ALLYSON WALLACE v. UNITED PARCEL SERVICE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0405-05T50405-05T5

ALLYSON WALLACE,

Petitioner-Appellant,

v.

UNITED PARCEL SERVICE,

Respondent-Respondent.

_______________________________________

 

Submitted September 13, 2006 - Decided October 12, 2006

Before Judges Parker and Yannotti.

On appeal from the Division of Workers' Compensation, C.P. Nos. 2001-28186 and 2001-28276.

Allyson Wallace, appellant pro se.

Kramkowski, Lynes, Fabricant & Bressler, attorneys for respondent (Thomas S. Kirschenbaum, of counsel and on the brief).

PER CURIAM

Petitioner Allyson Wallace (Wallace) appeals from a judgment entered on August 1, 2005 by the Division of Workers' Compensation dismissing Wallace's two claim petitions. We affirm.

Wallace was employed by United Parcel Service (UPS) as a part-time package handler. On August 28, 2001, Wallace filed a claim petition (No. 2001-28276) in which she alleged that she sustained injuries to her neck, back and arms in a workplace accident that occurred on June 1, 2001. Wallace filed another claim petition on August 29, 2001 (No. 2001-28186). Wallace alleged that she had been exposed to stresses and strains in the period from August 1999 to June 13, 2001 which resulted in orthopedic and pulmonary injuries and impairments, including injuries to her neck, back and arms. UPS denied the claims.

At the hearing, Wallace testified that on June 1, 2001, she injured her arms, legs, neck and back pulling a cart full of bags. Wallace reported the incident to her supervisor. Wallace sought treatment for the injuries sustained in this accident. Wallace asserted that she has continued to experience pain in her neck, arms and legs and she "constantly" has to take medication. Wallace said that she has had difficulty finding employment because of her injuries and the pain medication, which makes her feel tired throughout the day.

Wallace conceded that she had been injured in two prior accidents not related to her work. In 1997, Wallace was involved in a motor vehicle accident and injured her neck and back, subsequently receiving treatment for approximately nine months. In 1999, Wallace injured her back in a bus/auto collision and was treated for approximately six months. Following the second accident, Wallace submitted to UPS certain "slips" from a "Dr. Boller" stating that she was unable to work. Wallace admitted that there was no "Dr. Boller" and she had written the "slips" herself. Wallace claimed that she submitted the forged doctor's notes to her employer because she was working in a hostile environment and was harassed daily on the job.

Wallace stated that she sought initial treatment for the injuries suffered in the workplace accident on June 1, 2001 but she was unsure whether she sought treatment in the period from June 18, 2001 to November of 2001, believing that the pain "would go away." When the pain worsened, Wallace went to University Hospital, where she was examined and medication was prescribed.

Wallace presented testimony from I. Ahmad, M.D., F.R.C.S. (Ahmad), an expert in the field of orthopedic medicine. Ahmad examined Wallace on December 18, 2003. Wallace told Ahmad about the 1997 accident but she did not tell him that she received treatment for nine months after that incident. Wallace also did not tell Ahmad about the 1999 accident. Ahmad testified that an MRI study was performed and it was negative. He could not explain why there was a five-month gap in treatment from June 18, 2001 to November 13, 2001. Ahmad asserted that the fact that Wallace was treated for six months after the second accident would affect his opinion on the causal relationship of her complaints to the June 1, 2001 workplace accident.

Ahmad diagnosed Wallace with spinal sprain and fibromyositis. He found no disability in her arms or legs. Flexion of the cervical spine was restricted by less than ten degrees out of forty-five degrees. Ahmad stated that this was a "mild" restriction. Extension of the cervical spine also was restricted by five degrees out of forty degrees. Ahmad characterized this as a "mild" restriction. Ahmad asserted that the restrictions on movement of the cervical spine would not prevent Wallace from engaging in ordinary work or activities.

Ahmad added that flexion in Wallace's lumbosacral area was restricted (twenty degrees out of ninety). Extension also was limited (ten degrees out of thirty). According to Ahmad, these restrictions were moderate. He said that Wallace was able to bend laterally within normal limits. Wallace complained of pain when performing certain motions, but Ahmad conceded that these complaints were subjective complaints, not objective findings. Ahmad opined that he saw no need for further treatment.

Wallace also presented testimony from Enrique Hernandez, M.D. (Hernandez), who performed a neurologic evaluation of Wallace on February 19, 2004. During the examination, Wallace told Hernandez that she had no prior accidents and her past medical history was negative. Hernandez's examination revealed tenderness to palpation of the cervical, thoracic and lumbar spines. There was evidence of spasm in the cervical and lumbar areas with restrictions on the range of motion in both areas of "nearly" 90%.

Hernandez found that Wallace's cranial nerves were normal. Motor strength, muscle tone and muscle mass also were normal. There was no evidence of atrophy. Superficial reflexes, coordination and balance were normal but Wallace's gait was somewhat slow and stiff. Hernandez opined that Wallace probably had post-traumatic chronic soft tissue dysfunction consistent with fibromyalgia. Hernandez recommended treatment with a pain medication, trigger point injections in the affected areas, and physical therapy.

On cross-examination, Hernandez agreed that the history provided by a patient is crucial. He was not aware that Wallace had two prior accidents that involved injuries to her neck and back. Hernandez said that if these prior accidents had required "significant treatment," they would have been pertinent to his evaluation. He testified that he would not be able to distinguish any disabilities related to the June 1, 2001 accident from any disabilities related to the two previous accidents. Hernandez added that the MRI of Wallace's lumbar spine was normal. The x-rays, to his knowledge, did not show any fractures and there was no evidence of arthritis. Hernandez asserted that his findings on range of motion were "worse" than those found by Ahmad but conceded that his findings were based upon Wallace's subjective responses to his tests.

Arthur T. Canario, M.D., P.A. (Canario) testified for UPS as an expert in orthopedic medicine. Canario wrote in his report that Wallace had "absolutely no evidence of any objective orthopedic pathology and no occupational or other disability." Canario opined that Wallace is employable "on any job and does not require medical care." Canario testified that during his examination, Wallace did not mention the 1997 and 1999 motor vehicle accidents.

Canario also noted that the MRI was normal. He found that Wallace had "a multiplicity of complaints and a sparsity of objective findings." Wallace's complaints were not consistent with his objective findings. Moreover, there was no evidence of any objective orthopedic pathology. Canario stated, to a reasonable degree of medical probability, that Wallace did not suffer any permanent disability as a result of the June 1, 2001 incident or the two previous accidents.

UPS also presented testimony from Sidney E. Bender, M.D. (Bender), an expert in the field of neurology and psychiatry. Bender performed a neurological and psychiatric evaluation of Wallace on June 17, 2004. In his report, Bender concluded that there was no objective evidence of any permanent neurologic or neuropsychiatric disability resulting from the June 1, 2001 incident. Bender testified that Wallace made no effort to cooperate in the examination. Her complaints were not consistent with any organic dysfunction of the central or peripheral nervous systems and her responses to the exam did not seem credible. Bender said that "there was an element of massive exaggeration."

Judge Stephen Tuber placed his decision on the record on August 1, 2005. The judge concluded that Wallace had not presented objective medical evidence of a permanent lumbar or cervical disability within the meaning of N.J.S.A. 34:15-36, as interpreted in Perez v. Pantasote, Inc., 95 N.J. 105 (1984). Wallace also had not proven a causal relationship between the work-related accident or occupational exposure and the alleged disabilities. The judge noted that Ahmad had not been able to causally relate Wallace's neck and back disability to the June 1, 2001 accident. The judge additionally pointed out that Ahmad found no evidence of any disability to Wallace's arms and legs.

Furthermore, the judge noted that while Hernandez had causally related Wallace's condition to the June 1, 2001 accident, that opinion "[was] undermined because [Hernandez] was unaware that [Wallace] had two prior injuries to the same parts of the body, for which she received far more treatment than she received for her work-related accident." The judge also rejected Hernandez's opinion that Wallace is suffering from fibromyalgia and requires further treatment. The judge noted that Bender had opined that Wallace did not have fibromyalgia because she did not exhibit any of the recognized "physical symptoms of that disorder." The judge accepted Bender's opinion, which he found to be "well reasoned."

Judge Tuber amplified his decision in a written opinion filed on August 3, 2005. The judge noted that UPS had argued that Wallace's claims should be rejected because she had submitted forged slips attesting to certain medical treatment, told Ahmad about only one of her prior motor vehicle accidents, and failed to tell Hernandez about either of the two prior accidents. Although the judge found Wallace's lack of candor to be troubling, he did not base his decision on that evidence. Rather, the judge reiterated his finding that Wallace had not presented objective credible evidence to support her claim that she was suffering from a permanent disability caused by the June 1, 2001 accident and occupational exposure. Judgment was entered dismissing the petitions and this appeal followed.

In her pro se brief, Wallace argues that the judge was biased and "very [d]eceitful." Wallace contends that the judge did not appropriately address all issues in this case. She maintains that the judge is not a doctor and does not have the "right" to make decisions as a doctor. Wallace also asserts that the judge and the insurance carrier "planned not to pay benefits"; management and its employees conspired to harm her; and the judge is corrupt and biased against African-Americans.

We are convinced that there is absolutely no merit in these contentions. We affirm substantially for the reasons stated by Judge Tuber in the decision placed on the record on August 1, 2005 and in the written decision filed August 3, 2005. We add the following brief comments.

In her claim petitions, Wallace asserted that she suffers from certain permanent partial disabilities arising from a compensable accident and/or occupational disease which occurred during her employment at UPS. Such claims are governed by N.J.S.A. 34:15-36, which states:

Disability permanent in quality and partial in character means a permanent impairment caused by a compensable accident or compensable occupational disease, based upon demonstrable objective medical evidence, which restricts the functions of the body or of its member organs; included in the criteria which shall be considered shall be whether there has been a lessening to a material degree of an employee's working ability . . . Injuries such as minor lacerations, minor contusions, minor sprains, and scars which do not constitute significant permanent disfigurement, and occupational disease of a minor nature such as mild dermatitis and mild bronchitis shall not constitute permanent disability within the meaning of this definition. Disability permanent in quality and total in character means a physical or neuropsychiatric total permanent impairment caused by a compensable accident or compensable occupational disease, where no fundamental or marked improvement in such condition can be reasonably expected.

[Ibid.]

To establish an entitlement to benefits for a permanent partial disability, a claimant must present "demonstrable objective medical evidence of a functional restriction of the body, its members or organs." Perez, supra, 95 N.J. at 116. In addition, the claimant must show that the permanent disability is "serious enough to merit compensation." Ibid. An injury or disease that is minor is not compensable. Id. at 117-18.

Here, the judge correctly found that Wallace had not carried her burden of proof under Perez. The judge properly determined that Wallace had not proven by objective, credible evidence a permanent orthopedic or neurologic disability resulting from the June 1, 2001 accident or any occupational exposure. As the judge pointed out in his decision on the record August 1, 2005, Wallace's experts Ahmad and Hernandez could not establish a causal relationship between her alleged disabilities and either the June 1, 2001 incident or the alleged occupational exposure.

This was understandable because Wallace had only told Ahmad about one of her two prior accidents and never mentioned either accident to Hernandez. Wallace's failure to disclose these prior accidents in which she sustained injuries similar to those allegedly related to her employment at UPS undermined the opinions of her experts. Moreover, Ahmad testified that Wallace had no disability to her arms and legs. Ahmad also testified that the restrictions related to Wallace's cervical disabilities were mild and the lumbar disabilities were moderate. In addition, the judge properly discounted Hernandez's diagnosis of fibromyalgia, finding that Bender's opinion rejecting that diagnosis was more credible than Hernandez's opinion.

We must defer to the findings of the trial judge when the findings are based on sufficient evidence in the record, considering the evidence in its entirety, "with due regard to the opportunity of the one who heard the witnesses to judge of their credibility." Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)(citing State v. Johnson, 42 N.J. 146, 162 (1964)). See also De Angelo v. Alsan Masons, Inc., 122 N.J. Super. 88, 89-90 (App. Div.), aff'd o.b., 62 N.J. 581 (1973). We are convinced that there is ample evidence in the record to support the judge's findings in this case.

We have considered the other issues raised by Wallace and find them not to be of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

 

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A-0405-05T5

October 12, 2006