RICHARD UTTER v. ALLIED SIGNAL, INC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2449-04T32449-04T3

RICHARD UTTER,

Petitioner-Respondent,

v.

ALLIED SIGNAL, INC.,

Respondent-Appellant.

_______________________________________________________________

 

Submitted October 26, 2005 - Decided January 30, 2006

Before Judges Wecker and Graves.

On appeal from a Final Decision of the New Jersey

Department of Labor, Division of Workers'

Compensation, Claim Petition Nos. 2000-20410 and

2001-6334.

A. Joseph Guarino, attorney for appellant.

Wilentz, Goldman & Spitzer, attorneys for

petitioner-respondent (Roberto Benites, on

the brief).

PER CURIAM

This is a Workers' Compensation appeal. The case was tried on January 7, 2004, February 18, 2004, April 12, 2004, June 22, 2004, and September 14, 2004. On December 8, 2004, Judge Lake rendered an oral decision, concluding that petitioner Richard Utter was totally and permanently disabled as a result of injuries sustained while working as a maintenance mechanic for respondent Allied Signal, Inc. (Allied).

On appeal, Allied presents the following arguments:

POINT I

DR. SACHS' AND DR. CRAIN'S OPINION TESTIMONY SHOULD BE [STRICKEN] AND NOT ALLOWED BECAUSE THEY WERE NET OPINIONS.

POINT II

DEFENDANT IS ENTITLED TO A DISMISSAL OF THE CLAIM PETITION BECAUSE THE VERDICT IN THIS CASE WAS AGAINST THE WEIGHT OF THE EVIDENCE.

POINT III

THE JUDGMENT ENTERED IN THIS CASE SHOULD BE REVERSED DUE TO THE FACT THAT THERE WAS INSUFFICIENT OBJECTIVE MEDICAL EVIDENCE BELOW TO SUBSTANTIATE THE COMPENSATION JUDGE'S RULING. THE PRIMARY REQUIREMENT IS THAT THE PETITIONER BELOW MUST CARRY THE BURDEN OF PROOF AND PRESENT SUFFICIENT MEDICAL EVIDENCE TO SUPPORT A CLAIM FOR COMPENSATION.

After carefully reviewing the record, the briefs, and the applicable law, we are satisfied that the arguments raised by Allied are without sufficient merit to warrant extended discussion in a written opinion. See R. 2:11-3(e)(1)(D), (E). Because Judge Lake's findings and conclusions are amply supported by substantial credible evidence in the record, we affirm with only the following comments.

When he was fifty years old, Richard Utter was involved in two work-related accidents. On May 2, 1999, he struck the front of his head while exiting a metalizer machine. The impact of striking his head on the machine caused Utter to drop to his knees, he saw stars, and it felt like his head was bleeding. Utter felt disoriented, but he did not seek medical treatment. He explained: "I'm a maintenance mechanic . . . you get bumps and bangs every day."

Utter was not scheduled to work again until May 9, 1999. During the intervening week, his wife, Linda, observed her husband vomit, and she confirmed that he complained of headaches and excessive sensitivity to noise. On May 9, 1999, Utter returned to work at Allied. While on break, he went outside to the parking lot to smoke a cigarette. He lit the cigarette and does not remember what happened thereafter until he woke up at the Rahway Hospital. While a patient at Rahway Hospital, Utter came under the care of Dr. Stephen Sachs. Dr. Sachs has been a treating neurologist for approximately twenty-five years, and he has been Utter's treating physician since May 12, 1999.

When he testified on April 12, 2004, Dr. Sachs provided the following diagnoses to a reasonable degree of medical certainty:

[Richard Utter] has a post-traumatic seizure disorder. He has a post-traumatic brain injury syndrome which includes, among other things, personality change, headache, sexual dysfunction, imbalance, memory loss, poor coordination, and he has post-traumatic loss of olfaction or sense of smell, which is not an uncommon occurrence with [a] head injury.

Dr. Sachs concluded that Utter has been permanently and totally disabled because "he is unable to concentrate and pay attention to things that he needs to do in any kind of a job and . . . he continues to be at risk for having the seizures." According to Dr. Sachs, "seizure activity or abnormalities consistent with seizure activity is very significant in Mr. Utter":

In Mr. Utter's case we have three EEG's, all of which demonstrated abnormal electrical activity consistent with seizures. That suggests that and strongly implies that his brain is always or almost always firing off abnormal signals, and those abnormal signals interfere with his ability to think, to concentrate and to make judgments appropriately.

Judge Lake found that Dr. Sachs was a "very credible" witness, and that Dr. Sachs's testimony was entitled to more weight because "he is the treating doctor." In addition, Judge Lake found that Dr. Sachs's testimony was corroborated by Dr. Crain:

Dr. Crain, a workers' compensation type examining physician examined petitioner. He came to court to testify. He found, like Dr. Sachs, that Mr. Utter had a May 2, 1999 accident when he hit his head on a metalizer, saw stars and fell to his knees, and later on passed out. He went over his complaints. He found Mr. Utter misunderstood a lot of things, has difficulty writing things down, lost his motivation, has seizures, is taking heavy duty seizure medication. In his opinion Mr. Utter was totally and permanently disabled. Dr. Crain indicated he could not work.

The standard of appellate review in a Workers' Compensation case is the same standard applicable to any other non-jury case. Brock v. Pub. Serv. Elec. & Gas Co., 149 N.J. 378, 383 (1997). The scope of our 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 . . . ." Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (citation and internal quotation marks omitted).

 
The Workers' Compensation judge had the opportunity to see and to hear the witnesses, and he was able to assess their demeanor and their credibility. Judge Lake found that the testimony of Utter, his wife, and his expert witnesses, was consistent, credible, and reliable. The record overwhelmingly supports the judge's decision.

Affirmed.

(continued)

(continued)

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A-2449-04T3

January 30, 2006