DOMINICK PISCIOTTA - v. HOME DEPOT, INC -

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1638-09T3

DOMINICK PISCIOTTA,

Petitioner-Appellant,

v.

HOME DEPOT, INC.,

Respondent-Respondent.

_____________________________

October 29, 2010

Argued: October 6, 2010 - Decided:

Before Judges Cuff and Fasciale.

On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, Claim Petition No. 2007-24189.

D. Gayle Loftis argued the cause for appellant (Law Offices of D. Gayle Loftis, attorneys; Ms. Loftis, on the brief).

Robert H. Klausner argued the cause for respondent (Biancamano & DiStefano, P.C., attorneys; James Passantino, on the brief).

PER CURIAM

Dominick Pisciotta appeals from an October 22, 2009 order dismissing his petition for medical treatment and temporary disability benefits. There is sufficient credible evidence in the record as a whole to support the Judge of Compensation Kovalcik's conclusion that Pisciotta's back complaints are unrelated to a June 25, 2007 work-related accident. We affirm.

Home Depot, Inc. employed Pisciotta as a kitchen designer. On June 25, Pisciotta attempted to sit in a chair, missed it and fell to the ground. He alleged injuries to his back, hip, leg and right knee. Pisciotta went to the emergency room on June 25 and obtained treatment for five months, but there were no documented complaints of back pain in the medical records. Home Depot disputed any causal relationship between the accident and Pisciotta's back complaints.

The matter was tried over eight days and the judge of compensation found that Pisciotta's testimony was "neither consistent nor credible." Pisciotta argued that no complaints appeared in the medical records because the doctors were distracted by the seriousness of his knee injury. To support his assertion that the accident produced his back injury, Pisciotta produced two patient-completed forms (P-1 and P-2) dated July 16, 2007 that purportedly document complaints of back pain. The judge of compensation excluded P-1 and P-2 from evidence after comparing them with the originals (R-15 and R-16) because he found Pisciotta had altered them. In so finding, the compensation judge stated that "I did not find [Pisciotta] to be a credible witness and cannot credit his testimony contrary to the medical record."

Moreover, the compensation judge found the testimony from Pisciotta's treating doctor, Christine M. Corradino, at variance from petitioner's claim. He highlighted that in two notes made by Dr. Corradino, on October 2 and October 31, 2007, she performed straight leg tests on Pisciotta and concluded that he had no lumbar pathology.

On appeal, Pisciotta argues that he is entitled to an adverse inference because Home Depot produced R-15 and R-16 late, the judge admitted records without a proper foundation, and that the judge's conclusion is not supported by sufficient credible evidence.

Our scope of review is limited. Generally, we are bound to those findings of a compensation judge which "could reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole," and we consider the judge's opportunity to hear witnesses, assess their credibility, "with due regard to the agency's expertise when such expertise is a pertinent factor." Manzo v. Amalgamated Indus. Union Local 76B, 241 N.J. Super. 604, 609 (App. Div.) (citing Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)), certif. denied, 122 N.J. 372 (1990); see also Brower v. ICT Group, 164 N.J. 367, 376 (2000) ("We are bound by the factual findings of the compensation judge."); Lister v. J.B. Eurell Co., 234 N.J. Super. 64, 72-74 (App. Div. 1989) (discussing petitioner's burden and standard of proof and standards governing compensation court decisions and appellate review).

After a thorough review of the record and consideration of the controlling legal principles, we conclude that Pisciotta's arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E).

We affirm substantially for the reasons expressed by the Judge of Compensation Kovalcik in his thoughtful written opinion.