July 10, 2009
RONALD WORTH, PETITIONER-RESPONDENT,
UNITED PARCEL SERVICE, RESPONDENT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 27, 2009
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 climbing stairs and going in and out of a truck without the use of a handrail.
The Court notes that Petitioner sought Synvisc injections. Clearly, the Petitioner was seeking to improve the function of his knee. The Court is persuaded by Dr. Krengel's explanation that continued use of the knee will cause increased friction and will continue to degrade the cartilage in Petitioner's right knee.
The aforesaid videotape is also reviewed in light of Petitioner's reasonable testimony that he must work to support his family along with consideration given to the amount of over-the-counter and prescription medications taken by the Petitioner. The Court finds Petitioner's testimony regarding an increase in the severity of pain to be somewhat exaggerated and, thus, the overall credibility of same should be appropriately tempered to reflect a small increase in percentage of permanent disability which would coincide with Dr. Krengel's findings of a reduction of flexion and ability to squat, along with a deterioration of cartilage.
Moreover, the court notes that the Petitioner has suffered no subsequent injury since the August 21, 2002 accident at bar. The Court is more persuaded by Dr. Krengel's opinion that Petitioner's current disability is causally related to same. Accordingly, the Court finds that Petitioner's increased complaints of the severity of the pain along with some increased physical limitations, albeit tempered, the nature of the treatment which Petitioner received, together with Dr. Krengel's findings demonstrate an increase in the permanent disability of the right leg which is more than [de minimis].
Based upon the foregoing findings of fact and law, the Court finds that the Petitioner has a compensable claim against the Respondent with regard to his Application for Modification of Formal Award and has suffered an increase in permanent disability of the right leg as a result of the August 21, 2002 accident. The court finds that the Petitioner is impaired in the amount of 72 and a half percent permanent disability of the statutory right leg.
Accordingly, the court found that Worth was impaired in the amount of seventy-two and one-half percent permanent partial disability of the statutory right leg. The present appeal followed.
On appeal, UPS contends that Worth failed to prove an increase in his permanent partial disability with demonstrable, objective, medical evidence; the evidence was insufficient to support an overall permanent partial disability to his statutory right leg of seventy-two and one-half percent; Worth's testimony and the opinions expressed by his expert were not credible; and as a reviewing court, we have the "power and duty to reverse a decision of the workers' compensation judge if the evidence supporting it is not credible." We reject all of the arguments advanced by UPS.
Our standard of review of a determination of a judge of compensation is no different than our standard of review in any non-jury case. Brock v. Pub. Serv. Elec. & Gas Co., 149 N.J. 378, 383 (1997) (citations omitted). We do not substitute our own fact-finding for that of the judge of compensation, although we may be inclined to so. Lombardo v. Revlon, Inc., 328 N.J. Super. 484, 488 (App. Div. 2000). Rather, our task is limited to determining "whether the findings reasonably could have been reached on the basis of sufficient credible evidence in the record, considering the proofs as a whole." Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (citation omitted). In other words, we accord "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, we accord due regard to that expertise as well. Ibid. While we may defer to the compensation judge's credibility determinations, we owe no special deference to the judge's interpretation of the legal principles applied to the facts.
At the outset, this case is not about whether Worth satisfied his burden of proof in establishing his permanent partial disability of seventy-two and one-half percent. It is undisputed that Worth initially established his entitlement to an award of partial permanent disability arising out work-related injuries to his right knee and leg that resulted in an initial award based upon forty-five percent permanent partial disability and, thereafter, as a result of a re-injury, the award was increased to sixty-five percent. Thus, the question before the compensation judge was whether Worth satisfied his burden of proof to establish his entitlement to an additional award of seven and one-half percent increase in permanent partial disability.
N.J.S.A. 34:15-27 provides in pertinent part: "A formal award, determination and rule for judgment or order approving settlement may be reviewed within 2 years from the date when the injured person last received a payment upon the application of either party on the ground that the incapacity of the injured employee has subsequently increased." A worker seeking benefits based upon increased "incapacity" bears the "burden of proving by a preponderance of the evidence not only the fact of increase but also that it is causally related to the original accident and resulting injury." Schiffres v. Kittatinny Lodge, Inc., 39 N.J. 139, 147, 148-49 (1963).
Here, UPS, citing Colon v. Transport Inc., 141 N.J. 1 (1995), Perez v. Pantasote, Inc., 95 N.J. 105 (1984), and Schiffres, supra, contends that this burden is only satisfied with demonstrable, objective, medical evidence, which Worth failed to present. We disagree with this analysis.
The Colon, Perez, and Schiffres cases cited by UPS are all distinguishable. The sole issue before the compensation judges in Colon and Perez was whether the petitioners, in the context of an initial award of permanent partial disability, satisfied their statutory burden of demonstrating that they sustained "disability permanent in quality and partial in character." Colon, supra, 141 N.J. at 4; see also Perez, supra, 95 N.J. at 109. While Schiffres, supra, involved a petition for additional benefits based upon increased incapacity, the issue before the compensation judge was causation, namely, the causal connection between the first and second heart attacks. 39 N.J. at 141.
Here, the fact of Worth's disability, permanent in quality and partial in character, was not disputed. The parties previously reached a settlement agreeing that Worth's disability was sixty-five percent. UPS has not raised an issue of causation. The sole basis of UPS's objection is the quality of proof Worth presented to demonstrate increased incapacitation. Nothing in N.J.S.A. 34:15-27 limits the quality of proof to objective evidence. Indeed, even under the definition of disability, permanent in quality and partial in character, the Legislature expressly contemplates that the criteria that shall be considered in making this determination shall, in addition to demonstrable, objective, medical evidence, include consideration of "whether there has been a lessening to a material degree of an employee's working ability." N.J.S.A. 34:15-36. Proof of this factor necessarily includes consideration of a petitioner's testimony of how the injury may affect the worker's ability to perform duties.
In Perez, supra, the Court acknowledged that under N.J.S.A. 34:15-27, consideration of the "lessening to a material degree" factor, as originally proposed in the legislation before its enactment, was placed on equal footing with the requirement of objective evidence but, as ultimately enacted, is to be treated as but one "albeit an important" factor to be considered. 95 N.J. at 115 (citations omitted). Additionally, the Court noted that "another criterion that may be considered in determining whether the injury is significant enough to merit compensation is whether the injury . . . substantially interferes with other, nonwork-related aspects of petitioner's life." Ibid.
Here, in determining whether Worth sustained his burden of proof, the compensation judge considered the results of the physical examination performed by Dr. Krengel, who reported "audible crepitation is heard coming from the right knee" on squatting and "petitioner has difficulty performing heel and toe stands." The judge also considered that Worth was receiving Synvisc injections. We are satisfied that Dr. Krengel's examination established objective findings of "increased incapacitation." These objective findings were supported by Worth's subjective complaints of how the injury impacts his ability to work as well as other activities. Thus, the compensation judge's findings are supported by the record, irrespective of the surveillance evidence that UPS argues demonstrates otherwise.
In his findings, the compensation judge found that "[i]n light of the videotaped surveillance . . . [p]petitioner exaggerated his complaints. The videotape clearly shows the [p]petitioner climbing stairs and going in and out of a truck without the use of a handrail." Nonetheless, when the record was considered as a whole, it is apparent the compensation judge was persuaded that Worth had satisfied his burden of establishing a compensable claim, albeit not to the extent of ninety-five percent, as Dr. Krengel opined, but at seventy-two and one-half percent. Those findings are entitled to our deference. We discern no basis to disturb those findings on this record.