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Ferraro v. Pepsi-Cola

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 15, 2010

EDWARD G. FERRARO, PETITIONER-APPELLANT,
v.
PEPSI-COLA, INC., RESPONDENT-RESPONDENT.

On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, Claim Petition No. 1991-878.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 13, 2010

Before Judges Lisa and Alvarez.

Petitioner Edward G. Ferraro appeals from the January 26, 2009 denial of his second application for review and modification of a workers' compensation award. For the reasons that follow, we affirm.

On March 21, 1990, petitioner was injured while employed as a driver for respondent Pepsi-Cola, Inc. As a result, he underwent multiple surgeries, including on his left ankle, left elbow, and left shoulder. He has not worked since the occurrence. The matter eventually settled on February 1, 2000. Petitioner's compensation award was as follows:

60% partial total disability for orthopedic, neurological [and] neuropsychiatric...

37.5% of total for ortho/neuro of left shoulder; 35% of left foot for ortho/neuro;

7.5% of left arm for neuro/ortho; 5% of total for neuropsychiatric injury... represent[ing] residuals of multiple surgical interventions to l[eft] shoulder, post-traumatic epicon[dyli]tis of l[eft] elbow s/p surgery for removal of nodules [and] ligament surgery to [left] ankle [and] post traumatic anxiety [and] depression.

Petitioner on January 16, 2002, filed an application for review and modification. Judge Karch entered an order of judgment on October 14, 2004, on that application after a hearing. She increased the percentage of permanent disability to sixty-five percent, attributable to "partial total, orthopedic, neurologic [and] neuropsychiatric in nature, for residuals of torn l[eft] rotator cuff, l[eft] lateral epicondylitis, l[eft] carpal tunnel syndrome, torn l[eft] ankle ligaments, w[ith] multiple surgical interventions, plus anxiety and depression." Accordingly, among other things, respondent paid petitioner an additional $18,360.

Petitioner filed a pro se second application for review and modification on August 9, 2006. He again contended he was permanently and totally disabled, this time solely on the basis of a claimed increase in psychiatric disability. Judge Karch entered a judgment denying his petition on January 26, 2009, following a hearing. Petitioner now appeals.

During the course of the proceeding at issue, petitioner testified that his psychiatric condition had worsened since the entry of the October 14, 2004 order of judgment. He claimed that the pain in his left side had worsened, that he could not sleep and suffered from recurrent nightmares. After the entry of the 2004 judgment, petitioner was treated for pneumonia at Clara Maas Hospital. Copies of those records were marked into evidence in the proceedings at issue and were relied upon by the judge in reaching her decision.

Roberto Sozzi, M.D., petitioner's treating psychiatrist since February 2004, testified as his witness. Sozzi's diagnosis is that petitioner suffers from "[s]tress adjustment reaction with major depressive episode and paranoid delusional disorder[,] [o]bsessive compulsive disorder with poor insight[,] [g]eneralized and panic disorder," and "[p]ain disorder associated with general medical condition and psychological factors." When Sozzi tested petitioner, his Global Assessment Functioning (GAF) score was 40 although it has currently increased to 50. Sozzi's treatment included not only monthly psychiatric visits but, since July 21, 2005, he has prescribed Geodon twice daily, Alprazolam three times daily, Paxil two times daily, Darvocet three times daily, and Ambien for insomnia every night. Currently Sozzi's treatment of petitioner includes prescriptions for Seroquel, Paxil, Xanax, Ambien, and Darvocet. Sozzi said petitioner is agitated, suffers from mood swings punctuated by rage, is paranoid, obsessively ruminates, and has impaired language and comprehension.

In reaching her decision, Judge Karch significantly relied upon her own observations of petitioner over the years concluding that his "'psychosis' exists... only when pursuing workers' compensation benefits,... in [] Sozzi's office, at his examinations with [] Crain and Semel,*fn1 and in court." Judge Karch also noted that the records from petitioner's August 2005 ten-day stay at Clara Maas Hospital refute his claimed psychiatric disability. While there, petitioner was repeatedly asked whether he had been prescribed any medications, to which he responded that he was only prescribed Ambien and Darvocet. When pressed as to the dates he last took those medications, he said he takes Darvocet and Ambien on an as-needed basis, not daily. The medical records further indicate that although petitioner appeared to be anxious and depressed, he was neither agitated nor fearful, and "was also noted to be pleasant and to have no difficulty with speech." In fact, the records state that "his psychiatric status was assessed as normal."

At the 2009 hearing, petitioner also presented expert testimony from Dr. Peter Crain in support of his claim. Judge Karch discounted Crain's report, however, because he interviewed petitioner when petitioner's wife was present, not when petitioner was alone. The judge found, based on her own observations and her review of petitioner's medical records, that when petitioner's wife is not in the room, his behavior approximates the norm. Sozzi, during more than fifty meetings over the course of several years, has spent little time alone with petitioner.

Dr. Charles Semel, respondent's expert, opined during the hearing that petitioner's mental state and behavior had improved over time, not worsened. He said petitioner "suffer[ed] from no psychiatric disorder other than symptom magnification." Semel, who is a board-certified psychiatrist, testified that when he examined petitioner, he did not find evidence of depression, obsessive compulsive disorder, or any other psychiatric disorder. Semel actually stated that it is possible that petitioner's reported difficulties may result at least in part from the medication he has been prescribed. According to Semel, some of these drugs should not be utilized for treatment of any condition other than schizophrenia or other severe psychosis, because when prescribed for non-psychotic individuals, they can cause mental confusion. After considering all the evidence presented in the several days of testimony, Judge Karch found petitioner's testimony, and his witnesses' assessment of his psychiatric condition, to be "incredible."

Petitioner's points on appeal are as follows:

POINT I

ALL JUDGMENTS ENTERED FOLLOWING ORIGINAL JUDGMENT ENTERED FEBRUARY 1, 2000 HAVE BEEN INCORRECTLY BASED UPON FALSIFIED, UNSIGNED, UNACCEPTED, AND UN-SERVED SETTLEMENT ORDER CREATED AND CAUSED TO BE PLACED INTO AGENCY FILE BY RESPONDENT COUNSEL (PA2 & PA3)

POINT II

COURT BELOW FAILED TO FULLY AND PROPERLY IDENTIFY AND GIVE STATUTORY CREDIBILITY TO EVIDENCE PRESENTED BY PETITIONER THAT CLEARLY DEMONSTRATED "REASONABLE PROBABILITY" PETITIONER IS 100% ORTHOPEDICALLY AND 100% NEUROLOGICALLY AND PSYCHOLOGICALLY DISABLED WORKER UNDER N.J.S.A. 34:15

POINT[] III

WITHOUT BENEFIT OF INTRODUCTION BY PETITIONER OR RESPONDENT COURT BELOW TOOK JUDICIAL NOTICE (C-1) OF PETITIONER'S INFECTIOUS DISEASE HOSPITALIZATION REPORT AT CLARA MAAS[] HOSPITAL OF AUGUST 15, 2005 THRU AUGUST 26, 2005. FAILING TO UNDERSTAND HOSPITAL REPORT, DECIDED CONTRARY TO FACTS CONTAINED WITHIN THAT REPORT THAT PETITIONER HAD NO NEED FOR PRESCRIBED MEDICATIONS AND HAD NO NEUROLOGICAL OR PSYCHOLOGICAL DISABILITY

POINT IV

RESPONDENT'S EXPERT WITNESS DR. CHARLES SEMEL'S REPORT IS "NET REPORT" AND SHOULD NOT HAVE BEEN ACCEPTED BY COURT BELOW. TESTIMONY OF THIS RESPONDENT EXPERT ON BEHALF OF THIS RESPONDENT IS "NET" AND "IRRELEVANT" AND SHOULD HAVE BEEN BARRED BY COURT BELOW

POINT V

IN VIOLATION OF R. 4:5-4, AND CASE LAW REGARDING JUDICIAL AND EQUITABLE ESTOPPEL RESPONDENT COUNSEL RETAINED "EXPERT" EVALUATING PHYSICIAN DR[.] CHARLES SEMEL TO EXAMINE PETITIONER CONCERNING 3RD PETITION TO DISCREDIT PRIOR RESPONDENT ASSIGNED EXPERT EVALUATING PHYSICIAN DR. SOZZI, USED BY RESPONDENTS TO DEFEAT PETITIONER'S 2ND PETITION

We address petitioner's second point first, that being his contention that Judge Karch improperly applied statutory standards and weighed the evidence. We do not agree.

The scope of our review is limited to "whether the findings of the [j]udge of [c]ompensation 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); see Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). That standard is highly deferential. Ibid. We do not independently assess the evidence as if we were a court of first instance. Sager v. O.A. Peterson Const., Co., 182 N.J. 156, 164 (2004) (citing to State v. Locurto, 157 N.J. 463, 471 (1999)). A trial judge's findings are binding "when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Furthermore, it is the petitioner who bears the burden of proof in justifying an award of compensation, and he must meet that burden by a preponderance of the evidence. N.J.S.A. 34:15-5.

Moreover, a court's factfinding prerogatives include the manner in which to weigh an expert's opinion. See State v. M.J.K., 369 N.J. Super. 532, 549-52 (App. Div. 2004), appeal dismissed 187 N.J. 74 (2005). A factfinder may also choose, as between competing expert opinions, the one to which to give greater credence. Ibid.

Judge Karch rejected petitioner's claim that he is psychiatrically impaired, concluding his conduct was motivated by his interest in securing a 100% disability judgment. After our review of the record, nothing leads us to disturb this factual determination. It could have reasonably been reached on sufficient credible evidence presented in the whole record. See Kozinsky, supra, 222 N.J. Super. at 537; see also Close, supra, 44 N.J. at 599. It is substantially supported by the hospital admission records and the improvement in petitioner's GAF. See Locurto, supra, 157 N.J. at 474. It is also supported by the judge's own observations of defendant in the courtroom over years.

Similarly, the judge's decision not to credit Sozzi's or Crain's testimony to the extent she credited Semel's opinion is reasonable. She clearly articulated her reasons for discounting the testimony of Sozzi and Crain, and her rationale in light of the other available proofs was warranted and consistent with applicable legal principles. See M.J.K., supra, 369 N.J. Super. at 549-52.

We now reach petitioner's first point, that all judgments entered since February 1, 2000, were "falsified" because they were based on the initial order, which petitioner now contends was "falsified." This argument is so lacking in merit as to not warrant further discussion in a written opinion.

R. 2:11-3(e)(1)(E).

In his third point, petitioner objects to the court's reliance on the records of his admission at Clara Maas Hospital. He asserts that the judge misconstrued the information and should not have relied upon it. We are not clear on petitioner's reasons for contending that the judge should not have considered the records, but in any event they were only a portion of the evidence which led the judge to her conclusion. Petitioner's statements to hospital staff regarding the medications he had been prescribed, and the infrequency with which he took the drugs, were made while obtaining entirely unrelated medical treatment. Those records suggest that petitioner's perception of himself and his psychiatric status, outside the workers' compensation court, is entirely different from when he is in the compensation context. And the hospital's conclusion that petitioner did not require a psychiatric evaluation during his ten-day stay was certainly noteworthy. The judge's discussion of these records does not indicate any mistake as to their import, and the admission of the records was proper.

Petitioner in his fourth point attacks Semel's report as an inadmissible "net report." His argument mistakes the meaning of the net opinion rule. Petitioner believes that Semel "went looking for facts" to support his opinion that defendant was not 100% psychiatrically disabled because he was hired by respondent. The definition of the net opinion rule, however, is that it "requires [] an expert's opinion be based on facts, data, or another expert's opinion, either perceived by or made known to the expert, at or before trial." Rosenberg v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002) (citations omitted). "Under the 'net opinion' rule, an opinion lacking in [] foundation and consisting of bare conclusions unsupported by factual evidence is inadmissible." Ibid. An expert's report must provide the why and wherefore of the opinion, rather than merely parrot a bare conclusion. Ibid. Semel's report was based on his interview, examination, and standard testing of petitioner, as well as his review of prior records. His conclusion was reached based on the resulting information and data, and was therefore simply not a net opinion.

Petitioner's final contention is that respondent was in some unspecified fashion barred from retaining Semel to examine him because they were barred from discrediting Sozzi. This point is, at best, unclear. No rule or equitable doctrine bars respondent from retaining an expert to testify at a contested hearing. This point does not warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).

It is the petitioner who bears the burden of proof by a preponderance of the evidence. He has failed to meet his burden.

Affirmed.


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