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Tiburcio v. United Parcel Service

August 3, 2010

FATIMA TIBURCIO, PETITIONER-APPELLANT,
v.
UNITED PARCEL SERVICE, RESPONDENT-RESPONDENT.



On appeal from the Department of Labor, Division of Workers' Compensation, Claim No. 2002-33958.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 22, 2010

Before Judges Fisher and Reisner.

Petitioner Fatima Tiburcio appeals from a June 16, 2009 order of the Division of Workers' Compensation dismissing her claim against United Parcel Service (UPS) for additional benefits based on an increase in her disability. We affirm.

I.

Tiburcio, a UPS delivery truck driver, filed a claim based on a vehicular accident that occurred on September 5, 2002. In connection with that claim, Dr. Moskowitz submitted a report for petitioner opining that Tiburcio had significant levels of impairment, while Dr. McClure submitted a report for UPS opining that she had relatively slight impairment and was exaggerating her symptoms. Tiburcio settled her claim in 2005 for an award of 42 1/2% of permanent partial total, attributable, in pertinent part, to her left foot, left leg, and back.

About a year later, in 2006, she filed an application for review or modification of the award, claiming increased disability in her low back and left leg. At the trial on this application, petitioner testified that she had not worked since the date of the accident. Since the settlement was entered in September of 2005, she had continued to suffer pain in her low back, her left knee and ankle, and pain in her right hip. She testified that the problems with her knee and ankle had gotten worse since the 2005 settlement. She also complained of pain in her left chest and right shoulder.

On cross-examination she confirmed that after the 2005 settlement, she did not seek additional treatment until 2007. She admitted that "the insurance company" sent her to be examined by Drs. Nachwalter and Getcha, neither of whom recommended any further treatment.*fn1 She denied telling Dr. Nachwalter that she "worked in a home office" with her brother, a window installer, although she admitted that the business was in her name. She further admitted she was in an auto accident on August 20, 2007, although she claimed it was minor.

According to Dr. Moskowitz, claimant needed further treatment. He testified that the plates and screws that were inserted in her broken ankle during surgery after the 2002 accident needed to be removed. Due to developing osteoarthritis, she probably needed "an arthroscopy of her involved left knee," as well as an MRI of her lower back to diagnose any further degenerative disc disease. He opined that with respect to her ankle, knee and lower back, and left breast, all of which were injured in the 2002 accident, "most of the symptoms were getting worse." Thus he opined she now had a greater percentage of disability. On cross-examination, he admitted that he was not petitioner's treating physician, and he only examined petitioner for purposes of this case. He also admitted that between his 2007 examination and the 2008 exam, her symptoms had shown some improvement.

Dr. McClure, an orthopedic expert, examined petitioner in 2007; his associate Dr. Hermann had previously examined her in 2003. Contrary to Dr. Moskowitz, Dr. McClure found the examination results to be mostly normal, with no sign that petitioner was having difficulty walking. Her left ankle was swollen, but no more so than it was in 2003. She did have somewhat decreased range of motion in the left ankle. He testified that he had reviewed the reports of Drs. Nachwalter and Getcha, both of whom had opined that petitioner could return to work and did not need any additional treatment. Responding to a hypothetical that included petitioner's testimony, the treating doctors' findings, and his own examination findings, Dr. McClure opined that petitioner had no increased disability in her left knee, ankle, or back, for reasons he explained in considerable detail.

Respondent also presented testimony from a neurologist, Dr Elmore. According to Elmore, during a 2007 examination petitioner told her that she "was working in a business with her brother." Elmore observed that petitioner walked with a normal gait and had normal reflexes. Elmore found no evidence of any psychiatric or neurologic disability.

After the trial, the compensation judge found that respondent's witnesses, Drs. McClure and Emore, were more credible than petitioner's expert, Dr. Moskowitz. The reports of the treating doctors, Nachwalter and Getcha, tended to support the views of respondent's testifying experts. The judge found that petitioner "has ...


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