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Howard S. Dare, Jr v. Atmostemp


August 2, 2012


On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, Claim Petition Nos. 2009-3018 and 2009-3025.

Per curiam.


Argued June 5, 2012

Before Judges Simonelli and Hayden.

Appellant Atmostemp, LLC (Atmostemp) appeals from the December 16, 2011 judgment of the Division of Workers' Compensation, which found that respondent Howard Dare (Dare) suffered a compensable injury while in Atmostemp's employ, awarded Dare compensation benefits payable by Atmostemp, and dismissed the claim petition against respondent Ultimate Cool, LLC (Ultimate). We affirm.

Dare began working for Atmostemp in 1978 as a heating and air conditioning (HVAC) installer, and worked there until January 6, 2001. At all times relevant to this appeal, Dare's job as an HVAC installer required manual labor, including kneeling, stooping and squatting for extended periods of time in crawl spaces and attics in new homes under construction, lifting and carrying heavy equipment up and down stairs or ladders, and jumping from different levels if the home had no stairs.

Dare began experiencing left knee pain in 1998 or 1999. He testified that he had been having pain in his left knee for some time and used ice packs and Advil for years to alleviate the pain before seeing a doctor. Dare saw Dr. Larry Rosenberg on July 13, 1999, complaining of "left knee stiffness for a month's duration" and "increasing pain with steps, walking and sitting for any long periods of time." On examination, Dare had "pain with flexion and rotation about the posterior joint line centrally." Dr. Rosenberg injected Lidocaine and Depo-Medrol into Dare's left knee, which temporarily relieved the pain.

Dare saw Dr. Rosenberg again on July 27, 1999. X-rays of Dare's left knee revealed "medial compartment arthritis without any chondrocalcinosis." Dr. Rosenberg recommended that Dare take an anti-inflammatory and use ice to alleviate the pain.

Dare stopped working at Atmostemp on January 6, 2001, but returned to work there on August 27, 2001. On October 18, 2001, he saw Dr. Roy Friedenthal and reported that on September 9, 2001, he had been working in an attic and stepped between the attic's trusses, which were twenty-four inches apart, when his left knee "started bothering [him] and [he] was getting a twinge in there." According to Dare, the pain in his left knee "kind of built up to that, but . . . walking through the trusses that day it kind of put the topping on the cake and [he] had to see [a doctor];" his left knee "had been slowly bothering" him, and "stepping cross the trusses that day was the straw that broke the camel's back."

On October 18, 2001, Dr. Friedenthal injected Dare's left knee with Lidocaine and Depo-Medrol. Dare had some relief, but the pain returned by October 25, 2001, when he again saw Dr. Friedenthal, who ordered an MRI of Dare's left knee. A November 2001 MRI revealed "a moderate osteoarthritic change in both medial and lateral compartments with cartilage thinning and some erosive changes[,]" as well as "a complex tear of the posterior horn of the medial meniscus."

On January 8, 2002, Dr. Friedenthal performed arthroscopic surgery on Dare's left knee. During the surgery, the doctor discovered that Dare had "degeneration of the whole posterior third of the meniscus[,] . . . degenerative tearing in the medial portion of the lateral meniscus . . . and moderate degenerative changes throughout the medial lateral compartments."

Following rehabilitation, Dare returned to work at Atmostemp in March 2002, performing the same job duties with certain restrictions.*fn1 According to Dr. Friedenthal, Dare was working in April 2002 and continued to improve, but had "moderate pain towards the end of the day." On May 9, 2002, Dr. Friedenthal noted that Dare still had "some sensitivity at the medial side of the joint[,]" as well as "post traumatic changes in [the] joint [that] are going to be a source of sensitivity." Dare testified that he had experienced some relief after the surgery, but his left knee "[j]ust progressively got[] worse."

Dare claimed that in addition to his left knee, he began experiencing right knee pain in 2005 or 2006. He testified that while working for Atmostemp, he told the owner, Joe DeServo, Sr., about his knee pain and that both knees "were killing [him,]" and DeServo knew both of Dare's knees "were in bad shape." Dare also testified that any time DeServo would give him a tough job he would tell DeServo his knees were killing him but DeServo would just laugh at him.

Dare ceased working at Atmostemp on May 26, 2006, and began working for Ultimate on May 27, 2006.*fn2 Prior to starting his employment with Ultimate, Dare informed Ultimate's owner that he anticipated having "significant treatment" to his right knee. Three months later, on August 7, 2006, Dr. Gregg Pearson treated Dare for right knee pain. X-rays of both knees revealed that Dare had a complete loss of medial joint space in both knees, and hypertrophic changes around the patella more on the left than on the right.

Dare returned to Dr. Friedenthal on August 23, 2006, complaining of having increasing pain in his right knee "for many months," and increased swelling and difficulty ambulating. Dr. Friedenthal noted that x-rays of both of Dare's knees revealed a "complete loss of medial joint space in both knees" and "[h]ypertrophic changes . . . about the patella more on the left than on the right." He concluded that Dare's right knee "symptoms [were] related to severe medial compartment degenerative arthritis," and recommended a total knee replacement. He injected Depo-Medrol into Dare's right knee, and instructed Dare to use ice to alleviate the pain and swelling.

Dr. James Purtill evaluated Dare on October 16, 2006 for bilateral knee pain. The doctor noted that Dare had a "long history of bilateral knee pain," and concluded that Dare had severe bilateral knee degenerative joint disease. He recommended total replacement surgery for both knees.

Dr. Arthur Bartolozzi evaluated Dare on December 8, 2006, and concluded that "X-rays demonstrate complete collapse of the joints of both knees with patellofemoral arthrosis of the left greater than right." The doctor concluded that Dare had "[s]evere degenerative disease of the right greater than left knee" and recommended total knee replacement surgery for both knees.

On February 8, 2007, Dr. Bartolozzi performed total knee replacement surgery on Dare's right knee. Following rehabilitation, Dare returned to work at Ultimate in May 2007, and continued working there until August 2007. On September 7, 2007, he returned to work at Atmostemp, and continued working there until December 2008.

On January 7, 2009, Dare filed claim petitions against Atmostemp and Ultimate for injuries to both knees. Dare's expert, Dr. Ralph Cataldo, testified before Judge of Compensation Audrey Kernan that Dare developed pathology in both knees as a result of his repetitive job duties and repetitive occupational stress and strain, requiring surgical intervention. He concluded that Dare had "internal derangement of the right knee or degenerative arthritis status post right total knee replacement[,]" and "internal derangement or degenerative arthritis of the left knee, status post arthroscopic repair with recommendation for a total replacement of the left knee." He concluded that Dare had a sixty percent permanent disability of the left leg and an estimated seventy-five percent permanent disability of the right leg.

Dr. Cataldo also concluded that Dare did not suffer a traumatic injury to his left knee on September 9, 2001, and that his repetitive job duties, which required prolonged kneeling that produced stress to the knees, were the cause of his injuries to both knees. He further concluded that Dare's job duties stressed both knees "over a very prolonged period of time."

Analyzing the timeline of Dare's employment at both Atmostemp and Ultimate, Dr. Cataldo determined that Dare worked for Ultimate only "a very short time period," and that although this employment had significance, it was minimal when "compared to the approximately 28-year exposure of [Atmostemp]." Dr. Cataldo noted that Dare's doctors reported "degenerative changes in [Dare's] right knee" in 2001, and that Dare's August 2006 x-rays disclosed "a complete loss of medial joint space in both knees." He opined that this "would indicate severe degenerative disease of the knees" that would not occur within the three months he worked for Ultimate.

Atmostemp's expert, Dr. Vijay Paharia, noted that Dr. Friedenthal had reported on October 18, 2001, that Dare had an "acute . . . onset of left posterior-type pain when working in an attic and stepping between the trusses" on September 9, 2001. Dr. Paharia testified that when a medical professional uses the word "acute," it "indicates that something has happened recently;" however, he did not know what kind of injury caused Dare to have pain. He believed that "Dr. Friedenthal [was] discriminating between acute onset and chronic pain, and according to this description it appears he was convinced that [Dare] had acute onset of pain rather than chronic pain."

Dr. Paharia also testified that Dare's medical records did not indicate Dare had any work incapacity with regard to his right knee prior to August 7, 2006. In addition, although Dare's employment with Ultimate lasted only three months, Dr. Paharia believed that "it is a short period of three months, but the wear and tear can be extensive according to the stresses on the joints." He knew of instances in which patients experienced injuries after working with a particular company for only three months.

Dr. Paharia concluded that Dare "presented a partial permanent disability of [twenty-five] percent referable to the right leg based on a total knee arthroplasty performed and a partial permanent disability of ten percent referable to the left leg based on the arthroscopic surgical procedure performed resulting in partial medial and partial lateral menisectomies and debridement of degenerative joint disease." He concluded that Dare's left knee pathology was "following an acute traumatic injury" and that "degenerative changes were not all the cause of his discomfort and injury." As to Dare's right knee, Dr. Paharia did not "know when it developed and how it affected when [Dare] reached the conclusion that he needed surgery at that time."

Atmostemp argued to Judge Kernan, as it does here, that:

(1) the two-year statute of limitations barred Dare's left knee claim because the left knee injury resulted from a traumatic incident on September 9, 2001; (2) alternatively, Dare's left knee claim was time-barred as an occupational exposure because the injury manifested in 2001, treatment ended in May 2002, and there was no medical evidence that the left knee condition progressed or worsened thereafter; (3) Ultimate was solely responsible for Dare's right knee injury, which manifested, and for which Dare sought treatment, during his employment with Ultimate; and (4) Dare's exposure during his employment with Ultimate was not de minimis.

In a December 9, 2011 oral decision, Judge Kernan rejected Atmostemp's arguments, and concluded that Dare suffered a continuing occupational exposure to both knees, and Atmostemp, for whom Dare worked the bulk of the time, was solely responsible for both knee injuries.

On January 5, 2012, Judge Kernan issued a written amplification of her oral decision pursuant to Rule 2:5-1(b). Crediting Dare's testimony, the judge held that he did not suffer a traumatic injury to his left knee; rather, he suffered a continued occupational exposure as a result of his long-term employment at Atmostemp. The judge found that Dare had reported, and was treated for, left knee pain prior to September 9, 2001, there was no evidence of a traumatic incident, and the mere stepping over trusses and complaining of pain did not "in and of itself render a traumatic event." The judge also found that Dare's November 2001 left knee MRI showed arthritic and erosive changes along with a medial tear in his left knee, "indicating time based exposure," that his "left knee issues and increased worsening [were] from [his] occupation which [he] clearly and indisputably complained [of] prior to September[] 2001 and well after[,]" and that his left knee condition was "part of the continuous long term employment strains of the occupational demands set out by the work at Atmostemp." The judge also found it was undisputed that Atmostemp knew about Dare's left knee problems "for years" while he worked there, "and well before" Dare's employment with Ultimate.

Regarding Dare's right knee, Judge Kernan found that problems with that knee manifested in 2005, during Dare's employment with Atmostemp; Atmostemp's owner was aware of Dare's problems with both knees prior to Dare's employment with Ultimate; and before commencing employment at Ultimate, Dare reported to Ultimate that he was having problems with both knees.

Judge Kernan also accepted Dr. Cataldo's testimony and conclusions that Dare suffered from a continuing occupational exposure primarily based on stress to his knees over the very prolonged period of time he worked at Atmostemp; Dare's repetitive job duties exacerbated and accelerated the natural degenerative process; Dare's arthritis and degeneration are typical not of trauma but of continual use over time; and Dare's bilateral knee issues were primarily caused by his twenty-eight year employment at Atmostemp.

By contrast, Judge Kernan found that Dr. Paharia testified "without credibility" that the three months Dare worked at Ultimate "could have caused extensive stresses on the joints." In making this credibility determination, the judge noted that Dr. Paharia's pre-trial report did not relate any of Dare's disability to Ultimate, while the doctor's trial testimony indicated that Dare did not begin to exhibit any right knee pain until after he began working at Ultimate.

Judge Kernan further concluded that both of Dare's knee problems manifested during his employment with Atmostemp, his disability resulted from his long-term employment with Atmostemp, and his exposure during his employment with Ultimate "was at best de minimis." She dismissed Dare's claim against Ultimate, and found Atmostemp solely responsible for both knee injuries. In an amended judgment, she awarded Dare 33.33% of partial total disability as follows: 17.5% permanent disability of the statutory left leg for residuals of degenerative internal derangement of the left knee status post arthroscopic surgery, and 45% permanent disability of the statutory right leg for degenerative internal derangement, status post total knee replacement surgery.

Our review of workers' compensation cases 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 and, in the case of agency review, with due regard also to the agency's expertise where such expertise is a pertinent factor." [Sager v. O.A. Peterson Constr. Co., 182 N.J. 156, 163-64 (2004) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)).]

We may not substitute our own factfinding for that of the judge of compensation. Lombardo v. Revlon, Inc., 328 N.J. Super. 484, 488 (App. Div. 2000). We must defer to 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.'" Linquist v. City of Jersey City Fire Dept, 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)). While the judge of compensation has "expertise with respect to weighing the testimony of competing medical experts and appraising the validity of [the petitioner's] compensation claim[,]" Ramos v. M & F Fashions, Inc., 154 N.J. 583, 598 (1998), the judge must "carefully explain[] why he considered certain medical conclusions more persuasive than others." Smith v. John L. Montgomery Nursing Home, 327 N.J. Super. 575, 579 (App. Div. 2000). We will "appraise the record as if we were deciding the matter at inception and make our own findings and conclusions" only if the judge of compensation "went so wide of the mark that a mistake must have been made." Manzo v. Amalgamated Indus. Union Local 76B, 241 N.J. Super. 604, 609 (App. Div.) (internal quotations omitted), certif. denied, 122 N.J. 372 (1990). Applying these standards, we discern no reason to disturb the judge's decision.

Under the Workers' Compensation Act, an employee may be compensated for personal injuries arising from a "compensable occupational disease arising out of and in the course of his employment." N.J.S.A. 34:15-30. A "compensable occupational disease" includes "all diseases arising out of and in the course of employment, which are due in a material degree to causes and conditions which are or were characteristic of or peculiar to a particular trade, occupation, process or place of employment." N.J.S.A. 34:15-31a. "'[I]n a material degree' has been held to mean 'an appreciable degree or a degree substantially greater than de minimis.'" Bird v. Somerset Hills Country Club, 309 N.J. Super. 517, 521 (App. Div.) (internal citation omitted), certif. denied, 154 N.J. 609 (1998). Although the employee seeking compensation has the burden of establishing his claim, "[i]t is sufficient in New Jersey to prove that the exposure to a risk or danger in the workplace was in fact a contributing cause of the injury." Lindquist, supra, 175 N.J. at 259. In other words, "[d]irect causation is not required; proof establishing that the exposure caused the activation, acceleration or exacerbation of disabling symptoms is sufficient." Ibid.

As remedial legislation, the Workers' Compensation Act should be construed liberally, so as to "'afford[] coverage to as many workers as possible.'" Id. at 258 (quoting Brower v. ICT Group, 164 N.J. 367, 373 (2000)). However, a claim for compensation for an occupational disease or exposure must be filed "within [two] years after the date on which the claimant first knew the nature of the disability and its relation to the employment[.]" N.J.S.A. 34:15-34. Merely experiencing symptoms and receiving treatment for a work-related condition is not sufficient to trigger the statutory time limits. Earl v. Johnson & Johnson, 158 N.J. 155, 161-62 (1999). Rather, the statute requires actual knowledge of the nature of a disability, the relation to the employment, and that the injury is compensable. N.J.S.A. 34:15-34; Earl, supra, 158 N.J. at 161. In other words, the claimant must have knowledge that the condition rises to the level of a permanent disability, since only permanent disability is compensable. Earl, supra, 158 N.J. at 162-64. However, "'[s]uch knowledge is immaterial in ongoing exposures for which a petitioner can file within two years from the last exposure.'" Id. at 167 (quoting Larison v. Atlantic States Cast Iron Pipe Co., No. 94-028570, Division of Workers' Compensation, Warren County District, Supplemental Decision (Oct. 16, 1998)).

By contrast, workers' compensation claims for injuries caused by workplace accidents must be brought within two years of the date of the accident. N.J.S.A. 34:15-41; N.J.S.A. 34:15-51; Adams v. New York Giants, 362 N.J. Super. 101, 108 (App. Div.), certif. denied, 178 N.J. 33 (2003). "'[A]n occupational disease is distinguishable from an accident, because an accident rises from a definite event, the time and place of which can be fixed, while an [occupational disease] develops gradually over a long period of time.'" Adams, supra, 362 N.J. Super. at 110 (quoting Earl, supra, 158 N.J. at 164).

We are satisfied that the record amply supports Judge Kernan's factual and credibility findings and legal conclusions. The credible evidence established that a traumatic incident did not cause the problem with Dare's left knee; rather, Dare had a long history of left knee pain prior to stepping between the attic trusses on September 9, 2001, he continued working despite the pain, and his job duties worsened the condition in the left knee, causing him to seek further treatment with Dr. Friedenthal. Accordingly, the judge correctly concluded that Dare did not suffer a traumatic injury to his left knee.

Judge Kernan also correctly concluded that Dare suffered an ongoing occupational exposure to his left knee as a result of his employment with Atmostemp, which continued until December 2008, and that Atmostemp is solely responsible for that knee injury. It is irrelevant that Dare experienced symptoms and received treatment for his left knee, or knew of the nature of the disability in his left knee and its relation to his employment prior to the expiration of the statutory time period. Earl, supra, 158 N.J. at 161, 163, 167. This is a traditional continuing occupational exposure case where the credible evidence established that Dare's left knee problem began while he was employed by Atmostemp, the condition progressed and worsened over time as the result of his job duties and long-term employment with Atmostemp, and it continued until Dare's last exposure in December 2008.

We agree with Judge Kernan that Atmostemp is solely responsible for Dare's right knee injury, and that Dare's exposure during his employment with Ultimate was de minimis. The undisputed evidence established that Dare's right knee condition manifested in 2005, when he was working for Atmostemp, and Atmostemp's owner was well-aware of Dare's problems with both knees prior to Dare's employment with Ultimate in May 2006. In addition, x-rays taken in August 2006, a mere three months after Dare first began working at Ultimate, revealed a "complete loss of medial joint space" and degenerative arthritis in both knees. According to Dr. Cataldo's undisputed credible testimony, the severe degeneration in Dare's right knee would not occur within only three months of work with Ultimate, and occurred solely as a result of Dare's long-term employment with Atmostemp. Thus, the "last employer" rule set forth in Bond v. Rose Ribbon & Carbon Mfg. Co., 42 N.J. 308, 311 (1964) does not apply.


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