NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 9, 2013
On appeal from the Department of Labor, Division of Workers' Compensation, Claim No. 2007032388.
McHugh & Brancato, LLP, attorneys for appellant (Mark J. Brancato, on the brief).
Gary J. Lustbader, attorney for respondent.
Before Judges Yannotti and Leone.
Respondent Rockland Coaches appeals from an order for judgment entered by the worker's compensation court in favor of Petitioner Altagracia Polanco. Respondent claims that a portion of the award was not supported by the evidence. We affirm.
Petitioner was employed by Respondent as a bus driver. On March 17, 2006, while driving a bus, Petitioner allegedly injured her neck and right shoulder. The judge of compensation dismissed the claim arising out of that injury, finding that Petitioner failed to sustain her burden of proof. She does not appeal that ruling.
On November 1, 2007, Petitioner fell in a pothole while exiting a bus on Respondent's premises. She alleged that she injured her neck, low back, right shoulder, and right ankle. The experts for both parties agreed that she had a herniated disc at the L5-S1 level and disc abnormalities at C5-C6. The experts disagreed on the extent of the permanent injuries to her neck, back, and shoulder, and on whether her ankle was permanently injured. The parties stipulated that Respondent was entitled to a credit for a previous workers' compensation award, for an April 26, 2004 rotator cuff tear in Petitioner's right shoulder, which award represented 12.5% of "partial total."
The judge of compensation credited Petitioner's testimony that "she has functional loss to a material degree in her right shoulder and then also in her cervical region and her lumbosacral region" as a result of the fall on November 1, 2007. The judge found that those disabilities were serious and permanent. After considering the conflicting experts' opinions, and utilizing her own expertise, the judge entered an award:
It is this Court's opinion that petitioner is disabled in the amount of 50 percent of partial total. This Court feels the appropriate apportionment should be 27-1/2 percent of partial total for the injuries to the right shoulder with credit to respondent for the award previously paid of 12-1/2 percent of partial total. Petitioner is entitled to 12-1/2 of partial total for cervical disability involving a cervical bulge in the area of C5-C6, and petitioner is entitled to 15 percent of the partial total for a herniated disc in the area of L5-S1. This would be 300 weeks of compensation at ...