March 22, 2010
JOSE MEDINA-SEGARRA, PETITIONER-APPELLANT,
RUDL FENCING & DECKING, RESPONDENT-RESPONDENT.
On appeal from Final Decision of the New Jersey Department of Labor, Division of Workers' Compensation, Claim Petition No. 2000-21033.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 1, 2010
Before Judges Lihotz and Ashrafi.
Petitioner Jose Medina-Segarra appeals from a decision of the Division of Workers' Compensation ("the Division") denying his claim for increased permanent disability. We affirm.
In the course of employment by respondent Rudl Fencing & Decking, petitioner injured his back while lifting heavy items on September 1, 1999. He underwent same-day surgery on his lower back in November 1999. He never returned to his job. He filed a claim for workers' compensation and eventually settled the case on July 17, 2001, by order establishing partial permanent disability of 33 and 1/3 percent of total.
In December 2002, petitioner filed a claim petition before the Division to review and modify his award. For reasons not revealed by the record, almost five years lapsed before the Division began a hearing on the claim. In the meantime, petitioner moved to Florida, did not obtain any other employment, and suffered other unrelated medical ailments.
Petitioner testified before a judge of compensation in September 2007. He stated that previously he had pain in his left leg but now it also radiates to his right leg and feels like a knife in his back. He testified that he experiences pain when sitting, walking, or lying down, and he has great difficulty sleeping. Although he testified that his weight has dropped from more than 200 pounds to 164, respondent pointed out that the weight loss came after petitioner suffered a heart attack in 2006. Petitioner also testified about various household tasks that he has difficulty doing and social and recreational activities that he can no longer enjoy, such as riding a bicycle, jogging, fishing, and picking up his grandson.
He described his mental state as "a very fine line between sanity and insanity" as a result of his back pain.
In January 2009, petitioner and respondent each submitted four medical reports in lieu of live testimony from the doctors. Respondent's orthopedic expert, Philip K. Keats, M.D., examined petitioner on March 8, 2004, and compared his examination of that date to one he had conducted on December 4, 2000, about a year after petitioner's back surgery. Dr. Keats concluded that there were no objective findings of additional orthopedic impairment and disability in 2004 as compared to 2000.
Respondent's neuropsychiatric expert, L. Scott Eisenberg, M.D., examined petitioner on March 9, 2004. He noted petitioner's unrelated medical disorders as hypertension, diabetes, and a viral infection of the eye. He also noted that he had previously examined petitioner in December 2000. Dr. Eisenberg found "[a] degree of elaboration" by petitioner regarding his subjective complaints and concluded that there was no objective evidence of any increase in neurologic disability in 2004. He wrote: "Assuming the complaints and his presentation for the neuropsychiatric point of view are bona fide, I would estimate an additional disability in that regard of 2% of partial total related to his back condition."
On behalf of petitioner, Bruce Johnson, M.D., submitted a neuropsychiatric report dated November 16, 2004. Dr. Johnson concluded that petitioner suffers from "bilateral lumbar radiculopathy post-op for laminectomy with permanent neurologic impairment estimated at 70% of total." In addition, Dr. Johnson attributed 30% of total disability to psychiatric impairment resulting from major depression, thus concluding that petitioner was 100% disabled.
Petitioner also submitted two reports dated April 13, 2006. An orthopedic report prepared by Vijaykumar Kulkarni, M.D., found 100% disability based on the back injury. Dr. Kulkarni relied on petitioner's subjective complaints, his own physical examination of petitioner, including range of motion testing, MRI reports from September 1999 and February 2000, and various treatment notes and reports of doctors. Although Dr. Kulkarni's office had also examined petitioner in December 2000, his report of April 2006 did not include a comparison of findings from the two examinations.
The second report submitted by petitioner dated April 13, 2006, was a neuropsychiatric evaluation by Cheryl Wong, M.D. Dr. Wong, like Dr. Johnson in 2004, concluded that neurologic impairments caused by the accident resulted in 70% of total disability and that psychiatric impairment, namely, major depressive disorder, constituted an additional 30% of total disability.
In December 2006, Drs. Keats and Eisenberg re-examined petitioner on behalf of respondent and issued supplemental reports. Dr. Keats indicated that he had reviewed his own and the other doctors' reports and also conducted a physical examination of petitioner. He reached the following orthopedic conclusion:
Mr. Jose Medina-Segarra continues to have severe subjective complaints regarding his back and lower extremities. No objective evidence has been presented that his spinal condition has progressed or deteriorated further from an anatomic standpoint. It continues to be my opinion based on these facts that there is zero additional permanent partial disability related to the back over and above what has previously been awarded.
Dr. Eisenberg also reviewed updated medical records and reports and conducted another neuropsychiatric examination in December 2006. He found some "outlandish claims of pain" by petitioner that were not credible. Dr. Eisenberg concluded: "His exam is again colored by a great deal of elaboration. There is no objective evidence of increased disability neurologically or neuropsychiatrically."
Finally, Dr. Wong submitted an updated report on behalf of petitioner dated October 21, 2008. Noting that petitioner's unrelated medical problems now included myocardial infarction in addition to hypertension, diabetes, lumbar surgery, inflammation of the left eye, and corneal thinning of both eyes, Dr. Wong indicated that her prior opinion had not changed attributing 100% disability resulting from the accident of 1999.
In addition to the doctors' reports and petitioner's testimony, the judge of compensation viewed a surveillance video that respondent had obtained of petitioner in Florida.*fn1 The judge placed his oral decision on the record on February 18, 2009, followed by an order dated February 19, 2009, which dismissed with prejudice the claim for modification of the 2001 award. Petitioner filed a motion for reconsideration, which the judge denied by order dated April 1, 2009. This appeal followed.
Petitioner contends that the judge erred in denying his claim for modification of the award because the medical reports he submitted found 100% physical and psychiatric disability, and even respondent's neuropsychiatric report indicated a 2% increase of disability.
In considering petitioner's contentions, we first note that "the scope of appellate review is limited to determining whether the findings of the Judge of Compensation could reasonably have been reached on sufficient credible evidence present in the whole record, after giving due weight to his expertise and his opportunity of hearing and seeing the witnesses." Kozinsky v. Edison Prods. Co., 222 N.J. Super. 530, 537 (App. Div. 1988); accord Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). "[W]here the focus of the dispute is not on credibility but, rather, alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom," the scope of appellate review is somewhat broader. Manzo v. Amalgamated Indus. Union Local 76B, 241 N.J. Super. 604, 609 (App. Div.), certif. denied, 122 N.J. 372 (1990). "Where our review of the record 'leaves us with the definite conviction that the judge went so wide of the mark that a mistake must have been made,' we may 'appraise the record as if we were deciding the matter at inception and make our own findings and conclusions.'" Ibid. (quoting Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989)).
Having reviewed the record, we conclude that the judge's decision was based primarily on credibility determinations between competing medical reports as well as petitioner's testimony. We will defer to those credibility findings.
Furthermore, we find nothing "wide of the mark" in the judge's findings and conclusions that requires our own independent appraisal of the facts.
The burden was upon petitioner to prove his claim, that his disability had increased from the level of the prior award. See Perez v. Pantasote, Inc., 95 N.J. 105, 118 (1984). Furthermore, his subjective complaints of pain and impairment were not sufficient; the workers' compensation statute requires "demonstrable objective medical evidence" to prove a permanent disability. N.J.S.A. 34:15-36; Pantasote, Inc., supra, 95 N.J. at 118.
The judge of compensation was not bound to accept the conclusions of petitioner's doctors. See Perez v. Capitol Ornamental, Concrete Specialties, Inc., 288 N.J. Super. 359, 367-68 (App. Div. 1996). On this record, he could reasonably accept the conclusions of respondent's doctors that they found no objective medical evidence in 2004 and 2006 demonstrating an increase in disability from that in 2000.
Petitioner makes much of Dr. Eisenberg's report of March 2004 indicating a 2% neuropsychiatric increase in his disability, but that assessment was conditioned on petitioner's complaints being bona fide. Two years later, Dr. Eisenberg found that petitioner was making "outlandish claims" and that his complaints were again "colored by a great deal of elaboration." Thus, Dr. Eisenberg himself found that petitioner's subjective complaints were not bona fide.
Moreover, the judge made his own assessment of petitioner's credibility, based on hearing his testimony in person and viewing the surveillance video. The judge agreed with Dr. Eisenberg that "elaboration and . . . credibility questions" affected petitioner's "account of his present disability."
Having found the reports of respondent's doctors more credible with respect to the absence of objective evidence of increased disability, the judge did not err in concluding that petitioner had failed to meet his burden of proof.