June 25, 2012
BRIAN MORRIS, PETITIONER-RESPONDENT,
PEPSI BOTTLING GROUP, RESPONDENT-APPELLANT.
On appeal from the Department of Labor, Division of Workers' Compensation, Claim Petition No. 2008-29536.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 21, 2012
Before Judges Grall and Skillman.
Pepsi Bottling Group appeals from an order of the Division of Workers' Compensation requiring Pepsi to provide Brian Morris compensable treatment, including spinal surgery, without delay under the direction of Dr. James G. Lowe and temporary disability benefits starting after that surgery. Pepsi does not dispute that Morris sustained an injury compensable under the Workers' Compensation Act, N.J.S.A. 34:15-1 to -128. That determination was made in May 2010, when Morris settled his claim arising from a 2008 injury to his lumbar discs sustained at work for 42.5% partial total disability. This appeal concerns Morris's subsequent application for additional treatment for his herniated discs.
Asserting that Pepsi offered to provide Morris the medical treatment he sought, Pepsi argues that the judge of compensation erred in granting Morris's application and denying its motion to dismiss his application for these additional benefits. But the judge of compensation rejected Pepsi's argument based on findings of fact that are well-supported by the record.
Judge Marchand found that Pepsi's untimely demand, which was made after a trial on Morris's application had commenced, for Morris to attend a "neurological consultant treatment" with Dr. Delasotta, a doctor through whom Pepsi had previously treated Morris, was not "equivalent" to the treatment that Dr. Lowe had prescribed. Dr. Lowe, a qualified and experienced neurosurgeon whom the judge found to be "completely credible," recommended prompt surgery - "an instrumented arthrodesis at both L3-4 and L4-5" - to address two herniated discs that were preventing the forty-year-old Morris from living a productive life.
"In workers' compensation cases, the scope of appellate review is limited to 'whether the findings made 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.'" Lindquist v. City of Jersey City Fire Dept., 175 N.J. 244, 262 (2003) (quoting, with citation and quotation marks omitted, Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). The record in this case provides the essential support for the judge's determination, and we affirm substantially for the reasons stated by Judge Marchand in his oral decisions of September 13 and October 25, 2011. The arguments Pepsi presents to establish error in the denial of its motions to dismiss and stay the order are without sufficient merit to warrant any further discussion in a written opinion.
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