MARTIN BROWN - v. CENTRAL REGIONAL BOARD OF EDUCATION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0025-08T30025-08T3

MARTIN BROWN,

Petitioner-Respondent,

v.

CENTRAL REGIONAL BOARD OF

EDUCATION,

Respondent-Appellant,

v.

SECOND INJURY FUND,

Respondent-Respondent.

____________________________

 

Submitted May 24, 2010 - Decided

Before Judges Rodr guez, Reisner and Chambers.

On appeal from the Department of Labor, Division of Workers' Compensation, Claim No. 1996-26124.

Law Offices of Charles Peter Hopkins, II, attorneys for appellant Central Regional Board of Education (Stephen R. Banks, on the brief).

Law Office of Robert A. Olkowitz, P.C., attorneys for respondent Martin Brown (Mr. Olkowitz, on the brief).

Paula T. Dow, Attorney General, attorney for respondent Second Injury Fund (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Jane G. Lafferty, Deputy Attorney General, on the brief).

PER CURIAM

In this workers' compensation appeal, respondent Central Regional Board of Education (respondent or Board), the former employer of petitioner Martin Brown, appeals from a judgment of the Division of Workers' Compensation awarding Brown permanent total disability, and from a subsequent determination that no benefits were due from the Second Injury Fund. We affirm.

I

Brown, a school custodian, was injured on the job in 1996 during an incident in which he threw a heavy garbage bag into a dumpster. He applied for workers' compensation, and settled that claim on June 2, 1999 for an award of partial permanent disability, primarily relating to problems with his left elbow and right shoulder. Brown retired on a disability pension in 2000, but he had continued medical problems stemming from the 1996 injury. Those problems included several surgeries on his right shoulder, and surgery to fuse five spinal discs in his neck.

Therefore, on August 8, 2000, Brown filed an application to modify the June 2, 1999 award, alleging that his condition had worsened because he was experiencing neck pain. The Board filed an answer on September 25, 2000, denying Brown's claim. Brown filed a motion for medical and temporary benefits on December 2, 2002.

Workers' Compensation Judge Henson entered an order on March 14, 2003, directing the Board to return Brown "to the authorized treating physician Harold Bade, professional orthopedist, for his opinion as to the causal relationship as to Petitioner's neck complaints and need for treatment." Payment records indicate that, thereafter, the Board paid approximately $138,000 from 2003 through 2007 for Brown's treatment and temporary disability benefits, including paying for neck surgery. Brown filed an application to receive benefits from the Second Injury Fund (the Fund) on July 15, 2005.

At the beginning of the trial on Brown's application for additional benefits, Supervising Judge of Compensation Andrew M. Smith, Jr., began by asking counsel if Brown had received any more treatment since his June 2, 1999 award. The Board's attorney noted that Brown had received treatment for his neck and a lump sum temporary disability payment, and said that there was an "issue" as to whether the Board made an overpayment for twenty days of disability. The judge asked if any "medical bills" were in dispute, and Brown's attorney responded, "[n]one as far as I can tell, your Honor. I don't think so." The Board's attorney did not object to that statement or otherwise dispute any of the medical bills at that time. Nor did the Board's attorney indicate that his client intended to dispute that Brown's neck problems stemmed from the 1996 incident.

Brown presented his own testimony as to his severe physical restrictions and resulting emotional problems, and presented two doctors who testified as to his disability. The Board then presented expert testimony opining, among other things, that Brown's neck problems were not related to the 1996 incident. On July 3, 2007, Judge Smith issued a written opinion concluding that Brown was totally disabled due to problems with his shoulder and his neck, and emotional problems secondary to his physical disabilities. However, the judge concluded that he could not award Brown total disability for workers' compensation purposes, because there was insufficient proof that his neck problems were caused by the 1996 incident.

Brown filed a motion for reconsideration alleging, as the judge characterized it, that the employer had "sandbagged" him. Brown contended that he had no notice prior to the hearing that the employer was going to contest that his neck problems were caused by the 1996 incident. He argued that the workers' compensation carrier had previously paid for treatment for the neck including surgery to repair the five cervical discs. Expressing some displeasure that "[n]ow I find after this trial is over, that . . . [respondent's] carrier did treat his neck," Judge Smith determined as a matter of equitable discretion that the hearing should be reopened to take testimony from Brown's treating orthopedic surgeon.

At the supplemental hearing on April 9, 2008, Dr. Harry Bade explained that as early as six days after the accident, Brown's medical records showed that he was complaining about problems with his neck. Bade then traced the repeated references to neck problems in subsequent medical reports over a period of years. However, as Bade explained, Brown's torn right rotator cuff appeared to present a more serious problem, and therefore his treating doctors focused their efforts on his shoulder. In essence, the shoulder injury masked the underlying neck injury. After several shoulder surgeries, Brown continued to have pain in his neck, eventually requiring surgery on the cervical discs. According to Bade, Brown had a pre-existing but asymptomatic degenerative condition in his neck. Bade testified, to a reasonable degree of medical certainty, that the 1996 incident caused the neck to become symptomatic, resulting in the eventual need for surgery to the cervical spine.

Judge Smith found Bade to be a credible witness and, in an oral opinion of June 4, 2008, he found that the 1996 incident had in fact caused the injury to Brown's neck as well as to his shoulder. The judge therefore found that Brown had become permanently and totally disabled as a result of the 1996 injury. Respondent appealed, but we remanded the case for a determination as to whether the Second Injury Fund, which had been a party to the first hearing but was not sent notice of the reconsideration hearing, should contribute to the award. On March 23, 2009, Judge Smith issued an oral opinion concluding that respondent had not carried its burden of proving that the Fund should contribute. The judge found no basis for contribution by the Fund, because the 1996 injury at the school was the sole cause of Brown's total disability.

II

On this appeal, the Board contends that: Judge Smith lacked authority to grant Brown's reconsideration motion; Dr. Bade rendered a net opinion; the neck injury was never properly included in the claim petition; the decision in favor of the Second Injury Fund was against the weight of the evidence; and the judge did not explain the reasons for awarding Brown's attorney additional fees. Having reviewed the record, we conclude that these arguments are all without merit and, except as discussed below, they do not warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following comments.

The Board's assertion that Judge Smith did not have the authority to grant a motion for reconsideration or hear Bade's testimony is without merit. It is well established that "[i]n the absence of a legislative restriction, administrative agencies generally have the inherent power to reopen or to modify and rehear prior decisions." In re Trantino, 89 N.J. 347, 364 (1982). The ability of a compensation judge to reopen or rehear a judgment is consistent with the judge's authority to hear "other motions" pursuant to N.J.A.C. 12:235-3.5. In fact, we recently upheld a compensation judge's decision to award an injured employee total disability benefits after granting a motion for reconsideration. Cooper v. Barnickel Enters., 411 N.J. Super. 343, 344 n.2 (App. Div.), certif. denied, 201 N.J. 443 (2010).

Turning to the merits, our standard of review is deferential. Close v. Kordulak Bros., 44 N.J. 589, 598-99 (1965). Our consideration is limited to "a determination of whether the findings of the judge of compensation could reasonably have been reached on sufficient credible evidence present in the whole record, after giving due weight to his expertise in the field and his opportunity of hearing and seeing the witnesses." De Angelo v. Alsan Masons Inc., 122 N.J. Super. 88, 89-90 (App. Div.), aff'd o.b., 62 N.J. 581 (1973).

Having reviewed the entire record, we conclude that Judge Smith's decision is supported by sufficient credible evidence, and we affirm substantially for the reasons stated in his June 4, 2008 and March 23, 2009 opinions. In a nutshell, if the judge believed Dr. Bade's testimony, Brown injured his neck in the 1996 incident, but his other injuries masked the severity of the neck injury until years later. If, as the judge found, Brown's permanent and total disability was due to the 1996 accident, "irrespective of any previous condition or disability," no contribution was due from the Second Injury Fund. N.J.S.A. 34:15-95(a); Katz v. Twp. of Howell, 68 N.J. 125, 132 (1975). Contrary to the Board's argument, Bade, an orthopedic surgeon, was qualified to testify and did not render a net opinion. Moreover, since he was a treating physician, Bade's testimony could properly be given "greater weight." Pellegrino v. Monahan McCann Stone Co., 61 N.J. Super. 561, 577 (App. Div. 1959), aff'd o.b., 33 N.J. 73 (1960).

At the Workers' Compensation trial, the Board did not raise its procedural objection to Brown's claim of a neck injury, and we will not consider the argument for the first time on appeal. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). We further find no abuse of discretion or other error in the fee award associated with the motion for medical and temporary benefits. The judge awarded the twenty percent allowed by the workers' compensation statute. N.J.S.A. 34:15-64a. While the judge expressed some dissatisfaction with both attorneys' conduct during the trial, he did not criticize counsel's presentation of the motion.

Affirmed.

 

(continued)

(continued)

9

A-0025-08T3

June 30, 2010