him to determine the extent to which petitioner's psychiatric problems resulted from his back injury, as opposed to those other challenging life experiences. In this respect, Dr. Dressner's testimony meshed with a May 2002 report of petitioner's treating psychiatrist, R. Christopher Stuckey, M.D., in which Dr. Stuckey explained that "[a] very significant part of [petitioner's] depression is caused by his ongoing IRS problems that have and continue to take a toll on [petitioner] and his family."
In addition to its competing medical testimony, the defense presented surveillance videotapes taken of petitioner in July and October 1997, and in May 1998. These videotapes showed, among other things, petitioner driving a yellow Corvette, and at another time driving a large SUV. He was observed loading the back of the SUV with bags of items he purchased, and then later unloading them. The tape made in May 1998 also showed petitioner and another person pushing a small car out of a parking space on his property. Petitioner contended at trial that the car, a Yugo, had no motor and no transmission in it at the time, and thus was relatively light.
Upon considering all of these proofs, Judge Granados issued a written decision on March 26, 2007. After reciting the relevant facts, the judge observed that "[p]petitioner's overwhelming disability is due to his spine. The issues here are whether his present condition is causally related to the accident of April 3, 1992 and, if so, the extent of his injury."
Judge Granados specifically rejected the opinion of petitioner's orthopedic expert, Dr. Turner, that plaintiff's subsequent back problems were all related to the original herniated disc from the 1992 accident. Instead, the judge found:
The original herniation occurred solely at the L4-5 level, and it subsided according to the 1995 MRI. In 1998, that L-4, L-5 disc was still in remission; instead, a disc appeared at the L-2 level. Dr. Turner painted a picture of numerous herniations that went downhill, but his version of the facts does not conform to the surgical records and the MRI reports.
The judge instead credited respondent's expert, Dr. Dressner, finding that he was "the only examining physician that gave a full and cogent explanation of causal relationship that took into consideration the findings of the treating physicians and the objective tests." Consequently, the judge dismissed petitioner's claim to modify the prior 1998 award, "for failure to sustain the burden of proof."
Judge Granados also dismissed petitioner's occupational exposure claims, again finding a lack of proof. She noted that "while [petitioner] was exposed to dust and fumes, he was working in the outdoors. Moreover, he smoked from age nine until just after he had back surgery in 2002." The judge likewise found petitioner's evidence lacking as to injuries to his eyes and nasal passages, determining that "[t]here is no problem with his vision," and that his nasal claim was "most likely related to his allergies."
The judge did credit petitioner's claims based on hearing loss, finding that petitioner's "audiogram shows a binaural loss of 28% according to the state mandated formula." She thus awarded petitioner a 28% partial disability for the hearing loss claim. She assessed this award against Essex Recycling, noting that petitioner spent most of his time at its work site and that Essex Recycling had "the most machinery and noise." By comparison, the judge noted that petitioner's work with Newark Disposal involved the transporting of garbage, and the judge found the noise exposure related to that aspect of work to be less damaging. She thus dismissed the claims against Newark Disposal.
Lastly, Judge Granados dismissed the claims against Liberty Mutual, as the pre-1991 insurer of Essex Recycling. She also dismissed petitioner's claim against the Second Injury Fund because the proofs did not establish that petitioner was "totally and permanently disabled as a combination of his accident, occupation exposure, and pre-existing disabilities."
Petitioner now appeals those aspects of the final judgment denying his new claims. Essex Recycling has not cross-appealed the hearing loss award.
On appeal, petitioner argues that Judge Granados erred in finding that his present maladies, apart from the hearing loss, were not caused, aggravated, and/or accelerated by the April 1992 accident. He maintains that he is totally and permanently disabled as the result of that accident, and that the settlement that he negotiated in January 1998 is inadequate to compensate him for those injuries. Alternatively, he argues that he is totally and permanently disabled as a combination of the injuries from the April 1992 accident, plus pre-existing conditions.
Our scope of review of the compensation judge's factual findings is limited. Our appellate role is simply to analyze "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole, with the due regard to the opportunity of the one who heard the witnesses to judge of their credibility.'" Sager v. O.A. Peterson Constr., Co., 182 N.J. 156, 164 (2004) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). In addition, we give due regard to the judge's expertise in the field of workers' compensation. Ibid. We do not "'engage in an independent assessment of the evidence as if [we] were the court of first instance.'" Ibid. (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). Rather, where the judge's factual determinations are "supported by adequate, substantial and credible evidence," they should be affirmed on appeal. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974).
Measured by these deferential standards, we are satisfied that Judge Granados's decision in this case is amply supported by substantial and credible evidence in the record. The judge sifted through extensive competing proofs presented by five medical experts, numerous reports, materials from the 1997 Social Security hearing, the testimony of petitioner himself, and the surveillance films. The judge had the unique opportunity to assess the credibility of the live witnesses. Her opinion is thorough and soundly reasoned. Consequently, we affirm the judgment, substantially for the reasons cogently expressed by Judge Granados. We add only a few comments.
Petitioner contends, in essence, that his body and mind have been debilitated to the point that he is no longer able to engage in any sort of gainful employment. Even if we were to accept that premise and overlook the surveillance films and the testimony of the defense experts suggesting that petitioner's injuries are not as severe as he portrays them, the adverse outcome he received in this case mainly stems from petitioner's failure to prove causation arising from the April 1992 accident. Petitioner had the burden of proving such causation. Schiffres v. Kittatinny Lodge, Inc., 39 N.J. 139, 148-49 (1963). Judge Granados had more than sufficient reason, including the testimony of Dr. Dressner, whom she credited, to find that burden was not sustained.
Petitioner stresses that the operative report from 2002 indicates that his spinal compression was most severe at the L4-5 level. Even if that is so, petitioner stipulated in the January 1998 settlement, consistent with the most recent diagnostic studies then available, that his L4-5 disc herniation was in remission. There is an ample basis in the record for Judge Granados to conclude that the causal link to the April 2002 accident was broken, and that petitioner's ensuing back problems arose from degeneration and other causes.
With respect to petitioner's claimed pulmonary disability, the trial judge found Dr. Hermele's opinions to be less than credible, as they largely were based on what petitioner was relaying to him rather than objective reports. Pulmonary testing conducted by Dr. Hermele was within normal limits. Dr. Hermele also failed to explain, convincingly, why petitioner's regular smoking from the age of nine was not the fundamental source of his breathing problems rather than occupational exposure. Moreover, petitioner admitted that he had been taking asthma medication since at least 1994, which suggests that petitioner's pulmonary exposure claims are time-barred because they were not filed within two years. N.J.S.A. 34:15-34.
As to petitioner's depression, the other stressors in petitioner's life, including his lengthy battle with the IRS underscored by his own treating psychiatrist as his primary source of depression, provide a sufficient basis to reject petitioner's assertion that his psychiatric disability is work-related.
Finally, we readily sustain the compensation judge's dismissal of petitioner's claims against the Second Injury Fund. Even if petitioner were found to be totally and permanently disabled, and the 1992 accident were at least a partial cause, he would still have no right to benefits under the Fund.
Petitioner produced no evidence of a pre-existing condition linked to his present disability. See Walsh v. RCA/General Elec. Corp., 334 N.J. Super. 1, 6 (App. Div. 2000). Although he did recite some medical problems that he had prior to the 1992 accident, notably high blood pressure and mitral valve prolapse, there was no testimony at trial demonstrating that these problems contributed to petitioner's present ailments. Instead, petitioner's circumstances fall into a category not covered by the Fund: physical deterioration subsequent to a work-related injury. See N.J.S.A. 34:15-95(d).
The March 26, 2007 final judgment of the compensation court is affirmed in all respects.