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Collette v. South Jersey Transportation Authority


September 7, 2010


On appeal from a Final Decision of the Division of Workers' Compensation, Department of Labor, Claim Petition No. 2008-12471.

Per curiam.


Submitted August 31, 2010

Before Judges LeWinn and J. N. Harris.

The South Jersey Transportation Authority (Authority) appeals from the September 2, 2009 judgment of the workers' compensation court awarding petitioner Dymitria Lynn Collette thirty-three and one-third percent permanent partial disability stemming from a job-related shoulder injury. The workers' compensation judge based his final decision on the evidence developed during a plenary trial, finding that petitioner had satisfied her burden of proof by utilizing objective medical evidence that proved that occupational conditions caused her medical problems. The instant appeal largely revolves around the determined percentage of disability and involves a battle between the opinions of two permanency experts, with the gloss of the findings of petitioner's treating physician.

We have thoroughly reviewed the record in light of the Authority's contentions on appeal that the judge erred in accepting and crediting certain testimony. We reject those arguments in their entirety and affirm substantially for the reasons set forth in the September 2, 2009 oral decision rendered by Judge Jose L. LaBoy. R. 2:11-3(e)(1)(D). We similarly find no reversible error in the judge's denial of the Authority's application for reconsideration. We add only the following brief comments.

The factual background for this appeal is gleaned from the trial record, which consisted of the testimony of petitioner, Dr. Ralph G. Cataldo, D.O., and Dr. Anton Kemps, M.D.; as well as all of petitioner's medical records, including those of the treating (but not testifying) physician, Dr. Thomas A. Dwyer, M.D. The parties further stipulated to the date that plaintiff incurred her injury, June 12, 2007, and to the fact that the injury was sustained during the course of her employment. The treatment that petitioner received--including physical therapy, surgery (in September 2007), and extensive medication--was viewed by the parties as reasonable and adequate. Similarly, the dates of petitioner's examinations and the date she returned to work with restrictions--around November 5, 2007--were undisputed. The friction point of the parties' dispute is the nature and extent of any permanent disability that may have flowed from the events of June 12, 2007.

At trial, petitioner's expert, Dr. Cataldo, opined that petitioner endured a "[fifty-five] percent partial total disability." Dr. Kemps, expert for the Authority, who reviewed substantially the same data and examined petitioner only once, just like Dr. Cataldo, concluded that petitioner's left shoulder suffered a "[ten] percent partial total disability." Judge LaBoy, after reviewing the competing opinions of the experts, including Dr. Dwyer's records, concluded that based upon the totality of the circumstances, "Dr. Cataldo's opinion [is] more persuasive and credible in light of the authorized treatment rendered and the physical examination limitation found by him as well as Dr. Dwyer." The judge therefore concluded that the percentage of disability was demonstrated between the two endpoints of the spectrum, at thirty-three and one-third percent. It is from this determination that the Authority now appeals.

Our review of the decision of a workers' compensation judge is quite limited. Magaw v. Middletown Bd. of Educ., 323 N.J. Super. 1, 15 (App. Div.), certif. denied, 162 N.J. 485 (1999). Our standard of review of a determination issued by a judge of compensation is no different than our standard of review in any other non-jury case. Brock v. Pub. Serv. Elec. & Gas Co., 149 N.J. 378, 383 (1997) (internal citations omitted). We will not substitute our own fact-finding for that of the judge of compensation, notwithstanding any inclination to do so. Lombardo v. Revlon, Inc., 328 N.J. Super. 484, 488 (App. Div. 2000). Instead, our assignment is limited to determining "whether the findings reasonably could have been reached on the basis of sufficient credible evidence in the record, considering the proofs as a whole." Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (internal quotation omitted). We accord "due regard to the opportunity of the one who heard the witnesses to judge of their credibility[,]" and, where an agency's expertise is a factor, we accord due regard to that expertise as well. Ibid. While we may defer to the compensation judge's credibility determinations, we owe no special deference to the judge's interpretation of the legal principles applied to the facts.

One of the Authority's main points on appeal is its insistence that Dr. Cataldo's opinion should have been suppressed and not considered because it was rendered prematurely. The Authority relies upon the twenty-six week rule of N.J.S.A. 34:15-16, which provides:

Compensation for all classes of injuries shall run consecutively, and not concurrently, except as provided in this section and in section 34:15-15 of this Title, as follows: First, medical and hospital services and medicines as provided in said section 34:15-15. After the waiting period, compensation during temporary disability. If total period of disability extends beyond 7 days, compensation to cover waiting period. Following both, either or none of the above, compensation consecutively for each permanent injury, except that permanent disability, total or partial, shall not be determined or awarded until after 26 weeks from the date of the employee's final active medical treatment, or until after 26 weeks from the date of the employee's return to work, whichever is earlier, or, if no time is lost or no treatment is rendered, then permanent disability, total or partial, shall not be determined or awarded until after 26 weeks from the date of the accident, except in cases of amputation or enucleation or death from other cause within that time and except when earlier determination of permanent disability is waived by the employer or his insurance carrier. Nothing herein contained shall prevent an employer or his insurance carrier from paying permanent disability compensation voluntarily prior to the expiration of the 26-week period. Following any or all or none of the above, if death results from the accident, expenses of last sickness and burial. Following which compensation to dependents, if any.

Where an employer or his insurance carrier desires to pay for or furnish compensation, medical, surgical, or hospital treatment, drugs, orthopedic or prosthetic appliances, after the date when payments under sections 34:15-12 and 34:15-13 of this Title have terminated, the employer or his insurance carrier may, in writing, reserve the defense of the jurisdictional limitations provided by sections 34:15-27, 34:15-34, 34:15-41 and 34:15-51 of this Title; provided, that the reservation is approved by a deputy director after advising the petitioner personally of his rights and of the effect of such reservation. [(Emphasis added).]

Based upon this statute, the Authority claims that since Dr. Cataldo determined petitioner's permanency based upon a mere one-time examination on July 11, 2008, this was less than twenty-six weeks after her final active medical treatment, which occurred on March 13, 2008. Although this chronology is correct, it fails to consider that petitioner returned to work more than twenty-six weeks before she saw Dr. Cataldo. Thus, even if the statute were applicable to evidentiary determinations--such as whether an expert should testify--it did not bar Dr. Cataldo's opinions because they were determined "after 26 weeks from the date of the employee's final active medical treatment, or until after 26 weeks from the date of the employee's return to work, whichever is earlier." Ibid.

Considering the contradictory opinions of the permanency experts, who did not disagree that petitioner was entitled to some measure of percentage disability award, we will not disturb the judge's reasoned exercise of discretion in finding Dr. Cataldo's opinion to be more compelling, credible, and persuasive than that of the other expert. The resolution of the question of the percentage of disability was largely "a battle between experts." Das v. Thani, 171 N.J. 518, 524 (2002). Assessing the credibility of expert testimony is uniquely within the province of the judge of compensation. He was never bound to accept the testimony of an expert witness. The judge heard all of the expert testimony, weighing it along with the testimony of petitioner and other evidence introduced during the trial, and made his determination. Based upon our careful review of the record, we are convinced that appellate intervention for any of the reasons asserted by the Authority would be a usurpation of the judge of compensation's proper exercise of discretion.



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