On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition No. 2007-20009.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern and Sapp-Peterson.
Respondent, Healthsouth, appeals from the order of judgment entered by a judge of the Division of Workers' Compensation on November 5, 2007, directing it to pay "medical and temporary benefits," including bills petitioner, Nancie Anzalone, incurred for shoulder surgery she underwent for a work related injury. Respondent contends the judge of compensation improperly accorded greater weight to the testimony of petitioner's evaluation expert than to the opinion of petitioner's treating physician, "did not make findings sustaining a causal relationship that are supported by the medical evidence[,]" "disregarded the material degree standard in considering whether the work incident was a contributing factor to the need for surgery[,]" and improperly denied its "request to present lay testimony." We have considered these arguments in light of the record, the arguments of counsel and applicable principles, and we are satisfied (1) that the findings of the workers' compensation judge are supported by substantial credible evidence in the record, (2) that the judge did not err in according greater weight to the testimony of petitioner's expert, (3) that the excluded lay opinion testimony would not have altered the outcome and therefore the exclusion of this testimony was not harmful error, and (4) that the court did not disregard the material degree standard.
Petitioner worked as a floor nurse for respondent and, at the time of her injury, had been working for respondent for three months. According to petitioner, on Friday, March 23, 2007, while working the evening shift, petitioner was wheeling a blood pressure cuff affixed to a stand when the stand, which stood about three feet high, tilted. Petitioner reached for the stand with her right arm and felt a burning pain go down her arm to the elbow. She reported the incident to the charge nurse, who reported the matter to the supervisor. Petitioner was told to go the emergency room. Petitioner went to the Ocean Medical Center in Bricktown around 6:00 a.m. the next day where x-rays were taken of her right arm. The x-rays revealed osteopenia and mild osteoarthritic change. Petitioner was placed in a sling and discharged. Petitioner went to work on Monday but reported that she did not feel she could work because of the pain. She was sent to the Community Medical Center (Community), located across the street from Healthsouth. The doctor who treated her diagnosed a bad sprain. Although she returned to Healthsouth, petitioner was still unable to work and took off for about two days. When she returned to work, she was placed on "modified" duty. For the next three weeks, petitioner continued to see the doctor at Community, and although she repeatedly told him she was feeling no better, his initial diagnosis remained unchanged; a bad sprain and arthritis.
At the suggestion of Healthsouth's employee health nurse, petitioner began a three-week course of physical therapy and was referred to Dr. Toby Husserl, an orthopedist, on April 24, 2007.
In a report authored the same day, Dr. Husserl diagnosed petitioner with a "[r]ight shoulder strain, four weeks' duration, occupationally induced." His report also notes that petitioner told him that prior to injuring her right arm trying to catch the falling blood pressure cuff, she had not experienced any previous shoulder problems or difficulty.
At petitioner's request, Dr. Husserl ordered an MRI which revealed (1) "[s]upraspinatus, infraspinatus and subscapularis tendinosis with a large bursal surface tear of the supraspinatus tendon measuring approximately 1.4 cm anterior to posterior";
(2) "[m]oderate joint effusion"; and (3) "[m]oderate amount of fluid in the subacromial/subdeltoid bursa consistent with bursitis." Following his review of the MRI findings with the radiologist, Dr. Husserl authored a second report on June 5, 2007, in which he opined that petitioner has suffered "a significant rotator cuff injury of the right shoulder girdle representing a traumatic inflammatory rotator cuff tear, [for] which I would recommend surgical arthroscopic decompression repair as it appears to be nearly full thickness or full thickness and will certainly progress if not remedied." Dr. Husserl also put petitioner on light duty.
Respondent authorized treatment for petitioner's injuries and continued petitioner on light duty until early July. At that time, respondent denied further treatment because its review of Community's records of petitioner's March 26, 2007 visit disclosed that petitioner reported she started having pain in her shoulder three weeks earlier while exercising at a gym. Respondent also learned that petitioner had reported this earlier injury to her charge nurse.
On July 25, 2007, petitioner filed a claim petition for workers' compensation benefits under the Workers' Compensation Act (Act), N.J.S.A. 34:15-1 to -128, and on August 15, 2007, filed a Notice of Motion for Temporary and Medical Benefits, pursuant to N.J.A.C. 12:235-3.2. In the motion, petitioner sought reinstitution of treatment and temporary disability benefits retroactive to petitioner's termination.*fn1
The hearing on the motion commenced the following month. In addition to herself, petitioner presented Dr. Cary Skolnick, a board certified orthopedic surgeon, while respondent presented the treating physician to whom it referred petitioner for treatment, Dr. Husserl. Respondent also sought to present one of its supervising nurses, Mary Jean Natoli (Natoli), whose proposed testimony would be that petitioner called out sick before the work incident because "she hurt her arm[.]" The judge denied this request and also precluded respondent from introducing an affidavit of Natoli as well.
Petitioner testified that three weeks before the work-related injury, she experienced pain in her arms a day after she had worked out at the gym. She mentioned, during a work orientation class the next day, "my arms hurt. I must have worked out too hard yesterday." She did not seek treatment for this pain. She continued to work over the next three weeks, during which time she "lift[ed] these big machines[,]" maneuvered stroke patients around "in order to change them and put diapers on them and whatever they needed." During the course of those three weeks leading up to the work injury, other than the initial aching she felt for two days after working out at the gym, she had no further symptoms. On cross-examination, she denied taking any over the-the-counter medication for the initial pain she experienced in her arms the day after the gym workout, but acknowledged that she did call out sick that weekend, which would have been the first weekend duty she had been scheduled to work. She returned to work on Monday and, in addition to working without incident over the next three weeks, petitioner testified that she continued to exercise at the gym, using the treadmill and free weights.
Dr. Skolnick testified that petitioner had a pre-existing rotator cuff pathology prior to her ...