RICHARD RUSSO v. COUNTY OF MONMOUTH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1429-05T1

RICHARD RUSSO,

Petitioner-Appellant,

v.

COUNTY OF MONMOUTH,

Respondent-Respondent.

_________________________________________________

 

Submitted September 20, 2006 - Decided October 16, 2006

Before Judges Collester and Baxter.

On appeal from the New Jersey Department

of Labor, Division of Workers'

Compensation, 2001-19970.

Kenneth E. Joel, attorney for appellant.

Thomas J. Catley, attorney for respondent.

PER CURIAM

Richard Russo appeals from the denial of workers' compensation benefits. His claim was rejected based on a finding that he had failed to sustain his burden of proving causality. The judge's detailed findings are thorough and are well-supported by the credible evidence before him. We affirm.

Petitioner was employed by Monmouth County as a senior maintenance worker in the Public Works Department. He testified that he injured his back at work while lifting heavy boxes on April 18, 2001 and again injured his back at work while moving furniture a few weeks later on May 10th. Petitioner treated the symptoms from the April 18th incident with hot showers and Tylenol. The pain continued on and off until May 10th, but did not cause him to lose any time from work. After the May 10, 2001 injury at work, petitioner was able to come to work the next day, and was able to complete all of his work that day even though he experienced some back pain. The discomfort associated with the May 10, 2001 injury remained tolerable until Monday, May 15, 2001, when petitioner was driving to work. He described that pain, stating that "while I was driving to work..., I had terrible excruciating pain shooting in my leg.... It started like in my buttocks and just went right down the whole leg, like a burning, fire pain....and it just kept getting worse." The pain was so severe that petitioner was out of work for 2 weeks, confined to bed, and Oxycontin and Percocet were prescribed. Eventually epidural injections were administered. After a diagnosis of a herniated disc, petitioner underwent a lumbar laminectomy on September 24, 2001.

In denying petitioner's claim and dismissing the petition, the judge of compensation found that the herniated disc was not the result of moving furniture at work on May 10, 2001, but rather was the result of heavy work that petitioner had done at home over the weekend of May 12 and May 13, 2001. At trial, petitioner denied doing "heavy work at home" over that weekend and asserted that the doctors who said otherwise were mistaken.

In giving his reasons for dismissing petitioner's amended petition, Judge Shteir explained why he found the County's medical expert to be more credible than petitioner's expert. Specifically, Judge Shteir observed that the County's expert, Dr. Ian Fries was a board certified orthopedic surgeon, whereas petitioner's expert was an osteopath. The court cited that difference in credentials as a justification for giving greater weight to Fries' testimony, and for accepting Fries' conclusion that it was highly unlikely that if moving furniture at work on a Thursday had been the cause of the herniated disc, it would have taken four days for the pain from that herniation to manifest itself. In so finding, the court rejected petitioner's expert's opinion that a four day delay in the emergence of symptoms was of no clinical significance.

Of central importance to the court's conclusion that causality had not been established was the testimony of two different doctors, both of whom recalled petitioner telling them that he had done "heavy work at home over the weekend." One was petitioner's own treating physician Brian Incremona, M.D., and the other was Dr. Fries. In arriving at its conclusion, the court specifically noted that when petitioner went to Dr. Incremona for treatment shortly after experiencing the symptoms on May 14, 2001, Dr. Incremona had dictated his report in front of petitioner, or, at the very latest, at the end of the day. Dr. Incremona was confident that the portion of his report in which he referenced the "heavy work at home" came from information supplied by petitioner during that office visit.

Moreover, Dr. Fries testified that when he examined petitioner at the request of Monmouth County, petitioner told him the same thing. Additionally, Dr. Fries dictated his expert report in front of him. When petitioner heard Dr. Fries dictate the history of heavy lifting at home over the weekend, petitioner did not contradict Dr. Fries or interrupt him.

The court in its ruling indicated that it relied heavily on testimony of both physicians in finding that the injury and pain that petitioner suffered in May, 2001 resulted from heavy work he had done at home over the weekend rather than from lifting furniture at work on May 10, 2001.

The sole contested issue in this case was causality. Specifically, petitioner was required to establish that the injury for which compensation was sought was work-connected. Dudley v. Victor Lynn Lines, Inc., 32 N.J. 479, 491 (1960).

Judge Shteir made detailed findings of fact and conclusions of law in concluding that the herniated disc was not work-related. His findings were based on substantial credible evidence in the record. In workers' compensation cases, the scope of appellate 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 their credibility. Close v. Kordulak Bros., 44 N.J. 589 (1965). Deference must be accorded the factual findings and legal determinations made by the judge of compensation unless they are "manifestly unsupported by or inconsistent with competent, relevant and reasonably credible evidence as to offend the interests of justice." Perez v. Monmouth Cable Vision, 278 N.J. Super. 275, 282 (App. Div. 1994).

 
Giving his opinion the deference to which it is entitled, we affirm.

If Thursday was May 10, 2001, Monday would have been May 14th, rather than May 15th as the transcript reflects. Because Russo was certain that the pain became severe on a Monday, we believe the correct day would be Monday, May 14, 2001.

(continued)

(continued)

5

A-1429-05T1

 

October 16, 2006