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Brian Noto v. Staples

August 2, 2011


On appeal from New Jersey Division of Workers' Compensation, C.P. No. 2000-3128.

Per curiam.


Submitted May 4, 2011

Before Judges Nugent and Kestin.

Petitioner in this Workers' Compensation case, Brian Noto, appeals from a July 29, 2010 order dismissing his claim for review and modification of an award previously received. The Judge of Compensation dismissed the application "for failure to sustain the burden of proof." We reverse and remand for further proceedings.

The standard of review in appeals from decisions in the Division of Workers' Compensation (Division) is found in a classical formulation by the Supreme Court, speaking through Justice Hall, that has provided the basic rule governing our role in all appeals from administrative agencies, and from which a panoply of derivative principles and approaches have sprung:

[I]n relation to the review of factual determinations made by administrative bodies, . . . the standard to govern appellate intervention with respect thereto is the same as that on appeal in any non-jury case, i.e., "whether the findings made could reasonably have been reached on sufficient credible evidence in the record," considering "the proofs as a whole," with due regard to the opportunity of the one who heard the witnesses to judge of their credibility . . . , and, in the case of agency review, with due regard also to the agency's expertise where such expertise is a pertinent factor. [Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (internal citations omitted) (quoting State v. Johnson, 42 N.J. 146 (1964)).]

Corollaries to this "substantial evidence rule" are found in other, related principles. Courts are obliged to "place[] great weight on the interpretation of legislation by the administrative agency" to which the Legislature has entrusted its enforcement, Peper v. Princeton Univ. Bd. of Trustees, 77 N.J. 55, 69-70 (1978), unless the court "finds that the rule is inconsistent with the statute it purports to interpret[,]" Smith v. Director, Div. of Taxation, 108 N.J. 19, 26 (1987); and to defer to the agency's adoption and application of fair rules and procedures designed to promote the powers so conferred. See In re Union County Prosecutors, 301 N.J. Super. 551, 561 (App. Div. 1997); Lally v. Public Employees' Ret. Sys., 246 N.J. Super. 270, 273 (App. Div.), certif. denied, 126 N.J. 332 (1991). These latter tenets exist in the context of the broader principle, also described by Justice Hall for the Court, that "[a]n appellate tribunal is, however, in no way bound by the agency's interpretation of a statute or its determination of a strictly legal issue." Mayflower Securities Co., Inc. v. Bureau of Securities, 64 N.J. 85, 93 (1973).

With these primary sources as our guideposts, we proceed to analyze the issues in this case.

Petitioner was injured in a work-connected accident on June 1, 1998. A January 13, 2004 Division "order approving settlement" contained a determination that petitioner was entitled to a permanent disability award of "20% partial total being orthopedic[,] neurologic and psychiatric in nature for post-operative state of left inguinal hernia with subsequent surgery with transected left il[]ioinguinal nerve and il[]ioinguinal nerve neuropathy." The basis for the award was described in a subsequent document authored by petitioner's attorney as having been the sequela of a surgical procedure to repair a work-connected hernia, which resulted in an injury to the ilioinguinal nerve.

The document containing that description was a certification in support of petitioner's April 26, 2005 "motion for medical and temporary disability benefits." The attorney's certification went on to state that, since the entry of the award, petitioner had been receiving authorized pain management care.

Subject care being provided by Dr. Robert S. Silverman of the Valley Institute [for]

Pain. [Petitioner] will be in need of this pain management, including medication for his entire life. Dr. Silverman has requested that the respondent provide petitioner with continued medication, the same being neuro[n]tin. Further, Dr. Silverman has prescribed acupuncture and massage therapy for petitioner's pain.*fn1

An attached report from Dr. Silverman, dated February 18, 2005, stated, in part, that petitioner had returned from seeing another physician, and has now come back here for an ilioinguinal nerve block as well as medications. The new pregabalin drug, I just heard, has been delayed now until July which does become an issue; unfortunately, there is not much I can do. I told him to stick to his Neurontin and we will get authorization to do his ilioinguinal nerve block. Basically, his pain is about the same. Ergonomics at work are a problem. I told him to speak with HR in his employment place to see if they can set him up for some sort of better seating situation, and also to see if he can go to a chiropractor or acupuncture or massage therapist . . . . Impression is severe back and groin pain.

The plan will be to arrange for ilioinguinal nerve block with Stimuplex guidance, wait for the pregabalin to be available, and continue Neurontin until then.

The attorney's certification continued:

On or about April 11, 2005, the petitioner was notified by the pharmacy that the respondent's insurance carrier has stopped paying for the petitioner's prescribed neuro[n]tin.

[]Upon telephone calls made to respondent's insurance carrier, RSK Company Claims, our office and the pharmacy has been told . . . that [petitioner's] case is a closed case. . . .

[]On behalf of the petitioner, I respectfully request that the court order the respondent to provide this petitioner with medical care as recommended by Dr. Silverman. Further, that the court order the respondent to continue to pay for petitioner's prescribed neuro[n]tin.

Respondent's answer to petitioner's April 26, 2005 motion for medical and temporary disability benefits was dated May 10, 2005. It stated:

Petitioner received an Order Approving Settlement for 20% ppt on January 13, 2004. Disability has been fixed. The order does not indicate any continuing obligation on behalf of respondent for treatment/ medication.

The next document in the record was an "application for review or modification of formal award" dated May 10, 2005. Respondent's answer, dated May 31, 2005 asserted:

Petitioner's permanent disability has not increased since the date judgment was entered. Respondent denies causal relationship between the disability alleged in the Application for Review or Modification of Formal Award and the prior accident/exposure.

Any medical treatment received by petitioner since the date judgment was entered was unauthorized and not chargeable to the respondent.

On June 21, 2005, the same Judge of Compensation who had, on January 13, 2004, found petitioner's twenty percent permanent partial disability, entered an order requiring respondent's carrier "to continue prescription medications by Dr. Silverman until further order of court."

On July 8, 2005, petitioner's attorney wrote to that judge requesting a "three-cycle" adjournment of the pending motion for medical and temporary disability benefits. Counsel noted:

I believe that the respondent is providing [the] subject medications [ordered on June 21, 2005].

However, there still remain issues as to the petitioner's need for other related medical care. Further, respondent's attorney, I believe, is ordering a[n] independent medical exam to confirm the need for further medical care. (Pa 41)

On December 6, 2005, a succeeding judge entered an order requiring respondent to pay the outstanding bills of Dr. Robert Silverman, . . . which, as of 8/31/05, were $500. Further pursuant to Dr. Charles'[*fn2 ] reports dated 9/14/05 and 11/16/05, respondent will continue to authorize neurontin and/or any other pain medication prescribed by Dr. Silverman and/or any other authorized pain management doctor.

That succeeding judge handled all subsequent proceedings, including the final decision from which this appeal has been taken. The December 6, 2005 order, under the form-heading "permanent disability" contains an entry "None at this time."

The record on appeal contains no further documents until a June 6, 2008 order dismissing the matter "for lack of prosecution." A March 27, 2009 order, on petitioner's motion, vacates the dismissal order, re-instates the claim petition, and provides that "the matter be listed for pretrial."

The pre-trial memorandum bears a March 27, 2009 date. It lists three physicians as witnesses, Drs. Wong, Maio, and Effron.

On May 29, 2009, petitioner moved again for "temporary and/or medical benefits." Counsel's certification in support of the motion notes another examination of petitioner by Dr. Silverman on May 1, 2009, and attaches two reports from that physician. The certification states: "The respondent has clearly denied petitioner's claim [for] further authorized medical care."

The attached documents from Dr. Silverman are a "follow-up note" dated May 1, 2009, and a "To Whom It May Concern" letter dated May 6, ...

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