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Tripp v. Rooter


March 2, 2010


On appeal from the Final Agency Decision of Department of Labor, Division of Workers' Compensation.

Per curiam.


Argued September 16, 2009 - Remanded October 9, 2009 Resubmitted January 13, 2010

Before Judges Cuff and Waugh.

Plaintiff Kenneth Tripp appealed from the decision of the Department of Labor, Division of Workers' Compensation (Division), determining that his disability was only forty-five percent partial total. We remanded to the Division for further consideration and clarification of its decision. We have now received the amplified decision from the judge of compensation, as well as supplemental letter briefs from the parties.

As noted in our original decision ordering the remand, we defer to the factual findings of the compensation judge provided they are "supported by substantial credible evidence in the record and are not so wide off the mark as to be manifestly mistaken," Tlumac v. High Bridge Stone, 187 N.J. 567, 573 (2006), especially considering the judge of compensation's "opportunity to evaluate witnesses' credibility" and "expertise with respect to weighing the testimony of competing medical experts and appraising the validity of [petitioner's] compensation claim," Ramos v. M & F Fashions, Inc., 154 N.J. 583, 598 (1998), together with the judge's "expertise in assessing the nature and extent of the disability," Colon v. Coordinated Transport, Inc., 141 N.J. 1, 11 (1995).

We remanded because we read the compensation judge's original decision to rely, in part, on the mistaken belief that Dr. Michael F. Lospinuso was one of petitioner's treating physicians, rather than an examining physician for respondent. We also sought amplification of the judge's reasons for discounting (1) the decision and the findings of the federal administrative law judge with respect to petitioner's application for Social Security disability payments and (2) Dr. Melvin P. Vigman's statement that petitioner would never work again.

Having reviewed the compensation judge's original and remand opinions in light of the applicable law, we have concluded that the judge's finding that petitioner's "level of disability was forty-five percent partial total for postoperative L4-5 disc herniation and disc bulge at L3-4" was fully supported by the record and, therefore, entitled to deference for the reasons cited above. The judge's credibility determinations remain unchanged after correction of his misdesignation of Lospinuso's status. The judge also expressed cogent reasons for his decision not to accept the conclusions of the federal ALJ, which were based upon the differences between workers compensation and Social Security disability as to both law and procedure.

With respect to Vigman, the compensation judge noted that the doctor's report specifically stated: "[H]owever, I would emphasize that he is neurologically capable of returning to work." While the doctor was of the opinion that it was unlikely that petitioner would return to work because of his subjective complaints related to pain, he made it clear that he was of the opinion that petitioner could work. The compensation judge noted in his original decision that both Dr. Kenneth C. Peacock and Lospinuso were of the opinion that petitioner's subjective complaints of pain appeared to be out of proportion to their physical findings. The compensation judge found that petitioner's assertions with respect to his level of pain following treatment lacked credibility. That finding finds support in the record. Consequently, we see no inconsistency between Vigman's opinions and the judge's conclusions.

The other issues raised on appeal do not warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We note only that an appellate court will review a trial court decision regarding the admission or exclusion of expert testimony in accordance with an abuse of discretion standard. C.W. v. Cooper Health Sys., 388 N.J. Super. 42, 64 (App. Div. 2006). We find no abuse of discretion with respect to Peacock's testimony, which we do not view as a "net opinion."

Consequently, we affirm the Division's decision.



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