JAMES ALLEN - v. THE GREAT ATLANTIC & PACIFIC TEA COMPANY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1333-09T1

JAMES ALLEN,

Petitioner-Respondent,

v.

THE GREAT ATLANTIC & PACIFIC

TEA COMPANY,

Respondent-Appellant,

and

SECOND INJURY FUND,

Respondent-Respondent.

___________________________________

December 21, 2010

Submitted November 17, 2010 - Decided

Before Judges Fuentes, Ashrafi and Nugent.

On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, Case No. 2005-13683.

Law Offices of Thomas B. Hight, PC, attorneys for appellant (Mr. Hight, on the brief).

Wegner & Wegner, PA, attorneys for respondent James Allen (Peter F. Ward, on the brief).

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

PER CURIAM

In this workers' compensation matter, respondent Great Atlantic & Pacific Tea Co. (A&P) appeals from a final order entered on October 5, 2009, that determined petitioner James Allen was totally and permanently disabled solely from injuries he suffered in a work-related automobile accident. A&P contends that the Judge of Compensation (JOC) erred by dismissing Allen's claim against the Second Injury Fund (the Fund). We affirm.

Petitioner James Allen seriously injured his lower back in an automobile accident that occurred during the course of his employment with A&P on February 4, 1999. He sustained a disc herniation at L4-5 and underwent three surgical procedures: a hemilaminectomy with bilateral nerve root decompression and intraoperative discometry, arthrodesis posteriorly, discectomy and fusion; re-exploration and posterolateral fusion of L4, L5, and S1 with implementation of a bone growth stimulator; and the subsequent removal of the bone growth stimulator. In addition to the surgical procedures, Allen underwent physical therapy, pain management, and counseling.

Despite his extensive medical treatment, Allen developed severe depression and continues to suffer from L5-S1 radiculopathy and bilateral foot drop. He has constant pain in his back, right leg, and right foot; and periodic pain in his left leg and thigh. He uses a cane because his right foot drop is unstable, takes daily medications that affect his memory, and continues to suffer from anxiety and depression.

In addition to the injuries he sustained in the work-related accident, Allen had two pre-existing conditions relevant to the issues on appeal: a herniated L5-S1 disc operated on in 1994, and post-traumatic stress disorder (PTSD) relating to the Vietnam war.

Allen filed a workers' compensation claim petition on April 15, 2005. A&P filed an answer on June 27, 2005. On April 14, 2008, Allen filed a verified petition with the Fund alleging he was totally and permanently disabled from a combination of work-related and pre-existing disabilities. The workers' compensation trial took place periodically between September 24, 2008 and June 24, 2009. Allen and four medical experts testified. On October 5, 2009, the JOC entered an order awarding Allen total permanent disability and dismissed his claim against the Fund. A&P filed a notice of appeal on November 13, 2009.

As it did below, A&P concedes on appeal that Allen is totally and permanently disabled, but disputes that the disability is attributable solely to the February 4, 1999 automobile accident. A&P contends that the JOC erred by not allocating to the Fund some percentage of Allen's disability, arguing the undisputed trial testimony, particularly that of the experts, demonstrates that Allen's disability is at least in part attributable to the 1994 lower back injury and to the PTSD Allen has suffered since the Vietnam war.

In reaching her decision, the JOC acknowledged Allen's pre-existing lower back injury requiring an L5-S1 discectomy, and his pre-existing PTSD, but emphasized that neither condition limited his ability to work, maintain his home, or pursue his hobbies and interests. The JOC noted that A&P had not presented one piece of evidence establishing that the pre-existing conditions caused a "material lessening of Allen's working ability or an impairment in his carrying on the ordinary pursuits of life." Her findings are supported by the trial record.

According to Allen's trial testimony, he worked as the Director of Construction for two divisions of A&P, Atlanta and New Orleans. Despite his 1994 lower back surgery, an L5-S1 discectomy, he eventually returned to work without any difficulty. Before the 1999 automobile accident, he traveled approximately 100,000 miles per year. His job required him to be physically fit and mentally active. He worked fifty-five to seventy hours per week meeting with realtors, developers, architects and engineers; preparing bids and hiring contractors; and purchasing equipment. He also conducted job inspections requiring him to climb to the roof of stores under construction.

Allen also worked at home as a computer programmer writing construction programs for his software company. He was an avid outdoorsman, hunter, and fisherman. He taught Sunday school and served as an associate pastor at his church, which he helped to remodel.

Although suffering from PTSD from the Vietnam war, Allen took no medication for the condition. He had recurring nightmares, but the PTSD caused him neither mental nor physical impairment at work. He testified that before the automobile accident, he kept so busy he was able to "keep it buried." After the accident, the nightmares and anxiety from his PTSD almost put him "over the deep end."

Notwithstanding Allen's testimony, A&P argues that the testimony of the four medical experts establishes that Allen's pre-existing conditions contributed to his total permanent disability. Dr. Theodora Maio, a board certified general surgeon who testified on behalf of Allen, examined him once approximately eight years after the accident. She testified that the lower back injury Allen suffered at L5-S1 in 1994 predisposed him to an injury at a higher level:

[H]e had a prior L5-S1 discectomy from which he recovered, gone back to work. However, one must also consider that any lumbar surgery is going to have some degree of restriction afterwards, even if the patient is back to work. It doesn't voice too many complaints. Also, when there's surgery at one level, it predisposes to injury above because the level operated on is relatively immobile. So the level above takes the brunt of motion as opposed to the equal distribution it would have had.

Dr. Maio opined that the 1994 surgery was a contributing factor to Allen's total permanent disability, although "most of it is related to the second accident ... but the first contributes." Dr. Maio concluded that Allen's back is probably worse than it would have been if the 1994 injury had not occurred, but she could not say what his loss of function was prior to the 1999 accident. She could only say that she would "expect some loss of function, even if he didn't have any subjective complaints, based on experience with patients in a post-operative state and the residuals that you would expect to find." Dr. Maio explained that in her view, "if a patient on physical examination, even with no subjective complaints, has restriction, that is a limitation. That's a disability."

A&P's expert, Dr. Mark Maletsky, a board certified orthopedic surgeon, was of the opinion that "there is a residual disability of seven and-a-half percent of partial total which would have been considered pre-existing to the motor vehicle accident of February 4, 1999." Dr. Maletsky testified that had petitioner not suffered the 1994 back injury, he likely would have had a different outcome after the motor vehicle accident. Dr. Maletsky did not review petitioner's testimony concerning his condition before and after the 1999 automobile accident, nor did he have any records from the 1994 surgery. He did, however, have records from March 2, 1999, indicating Allen had epidural injections a month earlier. Those records suggested that Allen was experiencing some back or lower leg problems before the 1999 automobile accident.

Allen's expert psychiatrist, Dr. Cheryl Wong, attributed fifty percent of the total permanent disability to his psychiatric injuries. She testified that Allen suffered from major depression and an aggravation of his PTSD as a result of the 1999 automobile accident. She testified the PTSD did not interfere significantly with his job function or his personal life before the 1999 accident.

A&P's board certified neurologist, Dr. Charles Effron, conceded the difficulty in apportioning disability among the 1999 injuries and the pre-existing conditions. He attributed part of Allen's neurologic disability to the 1994 accident, but could not quantify it. He also concluded that Allen suffered partial disability from the PTSD. Dr. Effron did not review the transcript of Allen's testimony about his daily activities and functioning before and after the 1999 accident.

Our standard of review is well-established:

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 their credibility.

[Lindquist v. City of Jersey City Fire Dep't, 175 N.J. 244, 262 (2003) (internal quotations and citations omitted).]

Here, the JOC's finding that Allen's total permanent disability is related entirely to the compensable automobile accident is supported by sufficient credible evidence. Consequently, we reject A&P's argument that a percentage of defendant's total permanent disability should have been apportioned to the Fund.

"[T]he legislative policy [concerning the Fund] is a delicately balanced one, designed ... to encourage employers to hire partially disabled workers, yet at the same time concerned against inroads upon the Fund unless all the statutory criteria, both affirmative and negative, are satisfied." Katz v. Howell, 68 N.J. 125, 131-32 (1975) (citing Paul v. Baltimore Upholstering Co., 66 N.J. 111, 129 (1974)). "Moreover, the burden is upon those (the employer or the petitioner) who seek to impose liability on the Fund to establish the statutory criteria therefor." Ibid. (citations omitted).

The statutory criteria for imposing Fund liability are set forth in N.J.S.A. 34:15-95 which provides in pertinent part:

The sums collected under [N.J.S.A.] 34:15-94 shall constitute a fund, to be known as the Second Injury Fund, out of which a sum shall be set aside each year by the Commissioner of Labor from which compensation payments ... 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.

The statute requires that those seeking Fund liability prove the employee had previously been permanently and partially disabled. "Disability permanent in quality and partial in character" is defined as "a permanent impairment ... based upon demonstrable objective medical evidence, which restricts the function of the body or of its members or organs; included in the criteria which shall be considered shall be whether there has been a lessening to a material degree of an employee's working ability." N.J.S.A. 34:15-36.

This definition requires that the party seeking Fund liability make "a satisfactory showing of demonstrable objective medical evidence of a functional restriction of the body, its members or organs." Perez v. Pantasote, Inc., 95 N.J. 105, 116 (1984). If a satisfactory showing of functional restriction has been made, the party seeking Fund liability must establish either a material lessening of the employee's working ability or an impairment in carrying on the ordinary pursuits of life. Id. at 116-17.

Analyzed in light of these principles, we are satisfied the JOC's findings and conclusions are supported by sufficient credible evidence in the record and by applicable law. None of the medical experts could give an opinion that there was either a material lessening of Allen's working ability or an impairment in carrying on his ordinary pursuits of life before the compensable automobile accident. In fact, A&P "concedes that no pre-existing physical or mental impairment has been proven." Consequently, A&P did not establish that either the pre-existing lower back injury or the PTSD resulted in partial permanent disability requiring some apportionment of disability to the Fund.

A&P insists that the experts established a pre-existing partial permanent disability. We disagree. Dr. Maio equated functional low back restriction with disability, thus erroneously failing to consider whether the pre-existing functional restriction materially lessened Allen's working ability or his ability to carry on his ordinary life pursuits. Dr. Wong testified the PTSD did not interfere significantly with Allen's job function or personal life before the 1999 accident.

Dr. Maletsky and Dr. Effron did not consider Allen's testimony about his working ability before the compensable accident. Absent consideration by the experts of such testimony, the JOC was well within her province to reject their opinions. A "[JOC] 'is not bound by the conclusional opinions of any one or more, or all of the medical experts.'" Kaneh v. Sunshine Biscuits, 321 N.J. Super. 507, 511 (App. Div. 1999) (quoting Perez v. Capitol Ornamental, Concrete Specialists, Inc., 288 N.J. Super. 359, 367 (App. Div. 1996) (internal citations omitted)).

The JOC reasonably concluded from the evidence that Allen was totally and permanently disabled solely as a result of the compensable 1999 automobile accident. Although the experts testified that Allen's pre-existing lower back injury pre-disposed him to a subsequent injury, and that Allen's pre-existing injuries were aggravated by the 1999 accident, "to the extent any specific pre-existing injury or condition has been aggravated, activated or accelerated by the later compensable accidental injury the employer will be liable for the disability caused by the compensable injury including any aggravation, activation or acceleration." Zabita v. Chatham Shop Rite, 208 N.J. Super. 215, 222 (App. Div.), certif. granted, 107 N.J. 45 (1986), appeal dismissed, 107 N.J 139 (1987).

Finally, A&P argues that if a JOC determines that pre-existing conditions "were a factor in determining [the employee's] overall permanent total disability status ... the court must determine what percentage the [Fund] should contribute accordingly." A&P cites no authority for this proposition and it is contrary to both the statutory requirements for Fund liability and longstanding precedent. Accordingly, we reject A&P's argument.

Affirmed.