July 12, 2012
KAUSHAL KISHORE, PETITIONER-APPELLANT,
AMERICAN MICRO MANAGEMENT,*FN1 RESPONDENT-RESPONDENT.
On appeal from New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition No. 2009-31537.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 9, 2012
Before Judges Graves and Koblitz.
Petitioner Kaushal Kishore appeals from a March 4, 2011 order denying his claim for workers' compensation benefits. We affirm.
In January 2008, petitioner was hired by respondent for a "clerical position" that primarily involved office work. In August 2009, petitioner began assisting respondent relocate inventory from New Jersey to Pennsylvania, which involved moving boxes of electronic parts and dismantling shelves. Petitioner claimed he was injured on October 2, 2009, when a shelf he was dismantling fell on his left shoulder. According to petitioner, he experienced "severe pain in [his] left arm [and] neck" following the accident.
The next day, petitioner saw Srinivas Channapragada, M.D. In his office notes, dated October 3, 2009, Dr. Channapragada stated that petitioner had been "complaining of left arm and left side of neck pain on and off for 10 days." Dr. Channapragada advised petitioner to take Tylenol, use a neck collar, and avoid lifting boxes. Dr. Channapragada stated that if the pain in petitioner's neck did not subside, further evaluations and an x-ray would be necessary, and he referred petitioner to JFK Johnson Rehabilitation Institute for physical therapy.
Petitioner filed a workers' compensation claim on November 18, 2009. A hearing was conducted on five non-consecutive days between March 12, 2010, and February 25, 2011. At the hearing, petitioner testified he continued to experience pain in his left shoulder and neck, he could not fully raise his left arm, and he lacked strength in his left arm. Petitioner alleged that he notified respondent of his injury "more than five times."
Patrick Simmons and Chirag Gandhi, two of petitioner's former co-workers, testified they neither saw petitioner involved in a workplace accident nor heard petitioner complain of an injury. William Foley, Sr., respondent's office manager, testified petitioner never reported a work-related injury. Foley also produced a copy of petitioner's daily work diary, which petitioner used to track his daily work activities. The diary did not contain any entries regarding a work-related injury. Sean Michaels, respondent's general manager and president, testified petitioner never told him he had been injured while at work. Eileen Foley, who works part-time for respondent and does various "odds and ends" around the office, testified she used her cell phone to record a video of petitioner lifting the hood of his car with his left arm on January 20, 2010.
Arthur Becan, M.D., petitioner's expert in orthopedics, testified he examined petitioner on August 2, 2010. Dr. Becan diagnosed petitioner with a "rotator cuff tear of the left shoulder," "post-traumatic subacromial impingement syndrome," and "post-traumatic adhesive capsulitis." Dr. Becan believed these problems were "absolutely related to the injury that [petitioner] suffered at work" because the "repetitive overhead, heavy lifting . . . would cause this kind of problem." Dr. Becan suggested further diagnostic studies on petitioner's left shoulder and neck. The cell phone video of petitioner lifting the hood of his car did not effect Dr. Becan's evaluation of petitioner because "anybody . . . may have a good day or a bad day" and he might have seen petitioner "on a day when his shoulder was sore and, therefore, [petitioner] couldn't move it as well."
David Gross, M.D., respondent's expert in orthopedic surgery, testified that he examined petitioner on January 13, 2011. Dr. Gross made "no findings" of specific injuries, but he noted that petitioner did "complain of some tenderness, some weakness, [and] some loss of motion." Dr. Gross estimated petitioner's disability at two percent based solely on petitioner's "subjective complaints." Dr. Gross found petitioner's actions in the cell phone video were "consistent with the fact that there are no objective findings when you examine this man and there were no really significant treatments."
The compensation judge rendered an oral decision on March 4, 2011. The judge found that petitioner's testimony regarding the circumstances of his alleged accident was contradicted by respondent's evidence, which included the testimony of petitioner's former co-workers, petitioner's own work diary, the post-examination notes of Dr. Channapragada, and the cell phone video of petitioner lifting the hood of his car. Based on all the evidence, the judge concluded, "it is clear that petitioner has not met his burden of proof."
On appeal, petitioner argues the judge of compensation erred in denying his claim for workers' compensation benefits. We find petitioner's argument is without sufficient merit to warrant extended discussion in a written opinion, Rule 2:11-3(e)(1)(E), and we affirm the judge's decision with only the following brief comments.
Our scope of review in a workers' compensation case is limited to "a determination of whether the findings of the judge of compensation could reasonably have been reached on sufficient credible evidence present in the whole record, after giving due weight to his expertise in the field and his opportunity of hearing and seeing the witnesses." De Angelo v. Alsan Masons, Inc., 122 N.J. Super. 88, 89-90 (App. Div.), aff'd o.b., 62 N.J. 581 (1973). Thus, "[d]eference must be accorded the factual findings and legal determinations made by the Judge of Compensation unless they are manifestly unsupported by or inconsistent with competent relevant and reasonably credible evidence as to offend the interests of justice." Lindquist v. City of Jersey City Fire Dept., 175 N.J. 244, 262 (2003) (internal quotation marks and citation omitted).
In the present matter, there is sufficient credible evidence to support the compensation judge's findings and conclusion that petitioner failed to prove by a preponderance of the evidence that he sustained a work-related injury. Therefore, petitioner was not entitled to workers' compensation benefits.