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Dennis v. Marina

Superior Court of New Jersey, Appellate Division

June 4, 2013

TRUMP MARINA, Respondent-Appellant, and SECOND INJURY FUND, Respondent-Respondent.


Argued May 15, 2013

On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition Nos. 2008-1560 and 2008-1593.

Walter J. LaCon argued the cause for appellant (Cooper Levenson April Niedelman & Wagenheim, P.A., attorneys; Mr. LaCon, on the briefs).

Frank A. Petro argued the cause for respondent Jacqueline LaFrenier Dennis (Petro Cohen Petro Matarazzo Warrington, P.C., attorneys; Jeanine Warrington, on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent Second Injury Fund (Rebecca A. Glick, Deputy Attorney General, on the statement in lieu of brief).

Before Judges Parrillo, Sabatino and Maven.


This appeal arises from two workers' compensation claims brought by petitioner Jacqueline LaFrenier Dennis, to recover for injuries sustained during her twenty-two years of employment as a banquet server with respondent Trump Marina ("Trump"). Petitioner's first claim alleged injury to the cervical, thoracic, and lumbar portions of her spine, as well as residual psychological harm, due to occupational exposure from lifting and carrying banquet trays. The second claim stemmed from a workplace injury on August 8, 2007, in which she slipped on grease in the kitchen area and fell into a wall. The accident further injured petitioner's spine, exacerbating her preexisting occupational exposure injuries.

The claims were tried together over intermittent days between September 2011 and May 2012. During the trial, the compensation judge, Hon. Carmine J. Taglialatella, heard testimony from petitioner as well as extensive testimony from several medical and psychiatric experts respectively called by petitioner and Trump. The judge also considered written reports prepared by the experts, as well as petitioner's prior medical records.

Upon considering the evidence, Judge Taglialatella issued a final decision on July 24, 2012, finding that as of 2007, petitioner was suffering from a seventy percent partial permanent disability as a result of her occupational exposure at Trump (sixty percent of which is attributable to injuries to her spine and ten percent of which is a derivative psychiatric disability). Additionally, the judge found that petitioner's August 2007 accident caused her to subsequently become permanently and totally disabled. Because the judge found that petitioner's permanent total disability is partially attributable to preexisting permanent partial disabilities, the judge determined that, pursuant to N.J.S.A. 34:15-95, the Second Injury Fund is responsible for seventy percent of the permanent total disability benefits.

During the course of his decision, the judge specifically noted that he found the testimony of petitioner's experts to be "credible and non-evasive." By contrast, the judge found the testimony of Trump's experts to be unconvincing, noting that "[o]n direct examination, they did little more than read their [expert] reports into the record, " and that they presented "a paucity of helpful elaboration[.]"

The Second Injury Fund does not challenge any of the compensation judge's decisions. Trump, however, raises six issues on appeal, contending: (1) the judge improperly shifted the burden of proof on the issue of occupational exposure; (2) petitioner failed to prove by demonstrable objective medical evidence that her permanent partial disability was caused by her occupational exposure; (3) the judge insufficiently evaluated the psychiatric expert testimony; (4) the judge applied the wrong standard in denying Trump's motion to admit its surveillance video; (5) the judge's decision was made without a reasoned explanation based upon specific findings of fact; and (6) the judge erred in awarding petitioner counsel fees without making specific findings to justify the award.

In evaluating these various arguments, our scope of review is limited, giving due recognition to the expertise of the compensation court and the judge's first-hand opportunity to see and hear the testifying witnesses. We only consider whether the findings made by the compensation judge could reasonably have been reached on the basis of sufficient credible evidence in the record, considering the proofs as a whole. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965); see also Brock v. Pub. Serv. Elec. & Gas Co., 149 N.J. 378, 383 (1997). We must defer to the judge's credibility findings, as well as the judge's expertise in analyzing medical te ...

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