On appeal from the New Jersey Department of Labor and Workplace Development, Division of Workers' Compensation, Claim Petition No. 2005-33060.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and St. John.
The Jersey City Police Department (the Department) appeals from the May 13, 2011 order of the Division of Workers' Compensation awarding Robert Potter partial total disability.
The appeal relates to the determined percentage of partial total disability, 7.5%, which is equivalent to forty-five weeks of benefits, awarded for residuals of a traumatic supraumbilical rectus diastasis hernia. In light of the record and applicable law, and following our review of the arguments on appeal, we affirm the decision of Judge of Compensation Rosamond.
We derive the following facts from the evidence presented at trial. Potter was an employee of the Department on January 17, 2005 when, during the course of his employment, he was injured while effectuating an arrest. On January 21, 2005, Potter sent a written notice to his superior stating: "I believe I may have injured my right shoulder. I am not sure but I think I may have pulled a muscle. I am documenting this information at this time in the event it does not improve."
In the weeks following the incident, Potter asserted that his pain became worse so he visited a chiropractor, Dr. Wiley, and his own personal physician, Dr. Frank Rotello. He was given an MRI by Dr. Wiley on March 22. Following the MRI, in April 2005, Potter visited the Department's physician, Dr. Edward Boyland. Potter claims Dr. Boyland rebuffed his attempts to discuss the pain emanating from his abdomen and shoulder area during his initial visit, and subsequently referred Potter to Dr. Marc Urquhart.
Dr. Urquhart performed surgery on Potter's shoulder on May 6, 2005. After undergoing physical therapy, Potter underwent a second shoulder surgery on September 23, 2005. Following additional physical therapy, Potter was cleared to return to light-duty work on March 21, 2006.
On November 10, 2005, the same day Potter filed his claim petition for workers' compensation, Potter's attorney sent a letter to the Department, providing notice of its failure to provide treatment for Potter's hernia, and requesting it do so within ten days. Potter asserted the Department never pursued or directed him to medical care for his hernia even though he expressed discomfort in his abdomen to Dr. Boyland. On his own accord, Potter visited Dr. Roxana Kline at the Hackensack University Medical Center, and had a CT examination of his abdomen and pelvis on January 27, 2006.
In a letter dated February 27, 2006, Dr. Kline determined that Potter had suffered a diastasis hernia and that it was her "recommendation to repair the hernia as soon as possible and that [Potter] pursue the opportunity for payment of such repair under his workman's compensation claim." Her letter noted, however, that the hernia "was not a threatening injury as much as a cosmetic flaw." Potter asserted he received a "disability certificate" from Dr. Kline, which was marked into evidence at trial, but not a part of the record on appeal. Potter contended that he gave the certificate to Dr. Boyland when he was on light-duty at the Department after his shoulder surgery. There is nothing in the record indicating when he visited Dr. Boyland after the CT scan administered by Dr. Kline.
A trial commenced before the Judge of Compensation on August 4, 2010. At the time of trial, Potter had recently retired from the Department. With regard to his hernia and his initial visit to Dr. Boyland, Potter stated: "The shoulder was the whole issue, and I couldn't lift things or hold my arm up." On direct examination, when asked if he complained about his abdomen area during the visit, Potter stated, "I was noticing that I was disfigured . . . [w]hen I would get up, my muscle poked like a little alien, a bulge would occur." However, when asked whether he tried to tell Dr. Boyland about that complaint during his visit in April 2005, Potter stated Dr. Boyland "wouldn't hear anything" and "I ...