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Julio Otoya v. Jersey City Parking Authority

February 4, 2011

JULIO OTOYA, PETITIONER-RESPONDENT,
v.
JERSEY CITY PARKING AUTHORITY, RESPONDENT-APPELLANT.



On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition No. 2006-25475.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 5, 2011

Before Judges Sapp-Peterson and Fasciale.

Appellant, Jersey City Parking Authority (Parking Authority), appeals from the March 10, 2010 order of the Division of Workers' Compensation (Division) awarding petitioner, Julio Otoya, the gross sum of $58,926, representing 30.5 percent of permanent partial disability arising out of his work-related injuries. We affirm.

Otoya was employed by the Parking Authority and worked in the boot department. His duties included monitoring cars parked without a valid permit. When petitioner found a car illegally parked, he immobilized the car by placing a boot on it. On February 16, 2006, while attempting to place a boot on a vehicle, petitioner fell, injuring his right shoulder and left elbow. He was treated at Jersey City Medical Center where x- rays were taken and his left arm placed in a sling. He was not admitted to the hospital but discharged that same day. Fifteen months later, petitioner underwent arthroscopic surgery. The postoperative diagnosis was right shoulder acromioclavicular joint arthrosis, impingement syndrome, and superior labrum anterior posterior lesion.

Following surgery, petitioner missed approximately four to five months of work. When he returned to work, he no longer immobilized vehicles. He was assigned to locate vehicles registered to scofflaws, and when such vehicles were located, he ticketed the vehicles and made arrangements to have the particular vehicle towed.

Petitioner filed a claim for workers' compensation benefits. A trial before a judge of workers' compensation took place on January 6, 2010. The parties stipulated that petitioner suffered compensable injuries on February 16, 2006; and petitioner's average weekly wage was $556, resulting in a weekly temporary disability rate of $389.20, and a $184 weekly starting rate for partial permanent disability. The parties also agreed that the sole issue to be resolved at trial was the nature and extent of petitioner's permanent disability. The court adopted, as part of its findings, the parties' stipulations.

Petitioner was the sole witness to testify at trial. The parties waived their right to present oral medical testimony and agreed to rely upon their respective medical evaluation reports. Therefore, the court admitted, without objection, the July 9, 2008 report of Dr. Vijaykumar Kulkarni, a board certified general surgeon; the July 21, 2008 report of Dr. Arthur Canario, an orthopedic surgeon; the treatment records of Dr. Jeffrey R. Augustin, the orthopedic surgeon who performed the shoulder surgery; and the hospital records from Christ Hospital where Dr. Augustin performed the surgery.

Based upon the testimony presented, the exhibits admitted, and the stipulations, the compensation judge made the following findings:

Pursuant to N.J.S.A. 34:15-36, the [p]petitioner must make a satisfactory showing of objective medical evidence which demonstrates a restriction in the function of the body or of its members or organs and that there has been a lessening to a material degree of [p]petitioner's working ability or that he has suffered a disability that has significantly interfered with his ordinary pursuits of daily living.

In listening to the [p]petitioner's testimony, I find that he was forthright and candid. His testimony was consistent. He did not exaggerate or embellish. Thus, I find that the [p]petitioner was indeed very credible, notwithstanding the subjective nature of his complaints.

In order for this [c]court to regard subjective complaints as convincing evidence of disability, the complaints ought to be compatible with the injury. They ought to correspond with objective findings, which means that there must be some consistency. In comparing the [p]petitioner's testimony to Dr. Kulkarni's orthopedic evaluation report, I do find that there is consistency. As for Dr. Canario's evaluation, I conclude that there is less consistency between the [p]petitioner's testimony and the doctor's evaluation, which I attribute to discrepancies in the history taken by Dr. Canario and perhaps to a less than comprehensive review of the [p]petitioner's medical records and the treating physicians' findings contained therein. . . .

During his testimony, the [p]petitioner credibly testified as to his daily and constant pain that prevent[s] him [from] performing normal daily activities such as grocery shopping, making minor household repairs or even carrying or playing with his infant child. Moreover, [p]petitioner credibly testified as to his significant weight gain as a result of being unable to engage in physical exercise as he did before the accident. Lastly, I found his subjective complaints regarding his difficulties in ...


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