February 18, 2010
SASHA SORMAZ, PETITIONER-RESPONDENT,
ALPHA MOVING & STORAGE, INC., RESPONDENT-APPELLANT.
On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, C.P. No. 2004-28470.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 21, 2010
Before Judges Graves and Newman.
Respondent Alpha Moving & Storage, Inc. (Alpha), appeals an order for judgment from the Workers' Compensation court that awarded petitioner Sasha Sormaz weekly permanent partial disability benefits for 300 weeks at the rate of $332.50 totaling $99,750. The order provided for an overall award since all the injuries resulted from the same incident:
50% permanent partial total (ophthalmological, neurological, neuropsychiatric in nature) for residuals of fracture of orbit of right eye with surgical repair with medpor sheet implant, right macula hemorrhage, right enopthalmos, right periorbital neuralgia, right vitreous floaters, right retinal scarring, right dilated pupil, chronic conjunctivitis, right angle recession areas, sensory loss right side of face, disruption of trigeminal nerve, post traumatic stress disorder.
Workers' Compensation Judge Kovalcik explained the permanent partial award:
disabilities of approximately 25% right eye visual, 20% p.partial total for structural changes, 10% p.partial total neurological, 12-1/2% partial total psychiatric, which disabilities are stacked.
Alpha does not challenge the disability of the right eye but does attack the neurological and psychiatric disabilities. We are satisfied that the psychiatric and neurological disabilities were well-founded. The compensation court properly calculated the award for disability cumulatively. We affirm. There is no dispute that the brutal attack on the petitioner occurred during the course of his employment. Briefly summarized, on the afternoon of April 30, 2004, while on the job as a foreman and mover for Alpha, petitioner was attacked from behind by two co-workers. He was struck in the back of the head, fell to the ground and was rendered unconscious. His attackers repeatedly kicked him in the face and body. A third co-worker intervened before they could kill him. As petitioner regained consciousness, he heard the two co-workers threaten to kill him, and they then ran off.
The police were called. Petitioner was transported by ambulance to Saint Clare's Hospital. It was determined that the orbital bone by petitioner's right eye was fractured.
Petitioner was treated and referred to Dr. Cangemi, who examined his eye. He was then referred to Dr. Janet M. Neigel who performed surgery on the fracture on May 11, 2004. On or about July 26, 2004, petitioner was released by one of the doctors to return to work. However, petitioner never returned to work for Alpha, explaining that he lived across the street from Alpha and that he did not think highly of nor feel safe around the type of people that Alpha hired. Petitioner and his wife decided to move to California because they did not feel safe after the attack and the threats made by the two co-workers who remained at large. While charges were brought against his attackers, they apparently did not appear in court and the record does not disclose what, if any, disposition was effectuated.
In connection with the various injuries sustained by petitioner, we refer to the judge's written opinion of February 13, 2009 where he summarizes the testimony of petitioner and the medical experts. Because the injury to the right eye which is not challenged is the springboard for the diagnosis of post- traumatic stress disorder and proximal to the neurological residuals, we include the judge's discussion of the trauma to the eye.
Petitioner was rushed to the hospital, where it was observed that he had suffered a severe trauma to the right side of his face. He was unable to see out of his right eye and there was initially some concern about retinal detachment. Treatment records reveal that he was determined to have suffered a fracture of the floor of the right orbit and extensive trauma to the anterior and posterior segment of the right eye with resulting hemorrhage in the macular region and around the optic nerve. Ultimately the right orbital fracture was repaired and a medpor sheet implant inserted to cover the resulting defect.
Petitioner credibly testified that his eye tires easily and he experiences blurred vision after 20 to 25 minutes of reading; he has difficulty driving at night because his injured eye is severely affected by the glare of oncoming vehicles; he is bothered by "floaters" drifting across his field of vision; and he occasionally experiences double vision. He testified that he experiences pain in his eye an average of a few times a week; that extremes of temperature, like eating ice cream, can cause pain; that his cheek under the eye down the cheekbone to the gums is numb; that his eyelid sometimes "twitches" by itself for no apparent reason; and that he often generates blood when he blows his nose, particularly in the morning.
There is no disagreement between the ophthalmologic experts as to the presence of visual and structural disabilities related to the right eye and the existence of objective medical evidence to support that determination. Both experts found the petitioner to have suffered ophthalmological disability to the right eye and additional partial total disability for structural and anatomical changes to that eye. Respondent's expert, Dr. Goldfeder, assesses 12% ophthalmological disability and 10% partial total disability for structural and anatomical changes. Petitioner's expert, Dr. Klein, assesses 55% ophthalmological disability and 42.5% partial total disability for structural and anatomical changes.
There is likewise no disagreement between the neurological experts as to the presence of nerve damage on the right side of the petitioner's face consequent to this work related injury. The respondent's neurological expert, Dr. Head, opines that the sensation testing confirming the distribution of the sensation of numbness is a subjective finding while the petitioner's expert, Dr. Wong, characterizes the results as objective. I note the testimony of Dr. Head to the effect that the results of the sensation testing and the Petitioner's complaints of a loss of sensation are consistent with the Petitioner's injury and damage to the trigeminal nerve which is objectively verified. There is no dispute that there is objective evidence of the orbital fracture and repair and I deem that to be a sufficient objective basis to support Petitioner's description of the neurological impairment to his face. While I ascribe merit to Dr. Wong's position that her sensation results constitute an objective result, I need not reach that issue, since there is adequate objective support for the petitioner's subjective complaints. Dr. Head ascribes no neurological disability, while accepting as valid the petitioner's complaints as to loss of sensation consequent to trigeminal nerve damage. It appears that Dr. Head's definition of disability would require a diminution of the ability to work before disability may be assessed, a position inconsistent with the criteria employed for purposes of workers compensation as I understand it. Dr. Wong ascribes 35% permanent partial total neurological disability consequent to the loss of sensation and post concussive disorder without apportioning between the two.
Within less than six months of the attack on the Petitioner he was driving a rented truck to Los Angeles with his wife and all of his belongings aboard. Records indicate that his treatment was not fully concluded and his testimony is that he had no definite place to stay and, in fact, that it was three weeks before they found a permanent place to live. The move was made despite the fact that the petitioner, a native of Spain, had never before been to California and his wife had lived her entire 35 years in New York. Neither of them had any family in California and the only reason for the move was to get as far away from the assailants as possible.
Both Dr. Head and Dr. Wong opine that following the incident Petitioner displayed symptoms of Post Traumatic Stress Disorder. Dr. Head testified that Petitioner ". . . had the symptoms of posttraumatic stress disorder . . . [and he had] no reason to doubt that, given the type of experience he described." Dr. Head also acknowledged that the petitioner described continuing occurrence of nightmares, albeit less frequently; symptoms of hyper-vigilance, avoidance behavior, loss of trust in people, a declining social life, persistent fears and other manifestations which Head characterized as "residual symptoms." Dr. Head concluded, however, that "the full syndrome is no longer present. Some elements of it were still present, and they were improving." He went further and opined that most cases of post traumatic stress disorder resolved within three months "and 50 percent of the cases go within a year or two years maximum." When it was pointed out that the petitioner was still displaying "residual symptoms" three years after the traumatic event, so it had not fully resolved, Head opined "probably it's already overdue. It's probably going to go away fairly quickly." Despite the aforedescribed observations and conclusions Dr. Head opined that the Petitioner displayed no psychiatric disability.
Petitioner's expert, Dr. Wong, noted manifestations essentially the same as those of Respondent's expert. She asserted, however, that those observations warranted a conclusion that "psychiatrically the patient has a posttraumatic stress disorder secondary to the assault." When asked to further explain her diagnosis Dr. Wong said:
Posttraumatic stress disorder is defined in the DSM 4 Psychiatric Manual. There are several components. The first is you have to have had sustained a criteria trauma, which would mean the threat of loss of life or some kind of physical injury associated with a sense of hopelessness, helplessness, and horror. That satisfies that criteria. Of the symptoms, there are three sets of symptoms that the patient has to have. The first set is intrusive symptoms, which would include things like nightmares, bad thoughts of the accident, significant distress which triggers, which the patient has. The second set the symptoms is the avoidance set of the symptoms: Trying to avoid places, or people associated with the trauma. Trying to avoid thinking about the trauma; feelings of not being able to enjoy yourself; feelings of numbing and detachment, which the patient had. The third set of symptoms, the hyper arousal symptoms; problems with sleep, which he had; problems with concentration, which he had; complaints of hypervigilance. That is basically there is a lot of checking behavior. He's worried about reinjury; he's afraid on the streets. He's looking who is walking behind him. He's worried of getting jumped again. And the exaggerated startled response. And that is with any, for example, loud noise or something that reminds him of the trauma, he's jumpy. So there is exaggerated startle[d] response to a regular stimulus. And that all together impairing his function either socially, work-wise, or personally.
Finding that the present condition of the Petitioner meets the established criteria for post Traumatic Stress Disorder Dr. Wong assigned a disability rating of 25% of permanent partial total disability.
Assessing the credibility of the witnesses, the judge made the following factual findings.
I found the Petitioner to be an extremely credible witness, who displayed a sincere effort to respond truthfully and forthrightly to the questions asked of him. I credit his description of the problems he is experiencing with his eyes, including blurred vision, sensitivity to glare, floaters and double vision and deem same to be supported by objective medical evidence as presented by both ophthalmologic experts. I further credit Petitioner's testimony that he experiences numbness on the right side of his face, occasional pain, sensitivity to temperature extremes and produces bleeding when blowing his nose and deem same to be supported by the objective medical evidence presented by the neurologists as well as the ophthalmologists.
I accept the conclusion of both neuropsychiatric experts that the Petitioner truthfully described his fears, reactions and concerns related to the attack upon him. I found Dr. Head's testimony to be contradictory and inconsistent and cannot credit his conclusion that Petitioner no longer suffers from Post traumatic stress disorder. To the contrary, I found persuasive Dr. Wong's analysis and conclusion that petitioner continues to suffer from residual effects of the attack and accept as accurate her diagnosis of post traumatic stress disorder utilizing the criteria set forth in the DSM 4 Psychiatric Manual.
In light of the foregoing findings and conclusions I find that the Petitioner has suffered permanent partial total disability to his right eye, both ophthalmologic and structural, as well as neurological impairment to the right side of his face and psychiatric disability consequent to post traumatic stress disorder. I decline to find any permanent disability related to post concussive disorder, concluding that petitioner has failed to establish same. I assess disability at 50% of permanent partial total approximating 25% of the right eye for visual disabilities, 20% of permanent partial total for structural changes to the area around the right eye, 10% of permanent partial total for neurological impairment to the right side of petitioner's face and 12.5% of permanent partial total for psychiatric disability consequent to post traumatic stress disorder.
On appeal, Alpha raises the following issues for our consideration:
THERE IS INSUFFICIENT CREDIBLE EVIDENCE IN THE RECORD TO SUPPORT THE TRIAL COURT'S FINDING THAT THE PETITIONER SUFFERED A WORK-RELATED PSYCHIATRIC OR NEUROLOGICAL DISABILITY AS A RESULT OF THE ACCIDENT.
TBE COURT FAILED TO CONSIDER THE CREDENTIALS OF THE EXPERTS IN REACHING ITS DECISION ON PSYCHIATRIC AND NEUROLOGIC DISABILITY.
THE LOWER COURT HAD NO BASIS TO RECONSTRUCT THE PETITIONER'S WAGES TO REFLECT A 40-HOUR WORK WEEK OR FIND AN AVERAGE WORK WEEK OR FIND AN AVERAGE WEEKLY COMMISSION OF $475.00 PER WEEK AGAINST THE WEIGHT OF EVIDENCE.
BOTH PETITIONER'S MEDICAL EXPERTS' TESTIMONY WERE NET OPINIONS AND SHOULD HAVE BEEN DISREGARDED BY THE COURT.
We are satisfied the arguments made in Points II and IV are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). Suffice it to say that the qualifications of an expert witness goes to the weight to be accorded the expert's testimony, not to admissibility. Here, the court provided detailed reasons why it believed and found more credible the testimony of one expert, Dr. Wong over the other, Dr. Head. With regard to the allegation that petitioner's experts rendered net opinions, both Drs. Klein and Wong anchored their opinions into the brutal attack on petitioner which was obviously causally related to the eye injury, the neurological deficit surrounding the area adjacent to the injured eye and numbness to the right side of the face, and the consequent post-traumatic stress disorder. They explained the "why[s] and wherefore[s]" of their opinions. State v. Townsend, 186 N.J. 473, 394 (2006). We now will address the arguments in Points I and III.
In Point I, Alpha contends that sufficient credible evidence does not support the judge of compensation's finding that petitioner suffered psychiatric or neurological disability as a result of the assault. Alpha also contends that petitioner demonstrated no objective medical evidence of a psychiatric disability, relying on Saunderlin v. E.I. DuPont Co., 102 N.J. 402 (1986).
The scope of appellate review of workers' compensation cases is limited to "whether the findings made could reasonably have been reached on sufficient credible evidence present in the record, considering 'the proofs as a whole,' with due regard to the opportunity of the one who heard the witnesses to judge their credibility." Lindquist v. City of Jersey City Fire Dep't, 175 N.J. 244, 262 (2003) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). We defer to the judge of compensation's factual findings and legal determinations, "unless they are 'manifestly unsupported by or inconsistent with competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Perez v. Monmouth Cable Vision, 278 N.J. Super. 275, 282 (App. Div. 1994) certif. denied, 140 N.J. 277 (1995) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). Such courts are considered experts with respect to weighing the testimony of competing medical experts and appraising the validity of compensation claims, Ramos v. M & F Fashions, Inc., 154 N.J. 583, 598 (1997), but "a decision without proper factual findings and a reasonable explanation of the ultimate result 'does not satisfy the requirements of the adjudicatory process.'" Colon v. Coordinated Transp., Inc., 141 N.J. 1, 11 (1995) (quoting Lister v. J.B. Eurell Co., 234 N.J. Super. 64, 73 (App. Div. 1989)).
N.J.S.A. 34:15-36 defines "[d]isability in quality and partial in character" as the following:
a permanent impairment caused by a compensable accident or compensable occupational disease, based upon demonstrable objective medical evidence, which restricts the function of the body or of its members or organs; included in the criteria which shall be considered shall be whether there has been a lessening to a material degree of an employee's working ability. Subject to the above provisions, nothing in this definition shall be construed to preclude benefits to a worker who returns to work following a compensable accident even if there be no reduction in earnings. Injuries such as minor lacerations, minor contusions, minor sprains, and scars which do not constitute significant permanent disfigurement, and occupational disease of a minor nature such as mild dermatitis and mild bronchitis shall not constitute permanent disability within the meaning of this definition.
In order to obtain benefits for such a disability under our workers' compensation statute, first, one must make "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). The Supreme Court explained that "[t]his determination can no[t] . . . rest upon [a claimant's] subjective complaints" and noted that "'objective medical evidence is understood to mean evidence exceeding the subjective statement of the [claimant].'" Ibid. (quoting Senate Labor, Industry and Professions Committee, Joint Statement to Substitutes for S. 802 and A. 840).
In Saunderlin, the Court clarified that objective medical evidence of a psychiatric disability under the statute may be "a professional psychiatric judgment that might rest upon: (1) analysis of the subjective statement of the patient; (2) observations of physical manifestations of the symptoms related in the subjective statement; and/or (3) observations of manifestations of physical symptoms and analyses of descriptions of states of mind beyond those related in the patient's subjective statement . . . ." Saunderlin, supra, 102 N.J. at 416. There, the Court examined what sufficed as objective medical evidence under the statute when the injury was psychiatric in nature. The Court stated that N.J.S.A. 34:15-36 required the interposition of "a professional medical judgment between the subjective statement of the [claimant] and the award of disability benefits." Id. at 412. The Court presumed that statutory language regarding "evidence exceeding the subjective statement does not mean evidence excluding that statement."
Ibid. (emphasis in original). The Court explained that, "[a]fter all, any medical examination, . . . physical or psychiatric, must begin with the subjective statement of the patient . . . . To what extent and in what manner the professional analysis must go beyond that statement in order to constitute demonstrable objective medical evidence appropriately depends upon the nature of the disability." Ibid. The Supreme Court understood that "[i]n psychiatric disability claims, . . . medical analysis to a greater degree is analysis of the subjective statement of the patient." Ibid. Saunderlin recognized that diagnostic criteria offered by the DSM-III "typically include[s] not only physical manifestations observable independently of the patient's statement but also descriptions of states of mind discoverable only through statement." Ibid. The Court explained that N.J.S.A. 34:15-36 contemplated both types of criteria were considered objective within the meaning of the statute. Id. at 414. The Court admitted that "the DSM-III by no means definitely resolves th[e] problem [of determining what constitutes demonstrable objective medical evidence of psychiatric disability], [but] it at least frames it." Id. at 415.
Here, sufficient credible evidence supports the judge of compensation's finding that objective medical evidence supports a finding of psychiatric disability. The judge found both Dr. Wong and petitioner credible. Dr. Wong analyzed the subjective statements and complaints of petitioner, applying the DSM-IV's diagnostic criteria for posttraumatic stress disorder. Quick Reference to the Diagnostic Criteria from DSM-IV §309.81 (1994). Petitioner's complaints to the judge and doctors corresponded to the diagnosis.
Regarding petitioner's neurological injury, sufficient credible evidence supports the judge of compensation's finding that "there is adequate objective support for [petitioner's] subjective complaints" of numbness of his face. As the judge of compensation noted, objective medical evidence demonstrated that petitioner suffered an orbital fracture and repair as set forth by Saint Clare's hospital records, which indicate that an x-ray revealed the fracture of the right orbital bone. Further, Dr. Goldfeder found hypesthesia on the skin lying below the right eye. The doctor noted that this has been caused by a dysfunction of the right inferior orbital nerve and that this was "consistent with the surgery performed by Dr. Neigel". Thus, the findings of decreased sensation on the right side of petitioner's face were supported by objective medical evidence and bolstered by the pinprick testing results and findings of both Drs. Wong and Head. Objective medical evidence supports the basis of a finding of neurological impairment.
That does not end the inquiry in terms of whether a monetary award should follow.
In making a monetary award, our Supreme Court has held that the separate injuries arising out of the same accident should be treated for purposes of compensation as they affect the worker: cumulative in impact, resulting in a single compensable disability within the meaning of N.J.S.A. 34:15-36.
[Poswiatowski v. Standard Chlorine Chem. Co., 96 N.J. 321, 323 (1984).]
In reaching this conclusion, our Court determined that the meaning of "disability" in N.J.S.A. 34:15-12(c), as amended and effective January 10, 1980, "[w]here a claim petition alleges more than one disability," should have the same meaning as it has in N.J.S.A. 34:15-36. Poswiatowski, supra, 96 N.J. at 329.
The Court went on to discuss the compensation judge's critical role in evaluating multiple injuries, stating:
[c]ompensation judges must make findings that reflect an evaluation of the multiple injuries in determining whether there is a compensable disability; they must treat the individual as a whole in determining the statutory disability. The method is familiar: "It is not to be solved by adding up the fractional parts, but upon the basis of the percentage of total and permanent disability reasonably found to be produced by the several injuries considered collectively and with due regard to their cumulative effect." Orlando v. F. Ferguson & Son, 90 N.J.L. 553, 557-58 (E. & A. 1917) (evaluating loss of two or more major members).
[Id. at 330.]
The judge here did exactly what was expected in finding how the injuries from this brutal beating impacted on petitioner. While there may not have been a lessening of petitioner's earnings, the impact on the "ordinary pursuits of life" were substantial. Pantasote, supra, 95 N.J. at 117. Petitioner's problems with his eye included blurred vision, sensitivity to glare, floaters and double vision. He experienced numbness in the right side of his face, sensitivity to temperature extremes, and bleeding when blowing his nose. Because he feared re-injury to his right eye, he no longer played soccer or other sports where a ball could damage his face. He was hypervigilant and became concerned when on the streets of who was walking behind him. He worried about being jumped. He did not socialize very much and was more comfortable staying at home. He experienced a decrease in sexual activity due to depression. All of these residual effects derived from the single accident which were properly assembled into one award of 50% permanent partial disability. Petitioner fit the profile of the "more seriously injured workers whom the Legislature meant to assist."
Poswiatowski, supra, 96 N.J. at 328. We discern no error in the court's award for petitioner's disabilities. Under Point III, Alpha argues that the judge of compensation impermissibly reconstructed petitioner's wages to reflect a forty-hour work week in violation of the ruling in Katsoris v. S. Jersey Publ'g Co., 131 N.J. 535 (1993). It is further asserted that petitioner's benefits should have been based only on his part-time earnings since he failed to demonstrate that his disability adversely affected his earning capacity for temporary or future full-time employment.
In his written decision, the judge of compensation noted that the parties agreed petitioner was paid at the rate of $10 per hour. Notwithstanding, the parties disagreed as to petitioner's weekly wage. The judge found that Alpha's payroll record contained a disparity between the amount of hours petitioner worked and the pay he received for that time; the judge also recognized that the payroll record reflecting petitioner's total compensation differed from that of the W-2 issued to him. The judge observed that Alpha's payroll record indicated that petitioner received more than $1,041.23 in commission while working for Alpha in 2004 during a sixty-five day period, which averaged to $75 weekly for 2004. The commissions of 10% were based on packing material and insurance sold to customers being moved.
The work period covered by the 2004 documents was, according to petitioner, a slow period during winter months. Alpha did not present any evidence to controvert that assertion. The judge found petitioner's testimony credible regarding the asserted slow period of work. The judge observed that petitioner worked an average of more than thirty hours weekly during the slow period and increased to fifty or sixty hours per week, especially during the summer months. Hence, forty hours at $10 an hour set an average weekly wage of $400 plus $75 in commission for a total average weekly wage of $475.
N.J.S.A. 34:15-37 sets forth the definition for wages for purposes of workers' compensation. It provides, in pertinent part, regarding hourly wages that an employee's daily wage shall be found by multiplying the hourly rate by the customary number of working hours constituting an ordinary day in the character of the work involved. In any case the weekly wage shall be found by multiplying the daily wage by the customary number of working days constituting an ordinary week in the character of the work involved; provided, however, if the employee worked less than the customary number of working days constituting an ordinary week in the character of the work involved, the weekly wage for the purposes of compensation . . . only shall be found by multiplying the hourly rate by the number of hours of work regularly performed by that employee in the character of the work involved.
While the judge did not make any findings or hear any evidence regarding the customary number of hours and days worked in the moving industry, given the deference accorded to a compensation judge, sufficient credible evidence supports his determination that petitioner's average weekly wage paid by the hour was $400.
Alpha's contention that the judge reconstructed petitioner's work week is unfounded. In Katsoris, supra, 131 N.J. at 544-49, the Court declared it improper to take a part- time employee's hourly wage and "reconstruct" it over the course of a "full" or forty-hour work week when the employee worked less than the customary hours worked in an ordinary week in that industry.
Petitioner was not a part-time employee. Rather, his hours may have fluctuated, depending on the season of the year. The judge did not "reconstruct" petitioner's wages but, instead, calculated what he deemed to be petitioner's wages during an ordinary work week. The judge's assessment of petitioner's weekly wage was not the kind of wage reconstruction Katsoris found offensive.
For wages earned by the "output of the employee," like commission, the appropriate statute sets forth: "the daily wages shall be calculated by dividing the number of days the worker was actually employed into the total amount the employee earned during the preceding 6 months, or so much thereof as shall refer to employment by the same employer." N.J.S.A. 34:15-37. Here, Alpha's payroll record indicated that petitioner received $1041.23 in commissions and that he worked sixty-five days. This would equal approximately $15.38 in daily commissions for petitioner. The judge apparently used the $15.38 average and multiplied it by what he deemed was a customary work week of five days. We discern no error in the judge's computation of petitioner's weekly average wage, which included commissions, to total $475.
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