ELIZABETH VETRI - v. UTICA NATIONAL INSURANCE CO.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2893-07T12893-07T1

ELIZABETH VETRI,

Petitioner-Respondent,

v.

UTICA NATIONAL INSURANCE CO.,

Respondent-Appellant.

__________________________________________________________

 

Argued January 12, 2009 - Decided

Before Judges R. B. Coleman and Simonelli.

On appeal from the Division of Workers' Compensation, Department of Labor, Claim Petition No. 2006-30594.

Glenn A. Savarese argued the cause for appellant (Braff, Harris, & Sukoneck, attorneys; Mr. Savarese, on the brief).

Paul A. Devlin argued the cause for respondent (Devlin, Cittadino & Shaw, P.C., attorneys; Mr. Devlin, on the brief).

PER CURIAM

Utica National Insurance Company (Utica) appeals from an order for judgment entered January 23, 2008, in the Division of Workers' Compensation (Division) awarding petitioner Elizabeth Vetri permanent and temporary disability benefits pursuant to the Workers' Compensation Act. After a careful review of the record, we affirm the compensation judge's finding of compensable injury and the award of permanent disability benefits. We reverse with respect to the award of temporary disability benefits.

The facts of this case are fairly straightforward. Vetri was employed by Utica and her duties included the performance of clerical work. At the time of Vetri's injury, the Utica office facility in which she worked was a large space consisting of offices and cubicles, with indoor/outdoor carpeting throughout. Vetri testified that on May 30, 2006, she was returning to her workspace from her manager's office when it felt as if her toe had become "stuck in something," her leg twisted, and then she felt an "explosion in [her] knee." Vetri managed to get back to her cubicle and co-workers supplied her with crutches to help her get around the remainder of the day.

The following day Vetri returned to work and continued to use the crutches to walk. When Vetri awoke on the third day, she was unable to stand and her knee was noticeably swollen. Vetri informed her supervisor that she needed medical attention, and called her health benefits carrier who directed her to the Princeton Orthopedic Group. On June 2, Vetri was examined by Dr. Harvey Smires. An MRI revealed a medial meniscus tear and some chondromalacia of the patellar area, as well as a small amount of effusion, i.e. fluid on the joint. On June 22, 2006, Dr. Smires performed a right knee arthroscopy on Vetri, and as a result, she was unable to work from June 1 through July 5, 2006. During this period of time, Vetri received her full salary which was labeled as "sick pay."

Vetri contacted Utica's workers' compensation carrier, Chubb, and spoke with representative Linda Black. Black denied Vetri's claim alleging that Vetri had injured her right knee in an unrelated accident which occurred in 1998. On November 6, 2006, Vetri filed a claim petition with the Division for the injury to her right knee occurring on May 30, 2006. Utica filed an answer asserting that the injury did not arise "out of and in the course of employment."

This matter was tried before the judge of compensation on September 19, October 10, and October 31, 2007. Vetri testified that although she was involved in a car accident in 1998, she did not suffer injuries to her right knee as a result of that accident. Vetri further testified that prior to the injury in 2006, she had led a very active lifestyle. As a result of the injury, Vetri claims she now uses a cane to walk, she cannot kneel on her right knee, dance, or lift heavy objects.

Vetri's orthopedic expert, Dr. Nicholas Diamond, testified that he had examined Vetri on March 22, 2007, and a review of her medical history indicated to him that her right knee was not injured prior to May 30, 2006. Diamond provided the following diagnosis of Vetri's knee:

One would be post-traumatic internal derangement with tear of the medial and lateral meniscus of the right knee. Number two, post-traumatic patellar chondromalacia. Number three, status post right knee arthroscopy, patellar chondroplasty and partial excision of the medial and lateral meniscus. Number four, post traumatic osteoarthritis by clinical impression.

In Diamond's opinion, Vetri had a sixty percent disability in her right leg which was causally related to her 2006 knee injury and subsequent surgery.

Utica offered the expert testimony of Dr. David Gross, an orthopedic surgeon. Gross examined Vetri in June 2007, and testified that her MRI revealed that she had a severely arthritic knee which was confirmed at the time of surgery. Gross further testified that Vetri's description of how the accident transpired was a "classic presentation for arthritis" and posited that Vetri's foot did not get caught on something such as the outdoor carpeting, rather, that her arthritis caused her knee to "lock" which caused her to slip. He concluded that even if there was a "slight twisting motion" during the accident, it was nothing severe enough to cause tears in both the medial and lateral meniscus. In Gross's estimate, Vetri suffered about five percent permanent disability in her right leg as a result of the meniscal tears and the arthroscopic surgery, and he estimated an overall disability, including arthritis, of ten to twelve and one-half percent.

On January 23, 2008, the judge of compensation rendered his decision finding that Vetri's injury did arise out of and in the course of employment. The judge determined that Vetri suffered a thirty-five percent permanent partial disability of the right knee, and awarded a seven and one-half functional loss credit. The judge awarded Vetri permanent disability benefits for 110.25 weeks, and temporary disability benefits for the period of time Vetri was out of work due to the injury.

On February 20, 2008, Utica filed its notice of appeal. Utica raises the following claims on appeal:

POINT I: THE JUDGE OF WORKERS' COMPENSATION ERRED IN DETERMINING THAT VETRI'S ACCIDENT WAS COMPENSABLE UNDER THE WORKERS' COMPENSATION ACT.

POINT II: THE JUDGE OF WORKERS' COMPENSATION ERRED IN AWARDING VETRI TEMPORARY DISABILITY BENEFITS.

We discuss the merits of each in turn.

The Workers' Compensation Act provides "[w]hen employer and employee shall by agreement . . . accept the provisions of this article[,] compensation for personal injuries to . . . such employee by accident arising out of and in the course of employment shall be made by the employer without regard to the negligence of the employer . . . ." N.J.S.A. 34:15-7. An injury "arises out of employment" when "it is more probable that the injury would not have occurred under the normal circumstances of everyday life outside of the employment." Coleman v. Cycle Transformer Corp., 105 N.J. 285, 291 (1986). To determine if this has been satisfied, a judge of compensation must determine the nature of the risk that caused the injury. Ibid. An injury that results from a risk that is "distinctly associated" with employment is compensable. Ibid. An example of such a risk would be slipping on a rug at a place where employment carried the employee. Verge v. County of Morris, 272 N.J. Super. 118, 128 (App. Div. 1994). When a risk is purely personal to the employee, any resulting injury is not compensable because the risk lacks the causal relationship to employment to qualify as "arising out of employment." Coleman, supra, 105 N.J. at 292. These risks are considered "idiopathic." Verge, supra, 272 N.J. Super. at 127.

The employee bears the burden of proof with regard to each element of the claim. Perez v. Pantasote, Inc., 95 N.J. 105, 118 (1984). However, the employer bears "the burden of proving that an injury occurred purely for personal reasons having no work connection." Shaudys v. IMO Indus., Inc., 285 N.J. Super. 407, 415 (App. Div. 1995) (citing Verge, supra, 272 N.J. Super. at 128). The Workers' Compensation statute also provides benefits for injuries which arise out of and in the course of employment which are permanent in quality and partial in character. N.J.S.A. 34:15-7. Generally, these benefits are the sole remedy for injuries occurring in the workplace. Ibid.

The Division of Workers' Compensation "is deemed to have primary jurisdiction to decide compensability issues" such as those here. Kristiansen v. Morgan, 153 N.J. 298, 314 (1998). Thus, with respect to workers' compensation claims, the appellate scope of 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.'" Linquist v. Jersey City Fire Dep't., 175 N.J. 244, 262 (2003) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)); accord Brock v. Public Serv. Elec. & Gas Co., 149 N.J. 378, 383 (1997). The appellate court may not substitute its own factfinding for that of the judge of compensation. Lombardo v. Revlon, Inc., 328 N.J. Super. 484, 488 (App. Div. 2000). The court must defer to the factual findings and legal determination made by 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.'" Linquist, supra, 176 N.J. at 262 (quoting Perez v. Monmouth Cable Vision, 278 N.J. Super. 275, 282 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995)); accord Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 484 (1974).

I.

Utica argues that the judge of compensation erred in determining Vetri had suffered a compensable injury because her right knee condition was purely idiopathic, i.e., an arthritic manifestation. However, a careful review of the record leads us to reject that argument.

To find a compensable accident arising out of the course of employment, the statutory scheme "looks to a causal connection between the employment and the injury." Verge, supra, 272 N.J. Super. at 124 (quoting Coleman, supra, 105 N.J. at 290). Hence, Utica relies on the administrative decision Schleske v. Herr Foods, Claim Petition 98-4029, final decision (January 21, 2003), where the injury was not compensable because it was found to be idiopathic; the result of a tumor-like growth taking years to develop, but as to which the employee's pain associated with the tumor manifested itself at work. However, the facts in Schleske are distinguishable from the case at bar. In Schleske the anatomical nature of the "injury" itself was determinative with respect to its causal relation to the workplace, and the nature of that injury was notably distinguishable from the catalytic nature of the injury in the present case.

Vetri testified that at the time of her injury, it felt as if her foot caught on something in the rug, and then she "felt an explosion in [her] knee and twisted to the left." The judge of compensation found Vetri's testimony to be consistent and credible on this point. The initial claim petition stated Vetri's "right foot twisted." When Vetri first went for treatment, she told Dr. Smires that there was a "slight twisting motion" during the accident. Vetri's description of the accident was similar when she was examined by Dr. Diamond. When Vetri was examined by Dr. Gross, Vetri stated that when she caught her foot there was a "twisting in the right knee." The judge of compensation determined that it was "more likely than not that while [Vetri] was walking at work, her right foot did catch in the carpet [which] caused stress, strain and twisting through her right knee." It is well established that we construe compensability under the Workers' Compensation Act broadly, and "[p]robability, and not the ultimate degree of certainty is the test" we employ. Verge, supra, 272 N.J. Super. at 125 (quoting Jochim v. Montrose Chemical Co., 3 N.J. 5 (1949)).

As to the contradictory expert opinions, the judge of compensation explained that since he did find there was a "catching of the foot," he found the opinion of Vetri's orthopedic expert more persuasive. However, the judge observed that Vetri's testimony, with regard to prior functional loss in her legs, was "delivered in a hurried manner so as to appear rehearsed and moreover the testimony appeared too pat." The judge noted the fact that the MRI report revealed significant medial compartment osteoarthritis, and that the treating physician found a "complete eburnation of the femoral bone over at least one third of the medial surface." Given these findings, the judge determined that Vetri suffered from a "[thirty-five percent] permanent partial disability of the right knee with a functional loss credit of [seven and one-half percent]." The testimony of Utica's expert, Dr. Gross, was clearly given due consideration as evidenced by the award of a functional loss credit.

In Verge, supra, 272 N.J. Super. at 128, we held the employer's burden of proof was not just that the employee did not slip on a rug but that her personal knee condition was the actual cause of her "slip" and her injury. We noted that when a worker's knee gives out or twists for reasons which are purely personal to her, the injury is not compensable under the Act. However, in Shaudys, the reviewing panel held that the burden of proof is on the employer to show that the sole cause of the injury was personal, and that "the twisting step towards the workplace did not contribute to causing the injury." 285 N.J. Super. at 407. The facts present in Shaudys are similar to the case at bar and, in our view, Utica has not met the requisite burden of proof.

Making credibility determinations with respect to medical opinions is within the discretion of the judge of compensation. We find no reason to disturb the judge's determination that Vetri's injury was compensable under the Workers' Compensation Act.

II.

The judge of compensation awarded Vetri temporary benefits for the weeks she missed work June 1, through July 5, 2006, at $358.30 per week for a total benefit of $1,740.31. Utica claims that the judge of compensation erred in awarding temporary disability to Vetri as she was paid full wages during her absence and temporary benefits are meant to replace lost wages. We agree and reverse on the sole issue of temporary benefits.

If an injury results in temporary disability, the employee is entitled to compensation for the period of disability not to exceed four-hundred weeks. N.J.S.A. 34:15-12. Our Supreme Court has instructed that temporary disability compensation is paid in lieu of lost wages. Young v. Western Elec. Co., 96 N.J. 220, 226 (1984).

Where an employer continues to pay wages to an employee after a compensable accident during the period of temporary disability when the employee is not working, a reasonable inference may be drawn that the payments are intended to be in lieu of workers' compensation. In such a situation, there is a clear relationship between the employer's payments and the compensation awarded to the employee. Both cover periods of temporary disability and compensate the worker for the loss of wages resulting from that disability.

[Id. at 226-27 (internal citations omitted).]

"[A]n underlying theme of the workers' compensation law is that there should not be duplicative payments for the same disability." Id. at 231.

In Young, the employee stopped working due to injury on June 4, 1976, and began receiving disability benefits under the employer's private plan beginning on June 6, 1976. Id. at 223. The judge of compensation awarded the employee temporary disability benefits for four-hundred and fifty weeks, commencing on June 6, 1976. Id. at 224. Our Supreme Court held that the employee's workers' compensation award could be offset by the amount he had received under the disability benefit plan because those benefits served as temporary workers' compensation benefits. Id. at 226-27. Our Supreme Court instructed that to hold otherwise, "would be to pay the petitioner twice for the same disability." Id. at 235.

 
Here, it is uncontested that Utica paid Vetri her full salary from June 1, 2006, to July 5, 2006, which was designated as "sick pay." Although this pay was not labeled "disability benefits," it accomplished the same goal with respect to compensating the employee during rehabilitation from an injury arising out of and in the course of her employment. See Cunningham v. Atl. States Cast Iron Pipe Co., 386 N.J. Super. 423, 427 (App. Div. 2006). To allow Vetri to collect temporary disability benefits in addition to her full salary would contravene N.J.S.A. 34:15-38 which provides temporary disability payable during the time period an employee is unable to continue working due to her accident. In our view of the record before us, the judge of compensation's order bestowed upon Vetri a windfall as she recovered "twice for the same disability." Young, supra, 96 N.J. at 235. Therefore, the order awarding temporary disability is reversed.

Affirmed in part, reversed in part.

(continued)

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A-2893-07T1

April 28, 2009