March 30, 2009
RICHARD THOMAS, PETITIONER-APPELLANT,
NEWARK BOARD OF EDUCATION, RESPONDENT-RESPONDENT.
On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, Claim Petition Nos. 1998-035656, 1999-010490 and 1999-017962.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 4, 2009
Before Judges C.L. Miniman and Baxter.
In this workers' compensation appeal, petitioner challenges three orders, two of which dismissed his corresponding claim petitions. The third order awarded 22.5% of partial total disability arising from a work-related injury to petitioner's lumbar spine. We affirm.
Petitioner, Richard Thomas, was employed as a laborer for respondent Newark Board of Education. He began working for respondent in the late 1990's, having previously worked in the construction industry for thirty to thirty-five years. On July 13, 1998, at the time of his first alleged work-related injury, petitioner was fifty years old, and had been treated in the past for a work-related cervical spine injury for which he received 2.5% of a partial total disability award in the early 1980's. Petitioner's medical history also included 1978 gunshot wounds to his right leg and right arm for which he was hospitalized. Two years later, he sustained another gunshot wound, this time to his left arm, which required surgical repair. Petitioner admitted smoking one to two packs of cigarettes a day beginning when he was a teenager and ending in the early 1970's; however, he reported to hospital staff in 1998 that he had not stopped smoking until 1989. We describe each of the three claim petitions separately.*fn1
A. Claim Petition No. 1998-035656
This petition alleges a specific injury that occurred on October 16, 1998, when petitioner tripped over a 2 x 4 while lifting heavy stones at work. The claim petition alleged a "severe injury to low back and nervous system." Petitioner filed this claim petition approximately two weeks later on October 30, 1998. Respondent filed an answer, admitting that the injury was work-related, but otherwise leaving petitioner to his proofs. Respondent authorized temporary medical payments and treatment with an orthopedic surgeon. After petitioner had undergone x-rays and several MRI exams, respondent authorized spinal surgery, but advised petitioner that if he refused the surgery, any further treatment costs and disability benefits would be terminated. Petitioner testified that he refused the surgery because he was afraid of the surgery and its consequences. His benefits consequently ceased. Petitioner never returned to work after sustaining the October 16, 1998 injury.
B. Claim Petition No. 1999-010490
On March 3, 1999, petitioner experienced shortness of breath while at home watching television. He was admitted to an area hospital where he was diagnosed with a right-side spontaneous pneumothorax.*fn2 Petitioner remained hospitalized until March 10, 1999; however, he returned to the emergency room again on March 29 and April 7, 1999, after again experiencing shortness of breath. After an exploratory thoracoscopy, petitioner eventually underwent surgery performed by Randolph Scott, M.D. in 2002 to treat this condition.
In his testimony, petitioner described the working conditions as "really dusty" whenever he used a jackhammer or performed demolition work. Claim petition no. 1999-010490 was filed on March 31, 1999, alleging "severe injuries to head, neck, back, shoulders, chest, extremities, pulmonary, cardiac, internal, nasal, throat, eyes and nervous system." The petition attributed those injuries to "repeated bending, lifting, and other arduous labor as well as exposure to dust, smoke, chemicals, fumes and other deleterious matters." In its answer, respondent denied that the alleged injuries were work-related.
C. Claim Petition No. 1999-017962
Petitioner's third claim petition was not filed until June 4, 1999, even though it described an alleged accident that had occurred before the October 16, 1998 work-related injury that is the subject of claim petition no. 1998-035656. In this third petition, petitioner alleged that while "carrying heavy weights" on July 14, 1998,*fn3 he sustained "severe injury to [his] chest and nervous system."
Petitioner testified that while lifting ninety-five pound bags of mortar at work, he developed a sharp pain in his chest. He was admitted to Irvington General Hospital, where he remained until July 16, 1998. A CAT scan showed bullous changes in the upper lobes of the lungs, which one expert described as "swiss-cheese"-like "holes" in the lungs. His physician diagnosed an "acute right side pneumothorax." Petitioner remained out of work for four to five weeks. Because respondent denied that the claimed injury was work-related, petitioner received disability payments from the State of New Jersey during his period of convalescence, rather than workers' compensation benefits. Petitioner returned to work in August 1998, where he remained until he sustained the October 16, 1998 injury that is the subject of claim petition 1998-035656.
In his testimony, petitioner described the work-related incidents, and the resulting symptoms that are the basis of the three claim petitions. He also testified that the pain and limitations from his work-related injuries caused him to become depressed, although he admitted on cross-examination that he never told any of his treating physicians about his depression. When affirmatively asked by a doctor whether he was depressed, petitioner stated "I take care of my own self in that respect. I managed to handle the situation." He has never been seen by a psychiatrist or psychotherapist, and has never taken anti-depressant medication or received psychotherapy.
On cross-examination, petitioner conceded that on two occasions prior to July 13, 1998, he had been treated for shortness of breath and an inhaler had been prescribed. He also acknowledged that before starting work for respondent, his prior employment involved dust and heavy lifting, and that he injured his back on one of those jobs.
D. Testimony of Petitioner's Expert Witnesses
Petitioner's first witness was Cheryl Wong, M.D. Before Wong's testimony began, respondent made a motion in limine to bar Wong from offering any testimony related to psychiatric injury. Respondent argued that none of petitioner's three claim petitions asserted a claim for such an injury. The judge of compensation (JOC) reviewed the portion of each claim petition that asked petitioner to "describe [the] extent and character of injury." After reading each of the three responses into the record, the JOC concluded that none of the three petitions alleged a psychiatric injury. The JOC specifically rejected petitioner's claim that the reference to a "severe injury to . . . nervous system" in claim petition 1998-035656 encompassed a psychiatric injury. The JOC concluded that the term "nervous system" referred not to a psychiatric disability, but instead to a neurological injury. Consequently, she limited Wong's testimony to injuries to petitioner's spine.
In her testimony, Wong observed that she reviewed the films from MRI examinations of petitioner's lumbar spine, which were taken on October 19, 1998 and December 4, 1998. The MRI films revealed "multi-level disc bulging" from L1-1 through L4-5, along with facet hypertrophy resulting in "mild thecal sac compressions with a small disc herniation at L5-S1." Wong testified that the December 4 MRI showed a disc herniation at the L4-5 level marked by facet hypertrophy, which had caused "spinal stenosis with a near complete loss of disc space." When asked to describe the "causes of these pathologies," Wong remarked that the cause could be either "a specific traumatic injury" or "it could [occur] over a period of time with wear and tear."
Wong also explained the results of the neurological evaluation that she conducted on October 20, 2004. Her findings included: decreased deep tendon reflexes of the left biceps; decreased sensation in the left thumb; decreased deep tendon reflexes in the patellas, left anterior thigh and bilateral lower extremities; as well as weakness in the quadriceps and bilateral tibialis anterior muscle.
On cross examination, she testified that she did not know the three classifications of disability in New Jersey or the precise definition of permanent disability. Nonetheless, she estimated petitioner was fifty percent disabled based on her examination and experience, rather than on a precise standard.
When presented with medical records from 2001 and 1998, Wong acknowledged that those records did not contain any complaints from petitioner regarding neck pain or treatment, and that the October 3, 1998 neurological exam was within normal limits for the extremities, reflexes and cranial nerves. After reviewing petitioner's March 3, March 26, March 29, and September 21, 1999 admission records from St. Michael's Hospital, Wong agreed that those records did not contain any complaints regarding the neck, back, hands, or legs. She acknowledged that the September 21 hospital admission record contained boxes for "back and spine," muscle, skeletal and "neurologic." All "were checked off as 'normal.'" Wong also conceded that the facet hypertrophy was "probably not related to the [October 16, 1998] accident."
Petitioner's next witness was I. Ahmad, M.D., an orthopedic surgeon. Ahmad testified that he examined petitioner on August 9, 2000 and January 26, 2005. Ahmad testified that his examination revealed weakness of grasp; spastic cervical spine; ten-degree flexion loss in the cervical spine; extension and lateral bending loss of less than ten degrees; spastic trapezius; painful sternomastoid muscles; spastic lumbosacral area; thirty-five-degree flexion loss in the low back; lateral bending extension restriction of fifteen degrees; buttock spasms; and positive Lasegue and straight-leg raising tests. He testified that after reviewing an MRI of petitioner's spine, he diagnosed petitioner with a "spinal sprain and a bulging of multiple discs with herniation." He concluded that petitioner was "totally disabled as a physiological unit" as a result of lifting heavy weights during his years of employment with respondent.
On cross-examination, Ahmad conceded that petitioner's admission records from St. Michael's Hospital did not contain any complaints referable to the neck or back. He agreed that his own August 9, 2000 report did not report any complaints from petitioner regarding an inability to sleep due to neck or back pain, to which petitioner had referred in his testimony. Ahmad also conceded that the October 19 and December 4, 1998 MRI reports were inconsistent, as the first showed an L5-S1 disc herniation while the second did not.
Petitioner also called Sidney Friedman, M.D., board certified in the field of internal medicine; however, he was not board certified in the sub-specialty of pulmonary medicine. Friedman's clinical career ended in 2000, six years before his testimony in this matter, and Friedman no longer has admitting privileges at any hospital. He was reprimanded by the New Jersey Board of Medical Examiners for falsifying hospital records, holds no academic appointments and had not published any scholarly articles on spontaneous pneumothorax in at least ten years. At the time of his testimony, Friedman's practice was limited to performing workers' compensation evaluations, all of which were performed on behalf of claimants.
According to Friedman's testimony, his August 12, 2000 examination of petitioner disclosed an emphysematous configuration that is consistent with chronic obstructive pulmonary disease (COPD). Friedman also observed "marked bilateral digital clubbing" of petitioner's fingernails, which were "clubbed like a drumstick." Friedman remarked that such malformation of the fingers is "seen in individuals who have advance[d] pulmonary disease." He explained that a chest x-ray disclosed bronchopulmonary markings that were accentuated with emphysematous changes and fibrotic streaking indicative of severe interstitial pulmonary disease. Friedman diagnosed petitioner as suffering from chronic asthmatic bronchitis, pulmonary emphysema, bullous emphysematous blebs, and post-spontaneous pneumothorax, for which he estimated a 65% total disability. When asked whether these conditions were work-related, Friedman responded as follows:
Based upon the occupational history, it was my opinion that these chest conditions are [a] result of dust, fumes, chemicals, sand, smoke, extremes of temperature and weather changes in his employment as a construction worker or laborer including his last employment with Newark Public Schools during which time his pulmonary conditions increased in severity, accelerated, manifested by the occurrence of two pheumothoraces.
Friedman did not identify any of the specific chemicals to which he believed petitioner was exposed, nor did he quantify the extent of such alleged occupational exposure. Although Friedman testified that petitioner was exposed to dust when he used a jackhammer or mixed mortar, Friedman provided no scientific evidence that this type of dust causes or accelerates COPD. Friedman admitted he did not know the specific chemical composition or quantity of the fumes to which petitioner was exposed, but asserted that "common sense will tell us what he was exposed to."
On cross-examination, Friedman conceded that most experts would conclude that petitioner's emphysema was probably caused by his smoking, rather than by the work-related conditions that Friedman had described in his testimony. After reviewing the hospital emergency room records from petitioner's July 13, 1998 injury, Friedman conceded that the records contained no mention of the clubbed fingernails that he had described. Although he opined that petitioner's pneumothorax on July 13, 1998 was caused by the trauma of lifting heavy bags of mortar at work that day, he acknowledged that the March 1999 pneumothorax was in fact "spontaneous" rather than trauma-induced.
E. Testimony of Respondent's Expert Witnesses
Respondent called Edward Decter, M.D., an orthopedic surgeon, who examined petitioner on November 8, 2004. Decter is board certified in orthopedic medicine, and was an attending physician at St. Barnabas Medical Center from 1990 through the time of trial. At the time of trial, Decter was also the chief orthopedic surgeon for a professional soccer team and had been the team physician for four other professional sports teams as well as various high school and college sports programs during his career. Decter has lectured and published extensively in his field. Eighty percent of his practice is devoted to treating patients, while the remaining twenty percent is devoted to forensic evaluations in personal injury and workers' compensation cases.
Decter's November 8, 2004 examination of petitioner showed normal results. According to Decter, petitioner "was not in acute distress, and was able to get on and off the examination table "with ease and without difficulty," which is "a way to observe someone's back condition." Decter described petitioner's gait as "normal." Petitioner was able to walk on his toes and heels which, according to Decter, demonstrated that there was no weakness at L5-S1.
Decter also examined petitioner's cervical spine and observed that petitioner was able to hold his head in a "normal, straight, erect upright fashion." Decter's examination showed that petitioner had a "normal cervical curvature and normal cervical lordosis." Decter found "no tenderness" when he palpated petitioner's cervical spine, nor was there any evidence of tenderness "over the interspinous ligaments of the neck." Decter described petitioner's range of motion of the cervical spine as "full." Motor and sensory tests of the upper extremities were all normal.
Decter's examination of petitioner's lumbar spine was equally unremarkable. Decter found "a normal lumbar lordosis" and "no reproducible pain" when petitioner was asked to hyperextend his back. According to Decter, this absence of pain upon hyperextension was significant because if a patient has a bulging disc, there will typically be pain upon hyperextension. Although petitioner did complain of pain when asked to perform a "forward flex," his muscles were "supple" and "non-tender." Strength testing of the lower extremities was normal as was the sensory testing. Decter found no spasm in either the cervical or lumbar spine and no evidence of any nerve irritation in the lumbar spine. Decter's only positive finding was a decrease in "knee jerks and ankle jerks," but because such decrease was symmetrical, i.e. it was present on both legs, Decter opined that this decrease was likely not of any clinical significance.
After reviewing the October 19, 1998 MRI of petitioner's lumbar spine, Decter opined that the narrowing of the disc space at L4-5 "takes years and years and years to develop," and was consequently not caused by the October 16, 1999 incident in which petitioner tripped over the 2 x 4. Decter also opined that what had been interpreted by others as a "herniated disc" was actually a "hard disc osteophytic complex" that was due to "wear and tear of the lumbar spine through years of degeneration," and such degenerative change "was not caused by the accident of October 16, 1998." At the conclusion of his testimony, Decter opined that petitioner had sustained 2.5% percent of partial total impairment of his lumbar spine.
Respondent's next witness was Allen Josephs, M.D., a board-certified neurologist, who examined petitioner in July 2002 and October 2004. Based on his review of petitioner's medical records and the clinical examination that he performed, Josephs opined that petitioner's neurological system was intact, other than a small disc herniation at L5-S1 which, according to Josephs, had "been there for years." Josephs opined that petitioner's range of motion, muscle strength, and sensory functions were all normal. Josephs's only positive clinical finding was "diffusely decreased reflexes, which do not appear to be of clinical significance." At the conclusion of his testimony, Josephs commented that he assigned petitioner 2% of partial total disability because he believed that petitioner did suffer from lower back pain, but Josephs was unable to determine the reason why petitioner had such pain.
Respondent's final witness was Robert Sussman, M.D., a board-certified pulmonologist, who was affiliated with Overlook Hospital and Morristown Memorial Hospital. Sussman had been an assistant professor at Columbia University Medical School and had also been on the faculty of the University of Medicine and Dentistry of New Jersey. When asked whether petitioner's acute spontaneous pneumothorax was attributable to lifting heavy weights at work or inhaling fumes and chemicals, Sussman opined that within a reasonable degree of medical certainty, the pneumothorax was not caused by petitioner's employment but was instead the result of smoking two packs of cigarettes a day for twenty-two years.
Sussman also opined that petitioner's breathing difficulty, which was different from the acute pneumothorax, could have been caused by a glaucoma medication petitioner was taking, which was known to cause the bronchial tubes to close. Sussman also opined that petitioner's weight, which was 286 pounds, was a contributing factor to petitioner's breathing difficulties because the additional weight prevented him from taking deep breaths. Sussman found no evidence of the digital clubbing that Friedman had found, nor did his review of the hospital records demonstrate the presence of such clubbing. Sussman performed a full oxcimiter test, which showed a 98% level of oxygen saturation, which was well within the normal range.
F. Decision Rendered by the JOC
On February 29, 2008, the compensation judge rendered a comprehensive fifty-three page written opinion in which she concluded that petitioner sustained his burden of proof in claim petition 1998-035656. The JOC found that petitioner had sustained a 22.5% disability to his lumbar spine. She dismissed claim petitions 1999-010490 and 1999-017962 based on petitioner's failure to sustain his burden of proof.
The JOC began by addressing petitioner's claim of an injury to his cervical spine, which was asserted in claim petition 1999-010490. The JOC concluded that because petitioner "lacked credible demonstrable objective medical evidence of a functional restriction of his neck" and "never received any treatment for his cervical spine and no doctor had recommended any," petitioner failed to sustain his burden of proof concerning any claimed injury to the cervical spine. The JOC also credited the opinions of respondent's experts, Decter and Josephs, noting that their testimony was "more credible" than that of petitioner's experts Wong and Ahmad.
In contrast, the JOC concluded that petitioner did sustain a compensable disability to his lumbar spine as the result of the traumatic injury that occurred on October 16, 1998, when he tripped over a 2 x 4 and injured his back, as alleged in claim petition 1998-035656. The JOC found that petitioner sustained "permanent partial lumbar disability which caused or aggravated the disc bulges at L1-2 through L4-5 with facet hypertrophy resulting in mild thecal sac compression." She also found that this disability arose out of and in the course of employment on October 16, 1998. In concluding that the disability of the lumbar spine was partial rather than total, the JOC focused on the following factors: 1) petitioner had not sought any back treatment for the past eight or nine years since the accident; 2) petitioner's own neurologist, Wong, estimated the lumbar disability to be only thirty or thirty-five percent; and 3) petitioner refused the back surgery offered by respondent, and after refusing surgery, petitioner "cannot now argue he is totally disabled."
The JOC rejected petitioner's claims of traumatic injury to his chest and nervous system arising from the lifting of mortar bags on July 13, 1998, as set forth in claim petition 1999-017962. The JOC commented that the credentials of respondent's expert, Sussman, were more impressive than those of petitioner's expert, Friedman, whose clinical career had ended years earlier and who was reprimanded by the New Jersey Board of Medical Examiners for falsifying hospital records. She also observed that Friedman's causation opinion was not supported by any medical literature or corroborating proofs. Based upon the testimony presented, the JOC found that the pneumothorax petitioner sustained on July 13, 1998, was solely the result of his history of heavy smoking for a twenty-five period, and that petitioner failed to sustain his burden of proving that the July 13, 1998 pneumothorax was work-related. Consequently she dismissed claim petition 1999-017962 with prejudice.
Next, the JOC turned to claim petition 1999-010490, in which petitioner presented a claim for injuries not only to his neck and back, but also to a number of other body systems. She rejected the balance of claim petition 1999-010490 because petitioner failed to produce objective medical evidence of any temporary or permanent disabilities which arose out of and in the course of his employment that affected his head, shoulder, extremities, heart, nose, throat, eyes or nervous system.
Next, the JOC concluded that although petitioner suffers from COPD, his pulmonary disability was not compensable because he failed to prove that the "work environment with respondent was a material cause of his COPD." She reasoned that Friedman had "failed to qualitatively identify the composition of the dirt, or dust or fumes or chemicals, sand [or] smoke to which [petitioner] had allegedly been exposed." She also reasoned that petitioner failed to provide "quantitative evidence concerning the level of pollution or the duration of exposure in any measurable manner." After observing that Friedman's testimony offered "no evidence of any articles, treatises or medical studies" upon which he relied, she rejected Friedman's opinion as a net opinion that failed to establish medical causation by sufficient evidentiary proof. The JOC also pointed to the superior credentials of Sussman, as compared to Friedman. She thus dismissed the pulmonary disease portion of claim petition 1999-010490 with prejudice.
Last, the compensation judge concluded that because petitioner failed to specify a psychiatric disability in any of his claim petitions, he should not be permitted to advance a disability claim based upon an alleged psychiatric injury. The JOC reiterated her earlier conclusion that the words "nervous system" in the three petitions could not be construed as a psychiatric injury, but instead related to an alleged neurological injury. She also observed that petitioner "never received any psychiatric treatment, never took any psychotropic medication," and never received any psychotherapy. Thus, the JOC held that even if Wong had been permitted to testify about her psychiatric findings, the claim for psychiatric injuries would nonetheless have been rejected due to the absence of any treatment or medication pertaining to a psychiatric disorder.
On appeal, petitioner claims the JOC erred when she: 1) declined to consider his claim for disability from the Second Injury Fund; 2) rejected the applicability of the odd lot doctrine; 3) rejected his claim of psychiatric disability; and 4) made numerous evidential errors that undermine the reliability of the proceeding.
Our scope of a review in a workers' compensation case is narrow. Sager v. O.A. Peterson Constr. Co., 182 N.J. 156, 163-64 (2004). Our function is limited to a determination of "whether the findings made could reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole, with due regard to the opportunity of the one who heard the witnesses to judge of their credibility . . . ." Ibid. (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). We are not authorized to independently assess the evidence in the record as though we were the original factfinder. Ibid. Accordingly, if the JOC's decision is supported by sufficient credible evidence in the record, we must uphold those findings, even if we would have reached a different result. Ibid.
We turn first to petitioner's contention that the compensation judge erred when she refused to consider petitioner's claim to benefits from the Second Injury Fund (the Fund). The Legislature created the Fund, N.J.S.A. 34:15-94 to -95.5, to "encourage the hiring by industry of people handicapped by pre-existing disabilities. . . ." Walsh v. RCA/Gen. Elec. Corp., 334 N.J. Super. 1, 6 (App. Div. 2000) (citation omitted). "The Fund is liable when a pre-existing condition combined with a work-related accident or disease renders a person totally and permanently disabled." Ibid. This liability also extends to the situation where a worker's pre-existing permanent partial disability combined with a work-related accident or disease renders the person totally and permanently disabled. Ibid. In this situation, an employer is "only required to pay the value of the disability caused by the occupationally compensable condition related to the employment," while the Fund "pays the value of the partial permanent disability which pre-existed the last compensable disability." Id. at 7.
Here, petitioner maintains that the JOC erred by preventing him from introducing testimony concerning his pre-existing heart disease, which, in combination with his work-related injuries, could have triggered benefits under the Second Injury Fund. The record shows that, despite having declared her intention to exclude evidence of heart disease, the JOC permitted Friedman to testify that petitioner's x-rays "disclosed cardiac enlargement, cardiomegaly." Ultimately, however, Friedman conceded on cross-examination that "further testing [showed] that [petitioner] did not have any cardiac disease at all. He underwent catheterization testing and . . . he doesn't have cardiac disease. So no relationship."
Consequently, petitioner's claim concerning the Fund is meritless for two reasons. First, petitioner did not sustain his burden of proving the existence of a pre-existing cardiac problem, much less a cardiac problem that was subsequently exacerbated by a work-related injury. Second, petitioner did not establish that he was totally disabled. In the absence of proof of total disability, the liability of the Fund is not triggered. Ibid. Thus, we conclude that petitioner failed to satisfy the eligibility criteria for benefits from the Second Injury Fund. His claims to the contrary lack merit.
We turn next to petitioner's contention that the JOC was mistaken when she declined to apply the odd-lot doctrine. The odd-lot doctrine permits an employee to recover benefits when the work-related injury, in combination with personal factors that are unrelated to the working environment, creates a total disability. Darmetko v. Electron Tech., 243 N.J. Super. 536, 539 (App. Div. 1990), appeal dismissed, 126 N.J. 316 (1991).
The odd-lot doctrine imposes responsibility on an employer for "a worker whose unemployability on a regular basis in a reasonably stable job market results not only from the direct medical consequences of a work-connected accident but also from the combination of those [ramifications], in themselves less than totally disabling, with the worker's personal handicaps." Id. at 540 (quoting Crooms v. Cent. Steel Drum Co., 156 N.J. Super. 471, 473 (App. Div.), certif. denied, 77 N.J. 493 (1978)). "Under the doctrine, the worker is viewed in the [context] of the competitive market place, where his inability to sell his labor may be traceable to his [personal] background superimposed upon his physical disability." Ibid. (internal citation omitted).
The odd-lot doctrine only applies, however, where the work-related impairments constitute at least 75% or higher of the total disability. N.J.S.A. 34:15-36. Thus, if the work-related impairments are less than that figure, the odd-lot doctrine has no applicability. Ibid. As we have already discussed, the JOC concluded that petitioner was only 22.5% disabled, far less than the seventy-five percent required by N.J.S.A. 34:15-36. Thus, unless the JOC erred by rejecting petitioner's claim of psychiatric injury, the total percentage of disability cannot, and will not, exceed 22.5%.
In Point III, petitioner argues that the JOC erred when she granted respondent's in limine motion to bar him from presenting psychological or psychiatric evidence. He points to his motion to join the Fund, in which he alleged "post-traumatic stress disorder." Additionally, in his pretrial memorandum, petitioner "reserve[d] the right to obtain [an] N/P exam."*fn4 Petitioner argued before the JOC that the pretrial memorandum, and the allegations in his motion to join the Fund, were sufficient to "refine the issues" and preserve his psychiatric claim. The JOC disagreed, reminding petitioner that in the six years that elapsed between the filing of his claim petitions and the commencement of trial, he had ample opportunity to have filed an amended petition that specifically alleged a psychiatric or psychological injury. The JOC also reasoned that the term "nervous system," referring to the neurological system, was not interchangeable with the term "psychiatric disabilities."
We have been presented with no meritorious basis upon which to disagree with the JOC's conclusions. Moreover, petitioner does not cite to any specific authority for the proposition that a reference to post-traumatic stress disorder in his motion to join the Fund cures a deficiency in a pleading. We thus conclude that the compensation judge properly barred petitioner from presenting evidence of a psychiatric injury. That conclusion is bolstered by petitioner's acknowledgment on cross-examination that he was never treated for a psychiatric disorder and never was prescribed any psychoactive medication. Thus, even if we were to conclude, which we do not, that the compensation judge erred by excluding evidence of petitioner's psychiatric claim, any such error was clearly harmless. Consequently, we reject the argument petitioner raises in Point III.
In Point IV, petitioner claims that "miscellaneous evidential errors" entitle him to reversal. In particular, he asserts that the compensation judge erred by (1) admitting the reports of his own medical experts into evidence; (2) ignoring the temporary disability issue presented in his October 16, 1998 claim petition; (3) finding that his refusal to undergo back surgery precludes him from arguing total disability; and (4) finding that petitioner would not have sustained his burden of proof even if Wong had been allowed to offer testimony of her psychiatric findings. These arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).