DYMITRIA LYNN COLLETTE v. SOUTH JERSEY TRANSPORTATION AUTHORITY

NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-1175-09T2

DYMITRIA LYNN COLLETTE,

     Petitioner-Respondent,

v.

SOUTH JERSEY TRANSPORTATION
AUTHORITY,

     Respondent-Appellant.


                                               September 7, 2010
         Submitted August 31, 2010 - Decided

         Before Judges LeWinn and J. N. Harris.

         On appeal from a Final Decision of the
         Division    of   Workers'  Compensation,
         Department of Labor, Claim Petition No.
         2008-12471.

                                         Niedelman &
         Cooper,   Levenson,   April,
         Wagenheim, P.A., attorneys for appellant
         (Gerard W. Quinn, on the brief).

         McAllister, Hyberg, White, Cohen & Mann,
         attorneys for respondent (Joseph B. White,
         on the brief).

PER CURIAM

     The South Jersey Transportation Authority (Authority)

appeals from the September 2, 2009 judgment of the workers'

compensation court awarding petitioner Dymitria Lynn Collette

thirty-three and one-third percent permanent partial disability

stemming from a job-related shoulder injury. The workers'

compensation judge based his final decision on the evidence

developed during a plenary trial, finding that petitioner had

satisfied her burden of proof by utilizing objective medical

evidence that proved that occupational conditions caused her

medical problems. The instant appeal largely revolves around the

determined percentage of disability and involves a battle

between the opinions of two permanency experts, with the gloss

of the findings of petitioner's treating physician.

    We have thoroughly reviewed the record in light of the

Authority's contentions on appeal that the judge erred in

accepting and crediting certain testimony.     We reject those

arguments in their entirety and affirm substantially for the

reasons set forth in the September 2, 2009 oral decision

rendered by Judge Jose L. LaBoy.   R. 2:11-3(e)(1)(D). We

similarly find no reversible error in the judge's denial of the

Authority's application for reconsideration.    We add only the

following brief comments.

    The factual background for this appeal is gleaned from the

trial record, which consisted of the testimony of petitioner,

Dr. Ralph G. Cataldo, D.O., and Dr. Anton Kemps, M.D.; as well

as all of petitioner's medical records, including those of the

treating (but not testifying) physician, Dr. Thomas A. Dwyer,




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M.D. The parties further stipulated to the date that plaintiff

incurred her injury, June 12, 2007, and to the fact that the

injury was sustained during the course of her employment. The

treatment that petitioner received----including physical therapy,

surgery (in September 2007), and extensive medication----was

viewed by the parties as reasonable and adequate. Similarly, the

dates of petitioner's examinations and the date she returned to

work with restrictions----around November 5, 2007----were

undisputed. The friction point of the parties' dispute is the

nature and extent of any permanent disability that may have

flowed from the events of June 12, 2007.

     At trial, petitioner's expert, Dr. Cataldo, opined that

petitioner endured a "[fifty-five] percent partial total

disability." Dr. Kemps, expert for the Authority, who reviewed

substantially the same data and examined petitioner only once,

just like Dr. Cataldo, concluded that petitioner's left shoulder

suffered a "[ten] percent partial total disability." Judge

LaBoy, after reviewing the competing opinions of the experts,

including Dr. Dwyer's records, concluded that based upon the

totality of the circumstances, "Dr. Cataldo's opinion [is] more

persuasive and credible in light of the authorized treatment

rendered and the physical examination limitation found by him as

well as Dr. Dwyer." The judge therefore concluded that the




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percentage of disability was demonstrated between the two

endpoints of the spectrum, at thirty-three and one-third

percent. It is from this determination that the Authority now

appeals.

    Our review of the decision of a workers' compensation judge

is quite limited. Magaw v. Middletown Bd. of Educ., 
323 N.J.

Super. 1, 15 (App. Div.), certif. denied, 
162 N.J. 485 (1999).

Our standard of review of a determination issued by a judge of

compensation is no different than our standard of review in any

other non-jury case. Brock v. Pub. Serv. Elec. & Gas Co., 
149 N.J. 378, 383 (1997) (internal citations omitted). We will not

substitute our own fact-finding for that of the judge of

compensation, notwithstanding any inclination to do so. Lombardo

v. Revlon, Inc., 
328 N.J. Super. 484, 488 (App. Div. 2000).

Instead, our assignment is limited to determining "whether the

findings reasonably could have been reached on the basis of

sufficient credible evidence in the record, considering the

proofs as a whole." Close v. Kordulak Bros., 
44 N.J. 589, 599

(1965) (internal quotation omitted). 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, we accord due regard to that expertise as well. Ibid.

While we may defer to the compensation judge's credibility




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determinations, we owe no special deference to the judge's

interpretation of the legal principles applied to the facts.

    One of the Authority's main points on appeal is its

insistence that Dr. Cataldo's opinion should have been

suppressed and not considered because it was rendered

prematurely. The Authority relies upon the twenty-six week rule

of N.J.S.A. 34:15-16, which provides:

         Compensation for all classes of injuries
         shall     run      consecutively,      and    not
         concurrently, except as provided in this
         section and in section 34:15-15           of this
         Title,   as    follows:   First,    medical   and
         hospital services and medicines as provided
         in said section 34:15-15. After the waiting
         period,     compensation     during     temporary
         disability. If total period of disability
         extends beyond 7 days, compensation to cover
         waiting period. Following both, either or
         none    of       the     above,      compensation
         consecutively for each permanent injury,
         except that permanent disability, total or
         partial, shall not be determined or awarded
         until after 26 weeks from the date of the
         employee's final active medical treatment,
         or until after 26 weeks from the date of the
         employee's return to work, whichever is
         earlier, or, if no time is lost or no
         treatment    is    rendered,    then    permanent
         disability, total or partial, shall not be
         determined or awarded until after 26 weeks
         from the date of the accident, except in
         cases of amputation or enucleation or death
         from other cause within that time and except
         when earlier determination of permanent
         disability is waived by the employer or his
         insurance carrier. Nothing herein contained
         shall prevent an employer or his insurance
         carrier from paying permanent disability
         compensation     voluntarily    prior    to   the


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          expiration of the 26-week period. Following
          any or all or none of the above, if death
          results from the accident, expenses of last
          sickness   and   burial.    Following which
          compensation to dependents, if any.

          Where an employer or his insurance carrier
          desires to pay for or furnish compensation,
          medical, surgical, or hospital treatment,
          drugs, orthopedic or prosthetic appliances,
          after the date when payments under sections
          34:15-12 and 34:15-13 of this Title have
          terminated, the employer or his insurance
          carrier may, in writing, reserve the defense
          of the jurisdictional limitations provided
          by sections 34:15-27, 34:15-34, 34:15-41 and
          34:15-51 of this Title; provided, that the
          reservation is approved by a deputy director
          after advising the petitioner personally of
          his rights and of the effect of such
          reservation.

          [(Emphasis added).]

Based upon this statute, the Authority claims that since Dr.

Cataldo determined petitioner's permanency based upon a mere

one-time examination on July 11, 2008, this was less than

twenty-six weeks after her final active medical treatment, which

occurred on March 13, 2008. Although this chronology is correct,

it fails to consider that petitioner returned to work more than

twenty-six weeks before she saw Dr. Cataldo. Thus, even if the

statute were applicable to evidentiary determinations----such as

whether an expert should testify----it did not bar Dr. Cataldo's

opinions because they were determined "after 26 weeks from the

date of the employee's final active medical treatment, or until




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after 26 weeks from the date of the employee's return to work,

whichever is earlier." Ibid.

    Considering the contradictory opinions of the permanency

experts, who did not disagree that petitioner was entitled to

some measure of percentage disability award, we will not disturb

the judge's reasoned exercise of discretion in finding Dr.

Cataldo's opinion to be more compelling, credible, and

persuasive than that of the other expert. The resolution of the

question of the percentage of disability was largely "a battle

between experts." Das v. Thani, 
171 N.J. 518, 524 (2002).

Assessing the credibility of expert testimony is uniquely within

the province of the judge of compensation. He was never bound to

accept the testimony of an expert witness. The judge heard all

of the expert testimony, weighing it along with the testimony of

petitioner and other evidence introduced during the trial, and

made his determination.   Based upon our careful review of the

record, we are convinced that appellate intervention for any of

the reasons asserted by the Authority would be a usurpation of

the judge of compensation's proper exercise of discretion.

    Affirmed.




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