NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 18, 2013
On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition No. 2008-5541.
Michael O'Brien argued the cause for appellant (Jacobs, Schwalbe and Petruzzelli, P.C., attorneys; Mr. O'Brien, on the brief).
Corinne M. Martin argued the cause for respondent (Worthington & Worthington, attorneys; Francis W. Worthington, on the brief).
Before Judges Harris, Kennedy, and Guadagno.
Petitioner, Constance White, appeals from a January 15, 2013 final judgment of the Division of Workers' Compensation (Division). The Division determined White suffered a compensable injury while in the employ of respondent, Bed Bath & Beyond, but rejected her claim of 100% disability and instead awarded her 32% partial total disability. The Division also dismissed her psychiatric disability claim. On appeal, White alleges several trial errors and claims the award is inconsistent with the evidence. Because we find that the decision of the judge of compensation was supported by substantial credible evidence, we affirm.
White began working at Bed Bath & Beyond in 2004. Her job duties included loading and unloading freight, unpacking boxes, shipping items, and taking inventory. She testified that her job duties were not sedentary and she was always on her feet. Taking inventory occurred once a year, and included counting items with a scan gun while on a ladder.
On February 6, 2008, White was taking inventory atop a twelve-foot ladder when she fell to the ground, landing on her right side. She was immediately taken to the hospital where they determined her right knee had a "comminuted depressed bicondylar tibial plateau fracture with fracture of the fibula head" and her right elbow had an "open dislocation, " which means that the bone was "exposed to the air out of the skin." She underwent an "irrigation, debridement and wound closure" of her right elbow and an "open reduction internal fixation with bone grafting" of her right knee. After six days in the hospital, she was admitted into a rehabilitation therapy center.
After her release, White lived in her downstairs living room for approximately four weeks, as she was unable to climb stairs. Her home's only bathroom was on the second floor, so she used a "commode" in her living room, and bathed in the kitchen sink until her husband had a lift installed for her to ascend the stairs.
White underwent two subsequent knee surgeries, including a total right knee replacement in March 2009 and a right knee arthroscopic surgery in September 2009. The post-operative diagnoses were "post traumatic arthritis" and "right knee stiffness . . . and extensive arthrofibrosis[.]"
In January 2010, White's leg specialist, Dr. Michael Sidor, cleared her to return to work, but only for sedentary work. Bed Bath & Beyond offered her a transitional job, informing her that it would work within her limitations. White testified that she declined the ...