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Hugh Mcneil v. Township of South Brunswick Police


May 9, 2012


On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, Claim Petition No. 2010-25026.

Per curiam.


Argued April 23, 2012

Before Judges Ashrafi and Fasciale.

Petitioner Hugh McNeil appeals from an order dismissing his petition for workers' compensation benefits. The primary dispute at trial was whether McNeil's injury was caused by a work-related incident. McNeil argues that the workers' compensation judge reached a decision unsupported by the credible evidence. We disagree and affirm.

Respondent Township of South Brunswick (the Township) employed McNeil as a police officer. At approximately 4:00 a.m., on April 3, 2010, McNeil responded to an emergency call and drove his police vehicle to the scene of a fire. McNeil, who is five feet and ten inches tall and weighed 250 pounds, was wearing his bulletproof vest and gun belt, approximately fifteen pounds. He testified that it was a "tight fit" inside his police vehicle. He further testified that when he arrived at the site of the fire and exited his vehicle, he "might have hit" the steering wheel with part of his body. He remained at the scene of the fire, supervised the investigation, and then finished his shift at 6:30 a.m. that morning.

McNeil went to the hospital later that day and was examined and released. On April 5, 2010, McNeil formally reported the incident to his supervisor, Lt. Joseph Charmello. McNeil was placed out of work, began a regimen of physical therapy three times per week, and received epidural cortisone injections. After an MRI examination on May 11, 2010, it was recommended that McNeil undergo surgery. He has not followed up.

McNeil has had an extensive history of back pain, going back to the early 1990s. In June 1992, an MRI revealed that McNeil had bulging discs at the L3-4 and L4-5 levels. In July 1994, McNeil was injured in an altercation with a suspect, and thereafter complained of pain radiating from his lower back to his right leg. An MRI revealed degenerative disc changes and minimal bulging. In 1995, McNeil injured his back diving for cover, and in 1996 while stretching before exercising. An MRI revealed a herniated disc with superiorly extruded fragment and degenerative disc changes at the L2-3 level, and a herniated disc at the L5-S1 level.

On June 25, 1996, McNeil underwent a discectomy at L2-3. On February 21, 1997, he returned to work. On the next day, he "stumbled," complained of radiating pain in his lower back, and was sent for physical therapy. McNeil was out of work for three months. In February 1998, he was examined by Dr. David M.

Myers, M.D., who concluded that McNeil had permanent orthopedic disability of 42.5 percent of total. In that same year, McNeil was also examined by Drs. Francis DeLuca*fn1 and Gerald Ross, each of whom separately noted that the 1994 MRI indicated degenerative disc disease.

On November 17, 2002, McNeil tripped ascending stairs, causing severe radiating pain in his lower back. Dr. Jeffrey Miller diagnosed McNeil with acute intractable back pain, and an MRI revealed left paracentral lesion at L2-3 and diffuse disc bulge at L3-4. McNeil was admitted into a rehabilitation center for inpatient physical and occupational therapy, and after two weeks, he was discharged with physical therapy to continue on an outpatient basis. In December 2002, Dr. Chu-Kuang Chen diagnosed McNeil with lumbar degenerative disc disease, possible right sacroiliac joint arthropathy and low back pain. In January 2003, McNeil underwent a series of transforaminal epidural cortisone injections. In April 2003, Dr. Miller reevaluated McNeil and diagnosed him with recurrent mechanical low back pain secondary to degenerative disc disease.

On April 11, 2004, McNeil went to an emergency room complaining of low back pain, and informed medical staff that he had injured himself while restraining a suspect. X-rays revealed mild disc space narrowing at L3-4 and L4-5, small anterior osteophytes and degenerative disc disease. In January 2005, Dr. David Weiss examined McNeil and noted tenderness over the posterior midline from L3 through S1. McNeil complained of difficulty sitting comfortably for more than 15-20 minutes, sleeping, engaging in recreational activities, and driving or riding in a car. Dr. Weiss concluded that the "work related injuries of November 17, 2002 and April 11, 2004 [were] the competent producing factor for [McNeil's] subjective and objective findings of today." In September 2006, Dr. Kenneth C. Peacock evaluated McNeil and concluded that he had a central herniated disc at L5-S1 with disc bulge, degenerative disc changes at L3-4 and L5-S1, with left L5 root involvement.

On November 1, 2007, McNeil injured his back lifting an accident victim in a stretcher. He complained of low back pain radiating through his right leg, and Dr. Miller prescribed physical therapy and epidural injections. On December 8, 2007, an MRI indicated disc herniation at L5-S1. In April 2008, McNeil saw Dr. Miller for lumbar radiculopathy.

As for the underlying event that forms the basis of this appeal, by letter dated June 8, 2010, the Township's insurance carrier informed McNeil that his "[w]orkers' [c]ompensation disability benefits [were] being terminated, effective immediately."*fn2 The letter stated: "We have been recently advised by [Dr. DeLuca] that your back symptoms are not work related, that getting in [and] out of a car is a regular daily activity and would not be related to your current complaints."

Thereafter, on September 24, 2010, McNeil filed a petition for workers' compensation benefits with the Division of Workers' Compensation.

The parties tried the case on three nonconsecutive days between November 2010 and May 2011. The primary contested issue was whether McNeil's on-the-job incident caused his back injury. The workers' compensation judge reviewed the medical records admitted into evidence and listened to the testimony from McNeil and two experts in the field of orthopedics: McNeil's expert, Dr. Cary Skolnick, and the Township's expert, Dr. DeLuca.

Dr. Skolnick examined McNeil on September 13, 2010, diagnosed him a herniated disc at L5-S1 with extruded fragment, and concluded that the April 3, 2010 incident caused the injury. He testified that McNeil had explained that "as he was getting out of his police car[,] he twisted his back." He further testified that McNeil had complained of "back pain radiating down his right lower extremity with numbness in the right lateral three toes," and that the 2010 MRI revealed an extrusion of the disc at L5-S1 impinging on the nerve root. He opined that "the twisting incident [of exiting the police car] caused the extrusion." On cross-examination, Dr. Skolnick revealed that he did not have McNeil's pre-2002 medical information, and that he had not reviewed Dr. Peacock's 2006 report or the 2007 MRI, which he recognized at trial as indicating L5-S1 right paracentral disc herniation impinging on the S-1 nerve root.

In May 2010, Dr. DeLuca also examined McNeil. He noted that McNeil complained of "back and right leg pain before [the April 3, 2010] accident . . . [c]ontinuous from his prior many injuries." He reviewed Dr. Peacock's report, delineating McNeil's prior medical history, and the 2007 and 2010 MRI reports. He testified that the 2007 MRI revealed that McNeil had a herniated disc at L5-S1 prior to April 3, 2010, and concluded that McNeil could not have sustained his back injury from exiting his police car. Dr. DeLuca testified that the "mechanism of getting out of the car is not consistent with [McNeil's] injury" because McNeil was "not standing on [his] feet, so there's no gravity pressure on the back." He further explained that "you turn your whole body to one side to get out," so "[t]here is no twisting," and noted McNeil's "impressive prior history of pain in the back going in to the right leg."

On September 6, 2011 the compensation judge issued a twelve-page oral opinion and concluded that McNeil's back injuries were pre-existing and not caused by the accident. Although McNeil had no complaints of pain for two years before the 2010 accident, the judge carefully weighed all the evidence, rejected the opinions of Dr. Skolnick, and believed Dr. DeLuca.

On appeal, McNeil argues that he sustained a compensable injury because "nothing (other than 'the incident') could account for [him] immediately thereafter requiring back treatment when he had no claims or treatments for two years." He further contends that the compensation judge made findings without support in the record. Finally, in his reply brief, McNeil argues that even if he did have a pre-existing condition, it was "irrelevant" because "if the work-related exertion is one of the causes, the injury is compensable."*fn3

Our scope of review is limited. Generally, we are bound to those findings of a compensation judge which "could reasonably have been reached on sufficient credible evidence present 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." Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (internal quotation marks omitted). We accord deference to the legal determinations and findings of fact made by a compensation judge "unless they are 'manifestly unsupported by or inconsistent with competent relevant and reasonably credible evidence as to offend the interests of justice.'" Linquist v. City of Jersey City Fire Dep't, 175 N.J. 244, 262 (2003) (quoting Perez v. Monmouth Cable Vision, 278 N.J. Super. 275, 282 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995)). Although compensation judges are considered experts, Kovach v. General Motors Corp., 151 N.J. Super. 546, 549 (App. Div. 1978), and their findings are entitled to deference, "such findings nevertheless must be supported by articulated reasons grounded in the evidence." Lewicki v. N.J. Art Foundry, 88 N.J. 75, 89-90 (1981).

Pursuant to N.J.S.A. 34:15-1, a compensable workers' compensation injury must be caused by an accident "arising out of and in the course of" the worker's employment. Here, the parties' dispute focuses on whether McNeil's injury arose out of the April 3, 2010 incident, i.e., whether alighting from his police car was the "causal origin" of McNeil's back injury. Coleman v. Cycle Transformer Corp., 105 N.J. 285, 288 (1986). The appropriate test asks "'whether it is more probably true than not that the injury would have occurred during the time and place of employment rather than elsewhere." Id. at 290-91 (quoting Howard v. Harwood's Restaurant Co., 25 N.J. 72, 83 (1957)). "Unless it is more probable that the injury would not have occurred under the normal circumstances of everyday life outside of the employment, the necessary causal connection has not been established." Id. at 291 (emphasis omitted) (citing Howard, supra, 25 N.J. at 83). "[A] successful petitioner in workers' compensation generally must prove both legal and medical causation when those issues are contested." Lindquist, supra, 175 N.J. at 259. If the employer claims that the injury was "the result of the physical condition of the employee, the burden of proof is on the employer to show such cause." Spindler v. Universal Chain Corp., 11 N.J. 34, 38 (1952) (internal quotation marks omitted).

Here, the findings made by the workers' compensation judge are supported by substantial, credible evidence. In his oral decision, he found:

[The Township] has satisfied its burden of rebutting [McNeil's] claim and showing that [his] condition is not as a result of the accident, but that it is rather a result of [his] physical condition consisting of a chronic progression of degenerative disc disease which existed for years and years on a multitude of back injuries that [he] suffered. To wit, he suffered back accidents in 1990, 1994, 1995, 1996, 1997, 2002 and 2004.

After close review of the "numerous prior treating records," the judge determined that they "d[id] not support Dr. Skolnick's opinion that [McNeil's] present condition is a new and different level at the lumber spine," and that they "likewise contradict[ed] [McNeil's] assertion that the L5-S1 disc herniations became symptomatic on April 3, 2010." The judge found:

On November 18, 2002 . . . Dr. Miller's entry was . . . ["]compression of intractable back pain, hospitalize immediately[."] His findings at that time noted . . . numbness to the leg with pain, stiffness and weakness. Complaints of numbness to the leg [are] a direct contradiction of [McNeil,] who stated that he didn't have these symptoms until [the] April 3, 2010 incident.

On December 3, 2007 . . . [McNeil] told Dr. Miller that he had episodes of back pain since his laminectomy. Again, these radicular symptoms contradict [McNeil's] testimony that radicular pain down his right leg developed after the April 3, 2010 incident. [Also,] the MRI report of December 8, 2007 . . . shows that a herniated disc at L5-S1 existed with impingement on the right S-1 nerve root. This MRI report is important because it shows that the herniated disc at the L5-S1 level was diagnosed long before the April 3, 2010 incident.

Furthermore, [the December 8, 2007 MRI report] contradicts Dr. Skolnick's statement that Dr. Miller was treating a different disc level. [I]t appears from the office treating notes and the entries made by Dr. Miller that [McNeil's] pain was diffused and covered a broad area to the back including the L5-S1 which already impinged on a nerve root.

[T]he MRI report of December 8, 2007 clearly shows an objective abnormality with impingement on the S-1 nerve root long before [McNeil's] alleged incident and he was receiving treatment for it with Dr. Miller. This appears to be a fact Dr. Skolnick ignores.

The judge observed that the numerous medical records "all add to the portrait of a petitioner with a severe pre-existing back pathology." He further found:

[A]nother MRI was made on August 30, 1994 and that report revealed degenerative disc changes at L3-4 and at the L5-S1[.]

[O]n June 20, 1996 another MRI is referenced revealing an L2-3 hermiation with extrusion. Degenerative disc changes at L3-4 and minimally central herniation at L5-S1. Dr. Peacock also notes that an EMG performed on June 19, 1996 was found to be positive for left L-5 root involvement. These records show [McNeil] suffers from a dysfunctional low back condition long before the April []3, 2010 incident.

The diagnostic test referred to in Dr. Peacock's report conveys an obvious progression of disability at the L5-S1 disc area going back as far as 1994. . . . In a short period of time between 1994 and 1996 . . . diagnostic tests show an obvious progression at the L-5 level from degenerative disc disease to central disc herniation.

These records easily refute Dr.

Skolnick's testimony that the L5-S1 is a new level of disability.

The judge concluded that "Dr. DeLuca's opinion was more reliable." He emphasized that Dr. DeLuca had opined that "getting out of the car . . . did not cause any injury []or worsen [McNeil's] condition at the L5-S1," and was "not consistent with [the] injury because it does not put stress on the back." The judge stated that "[t]his in conjunction with [McNeil's] extensive and impressive history of prior back pain formed a primary reason and basis for Dr. DeLuca's opinion." Furthermore, the judge noted that Dr. DeLuca "had the benefit of a prior examination which he performed . . . in 1998 to compare with his more recent examination of 2010." The judge stated:

[Dr. DeLuca's] opinion is supported by the medical records which diagnosed degenerative disc at the L5-S1 level in 1994, in 1996 and the MRI referenced indicated central disc herniation at L5-S1. In 2007 the MRI report again showed L5-S1 central herniation, but now with nerve root involvement. These records show a progression and acceleration to his L-5 condition.

Finally, the judge noted that Dr. DeLuca's opinion was "consistent with" the view of Dr. Miller, the treating physician, that McNeil had "recurrent back problems."

We are required to "defer to the judge of compensation's expertise in analyzing medical testimony and abide by the longstanding principle that a 'judge of compensation is not bound by the conclusional opinions of any one or more, or all of the medical experts.'" Kaneh v. Sunshine Biscuits, 321 N.J. Super. 507, 511 (App. Div. 1999) (internal quotation marks omitted) (quoting Perez v. Capitol Ornamental, Concrete Specialists, Inc., 288 N.J. Super. 359, 367 (App. Div. 1996)). Here, following review of the extensive medical records presented at trial and the opinion testimony of Drs. Skolnick and DeLuca, the compensation judge concluded that McNeil's back injury had resulted from an ongoing and unresolved pathology that was progressively getting worse. We defer to that reasonably-based conclusion.


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