On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition No. 2002-34171.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa and Sapp-Peterson.
Respondent, United Parcel Service (UPS), appeals from the August 8, 2008 order entered by a judge of the Division of Workers' Compensation awarding petitioner, Ronald Worth (Worth), permanent partial disability of the right leg to the extent of seventy-two and one-half percent with a credit for sixty-five percent permanent partial disability previously awarded to Worth. We affirm.
Worth, a twenty-year employee of UPS, sustained a work-related injury to his right knee in 1991 and re-injured the same knee in another accident four years later. As a result of these two accidents, Worth was awarded permanent partial disability of forty-five percent for his right knee. On August 21, 2002, Worth re-injured his right knee in another work-related injury, resulting in an additional twelve and one-half percent award of permanent partial disability. Thus, at that point Worth had a cumulative permanent partial disability of his right knee of fifty-seven and one-half percent.
On February 7, 2005, Worth filed an "Application for Review or Modification of Formal Award" (application for review), claiming "increased pain and disability in the injured area" of the right knee and seeking further treatment. The parties reached a settlement of this claim that was memorialized in an order dated December 15, 2005. Under the agreement, Worth's permanent partial disability of the right knee was increased from fifty-seven and one-half percent to sixty-five percent. Just shy of two months later, Worth filed a second application for review, continuing to assert that he was experiencing increased pain and disability in the area of the injured right knee.
A hearing in connection with this second application was conducted before a judge of workers' compensation on July 9, 2007, during which Worth testified that he continued to remain employed full-time with UPS performing his regularly assigned duties. He indicated that he did not believe he could continue performing his duties, which he described as involving package deliveries and heavy lifting. He stated that he could not enter and exit trucks without the assistance of a hand bar. He explained that all of these activities resulted in a "steady pounding on your legs." He also testified that he could not walk up or down the stairs without using a railing, that his knee constantly ached, and he had difficulty getting out of bed in the morning. In terms of treatment, he testified that he had undergone three Synvisc*fn1 injections into his right knee and regularly took approximately twenty Aleve pills each day, as well as Percocet every six to eight hours. Under cross- examination he acknowledged that in connection with his earlier application for review, he testified that his knee ached constantly. Worth, however, explained that the pain, at this particular time, was more intense.
Dr. Floyd Krengel, the expert who testified on behalf of Worth, and Dr. Vijay K. Paharia, the expert who testified on behalf of UPS, were the same doctors who had examined Worth and rendered expert opinions in connection with the original claim petition and the previous application for review. Dr. Krengel opined that his disability had increased by thirty percent, representing a total ninety-five percent disability. He based his opinion upon his personal examination of Worth and indicated that his opinion had not been altered by his review of reports and photographs that depicted Worth performing certain activities. Dr. Paharia testified that based upon his examination of Worth, he found no increase in permanency from his previous examination. He testified that he observed a slight improvement in some aspects of Worth's condition when compared to his earlier examinations of him. Upon questioning from the court, however, Dr. Paharia acknowledged that his finding that Worth had normal range of motion during the examination could possibly have been influenced by the Synvisc injections.
In addition to the testimony, UPS introduced surveillance tapes that covered four days of surveillance of Worth.
In an oral decision rendered on August 6, 2008, the judge stated:
The Court accepts Dr. Krengel's explanation of the difficulty controlling Petitioner's pain and of the increased deterioration based upon the loss of cartilage in the knee along with the bone on bone rubbing during weight bearing. Given Petitioner's duties, such deterioration would seem to be reasonably expected. Dr. Krengel's opinion that the next treatment for this Petitioner may be a knee replacement is intuitively appealing given the foregoing.
Petitioner complained of an increase in the severity of his pain. Dr. Krengel's examination reflected a loss of flexion of 10 degrees and decreased ability to squat. The key issue is whether Petitioner has provided credible evidence of increased complaints together with demonstrable objective medical evidence demonstrating loss of function.
Here, the Petitioner presented himself as an individual who is genuinely attempting to work through the difficulties presented by his right knee. In light of the videotaped surveillance, however, the Court finds that the Petitioner exaggerated his complaints. The videotape clearly shows the Petitioner ...