WILLA LEGGETT v. NEWARK BOARD OF EDUCATION, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A--04T22468-04T2

WILLA LEGGETT,

Petitioner-Respondent,

v.

NEWARK BOARD OF EDUCATION,

Respondent-Appellant.

and

SECOND INJURY FUND,

Respondent.

__________________________________

 

Submitted February 27, 2006 - Decided April 18, 2006

Before Judges Parrillo and Gilroy.

On appeal from a Final Decision of the Division of Workers' Compensation.

Lazarus, Billek & Yesalonis, attorneys (Brian E. Yesalonis, on the brief).

Kohn, Needle & Silverman, attorneys for respondent (Irving Silverman, on the brief).

PER CURIAM

This is a workers' compensation action. Respondent, Newark Public Board of Education (Board), appeals from the order of judgment entered in the Division of Workers' Compensation, Department of Labor, on December 6, 2004, requiring it to pay partial permanent disability benefits to petitioner, Willa Leggett, and dismissing the Second Injury Fund as a party. We affirm in part; and reverse and remand in part.

Petitioner was employed by the Board for twenty-three years as a bus attendant where she assisted handicapped children on and off school buses. On September 19, 1995, while exiting a bus, petitioner slipped and fell down the stairs, landing on her hands and knees. She reported the accident to her supervisor, indicating that she sustained injuries to her "foot, knees and back." She later complained of pain in her lower back, right shoulder, knees, and hands. She ceased working on December 19, 1995.

On October 15, 1996, petitioner filed her claim petition alleging "injury to back-orthopedic in nature." On April 19, 2000, petitioner filed her claim petition against the Second Injury Fund (Fund), which petitioner later withdrew on June 20, 2000. On June 27, 2001, the Board filed a motion to rejoin the Fund as a party to the action, and the motion was granted. A trial was held on various dates between April 27, 2001, and September 13, 2004. On December 6, 2004, the Compensation Judge rendered his oral decision determining that petitioner was entitled to permanent partial disability benefits from the Board, and entered a compensation award against the Board for 503.75 weeks at $417.58 per week for a total award of $210,355.92, and dismissed the claim petition against the Fund. A confirmatory order of judgment was entered the same date.

Prior to the September 1995 accident, petitioner had suffered other work-related accidents. In 1990, petitioner filed a claim petition for injuries sustained in an October 1988, accident, alleging injuries to her "back, head, neck, orthopedic, neurologic, neuropsychiatric in nature." The claim was settled in November 1993, by a Section 20 award of $1,250. Petitioner also reported nine other work-related minor injuries between 1985 and 1994.

Following the accident in September 1995, petitioner received treatment and therapy for her back, hands, and knees at the Franklin Medical Group. She was subsequently referred to Dr. James Lee, an orthopedist. An MRI was performed on July 18, 1996, which disclosed "left lateral disc herniation at the L3/4 level with probable encroachment of the left L3 root within the neural foramina." The MRI also disclosed "osteoarthritic degenerative disease" and "generalized disc degenerative disease from L3-S1." A second MRI conducted on October 18, 1996, confirmed the disc herniation at L3-4 level and degenerative disc disease, and also disclosed bulging "at L4-5 with narrowing of the lateral recesses and stenosis of the neural foramina;" "disc space narrowing and bulging at L5-S1 with a small central herniation causing narrowing of the lateral recesses and neural foramina." On October 21, 1996, petitioner underwent a lumbar laminectomy of L3 and L4 and a decompression at L3. Following subsequent MRI's, petitioner underwent surgeries on her right shoulder, left knee, and also underwent a left hand carpal tunnel release. During the course of treatment, petitioner was prescribed various pain medications, and a wheelchair and cane due to her inability to walk or stand for extended periods.

At trial, petitioner presented expert testimony of Dr. Edwin Turner, a certified physician of the American Board of Preventive and Occupational Medicine, and Dr. Bruce Johnson, a neuropsychiatrist. Dr. Turner testified that he examined petitioner on September 20, 1999. Based upon petitioner's medical history and his examination, Dr. Turner diagnosed plaintiff with:

Status post[-]traumatic injury to the lumbosacral spine in the post[-]operative state for lumbar laminectomy of L3 and L4, decompression at L3, trimming of the facet joint, partial removal of the left facet joint at L3-4, foraminotomy L3-4, exploration of the L4 nerve root, L3 nerve root, removing the ligaments flavum using microsurgical explosion of L3-4 disk, . . . excision of . . . large extruded fragments above and under the L3 nerve root behind the body of L3. The disk space at L3-4 is in using microsurgical techniques freeing the L3 and L4 nerve roots[,] leaving residuals of myositis, fibromyositis, significant neurosensory changes and a "failed back syndrome" plus status post-traumatic injury to the right shoulder, tear of the rotator cuff, post[-]operative state for rotator cuff repair[,] leaving residual of scarification, synovitis, loss of range of motion, power and function and deformity, plus status post-traumatic injury to the left knee and post[-]operative state for arthroscopy, chondroplasty, synovectomy and removal of the medial plica and the residual of synovitis, scarification and a significantly altered gait.

Dr. Turner opined that petitioner was totally disabled, and broke down the disability to 60% of total for the back, 45% of total for the right shoulder, and 45% of total for the left leg. Acknowledging that she had several injuries to her lower back prior to the accident, he stated: "It [is] an overall disability with whatever. This was certainly aggravating whatever preexisting conditions that may have been there. She was working at the time this happened. She is certainly not able to do so afterwards." Although he found that petitioner suffered from bilateral carpal tunnel syndrome, he did not include that in his disability assessment "because those were not necessarily part of . . . this [accident]."

Dr. Johnson also examined petitioner on September 20, 1999, and received the same history and complaints as Dr. Turner. Dr. Johnson diagnosed petitioner with "neuropathy of the back at L4[,] radiculopathy primarily on the left[,] a right super clavicular nerve neuropathy of the right shoulder post[-operative,] a peroneal nerve neuropathy of the left knee[,] and bilateral carpal tunnel with a major depression." He opined that she was "totally disabled from all her causes." While he acknowledged that petitioner suffered from a preexisting back injury, he stated that he would not be able to break the back disability down between the preexisting injury and the September 1995, accident, but "I do [not] believe that she had any prior surgery. That she was working prior to this injury[,] so I would say primarily all of [the] diagnoses that I made were related to the September 19, 1995 fall." Although he found evidence of bilateral carpal tunnel syndrome, he did not relate the findings to this accident.

The Board also produced testimony from an orthopedist and a neuropsychiatrist, Drs. Francis M. DeLuca and Charles Effron, respectively. Dr. DeLuca examined petitioner on April 29, 2003. He testified that his review of the MRI report of July 1996 disclosed that petitioner had "[m]ulti-level degenerative changes, left[-]sided herniated [disc at] L3, 4 level, bulging from L4, 3-S1." He opined that the degenerative changes were unrelated to the 1995 accident. His examination of petitioner's lower back disclosed a normal curvature with "mild restriction of forward flexion," "scattered areas of tenderness to light touch," but no spasm, and "an extensive laminectomy type of surgical scar." His examination of her knees disclosed that they were free of fluid and synovitis, had full extension, flexion was to minus 20 degrees, and the collateral ligaments were stable. He found the right shoulder stable and free of impingement. Regarding carpal tunnel, DeLuca testified that although he found evidence that she had undergone left carpal tunnel surgery in 1996, he could not determine anything in her activities as a school bus attendant that would be repetitive enough to cause injury to the carpal tunnel.

Based on his examination, DeLuca opined that petitioner suffered 5% of partial total disability of the right shoulder; 5% of partial total disability of the lower back; 7.5% of partial total disability of the right leg; 7.5% partial total disability of the left leg; and 5% total disability of the left hand. DeLuca testified that he placed a percentage of disability on the left hand, solely because she had undergone carpal tunnel surgery, although it was his opinion that in all probability, it was not related to the 1995 accident.

Subsequent to examination, Dr. DeLuca reviewed additional records which altered his opinion as to the cause of plaintiff's disabilities. He testified that when he rendered his first report, it was his impression that petitioner's disabilities were related to the surgery she had on various parts of her body. Following a review of additional records, Dr. DeLuca became aware that petitioner had ten prior accidents, some of which involved "her back or knee, or a combination thereof." Based upon the ten prior accidents, he altered his opinion to state that "some" of her present disabilities are from those accidents. In answering the question of whether he could tell the amount of disability she had sustained previous to the 1995 accident, Dr. DeLuca replied: "I would just have to divide it up equally. In other words, whatever permanent I gave her divided by 11."

Dr. Effron examined petitioner on April 17, 2002. In taking her history, petitioner denied that she ever treated with Dr. Lee prior to the September 19, 1995 accident. However, the records Dr. Effron reviewed had disclosed that petitioner treated with Dr. Lee on May 17, 1995, at which time she complained of injuring herself when she slipped and fell off a bus in October 1994. Her complaints at the May 17, 1995, examination concerned pain in the lower back, going into her buttocks, legs, and knees.

Dr. Effron inquired of petitioner as to the medications she was taking, and petitioner advised that she had been prescribed Oxycontin, 200 mg, two times per day, which Dr. Effron described as a massive dose. She also advised him that she was taking Percocet, which he described as oxycodone with Tylenol, as well as Zoloft, Lopressor, Neurontin, and Nexium. Dr. Effron was skeptical that petitioner was taking the high doses of the drugs as she stated, because she was not showing any signs of withdrawal.

Dr. Effron discovered that petitioner had a positive EMG on November 9, 1994, that revealed lumbar radiculopathy, which he described as a problem with the nerve root in the lower back. He described his neurological examination of the lower limbs as normal. He indicated that at the time he saw petitioner, she was not using a wheel chair, and that she walked from the waiting room to the examining room, holding a cane, although it appeared to be unused. During the examination, petitioner was able to stand with her feet together and eyes closed, maintain normal balance, and was able to re-dress without assistance. As a result of his examination in April 2002, Dr. Effron "found a neurologic disability to be 4% for her low back, regardless of cause, taking into account both the September 1995 injury and the pre-existing low back pain radiculopathy." He also "found a neurologic disability of 2[.5]% of the right hand for a carpal tunnel syndrome, but no neurologic disability for the left hand, since there have been complete resolution, subjectively and objectively." Concerning any depressive disorder, Dr. Effron stated "I felt she had a depressive disorder, which seemed to be significantly related to the death of her sons."

Dr. Effron confirmed his skepticism of petitioner's statement of her use of the various medications by reviewing records of the Kessler Institute. The records indicated that petitioner's treating physician obtained a urine screen for oxycodone, which was negative. After the treating physician confronted petitioner as to whether she was actually taking the medication, she admitted that her son was a drug addict who was taking her Oxycontin. Concluding that petitioner's prior statements concerning her need for narcotic analgesics were "not true," Dr. Effron "reduced [his] estimate of neurologic disability to 3% regardless of the cause with respect to the low back."

The Compensation Judge noted that the Board "ha[d] left petitioner to her proofs with regards to causal relationship, the nature and extent of the injuries with regard to permanent disability," and that the Board had paid petitioner for 138 weeks of temporary disability, including medical treatment, totaling $57,656.24. After considering the testimony, the judge found that petitioner had sustained compensable injuries to her lower back, right shoulder, both knees, and both hands, during the course of employment. He determined that petitioner had not demonstrated psychological or neuropsychological disability. He based these determinations on the "testimony of all the experts as they all concluded that petitioner has sustained permanent disability to the various parts of the body." As to the percentage of disability, the judge concluded that "the estimate of petitioner's expert is unrealistically overestimated and that the estimates of [the Board's] experts are unrealistically underestimated," noting that in workers' compensation cases "in most, if not in all, instances . . . there is a disparity and disagreement between the various experts."

The judge questioned petitioner's credibility concerning the type and amounts of medication she was taking, stating:

I find that, based upon my personal observation of the petitioner during the various appearances before me and in comparing same with the observations made and findings of the experts, that petitioner has exaggerated and amplied her symptoms. I find the testimony of Dr. Effron with his medical conclusion regarding the amounts of medication that petitioner was taking and the nature of said medication to be extremely credible. I agree with the conclusion of . . . Dr. Effron, where he finds that if petitioner was taking all of the medication in the doses prescribed, that she would not be coherent or rational. On the contrary, petitioner appeared very alert and responsive . . . . [P]etitioner had voluntarily informed the doctor . . . that she suspected her son of taking her medication . . . . This convinces me that petitioner was not complying with the regimen of the prescriptions.

As to petitioner's prior accidents, the judge stated:

[A]lthough [the Board's] experts acknowledge all of petitioner's prior conditions, they failed to make specific conclusions as to how those conditions were affected or aggravated or exacerbated by the last accident. They both make conclusive statements that petitioner's permanency was . . . regardless of cause. . . . Further, in considering their testimony, I find that they were not aware as to the extent of the prior conditions and had no familiarity to any documented limitation.

Finally, the Compensation Judge took notice of the fact that petitioner's 1993 settlement was small in amount, and determined that her prior accidents had minimal impact on her ability to work. The judge awarded petitioner compensation for 503.75 weeks at $417.58 per week, finding 37.5% permanent partial disability to the lumbar spine; 27.5% permanent partial disability to the right shoulder; 22.5% permanent partial disability to the statutory left leg; and 17.5% permanent partial disability to the left hand. The total award was $210,355.92.

On appeal, the Board argues that it is entitled to a new trial because: 1) the Compensation Judge's findings were unsupported by and inconsistent with the evidence at trial; and 2) the Compensation Judge failed to apportion any credits to the Board for the petitioner's multiple prior accidents.

Generally, "[c]ourts give 'substantial deference' to administrative determinations." Earl v. Johnson & Johnson, 158 N.J. 155, 161 (1999) (quoting R & R Mktg., L.L.C. v. Brown-Forman Corp., 158 N.J. 170, 175 (1999)). 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 of their credibility." Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).

Deference must be accorded to the factual findings and legal determinations of 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) (quoting Rova Farms Resort, Inc., v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)), certif. denied, 140 N.J. 277 (1995). "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." In re Taylor, 158 N.J. 644, 657 (1999) (citing Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988)).

We have reviewed the arguments raised in light of the entire record, and save one exception discussed infra, we determine that the findings of fact are supported by the record, and that the Judge of Compensation identified the applicable law and correctly applied the law to the facts.

The primary issue concerned the extent and nature of petitioner's injuries and disabilities. It is within the discretion of the Compensation Judge to accept the testimony of petitioner's experts, and reject respondent's expert testimony, as to whether there is an "ultimate disability . . . [and] whether that ultimate disability resulted from an aggravation or acceleration of the pre-existing [injuries]." Paul v. Baltimore Upholstering Co., 66 N.J. 111, 121 (1974). The Compensation Judge has the opportunity to hear witness testimony and evaluate credibility. Sager v. O.A. Peterson Constr., Co., 182 N.J. 156, 166 (2004). The judge also has special expertise "with respect to weighing the testimony of competing medical experts and appraising the validity of [petitioner's] compensation claim." Ramos v. M & F Fashions, Inc., 154 N.J. 583, 598 (1998).

The Compensation Judge engaged in a credibility determination, and an independent evaluation of the medical evidence in arriving at his findings of disability. The judge found that petitioner's resulting injury was compensable, and determined percentages of partial disability for each of her injuries. Simply because the judge noted that petitioner was not taking the medication that she testified to, does not mean that his findings as to her injuries are unsupported by the record. To the contrary, that the judge described petitioner's symptoms as exaggerated, supports his disability percentages as compared to those proposed by petitioner's experts. The Board did not present any evidence or testimony to contradict or rebut petitioner's claim that she was injured. In fact, the Board's own experts agreed that petitioner suffered from some degree of permanent partial disability. Giving due weight to the Compensation Judge's experience and opportunity to view the witnesses and evidence, we determine that his decision as to petitioner's percentage of permanent partial disability, except as it relates to the hand, discussed infra, is supported by sufficient, credible evidence.

The Board argues that the evidence presented demonstrated that petitioner's ultimate disability was a result of aggravation of previous injuries to the same body parts, and that the Board should have received credit for those pre-existing injuries, citing N.J.S.A. 34:15-12d. We disagree. N.J.S.A. 34:15-12d provides:

If previous loss of function to the body, head, a member or an organ is established by competent evidence, and subsequently an injury or occupational disease arising out of and in the course of employment occurs to that part of the body, head, member or organ where there was a previous loss of function, then the employer or the employer's insurance carrier at the time of the subsequent injury or occupational disease shall not be liable for any such loss and credit shall be given the employer or the employer's insurance carrier for the previous loss of function and the burden of proof in such matters shall rest on the employer.

Contrary to the Board's argument, the statute "does not provide that the employer is only liable for the disability superimposed upon the previous loss of function. It distinctly states, as to 'previous loss of function,' that 'the employer or the employer's insurance carrier at the time of the subsequent injury . . . shall not be liable for any such loss and credit shall be given . . . for the previous loss of function.'" Abdullah v. S.B. Thomas, Inc., 190 N.J. Super. 26, 30 (App. Div. 1983).

The burden of persuasion to establish that a petitioner's injury was caused by a pre-existing condition rests upon the employer. Shaudys v. IMO Indus., 285 N.J. Super. 407, 416 (App. Div. 1995). It is only where the employer meets its burden in establishing by competent evidence that there was a previous loss of function to the same body part subsequently injured, that the employer is entitled to a credit. Abdullah, supra, 190 N.J. Super. at 33. In determining the credit to forded, this court held that first, the percentage disability attributable to the prior accident is to be determined; then, the corresponding compensation for that injury is calculated using the schedule in N.J.S.A. 34:15-12c; and finally, that sum is deducted from the total disability sum, which is payable to petitioner at the subsequent disability's weekly rate. Id. at 33-34; see also Poswiatowski v. Standard Chlorine Chem. Co., 96 N.J. 321, 331-32 (1984).

If a respondent falls short of its burden, then there is no error when an allocation hearing is not held, because the requisite "sufficient competent evidence" to support a finding of previous loss of function to a subsequently injured body part would be lacking. However, if a respondent presents evidence sufficient to support its burden, then an allocation determination is necessary.

Our review of the record indicates that the Board did not sustain its burden to demonstrate that petitioner's previous accidents resulted in a loss of function which more than "minimally contribut[ed] to [the] disability," and that the subsequent injury was not the "sole cause of the ultimate disability". Minogue v. Lawrence Packaging Supply Corp., 115 N.J. Super. 310, 316 (App. Div.), certif. denied, 59 N.J. 290 (1971). As the judge stated, the Board's experts did not have any familiarity or independent knowledge of petitioner's prior injuries; nor did they come to any specific conclusions as to the degree of aggravation or exacerbation of any existing injuries as a result of the September 1995 accident. We concur with the Compensation Judge that the evidence of petitioner's prior settlement, being small in amount, is insufficient to demonstrate a prior loss of function. The Board was required to satisfy its burden by a preponderance of the evidence that a loss of function existed as to each body part before the accident, and that the loss had more than a mere minimal impact on the ultimate disability. We conclude that the Board did not meet its burden, and the judge's failure to allow the Board a credit under N.J.S.A. 34:15-12d, was correct.

However, we conclude from the evidence in the record that the award of 17.5% permanent partial disability to the left hand was erroneous. None of the physicians who testified causally related petitioner's disability of the left hand, if any, to the September 1995, accident. Without that causal link, the award must be vacated. Lindquist v. City of Jersey City Fire Dep't, 175 N.J. 244, 259 (2003).

Accordingly, we affirm those portions of the judgment which determined that petitioner suffered a compensable injury, and the awards of permanent partial disabilities to the lumbar spine, right shoulder, and left leg. We reverse the award of permanent partial disability to the left hand, and remand to the Division of Workers' Compensation to modify the judgment accordingly.

 

We note that although the claim petition named the respondent as the Newark Board of Education, the respondent's answer, subsequent motion, and the order of judgment appealed from refers to respondent as the Newark Public Schools System. Because respondent refers to itself in its appellate brief as the Newark Board of Education, we shall refer to it accordingly for purpose of this opinion.

N.J.S.A. 34:15-20 provides for settlement of a compensation claim by payment of a lump sum to the petitioner that has the effect of a dismissal with prejudice. The "settlement . . . shall have the force and effect of a dismissal of the claim petition and shall be final and conclusive upon the employee and the employee's dependents, and shall be a complete surrender of any right to compensation or other benefits arising out of such claim under the statute." Ibid.

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A-2468-04T2

April 18, 2006