June 4, 2013
JACQUELINE LAFRENIER DENNIS, Petitioner-Respondent,
TRUMP MARINA, Respondent-Appellant, and SECOND INJURY FUND, Respondent-Respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 testimony. Kaneh v. Sunshine Biscuits, 321 N.J.Super. 507, 511 (App. Div. 1999); see also Kovach v. Gen. Motors Corp., 151 N.J.Super. 546, 549 (App. Div. 1978).
So long as they rest on sufficient credible evidence, a compensation judge's findings of fact are binding on appeal, and those findings must be upheld "even if the [reviewing] court believes that it would have reached a different result." Sager v. O.A. Peterson Constr., Co., 182 N.J. 156, 164 (2004). We simply require that the compensation judge "make adequate findings of fact and give an expression of reasoning which, when applied to the found facts, [lead] to the conclusion" that the judge reached. Lister v. J.B. Eurell Co., 234 N.J.Super. 64, 73 (App. Div. 1989). Our de novo review is limited to any legal determinations made by the judge. Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995); Alvarado ex rel. Velez v. J & J Snack Foods Corp., 397 N.J.Super. 418, 425 (App. Div. 2008).
Having reviewed the record as a whole in light of these well-established appellate standards, we affirm the awards of the compensation court respecting petitioner's two claims, substantially for the reasons articulated in Judge Taglialatella's opinion of July 24, 2012. We need only add the following brief remarks.
With respect to petitioner's claim of occupational disability, the record amply supports the judge's finding that petitioner's repeated lifting and carrying of heavy trays, and the associated "stress-loading of the spine, " eventually "brought about injury to her entire spine and related neurologic and psychiatric conditions[.]" Moreover, the record also contains demonstrable objective medical evidence for the judge's conclusions. We reject Trump's claim that petitioner's description of her movements as a banquet server do not sufficiently correspond biomechanically to the analysis presented by petitioner's medical expert, Ralph G. Cataldo, D.O. Nor is petitioner's spinal injury claim, as Trump argues, undermined by the fact its banquet servers use "tray jacks" to rest the trays loaded with food and drink once the servers have carried them into the dining areas. The use of such tray jacks in the dining room may alleviate some of the rigors of serving guests, but does not eliminate the burdens of repeatedly lifting and carrying the trays back and forth into the kitchen.
Indeed, the judge reasonably found that Trump's own medical expert, A. Gregory McClure, M.D., "seemed to agree that [petitioner's] occupational exposure would have increased the stress-loading on her spine, " which led the court to "conclude that [Dr. McClure] finds a causal nexus between the work activity and [petitioner's] medical conditions." Moreover, it is within the province of the compensation judge to accept the expert opinions of petitioner's physicians, while rejecting any contrary opinions of the employer's expert physicians. Paul v. Baltimore Upholstering Co., 66 N.J. 111, 121-22 (1974).
We likewise reject that the judge improperly shifted to Trump the burden of disproving petitioner's occupational injury and causality. The judge correctly determined in his oral decision that petitioner met her burden of persuasion by a preponderance of the evidence. See Dwyer v Ford Motor Co., 36 N.J. 487, 494 (1962); see also Laffey v. City of Jersey City, 289 N.J.Super. 292, 303 (App. Div.), certif. denied, 146 N.J. 500 (1996). The evidential burden is one of "probability not certainty." Laffey, supra, 289 N.J.Super. at 303 (internal quotation marks omitted).
The proofs supporting petitioner's psychiatric disability claim also were ample. Contrary to Trump's argument on appeal, petitioner's psychiatric expert, Edward H. Tobe, D.O., did not ignore petitioner's preexisting psychiatric problems. In fact, Dr. Tobe attributed twenty-five percent of her psychiatric disability to "other matters" than her work-related experiences.
The compensation judge appropriately barred Trump's attempt to present a surveillance videotape of petitioner that allegedly would have shown that she has a greater capability of engaging in activities involving physical demands than indicated by her proofs. The request apparently was made about nine months after the parties completed their pretrial memoranda and six months after petitioner testified. The judge acted within his discretion in excluding the videotape, which we parenthetically note was not furnished to us on appeal for consideration as a proffer. See Gross v. Borough of Neptune City, 378 N.J.Super. 155, 158-59 (App. Div. 2005) (recognizing the discretion of judges to admit or exclude surveillance tape evidence, and noting that such tapes "made after trial has begun would be inadmissible . . . unless the employer can show that it was unaware, and could not have been aware, of the circumstances warranting surveillance before the hearing").
We are equally unpersuaded by Trump's claim that the compensation judge's oral opinion lacked a sufficient reasoned explanation based upon specific findings of fact. The opinion was more than adequate to address the critical issues in the case, particularly in light of the credibility findings adverse to appellant permeating the court's analysis.
Lastly we discern no basis to disturb the judge's counsel fee award which was within the limits established by NJSA 34:15-64 and consistent with the informal fee guidelines promulgated by the Director and Chief Judge of the Division of Workers' Compensation