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Contreras v. City of New Brunswick

February 18, 2010

WILLIAM CONTRERAS, PETITIONER-RESPONDENT,
v.
THE CITY OF NEW BRUNSWICK, RESPONDENT-APPELLANT.



On appeal from a Final Judgment of the Department of Labor and Workforce Development, Division of Workers' Compensation.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 18, 2009

Before Judges Graves and J.N. Harris.

On October 20, 2005, petitioner William Contreras filed a workers' compensation claim alleging he sustained multiple injuries in a motor vehicle accident while working as a New Brunswick police officer. In its answer, the City of New Brunswick (the City) admitted the accident arose in the course of petitioner's employment but the City disputed the nature and extent of petitioner's injuries. The City appeals from an order of judgment awarding disability benefits to petitioner. We conclude from our review of the record that there is sufficient credible evidence to support the findings and conclusions of the compensation judge, and we affirm.

On October 1, 2005, while petitioner was on patrol and traveling at approximately fifty miles per hour, his vehicle was struck by a vehicle that "ran a stop sign." Following the accident, petitioner received emergency room treatment at the Robert Wood Johnson Hospital and was out of work for about two months. When he returned to work, he was on light duty for approximately a month before resuming his regular duties.

During his emergency room treatment, petitioner was diagnosed with facial fractures and lacerations, a left bicep tear, and a right knee contusion and laceration. Following his discharge from the hospital, plaintiff had blurred vision and pains in his back, knee, arm, and elbow. Because petitioner experienced pain when using stairs and performing other routine tasks, he underwent physical therapy and surgery on his right knee.

Prior to trial, both parties agreed to submit all of the medical reports to the court in lieu of expert testimony. Therefore, petitioner was the only witness to testify during the trial.

Petitioner testified he "was in perfect health" and had no physical problems prior to the accident. When asked to describe his "current status," petitioner testified his right knee often bothers him when the weather is cold, or when he performs routine activities that involve squatting, running, sitting for long periods of time or when walking up stairs. He also testified he experiences "blurriness" in his left eye and headaches that he never had before the accident. Petitioner further testified his back bothers him when he tries to sleep, when he sits in a car for an extended length of time, and when he exercises. In addition, one of petitioner's medical reports noted petitioner "does not have the full use of his arm."

On February 20, 2009, the court awarded permanent partial disability benefits to petitioner in the total amount of $124,042.50, less a third-party settlement credit pursuant to N.J.S.A. 34:15-40, for a net award of $86,379.08. The award of benefits pursuant to N.J.S.A. 34:15-12(c) was based on seventeen and one-half percent disability for the right leg for "various knee problems, including surgery"; ten percent disability for the facial fractures; fifteen percent disability for the lumbar sprain with disc bulges; and twenty-two and one-half percent disability for the left arm bicep tear and elbow sprain.

"The standard for appellate review of a workers' compensation judge's determination is equivalent to that used for review of any non-jury case." Brock v. Pub. Serv. Elec. & Gas Co., 149 N.J. 378, 383 (1997). We will only decide "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record,' considering 'the proofs as a whole[.]'" Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (citation omitted). We must also afford "due weight to [the compensation judge's] expertise in the field and his opportunity of hearing and seeing the witnesses." De Angelo v. Alsan Masons, Inc., 122 N.J. Super. 88, 89-90 (App. Div.), aff'd o.b., 62 N.J. 581 (1973). See also Lewicki v. N.J. Art Foundry, 88 N.J. 75, 89 (1981) ("Compensation Judges are regarded as experts, and their findings are entitled to deference." (internal citation omitted)).

The worker's compensation statute was intended "to eliminate awards for minor partial disabilities while increasing awards for the more seriously disabled." Kozinsky v. Edison Prods. Co., 222 N.J. Super. 530, 538 (App. Div. 1988). Accordingly, the court must maintain "careful adherence to the requirement of focusing award findings upon the true cumulative loss of functional and working ability objectively supported by the record." Ventre v. CPC Int'l, Inc., 285 N.J. Super. 567, 574 (App. Div. 1995). A compensation award "cannot rest upon imagination, surmise or conjecture, or upon speculation." DiCostanzo v. Matthews Constr. Co., 110 N.J. Super. 383, 389 (App. Div. 1970), aff'd, 58 N.J. 159 (1971).

The definition of partial permanent disability under N.J.S.A. 34:15-36 first requires "a satisfactory showing of demonstrable objective medical evidence of a functional restriction of the body, its members or organs." Perez v. Pantasote, Inc., 95 N.J. 105, 116 (1984). "[O]bjective medical evidence is understood to mean evidence exceeding the subjective statement of the petitioner." Ibid. (quoting Senate Labor, Industry and Professions Committee, Joint Statement to Substitutes for S. 802 and A. 840). The determination cannot "rest upon petitioner's subjective complaints" alone. Ibid.

Second, the petitioner must show "either that he has suffered a lessening to a material degree of his working ability or that his disability otherwise is significant and not the result of a minor injury." Id. at 118. "Material degree means an appreciable degree or a degree substantially greater than de minimis." N.J.S.A. 34:15-7.2. The petitioner carries "[t]he burden of proving both of these elements . . . since he has the onus of establishing permanent partial ...


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