NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued June 25, 2013
On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition No. 2012-12055.
Michael L. Bileci argued the cause for appellant (Capehart & Scatchard, P.A., attorneys; Mr. Bileci, of counsel and on the brief).
Lindsey M. Burwell argued the cause for respondent (D'Arcy Johnson Day, P.C., attorneys; Christopher M. Day, on the brief).
Before Judges Sapp-Peterson and Sabatino.
In this appeal, Hamilton Mall ("Hamilton") seeks to overturn the workers' compensation court's award of benefits to petitioner George Carrelli, a security guard employed by Hamilton. After several days of hearings, the compensation judge concluded that petitioner injured (1) his left knee in an incident at the mall on May 3, 2012, and (2) his right knee in a second workplace incident on May 31, 2012. Hamilton now raises several claims of trial error, and further argues that the proofs do not support the court's award for either injury. We reject these arguments and affirm.
At the time of the two incidents in question, petitioner was sixty-eight years old. Although his account of the details of the incidents varied, he repeatedly asserted that they both occurred while he was working at the mall for Hamilton. Subject to those variations, petitioner essentially claimed that in the first incident he injured his left knee while responding to a call for assistance from a co-worker, and that in the second incident he sustained a derivative injury to his right knee at work as the result of favoring his damaged left knee.
Petitioner received treatment from his primary care physician, John Gaffney, D.O., and an orthopedic surgeon, Thomas Dwyer, M.D. Based upon his examination and review of x-rays taken during petitioner's emergency room visit, Dr. Gaffney determined that petitioner had suffered a meniscal injury in his left knee and a separate injury to his right knee, and that both injuries were causally related to plaintiff's employment.
Dr. Dwyer, similarly, diagnosed petitioner with a torn left meniscus. He recommended surgery on that knee, which apparently was performed while the present appeal was pending. He also acknowledged a separate injury to the right knee. Unlike Dr. Gaffney, however, Dr. Dwyer was of the opinion that petitioner's knee injuries were not work-related, and instead stemmed from degenerative conditions.
The compensation judge considered at trial the expert testimony of Dr. Gaffney, who was called by petitioner, and of Dr. Dwyer, who was called by Hamilton. After evaluating their opinions, the judge found that Dr. Gaffney was more credible than Dr. Dwyer. The judge also considered lay testimony from petitioner himself, and from two co-workers called by Hamilton, who claimed that petitioner had given them inconsistent explanations of how he became injured. The judge found neither of the employer's two lay witnesses to be credible.
The judge concluded that petitioner had sustained his burden of proof and was entitled to an award of compensation benefits. Among other things, the judge noted, in an amplified oral opinion, that petitioner had sustained "two twisting events to his left knee on May 3, 2012, " and also that, on May 31, 2012, he "suffered a derivative injury to his right knee and now requires . . . follow up care." Based upon the medical testimony, the judge further concluded that petitioner had suffered a torn meniscus to his left knee that required surgery. The judge also found that petitioner had separately hurt his right knee, as a result of being on crutches for his left knee and "putting more pressure" on the other knee.
On appeal, Hamilton argues that: (1) the judge improperly relied upon facts not in evidence and an inadmissible prior statement of Dr. Dwyer from another case; (2) the judge irrationally found that petitioner's claims were legitimate, despite his varying accounts of the incidents; (3) the judge unfairly rejected the testimony of Hamilton's lay witnesses; and (4) the judge should have found Dr. Dwyer, as the treating ...