July 18, 2013
JOHN J. MACHIAVERNA, Petitioner-Appellant,
CITY OF NEWARK, Respondent-Respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 29, 2013
On appeal from the Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition No. 2008-4947.
Pablo N. Blanco argued the cause for appellant (Blanco Law Firm, L.L.C., attorneys; Mr. Blanco, on the brief).
Alison Brown Jones, Assistant Corporation Counsel, argued the cause for respondent (Anna P. Pereira, Corporation Counsel, attorney; Ms. Jones, on the brief).
Before Judges Espinosa and Guadagno.
Petitioner John Machiaverna appeals from the June 15, 2012 order of the Department of Labor and Workforce Development, Division of Workers' Compensation, dismissing his workers' compensation petition with prejudice. The judge of compensation found that petitioner failed to prove that he sustained an occupational exposure in accordance with N.J.S.A. 34:15-31, and that petitioner violated the Worker's Compensation Fraud Act, N.J.S.A. 34:15-57.4(c)(1). Petitioner presents the novel argument that the judge of compensation violated his due process rights by finding his claim fraudulent without first giving him notice and an opportunity to be heard. For the following reasons, we reject this argument and the others raised by petitioner and affirm.
Petitioner was employed by the City of Newark (the City) as a firefighter since 1988. On November 5, 2008, petitioner filed a workers' compensation claim alleging he was injured in the performance of his duties. Petitioner claimed orthopedic and neurological injury through "repetitive motion" to his left leg, knee and hip.
Petitioner and the City each retained two medical experts who examined petitioner and prepared reports. Trial began on January 10, 2011. Petitioner testified that, as part of his job, he had to climb extension ladders and stairs of high rise buildings, crawl through buildings and assist in carrying people out of buildings, all while wearing up to eighty pounds of equipment. His duties as a firefighter required him to be on his feet for the majority of his shifts. In addition to traditional firefighting, petitioner also responded to emergency medical calls and motor vehicle accidents, which would often require extracting people from vehicles with the use of heavy equipment.
When asked on direct if he "ever [had] any injuries in [his] work career that [he] sought treatment for[, ]" petitioner replied, "just the normal bumps and bangs." He stated that he had filed a workers' compensation claim against the City in 1993 after he fell through a hole to the floor below and broke three vertebrae. He specifically denied sustaining any previous injuries to his knee or hip. However, when pressed, petitioner stated that he could recall one incident in July 2002,  in which his fellow firefighters were cutting off the roof of a house that was on fire and throwing the debris to the ground below. As he was "walk[ing] on a pile of debris" to get the hose, a piece of sheetrock "gave way, " causing his left leg to get "caught" beneath two-by-fours. He stated, however, that he did not receive immediate medical treatment for this injury, nor did he file a workers' compensation claim.
Petitioner testified that he first sought medical treatment for his current knee problems in 2003 or 2004, but that he had "hobbled on it for much longer than [he] should have." He was first told by Dr. DeLuca in 2003 or 2004 that he would eventually have to have his knee replaced. Dr. Jaffe performed this surgery on May 25, 2007.
Petitioner testified that he reported his knee replacement surgery to the City, but was not certain whether he told the City it was work-related: "I just said that I needed to have my knee replaced. So I can't really say that I told them that it was work-related[.]" As a result of his surgery, petitioner was out of work from the end of May until November 2, 2007. Since returning to work, petitioner has held an administrative position pending his rehabilitation.
Petitioner testified that he began having hip problems sometime in 2006 and received chiropractic treatment between five and ten times in 2009 and 2010.
On cross-examination, petitioner admitted that he had arthroscopic surgery on his left knee in April 2002, and as a result, was out of work for two weeks. Petitioner testified that his need for this surgery "may have been" the result of his employment activities. He also admitted to having twisted and sprained his left knee "on the job" on two dates in August 2001. Although he reported these injuries to his captain at the time, he did not seek medical treatment.
Petitioner presented the testimony of Dr. Vijaykumar Kulkarni, who was qualified as an expert in orthopedic medicine. Dr. Kulkarni examined petitioner on November 17, 2008, after petitioner had undergone knee replacement surgery.
Dr. Kulkarni testified that petitioner told him that as a result of his job as a firefighter, he developed pain in his left hip and left knee. Dr. Kulkarni explained that petitioner had developed arthritis in his left knee joint, which necessitated the knee replacement. He explained:
As we get older, there is arthritis, but with a person who does repeated use of that particular body part, in this case his knee and the hip, because that's where his pain complaints are, going up and down the stairs and trucks and all that for 21 years, that does aggravate and accelerate the normal arthritic process.
Based on his examination, Dr. Kulkarni diagnosed petitioner with a repetitive sprain and strain of both the left hip and left knee, as well as residual synovitis in both joints. He stated that the cause of petitioner's disability was "[a]ggravation of arthritis after a prolonged exposure to his job related work." He recommended that petitioner undergo a neurological evaluation because the EMG study done after his knee replacement "showed some peripheral neuropathy."
On cross-examination, counsel for the City had Dr. Kulkarni review the portion of petitioner's testimony in which he admitted to sustaining three prior injuries to his left knee. Dr. Kulkarni confirmed that these injuries are not reflected in his report because petitioner did not mention them to him. He further admitted that he did not know the extent of the injuries or what treatment was given. Nonetheless, he stated his knowledge of these prior injuries did not change his opinion that petitioner's problems with his left knee and left hip were the result of occupational exposure.
When asked if something other than occupational exposure could have led to the development and aggravation of arthritis in petitioner's left knee and hip, Dr. Kulkarni stated that since petitioner previously had right knee surgery, it was possible that petitioner had "put more pressure on the left side" to protect his injured side. He explained, "[i]f somebody has an injured joint, it is a natural tendency to put more weight on the opposite extremity . . . and that knee carries more weight than the right knee. That will certainly aggravate the arthritis."
Petitioner also presented the testimony of Dr. Cheryl Wong, who was qualified as an expert in the fields of neurology and psychiatry. Dr. Wong examined petitioner on January 5, 2009, and stated that the pre-surgery x-rays taken in 2006 revealed "bilateral knee osteoarthritis most severe in the left medial compartment[, ]" as well as osteoarthritis in the hips. She testified that petitioner "complained of pain in both his left hip and his left knee, stiffness and soreness from bending, " and that his pain "was worse if he was lifting something or [there were] changes in weather." She further noted that petitioner walked with a limp. She explained that an EMG nerve conduction study revealed peripheral neuropathy, but she did not attribute this to petitioner's work-related activities. She did, however, find that petitioner had a "left distal femoral nerve motor neuropathy[, ]" which she explained was a "motor function loss" in the quadriceps, and that this was "related to the development of the osteoarthritis and the need for the knee replacement." She concluded that "[r]epetitive trauma" -- such as petitioner's actions as a firefighter of "climbing up and down ladders, climb[ing] up and down staircases, [and] crawling on floors" --"would most certainly aggravate any underlying degenerative changes he may have had before or . . . as a matter of course of him getting older." Dr. Wong made no neurological findings with respect to petitioner's hip.
On cross-examination, Dr. Wong was confronted with petitioner's testimony that he had received arthroscopic surgery to his left knee in 2002. Dr. Wong stated that petitioner had not mentioned this prior surgery, and when asked whether this new information would change her opinion, she responded, "I would need to know why he had the surgery to determine whether it was related to the occupational exposure or whether he had a separate incident or accident that required him to have surgery." She was also confronted with petitioner's testimony about his three prior left knee injuries, and stated that her determination of a thirty-percent disability in his left leg "would be from all causes as a result of the occupational exposure as well as the specific injuries that he had to his knee[, ]" and that her original statement in her report that the thirty-percent was "for this claim alone" was now "incorrect because obviously he had other issues with his knee[, ]" and that it should instead read "30 percent  from all causes."
The City presented the testimony of Dr. Arthur Canario, who was qualified as an expert in the field of orthopedics. Dr. Canario examined petitioner on April 23, 2010, and testified that petitioner told him that he sustained an injury to his left knee while working as a firefighter for the City, "when he slipped on a pile of debris" and he eventually had a total knee replacement. Dr. Canario testified that petitioner told him about the surgery he had on his right knee, but "denied any other problems with [his] left knee." After reviewing petitioner's medical records and performing the physical examination, Dr. Canario found that petitioner was developing arthritis in his left hip, which he would ultimately need replaced, that he had a successful knee replacement on the left knee, and that he would ultimately need the right knee replaced, as well. Dr. Canario concluded that petitioner's osteoarthritis was the result of a natural disease process:
It's not caused by the fact that he was employed as a fireman. I note this was an occupational case and the simple fact that he worked as a fireman, is not causative or in any way acceleratory on the arthritic condition that he has.
Dr. Canario testified that petitioner had not told him about a previous surgery to his left knee, but stated that if he did have such a surgery, the surgery "would make it more likely that he would develop an arthritic condition in the knee." He further stated that petitioner's height and weight could "absolutely" have had an effect on his condition, stating, "[t]he forces that he's putting across [his] knee are extreme . . . you see more arthritic changes in larger, obese people than you do in thin people." He also recognized petitioner's age as a non-occupational risk, as petitioner is in his late fifties and "arthritis certainly manifests itself in the 50s."
With respect to petitioner's injury in 2005, Dr. Canario stated that he did not think that this injury was "significant in  developing the pathology, " but that it "could have made it more symptomatic" and "accelerated" his need for treatment. He referred to this incident as "the straw that broke the camel's back, " but stated that it did not cause petitioner's arthritis.
The City also presented the testimony of Dr. Ivan Dressner, who was qualified as an expert in the field of neurology. Dr. Dressner examined petitioner on February 7, 2011, and concluded that petitioner has peripheral neuropathy. He stated that this "absolutely" has "nothing to do with the knee replacement" because his neuropathy is "equal on both sides." When asked whether this was related to his employment as a firefighter, Dr. Dressner stated, "Not that I can figure, not from anything I have known in 44 to 48 years and, otherwise, you would see a whole bunch of fire fighters with peripheral neuropathy, which you don't." He stated that he could not "see how the vigorous work of a fire fighter could cause damage to the peripheral nerves in both legs. . . . [I]t just doesn't happen. It has no medical precedence." He further stated that he was not aware of "any evidence to suggest that physical activity worsens a peripheral neuropathy."
Following the trial, the judge of compensation issued a written decision on June 15, 2012. Judge Theresa Yang found that petitioner had the burden of showing the injuries to his left knee and left hip "[arose] out of [and] in the course of [his] employment" with the City, and were "due in a material degree to causes and conditions, which are or were characteristic of or peculiar to a particular trade, occupation, practice or place of employment."
Judge Yang found that petitioner had lied by not disclosing his prior left knee injuries to the doctors who examined him. Accordingly, she concluded that petitioner was not a credible witness:
He not only lied to all four doctors who examined him because he failed to disclose his prior left knee injuries but he also lied to the court about whether he sustained any prior left knee injuries. During direct examination, the [p]etitioner discussed only one incident at work when he got his left leg caught underneath two by fours but he failed to mention [the] two other times that he sustained knee sprains during incidents in 2001. During direct testimony, he also failed to say that he had prior left knee surgery during April of 2002. Dr. Kulkarni, Dr. Wong, Dr. Canario and Dr. Dressner were not provided with the [p]etitioner's accurate medical history. When all four physicians made their findings as to causal relationship and permanency, they based their conclusions on inaccurate or false information provided by the [p]etitioner.
Judge Yang found that petitioner failed to sustain his burden of proof with respect to the hip injury as well, noting that his only testimony was that he had received some chiropractic treatment for his hip, and that a doctor took x-rays of the joint. Judge Yang also determined that petitioner was not entitled to a permanency award for a neurologic disability, relying upon the conclusions of Dr. Wong and Dr. Dressner that petitioner's peripheral neuropathy was unrelated to his employment.
Judge Yang then stated that petitioner's purposeful concealment of his prior injuries constituted a violation of N.J.S.A. 34:15-57.4(c)(1), which provides:
[I]f a person purposely or knowingly makes, when making a claim for benefits . . . a false or misleading statement, representation or submission concerning any fact which is material to that claim for the purpose of obtaining the benefits, the division may order the immediate termination or denial of benefits with respect to that claim and a forfeiture of all rights of compensation or payments sought with respect to the claim.
Accordingly, the judge dismissed petitioner's claim with prejudice. On appeal, appellant raises the following points:
THE JUDGE OF COMPENSATION VIOLATED THE PETITIONER'S DUE PROCESS RIGHTS BY HOLDING THAT PETITIONER HAD COMMITTED FRAUD WITHOUT FIRST GIVING NOTICE AND AN OPPORTUNITY TO BE HEARD TO THE PARTIES.
THE JUDGE OF COMPENSATION COMMITTED REVERSIBLE ERROR IN HOLDING THAT THE PETITIONER COMMITTED FRAUD BECAUSE THERE WAS INSUFFICIENT EVIDENCE OF SCIENTER AND MATERIALITY.
THE JUDGE OF COMPENSATION COMMITTED REVERSIBLE ERROR IN HOLDING THAT PETITIONER DID NOT SUSTAIN A PERMANENT INJURY.
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." Deference must be accorded the factual findings and legal determinations made by the judge of compensation unless they are "'manifestly unsupported by or inconsistent with competent relevant and reasonably credible evidence as to offend the interests of justice.'" Lindquist v. City of Jersey City Fire Dep't, 175 N.J. 244, 262-63 (2003) (quoting Perez v. Monmouth Cable Vision, 278 N.J.Super. 275, 282 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995)).
We first address petitioner's argument that the judge of compensation erred in concluding petitioner did not sustain a permanent injury as a result of his occupational exposure while working as a firefighter. The judge carefully considered the medical conclusions of all four doctors and explained why she found some more persuasive than others. Petitioner's failure to disclose his prior knee injuries not only shattered his credibility with Judge Yang but completely undermined the conclusions of all the doctors including the ones he relied upon. Judge Yang's conclusion that "all four physicians made their findings as to causal relationship and permanency . . . based . . . on inaccurate or false information provided by the [p]etitioner[, ]" is consistent with the testimony of the doctors. Judge Yang's conclusion that petitioner was not a credible witness is amply supported by the record and is entitled to our "substantial deference." Ramos v. M & F Fashions, Inc., 154 N.J. 583, 594 (1998). Judge Yang is considered to have "expertise with respect to weighing the testimony of competing medical experts and appraising the validity of [the petitioner's] compensation claim." Id. at 598.
As to petitioner's claim of neurologic disability, Judge Yang relied on the conclusion of petitioner's expert, Dr. Wong, who found no "evidence of neurologic pathology to warrant a diagnosis for disability." These findings were corroborated by Dr. Dressner.
We find petitioner's argument that his due process rights were violated as he was deprived of the opportunity to defend himself against the court's allegations of fraud to be without merit, Rule 2:11-3(e)(1)(E). As we affirm the dismissal based on Judge Yang's conclusion that petitioner failed to sustain his burden of proof that he suffered disability through an occupational exposure, we need not address the judge's alternative theory for dismissal under N.J.S.A. 34:15-57.4(c)(1). There was sufficient evidence to support Judge Yang's credibility assessments and her determination that a violation of N.J.S.A. 34:15-57.4(c)(1) had occurred.