JUAN A. TEJERAS, SR. v. GARDEN STATE SPRING & EQUIPMENT, INC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4362-04T54362-04T5

JUAN A. TEJERAS, SR.

Petitioner-Respondent,

v.

GARDEN STATE SPRING & EQUIPMENT, INC.,

as insured by Highlands Insurance,

Respondent-Appellant,

v.

GARDEN STATE SPRING & EQUIPMENT, INC.,

as insured by SRS Hartford,

Respondent-Respondent,

and

KENNEDY CONCRETE, INC.,

Respondent-Respondent,

and

THE SECOND INJURY FUND,

Respondent-Respondent.

__________________________________

 

Argued November 27, 2006 - Decided December 18, 2006

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

On appeal from the New Jersey Department of Labor, Division of Workers' Compensation,

C.P. Nos. 1999-28097 and 2002-20675

(consolidated).

Richard A. Barton argued the cause for appellant as insured by Highlands Ins., Co. (Freeman, Barton, Huber & Sacks, attorneys; Nancy S. Freeman, on the brief).

Gerard W. Quinn argued the cause for respondent Garden State Spring & Equipment, Inc., as insured by SRS/The Hartford (Cooper, Levenson, April, Niedelman & Wagenheim, attorneys; Mr. Quinn, on the brief).

Robert G. Malestein argued the cause for respondent Juan A. Tejeras, Sr. (Lipman, Antonelli, Batt, Dunlap, Wodlinger & Gilson, attorneys; Mr. Malestein, on the brief).

Francis T. Giuliano argued the cause for respondent Kennedy Concrete, Inc.

Cheryl B. Kline, Deputy Attorney General, argued the cause for respondent Second Injury Fund (Stuart Rabner, Attorney General, attorney; Ms. Kline, on the brief).

PER CURIAM

This is a workers' compensation case. Garden State Spring & Equipment (General Spring), through its insurer Highlands Insurance Company (Highlands), appeals from a decision of the Workers' Compensation Court in favor of petitioner, Juan A. Tejeras, Sr. In a cogent and detailed fifty-six page oral opinion, placed on the record on February 28, 2005, Judge Butler determined that Tejeras was totally and permanently disabled, that 90% of the disability was attributable to his last employer, General Spring, and that percentage of his disability would be entirely attributed to the period of time during which Highlands was on the risk. Ten percent of the award was assessed to the Second Injury Fund. We affirm.

I

The procedural background and pertinent facts are set forth at length in Judge Butler's opinion and need not be repeated here.

To summarize, Tejeras injured his lower back on July 8, 1998, in a work-related accident while employed at Kennedy Concrete. He filed a workers' compensation claim, which was eventually settled in November 2000, with an award of ten percent of permanent partial total disability based on a finding of residual lumbosacral sprain and strain with left-sided radiculopathy. He was able to continue working at Kennedy after the accident. Tejeras ceased working for Kennedy in November 1998, after he refused to climb an eighty-foot high piece of equipment.

Tejeras, a diesel mechanic, had performed heavy lifting at Kennedy, including equipment weighing 150 to 175 pounds. His next job at Levari Trucking, which lasted from December 1998 to June 1999, was considerably less strenuous. In June 1999, he began working for General Spring, where he was required to lift items weighing ninety pounds up to twenty times a day. As of November 2, 2000, Tejeras was experiencing back pain when he moved quickly or when he lifted twenty-five pounds or more; this testimony plus medical reports formed the basis for the settlement with Kennedy Concrete of ten percent permanent disability based on lumbosacral strain and sprain.

Tejeras continued performing his heavy lifting duties at General Spring. After seeing a doctor in December 2000 for back pain, he was referred for an MRI on January 18, 2001, which revealed a moderately large herniated disc at L5-S1. Nonetheless, he was able to continue working until August 27, 2001, when General Spring fired him for being unable to perform the heavy lifting required of him.

On February 11, 2002, Tejeras underwent a hemilaminectomy at L5 and a discectomy at L5-S1. Unfortunately, the surgery was not successful, and an MRI performed on November 10, 2002 disclosed a recurrence of the herniation. At the time of the hearing in this case, he was completely unable to work, was taking morphine daily to relieve his persistent back pain, and had been diagnosed with severe depression.

Tejeras filed an application in April 2001 against Kennedy for modification of his prior award. In June 2002, he filed a claim petition against General Spring. The hearing in this case adjudicated his claims against both Kennedy and General Spring. The latter was represented by The Hartford Insurance Company, which had provided coverage from June 15, 1999 to June 15, 2001, and by Highlands, which provided coverage from June 15, 2001 to June 15, 2002. The Second Injury Fund was joined in the proceedings.

The medical evidence at the hearing focused primarily on the extent of Tejeras' disability, and whether his disability was attributable to his 1998 injury at Kennedy Concrete or his later employment at General Spring. Neither Hartford nor Highlands presented any medical testimony aimed at apportioning the disability between the times when each company was providing coverage to General Spring.

II

Highlands raises the following arguments on appeal:

POINT I: THERE IS INSUFFICIENT CREDIBLE EVIDENCE TO SUPPORT THE COURT'S HOLDING THAT PETITIONER'S OCCUPATIONAL EXPOSURE AT GENERAL SPRINGS CAUSED TO A MATERIAL DEGREE HIS PERMANENT AND TOTAL DISABILITY.

A. Dr. Marshall Pressman's Testimony That Petitioner "Got Better" Is Not Credible.

B. The Description Of Petitioner's Job Duties At General Springs In The Hypothetical Question And Relied Upon By The Compensation Court In Its Decision Is Hearsay.

C. The Order Approving Settlement Dated November 4, 2000 Is Res Juicata As To The Nature Of Petitioner's Permanent Partial Disability Related To His Accident Of July 8, 1998.

D. There Is No Basis For The Court's Inference That Petitioner's Testimony In November 2000 and Dr. Costino's Report Dated April 8, 2000 Support Its Findings.

POINT II: THE CREDIBLE MEDICAL EVIDENCE SUPPORTS A FINDING THAT PETITIONER'S HERNIATED DISC RESULTED FROM HIS ACCIDENT AT KENNEDY IN 1998.

POINT III: THE REASONING OF THE APPELLATE COURT IN PETERSON V. HERMANN FORWARDING COMPANY APPLIES TO THE WITHIN MATTER.

POINT IV: ASSUMING ARGUENDO THAT PETITIONER'S DISC RESULTED FROM HIS OCCUPATIONAL EXPOSURE AT GENERAL SPRINGS, IT WAS ERROR FOR THE COURT TO HOLD HIGHLANDS LIABLE.

POINT V: IF HIGHLANDS IS HELD LIABLE FOR PETITIONER'S DISABILITY APPORTIONMENT SHOULD BE APPLIED.

Having reviewed the record, we conclude that Judge Butler's decision was supported by sufficient, credible evidence, R. 2:11-3(e)(1)(A), and that appellants' arguments are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E). Accordingly, we affirm substantially for the reasons stated in Judge Butler's cogent and detailed opinion. We add the following comments.

In reviewing the trial judge's decision, we are bound to defer to his factual findings so long as they are supported by sufficient, credible evidence. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). It is the trial court's function to make credibility findings and we will not disturb those findings absent clear error. State v. Locurto, 157 N.J. 463, 474 (1999). We find no such error in this record. Judge Butler not only made credibility findings, but he explained in detail the reasons for his findings.

This case was fundamentally a credibility contest among expert witnesses. On his case-in-chief, petitioner presented testimony from Dr. Tobe and Dr. Pressman which, if credited by the judge, established that petitioner's disability was primarily attributable to his work at General Spring. Petitioner's evidence was sufficient to support a finding that he suffered lumbar strain and sprain while he worked at Kennedy Concrete, but that his back problem largely resolved with conservative treatment. Dr. Pressman's testimony would also support a conclusion that petitioner's disc herniation did not occur while he worked at Kennedy Concrete, but rather while he worked at General Spring, and that it was the herniation and the necessary, but unsuccessful, surgery, that ultimately led to petitioner's total disability. Further, as Dr. Pressman testified, given petitioner's severe psychiatric problems at the time of the trial, it would be reasonable to place greater reliance on his past, contemporaneous medical records concerning his symptoms when he worked at Kennedy, than on his recollections given years later at trial.

We find no merit in Highlands' attack on petitioner's job description as contained in his certification of disability. That certification, which described the amount and frequency of heavy lifting petitioner did at General Spring, was admitted in evidence without objection. The experts therefore reasonably relied on it in rendering their opinions. We find nothing incredible in a medical conclusion that petitioner's pre-existing back problems were greatly exacerbated by his repetitive daily lifting of ninety pound weights at General Spring.

We also find no error in the judge's decision not to credit the testimony of Hartford's expert, Dr. Allen, who was not even aware of the type of work or amount of lifting petitioner was performing at General Spring when she opined that "given no . . . evidence of direct occupational exposure" she found no evidence "of permanent disability arising from his employment with General Spring." She admitted on cross-examination that "heavy lifting" would constitute "direct occupational exposure." She also admitted on cross-examination that if petitioner continued to lift heavy objects while he had a herniated disc, "he can actually cause the disc material to extrude further and cause further compression." She also admitted that the findings of examinations performed on petitioner in 1998 and 1999 did not show certain physical symptoms that she testified one would expect to find in a person with a herniated disc at L-5 or S-1.

We find no error in the judge's decision not to credit the report of Dr. Levitsky, who did not testify, because Dr. Levitsky's report also did not indicate any knowledge of petitioner's job duties at General Spring. The judge also could reasonably have determined that Dr. Allen and Highland's expert, Dr. Kemps, were not credible since they testified that, despite his apparently severe medical problems, petitioner only had a 12 1/2% permanent disability.

The record supports the trial judge's conclusion that plaintiff developed a herniated disc, and ultimately became disabled, while he was working for General Spring, rather than while he was working for Kennedy Concrete. We agree with the trial judge that General Spring's reliance on Peterson v. Hermann Forwarding Co., 267 N.J. Super. 493 (App. Div. 1993), certif. denied, 135 N.J. 304 (1994), is misplaced. Unlike Peterson, in this case, plaintiff's initial symptoms abated after his accident at Kennedy Concrete, and he was able to continue working for two more years, first at a less strenuous job at Levari Trucking and then at General Spring where he frequently lifted heavy weights. We find no error in the judge's conclusion that "Petitioner's total and permanent disability . . . [is] due in a material degree to his job duties and occupational exposure at General." See N.J.S.A. 34:15-31.

Finally, there is sufficient credible evidence that due to his back problem, plaintiff became unable to perform the job at General Spring in August 2001, while Highlands was on the risk. Neither Hartford nor Highlands presented any expert testimony attempting to differentiate between injuries plaintiff suffered at General Spring prior to June 15, 2001, while Hartford was on the risk, as opposed to the later period while Highlands was on the risk. As the judge observed, "Not one testifying physician even attempted to apportion the Petitioner's disability between Hartford and Highlands. Nor were they asked to do so on either direct or cross-examination." We agree with Judge Butler that there was insufficient evidence in the record to enable him to apportion plaintiff's injury between the two insurers. See Giagnacovo v. Beggs Bros., 64 N.J. 32 (1973); Levas v. Midway Sheet Metal, 337 N.J. Super. 341 (App. Div. 2001).

Affirmed.

 

Garden State Spring transacted business as General Spring & Equipment, the name used at the workers' compensation hearing. To avoid confusion, we will also refer to the company as General Spring.

In fact Highland's witness, Dr. Kemps, admitted on cross-examination that "[t]here was no true objective evidence of a herniation" immediately after petitioner's accident at Kennedy Concrete in 1998. He also admitted that even if petitioner had a pre-existing herniation when he began work at General Spring, it "would be more likely that the strain of labor versus no strain would have precipitated a likelihood of worsening leading to surgery down the road."

(continued)

(continued)

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A-4362-04T5

December 18, 2006