April 1, 2009
ANNIE BYNUM, PETITIONER-APPELLANT,
NEWARK PUBLIC SCHOOLS, RESPONDENT-RESPONDENT.
On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, Claim Petition No. 1998-269.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 9, 2009
Before Judges Carchman, R. B. Coleman and Simonelli.
Petitioner Annie Bynum appeals from an order of permanent partial disability entered by a workers' compensation judge on October 23, 2007. We affirm.
It is undisputed that petitioner suffered a compensable accident on December 10, 1997, when she slipped and fell while working as a food server at Technology High School. On January 6, 1998, she filed a claim petition against respondent Newark Public Schools, claiming "[s]evere injuries to head, neck, right shoulder, back and nervous system." She received temporary compensation from December 10, 1997 to August 31, 1998.
Petitioner had a medical evaluation. Subsequently, she was evaluated and treated by several physicians, and received authorized and unauthorized treatment. She filed a motion for medical and temporary disability benefits and for authorization for additional medical treatment, including multiple surgeries. Judge Ingraffia resolved the issue of the causal relationship of petitioner's neck and back disabilities, but not the nature and extent of the disability to those body parts. He ordered respondent to authorize and pay for the treatment and surgery to the petitioner's neck and back as detailed in her doctor's report, and to pay her 30-4/7 weeks of temporary disability, plus attorney's fees.
Trial commenced before Judge Yang. Respondent stipulated to the injury to petitioner's right shoulder, but denied causal relationship and/or permanent disability to all other alleged disabilities. During the trial, petitioner sought to amend a Pre-Trial Order to plead the Odd Lot Doctrine. The judge denied petitioner's request because she filed it out-of-time. The judge subsequently barred petitioner's attempt to include proof of disability relating to her right hand. The judge also denied petitioner's request for the judge's recusal, made three years and eleven trial days after the start of trial.
In a 23-page written decision, dated February 23, 2007, Judge Yang made detailed findings as to each of petitioner's body parts for which she claimed disability. The judge found petitioner's testimony lacking in credibility and concluded that she did not sustain her burden of proof that she suffered a permanent disability to her head; she did not sustain her burden of proof that she suffers a permanent right knee injury causally related to her fall; and she failed to sustain her burden of proof of a permanent compensable psychiatric disability. The judge also concluded that petitioner's claim of a right hand injury, which she never asserted in her claim petition, and which her attorney withdrew on the first day of trial, was not part of the case.
As to petitioner's neck and back injuries, the judge fixed her disability at 121/2 %. The judge also found that petitioner sustained a partial permanent disability to her right shoulder. The judge concluded that petitioner has a permanent partial total disability of 371/2 %, which she apportioned to be "25% for residuals of a right shoulder rotator cuff tear which was surgically repaired with an Abdullah credit to respondent of 10% for prior functional loss and 121/2 [%] for residuals of injuries to her cervical and lumbar spine including the herniated discs C3-4, C4-5 and L5-S1."
Noting that petitioner had received social security disability benefits and an ordinary disability retirement pension, the judge reserved decision on the actual award pending receipt of information regarding an offset for that portion of petitioner's ordinary disability retirement pension, which was due to her work related condition versus her non-work related conditions (hypertension, diabetes, temporomandibular joint syndrome, bilateral carpal tunnel syndrome, left shoulder problems, spine degeneration, and arthritis). Judge Yang entered an order awarding petitioner $51,705 for her permanent disability, subject to the submission of information relating to the possible offset.
After receiving information about petitioner's ordinary disability retirement pension, Judge Yang issued a supplemental decision offsetting the amount of the pension. In making the award, the judge reiterated her exclusion of the right hand and right knee injuries and apportioned the offset payment to be 80% attributable to the accident and 20% to be unrelated. The judge also gave respondent a credit for the period of time when the pension payments overlapped the temporary disability payments made to petitioner. This appeal followed.
On appeal from a decision of the workers' compensation court, our scope of review is limited to "'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.'" Linquist v. Jersey City Fire Dep't., 175 N.J. 244, 262 (2003) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)); Brock v. Public Serv. Elec. & Gas Co., 149 N.J. 378, 383 (1997). We may not substitute our own factfinding for that of the judge of compensation. Lombardo v. Revlon, Inc., 328 N.J. Super. 484, 488 (App. Div. 2000). We must defer to the factual findings and legal determinations made by the judge of compensation "unless they are 'manifestly unsupported by or inconsistent with competent relevant and reasonably credible evidence as to offend the interests of justice.'" Linquist, supra, 176 N.J. at 262 (quoting Perez v. Monmouth Cable Vision, 278 N.J. Super. 275, 282 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995)); Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 484 (1974).
Mindful of our limited scope of review, we reject petitioner's contention that Judge Yang's findings of petitioner's causally related partial disability is 371/2 % and that the same disability caused an 80% offset were inconsistent. Based upon our careful review of the record, we are satisfied that all of the judge's findings are supported by sufficient credible evidence. We affirm substantially for the reasons expressed in the judge's initial and supplemental opinions.
Petitioner also contends that Judge Yang improperly: engaged in ex parte communications with respondent's expert; precluded her attorney from reviewing respondent's personnel and medical records; barred proof of her right hand disability and proof of her entitlement to temporary disability between August 1998 and September 1, 2000; admitted an e-mail into evident; and failed to recuse herself. Based on our careful review of the record, we conclude that these contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
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