KENNETH FALK - v. CENTRAL JERSEY MECHANICAL INC.

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4467-07T14467-07T1

KENNETH FALK,

Petitioner-Respondent,

v.

CENTRAL JERSEY MECHANICAL,

INC.,

Respondent-Appellant,

and

SECOND INJURY FUND,

Respondent-Respondent.

_______________________________________________

 
Telephonically Argued January 23, 2009 - Decided

Before Judges Reisner, Sapp-Peterson and Alvarez.

On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition No. 1998-26682.

Anne M. Hammill-Pasqua argued the cause for appellant (Capehart & Scatchard, attorneys; Michelle L. Duffield, on the brief).

Dominick M. Manco argued the cause for respondent Kenneth Falk (Schibell, Mennie & Kentos, L.L.C., attorneys; Mr. Manco, on the brief).

Linda A. Lockard-Phillips, Deputy Attorney General, argued the cause for respondent Second Injury Fund (Anne Milgram, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Lockard-Phillips, on the brief).

PER CURIAM

Respondent, Central Jersey Mechanical, Inc. (Central Jersey), appeals from the order of judgment entered by a judge of the Division of Workers' Compensation on May 5, 2008, awarding total disability to petitioner, Kenneth Falk, arising out of work-related injuries he sustained. The judge awarded Falk 450 weeks of disability payments as of December 15, 2000, the date temporary benefits were initially granted, and ordered that "he be paid for 450 weeks thereafter, and under Section 95B[] for any disability that he may have after 450 weeks upon certification to the Division of Vocational Rehabilitation."

On appeal, Central Jersey contends the judge erred in dismissing the Second Injury Fund (SIF). Specifically, it urges that (1) Falk sustained either an occupational aggravation of the earlier injury or an injury from a subsequent accident; (2) the judge improperly denied its motion to implead TIG Premier Insurance Company (TIG); (3) Falk is not totally disabled within the meaning of the workers' compensation statute, N.J.S.A. 34:15-1 to -128, or case law; (4) the judge erred when he precluded the parties from submitting post-trial briefs; and (5) the decision reached was not supported by "sufficient credible evidence within the record considering the proofs as a whole."

We have considered these arguments in light of the record, the arguments of counsel and applicable principles, and we are satisfied that (1) the findings of the workers' compensation judge are supported by substantial credible evidence in the record, (2) the judge did not err in denying Central Jersey's motion to implead TIG, and (3) the judge did not mistakenly exercise his discretion when he declined to accept post-trial briefs from the parties. Accordingly, we affirm.

Falk worked for Central Jersey as a pipe fitter and plumber. According to Falk, on March 7, 1998, he was trying to pull a pipe out of a brick wall in a tunnel under a school in New Brunswick when he felt his neck pop. He continued to work that day but two days later, he sought medical treatment by going to a walk-in clinic in Howell where a doctor referred him to Dr. Joseph Marsicano, an orthopedist. Falk underwent an MRI on March 10 that revealed a herniated disc at C5-C6. He received physical therapy over the next several months and returned to full duty on May 16. Because his complaints worsened, he returned to Dr. Marsicano in October with complaints of "increased pain into the posterior neck, the rhomboids, [and] inner scapula area at about the T1 level." Dr. Marsicano recommended that Falk receive a Medrol Dosepak and remain out of work for two weeks. Thereafter, Falk continued to work on and off between the latter part of 1998 and August 1999. During these months of on-and-off employment, he described the pain in his neck as constant. He also experienced constant pain in his right arm, spasms and burning down his shoulder, and headaches. Dr. Marsicano prescribed Oxycontin and other medications, including Vioxx and Skelaxin, that, according to Falk, "didn't really do nothing."

After August 31, 1999, Falk's neck worsened. He testified at trial that his "disc exploded." He did not return to work but underwent a second MRI on September 18, which revealed a "right, large lateral disc herniation at C5-C6" and "a small right lateral disc herniation at C3-C4 and C4-C5." The radiologist noted that the results of the earlier MRI were not available for comparison. Dr. Marsicano performed anterior fusion surgery on October 11. Post surgery, Falk's course of medical care has consisted of physical therapy, facet injections, and pain management, which includes taking prescribed pain medication. Falk testified that he continued to suffer from headaches, spasms and numbness in his arms. He indicated that he is unable to do archery but is able, on a regular, albeit piecemeal basis, to mow the lawn on his property, which is one acre and includes a rear yard the size of a football field.

On August 14, 1998, Falk filed Claim Petition No. 1998-26682, alleging an injury to his cervical spine arising out of the March 7 accident. Central Jersey filed an answer admitting to the compensability of the accident and authorized treatment for Falk. Following the filing of motions for medical and temporary benefits, orders were entered requiring additional medical treatment and awarding temporary benefits to Falk. On June 23, 2003, Falk filed a verified petition alleging total disability as a result of conditions which would make him eligible for SIF benefits pursuant to N.J.S.A 34:15-95 to -95.5. By order dated September 8, 2003, the SIF was joined as a party.

Trial commenced on June 13, 2007, and the court took testimony on non-consecutive days over the course of several months. The workers' compensation judge heard testimony from Falk as well as medical and lay witnesses. Judge Andrew M. Smith, Jr. rendered a bench decision on April 16, 2008. In his oral decision, the judge found that Falk sustained his burden of proving permanent disability. He also found, however, that Falk failed to prove his eligibility to receive benefits payable by the SIF and entered an order dismissing SIF on April 14, 2008. Central Jersey's appeal followed.

Our standard of review from a determination of a judge of workers' compensation is the same standard we employ in the review of any non-jury case. Brock v. Pub. Serv. Elec. & Gas Co., 149 N.J. 378, 383 (1997). "We may not substitute our own factfinding for that of the Judge of Compensation even if we were inclined to do so." Lombardo v. Revlon, Inc., 328 N.J. Super. 484, 488 (App. Div. 2000). Rather, our task is to decide "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record,' considering 'the proofs as a whole. . . .'" Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). Further, we accord "due regard to the opportunity of the one who heard the witnesses to judge of their credibility[,]" and where an agency's expertise is a factor, give due regard to that expertise. Ibid.

Against this standard of review, we turn first to Central Jersey's contention that Judge Smith erred when he dismissed the SIF. We disagree. The SIF is a statutorily mandated source of worker's compensation benefits provided to workers who are already partially disabled, who subsequently experience a work-related injury, and who are rendered totally disabled by the two work-related injuries taken together. N.J.S.A. 34:15-95. 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. See Senate Budget and Appropriations Committee, Statement to Senate Bill No. 2008, June 21, 1999.

Thus, pursuant to N.J.S.A 34:15-95, the SIF is liable when a partially disabled worker becomes totally and permanently disabled as a result of the combination of a work-connected accident or illness and the pre-existing disability. Katz v. Twp. of Howell, 68 N.J. 125, 128-29 (1975) (Katz II). Benefits payable by the SIF are precluded when "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 . . . ." N.J.S.A. 34:15-95(a). Consequently, no benefits are payable by the SIF when compensable disability constitutes total and permanent disability. Katz II, supra, 68 N.J. at 129. The burden of proof to establish the statutory criteria for entitlement to SIF benefits is on the party seeking the benefits. Id. at 131-32.

Central Jersey contends that the record establishes that after Falk returned to work, he sustained a subsequent injury in October 1998 while lifting and that his return to full work duties between May 13 and August 30, 1999, caused an occupational aggravation to a material degree. Citing Katz v. Township of Howell, 67 N.J. 51, 64-65 (1975) (Katz I), and Nelson v. Meeker Foundry Co., 30 N.J. 139, 144 (1959), Central Jersey urges that the subsequent work-related aggravation of Falk's condition, together with the compensable condition, rendered Falk totally and permanently disabled, thereby implicating the SIF.

Central Jersey claims the evidence to support its position is the fact that following his 1998 accident, Falk eventually returned to full duty work until, as Falk testified during the trial, his neck exploded in August 1999. He did not return to work thereafter. Additionally, a second MRI was performed on Falk in September 1999 that revealed two new herniations at C3-C4 and C4-C5, as well as progression of the disc herniation at C5-C6, which, eighteen months earlier, had been described as a moderate herniation.

The judge acknowledged Falk's attempt to return to work following the March 1998 accident. He testified, however, that his return to work was "on and off." The court found that there was "nothing in the history that showed any significant contributing factor that would meet the standards of the Peterson [v. Hermann Forwarding Co., 267 N.J. Super. 493, 504 (App. Div. 1993), certif. denied, 135 N.J. 304 (1994)] case . . . ." We are satisfied that there is sufficient credible evidence in the record from which to conclude that the March 1998 incident was the precipitating event. Close, supra, 44 N.J. at 599 (quoting Johnson, supra, 42 N.J. at 169).

Falk's expert, Dr. Martin Riss, testified that Falk's condition was "within the realm of reasonable medical probability[,] . . . directly and solely related to the March 1998 injury and its sequela." He did not discount that given the kind of work Falk performed, his condition could have been aggravated by work. However, in response to a question from the court whether Falk ever reported that the "work effort" worsened his condition, Dr. Riss responded, "He did not." Additionally, Dr. Riss opined that even if there was evidence of pre-existing pathology, "there was no disability whatsoever until [the March 1998] event."

Central Jersey's expert, Dr. Kenneth C. Peacock, examined Falk on four separate occasions: December 3, 1998; September 9, 1999; June 11, 2002; and May 10, 2005. Following each examination, Dr. Peacock prepared a report. All of the reports were admitted into evidence without objection. In his December 3 report, Dr. Peacock stated: "With regard to the cervical spine, I find [sic] causal relationship to the injury of 3/7/98. He reported this in a timely fashion. The mechanism stated is consistent with the injury suffered. No prior problems were noted. This conclusion is within a reasonable degree of medical probability." In each of the reports that he thereafter authored following his subsequent examinations, he stated that there was "no additional [or new] information to change the opinions expressed in my previous report as to causal relationship" or "change my opinion on causal relationship." In his final report of March 28, 2008, prepared after reviewing medical records provided to him and without the benefit of further examination of Falk, Dr. Peacock wrote:

I would add that there was aggravation of his condition at the time of the October 1998 injury. After the initial flare-up of pain in March 1998, he got to a point where his pain was better. In October 1998 it got worse again and the MRI scan done on 3/10/98 showed a moderate sized posterolateral disc herniation at C5-C6. The MRI scan of 9/18/99 showed a large right lateral disc herniation at C5-C6 but also a right lateral disc herniation at C3-C4 and C4-C5 suggesting worsening which I would attribute to the 10/98 claim. He also had a motor vehicle accident and it does not appear that materially changed his condition.

The trial court rejected the opinions expressed by Central Jersey's experts on this issue and credited the testimony of Falk's experts, in addition to finding Falk's testimony credible on the subject. Given the deferential standard we accord to the factual findings of a judge of workers' compensation, we find no basis to disturb Judge Smith's factual findings in this regard.

Likewise, we find no merit to Central Jersey's contention that Falk failed to prove that he met the statutory or decisional law definition of disabled. N.J.S.A. 34:15-36 provides that "disability permanent in quality and total in character means a physical or neuropsychiatric total permanent impairment caused by a compensable accident or compensable occupational disease, where no fundamental or marked improvement in such condition can be reasonably expected." N.J.S.A. 34:15-36. The Supreme Court stated in Ramos v. M&F Fashions:

[A] finding of permanent total disability cannot be made unless the injured person cannot be reasonably expected to make a fundamental or marked improvement. To be final, the diagnosis must be made at a time when it may be presumed that the disability has become permanent. Because a person diagnosed with a permanent total disability, by definition, cannot be reasonably expected to improve fundamentally, it can be inferred that the person has not made a marked improvement since the diagnosis.

[ 154 N.J. 583, 597 (1998).]

We have previously held that "[t]otal and permanent disability exists where a worker is rendered unemployable in a reasonably stable job market after a work-related accident, notwithstanding that factors personal to the individual play a contributory part in such unemployability." Zabita v. Chatham Shop Rite, 208 N.J. Super 215, 220 (App. Div.) (citations omitted), certif. granted, 107 N.J. 45 (1986), appeal dismissed, 107 N.J. 139 (1987).

Here, Judge Smith adopted the findings and conclusions of Dr. Riss and Dr. Lawrence Eisenstein, who both opined that Falk was totally and permanently disabled and unemployable. In particular, Judge Smith noted the undisputed fact that Falk's current treatment was pain management that included heavy doses of medication, which Judge Smith reasoned "contraindicate[d] to [him] an ability to perform any kind of gainful employment." Once again, these findings are well-supported by the evidence in the record and do not warrant our intervention to correct error.

Central Jersey's remaining points related to Judge Smith's denial of its motion to implead TIG, its insurer, for a portion of the time period during which Falk sought benefits, and his decision to preclude post-judgment briefing, are without sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following brief comments.

Pursuant to N.J.A.C. 12:235-3.4(a),

A respondent who alleges that another employer or insurance carrier may be liable for all or part of the benefits claimed by the petitioner may move to join such employer or insurance carrier as a responding party to the original claim petition by notice of motion which shall be supported by a definitive statement setting forth the factual and legal basis for the relief sought.

"The grant or denial of a motion to implead a third party defendant is a matter left to the sound discretion of the court." Berretta v. Cannon, 219 N.J. Super 147, 154 (Law Div. 1987) (quoting Reinhardt v. Passaic-Clifton Nat. Bank, 16 N.J. Super. 430, 438 (App. Div. 1951), aff'd, 9 N.J. 607 (1952)). Further, "[t]he actions of the trial [judge] in deciding such motions are subject to scrutiny by the appellate courts but generally are left undisturbed, unless the exercise of that discretion is clearly abused." Ibid. (citing Salitan v. Magnus, 28 N.J. 20, 26 (1958)).

The facts here show that Judge Smith ruled appropriately when he dismissed the motion to implead. In denying the motion, he stated that given the time period of the case, Central Jersey could have filed a motion to implead earlier than 2001 and to do so at the time of trial was against the interest of justice:

[I]n looking at the case in its entirety, I think that there was time and, you know, these matters were considered, they were conferenced by the [c]ourt. There was obviously some - - there were motions before Judge Moncher. I should say there was a motion . . . . So we have a long history when it became ripe for trial after treatment had been, or the treatment could produce more than MMI or maximum medical improvement. . . .

. . . .

You know, I disagree. I think there was - - I think that certainly the Respondent could have filed an impleader at the time the Motion for Med. and Temp. was filed and that was never - -

. . . .

That was never done. Judge Moncher in September, 2001 had ordered two month's worth of temporary disability. There was knowledge at that time that, subsequent to the period of coverage during which the accident occurred that there was another insurance carrier. You're asking me to bring in another insurance carrier here and I don't think at this time that it would be in the interest of justice to delay this matter any further to bring in another insurance carrier.

. . . .

Now, with respect to your argument on there is no time limits, it's well understood in Workers' Compensation that if there are no specific rules on a particular matter that the judge can, should apply the rules of Superior Court by analogy. And I know[] that, you know, were this matter pending in Superior Court and we have been through all your discovery and start a trial, there is absolutely no way that you could have, in the middle of trial, brought in another insurance carrier or another party.

So, I'm going to direct that the trial continue.

We are in complete agreement with Judge Smith's determination that Central Jersey could have joined the third party years earlier and his decision to deny the motion was not a mistaken exercise of discretion.

Finally, N.J.A.C. 12:235-3.10(j) provides that "counsel may make closing statements or file post-trial briefs." The language, as demonstrated by the word "may" does not require that there be a submission of briefs. Moreover, Central Jersey does not cite any legal authority that mandates a trial judge to accept post-trial briefs prior to reaching a decision in a contested workers' compensation matter.

Affirmed.

 

A copy of that order was not included in the appendices nor submitted on behalf of either party.

N.J.S.A. 34:15-95.

Magnetic Resonance Imaging

(continued)

(continued)

15

A-4467-07T1

June 16, 2009