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Vetter v. I.S.E. America

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 4, 2010

MICHAEL VETTER, PETITIONER-APPELLANT,
v.
I.S.E. AMERICA, RESPONDENT-RESPONDENT.

On appeal from a Final Agency Decision of Department of Labor, Division of Workers' Compensation, Claim Petition Number 1993-055139.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 21, 2010

Before Judges J. N. Harris and Newman.

This is an appeal from a decision of the Department of Labor, Division of Workers' Compensation (Division), which reviewed petitioner Michael Vetter's application to modify a formal award of fifty-five percent disability with regard to his neck and lower back injuries. The judge of compensation determined that petitioner was entitled to a five percent increase for the disability to the neck, but did not increase the percentage of disability for the lower back. After our review of the Division's proceedings, and in recognition of our limited scope of review, we affirm.

I.

On March 23, 1992, petitioner was employed by ISE America. As part of his employment responsibilities, petitioner was required to move numerous heavy cases each workday. Petitioner alleged that while moving one of these cases, his shoulder blade and lower back gave out. As a result of this incident, petitioner suffered painful injuries to his cervical area and lower back. The cervical injury was diagnosed as a disc herniation at two levels, for which petitioner subsequently underwent surgery. In contrast, the lower back injury was primarily diagnosed as a mere sprain. On February 5, 1996, this workers compensation claim was resolved by agreement, and petitioner obtained an unallocated award of fifty-five percent disability.

A second work-related incident occurred on August 16, 1995. This time, petitioner was lifting a metal diamond plate to connect his truck to a loading dock. The plate weighed approximately sixty-five pounds, was four to five feet wide, and measured six feet in length. Petitioner "wrenched" his lower back as a result of this exertion.

Petitioner received pain management to his lower back, including some spinal epidural injections also undergoing an MRI on his lumbar area on September 5, 1995. The MRI showed a herniated disc at level L5-S1. Petitioner never returned to work after this incident. This second claim was ultimately resolved in 1998 for $17,500.

Since the initial award in 1996, petitioner testified that his neck problems had gotten worse. He noted that he dealt with sharp pain in his shoulder blade and felt that the cervical surgery did not heal properly. He further testified that he used a neck pillow to sleep in order to avoid pain. With regard to his lower back, petitioner indicated that his pain and discomfort continued, eventually requiring him to submit to surgical procedures. On January 30, 2004, a micro discectomy at level L5-S1 was performed. Follow-up lumbar surgery was also performed in 2006.

In 2002 and 2004, petitioner was examined and evaluated by Dr. David Weiss, D.O. This expert opined that petitioner's then-current neck problems were related to the 1992 injury and estimated the injury to the cervical spine to be seventy-six and two-thirds percent of partial total disability, a ten percent increase from the estimate made in 1992 by Dr. Sidney Tobias, M.D. Dr. Weiss was also of the opinion that petitioner's lumbar pathology was linked to the work-related incident in 1992, as evidenced by the steady progression and worsening of symptoms from then until the present.

During the trial, petitioner asserted that he was entitled to an increased disability percentage award for either the neck or the back or both. Based upon Dr. Weiss's and petitioner's testimony, it was argued that petitioner was entitled to at least a ten percent increase with regard to the cervical injury, and due to the lower back symptomatology, petitioner requested a finding of total disability as a result of the 1992 incident.

In rebuttal, respondent presented the testimony of Dr. Vijay Paharia, M.D., who provided the competing opinion that there was no increase of disability over time as to the petitioner's cervical condition. Dr. Paharia had examined petitioner on three occasions, and the doctor's findings made during the last examination were similar to the first examination performed in 1994. Accordingly, Dr. Paharia's estimate of petitioner's cervical disability showed no increase over that span of time, and remained no more than that of petitioner's prior award.

Dr. Paharia also opined that petitioner's lumbar pathology was "related to the 1995 incident and not related to the 1992 incident." This conclusion was based upon the chronology of events, the doctor's examination of petitioner, and the review of several diagnostic studies as well as other physicians' opinions.

The judge of compensation ultimately found that petitioner had an "increase [of five percent] in disability to the cervical condition." Petitioner's lumbar condition, however, presented a more complex issue. The court stated that petitioner's own forensic expert, Dr. Weiss, did not attribute all of the residuals of the lower back directly to the 1992 accident. Dr. Weiss noted that although petitioner had a lumbosacral sprain back in 1992, it had been substantially aggravated by the 1995 subsequent accident. The court held that this opinion by Dr. Weiss was enough to defeat the claim that the current lumbar condition was caused or attributable solely to the 1992 accident. The ultimate conclusion reached by the judge of compensation was that the second incident in 1995 was "an independent intervening cause," which "[broke] the chain of causation as to the back injury."

This conclusion was buttressed by the judge's finding that the lumbar condition was substantially changed after the 1995 accident. Specifically, prior to the 1995 accident, petitioner had a bulging disk at L5-S1, but subsequent to the 1995 incident, he exhibited a herniation. It was after this 1995 incident that petitioner could no longer perform his job and it was then that petitioner finally submitted to lumbar surgery. Thus, the court was convinced that the worsening of petitioner's lumbar condition was solely attributable to the second unrelated trauma suffered in 1995, and as a result, found that petitioner had not incurred any additional lumbar disability due to the 1992 incident.

The Division's final decision awarded petitioner a five percent increase for the cervical spine injury that made petitioner's overall award sixty percent disability for residuals of the cervical injury. The court did not ascribe any percentage disability as to the lumbar region. This appeal followed.

II.

Petitioner advances a single point for our consideration:

POINT I: PETITIONER, MICHAEL VETTER, IS ENTITLED TO AN AWARD OF TOTAL DISABILITY WITH RESPECT TO INJURIES TO HIS CERVICAL SPINE AND LUMBAR SPINE AND A FINDING TO THE CONTRARY WAS UNREASONABLE BASED UPON THE EVIDENCE.

We are unable to detect any error in the proceedings in the Division, and affirm the well-explained oral decision issued by the judge of compensation. We add only the following brief comments.

In the realm of workers compensation jurisprudence, we are instructed to respect the factual findings of the compensation judge, provided that 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). In making this evaluation, we must consider the judge of compensation's "opportunity to evaluate witnesses' credibility" and defer to his "expertise with respect to weighing the testimony of competing medical experts and appraising the validity of [petitioner's] compensation claims." Ramos v. M & F Fashions, Inc., 154 N.J. 583, 598 (1998). In addition, judges of compensation have "expertise in assessing the nature and extent of the disability." Colon v. Coordinated Transp., Inc., 141 N.J. 1, 11 (1995). Thus, we will accept the findings of the compensation judge, provided that he has given "sufficient reasons for his findings to enable appellate review." Kaneh v. Sunshine Biscuits, 321 N.J. Super. 507, 511 (App. Div. 1999).

Because of these principles, we are obliged to accord substantial deference to the factual conclusions reached by the judge of compensation in this case. Petitioner's claim that "the Workers' Compensation Court should have given greater deference to Dr. Weiss'[s] testimony, as he was more qualified in the field of orthopedics," must be rejected. The evidence was abundant and informative on both sides of the dispute. Petitioner and his expert pressed for a recognition that his current back problems all stemmed from the 1992 accident. The contrary view was advanced "within a reasonable degree of medical certainty." Given that Dr. Paharia had examined petitioner on multiple occasions, as early as December 1994 (after the 1992 incident, but before the 1995 one), it was wholly reasonable for the judge of compensation to find Dr. Paharia's forthright opinions persuasive.

Affirmed.

20100504

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