STEVEN PAULSON v. KNOBLE CONSTRUCTION CO., INC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2304-04T32304-04T3

STEVEN PAULSON,

Petitioner-Respondent,

v.

KNOBLE CONSTRUCTION CO., INC.,

Respondent-Appellant.

________________________________________________________________

 

Argued April 25, 2006 - Decided May 17, 2006

Before Judges Collester and Lisa.

On appeal from a Final Judgment of the Division of Workers' Compensation, 2001-24811.

Francis T. Giuliano argued the cause for appellant.

Kenneth M. Kaplan argued the cause for respondent (Fontanella Benevento Galluccio Smith & Rapuano, attorneys; Mr. Kaplan, on the brief).

PER CURIAM

In this workers' compensation case, Knoble Construction Co., Inc., appeals from a judgment awarding petitioner, Steven Paulson, 12% permanent partial total disability. Appellant argues on appeal that the judgment is not supported by sufficient credible evidence in the record considered as a whole and should be reversed.

We have carefully reviewed the entire record and the arguments advanced on appeal. The standard by which we review factual findings by a judge of compensation is very limited. We determine "'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." Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). Applying that standard and giving enhanced deference to the expertise of the judge of compensation in evaluating expert and non-expert testimony as it relates to the existence and degree of residual effects of a workplace injury, we are fully satisfied that the judgment is well supported by the record evidence, and we have no occasion to interfere. The arguments raised by appellant on appeal lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(D), (E). We add these comments.

Petitioner worked for appellant's cemetery maintenance company for eighteen years. The company provides grave digging and maintenance services for numerous cemeteries. Petitioner was a foreman and traveled from worksite to worksite with a crew of laborers. In addition to his supervisory role, petitioner performed some manual labor.

On June 29, 2001, while on the job, petitioner was driving a pick-up truck owned by the company when he was struck in the rear by another vehicle. He suffered injuries to his neck, arms and back and lost a tooth. He did not miss any compensable time from work. He saw the company-approved physician the day after the accident. For the next three months, he underwent a course of active medical treatment by company-approved providers. Treatment included physical therapy, traction, chiropractic adjustments, and orthopedic and neurological evaluations. Petitioner also saw a dentist on three occasions for treatment related to the lost tooth.

Prior to the accident, petitioner obtained a part-time job with a school district providing janitorial services five hours per day. This involved light-duty work, such as changing light bulbs and doorknobs and occasionally mopping floors. Thus, before and after the accident, petitioner was working eight hours per day at his full-time job for appellant and an additional five hours per day at lighter janitorial work.

Appellant terminated petitioner's employment on March 31, 2004. According to petitioner, he was unable to perform his duties for appellant in the same manner after the accident as he had previously. He required more assistance from co-workers to perform manual tasks, and he performed less manual work than before the accident. He was no longer able to perform some of the tasks which he had previously performed because of severe and constant back pain.

Appellant presented the testimony of its vice-president, Thomas Barrow, who stated that petitioner was terminated because of a general cutback in the workforce resulting from loss of contracts. Barrow contended that petitioner was able to perform his job after the accident in the same manner he performed it previously. However, Barrow did not go to the worksites and did not personally observe petitioner's work activities.

Petitioner also described limitations on his ordinary life activities. He previously rode his bicycle daily, but could no longer ride it at all. He reduced the amount of golf he played. His ability to perform housework was significantly impaired. He experienced constant back pain, and took pain medication only when the pain became particularly severe. His back pain was affected by weather changes. Petitioner continued working at his part-time janitorial job after March 31, 2004.

Each party presented the testimony of a medical expert, and the written reports of each expert were admitted in evidence. Plaintiff's expert, Dr. Arthur Tiger, evaluated petitioner on November 12, 2002. He observed a significant loss of the usual lumbar lordotic curvature and moderate spasm in the paraspinal muscles of the lower lumbar region. He also observed trigger point tenderness on both sides of the lower lumbar spine, tenderness to palpation over the L3, L4 and L5 vertebral spinous processes, and tenderness to palpation over both SI joints. He also noted that petitioner experienced pain on the extremes of motion of the lumbar spine. Tiger concluded that as a result of the June 29, 2001 accident petitioner suffered residuals of a chronic lumbosacral strain syndrome with chronic myofascitis with aggravation of pre-existing degenerative changes. Tiger estimated petitioner's orthopedic disability at 22% of partial total.

Appellant's expert, Dr. Mark E. Maletsky, evaluated petitioner on February 8, 2002. Maletsky had also conducted an orthopedic evaluation of petitioner on one occasion during the three-month course of treatment immediately following the accident. Maletsky did not observe swelling or spasm in the lower back, nor did he note any tenderness with palpation. Maletsky also observed a normal reversal of the lumbar lordosis with no pain. Maletsky observed some mild left-sided low back pain during some maneuvers. Maletsky observed that petitioner had some residual complaints referable to his back and, based on history, those complaints were attributed to the injuries sustained on June 29, 2001. Maletsky opined that petitioner had reached maximum medical benefit of treatment. He found no objective evidence of any residual permanent disability from an orthopaedic standpoint and opined that petitioner was capable of employment without restrictions.

Petitioner's treatment and physical therapy records were also admitted into evidence.

The judge of compensation found petitioner a very credible witness and found Barrow's testimony "self-serving and contradictory" and "less than candid." Accordingly, the judge of compensation accepted plaintiff's testimony regarding his limitations on the ability to work and engage in his ordinary life activities post-accident as compared to pre-accident. He also credited petitioner's testimony that he could no longer perform the work for appellant for which he had previously been hired. The judge of compensation found that plaintiff's ability to work and earn was significantly reduced, as were his ordinary life pursuits.

The judge of compensation also found Tiger's testimony more credible and persuasive than Maletsky's. Relying upon Tiger's observation of loss of the usual lumbar curvature and spasm, the judge of compensation found that the "demonstrable objective medical evidence standard" was satisfied. See N.J.S.A. 34:15-36. Applying the correct legal standards for determining whether a compensable permanent disability was established, see ibid.; Colon v. Coordinated Transp., Inc., 141 N.J. 1 (1995); Perez v. Pantasote, Inc., 95 N.J. 105 (1984), the judge of compensation determined that petitioner carried his burden of establishing such a disability.

Noting that judges are "not bound by the medical estimates offered by one or all of the physicians," see Lightner v. Cohn, 76 N.J. Super. 461, 465 (App. Div.), certif. denied, 38 N.J. 611 (1962), the judge of compensation used the estimates of disability offered by the physicians as a guide, but formulated his own determination as to the degree of disability suffered by petitioner. He set the disability at 12% of total, including the loss of the tooth, which carries with it four weeks of compensation.

On appeal, appellant goes to some lengths in parsing the testimony of the various witnesses and information contained in medical records in an effort to illustrate that the findings by the judge of compensation are not supported by the record. We are not persuaded. Our command is to evaluate the record as a whole. There was much conflicting testimony, and the testimony of the various witnesses was subject to interpretation and credibility assessment. We reject appellant's contentions that the evidence cannot support the findings that petitioner did not sustain a material lessening of his working ability and substantial impairment of his ability to carry on his ordinary life pursuits, or that petitioner's residual injury was not based upon demonstrable objective medical evidence. We also reject appellant's contention that the record as a whole establishes at best nothing more than a minor sprain, which is not compensable under N.J.S.A. 34:15-36.

In reaching our conclusion, we are confident that the record contains sufficient credible evidence to support each of the critical findings unpinning the judgment, and we render the enhanced deference that is due to a judge of compensation with particularized experience and expertise in matters such as this.

 
Affirmed.

(continued)

(continued)

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A-2304-04T3

May 17, 2006