June 27, 2008
ORSOLA DORIA, APPELLANT,
BAYONNE HOSPITAL AND SECOND INJURY FUND, RESPONDENTS.
On appeal from the Division of Workers' Compensation, 1997-7608, 1998-31950, 2000-15341.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 28, 2008
Before Judges Coburn, Chambers and Waugh.
Petitioner Orsola Doria appeals the denial of her claim for total permanent disability set forth in her two petitions for workers' compensation benefits. We find that the findings of the judge of compensation, rejecting her claims for total permanent disability and finding her partial disability of thirty percent due to the accident set forth in her first petition, are supported by substantial evidence, and affirm. We remand solely for resolution of the dispute regarding payment of medical bills.
The record indicates that Doria, born in 1939, had worked in a sewing factory for thirty-five years; she testified that she was exposed to dust and did some lifting when working there. In 1991, she became employed by respondent Bayonne Hospital as a housekeeper. In that capacity, she did cleaning, including mopping the floors, cleaning the bathrooms, changing the bedding, and dusting. This work involved lifting and bending and exposure to cleaning chemicals and dust.
Doria filed two workers' compensation petitions that are the subject of this appeal. The first claim petition (1997-007608) filed on October 11, 1996, arose out of an accident that took place on May 23, 1996, when a ceiling tile fell on her head while she was working at Bayonne Hospital. Doria claimed to be totally and permanently disabled from this accident, asserting orthopedic, neurological, psychiatric, and internal injuries.
The second claim petition (1998-031950), filed on September 4, 1998, alleged occupational disability. In that petition, Doria alleged that she was permanently and totally disabled due to "[o]ccupational exposure to dust, fumes, pulmonary irritants, bending, lifting, repeated manipulations, standing, stress, strain, adverse environment causing occupational conditions and diseases." She alleged impairment of her "chest, lungs, nose, throat, neck, back, knees, arthritis, orthopedic system, hypertension, cardiovascular system, nervous system, neurosis and complications arising therefrom." Her related claim to the Second Injury Fund for occupational exposure was filed on October 5, 1998.
The hearing before the workers' compensation judge spanned eight days. In addition to her own testimony, Doria presented the testimony of three doctors. Dr. I. Ahmad, an orthopedist, diagnosed Doria with a spinal sprain, arthritis and myositis, and concluded that she was totally disabled. Dr. Robert Latimer, a psychiatrist, found that she suffered from post-concussion syndrome, with chronic headaches, fatigue, and depression, and that she had a related adjustment disorder problem because she could not work. He found her totally and permanently disabled. Dr. Sidney Friedman, an internist, found that she had chronic bronchitis of the non-obstructive type and attributed thirty percent partial total disability due to that condition. He attributed twenty percent partial total disability to her hypertension with cardiac disease.
The record also included other medical records and reports including the August 12, 1996, report of Dr. Gregory D. Anselmi, M.D., a neurologist who treated Doria after the ceiling tile accident. In that report, he noted his impression that she suffered a cerebral concussion, post-concussive syndrome, and whiplash injury with possible cervical radiculopathy.
The defense presented the testimony of three doctors who had examined Doria. Dr. Adam Rowen, an internist and pulmonary expert, concluded Doria did not have any pulmonary disability. Dr. Terry Tuchin, a psychiatrist, agreed that Doria suffered post-concussion syndrome from the May 23, 1996, accident, but attributed to Doria only two and one-half percent disability. He did not find her permanently and totally disabled. Dr. Ralph R. Ricciardi, an orthopedist, found no permanent disability. In a lengthy decision placed on the record on April 9, 2007, the judge of compensation accepted some of the medical testimony offered by Doria and accepted some of the medical testimony offered by respondent. He found Doria thirty percent totally disabled on the ceiling tile accident claim, making the following allocation: ten percent partial total disability for cerebral concussion; ten percent partial total disability for post-concussion syndrome; and ten percent partial total disability for cervical sprain. He found that Doria had failed to meet her burden to prove her claim of occupational exposure and that claim was dismissed. Since Doria had failed to prove total disability, the related Second Injury Fund claim was also dismissed. The judge also ordered that Doria provide reimbursement of the temporary disability lien in the sum of $7,065.19. He did not address the dispute regarding unpaid medical bills.
Doria raises the following issues on appeal:
ORSOLA DORIA IS ENTITLED TO PAYMENT OF HER MEDICAL BILLS AND PAYMENT OF TEMPORARY TOTAL DISABILITY.
ORSOLA DORIA IS TOTALLY DISABLED FROM COMPENSABLE OCCUPATIONAL ARTHRITIS.
ORSOLA DORIA IS TOTALLY DISABLED FROM COMPENSABLE ACCIDENT.
ORSOLA DORIA PROVED COMPENSABLE INTERNAL DISABILITY.
ON A GLOBAL BASIS ORSOLA DORIA IS ENTITLED TO TOTAL DISABILITY FROM NJM AND/OR THE SECOND INJURY FUND.
On appeal, we must defer to the fact findings of the judge of compensation provided they "are supported by substantial credible evidence in the record and are not so wide off the mark as to be manifestly mistaken." Tlumac v. High Bridge Stone, 187 N.J. 567, 573 (2006). In making this evaluation, we must consider the judge of compensation's "opportunity to evaluate witnesses' credibility" and "expertise with respect to weighing the testimony of competing medical experts and appraising the validity of . . . [petitioner's] compensation claims." See Ramos v. M & F Fashions, 154 N.J. 583, 598 (1998). Judges of compensation also have "expertise in assessing the nature and extent of the disability." Colon v. Coordinated Transp., Inc., 141 N.J. 1, 11 (1995). Thus, the court will defer to the findings of the compensation judge, provided that he gives "sufficient reasons for his findings to enable appellate review." See Kaneh v. Sunshine Biscuits, 321 N.J. Super. 507, 511 (App. Div. 1999).
After a careful review of the record and applying this legal standard, with regard to the ceiling tile accident, we find that the judge's findings that Doria was not totally permanently disabled but only thirty percent disabled are supported by substantial credible evidence in the record. Similarly, with regard to Doria's occupational exposure claim, we find that the judge's conclusion that Doria had failed to prove this claim is supported by substantial credible evidence in the record.
Once the judge of compensation found that Doria was not totally disabled, he properly dismissed her claim against the Second Injury Fund since monies from that Fund are available only to persons totally disabled and meeting certain other criteria. N.J.S.A. 34:15-95.
The judge of compensation correctly required Doria to provide reimbursement of her temporary disability payments in order to avoid a double recovery. N.J.S.A. 43:21-30(b); Janovsky v. Am. Motorists Ins. Co., 11 N.J. 1, 5 (1952) ("Where an employee is disabled by accident or illness he will generally be entitled to benefits under either the compensation law or the benefits law, but not under both."); Sperling v. Bd. of Review, 301 N.J. Super. 1, 5 (App. Div. 1997) ("[A]ppellant's lump sum settlement of his workers' compensation claim bars him from obtaining temporary disability benefits for the same injury."), aff'd, 156 N.J. 466 (1998).
Finally, Doria contends that certain medical bills arising from the ceiling tile accident have not been paid as required by N.J.S.A. 34:15-15. The claim for payment of these medical expenses was not addressed by the judge of compensation, although unpaid medical bills was listed as one of the stipulated issues to be resolved at the hearing below. We remand for resolution of this issue.
In summary, we affirm the award of thirty percent partial total disability entered on April 9, 2007, on the claim petition arising from the ceiling tile accident (1997-007608). We affirm the dismissal of the second claim petition (1998-031950) alleging occupational disability and the dismissal of the related Second Injury Fund application. We affirm the decision requiring Doria to provide reimbursement of the temporary disability payments received. We remand solely for resolution of the dispute regarding the payment of Doria's medical bills.
© 1992-2008 VersusLaw Inc.