GARRY QUICK v. DISCOUNT OIL COMPANY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3489-06T1

GARRY QUICK,

Respondent,

v.

DISCOUNT OIL COMPANY,

Respondent,

and

COMMISSIONER OF LABOR,

as Custodian of the

SECOND INJURY FUND,

Appellant.

_________________________________________________

 

Argued November 28, 2007 - Decided

Before Judges Payne and Messano.

On appeal from The New Jersey Department of Labor, Division of Workers' Compensation, Docket No. 1998-22563.

Cheryl B. Kline, Deputy Attorney General,

argued the cause for appellant (Anne Milgram, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Kline, on the brief).

Claire Y. Ringel argued the cause for respondent Discount Oil Company (Capehart & Scatchard, attorneys; Kevin J. Riefenstahl, on the brief).

Michael J. Dennin argued the cause for

respondent Garry Quick (Law Offices of

Vincent J. Ciecka, attorney; Mr. Dennin, on the brief).

PER CURIAM

In this workers' compensation matter, the New Jersey Commissioner of Labor, as custodian of the Second Injury Fund, appeals from a final order determining that petitioner Garry Quick was totally and permanently disabled, and apportioning seventy percent of the disability to a work-related accident and thirty percent to a pre-existing psychological condition, for which the Second Injury Fund was held liable. On appeal, the Fund makes the following arguments:

THE JUDGE OF COMPENSATION MADE AN ERROR OF LAW IN FAILING TO DISMISS THE SECOND INJURY FUND PURSUANT TO N.J.S.A. 34:15-95(a) BECAUSE THE LAST COMPENSABLE ACCIDENT RESULTED IN TOTAL AND PERMANENT DISABILITY.

A. The Decision of the Judge of Compensation Must Be Reversed Because There Is Not Sufficient Credible Factual Evidence in the Record to Find Second Injury Fund Liability.

B. The Judge of Compensation made an Error of Law in Failing to Dismiss the Second Injury Fund Pursuant to N.J.S.A. 34:15-95(a).

As the result of our review of the record and the parties' arguments, we reverse.

The Second Injury Fund (SIF) is the source of worker's compensation benefits for workers already partially disabled who subsequently experience a second work-related injury and who are rendered totally disabled by the two work-related injuries taken together. The SIF encourages employers to hire disabled workers by limiting, in the case of further injury, the last employer's liability for compensation payments to amounts only applicable to the last injury.

[Senate Budget and Appropriations Committee Statement, Senate, No. 2008--L. 1999, c. 408.]

See also Walsh v. RCA/General Elec. Corp., 334 N.J. Super. 1, 6-7 (App. Div. 2000) (discussing purpose of Fund).

The Second Injury Fund statute, N.J.S.A. 34:15-94 to -95.5, provides for an annual surcharge upon all policyholders and self-insured employers for the purpose of providing moneys to the Second Injury Fund. N.J.S.A. 34:15-95 provides in pertinent part that compensation payments shall be made from the Fund

to persons totally disabled, as a result of experiencing a subsequent permanent injury under conditions entitling such persons to compensation therefor, when such persons had previously been permanently and partially disabled from some other cause . . . provided further, however, that no person shall be eligible to receive payments from the Second Injury Fund:

(a) If the disability resulting from the injury caused by the person's last compensable accident in itself and irrespective of any previous condition or disability constitutes total and permanent disability within the meaning of this Title.

(b) (Deleted by amendment.)

(c) If the disease or condition existing prior to the last compensable accident is progressive and by reason of such progression subsequent to the last compensable accident renders the person totally disabled within the meaning of this Title.

In the present matter, petitioner Garry Quick, who was hired in September 1997 by respondent, Discount Oil Company, as a primary lead heating and air conditioning installation mechanic, seriously injured his lower back on June 3, 1998 when a boiler that he and coworkers were carrying down a flight of steps slipped, pinning Quick against a concrete wall. Quick sustained a fractured vertebra and several ruptured lumbar discs as the result of the accident. After the period of time necessary to permit his fracture to heal, Quick underwent a right L5 hemilaminectomy with L5-S1 discectomy on November 3, 1998. The surgery did not relieve Quick's symptoms, and on August 11, 1999, he underwent a left L5 hemilaminectomy, re-exploration of the L5-S1 interspace, and bilateral hemilaminectomies at L4 with removal of the L4-L5 disc. Further surgery occurred on April 21, 2000, at which time Quick underwent an exploratory laparotomy with retroperitoneal exposure of the lumbar spine, insertion of bone dowels at L4-L5 and L5-S1, and an anterior lumbar interbody fusion at L4-L5 and L5-S1. Quick's symptoms continued, including severe pain radiating into the right leg, as the result of significant epidural fibrosis and arachnoid scarring. He was evaluated for pain management and, at the time of trial, was taking 5 mg. methadone three to four times per day for pain and 20 mg. clonazepam three to four times per day for anxiety and depression. The pain, attributed to failed back syndrome, has resulted in an inability to sleep and irritability; the heavy medication, upon which Quick has become dependent, interferes with his short-term memory and concentration.

Following his third surgery, Quick returned to Discount Oil in January 2002, where he performed part-time dispatch and secretarial work for approximately five or six months, until he was discharged as unable to perform the functions of the job. He was employed by Planet Fitness in general building maintenance from September 2002 to July 2003, when he was again discharged as the result of his physical condition. Quick is now essentially house-bound, spending his days migrating between bed, couch and recliner. Evidence demonstrates that Quick is unemployable.

Prior to his employment with Discount Oil, in 1995, Quick's four-year-old daughter was diagnosed as suffering from leukemia. After chemotheraputic and radiological treatment for two and one-half years, her condition went into remission. During this initial period of illness, Quick commenced his employment with Discount Oil, performing satisfactorily in his job and taking time off only when necessary to accompany his daughter for her medical treatments. However, during this period, Quick consulted with his priest on a weekly or bi-weekly basis for a period that Quick stated to be six months and that his wife stated was one and one-half years.

In October 2001, more than one year after Quick's third surgery, his daughter suffered a relapse, and she died in April 2002. During the child's second period of illness, Quick became frustrated by his inability to care for her, and that frustration added to the psychological effects that he was experiencing as the result of his back problems. Quick continues to mourn his daughter's death, and his wife testified that he has never returned to his prior emotional state.

Quick filed a claim petition seeking workers' compensation benefits on July 8, 1998. On May 23, 2004, Quick filed a verified petition for Second Injury Fund benefits. His case was tried in the period from July 21, 2005 and June 22, 2006. At trial, testimony was given on Quick's behalf by Dr. Marshall Pressman, a family practitioner, and Dr. Edward H. Tobe, a psychiatrist and neurologist. Expert testimony for the respondent, Discount Oil, was provided by Dr. Robert R. Bachman, an orthopedic surgeon, and psychiatrist Dr. Jon E. Courtney.

On December 20, 2006, the judge of compensation rendered his oral opinion in the matter, finding on the basis of the testimony of Quick and his wife (both of whom the judge found credible), Quick's subjective complaints, their corroboration by physical findings, and the testimony of the doctors at trial that Quick had met his burden of establishing, by a preponderance of the credible evidence, that he was entitled to an award of disability benefits "to the extent of 100 percent for the residuals of the orthopedic disability as well as neuropsychiatric disability." Finding the testimony of Doctors Bachman and Courtney to lack credibility because that testimony was inconsistent with the facts, the judge placed reliance upon the opinions of Doctors Pressman and Tobe. Although Dr. Pressman had found Quick to have sustained an orthopedic disability of greater than 100%, the judge appears to have credited Dr. Tobe's opinion that Quick sustained a 30% psychiatric disability arising from the illness and death of his daughter. Without explaining how he arrived at the figure, the judge then assigned the remaining seventy percent of Quick's 100% disability to his orthopedic condition. The judge stated:

Dr. Tobe's testimony, upon which I relied, seemed to capture Petitioner's conditions to his utmost, stating, in essence, you never get over such a tragedy [as the loss of a child].

I do find that the Petitioner's last injury and its sequelae were substantial. I do, however, find that Dr. Tobe's conclusions were more compatible with Petitioner's overall disability[. F]inding total disability in this matter[,] however, I conclude that that disability is attributable to a combination of Petitioner's last injury as well as the substantial preexisting psychiatric disability.

* * *

I, therefore, find and conclude, that not only is the Petitioner 100 percent totally disabled, but that that disability is as a result of the combination of the accident of June 3, 1998 as well as Petitioner's preexisting psychiatric disabilities. I further find that the preexisting psychiatric disability from which the Petitioner suffered was 30 percent and the last injury being orthopedic, psychologic, and neurologic, in nature to the extent of 70 percent.

I, therefore, conclude that the Petitioner's overall disability is 100 percent; allocated 70 percent Respondent, with a 30 percent contribution from the Second Injury Fund.

The judge found May 12, 2004 to be the date upon which petitioner Quick's total disability commenced.

Our review of the record discloses legal and factual inaccuracies in the judge's conclusions. As an initial matter, we do not find sufficient evidence in the record to support the judge's conclusion that Quick was "permanently and partially disabled from some other cause," as required to trigger Fund liability pursuant to N.J.S.A. 34:15-95 at the time that he was hired by Discount Oil in 1997. Our conclusion in this regard is based in large measure on the failure of the expert witnesses and the court to distinguish between Quick's alleged psychological disability at the time he was hired by Discount Oil and his alleged psychological disability after his accident and after the relapse of his daughter in 2001 and her death in April 2002.

At the time that Quick was hired by Discount Oil, Quick's daughter had been diagnosed as suffering from leukemia and was undergoing an extended two-and-one-half-year course of radiation and chemotherapy. According to Quick's wife, during that period, "a sadness" came over Quick and he was "just very withdrawn from the family. He was just very sad, quiet most of the time." At some unspecified time after the diagnosis in 1995, Quick was counseled by his parish priest on a bi-weekly basis for a period of six to eighteen months. However, he continued to work on a regular basis throughout and up to the time of his compensable accident in 1998.

The burden of proving eligibility on the part of the Fund lies with the party seeking to impose liability upon it; here, Quick's employer, Discount Oil. Lewicki v. N.J. Art Foundry, 88 N.J. 75, 84 (1981). As the Court has stated,

While we are, as we should be, cognizant of the general policy of the statute to encourage the hiring by industry of people handicapped by pre-existing disabilities, the Legislature has manifested concern that the Fund not be subject to undue invasion. . . . The interests here in opposition are employers and insurers, and the State Fund; not employers or insurers versus employees.

[Paul v. Baltimore Upholstering Co., 66 N.J. 111, 129 (1974).]

To meet the criteria of a permanent partial disability upon which to found Fund liability, Quick's condition prior to his employment by Discount Oil, despite its origin outside the workplace, must satisfy standards applicable in an employment context. Katz v. Tp. of Howell (Katz I), 67 N.J. 51, 64-66 (1975). N.J.S.A. 34:15-36 defines a "disability permanent in quality and partial in character" as "a permanent impairment . . . based upon demonstrable objective medical evidence, which restricts the function of the body or of its members or organs; included in the criteria which shall be considered shall be whether there has been a lessening to a material degree of an employee's working ability." This definition has been construed by the Court in Perez v. Pantasote, Inc., 95 N.J. 105 (1984), to require "a satisfactory showing of demonstrable objective medical evidence of a functional restriction of the body, its members or organs." Id. at 116; see also Saunderlin v. E.I. du Pont Co., 199 N.J. Super. 145, 149-51 (App. Div. 1985) (requiring demonstrable objective medical evidence of a disabling psychiatric condition), aff'd, 102 N.J. 402 (1986). Once a functional disability has been demonstrated in this fashion, evidence is required either of a material lessening of the employee's working ability as a result of the condition or of an impairment in carrying on the ordinary pursuits of life. Perez, supra, 95 N.J. at 116-17.

In the present case, petitioner's psychiatric expert, Dr. Tobe, upon whom the judge appeared to extensively rely, did not examine Quick until February 22, 2006, long after the death of Quick's daughter. At that time, the doctor reported that Quick "tended to show diminished eye contact," and he noted Quick's "multiple sighs." Dr. Tobe considered this behavior to be a manifestation of Quick's depression as the result of the loss of his daughter, although the doctor believed that Quick diminished the significance of that event to him. The doctor testified:

[Quick's] need to avoid the emotional significance of his daughter's death shows the tremendous despair this man has been through . . . .

The furrowing of his brow was noted, bradyphrenia [evidencing a loss of self-esteem] was noted, loss train of thought was noted.

As the result of his examination and review of documents, Dr. Tobe concluded that Quick was "struggling with a very significant mood disorder" resulting from his daughters illness and from his own physical problems. He found a twenty-percent permanent total neurological disability, and a sixty percent permanent total psychiatric disability, equally divided between the "tragic loss of [Quick's] daughter" and the effects of his "work injury." Overall, Dr. Tobe found Quick to be "totally disabled from the workplace," determining that he was "unable to sustain gainful employment in a persistent pace." Significantly, although Dr. Tobe found Quick's depression to have been cumulative and to have commenced prior to his workplace accident, the doctor offered no opinion as to whether Quick's initial depression was disabling; no opinion as to the extent, if any, of Quick's disability prior to his employment at Discount Oil; and no objective evidence of the existence of a compensable disability at that time.

The testimony of Dr. Courtney, the psychiatric expert for Discount Oil, was equally non-specific on this point. Dr. Courtney evaluated Quick on March 28, 2002, shortly before his daughter's death, and again on February 14, 2006. In his report of the 2002 examination, Dr. Courtney stated with respect to Quick's psychiatric condition:

His facial expression is not depressed and his affect is not depressed. He appeared in good spirits and smiles frequently. He is not tense. His speech is spontaneous, relevant and coherent. His thoughts are well-organized and there is no indication of thought disorder.

On the basis of his examination, the doctor found a six-percent neurological impairment and a three-percent psychiatric impairment "due to some intermittent mild depressed mood from his back pain and limitations to his activities at work." Apparently, Quick did not disclose his daughter's condition to the doctor at that time. In retrospect, the doctor testified, he found Quick's mental condition to be "amazing" because "that's when his daughter was having the relapse. I didn't really quite understand why he appeared better at that time."

In his later February 14, 2006 report, Dr. Courtney described Quick in the following terms:

On occasion he tears up when talking about his daughter. His facial expression is not depressed. However, the content of his thought is depressed. His speech is spontaneous, relevant and coherent. His thoughts are well organized and there is no indication of thought disorder. He stated that he thinks a lot about his daughter. At night he goes outside and described having a one-way conversation with God and his daughter.

The doctor found that Quick had sustained a three-percent permanent psychiatric impairment "related to his daughter having leukemia and subsequently dying from it due to mild depressed mood and withdrawal." He found a twelve- and one-half-percent permanent psychiatric impairment arising from Quick's workplace injury "due to an Adjustment Disorder with intermittent depressed mood, some intermittent anxiety and frustration."

The judge cited no other objective evidence in the record that would support any conclusion that Quick suffered from a disabling psychiatric condition at the time of his employment by Discount Oil in 1997 or at any time up to the 1998 accident. As a consequence, an evidential basis for an award against the Fund was missing. No evidence was presented that Quick's total disability arose, not only from a work-related accident, but also from a pre-existing disability. Similarly, see Lewicki, supra, 88 N.J. at 81, 88-90. As the Court stated there,

Evidence must be presented to show whether the condition was preexisting and disabling, the extent of disability, and the condition's causal relationship to the permanent disability. A conclusory statement will not suffice.

[Id. at 90.]

Because such evidence is lacking, the award against the Fund must be reversed.

We are additionally satisfied that the evidence at trial established that Quick's 1998 workplace accident rendered him totally disabled, regardless of any prior disability, thereby precluding Fund liability. See N.J.S.A. 34:15-95(a), which provides that if the disability resulting from the last compensable accident, alone, is sufficient to render the petitioner permanently and totally disabled, that petitioner will not be eligible for receipt of Fund benefits, despite evidence of a pre-existing disability. This provision reflects a "legislative policy that the employer at the time of the last accident should not enjoy a windfall of Fund relief 'if the injury from that accident in itself is productive of a disability that qualifies as total and permanent . . . by mere reason of the fact that prior conditions or disabilities may also be contributive to the actual ultimate condition of the work[er].'" Padilla v. Concord Plastics, 221 N.J. Super. 301, 309 (App. Div. 1987) (quoting Katz v. Twp. of Howell (Katz II) 68 N.J. 125, 132 (1975)), aff'd, 113 N.J. 408 (1988).

Quick's disability expert, Dr. Pressman, stated in his September 20, 2004 report and testified at trial that Quick's "overall disability based on the lumbar spine exceeds 100% of total." Dr. Tobe essentially agreed, responding "yes" to the following question: "[W]ould it be your opinion that the Petitioner is totally and permanently disabled from employment as a result of the low back injury of June 3, 1998 along with the neurologic and psychiatric residuals?" The doctor explained his response by testifying:

Well, prior to [the accident] he was working. And I think that if he had been able to continue working, he would have dealt probably better if he hadn't been hurt. I think he would have handled the death of his daughter maybe a little better or at least he would have something to occupy himself if he was working. His mind is elsewhere. He doesn't have to have the guilt. Here he is an injured back guy going in and out of the hospital for surgeries and he wasn't there for his daughter. None of that would exist if he wasn't hurt. And I think that if he had not been injured, he still would be working. . . . [F]irst of all, I don't think he's totally disabled . . . psychiatrically. If he had not been hurt in that June accident, he would still be working. It's my impression that this man's accident has caused him to be disabled in my impression.

A fair reading of this testimony suggests, at most, that any psychiatric condition that Quick experienced prior to his accident had been aggravated by the accident, and that Quick's resulting orthopedic, neurological and psychiatric conditions had combined to render him fully disabled. Such evidence does not establish grounds for liability on the part of the Fund. See N.J.S.A. 24:15-95(c); Zabita v. Chatham Shop Rite, Inc., 208 N.J. Super. 215, 222 (App. Div.) (holding that "to the extent any specific pre-existing injury or condition has been aggravated, activated or accelerated by the later compensable accidental injury the employer will be liable for the disability caused by the compensable injury including any aggravation, activation or acceleration."), certif. granted, 107 N.J. 45 (1986), appeal dismissed, 107 N.J. 139 (1987).

Similarly, when asked whether Quick was "totally and permanently disabled from the work-related injuries of June 3, 1998," Discount Oil's psychiatric expert, Dr. Courtney also answered, "yes." Only orthopedic surgeon, Dr. Bachman, testifying for Discount Oil, did not find total disability arising from the 1998 accident. However, his testimony was rightly rejected by the judge on the ground that the doctor was unaware of any definition of total and permanent disability, and thus his opinions lacked any foundation. See N.J.R.E. 703; Buckelew v. Grossbard, 87 N.J. 512, 524 (1981). The judge further found that the doctor's opinions lacked credibility, since he testified that as an examining physician he had never seen anybody who was totally disabled, even people whose lower extremities were completely paralyzed. Indeed, the doctor was unwilling to state that someone who was bedridden could be considered totally disabled, because that person could work from home by telephone.

As a consequence, the testimony of all the competent, credible evidence of the experts appearing at trial support the conclusion that Quick was totally disabled as the result of the 1998 accident. Any liability on the part of the Fund is thereby precluded by operation of N.J.S.A. 34:15-95(a) and (c).

In reviewing workers' compensation cases, we generally defer to the factual findings and legal determinations with respect to disability rendered by the judge of compensation. Lindquist v. City of Jersey City Fire Dept., 175 N.J. 244, 262-63 (2003). However,

where the focus of the dispute is not on credibility but, rather, alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom, our function broadens somewhat. Where our review of the record "leaves us with the definite conviction that the judge went so wide of the mark that a mistake must have been made," we may "appraise the record as if we were deciding the matter at inception and make our own findings and conclusions."

[Manzo v. Amalgamated Indus. Union Local 76B, 241 N.J. Super. 604, 609 (App. Div.) (quoting Snyder Realty v. BMW of N. Am., 233 N.J. Super. 65, 69 (App. Div. 1989)), certif. denied, 122 N.J. 372 (1990).]

We find it appropriate do so in this case. In this regard, we find that the factual findings of the trial judge lack support in a record that fully substantiates the claim that Quick was totally disabled as the result of his 1998 workplace injury and offers no foundation for the conclusion that only seventy percent of that disability was workplace-related, and that the remaining thirty percent should be attributed to a pre-existing, disabling psychiatric condition.

Moreover, in circumstances in which the wrong legal principles have been applied by the trial judge in fixing percentages of disability, his conclusions require no deference. Perez v. Capitol Ornamental, Concrete Specialties, Inc., 288 N.J. Super. 359, 368 (App. Div. 1996). Here, the trial judge articulated the proper standard when summarizing the position of the Fund, stating:

The Deputy Attorney General, acting on behalf of the Second Injury Fund, submits that even if there were preexisting conditions which were permanent in nature that, nonetheless, the Respondent is not entitled to an award of contribution from the Fund because the injury suffered by the Petitioner from the last injury is of such magnitude that the injury in and of itself would render the Petitioner 100 percent permanently and totally disabled.

However, rather than determining whether Quick's back injury was in fact of such magnitude and if not, calculating the percentage of the total disability attributable to that injury and assigning the difference to the Fund the judge appears to have undertaken an evaluation of Quick's preexisting disability (including that portion occurring as the result of his daughter's death, post-accident) and attributed the remainder to the effects of the 1998 accident, without ever considering the impact of the accident, alone. In light of the evidence presented, such a procedure does not comport with N.J.S.A. 34:15-95(a) and (c) and the precedent that we have discussed. Accordingly, we vacate the judgment entered in this matter insofar as it imposes liability upon the Second Injury Fund, and enter judgment finding Quick to be totally and permanently disabled, solely as the result of his workplace accident of June 3, 1998 and its sequelae.

The judgment against the Second Injury Fund is reversed, and judgment for total permanent disability is entered against Discount Oil Company.

 

The drug is trademarked by Merck under the name Klonopin.

Although Quick testified to six months of counseling and his wife testified to eighteen months, Discount Oil's psychiatric expert, Dr. Courtney, reported that after Quick's daughter went into remission, Quick continued to meet with his priest on a "fairly regular basis twice a month or sometimes every two to three months" until the priest left the parish.

We do not regard this question as compound, as Discount Oil suggests, because when it is read in context it is clear that the residuals to which reference is made are those stemming from the compensable accident in 1998.

(continued)

(continued)

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A-3489-06T1

June 17, 2008