RONALD NISIVOCCIA - v. COUNTY OF ESSEX

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1864-07T21864-07T2

A-1946-07T2

RONALD NISIVOCCIA,

Petitioner-Respondent,

v.

COUNTY OF ESSEX,

Respondent-Respondent,

and

SECOND INJURY FUND,

Respondent-Appellant.

_______________________________

RONALD NISIVOCCIA,

Petitioner-Respondent,

v.

COUNTY OF ESSEX,

Respondent-Appellant,

and

SECOND INJURY FUND,

Respondent-Respondent.

_________________________________

 

Argued January 21, 2009 - Decided

Before Judges Winkelstein, Fuentes and Gilroy.

On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, 00-4538.

Jane G. Lafferty, Deputy Attorney General, argued the cause for appellant in A-1864-07T2/respondent in A-1946-07T2 Second Injury Fund (Anne Milgram, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Lafferty, on the brief).

Colleen E. Patterson argued the cause for appellant in A-1946-07T2/respondent in A-1864-07T2 County of Essex (Rogut McCarthy LLC, attorneys; Ms. Patterson and Daniel J. McCarthy, on the brief).

Richard A. Greifinger argued the cause for respondent Ronald Nisivoccia.

PER CURIAM

This is a consolidated workers' compensation appeal. Following a bifurcated trial pursuant to N.J.A.C. 12:235-5.1(a)2, the Division of Workers' Compensation (Division) entered an order on November 16, 2007, that, among other matters, determined: 1) petitioner Ronald Nisivoccia permanently and totally disabled as of February 1, 2002, pursuant to N.J.S.A. 34:15-95; 2) apportioned responsibility for payment of workers' compensation benefits to petitioner between respondents, the County of Essex (County) and the Second Injury Fund (Fund), with 35% allocated to the County and 65% to the Fund. The order further directed that thereafter, the Fund is to continue payment of benefits to petitioner pursuant to N.J.S.A. 34:15-95. The Fund appeals under Docket No. A-1864-07; the County appeals under Docket No. A-1946-07. On May 1, 2008, this court entered an order consolidating the two appeals. For reasons that follow, we reverse and remand to the Division for a new trial.

I.

The County employed petitioner as a Deputy Sheriff for approximately thirty years. On January 19, 2000, petitioner suffered an injury during the course of his employment. On February 11, 2000, petitioner filed a claim petition against the County. On August 26, 2002, petitioner filed a motion seeking to join the Fund. On February 14, 2003, the Workers' Compensation Court granted the motion and entered an order accordingly. On the same day, the court conducted a settlement conference, but the matter did not settle. On June 23, 2004, the court, pursuant to N.J.A.C. 12:235-5.1(a)2, bifurcated the matter for trial, removing the case from the Fund's list to a day when the County was regularly scheduled to appear.

Pursuant to the regulation, the Compensation Court first conducted a trial to determine whether petitioner was totally and permanently disabled, after which the court reserved decision. The Fund did not participate in the first phase of the trial. During that part of the trial, the following witnesses testified on behalf of the petitioner: Dr. Arthur Tiger, an orthopedist; Dr. Peter Crain, a psychiatrist; and petitioner. In addition, petitioner introduced a neurological report from Dr. Arthur C. Rothman. The County countered by producing testimony from Dr. David Gross, an orthopedist; and Dr. David Scasta, a psychiatrist. The County also moved into evidence a neurological report from Dr. Steven Lomazow.

On July 24, 2006, the court issued a written decision, determining petitioner "totally and permanently disabled" as a result of his orthopedic and psychiatric disabilities resulting from the injury to his left shoulder in the 2000 accident, combined with his pre-existing orthopedic and neurological conditions resulting from four prior work-related accidents. Accordingly, the court set the matter down for trial "as to the [F]und's participation in totality[,] . . . whether it wishes to conduct cross-examination of the petitioner; [and] as to apportionment of the permanency, the allowance of fees and costs."

The Compensation Court conducted the second phase of the trial on January 24 and March 28, 2007. On January 24, 2007, the court granted the Fund leave to cross-examine petitioner. On March 28, 2007, the court denied the Fund's request to cross-examine petitioner's medical witnesses who had testified during the first phase of the trial. On April 12, 2007, the Fund filed a notice of motion seeking to re-open the record, supplement oral argument, and for reconsideration of the court's decision denying its request to cross-examine medical witnesses. In its motion, the Fund sought to cross-examine not only petitioner's medical witnesses who testified during the first phase of the trial, but also the County's medical witnesses. On July 9, 2007, the court denied the motion, stating its reasons in its July 27, 2007 supplemental written decision addressing the second phase of the trial.

Although the court acknowledged that it had the discretion to grant the requested relief, it denied the Fund's motion to cross-examine the medical witnesses, determining that "[t]he Fund has failed to prove to the court that additional testimony is warranted. It has failed to prove to the court that other facts not yet of record would be adduced. It would be unfair, unreasonable and an abuse of discretion to prolong the petitioner's case for years."

As to the issue of allocation of payments between the County and the Fund, the court determined that the County "is liable for 35% permanent partial total disability apportioned at 30% for the orthopedic residuals and 5% for psychiatric residuals" or "35% of 450 weeks or 157.5 weeks at the maximum weekly compensation rate for [the] calendar year 2000 at $568.00 or $89,460.00." The court determined the Fund liable "for the remaining 292.5 weeks of the 450 weeks payable at the $568.00 rate for $166,140[.00]." The court also ordered the Fund to continue payments to the petitioner thereafter per the statute. A confirming order was entered on November 16, 2007. On January 10, 2008, the court filed a supplemental memorandum of decision with this court pursuant to Rule 2:5-1(b).

II.

Prior to January 19, 2000, petitioner suffered four work-related accidents in which he received awards for permanent partial total disabilities. In 1979, petitioner was struck by a car while employed by the Sheriff's Department and received an order approving settlement for 12.5% partial total disability for two bulging disk injuries in his lower back. In 1988, after petitioner injured his right hand and back, he received an order of judgment for 7.5% partial total disability for lumbosacral and cervical sprains, and for 7.5% partial total disability for injuries to his right hand, resulting in scarring and deformity of the third finger. In 1992, after falling in a parking lot, petitioner received an order of judgment for 25% partial total disability for the residuals of spondylolisthesis, central disk protrusion at L4-5 and at L5-S1, with right-sided radiculopathy. That judgment contained a stipulation that petitioner had a prior partial total disability of 5% for the lower back. The fourth accident incurred in 1995 when petitioner was working part time as a baggage handler for Delta Airlines during off hours with the Sheriff's Department. As a result of that accident, an order approving settlement was entered awarding petitioner 30% partial total disability for orthopedic and neurological disabilities attributable to left hand carpal tunnel syndrome with release, and a probable tear of the left shoulder.

On January 19, 2000, petitioner suffered a compensable injury when he sat down at his desk and the chair slipped out from beneath him causing him to fall, injuring his left shoulder, neck and back. Petitioner is left-hand dominant. As a result of the accident, petitioner was unable to lift his left arm more than six inches. Because petitioner's shoulder did not respond to physical therapy, petitioner underwent an operation in June 2000, in which the outer portion of the collar bone was shaved off and the rotator cuff repaired. After the surgery, petitioner still suffered from inability to properly move his shoulder. Accordingly, he underwent a second surgery in December 2000, in which the outer portion of the collar bone was completely removed.

Following each of the aforementioned accidents, petitioner returned to work at the Sheriff's Department where he continued to qualify to carry a gun until the January 2000 accident. During petitioner's employment with the Sheriff's Department, he worked various part-time jobs during his employment off hours. Prior to 1990, petitioner worked for Tuscan, a milk company, assisting the company in resolving theft issues. Sometime during the early 1990's, he became a part owner and operator of a gas station in Montville. He also worked for Haynes Security for eight years prior to the 2000 accident. The Haynes Security shift ran approximately six to eight hours, depending on the company's needs and his County work schedule. According to petitioner, he worked security at Seton Hall Law School for approximately five or six years where he described the job as: "[s]itting in the car, just getting up, just standing there . . . ."

Petitioner testified that prior to his 2000 accident, he was in good health. He worked out seven days a week lifting weights. In addition, petitioner did approximately 900 sit-ups a day. In 1997, petitioner requested and received a transfer from the narcotics division to the civil process division where, generally, he continued to be out of the office and on the road every day.

After the second surgery following the 2000 accident, petitioner returned to work on February 1, 2002, and was assigned to permanent restricted light duty where he remained in the office answering phones and processing civil matters. Because of the injury to his left hand, he no longer physically qualified to carry a weapon. Petitioner disliked being assigned to an office: "I wasn't an office person. I was always a street person," used to the freedom of being on the road. Petitioner continued to work on permanent restricted light-duty schedule until June 2002 when he decided to retire. Following his decision, petitioner used accumulated sick leave and vacation time until February 2003. While receiving accumulated sick leave and vacation time, petitioner returned back to work part time for Haynes Security and was assigned to his previous job at the Seton Hall Law School parking lot. Petitioner ended his part-time employment in February 2003, and moved to Nevada in April 2003.

During the first phase of the bifurcated trial, Dr. Tiger testified to petitioner's orthopedic disability. Dr. Tiger first saw petitioner on February 14, 2000, for the purpose of determining whether petitioner needed any further treatment. The doctor found that he did. Dr. Tiger examined petitioner again on September 11, 2000, following petitioner's arthroscopic repair of the rotator cuff. The doctor next examined petitioner on January 18, 2002, approximately thirteen months after the second shoulder surgery that consisted of a "subacromial decompression, and a complete resection of the AC joint and excision of the distal clavicle." It was the doctor's opinion that both surgeries failed.

Dr. Tiger further opined that petitioner has a permanent partial total disability of 17.5% to his neck and back, and 45% to his left shoulder. It was the doctor's conclusion that petitioner is 100% totally disabled as a result of the disability suffered from the 2000 accident and the pre-existing partial total disabilities suffered from the prior accidents. According to Dr. Tiger, petitioner's prior workman's compensation awards total up to 75% partial total; therefore, with the disability suffered from the 2000 accident, he believed it rendered petitioner totally disabled. During his testimony, the doctor acknowledged that he could not recall whether he had ever received or reviewed petitioner's treating records.

Dr. Crain testified to petitioner's psychological disability. The doctor diagnosed petitioner as suffering from "adjustment disorder with depressed mood, chronic." He estimated that petitioner suffers "a psychiatric disability of 35% of total." Without objection, petitioner next introduced a report dated March 18, 2002, from Dr. Rothman, a neurologist. Dr. Rothman examined petitioner on March 5, 2002, and opined in the report that petitioner suffered from cervical radiculopathy and has a partial permanent disability of 20% of total from a neurological standpoint.

The County defended the claim through testimony of its medical witnesses. Dr. Gross testified to petitioner's orthopedic injury. Dr. Gross examined petitioner on April 10, 2002. The doctor opined that petitioner suffers a "permanent disability of 3% of partial total" for injuries to the left shoulder. As to future employment, he opined that although petitioner can no longer serve as a Sheriff's Officer, "he would be capable of some lighter work which would put less demand on the shoulder." The County next called Dr. Scasta, who performed a psychiatric evaluation of petitioner on October 28, 2003. Although the doctor concluded that petitioner was conscientiously engaging in "symptom embellishment" in pursuit of his claim petition, he opined that petitioner did appear to have an adjustment disorder with depressed mood that is "mild in character and constitutes 2-1/2% relatively permanent partial psychiatric disability." Lastly, the County introduced a neurological report from Dr. Lomazow, who examined petitioner on June 10, 2002. According to the doctor's report, he found no neurological disability.

In the Compensation Court's decision of July 24, 2006, it found that although petitioner "did exaggerate his complaints at his evaluations[,] that does not discredit his orthopedic injuries." The court credited petitioner's testimony that he was unable to sit or stand for long periods of time when he attempted more sedentary work, and consequently concluded that he was totally and permanently disabled. In reaching its decision, the court reasoned:

I am satisfied from the demonstrable objective medical evidence, the MRI/diagnostic tests, the course of treatment, the surgeries and the permanency evaluations that [petitioner] has sustained permanent partial total disability, orthopedic and psychiatric in nature for residuals of the left shoulder.

The next issue is determining whether the injury is serious enough to merit compensation. . . .

Although I find that petitioner did exaggerate his complaints at his evaluations that does not discredit his orthopedic injuries. Point in fact, [petitioner's] second surgery removed the outer portion of the clavicle bone. Evidently, when the end of a bone is sawed off from your skeleton[,] it tends to affect the integrity of the anatomy; the procedure creates permanent movement restrictions at the shoulder joint. The most profound consequence of this shoulder injury was [petitioner's] inability to carry arms. Dr. Gallick released him from treatment with permanent work restrictions; he could not be assigned to a position that entailed overhead lifting, reaching or carrying and he was not allowed to carry a weapon. This restriction resulted in an assignment to the courthouse at desk duty. It also resulted in [petitioner's] decision to retire after 28 years of public service. As he testified at trial, a police officer without a gun is just a paper pusher.

Although initially his retirement to Las Vegas seemed suspect to the court, a fact to be considered in juxtaposition to his cries of totality, once I heard his explanation it seemed credible and reasonable to infer that a police officer of 28 years that is told late into his career that he can no longer carry a gun whom had the years of service to retire would in fact do so.

As it relates to his personal life, this injury has affected his ability to conduct household chores such as cooking, cleaning and painting; he cannot participate in recreational sports such as swimming, snorkeling and scuba diving; he experiences sleeping disturbances throughout the night.

Petitioner has proven to this court that the residuals from his traumatic injury do substantially interfere with his ability to perform his daily living activities. The restrictions that he described during his testimony are serious enough to interfere substantially with his ordinary pursuits of life.

After considering the objective medical evidence presented and petitioner's subjective complaints, I find that [petitioner] has suffered orthopedic and psychiatric permanency resulting from his left shoulder injury.

. . . .

I find no permanent disability to either the neck or back as a result of this accident. These are injuries that resulted in non-compensable minor disabilit[ies].

Since the petitioner is alleging total and permanent disability due to a combination of the traumatic accident of January 19, 2000 and his pre-existing medical conditions, he must also prove the elements contained at N.J.S.A. 34:15-95 to assess liability against the [Fund]. . . .

In this regard the precedent case law is such that a workman does not have to be bedridden to be totally and permanently disabled, nor does he need to be absolutely disabled or totally paralyzed or completely unable to get about. Total and permanent disability is found if the workman after the causative accident is rendered unemployable in a reasonable job market.

The respondent has conceded that the petitioner cannot work as a police officer because as his employer it disarmed him of his weapon due to the disability in his left hand, arm and shoulder. Furthermore[,] Dr. Gallick discharged him from medical treatment with permanent work restrictions. As a result of said restrictions, he was assigned to a desk job in the courthouse.

I find that even in the performance of that job, the petitioner had difficulty in sitting for prolonged periods of time or standing for prolonged periods of time. Since he also had prior left wrist (in an individual that is left[-]hand dominant) carpal tunnel surgery release he had problems performing any duties that entailed any repetitive movement of his hand.

Based on the history of preexisting medical orthopedic and neurological conditions and partial permanency combined with the partial permanent residuals of the traumatic accident, the four experts' estimates of disability, the persuasive argument that petitioner has been disabled since November 2003 from a social security standard, I am convinced that [petitioner] is totally and permanently disabled overall.

Respondent and the [Fund] are entitled to social security credit offset from its permanency obligations as permitted by law.

The court will set this matter for future hearing. At that time the matter shall be conferenced with the parties as to the [F]und's participation in totality or whether it wishes to conduct cross-examination of the petitioner; as to apportionment of the permanency, the allowance of fees and costs.

In the second phase of the trial, the court permitted the Fund to cross-examine petitioner; but restricted the Fund to the record with respect to the medical testimony. After cross-examination and oral argument, the court determined that the Fund was "liable for 35% permanent partial total disability apportioned at 30% for the orthopedic residuals and 5% for the psychiatric residuals. . . ." In reaching its decision, the court stated:

First, in determining that petitioner was totally and permanently disabled, the court did not simply add the percentage of disabilities, get a number add it to the subject disability to total 100. Precedent case law binds this court in its actions. It cannot do that. It is the nature of the injuries and their permanent restrictions that dictate the finding of totality. [Petitioner's] history of injuries, medical procedures and correlating permanent restrictions were the factors weighed by this court in rendering its decision.

A confirming order was entered by the court on November 16, 2007. It is from that order that the County and the Fund now appeal.

On appeal, the Fund argues:

POINT I.

THE DETERMINATION OF SECOND INJURY FUND LIABILITY SHOULD BE REVERSED AS THE JUDGE OF COMPENSATION ABUSED HER DISCRETION BY HER FAILURE TO PERMIT THE FUND AN OPPORTUNITY TO CROSS-EXAMINE MEDICAL WITNESSES AND EXAMINE THOSE PROOFS NECESSARY TO DETERMINE SECOND INJURY FUND ELIGIBILITY CONSISTENT WITH THE STATUTE AND CASE LAW, THUS FAILING TO PERMIT A TRUE AND FULL DISCLOSURE OF THE FACTS AS REQUIRED BY N.J.A.C. 12:235(e)1.

POINT II.

THE DECISION OF THE JUDGE OF COMPENSATION SHOULD BE REVERSED BECAUSE THE JUDGE FAILED TO PROVIDE AN ADEQUATE ARTICULATION OF THE BASIS FOR HER DETERMINATION OF FUND LIABILITY BASED UPON THE RECORD IN ITS ENTIRETY.

POINT III.

[T]HE DECISION OF THE JUDGE OF COMPENSATION SHOULD BE REVERSED AS THE RECORD DOES NOT SUPPORT [PETITIONER'S] CLAIM THAT HE IS TOTALLY DISABLED AND THAT HE BECAME UNEMPLOYABLE FOLLOWING THE COMPENSABLE ACCIDENT.

POINT IV.

THE EVIDENCE DID NOT SUPPORT THE CONCLUSION BY THE JUDGE OF COMPENSATION THAT [PETITIONER'S] EMPLOYMENT AT HAYNES SECURITY WAS SHELTERED EMPLOYMENT OR THAT HIS AGE, EDUCATION, APTITUDE, OCCUPATIONAL EXPERIENCE AND PAST MEDICAL HISTORY ESTABLISHED THERE WAS NO POTENTIAL FOR REHABILITATION.

POINT V.

THE JUDGE OF COMPENSATION ERRED IN AWARDING [PETITIONER] PERMANENT TOTAL DISABILITY BENEFITS DURING A PERIOD OF TIME HE WAS STILL EMPLOYED AND RECEIVING HIS SALARY AS A COUNTY EMPLOYEE.

On its appeal, the County argues that the compensation court erred in determining petitioner totally and permanently disabled as a result of the January 19, 2000 accident because the court failed to consider: 1) petitioner's employability and physical fitness; and 2) petitioner's embellishment of his injuries. Alternatively, the County argues that if the trial court correctly concluded petitioner was totally and permanently disabled, then the Fund was properly determined liable and the court's allocation of total and permanent disability should not be disturbed.

III.

"Courts generally 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).

The Fund is established by statute, N.J.S.A. 34:15-95, which provides, in part:

compensation payments in accordance with the provisions of paragraph (b) of R.S. 34:15-12 shall be made 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.

 
(d) If a person who is rendered permanently partially disabled by the last compensable injury subsequently becomes permanently totally disabled by reason of progressive physical deterioration or preexisting condition or disease.

 
Nothing in the provisions of said paragraphs (a), (c) and (d), however, shall be construed to deny the benefits provided by this section to any person who has been previously disabled by reason of total loss of, or total and permanent loss of use of, a hand or arm or foot or leg or eye, when the total disability is due to the total loss of, or total and permanent loss of use of, two or more of said major members of the body, or to any person who in successive accidents has suffered compensable injuries . . . .

The Fund was enacted to protect employers who hire partially disabled workers from an unfair burden and to protect employees from being denied employment because of a preexisting condition. Lewicki v. N.J. Art Foundry, 88 N.J. 75, 83 (1981); Paul v. Baltimore Upholstering Co., 66 N.J. 111, 124 (1974). "[E]mployers can no longer be subject to the entire risk of liability for total disability when it is established by competent evidence that there is a previous measurable functional disability." Gulick v. H.M. Enoch, Inc., 280 N.J. Super. 96, 115 (App. Div. 1995). "Thus, in a total disability case the subsequent employer may only be held responsible for the direct consequence of an accident or exposure, including the extent to which it aggravates or accelerates the preexistent condition, but excluding any separate and quantifiable previous disability." Ibid. Simply stated, "the Fund is liable when a partially permanently disabled worker becomes totally and permanently disabled as a result of a work-connected accident . . . that, in combination with the preexisting physical impairment, results in permanent total disability." Lewicki, supra, 88 N.J. at 83.

The Fund statute is not remedial in nature and is not subject to a court's liberal construction in favor of employers. Katz v. Twp. of Howell, 68 N.J. 125, 131 (1975). Indeed, "[t]he true adverse party in a fund case is not the employee but the employer or his [or her] insurer." Id. at 132. Accordingly, liability will only be attributed to the Fund "when the statutory requirements have been fully met," Lewicki, supra, 88 N.J. at 84; and the burden of proving Fund liability rests on the party seeking to impose it. Katz, supra, 68 N.J. at 132. It is against these principles that we consider the arguments presented.

IV.

The Fund argues that the Compensation Court erred in denying its request to cross-examine the medical witnesses during the second phase of the trial. The Fund contends that the court improperly determined the Fund's liability in the first phase of the trial, although it did not participate during that phase. We agree.

N.J.A.C. 12:235-5.1 governs the general procedures to be followed by the Compensation Court in cases alleging Fund liability. The regulation provides in relevant part:

(a)2. If a settlement cannot be effectuated . . . the matter may be bifurcated and listed for trial on a day when the probable responsible respondent is regularly scheduled to appear.

. . . .

(e) If the Judge of Compensation finds that the petitioner is totally and permanently disabled and the total and permanent disability may be the result of the last compensable accident together with pre-existing conditions, the Judge of Compensation shall schedule a hearing upon the application for Fund benefits on a day when the Deputy Attorney General representing the Fund regularly appears.

 
1. The hearing to determine whether the petitioner is entitled to Fund benefits shall be upon the transcript of the hearing for benefits previously heard, supplemented by oral and documentary evidence as may be required in the discretion of the Judge of Compensation for a full and true disclosure of the facts as to Fund responsibility and where applicable, as to an apportionment of the responsibility of the Fund.

Here, following the first phase of the trial, the court scheduled a hearing and allowed the Fund to cross-examine petitioner, but denied the Fund's request to cross-examine the medical witnesses. The court explained: "The Fund has failed to prove to the court that additional testimony is warranted. It has failed to prove to the court that other facts not yet of record would be adduced. It would be unfair, unreasonable and an abuse of discretion to prolong the petitioner's case for years." The Fund first argues that the court improperly denied its request to cross-examine the medical witnesses, citing Paco v. Am. Leather Mfg. Co., 213 N.J. Super. 90 (App. Div. 1986). In Paco, the employer appealed from an award of compensation benefits based on the court's determination that the petitioner had suffered a permanent disability of 6% of the left hand. Supra, 213 N.J. Super. at 91. Because of the minor nature of the injury, the Compensation Court, after hearing petitioner's testimony, instructed the parties to submit medical reports in lieu of testimony. Id. at 92. The employer objected, arguing that it desired to produce witnesses from the petitioner's employment, cross-examine petitioner's medical witnesses, and produce its own medical witnesses. Ibid. Notwithstanding the objection, the court concluded that the reports were sufficient for it to determine the petitioner's disability. Ibid.

On appeal, we determined that administrative regulations cannot be "construed to infringe upon the substantive rights of either party." Id. at 93. Accordingly, we concluded that the employer's "fundamental right to due process which includes the right to present and cross[-]examine a witness, must be respected." Ibid.

In applying Paco to the present matter in determining the Fund's liability and the apportionment for payment of benefits, the court should have afforded the Fund "the right to cross-examine witnesses and to produce evidence to address the relevant issues in a contested proceeding." Id. at 96. By denying the Fund's request to cross-examine the medical witnesses, the court impinged upon the Fund's fundamental right of fairness.

For example, Dr. Tiger based his opinion that petitioner was totally disabled "on that he had many prior accidents and awards and if you total up his prior awards it was totaled up to 75 percent partial total for his accident[s] of '82, '87[,] '92 and '95, as well as [7-1/2%] of the right hand." The doctor continued, "[s]o when he entered this accident with a lot of disability in the bag, so to speak, I felt this accident was enough to make him totally disabled."

However, petitioner testified that prior to the 2000 accident, he performed at a high functional capacity in not only his job with the County, but also in his part-time jobs and physical workouts. Under these circumstances, we are satisfied that the Fund should have been permitted to cross-examine Dr. Tiger as to the amount of disability he accorded to each of the pre-existing awards based on petitioner's testimony as to his functional abilities, not just a mere calculation of the prior disability awards. "[T]he validity of a medical finding of a permanent injury may decrease with the passage of time." Perez v. Pantasote, Inc., 95 N.J. 105, 119 (1984).

We also agree with the Fund's contention that the court improperly determined it liable under N.J.S.A. 34:15-95 during the first phase of the trial contrary to N.J.A.C. 12:235-5.1(a)2. In the court's July 24, 2006 opinion, the court impliedly concluded that the Fund was liable for compensation benefits to the petitioner, scheduling the matter for a hearing as to the Fund's "participation in totality . . . as to apportionment of the permanency . . . . " This determination denied the Fund an opportunity to challenge its liability under the Fund statute. That determination should have awaited the second phase of the trial when the Fund could have contested the proofs proffered by petitioner and the employer. Paco, supra, 213 N.J. Super. at 93.

V.

The Fund and the County argue that the compensation court erred in determining petitioner totally and permanently disabled, contending that the court's findings that petitioner was not employable was not supported by credible evidence in the record. We agree.

An injured employee bears the burden of proving his or her compensation claim by a preponderance of the evidence. Perez, supra, 95 N.J. at 118. The employee must demonstrate his or her injury with demonstrable objective medical evidence, not simply by his or her own subjective complaints. Id. at 116-18. "An award of compensation cannot rest upon imagination, surmise or conjecture, or upon speculation." DiCostanzo v. Matthews Constr. Co., 110 N.J. Super. 383, 389 (App. Div. 1970), aff'd, 58 N.J. 159 (1971).

To be considered disabled and unemployable, a "workman need not be bedridden, paralyzed, or unable to get about; nor is ability for light or intermittent or sedentary work inconsistent with total disability." Zabita v. Chatham Shop Rite, 208 N.J. Super. 215, 221 (App. Div. 1986), appeal dismissed, 107 N.J. 139 (1987). However, the employee will be found to be permanently and totally disabled if, as a result of the employee's injuries, he or she is determined to be "'unemployable in a reasonably stable job market' after a work-related accident." Id. at 220 (quoting Katz, supra, 67 N.J. at 62).

Here, neither the Fund nor the County challenges the court's finding that petitioner can no longer perform the duties of a Sheriff's Officer because of the residual disabilities to his left shoulder resulting from the 2000 accident. However, appellants contend that the court failed to consider the level of petitioner's functional capacity to perform less strenuous work, citing for example, petitioner had been medically cleared to return to work with the County after the 2000 accident, albeit restricted to light duty. In addition, appellants' cite to petitioner working for Haynes Security after he left the County's employment before moving to Las Vegas. We are satisfied that the court erred by not considering whether petitioner was physically able to perform less strenuous types of work in reaching its decision that he was "unemployable."

We also note that in reaching its decision that petitioner was not employable, the court mistakenly based its conclusion in part on petitioner's subjective complaints, not the credible evidence. In so doing, the court found that petitioner "had difficulty in sitting for prolonged periods of time or standing for prolonged periods of time. Since he also had prior left wrist . . . carpal tunnel surgery release[,] he had problems performing any duties that entailed any repetitive movement of his hand." Notwithstanding the court's factual determinations, the record is devoid of medical evidence supporting such findings. Indeed, to the contrary, after petitioner's left carpal tunnel release in 1997, petitioner returned to full-time work and to his part-time, non-County-related jobs. At oral argument, petitioner countered that Dr. Crain's report of November 1, 2002, supported the court's finding that petitioner cannot sit for prolonged periods of time, thereby preventing him from performing sedentary desk type of work. Not so. The reference to petitioner suffering pain when sitting is not contained in the doctor's medical findings, but rather in petitioner's history of subjective complaints.

Accordingly, we reverse the order of November 16, 2007; and remand to the Division for a new trial.

 
Reversed.

(continued)

(continued)

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A-1864-07T2

August 25, 2009