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Peterson v. Home Depot Supply

Superior Court of New Jersey, Appellate Division

June 28, 2013

SIMON PETERSON, Petitioner-Appellant,
v.
HOME DEPOT SUPPLY and M. BERNSTEIN & SONS, Respondents-Respondents.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 22, 2013

On appeal from the Board of Review, Department of Labor and Workforce Development, Division of Worker's Compensation, Claim Petition No. 2007-13601.

Sander Perl argued the cause for appellant (Law Offices of Marc A. Futterweit, attorneys; Mr. Perl, on the briefs).

James Passantino argued the cause for respondent (Biancamano & DiStefano, P.C., attorneys; Mr. Passantino, on the brief).

Respondent M. Bernstein & Sons has not filed a brief.

Before Judges Fasciale and Maven.

PER CURIAM

Simon Peterson (Peterson) appeals from the Judge of Compensation's May 11, 2012 decision to dismiss his claim petition for workers' compensation benefits. We affirm.

I.

Peterson filed a Claim Petition in the Division of Workers' Compensation on May 3, 2007, where he alleged that, as a result of his employment with Home Depot Supply (Home Depot) from October 2004 to May 2006, he suffered from multiple permanent orthopedic and neurological injuries. Home Depot opposed the petition. The court granted Home Depot's motion to implead Peterson's previous employer, M. Bernstein & Sons (Bernstein).

A fifteen-day trial was held before the Judge of Compensation (JOC) over the course of almost two years, beginning with Peterson's five-day testimony, followed by the testimony of his wife, as well as his experts, Arthur C. Rothman, M.D., Ph.D., P.A., Arthur H. Tiger, M.D., P.A., and treating doctor, David Idank, D.O. The court also heard testimony from Bernstein's examining doctor, Malcolm G. Coblentz, M.D., and Home Depot's examining doctor, Joseph Corona, M.D.

We derive the following relevant facts from the trial record. Peterson testified that he worked as a full-time delivery driver for Bernstein for approximately fourteen years. During the course of his employment, he loaded and unloaded from his employer's delivery truck. He testified that his job duties consisted of "driving and loading, going up stairs, [and] going down stairs."

Peterson began working for Home Depot in May 2004, where he delivered items of "heavy weight, " such as refrigerators, air conditioners, washers, dryers, freezers, plumbing supplies, large mirrors, doors, snow blowers and seventy-five-pound bags of salt. These duties "required repetitive bending, lifting, pulling, pushing, twisting and climbing in and out of the truck."

"Sometime in 2004, " Peterson stated that he began to experience lower back pain. Peterson sought treatment from Lucille Buglisi, M.D., who referred his case to Dr. Idank. During his first visit in October 2004, Peterson informed Dr. Idank that he was experiencing "severe bilateral low back pain . . . radiat[ing] to the buttocks, proximal upper thighs and lateral hips." Although Peterson discussed his job duties with Dr. Idank, Peterson stated that he did not believe he hurt his back at work. An MRI displayed "a small right paracentral disc herniation at L5-S1 with minimal degenerative disease."

Dr. Idank placed Peterson on disability until December 6, 2004, and prescribed therapy, a muscle relaxant and ibuprofen. In Peterson's State Temporary Disability Benefits (T.D.B.) application, Dr. Idank indicated that his disability was not work-related.

Peterson returned to work in December 2004 and resumed his normal full-time job duties; however, he stated that he experienced the same pain. Peterson testified that his pain eventually worsened and he "started to feel it down his leg to his foot." He returned to Dr. Idank's office on April 14, 2005, and reported that he experienced pain while reaching for his lunch bag on April 1, 2005. Dr. Idank administered two epidural shots and sent Peterson to therapy. Dr. Idank placed Peterson on disability leave. In his April 2005 T.D.B. application, Peterson and Home Depot indicated that Peterson's disability was not work-related. The Medical Certificate section of the form also indicated that Peterson's injury was not caused by a work accident; however, the box next to "due to a condition which developed because of the nature of work" was marked and the word "possibility" was written beside it.[1]

Peterson returned to work around May or June 2005, and resumed his full job duties. Home Depot provided him with a pallet, or floor jack, but Peterson stated that this did little to alleviate his pain. Subsequently, Peterson stated his back pain became unbearable during a September 2005 shift when he was unloading a seventy-five-pound bag of salt. Peterson's supervisor sent him to Concentra Medical Center, which referred Peterson for physical therapy for approximately two weeks.

Peterson returned to work in October 2005, but he testified his pain was "about the same." Shortly thereafter, he scheduled an appointment at Dr. Idank's office regarding pain in his leg and back.

In May 2006, Peterson was medically disqualified from employment with Home Depot because he was unable to pass the Department of Transportation physical examination due to "right leg pain." Peterson returned to Dr. Idank on May 10, 2006, complaining of lower back and right leg pain and was treated with a steroidal injection. A second MRI showed a large disc herniation at L5-51, indicating "a distinct change from October[] 2004, where a very small herniation was noted." Peterson and Dr. Idank completed a third T.D.B. form indicating that the injury was not work-related.

Dr. Idank referred Peterson to James Patti, M.D., who conducted microdiscetomy surgery on July 25, 2006. Peterson reported that he "was still asymptomatic in 2007, " so he consulted with other doctors, including Dr. Rothman, a neurological physician; Dr. Tiger, an orthopedist; and neurosurgeon, Donald Frank, M.D. Dr. Frank conducted a second surgical procedure, an anterior discectomy and fusion at L5-S1, on February 27, 2007.

Drs. Tiger and Rothman testified that Peterson's occupational duties during his career led to his lower back problems. Specifically, Dr. Tiger was of the opinion that following two back surgeries, Peterson was "totally disabled, " while Dr. Rothman testified that Peterson's "occupational exposure . . . was responsible for his conditions and the necessity for performing surgery."

Bernstein's examining doctor, Dr. Coblentz, and Home Depot's examining doctor, Dr. Corona, both opined that Peterson's lower back injury did not arise out of and in the course of his employment with either company. Dr. Corona, in particular, testified that Peterson's degenerative back problems were due to age and genetics.

The JOC dismissed Peterson's claim petition against Bernstein for failure to sustain his burden of proof. Next, the judge relied on the testimonies of Drs. Idank and Corona and found that Peterson's back injuries were not work related, but rather due to the aging process. The claim against Home Depot was also dismissed.

Peterson subsequently filed this appeal. He argues:

I. [PETERSON] PROVED BY A PREPONDERANCE OF THE CREDIBLE EVIDENCE THAT HE SUFFERED A COMPENSABLE OCCUPATIONAL DISEASE ARISING OUT OF THE COURSE OF HIS EMPLOYMENT WHICH WAS DUE IN A MATERIAL DEGREE TO CAUSES WHICH WERE CHARACTERISTIC TO HIS OCCUPATION AND PLACE OF EMPLOYMENT.
II. THE OPINION OF [PETERSON'S] EXPERTS WERE NOT NET OPINIONS.
III. THE TRIAL JUDGE MISUNDERSTOOD AND THEREFORE PLACED UNDUE EMPHASIS ON THE OPINION OF [PETERSON'S] TREATING DOCTOR ON THE ISSUE OF CAUSAL RELATIONSHIP.
IV. THE TRIAL JUDGE FAILED TO CONSIDER OR FAILED TO GIVE APPROPRIATE WEIGHT TO MEDICAL LITERATURE AND STUDIES IN EVIDENCE ON THE ISSUE OF CAUSAL RELATIONSHIP.
V. THE TESTIMONY OF [HOME DEPOT'S] EXPERT DR. CORONA SHOULD BE DISREGARDED AS A NET OPINION.
VI. JUDGE OF COMPENSATION IMPROPERLY ALLOWED EXTENSIVE CROSS-EXAMINATION ON [AN] IRRELEVANT, IMMATERIAL OR PERIPHERAL ISSUE TO INFLUENCE HER DETERMINATIONS ON CREDIBILITY AND CONFUSE THE ISSUES.

II.

We exercise a "limited" review of the decision, and a compensation judge's "findings are binding when based . . . on 'sufficient credible evidence in the record.'" Cooper v. Barnickel Enters., Inc., 411 N.J.Super. 343, 348 n.4 (App. Div.) (citing Sager v. O.A. Peterson Constr. Co., 182 N.J. 156, 164 (2004)), certif. denied, 201 N.J. 443 (2010). We also give "due regard to the compensation judge's expertise and ability to evaluate witness credibility." Lindquist v. City of Jersey City Fire Dep't, 175 N.J. 244, 277 (2003) (citations omitted) (internal quotation marks omitted). "Deference must be accorded the factual findings and legal determinations made by the [compensation judge] unless they are manifestly unsupported by or inconsistent with competent relevant and reasonably credible evidence as to offend the interests of justice." Id. at 262 (citations omitted) (internal quotation marks omitted).

"The petitioner has the burden to demonstrate by a preponderance of the evidence that his or her environmental exposure . . . was a substantial contributing cause of his or her occupational disease." Id. at 263; see Fiore v. Consol. Freightways, 140 N.J. 452, 472 (1995). To satisfy the standard, a petitioner claiming an occupational disease must fulfill three requirements:

First, as [N.J.S.A. 34:15-31] provides, the petitioner must show that the disease is due in a material degree to causes arising out of the workplace and that are or were characteristic of or peculiar to a particular trade, occupation, process or place of employment.
Second, the petitioner must prove by suitable medical evidence that the employment exposure did indeed cause or contribute to the disease . . . .
Third, the petitioner must show that the employment exposure substantially contributed to the development of the disease. An occupational exposure substantially contributes to the development of . . . [the] disease when the exposure is so significant that, without the exposure, the disease would not have developed to the extent that it caused the disability resulting in the claimant's incapacity to work.
[Fiore, supra, 140 N.J. at 472-73 (citations omitted) (internal quotation marks omitted).]

Applying these well-settled principles of workers' compensation law to the facts she found credible, the JOC found no objective medical evidence of occupational disease. In a seventeen-page written opinion issued May 11, 2012, the JOC focused on the salient issue in dispute: "Whether the [Peterson's] back injuries, including the two surgeries, were related to his work at either [Bernstein] or Home Depot or a combination of both, " made comprehensive findings of fact, credibility determinations, and conclusions of law. The judge outlined the evidence, including medical records, Peterson's testimony, and segments of Dr. Tiger's opinion, and concluded that "the petitioner has not shown these disabilities to be work-related."

We have thoroughly reviewed the record in light of the arguments advanced by the parties and we are satisfied that, giving appropriate deference to the JOC's opportunity to assess credibility and her expertise in the area, there is sufficient credible evidence to support her decision. We affirm substantially for the reasons set forth in her opinion. We add only brief comments to address Peterson's claim regarding causation.

We are unpersuaded by Peterson's arguments that the judge improperly rejected the medical opinions of his experts, Drs. Tiger and Rothman, and should have disregarded Dr. Corona's testimony on behalf of Home Depot.

"Compensation judges must be 'particularly skeptical of expert testimony that supports or contests a finding of causation on the basis of reasoning inconsistent with prevailing medical standards.'" Magaw v. Middletown Bd. of Educ., 323 N.J.Super. 1, 13 (App. Div.) (citing Hellwig v. J.F. Rast & Co., Inc., 110 N.J. 37, 54 (1988)), certif. denied, 162 N.J. 485 (1999). The judge found:

Dr. Tiger's opinion is clearly a net opinion. He has no real knowledge of what the petitioner's job duties entailed. He never explored . . . how much weight the petitioner had to lift[, ] how many hours the petitioner worked, et cetera. Dr. Tiger also offered no explanation as to how the mechanics of his work effort caused the back problems. He merely asserted without any explanation that petitioner's back disability was related to his employment at Home Depot.

The judge also attached little weight to Dr. Rothman's testimony, finding that "in terms of whether his work effort caused his disability, " Dr. Rothman "never testified and apparently did not explore specifically what it was the petitioner did at his job." The judge ultimately determined that the testimonies of Drs. Tiger and Rothman were insufficient to establish a causal relationship between Peterson's alleged injuries and his work at either company.

Rather, the judge opined that their testimony "support[ed] the concept as stated by Dr. Corona that it was the aging process" that attributed to Peterson's injuries. The judge credited Dr. Corona's testimony that "within the parameters or limits of medical probability or certainty, " he could not "attribute this gentleman's back condition to his work at Home Depot."

Considering the compensation judge's expertise in weighing the testimony of competing medical experts and her ability to evaluate witness credibility in general, Lindquist, supra, 175 N.J. at 277, we conclude that the JOC adequately explained why she considered the medical opinion of Dr. Corona more persuasive than those of Drs. Tiger and Rothman. See Smith v. John L. Montgomery Nursing Home, 327 N.J.Super. 575, 579 (App. Div. 2000) ("The JOC [should] carefully explain[] why he [or she] considered certain medical conclusions more persuasive than others."). Moreover, the fact that the judge gave more weight to the opinion of one physician as opposed to the others "provides no reason to reverse th[e] judgment." Ibid. To the contrary, we conclude the judge's findings are well-supported by the record.

Peterson's remaining arguments do not warrant discussion in this opinion. R. 2:11-3(e)(1)(E).

Affirmed.


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