HUGH MONTANI v. CITY OF PERTH AMBOY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1316-05T51316-05T5

HUGH MONTANI,

Petitioner-Respondent,

v.

CITY OF PERTH AMBOY,

Respondent-Appellant.

__________________________________

 

Submitted October 16, 2006 - Decided November 8, 2006

Before Judges Seltzer and C.L. Miniman.

On appeal from the State of New Jersey, Department of Labor and Workforce Development and Workers' Compensation, Claim Petition Nos. 2000-36654 and 2000-36623.

James P. Nolan and Associates, attorney for appellant City of Perth Amboy (Fredrick L. Rubenstein, on the brief).

Julius J. Feinson, attorney for respondent Hugh Montani.

PER CURIAM

The employer, respondent City of Perth Amboy, appeals from an award of compensation in favor of petitioner, Hugh Montani, in connection with two work-related accidents, one on June 9, 1999, and the other on October 24, 2000. The judge found that petitioner exhibited a twenty-five percent permanent partial total disability of the left shoulder in connection with the first accident. The judge also found that the petitioner exhibited a fifty percent permanent partial total disability in connection with a re-injury to the shoulder and an injury to the neck following the second accident. The judge gave the City a twenty-five percent credit for the 1999 injury and a seven and one-half percent credit for a preexisting neck injury. Thus, seventeen and one-half percent was awarded for injuries caused by the second accident.

On appeal, the City contends that there was insufficient credible evidence in the record to establish a compensable injury to Montani's cervical spine as a result of the 2000 accident. The City also contends that the total credit of thirty-two and one-half percent for the first accident and the preexisting neck condition was not supported by sufficient credible evidence in the record. No appeal was taken from the award for the 1999 injury.

Montani was employed as a traffic maintenance worker for the City and, on June 9, 1999, tripped and fell on steps. Montani made initial complaints of injuries to his left shoulder, right ring finger, and neck. The injury to Montani's left shoulder required surgical repair with placement of a rod and pins. After the pins were removed, Montani underwent physical therapy for his shoulder, but received no treatment for the alleged neck injuries until September 2001.

On October 24, 2000, Montani again injured his left shoulder while lifting some heavy bags. The following year on April 9, 2001, Montani underwent a second surgery on his left shoulder and then rehabilitated his shoulder at home with his own equipment. Five months after this second surgery, Montani first sought medical treatment for his neck. A herniated disc was diagnosed. On November 9, 2001, Montani underwent neck surgery consisting of an anterior C5-C6 cervical disectomy with right iliac crest bone graph and plating.

The City contended at the compensation hearing that the neck injury was totally unrelated to Montani's employment. Expert testimony was offered by both parties: Dr. David Weiss testified on behalf of Montani, and Dr. Francis DeLuca, on behalf of the City. The experts disagreed on the extent of disability. In addition, Dr. Weiss opined that the neck injury was work-related, whereas Dr. DeLuca opined that it was not related to either accident.

After the record was closed, on September 29, 2005, the judge carefully found the facts on the record, made determinations of credibility, and expressed his conclusions. He found that Dr. Weiss was more credible than Dr. DeLuca and carefully explained why, based on the evidence in the record, he found Dr. DeLuca's opinions lacking in credibility.

The judge found that Montani had suffered work-related injuries to his shoulder on June 9, 1999, and October 24, 2000. He found that the June 9, 1999, dislocation injury to Montani's ring finger was work-related, but that there was no disability as a result of this injury. Finally, he found that Montani had suffered a work-related injury to his cervical spine on October 24, 2000, but that Montani failed to meet his burden to prove he had suffered an earlier work-related injury to his neck on June 9, 1999.

On appeal, the City contends, in essence, that the opinions of Dr. Weiss were not credible for a number of reasons. The City also argues that the amount of the credit given for the preexisting neck injury "is woefully inadequate in light of the testimony of Dr. Weiss." Finally, the City contends that the judge should have specified on the record what portion of the additional twenty-five percent permanent partial total disability for the 2000 accident was allocated to the aggravation of the preexisting neck condition compared to the second injury to the shoulder.

The standard for appellate review of a determination of a judge of compensation is equivalent to that used for review of any nonjury case. Brock v. Public Serv. Elec. & Gas Co., 149 N.J. 378, 383 (1997) (citation omitted). We may not substitute our own fact-finding for that of the judge of compensation, even if we are inclined to do so. Lombardo v. Revlon, Inc., 328 N.J. Super. 484, 488 (App. Div. 2000). Rather, we will only decide "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record,' considering 'the proofs as a whole[.]'" Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (citation omitted). This court must give "due regard to the opportunity of the one who heard the witnesses to judge their credibility[,]" and, where, as here, an agency's expertise is a factor, to that expertise. Ibid.

After carefully reviewing the record in light of the written arguments advanced by the parties, we conclude that the issues presented by the City are without sufficient merit to warrant extensive discussion in this opinion. R. 2:11-3(e)(1)(D) and (E). We affirm substantially for the reasons expressed by the judge of compensation in his oral opinion delivered on September 29, 2005. The findings and conclusions of the judge are supported by substantial credible evidence in the record. See Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). In doing so we especially note that we must defer to the trial judge on issues of "witness credibility, 'demeanor', 'feel of the case', or other criteria which are not transmitted by the written record." Dolson v. Anastasia, 55 N.J. 2, 7 (1969).

Affirmed.

 

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A-1316-05T5

November 8, 2006