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Nisivoccia v. County of Essex

August 25, 2009

RONALD NISIVOCCIA, PETITIONER-RESPONDENT,
v.
COUNTY OF ESSEX, RESPONDENT-RESPONDENT, AND SECOND INJURY FUND, RESPONDENT-APPELLANT.
RONALD NISIVOCCIA, PETITIONER-RESPONDENT,
v.
COUNTY OF ESSEX, RESPONDENT-APPELLANT, AND SECOND INJURY FUND, RESPONDENT-RESPONDENT.



On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, 00-4538.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 21, 2009

Before Judges Winkelstein, Fuentes and Gilroy.

This is a consolidated workers' compensation appeal. Following a bifurcated trial pursuant to N.J.A.C. 12:235-5.1(a)2, the Division of Workers' Compensation (Division) entered an order on November 16, 2007, that, among other matters, determined: 1) petitioner Ronald Nisivoccia permanently and totally disabled as of February 1, 2002, pursuant to N.J.S.A. 34:15-95; 2) apportioned responsibility for payment of workers' compensation benefits to petitioner between respondents, the County of Essex (County) and the Second Injury Fund (Fund), with 35% allocated to the County and 65% to the Fund. The order further directed that thereafter, the Fund is to continue payment of benefits to petitioner pursuant to N.J.S.A. 34:15-95. The Fund appeals under Docket No. A-1864-07; the County appeals under Docket No. A-1946-07. On May 1, 2008, this court entered an order consolidating the two appeals. For reasons that follow, we reverse and remand to the Division for a new trial.

I.

The County employed petitioner as a Deputy Sheriff for approximately thirty years. On January 19, 2000, petitioner suffered an injury during the course of his employment. On February 11, 2000, petitioner filed a claim petition against the County. On August 26, 2002, petitioner filed a motion seeking to join the Fund. On February 14, 2003, the Workers' Compensation Court granted the motion and entered an order accordingly. On the same day, the court conducted a settlement conference, but the matter did not settle. On June 23, 2004, the court, pursuant to N.J.A.C. 12:235-5.1(a)2, bifurcated the matter for trial, removing the case from the Fund's list to a day when the County was regularly scheduled to appear.

Pursuant to the regulation, the Compensation Court first conducted a trial to determine whether petitioner was totally and permanently disabled, after which the court reserved decision. The Fund did not participate in the first phase of the trial. During that part of the trial, the following witnesses testified on behalf of the petitioner: Dr. Arthur Tiger, an orthopedist; Dr. Peter Crain, a psychiatrist; and petitioner. In addition, petitioner introduced a neurological report from Dr. Arthur C. Rothman. The County countered by producing testimony from Dr. David Gross, an orthopedist; and Dr. David Scasta, a psychiatrist. The County also moved into evidence a neurological report from Dr. Steven Lomazow.

On July 24, 2006, the court issued a written decision, determining petitioner "totally and permanently disabled" as a result of his orthopedic and psychiatric disabilities resulting from the injury to his left shoulder in the 2000 accident, combined with his pre-existing orthopedic and neurological conditions resulting from four prior work-related accidents. Accordingly, the court set the matter down for trial "as to the [F]und's participation in totality[,] . . . whether it wishes to conduct cross-examination of the petitioner; [and] as to apportionment of the permanency, the allowance of fees and costs."

The Compensation Court conducted the second phase of the trial on January 24 and March 28, 2007. On January 24, 2007, the court granted the Fund leave to cross-examine petitioner. On March 28, 2007, the court denied the Fund's request to cross- examine petitioner's medical witnesses who had testified during the first phase of the trial. On April 12, 2007, the Fund filed a notice of motion seeking to re-open the record, supplement oral argument, and for reconsideration of the court's decision denying its request to cross-examine medical witnesses. In its motion, the Fund sought to cross-examine not only petitioner's medical witnesses who testified during the first phase of the trial, but also the County's medical witnesses. On July 9, 2007, the court denied the motion, stating its reasons in its July 27, 2007 supplemental written decision addressing the second phase of the trial.

Although the court acknowledged that it had the discretion to grant the requested relief, it denied the Fund's motion to cross-examine the medical witnesses, determining that "[t]he Fund has failed to prove to the court that additional testimony is warranted. It has failed to prove to the court that other facts not yet of record would be adduced. It would be unfair, unreasonable and an abuse of discretion to prolong the petitioner's case for years."

As to the issue of allocation of payments between the County and the Fund, the court determined that the County "is liable for 35% permanent partial total disability apportioned at 30% for the orthopedic residuals and 5% for psychiatric residuals" or "35% of 450 weeks or 157.5 weeks at the maximum weekly compensation rate for [the] calendar year 2000 at $568.00 or $89,460.00." The court determined the Fund liable "for the remaining 292.5 weeks of the 450 weeks payable at the $568.00 rate for $166,140[.00]." The court also ordered the Fund to continue payments to the petitioner thereafter per the statute. A confirming order was entered on November 16, 2007. On January 10, 2008, the court filed a supplemental memorandum of decision with this court pursuant to Rule 2:5-1(b).

II.

Prior to January 19, 2000, petitioner suffered four work-related accidents in which he received awards for permanent partial total disabilities. In 1979, petitioner was struck by a car while employed by the Sheriff's Department and received an order approving settlement for 12.5% partial total disability for two bulging disk injuries in his lower back. In 1988, after petitioner injured his right hand and back, he received an order of judgment for 7.5% partial total disability for lumbosacral and cervical sprains, and for 7.5% partial total disability for injuries to his right hand, resulting in scarring and deformity of the third finger. In 1992, after falling in a parking lot, petitioner received an order of judgment for 25% partial total disability for the residuals of spondylolisthesis, central disk protrusion at L4-5 and at L5-S1, with right-sided radiculopathy. That judgment contained a stipulation that petitioner had a prior partial total disability of 5% for the lower back. The fourth accident incurred in 1995 when petitioner was working part time as a baggage handler for Delta Airlines during off hours with the Sheriff's Department. As a result of that accident, an order approving settlement was entered awarding petitioner 30% partial total disability for orthopedic and neurological disabilities attributable to left hand carpal tunnel syndrome with release, and a probable tear of the left shoulder.

On January 19, 2000, petitioner suffered a compensable injury when he sat down at his desk and the chair slipped out from beneath him causing him to fall, injuring his left shoulder, neck and back. Petitioner is left-hand dominant. As a result of the accident, petitioner was unable to lift his left arm more than six inches. Because petitioner's shoulder did not respond to physical therapy, petitioner underwent an operation in June 2000, in which the outer portion of the collar bone was shaved off and the rotator cuff repaired. After the surgery, petitioner still suffered from inability to properly move his shoulder. Accordingly, he underwent a second surgery in December 2000, in which the outer portion of the collar bone was completely removed.

Following each of the aforementioned accidents, petitioner returned to work at the Sheriff's Department where he continued to qualify to carry a gun until the January 2000 accident. During petitioner's employment with the Sheriff's Department, he worked various part-time jobs during his employment off hours. Prior to 1990, petitioner worked for Tuscan, a milk company, assisting the company in resolving theft issues. Sometime during the early 1990's, he became a part owner and operator of a gas station in Montville. He also worked for Haynes Security for eight years prior to the 2000 accident. The Haynes Security shift ran approximately six to eight hours, depending on the company's needs and his County work schedule. According to petitioner, he worked security at Seton Hall Law School for approximately five or six years where he described the job as: "[s]itting in the car, just getting up, just standing there . . . ."

Petitioner testified that prior to his 2000 accident, he was in good health. He worked out seven days a week lifting weights. In addition, petitioner did approximately 900 sit-ups a day. In 1997, petitioner requested and received a transfer from the narcotics division to the civil process division where, generally, he continued to be out of the office and on the road every day.

After the second surgery following the 2000 accident, petitioner returned to work on February 1, 2002, and was assigned to permanent restricted light duty where he remained in the office answering phones and processing civil matters. Because of the injury to his left hand, he no longer physically qualified to carry a weapon. Petitioner disliked being assigned to an office: "I wasn't an office person. I was always a street person," used to the freedom of being on the road. Petitioner continued to work on permanent restricted light-duty schedule until June 2002 when he decided to retire. Following his decision, petitioner used accumulated sick leave and vacation time until February 2003. While receiving accumulated sick leave and vacation time, petitioner returned back to work part time for Haynes Security and was assigned to his previous job at the Seton Hall Law School parking lot. Petitioner ended his part-time employment in February 2003, and moved to Nevada in April 2003.

During the first phase of the bifurcated trial, Dr. Tiger testified to petitioner's orthopedic disability. Dr. Tiger first saw petitioner on February 14, 2000, for the purpose of determining whether petitioner needed any further treatment.

The doctor found that he did. Dr. Tiger examined petitioner again on September 11, 2000, following petitioner's arthroscopic repair of the rotator cuff. The doctor next examined petitioner on January 18, 2002, approximately thirteen months after the second shoulder surgery that consisted of a "subacromial decompression, and a complete resection of the AC joint and excision of the distal clavicle." It was the doctor's opinion that both surgeries failed.

Dr. Tiger further opined that petitioner has a permanent partial total disability of 17.5% to his neck and back, and 45% to his left shoulder. It was the doctor's conclusion that petitioner is 100% totally disabled as a result of the disability suffered from the 2000 accident and the pre-existing partial total disabilities suffered from the prior accidents. According to Dr. Tiger, petitioner's prior workman's compensation awards total up to 75% partial total; therefore, with the disability suffered from the 2000 accident, he believed it rendered petitioner totally disabled. During his testimony, the doctor acknowledged that he could not recall whether he had ever received or reviewed petitioner's treating records.

Dr. Crain testified to petitioner's psychological disability. The doctor diagnosed petitioner as suffering from "adjustment disorder with depressed mood, chronic." He estimated that petitioner suffers "a psychiatric disability of 35% of total." Without objection, petitioner next introduced a report dated March 18, 2002, from Dr. Rothman, a neurologist. Dr. Rothman examined petitioner on March 5, 2002, and opined in the report that petitioner suffered from cervical radiculopathy and has a partial permanent disability of 20% of total from a neurological standpoint.

The County defended the claim through testimony of its medical witnesses. Dr. Gross testified to petitioner's orthopedic injury. Dr. Gross examined petitioner on April 10, 2002. The doctor opined that petitioner suffers a "permanent disability of 3% of partial total" for injuries to the left shoulder. As to future employment, he opined that although petitioner can no longer serve as a Sheriff's Officer, "he would be capable of some lighter work which would put less demand on the shoulder." The County next called Dr. Scasta, who performed a psychiatric evaluation of petitioner on October 28, 2003. Although the doctor concluded that petitioner was conscientiously engaging in "symptom embellishment" in pursuit of his claim petition, he opined that petitioner did appear to have an adjustment disorder with depressed mood that is "mild in character and constitutes 2-1/2% relatively permanent partial psychiatric disability." Lastly, the County introduced a neurological report from Dr. Lomazow, who examined petitioner on June 10, 2002. According to the doctor's report, he found no neurological disability.

In the Compensation Court's decision of July 24, 2006, it found that although petitioner "did exaggerate his complaints at his evaluations[,] that does not discredit his orthopedic injuries." The court credited petitioner's testimony that he was unable to sit or stand for long periods of time when he attempted more sedentary work, and consequently concluded that he was totally and permanently disabled. In reaching its decision, the court reasoned:

I am satisfied from the demonstrable objective medical evidence, the MRI/diagnostic tests, the course of treatment, the surgeries and the permanency evaluations that [petitioner] has sustained permanent partial total disability, orthopedic ...


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