NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 5, 2013
On appeal from the Department of Labor, Division of Workers' Compensation, Claim Petition No. 2007-22297.
Shebell & Shebell, LLC, attorneys for appellant (Raymond P. Shebell, Sr., of counsel; Danielle S. Chandonnet, on the brief).
James Jude Plaia, attorney for respondent.
Before Judges Simonelli and Accurso.
Richard Schofel appeals from the dismissal of his claim petition by the Division of Workers' Compensation. Schofel argues that he presented sufficient evidence of disability arising out of a work-related accident to support a finding in his favor. Because we conclude that the judge of compensation rejected his claim based on findings of fact that are well-supported by the record, we affirm.
Schofel, a car salesman, alleged that his manager struck him in the right ear with his fist when Schofel displeased him by staying late with a customer when the manager wanted to leave early. The manager testified that he did not punch petitioner but merely caught his foot in Schofel's chair and clumsily fell into him. Schofel did not file a criminal complaint or seek immediate medical attention. He went to the emergency room several days later after he claimed to have lost his balance and fallen on becoming dizzy.
Schofel's doctor, Dr. Krengel, testified that Schofel had suffered trauma to the right side of his head and right ear and temporomandibular joint; temporomandibular joint dysfunction; cervical strain; bilateral cervical paravertebral myositis; bilateral trapezius myositis; capsulitis and rotator cuff sprain of the right shoulder; derivative injury to the low back lumbar and lumbosacral strain; bilateral lumbar paravertebral myositis; bilateral sciatic reference; and aggravation of a previous injury to the temporomandibular joint, cervical spine and right shoulder. He declared Schofel one hundred percent totally and permanently disabled. Defendant's doctor, Dr. Aragona, testified that Schofel did not have any complaints regarding his neck, upper back or right shoulder when he examined him, and that those areas were entirely normal. He further testified that Schofel's neurological exam was normal and his complaints regarding his low back were entirely subjective in nature. Based on his review of Schofel's treating records and his physical examination, Dr. Aragona concluded that Schofel had no disability attributable to the incident.
Judge Allen found "serious problems with the petitioner's credibility" both as to the happening of the incident and his complaints to the examining doctors. The judge determined that Schofel was "not credible in his description of the alleged attack." The court instead credited the testimony of Schofel's manager that the contact between the two of them was "accidental and minor in nature." Judge Allen found defendant's expert, a practicing board certified orthopedist, better qualified than petitioner's expert, a family practice physician who no longer treats patients. "With that understanding, " the judge rejected the testimony of petitioner's doctor because he failed to take into account petitioner's past injuries, at least one of which was quite serious, and attributed all of Schofel's complaints to the current incident. Although Judge Allen accepted that petitioner may have subjective back pain, he found Schofel's "credibility lacking as to his complaints to the examining physicians."
"In workers' compensation cases, the scope of appellate review is limited to 'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole, with due regard to the opportunity of the one who heard the witnesses to judge of their credibility.'" Lindquist v. City of Jersey City Fire Dep't, 175 N.J. 244, 262 (2003) (quoting, with citation and quotation marks omitted, Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). The record in this case provides the essential support for the judge's determination, and we affirm substantially for the reasons expressed by Judge Allen in his oral decision of June 20, 2012. The arguments Schofel ...