ANGELA PANOS v. LINENS 'N THINGS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0552-04T50552-04T5

ANGELA PANOS,

Petitioner-Respondent,

v.

LINENS 'N THINGS,

Respondent-Appellant.

________________________________

 

Argued: May 9, 2006 - Decided June 5, 2006

Before Judges Axelrad and Sabatino.

On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, 97-40328.

Matthew Gitterman argued the cause for appellant (Biancamano & DiStefano, attorneys; Mr. Gitterman, on the brief).

Dominick M. Manco argued the cause for respondent (Schibell & Mennie, attorneys; Richard D. Schibell, of counsel; Thomas Martin, on the brief).

PER CURIAM

Petitioner Angela Panos, a part-time cashier at respondent Linens 'N Things, was injured on October 16, 1997, when she fell off a ten-foot ladder at work and shattered her left ankle. The x-rays revealed a "comminuted pylon fracture of the left distal tibia with varus deformity, comminuted interarticular extension with comminution and shattered left ankle joint as well as three part fibular fracture." The thirty-seven-year old received immediate extensive surgery, which included the insertion of an external fixator device "with open mini reduction and open bone grafting using bank bone to the left ankle under C arm control." She was discharged from the hospital three days later. Four months later petitioner underwent another surgery for removal of the external fixator. She was then placed in a short leg cast for four months and underwent physical therapy for approximately eight to ten months. In August 1998, petitioner underwent a procedure in which a screwed-on metal plate was placed in her ankle and she had interior bone grafting, after which she was placed in a cast for an additional four months. Petitioner last received treatment for her ankle in May 2001.

On November 20, 1997, Panos filed a petition for workers' compensation benefits, alleging a permanent injury to her leg. Hearings were held on April 7 and 28, May 19, and June 9 and 30, 2004. Petitioner testified, along with Dr. Michael Walsh, an orthopedic surgeon, and Dr. Lawrence Eisenstein, a neuro-psychiatrist. Respondent presented the testimony of Dr. Robert Morrison, an orthopedic surgeon, and Dr. William B. Head, Jr., a psychiatrist and neurologist. Petitioner testified as to her life since the accident, describing how she gained twenty-five pounds, walks with limp and requires the assistance of a cane, can only stand for ten to fifteen minutes before she feels pain in her leg, and can no longer go to the gym or bowl or accomplish simple household chores with ease because of the pain in her leg and back. She also testified that she feels insecure about the appearance of her leg. Petitioner explained the type of job she held and the hours she had worked at Linens 'N Things, and she testified that she had been unable to return to work because of the injuries she had sustained in the accident. Dr. Walsh testified that petitioner's leg had lost muscle strength and that she had signs of atrophy and weakness in her thigh muscle and quadriceps. He also noted that petitioner had back spasms, tenderness and limited range of motion as a result of the altered gait from being immobilized in casts and dependent on walkers following the multiple surgeries to her ankle after the accident. He opined that the condition to petitioner's leg and back was permanent and progressive.

Dr. Eisenstein described petitioner's neurological injury to her knee resulting from the fall, which he opined was permanent based upon an EMG. He further diagnosed petitioner as suffering from anxious depression based on his interview with her and his observation of her crying spells, effects of sleepiness and other physical manifestations. Dr. Eisenstein was of the opinion that petitioner had a permanent psychiatric injury as a result of the accident even though she had been treated previously for some emotional problems.

Dr. Morrison testified that petitioner had a plate in her ankle, lacked range of motion in her left ankle, had a scar over the area of the plate and walked with a left stiff leg limp which impacted her gait. He conveyed petitioner's complaints of numbness of her left foot and decreased sensation in her left leg, as well as tenderness over the area of the plate. The defense expert conceded that petitioner suffered from a permanent condition to her lower leg, categorizing it as a 12% disability of the left foot. Although Dr. Morrison observed atrophy of petitioner's lower left calf as a result of the injury and long immobility, he did not find any atrophy in the muscles of her thigh, and thus was of the opinion that the disability had not extended to the petitioner's leg above the knee.

Dr. Head had performed a neurological evaluation of petitioner on September 29, 2003. He explained why he found no evidence of a permanent neurological disability in petitioner's foot or ankle such that it would impair her ability to work as a cashier or in any other capacity for which she was trained. To the extent that petitioner had any disability at all, Dr. Head attributed it to the residuals of the orthopedic injuries she had sustained. Dr. Head did not perform a separate psychiatric evaluation because it was not scheduled until June 2004, shortly before he was to testify, and petitioner was unable to attend, having been provided only four days notice. In recording his observations of petitioner's demeanor at the time of his initial examination, Dr. Head indicated that he saw no evidence that she was clinically anxious or clinically depressed. He acknowledged on cross-examination, however, that petitioner's complaints to Dr. Eisenstein regarding sleep problems, depression, frustration, crying spells, irritability and decreased tolerance would be consistent with someone who is depressed.

Following trial, the Judge of Compensation found that petitioner had a 35% partial total disability from the work-related accident, of which he allocated 25% to her left leg, 5% to orthopedic injuries in her back and 5% to neuro-psychiatric harm. He awarded petitioner $182 per week for 210 weeks, totaling $38,220 plus costs, memorialized in an order dated August 27, 2004.

The employer Linens 'N Things asserts the following arguments on appeal:

POINT I

THE JUDGE OF COMPENSATION ERRED IN RECONSTRUCTING PETITIONER'S WAGES IN THIS MATTER.

A. The Judge of Compensation Misapplied the Supreme Court's Decision in Katsoris.

B. The Judge of Compensation Incorrectly Calculated Petitioner's Benefits on the Basis of a Forty-hour, full-time Work Week Instead of the Twenty-hour, Full-Time work Week To Which Petitioner Testified.

POINT II

DR. EISENSTEIN'S TESTIMONY WAS INCOMPETENT AS A MATTER OF LAW TO BE THE BASIS FOR A FINDING OF A PERMANENT PARTIAL PSYCHIATRIC DISABILITY IN PETITIONER. ACCORDINGLY, THAT PORTION OF THE JUDGMENT RENDERED IN PETITIONER'S FAVOR SHOULD BE VACATED.

POINT III

RESPONDENT WAS ENTITLED TO A CREDIT UNDER ABDULLAH V. S.B. THOMAS, INC., 190 N.J. SUPER. 26 (APP. DIV. 1983) FOR ANY PSYCHIATRIC AWARD RENDERED TO PETITIONER.

POINT IV

RESPONDENT WAS DEPRIVED OF ITS RIGHT TO DUE PROCESS AS A RESULT OF THE JUDGE OF COMPENSATION'S FAILURE TO PERMIT IT TO OBTAIN A PSYCHIATRIC EXAMINATION OF PETITIONER PRIOR TO THE TESTIMONY OF DR. HEAD.

POINT V

THE JUDGE OF COMPENSATION SHOULD HAVE GRANTED RESPONDENT'S MOTION TO DISMISS PETITIONER'S CLAIM PETITION OR, IN THE ALTERNATIVE, SHOULD HAVE PRECLUDED PETITIONER FROM PURSUING A PSYCHIATRIC CLAIM DUE TO HER FAILURE TO ATTEND THE PSYCHIATRIC EXAMINATION SCHEDULED WITH DR. HEAD.

POINT VI

THE JUDGE OF COMPENSATION ERRED IN ASSESSING PETITIONER'S DISABILITY IN TERMS OF PARTIAL TOTAL DISABILITY WHEN PETITIONER ONLY PROVED THE EXISTENCE OF A DISABILITY IN HER LEFT FOOT.

In Sager v. O.A. Peterson Constr. Co., 182 N.J. 156, 163-64 (2004), the New Jersey Supreme Court set forth the standard of review applicable to workers' compensation decisions. The court held such 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 and, in the case of agency review, with due regard also to the agency's expertise where such expertise is a pertinent factor.

An appellate court may not engage in an independent assessment of the evidence as if it were the court of first instance. Findings of fact made by a trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence. Accordingly, if in reviewing an agency decision, an appellate court finds sufficient credible evidence in the record to support the agency's conclusions, that court must uphold those findings, even if the court believes that it would have reached a different result.

[Sager, supra, 182 N.J. at 163-64 (citations and internal quotations omitted)].

Considering our limited standard of review and deference to the trial judge's "feel of the case" and ability to assess the credibility and credit the testimony of the experts, we are satisfied there is sufficient credible evidence in the record to support the trial court's findings. We are also satisfied the judge appropriately applied the applicable law in calculating petitioner's benefits, assessing the psychiatric award, and in assessing petitioner's disability. He did not abuse his discretion in declining to require petitioner to submit to a last-minute psychiatric examination prior to the testimony of Dr. Head or declining to preclude her from pursuing her psychiatric claim. We affirm substantially for the reasons articulated by Judge Apy in his oral rulings and decision. R. 2:11-3(e)(A), (E). We add the following brief comments.

Petitioner testified that she was working an average of eighteen hours a week at Linens 'N Things for about a year before her accident. She further testified that other employees who worked twenty or more hours a week were considered to be "full-time" and, unlike her, received health coverage and other benefits. Respondent presented no testimony as to how many hours the "full-time" employees typically worked in that store or for similar work in the marketplace. We discern no abuse of discretion by Judge Apy utilizing a forty-hour week, which is customary for many full-time workers in the United States, in reconstructing petitioner's wages. The judge recognized that doing so would produce a "somewhat anomalous result because the petitioner will receive more on a weekly basis than she was receiving while she was actually working." However, as he explained, such a determination was in accordance with the Court's holding in Katsoris v. South Jersey Publ'g Co., 131 N.J. 535 (1993). In Katsoris, which involved the calculation of workers' compensation benefits for a part-time employee who suffered disabilities that are permanent in nature, the Court set forth the test for determining whether such an employee was entitled to an award based on the reconstruction of a full-time work week. The court held that the critical inquiry was whether the petitioner "demonstrated that her injuries, which disable her from engaging in part-time employment, have disabled or will disable her with respect to her earning capacity in contemporary or future full-time employment." Id. at 548. Judge Apy found petitioner suffered a permanent partial disability, finding her testimony regarding her pain, limitations and inability to work to be "credible, straightforward and consistent." He further credited Dr. Walsh's diagnosis of permanent and progressive injury to her left ankle, leg and back, and Dr. Eisenstein's diagnosis, one which we find comports with Saunderlin v. E.I. DuPont Co., 102 N.J. 402, 404-05 (1986), that she suffered from anxious depression. There was ample basis to support the court's finding that petitioner suffered a permanent partial disability, that the disability compromised her future earning capacity, and that she was entitled to have her benefits calculated using a forty-hour work week. We discern no error, nor do we anticipate confusion, resulting from the 25% unallocated award to the multiple body parts of leg/foot in the judgment. We are confident, if the need arises, counsel can clarify the award by consulting the statutory tables.

Affirmed.

 

Although the original claim petition did not include a psychiatric injury component, respondent was aware of both petitioner's pre-existing psychiatric treatment and her expert's opinion that this accident caused psychiatric harm as early as September 2003.

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A-0552-04T5

June 5, 2006