On appeal from the Division of Workers' Compensation, Department of Labor, Docket Nos. 2002-7797 and 2006-28483.
The opinion of the court was delivered by: Ashrafi, J.S.C. (temporarily assigned).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Payne and Ashrafi.
In this appeal, we consider whether the Division of Workers' Compensation erred in determining that petitioner Geraldine Singletary's current injury and disability were caused by her continuing employment rather than earlier work-related accidents while employed by the same employer. The dispute is between the employer while self-insured and the workers' compensation insurance carrier that covered the employer at the time of the earlier accidents. Finding no error, we affirm.
Petitioner Singletary has worked continuously at a Wawa convenience store from 1987 to at least 2007. In September 1992 and again in December 2001, she suffered work-related slip and fall accidents causing injury to her cervical spine. At the time of each accident, Wawa had a workers' compensation insurance policy with respondent AIG Domestic Claims, Inc., which paid Singletary's claims for medical treatment and partial disability caused by each accident.
On January 1, 2002, Wawa became self-insured for workers' compensation claims. Approximately five years after the second accident, Singletary learned that she needed cervical fusion surgery. After a hearing, the judge of compensation determined that Wawa as self-insured (hereinafter referred to as "Wawa") is liable for Singletary's latest medical costs and disability.
Wawa filed a notice of appeal. Wawa as insured by AIG (hereinafter referred to as "AIG") is the primary respondent in this appeal. Counsel for Singletary has written a letter in support of AIG's position, adding that the compensation rates payable to Singletary are higher if Wawa is liable for a condition that became manifest in 2006 than if AIG were to be held liable for a claim dating back to 2001.
"[T]he scope of appellate review is limited to determining whether the findings of the Judge of Compensation could reasonably have been reached on sufficient credible evidence present in the whole record, after giving due weight to his expertise and his opportunity of hearing and seeing the witnesses." Kozinsky v. Edison Prods. Co., 222 N.J. Super. 530, 537 (App. Div. 1988); see Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). "However, where the focus of the dispute is not on credibility but, rather, alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom," the scope of appellate review is somewhat broader. Manzo v. Amalgamated Indus. Union Local 76B, 241 N.J. Super. 604, 609 (App. Div. 1990). "Where our review of the record 'leaves us with the definite conviction that the judge went so wide of the mark that a mistake must have been made,' we may 'appraise the record as if we were deciding the matter at inception and make our own findings and conclusions.'" Ibid. (quoting Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div. 1989)).
Here, the judge of compensation placed an oral decision on the record that included detailed findings of fact, which he described as essentially undisputed.
After the first accident of September 1992, an MRI of Singletary's cervical spine revealed a disc herniation at C5-6. In 1996, she underwent an anterior cervical discectomy and fusion at C5-6. On June 22, 1998, the Division of Workers' Compensation awarded Singletary 30% of permanent partial total disability for the cervical spine injury. AIG was responsible for compensating her.
On December 12, 2001, Singletary suffered a second slip and fall injury to her cervical spine. An MRI taken in January 2002 revealed the intervertebral disc fusion of C5-6, a right focal disc herniation at C4-5, and a central disc herniation at C6-7. The course of treatment for the injuries, including physical therapy and cervical injections, lasted through May 21, 2002, about five months. Singletary did not lose any time from work. On November 13, 2003, the Division of Workers' Compensation awarded her 45% of permanent partial total disability for the 2001 cervical spine injury, with a credit of 30% for the prior award. The medical expenses and disability award were again paid by AIG.
Singletary continued to work for Wawa and did not receive any further treatment for her neck injuries for more than four years after May 2002. In 2006, she consulted her family physician because she was feeling pain. The doctor referred her for an MRI, which was performed in July 2006. Subsequently, a specialist ...