September 27, 2012
JASON ALLISON, PETITIONER-RESPONDENT,
L&J CONTRACTING COMPANY, INC., RESPONDENT-APPELLANT, AND BAUMGARDNER FLOOR COVERING, RESPONDENT-RESPONDENT.
On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, Claim Petition Nos. 2006-25970 and 2008-25471.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 11, 2012
Before Judges Reisner and Yannotti.
L&J Contracting Company, Inc. (L&J) appeals from an order entered by the Division of Workers' Compensation (Division) on October 3, 2011, dismissing a claim by petitioner Jason Allison (Allison) against Baumgardner Floor Covering (Baumgardner), and a judgment entered by the Division on October 19, 2011, against L&J on Allison's claim. For the reasons that follow, we affirm.
On July 27, 2006, Allison injured his lumbar spine while working for L&J, and thereafter, filed a claim petition against L&J, seeking compensation benefits. L&J filed an answer admitting employment and the occurrence of the accident, but asserted that Allison had the burden of establishing his injuries.
On July 8, 2008, L&J filed a motion to join Baumgardner in the matter. L&J alleged that, after the accident on July 27, 2006, Allison suffered injuries in two separate accidents while working for Baumgardner. On August 14, 2008, the compensation judge entered an order granting the motion. Allison thereafter filed a separate claim petition against Baumgardner for injuries allegedly sustained while Allison was working for Baumgardner.
The compensation judge conducted a trial in the matter, beginning on September 15, 2010. At the trial, Allison testified that he worked as a tile finisher. He said that his job entailed providing the tile setters materials they needed for their work, which involved frequent bending and lifting of heavy bags weighing up to one hundred pounds. Allison said that on July 27, 2006, while he was working for L&J, he fell in a hole and injured his lumbar spine.
Following the accident, Allison continued to experience back and leg pain on a daily basis. Allison claimed that activities such as bending, lifting, getting out of bed and going down stairs triggered back and leg pain. He said that he experienced increased pain in cold or rainy weather.
Allison returned to work in March 2007. He said that initially he was able to function normally but his back and leg pain worsened over time. He began to take Percocet three times a day, one in the morning, one at lunch and one when he returned home in the evening. He said taking the medication was the only way he could get through the day.
Allison further testified that the pain he experienced while working for Baumgardner was the same pain that he experienced after the July 7, 2006 accident. Allison claimed that he was injured in June 2007 and March 2008 while working for Baumgardner. Allison did not, however, report those incidents to Baumgardner, nor did he seek treatment. He stated that he considered the symptoms resulting from the June 2007 and March 2008 incidents as "[a] flare up of [his] previous symptoms."
Dr. Steven J. Valentino (Dr. Valentino), an expert in the field of spinal surgery and orthopedics, testified that he first saw Allison on August 28, 2006. Allison complained of low back pain with intermittent radiation primarily into the right leg. Allison related these symptoms to the July 27, 2006 accident.
Dr. Valentino stated that the MRI films taken in 2006 showed that Allison had small disc herniations at the lower two levels of his spine, and a bulging disc at the L3-L4 level. Dr. Valentino formulated a treatment plan for Allison that included therapy and Percocet for pain in doses of 7.5 milligrams.
Dr. Valentino continued to treat Allison until March 2007. He explained that on March 9, 2007, he administered three epidural injections of cortisone "to quiet down the inflammation." According to Dr. Valentino, the injections seemed to provide Allison some improvement "to the point where his exam essentially turned normal."
On March 22, 2007, Dr. Valentino released Allison to return to work. He noted that Allison's only complaint at the time was "minimal back pain" and Allison was endeavoring to wean himself off the pain medicine. Dr. Valentino said he found "absolutely no radicular pain" or "numbness or weakness" in the legs. Allison told Dr. Valentino he believed he was capable or returning to work without restriction.
Allison returned to work. He performed the same tasks he had been performing before his July 27, 2006 accident. Allison returned to see Dr. Valentino on June 25, 2007. Dr. Valentino's treatment notes indicate that Allison had been doing well until the previous week, when he picked up a bag of material while working and had a recurrence of severe low back pain with radiation primarily to the right leg.
Dr. Valentino examined Allison on September 13, 2007, and thereafter Allison returned to work without restriction. The doctor continued Allison's Percocet prescription. On November 12, 2007, Allison returned to see Dr. Valentino, complaining of severe pain. The doctor noted that Allison's symptoms had increased with activity and decreased with "rest and recumbancy."
Dr. Valentino examined Allison and, as a result of his examination, administered epidural steroid injections, which resulted in a significant improvement. The doctor continued the Percocet prescription. In December 2007, Allison returned to Dr. Valentino, complaining of low back pain, radiating to the right leg, with intermittent paresthesias and weakness. The doctor again prescribed Percocet in doses of 7.5 milligrams.
In February 2008, Allison saw Dr. Valentino and complained of episodic back pain. The doctor conducted a physical exam and found only a mild restriction of the lumbar spine with some mild tenderness. Dr. Valentino determined that Allison's symptoms did not warrant surgery.
On March 17, 2008, Allison again saw Dr. Valentino. He told the doctor that, after lifting a ninety-two pound bag of sand, he experienced low back pain with sciatic pain primarily into his right leg. Dr. Valentino examined Allison and found a moderate restriction of the back with spasm.
Dr. Valentino performed the straight leg raising test, which revealed back and sciatic pain or a pinched nerve down the spine. According to Dr. Valentino, Allison's reflexes were not intact and there was a "significantly worsening" in his neurologic status. Allison also had a weakness and decreased sensation in his leg. The doctor said that Allison's symptoms were consistent with a nerve injury. Dr. Valentino also stated that Allison's complaints were consistent with an injury associated with lifting a ninety-two pound bag.
In April 2008, Allison returned to see Dr. Valentino and said that his condition had not improved. Dr. Valentino decided to have a new MRI performed. According to Dr. Valentino, the MRI films indicated that Allison "continued to have disc herniations at L4-5 and L5-S1." Dr. Valentino testified that the herniation at L4-5 had increased to a moderate size.
Dr. Valentino was asked why his office notes of April 24, 2008 stated that the 2008 MRI showed no change from the 2006 MRI. The doctor stated that he meant to write that there was no change in the location of the herniations, but testified that "clearly" the size of Allison's L4-5 herniation increased from small to moderate. Dr. Valentino conceded, however, that the radiologist who performed the MRI in 2008 found that there had been no change in the size of the disc herniation since the previous MRI.
Dr. Valentino administered additional injections in May 2008 and July 2008, but Allison continued to report low back pain radiating into his left leg. Additional injections failed to provide relief. At this point, Allison was taking ten milligrams of Percocet about four or five times a day. Dr. Valentino said that, prior to March 9, 2008, he had never prescribed Percocet in that dosage.
On April 24, 2008, Allison saw Dr. Valentino. He complained of back and leg pain with parethesia and weakness. The doctor said that Allison's symptoms tended to worsen with activity and decrease with rest and recumbency. Dr. Valentino continued the prescription of ten milligrams of Percocet.
Dr. Valentino examined Allison in June, July, August, and September 2008. During these visits, Allison complained of chronic low back pain that was exacerbated by activity. Dr. Valentino continued to prescribe Percocet in ten milligram doses. On October 3, 2008, Dr. Valentino performed lumbar laminectomy, facetectomy, foraminotomy, decompression and dissection surgery at L4-5 on Allison. Thereafter, Allison had significant improvement.
Dr. Henry David (Dr. David) testified on behalf of Allison. He examined Allison on January 12, 2010, and assessed his disability. Dr. David apportioned sixty-five percent of the disability to the July 27, 2006 accident, and fifteen percent to Allison's occupational exposure and the March 10, 2008 lifting incident. The apportionment of the disability was based on Allison's subjective complaints. Dr. David conceded that there were no objective findings that supported his apportionment.
Dr. Marshall Pressman (Dr. Pressman) testified for Baumgardner. On March 12, 2008, Dr. Pressman examined Allison to make a permanency determination. Allison provided the doctor with a medical history and reported his subjective complaints. Allison did not, however, report that he suffered any injury or accident subsequent to the July 27, 2006 accident.
Baumbardner also presented testimony from Dr. Timothy A. Pinsky (Dr. Pinsky), who examined Allison on August 21, 2009. Dr. Pinksy stated that, based on his review of the medical records and his physical exam, Allison had a permanent partial disability to his lumbar spine. He did not allocate any of the disability to the alleged March 10, 2008 aggravation for three reasons:
The first was that Mr. Allison had ongoing back and radicular symptoms since 2006 for which he had ongoing treatment. He also had an MRI in 2006 and then one in 2008, which really [do not] show any appreciable difference. And his ultimate physical findings [which allegedly] related to his March  incident have resolved.
Dr. A. Gregory McClure (Dr. McClure) testified for L&J. Dr. McClure said that he examined Allison on December 22, 2009. He testified that, based on his review of the medical records and his physical examination, Allison had a partial total disability of his lumbosacral spine. Dr. McClure did not apportion the disability between the July 27, 2006 accident and the subsequent incidents.
The compensation judge issued an opinion dated October 3, 2011, in which she reviewed all the testimony presented during the trial. The judge found that Allison's current disability related solely to the progression of his disability from the original accident of July 27, 2006. The judge stated that the incidents in June 2007 and March 2008 were "descriptive of occupational activities" rather than "accidents or traumatic events" as contemplated by the Workers' Compensation Act (Compensation Act), N.J.S.A. 34:15-1 to -128.
The compensation judge accordingly entered an order on October 3, 2010, dismissing Allison's claim petition against Baumgardner. She also issued an order for judgment against L&J on October 18, 2011, finding that Allison had a thirty-five percent permanent partial total disability and awarding him compensation benefits and costs.
On November 21, 2011, the judge filed an amplification of her findings. Among other things, the judge wrote that there was nothing in the record to indicate that the activities Allison engaged in during March 2008 "were any different in quality or quantity than his normal everyday occupational activities[.]"
In its appeal, L&J raises the following arguments for our consideration: 1) the judge applied the wrong legal standard in rendering her decision; 2) the judge erroneously failed to give greater weight to the testimony of Dr. Valentino, who was Allison's treating doctor; 3) the judge's factual findings are "completely" against the weight of the credible evidence; 4) the judge erroneously excluded evidence in an effort "to create a void" in the record and then improperly granted relief based upon that lack of evidence; 5) the judge's finding that Allison did not suffer an accident in March 2008 while working for Baumgardner is against the weight of the evidence; and (6) the judge erred by failing to apportion the disability between L&J and Baumgardner for the respective accidents.
When reviewing a determination of a compensation judge, we must determine whether the judge's factual findings could reasonably be reached on sufficient credible evidence in the record. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). We must give "'due regard to the opportunity of the one who heard the witnesses to judge of their credibility.'" Ibid. (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). In addition, we must give due regard "to the agency's expertise where such expertise is a pertinent factor." Ibid.
We are satisfied from our review of the record that there is sufficient credible evidence in the record to support the compensation judge's finding that Allison's disability is attributable to the accident he sustained on July 27, 2006, while working for L&J, and not due to the incidents of June 2007 or March 2008, which allegedly occurred while Allison was working for Baumgardner. We are additionally satisfied that there is sufficient credible evidence in the record to support the judge's finding that the incidents of June 2007 and March 2008 were "repetitive occupational activities" rather than accidents or traumatic events as contemplated by the Compensation Act.
L&J nevertheless argues that the judge erred by analyzing the evidence in light of the principles enunciated in Peterson v. Hermann Forwarding Co., 267 N.J. Super. 493 (App. Div. 1993). We do not agree.
In Peterson, the claimant was injured in an accident that occurred on October 1, 1982, while he was working for Hermann Forwarding Company (Hermann), and he filed a petition against Hermann seeking compensation benefits. Id. at 496. The claimant thereafter filed claims against several employers alleging that he suffered an aggravation of the injuries due to occupational exposure after the October 1, 1982 accident. Ibid.
The compensation judge found that the claimant was permanently and totally disabled and assessed seventy-two and one-half percent of that disability against Yellow Freight, the claimant's last employer. Ibid. We reversed the judge's determination, stating that the evidence showed the claimant suffered his injury while working for Hermann and had manifested his disability continuously thereafter. Id. at 507.
We noted that the claimant continued to work after the initial accident "in spite of his disability." Ibid. We stated that there was no credible evidence that the claimant's subsequent employments materially contributed to his disability. Ibid.
We observed that while the claimant's disability increased, this was due to the progression of his disease "as it continued to do so after all employment had ceased." Id. at 509. We therefore concluded that Hermann was responsible for the initial injury as well as the total disability which resulted from its "progressive worsening[.]" Id. at 509.
We are convinced that in this case, the compensation judge correctly applied the principles set forth in Peterson. As we have explained, the evidence presented here established that Allison's ultimate disability was attributable to the injuries he sustained in the July 27, 2006 accident, rather than the incidents that allegedly occurred in June 2007 and March 2008.
As the compensation judge stated in her opinion, after the July 27, 2006 accident, Allison continued to suffer back and leg pain and regularly used pain medication. The judge found that the June 2007 and March 2008 incidents were not accidents or traumatic events for compensation purposes. The judge pointed out that those incidents were "descriptive" of Allison's regular occupational activities, which included bending, lifting and carrying ninety-two pound bags of materials. The judge observed that in his June 26, 2008 office notes, Dr. Valentino wrote that Allison had never fully recovered from the July 27, 2006 accident.
Thus, in this case, as in Peterson, the evidence established that Allison's disability was the result of the July 27, 2006 accident, which had progressively worsened over time. The evidence supported the judge's finding that Allison did not suffer any subsequent injury which materially contributed to his disability. Accordingly, there was no basis in the evidence to support an apportionment of responsibility to Baumgardner.
L&J argues, however, that the decision in Baijnath v. Eagle Plywood & Door Mfrs., Inc., 261 N.J. Super. 309 (App. Div. 1993), supports its contention that the judge erred by failing to apportion some of Allison's disability to Baumgardner. We do not agree. In Baijnath, the claimant suffered a compensable accident, while working for Coil Metal Corporation. Id. at 311. The claimant sustained injuries to his back, left shoulder and head. Ibid. The claimant later went to work for Eagle Plywood and suffered another accident in which he injured his back. Id. at 311-12. The compensation judge found that the claimant had partial permanent orthopedic and psychiatric disabilities, and determined that Eagle Plywood was entirely responsible for that condition. Id. at 313.
We reversed, concluding that the compensation judge should have apportioned liability between Coil Metal and Eagle Plywood on a factual or equitable basis. Id. at 316. We stated that, where the proofs show that both accidents contributed substantially to the ultimate disability but there was insufficient evidence "as to the contribution of each to the ultimate result, the liability should be apportioned on some equitable basis." Id. at 315.
We additionally noted that occupational injuries are "significantly different" from traumatic injuries. Ibid. (citing Bond v. Rose Ribbon & Carbon Mfg., 42 N.J. 308, 311 (1964)). We stated:
Occupational injuries have an insidious etiology. They can exist for a protracted period without objective manifestation. An effort to apportion the result among the relevant historical employers and/or insurance carriers would be totally speculative. Ibid. Traumatic injuries are quite different. Their incidence is fixed and determinable. The allocation of responsibility may be difficult; the proofs may not permit of certainty.
[Id. at 315-16.]
We are convinced that L&J's reliance on Baijnath is misplaced. Here, the evidence supports the judge's finding that there was only one compensable accident. Furthermore, this is not a case involving an occupational injury that existed over time without objective manifestation. Rather, as the compensation judge found, this case involves a "fixed and determinable" traumatic injury, specifically the injury that Allison sustained on July 27, 2006.
L&J also argues that the compensation judge abused her discretion by failing to give greater weight to Dr. Valentino's testimony because he was Allison's authorized treating physician. Again, we disagree. A judge "is free to accept or reject the testimony of either side's expert and need not adopt the opinion of either expert in its entirety." Brown v. Brown, 348 N.J. Super. 466, 478 (App. Div.), certif. denied, 174 N.J. 193 (2002).
We are satisfied that the judge did not abuse her discretion as fact-finder by rejecting Dr. Valentino's testimony. The judge noted that the doctor's trial testimony was inconsistent with his office notes and the objective medical evidence. Moreover, the judge noted that, before he had received an inquiry from L&J as to whether the March 2008 incident represented a "new injury," Dr. Valentino had consistently failed to attribute Allison's symptoms to a new accident. The judge found that the opinions rendered by Dr. Valentino after that inquiry were "not trustworthy." The record supports that finding.
L&J additionally contends that the judge erred by limiting Dr. Pressman's testimony and redacting the last page of his report. Baumbardner presented Dr. Pressman as a fact witness, not as an expert. The judge redacted the opinion section of the doctor's report, and L&J's counsel did not object to the redaction. L&J's contention that the court "intentionally excluded evidence in an effort to manipulate the record" is entirely without merit.
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