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Ferrigno v. Tyco International


August 15, 2008


On appeal from the New Jersey Department of Labor, Division of Worker's Compensation, Claim Petition Nos. 2002-7572 and No. 2005-13092.

Per curiam.


Submitted April 22, 2008

Before Judges Winkelstein and LeWinn.

Petitioner appeals from two orders of the Workers' Compensation Court: (1) the October 20, 2006 order denying petitioner's motion for medical and temporary disability benefits; and (2) the January 25, 2007 order approving settlement with dismissal.

On appeal, petitioner raises six claims of trial error and a seventh claim that the permanency award was flawed. We find these claims to be without merit. We affirm substantially for the reasons set forth in the decision of the Workers' Compensation judge, which is based on "findings of fact . . . adequately supported by [the] evidence[.]" R. 2:11-3(e)(1)(D).

Petitioner sustained a work-related injury on July 26, 2001, when he was employed as a fire alarm inspector for respondent, Tyco International, Ltd. (Tyco). Petitioner was sitting in his company van, with his back to the driver's side door, preparing a report on his laptop, when the van's side airbag deployed. An independent medical examination on August 1, 2001, resulted in a diagnosis of "neck and back strain." Petitioner was approved to return to work on October 8, 2001. He worked until January 7, 2002, when he informed Tyco that he "was going back on compensation" because he was "still hurting."

Dr. Peter Blumenthal examined petitioner on March 1, 2002, and diagnosed him with "[r]ecurrent cervical and lumbosacral strain" and "[p]ain behavior." Dr. Blumenthal noted: "Mr. Ferrigno is a difficult man to work with. He is concerned with one thing; namely a note that declares him disabled so that he 'can collect.'" When Dr. Blumenthal told petitioner to produce his prior medical records before any further treatment could be ordered, petitioner "immediately balked," stating that his records were held by a former attorney with whom he no longer spoke. Dr. Blumenthal concluded that petitioner had "good shoulder movements without impingement"; he was "definitely not a surgical candidate" and was "not totally disabled."

Petitioner filed a compensation claim against Tyco on March 19, 2002. He received physical therapy until April 27, 2002, when he was discharged, all work restrictions were lifted, and his disability benefits ended.

After his disability benefits ended, petitioner applied for and received unemployment compensation benefits for nine months, during which time he repeatedly certified that he was able to work and was seeking employment. The day after petitioner's unemployment benefits expired, he went to work for his cousin, a masonry contractor. In that job, petitioner powerwashed bricks, drove a forklift and a truck and "[o]nce in awhile" would "pick up a couple of planks or pick up a couple of bricks."

A December 13, 2002 medical evaluation for the airbag accident resulted in a finding of "permanent disability of 2 percent of total secondary to the cervical sprain and 2 percent of total secondary to the lumbosacral sprain." Petitioner continued working for his cousin until August 2003.

At the end of August 2003, petitioner began to work for another cousin who owned B&F Masonry. He sought no further medical treatment related to the airbag accident after physical therapy ended in April 2002.

A hearing was scheduled to settle the airbag accident matter based on the permanency evaluations. Trial was scheduled for August 23, 2004.

However, on May 6, 2004, while working at B&F Masonry, petitioner was hit on the head by a piece of a steel bar. An MRI scan showed "no intracranial process." Petitioner experienced "post concussive headaches" for several months, for which he was treated with Naproxen, Elavil and Topomax. Although petitioner had not seen a doctor since April 2002 for any treatment related to his airbag accident, immediately after his May 6, 2004 accident he began to see a series of doctors for pain in his neck, shoulder and back. He told these doctors that the pain he was then experiencing was the result of the July 26, 2001 airbag accident.

On December 30, 2004, petitioner filed a motion to compel Tyco's insurance carrier to pay for future surgery for his back and shoulder and to pay for the medical treatment he underwent in 2004, on the basis that the July 26, 2001 airbag accident had caused those injuries and created the need for the surgeries.*fn1

Petitioner testified that he had continued working for B&F Masonry until December 17, 2004, when available work fell off because of the winter weather. He stated that he intended to return to work with B&F Masonry when the weather improved.

We need not recount the full trial testimony here. Suffice it to say that, having reviewed that testimony as well as the Workers' Compensation judge's decision, we are convinced that that decision is well supported by the record.

Appellate review of a decision by a judge of compensation is limited to whether the judge's findings could reasonably have been reached based on sufficient credible evidence in the record as a whole. Lindquist v. City of Jersey City Fire Dept., 175 N.J. 244, 277 (2003); Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). We accord particular deference to the judge's opportunity to hear and observe the witnesses and pass upon their credibility. Ibid.

The standard for appellate review of a determination of a judge of compensation is equivalent to that used for review of any non-jury case. We may not substitute our own fact-finding for that of the judge of compensation, even if we are inclined to do so. Rather, we will only decide "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record,' considering 'the proofs as a whole.'" This court must give "due regard to the opportunity of the one who heard the witnesses to judge of their credibility[,]" and, where an agency's expertise is a factor, give due regard to that expertise.

[Scott v. Foodarama Supermarkets, 398 N.J. Super. 441, 445 (App. Div. 2008)(citations omitted).]

With that standard in mind, we note that the decision below is substantially premised upon the judge's assessment of petitioner's credibility. Therefore, as noted, we are particularly deferential to the judge's findings of fact. Cannuscio v. Claridge Hotel & Casino, 319 N.J. Super. 342, 347 (App. Div. 1999). The Workers' Compensation judge denied petitioner's motion for additional medical and temporary disability benefits for the July 26, 2001 airbag accident because she found that the surgeries and medical treatment he received subsequent to his May 2004 injury were unrelated to that accident. That finding is well supported by "sufficient credible evidence present in the record[.]" Close, supra, 44 N.J. at 599.

An individual may receive compensation for a personal injury caused by an accident that arose "out of and in the course of his employment. . . ." N.J.S.A. 34:15-1. The claimant bears the burden of proving all elements of his case. Bird v. Somerset Hills Country Club, 309 N.J. Super. 517, 521 (App. Div.), certif. denied, 154 N.J. 609 (1998). Petitioner had the obligation to establish by a preponderance of the evidence the causal link between his employment with Tyco and the May 2004 injury. Kiczula v. American Nat. Can Co., 310 N.J. Super. 293, 303 (App. Div. 1998).

The record as a whole supports the judge's finding that petitioner failed to meet his burden of proof to sustain his claim. Particularly telling were the judge's primary findings that petitioner himself was not credible and that the testimony of his medical witnesses on causation was unreliable because petitioner had been the source of information on which those doctors relied in reaching their conclusions.

The record supports the judge's finding that petitioner was less than credible. His testimony was vague, devoid of facts, and often clearly at odds with the chronology of events as established by the documentary evidence. The reports of petitioner's treating doctors show that those doctors received significant misinformation of which petitioner was the source. The record fully supports the judge's finding that the doctors' conclusions were based on petitioner's self-reported history, which history was contradicted by documentary and other evidence in the record.

It is undisputed that petitioner sought no medical treatment for any effects of his airbag accident from April 2002 to May 2004. It is also undisputed that, during that two-year period, he not only collected unemployment insurance benefits, which required his certifying to his ability to work and efforts to find work, but also undertook employment that required operating heavy equipment and working on construction job sites. No credible evidence of record established that petitioner's 2001 airbag injury was in any way exacerbated by his May 2004 injury. Petitioner continued to work for B&F Masonry for seven months after that injury.


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