MARTIN J. ROCHE V. BIRCHWOOD MANOR

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4028-04T54028-04T5

MARTIN J. ROCHE,

Petitioner-Respondent,

v.

BIRCHWOOD MANOR,

Respondent-Appellant.

__________________________________

 

Argued September 11, 2006 - Decided October 13, 2006

Before Judges Lintner, S.L. Reisner and C.L. Miniman.

On appeal from the Department of Labor, Division of Workers' Compensation, Docket No. 2002-10995.

Jody L. Meeks argued the cause for appellant (Pietras Saracino Smith, attorneys; Ms. Meeks, of counsel and on the brief).

Robert F. Hoyt argued the cause for respondent (Hoyt & Hoyt, attorneys; Mr. Hoyt, on the brief).

PER CURIAM

This is an appeal from a final judgment in favor of petitioner-respondent Martin J. Roche (Roche) in a workers' compensation action arising out of injuries sustained while Roche was employed by respondent-appellant Birchwood Manor (Birchwood). Birchwood asserts that the compensation judge erred because there is no evidence in the record to support a finding of compensability and an entitlement to benefits. We affirm in part and reverse in part.

On Monday, December 3, 2001, Roche, a carpenter employed by Birchwood at a weekly wage of $960, injured his left knee while laying tile in a bathroom at Birchwood's restaurant. He was standing with his legs spread as he bent over to lay tile. The tiles were right behind him and he would rotate his torso to get a tile and then turn back to lay it. One time doing this, his knee popped. It hurt for a second, but he continued tiling for a half hour more. When Roche stooped, his knee hurt again. He worked all day even though his knee continued to hurt.

Because the pain had worsened on Tuesday, December 4, 2001, Roche reported the injury to his boss's wife, Maryanne Marino, who instructed him to go see her daughter, who had claim forms. Roche filled out the required paperwork and was given a telephone number to call for workers' compensation. He contacted a Mrs. Cobb, who told him to see Dr. Frank Capecci for his injury. At 3:30 p.m. on Wednesday, December 5, 2001, Roche reported to the authorized compensation physician, Dr. Capecci, with pain in his left knee. Roche advised Dr. Capecci that he believed that he pulled a muscle at work. Dr. Capecci X-rayed his knee, prescribed medication, and advised Roche to return if his leg condition worsened.

After he left Dr. Capecci's office, Roche immediately went to visit his wife at St. Clare's Hospital, where she worked. When he reached the top of the stairs, Roche's knee "went out." He felt extreme pain and "fell, dropped right down." Nothing else caused him to fall. Roche crawled to the hall and telephoned his wife, who took him to the emergency room. The X-rays were negative, but Roche could not bear weight on his knee. During his emergency room examination, Dr. Somar advised Roche to get an MRI. Roche was given crutches and a knee immobilizer. The compensation carrier declined payment of the hospital bill and all treatment bills after the initial visit to Dr. Capecci.

On December 6, 2001, Roche went for the MRI and gave the report to Dr. Capecci during a follow-up visit on December 10, 2001. The MRI report revealed "Grade II tear of the posterior horns of the medial and lateral menisci. Grade I tears of the anterior horns of the medial and lateral menisci. Partial tears of the anterior and posterior cruciate ligaments. Left knee joint effusion. Baker's cyst." All occurring on the left knee.

On December 13, 2001, Roche was admitted to St. Clare's Hospital where Dr. Capecci performed arthroscopic surgery on Roche's left knee. On December 31, 2001, Roche was readmitted to St. Clare's with a staph infection in the left knee at the surgical site, a complication resulting from the surgery. As a result of the staph infection, Roche underwent a second surgical procedure on December 31, 2001, and then required a third surgical procedure on January 2, 2002.

Roche still suffers from pain in his left knee, which he treats with Percocet. Roche is not able to squat or carry anything up a ladder. After sitting for forty-five minutes Roche's knee makes noise when he gets up. Outside of work, Roche testified that he no longer walks with his wife because his knee constantly pops.

At the compensation hearing on October 20, 2004, Roche offered expert testimony from Dr. Arthur Tiger, who testified that he examined Roche on January 20, 2003, and prepared a report based on that examination and based on a review of Dr. Capecci's records. He testified that Dr. Capecci initially noted that Roche had a strain and he prescribed anti-inflammatory medication and a muscle relaxant. Dr. Capecci's notes indicated that later on December 5, 2001, Roche was in the emergency room with an acute episode of knee buckling and that he could not bear weight on his knee.

Dr. Tiger testified that the MRI "suggested injuries to the internal ligaments of the knees as well as suggesting possible tears of the menisci." Upon review of Dr. Capecci's operative report of December 13, 2001, Dr. Tiger testified that the report showed a post-operative diagnosis of "acute chondral injury, medial femoral condyle, left knee. Partial anterior cruciate ligament tear. Synovitis. Loose bodies." He opined that Roche's tiling activities put valgus stress on his left knee which could cause a partial tear of the ACL. Dr. Tiger also noted that Dr. Capecci's records suggested that "the partial ACL tear might very well have been an acute injury that occurred on 12/3/01." Dr. Tiger opined that Roche's knee probably buckled on December 5, 2001, as a result of the partial tear of the ACL and also opined that the buckling of the knee then caused the chondral injury.

On the continued hearing date, Birchwood offered expert testimony from Dr. Arthur T. Canario, who testified that he examined Roche on October 7, 2002, and prepared a report based on the results of said examination. Dr. Canario testified that the original arthroscopic procedure involved a chondroplasty and, following the infection, two lavage procedures were performed to clean out the infection. Dr. Canario opined that the objective findings he noted were caused by the staph infection and that Roche's problems were not caused by his tiling activities. He opined that these activities only caused a muscle strain, which was "not an injury." He testified that the MRI showed nothing, so there was no reason for his knee to give way at all. Dr. Canario opined that Roche slipped and fell on the hospital stairs and was injured as a result of that fall.

After Birchwood asserted that Dr. Tiger's testimony should be stricken because he had not expressed his opinions to a reasonable degree of medical probability, the court reopened the case to recall Dr. Tiger for further testimony "to clarify if his original testimony and opinions were within a reasonable degree of medical probability." Dr. Tiger confirmed that they were. The compensation judge explained that she reopened the case "to correct an oversight by the petitioner's attorney, which should not be borne by petitioner who, it appears to the Court, has a winning case otherwise."

At the conclusion of the trial, the compensation judge rendered an opinion on the record. In the judge's decision she addressed Dr. Tiger's testimony, finding:

Dr. Tiger testified on behalf of the petitioner as an expert in Orthopedic Surgery. He is board certified in Orthopedics. Dr. Tiger examined the petitioner on 1/20/03. He took a history, his complaints, and had the following objective medical findings on his exam: Scars from three arthroscopic surgeries, fluid in the left knee, swelling on either side of the patellar tendon, which was indicative of chronic synovitis. He found a doughy feeling present over the patellar tendons, atrophy of the left thigh as compared to the right, and atrophy of the left calf as compared to the right, together with loss of the last 25 degrees of active and passive flexion of the left knee. Dr. Tiger gave an estimate of disability of 65% of the left leg.

Dr. Capecci's treating records were reviewed by Dr. Tiger, who noted that Dr. Capecci stated, "The partial ACL tear might very well have been an acute injury that occurred on 12/3/01.["] Dr. Tiger testified that Dr. Capecci described the tiling injury as a valgus stress. Dr. Tiger testified that a valgus stress is increased pressure put on certain ligaments from a stretch to the side. He said, "It is one cause of a partial ACL tear, a tear or strain."

Dr. Tiger reviewed the operative report of 12/13/01. He stated the post-operative diagnosis was "Acute chondral injury, medial femoral condyle, left knee, partial anterior cruciate ligament tear, synovitis, loose bodies."

Dr. Tiger opined that there is good probability that the knee buckling incident on the hospital steps was the result of an ACL tear from the knee injury occurring on 12/3/01 when petitioner was tiling the bathroom floor.

The compensation judge then addressed Dr. Canario's testimony, finding:

Dr. Arthur T. Canario testified on behalf of respondent. He is a board-certified orthopedist. Dr. Canario took a history, petitioner's complaints, and had the following objective findings on his exam of 10/7/02: Thickening of the synovium about the knee from the infection. He estimated disability at 10% of the left leg, but he questioned causal relationship.

Dr. Canario testified that a valgus stress to the knee could cause a torn medial meniscus or a tear of the anterior cruciate ligament. Dr. Canario said he questioned causal relationship because petitioner did not actually have an injury, i.e., a car accident or falling or being hit with something. The petitioner was just laying tiles and felt something in his knee. He said there was no original injury beyond a strain, i.e., a valgus force. He then testified that a strain of the gastrocnemius muscle is not an injury. He stated, "I'm talking about trauma being applied to the knee. Now, you can strain a muscle. It's not really in a sense an injury. It's a strain." The Court finds these comments incredible.

Dr. Canario stated petitioner had three arthroscopies to the knee, two of which were arthroscopies with lavage for infection, and one was a full arthroscopic procedure where he had a chondroplasty performed.

Dr. Canario testified that he did not know until he testified that the man did have a fall on the hospital stairs, and he felt the condyle lesion was caused by the fall on the hospital stairs. Dr. Canario further testified a valgus stress on his leg at work could cause a torn meniscus or torn anterior cruciate ligament. It's obvious to the Court that Dr. Canario did not have a full set of facts when he examined petitioner and wrote his report.

Dr. Canario repeatedly stated that a strain in a muscle is not really an injury. Again, he testified that a partial tear of the ACL is not a particularly relevant finding. "A partial tear of a ligament is a strain, and they heal 100 percent." He then totally contradicted his prior testimony and stated, "I think there is some pathology in his knee, but it came from this strain, not when he fell on the stairs." In effect, Dr. Canario agreed that petitioner did have knee pathology from tiling the bathroom.

The judge then found that Dr. Tiger's testimony was believable as to a reasonable degree of medical probability and also found his testimony "much more persuasive than that of Dr. Canario who admittedly did not have a good grasp of the facts until he got into the courtroom." The judge continued:

The Court finds petitioner's injuries are causally related to his knee injury at work on 12/3/01 when he was tiling the bathroom. His left knee was further aggravated by his related knee buckling incident on the hospital stairs right after leaving Dr. Capecci on 12/5/01.

The Court finds petitioner suffered from a valgus stress or strain to his left knee while tiling a bathroom on 12/3/01. The Court notes that when he saw Dr. Capecci on 12/5/01, the doctor ordered Flexeril and Naprosyn for a period of ten days and then ordered a re-evaluation. This is an indication to the Court that Dr. Capecci, the treating doctor, believed petitioner's complaints and that there was something wrong with his knee prior to his falling on the hospital stairs.

The compensation judge then addressed the award:

The Court finds petitioner has a permanent disability here of 33 1/3% of his left leg for post-operative state times three surgeries for arthroscopic repair of anterior cruciate ligament, chondroplasty of medial femoral condyle, debridement, removal of loose bodies, synovectomy with two further debridements, irrigations, and lavages for post-operative infections together with post-traumatic arthritis, scarification, and synovitis.

This will all entitle the petitioner to 105 weeks at $165.91 per week for a total of $17,421. Petitioner is entitled to temporary disability from 12/5/01 to 2/4/02 pursuant to Dr. Tiger's testimony for a total of eight weeks at $591 per week or a total of $4,728.

The compensation judge further held:

The Court finds that N.J.S.A. 34:15-28.1 is applicable in this case. In the Court's opinion, the respondent to date has not presented a "credible or viable defense." The fact that there may have been a question of medical causation in and of itself is not sufficient to overcome the statutory presumption. Amorosa v. Jersey City Welding & Mach. Works, 214 N.J. Super. 130, 139 [(App. Div. 1986)], the respondent shall pay petitioner the statutory penalty of 25% of the temporary disability compensation award of $4,728 or a penalty of $1,182 together with a 20-percent counsel fee of $236.40 to the petitioner's attorney.

The Court will allow a counsel fee on temporary disability of $945, all payable by the respondent, a counsel fee on permanent disability of $3,484, payable $200 by the petitioner and $3,284 by the respondent. The Court will allow a counsel fee on medical in the amount of $10,914, all payable by the respondent.

The court also allowed a fee to Dr. Tiger for his testimony and reports in the amount of $1,000, payable $400 by Roche and $600 by Birchwood. The court allowed another $500 as costs to Roche's counsel for Dr. Tiger's appearance on the first-scheduled hearing date when Birchwood's counsel did not appear.

Birchwood raises multiple issues on appeal, contending primarily that the compensation judge erred because there is no evidence in the record to support her finding of compensability and an entitlement to benefits. More specifically, Birchwood contends that Dr. Tiger's testimony was not to a reasonable degree of medical probability, that the compensation judge erred in recalling Dr. Tiger to the stand to cure that defect, and that Dr. Tiger's testimony should be disregarded. In addition, Birchwood contends that Dr. Tiger's testimony was no more than an inadmissible net opinion. Birchwood also contends that Dr. Canario's testimony was more credible than that of Dr. Tiger and that Roche failed to prove a compensable injury.

The standard for appellate review of a determination of a judge of compensation is equivalent to that used for review of any non-jury case. Brock v. Pub. Serv. Elec. & Gas Co., 149 N.J. 378, 383 (1997). We may not substitute our own fact-finding for that of the trial judge, 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). In performing that function, we must give due weight to the compensation judge's "expertise in the field and his opportunity of hearing and seeing the witnesses." De Angelo v. Alsan Masons, Inc., 122 N.J. Super. 88, 89-90 (App. Div.), aff'd o.b., 62 N.J. 581 (1973).

Birchwood asserts that Dr. Tiger did not testify that his opinions were to a reasonable degree of medical probability. As a consequence, Birchwood argues that Dr. Tiger's testimony should have been stricken from the record by the compensation judge. In this regard, Birchwood argues that the compensation judge erred in reopening the case and recalling Dr. Tiger to remedy this deficiency in his testimony.

As a general proposition, the conduct of trial proceedings is committed to the sound discretion of the trial judge. Homann v. Torchinsky, 296 N.J. Super. 326, 340 (App. Div.) ("New Jersey courts follow the 'time-honored rule that the procedural conduct of a trial rests in the sound discretion of the trial judge and that no reversal will follow except for an abuse of that discretion.'"), certif. denied, 149 N.J. 141 (1997); Italian Fisherman, Inc. v. Commercial Union Assurance Co., 215 N.J. Super. 278, 286 (App. Div.), certif. denied, 107 N.J. 152 (1987); ("[T]he trial court properly exercised its discretion by allowing defendant to recall its expert witness . . . ."); Muksvold v. Meyers, 130 N.J. Super. 481, 484 (App. Div. 1974) ("[T]he time-honored rule [is] that the procedural conduct of a trial rests in the sound discretion of the trial judge and that no reversal will follow except for an abuse of that discretion.").

Here, in the exercise of that discretion, the compensation judge reopened the case "to clarify if [Dr. Tiger's] original testimony and opinions were within a reasonable degree of medical probability." She explained that she wanted the case to be decided on its merits and not on the failure of Roche's counsel to elicit this testimony. We find no abuse of discretion in recalling Dr. Tiger for this limited purpose. With this deficiency in his testimony remedied, there was no longer any basis to disregard Dr. Tiger's testimony.

Birchwood contends that Dr. Tiger expressed only net opinions, and as a consequence, his opinions were inadmissible. However, a review of the record demonstrates that Dr. Tiger's opinions were based on the operative reports, Dr. Capecci's office records, and the history given by Roche. A net opinion is an opinion which is not supported by factual evidence. In re Yaccarino, 117 N.J. 175, 196 (1989). The prohibition on admitting net opinions into evidence clearly has no application here, and the compensation judge did not err in permitting Dr. Tiger's testimony to stand.

Finally, Birchwood argues that Dr. Canario was more credible than Dr. Tiger. Issues of credibility require the subjective and intuitive evaluations of a trial judge. A fact finding may only be set aside if it "'is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction . . . .'" Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). Only then should an appellate court "'appraise the record as if it were deciding the matter at inception and make its own findings and conclusions.'" Id. at 588. See also Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 587-88 (2001); In re Taylor, 158 N.J. 644, 656-58 (1999); Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).

Here, the compensation judge heard and saw both Dr. Tiger and Dr. Canario. She found Dr. Tiger credible and found Dr. Canario not credible. She made very specific findings in support of her credibility determination. Based on the record before this court, there is ample evidence to support these findings and conclusions respecting the credibility of the witnesses.

Birchwood next argues that Roche failed to prove a compensable injury. The burden of proof to establish eligibility rests upon a workers' compensation claimant. Mahoney v. Nitroform Co., Inc., 36 N.J. Super. 116, 125 (App. Div. 1955), rev'd on other grounds 20 N.J. 499 (1956); Drake v. County of Essex, 192 N.J. Super. 177, 179-80 (App. Div. 1983). The evidence adduced by Roche established that he injured his knee at work on December 3, 2001, and, when Roche saw Dr. Capecci on December 5, 2001, the doctor ordered Flexeril and Naprosyn for a period of ten days and then ordered a re-evaluation. Almost immediately after leaving the doctor's office, Roche's knee buckled, causing him to fall to the floor. The judge found "that Dr. Capecci, the treating doctor, believed petitioner's complaints and that there was something wrong with his knee prior to his falling on the hospital stairs." Dr. Tiger opined that the valgus stress to the left knee on December 3, 2001, caused Roche's knee to buckle on December 5, 2001, resulting in a fall which further injured his knee. The chain of causation was not broken by the fall; the fall was caused by the initial work-related injury. Thus, there is substantial credible evidence in the record supporting the judge's conclusion that consequences of the December 5, 2001, events were compensable.

Birchwood next contends that Roche is not entitled to temporary disability benefits and reimbursement of prescription costs because Roche failed to offer evidence to support such an award. Specifically, Birchwood argues that Roche never testified that he missed any time from work as a result of his injury, and that a majority of the out-of-pocket prescription costs were for prescriptions not related to the alleged work-related injury.

First, the records contain ample evidence in support of his claim for temporary disability benefits. The testimony of Dr. Tiger and Dr. Capecci's medical records both indicate that Roche was out of work from the time of the first surgery until February 5, 2002. Second, this period of temporary disability was not disputed at trial and may not be raised for the first time on appeal, absent plain error. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). There is no plain error in the award of temporary disability benefits.

This principle also applies to the out-of-pocket prescription drug costs. Ibid. However, here we come to a different conclusion. Birchwood argues that Zocar and Viagra are not medications used to treat an orthopedic injury. Neither are Protonix and Nexium. The compensation judge should have limited the award of out-of-pocket prescription drug costs to prescriptions written by Dr. Capecci. Accordingly, the award of prescription drug costs must be reduced to $195.39.

Birchwood raises three additional issues on appeal. (1) It contends that the court's assessment of fees and costs should be reversed because they are in excess of those allowed under N.J.S.A. 34:15-64. (2) Birchwood next contends that the penalty awarded under N.J.S.A. 34:15-28.1 and the award of a twenty-percent counsel fee on the penalty were in error and must be reversed. (3) Birchwood finally asserts that the compensation judge demonstrated a clear bias against it.

These contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(D), (E). The decision of the compensation judge was reasonably reached on sufficient credible evidence contained in the record, considering the proofs as a whole, giving due regard to the opportunity of the court to hear the witnesses and judge their credibility. Furthermore, the compensation judge properly awarded a penalty under N.J.S.A. 34:15-28.1 and a counsel fee on said penalty.

 
Affirmed in part, reversed in part, and remanded for entry of an amended prescription-drug award consistent with this opinion.

(continued)

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A-4028-04T5

 

October 13, 2006