DEBORAH ROBINSON v. UNITED HOSPITAL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2134-08T32134-08T3

DEBORAH ROBINSON,

Petitioner-Appellant,

v.

UNITED HOSPITAL,

Respondent-Respondent.

________________________________

 

Submitted: August 3, 2010 - Decided:

Before Judges Axelrad and Espinosa.

On appeal from the Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition No. 1997-12763.

Deborah Robinson, appellant pro se.

Biancamano & DiStefano, P.C., attorneys for respondent (James Passantino, on the brief).

PER CURIAM

Petitioner Deborah Robinson appeals from a November 14, 2008 judgment of the Division of Workers' Compensation, following trial, dismissing her claim petition based on her failure to sustain the burden of proof. Specifically, the workers' compensation judge found petitioner "failed to prove by objective medical evidence that any disease or disability that she may suffer from was caused or aggravated by her employment with the respondent," United Hospital. We affirm.

The relevant facts may be briefly stated. On October 20, 1997, petitioner filed a complaint alleging she was totally disabled as a result of her pre-existing disabilities and occupational exposure during her employment with respondent from l969 through 1997. The claim petition specifically alleged that her occupational exposure "caused, aggravated, accelerated or exacerbated" her '[p]ulmonary, otological, ophthalmological, neurological, neuropsychiatric, [and] cardi[o]vasc[ul]ar conditions." In support of her subsequent claim for Second Injury Fund benefits, petitioner alleged that certain conditions pre-existed her last compensable exposure such as "[a]sthma, residuals of hernia operation, residuals of hand and shoulder pain, poor vision, residuals of bilateral foot pain, [and] generalized arthritis."

During the lengthy trial, the court heard the testimony of petitioner, Dr. Ishmal Ahmad, an orthopedic surgeon, Dr. Robert Latimer, a psychiatrist, and Dr. Sidney Friedman, an internist. Respondent presented expert testimony by Dr. Gregory Gallick, an orthopedic surgeon, Dr. Melvin Vigman, a neurologist, and Dr. Benjamin Safirstein, a pulmonologist and internist.

From approximately 1969 to l990, petitioner worked for respondent as a nurse's aide, which required her to tend to the needs of the patients assigned to her. This entailed feeding, transporting, washing and lifting patients out of and back into bed. She was also required to push IV poles and wheelchairs, wash floors, poles and commodes with ammonia and similarly-smelling chemicals, lift beds, lift and turn mattresses and wash windows. According to petitioner, her job required repetitive lifting, bending, twisting and turning and also exposed her to dust, dirt, lint from the sheets, fumes and other pulmonary irritants. Petitioner further testified that, although she had been removed from any environmental contaminants present at the hospital for nine years, she continued to experience a shortness of breath.

Petitioner also testified on cross-examination that she had an automobile accident in the mid-l960s, in which she injured her back and neck, and settled her case for about $10,000. Petitioner further related that around l99l, she fractured her right third finger, sometime in the l990s she injured her left foot and left knee, around l995 she injured the second finger of her right hand, and in July 2001, she fractured her right foot, requiring an open reduction with internal fixation to the metatarsal. Afterwards, she began to use a cane.

Petitioner related the following numerous complaints that she alleged resulted from her employment with respondent: (l) pulmonary complaints of coughing, wheezing, shortness of breath upon exertion and phlegm; (2) orthopedic complaints of pain in her lumbar spine, which worsens when she sits for more than half an hour or walks half a block, pain in her cervical spine, hips and knees, and cramping in her right hand when she does a lot of writing; and (3) psychiatric complaints of depression because she can no longer do the things she was once capable of doing. Petitioner testified that she had no problems with her back, neck, arms, shoulders or legs before she began working for respondent, notwithstanding her significant automobile accident about five years before that time when she injured her cervical and lumbar spine.

At the close of evidence, Judge Stephen Tuber issued a twenty-page written decision on November 14, 2008. The judge set forth and analyzed in detail the lay and expert witnesses' testimony, expressly crediting respondent's expert testimony over that of petitioner's experts, and fully explaining his reasons for doing so. Specifically, the judge of compensation found:

I not only reject Dr. Ahmad's opinion that petitioner's orthopedic disabilities were caused or aggravated by her employment with the respondent, but I accept Dr. Gallick's opinion that any orthopedic disability that the petitioner may have was not caused, aggravated, or accelerated by her employment with the petitioner as a nurse's aide.

. . . .

I dismiss petitioner's neurological claim for two reasons: First, Dr. Latimer's testimony only concerned petitioner's psychiatric disability. Dr. Latimer offered no testimony to prove by objective medical evidence that petitioner has any permanent partial neurological disability as a result of her employment with the respondent[.] Second, respondent's doctors, Gallick and Vigman testified that their neurological examinations of petitioner found no objective evidence of any neurological disability. Finally, Drs. Gallick [and] Vigman['s] opinions are consistent with Dr. Ahmad's opinion that petitioner was "neurologically intact."

. . . .

I now turn to petitioner's allegation that her pulmonary disability - Chronic Asthma - was caused, aggravated, or accelerated by her employment with the respondent.

Dr. Friedman testified on behalf of the petitioner and Dr. Safirstein testified on behalf of the respondent. I accept Dr. Safirstein's opinion that petitioner's Chronic Asthma, which apparently manifested itself before she commenced her employment with United Hospital was not caused, aggravated, or accelerated by her employment with United Hospital . . . because it is based upon sound medical reasoning that is supported by accepted medical literature. I reject Dr. Friedman's opinion of causal relationship because not only were the Pulmonary Function tests that Dr. Friedman used to diagnos[e] and quantify petitioner's pulmonary disability not reliable, but inexplicably he did not know the nature of the substances that allegedly caused petitioner's pulmonary disability. [four pages of quoting from the transcript].

. . . .

For all of the aforementioned reasons, I find that the petitioner has failed to sustain her burden of proof to show by a fair preponderance of the evidence that she was exposed to substances that caused, aggravated, or accelerated her chronic asthma.

. . . .

The crux of petitioner's psychiatric claim is that her occupational pulmonary, orthopedic, neurologic, and psychiatric disabilities together with her non-work related disabilities have caused anxiety and depression. . . .

. . . .

Having already determined that any pulmonary, orthopedic, neurological disabilities that the petitioner may suffer were not caused, aggravated, or accelerated by her employment with the respondent, I must dismiss petitioner's psychiatric claim because the precipitating factors that she alleged caused her anxiety and depression - at least, according to Dr. Latimer - were not the result of her employment with the respondent.

I also dismiss petitioner's psychiatric claim for failure to prove by objective medical evidence any psychiatric disability that affects her working ability or her ordinary life pursuits. In this regard, I reject Dr. Latimer's opinion that the petitioner has a psychiatric disability within the meaning of our Statute and accept the opinion of Dr. Vigman that petitioner does not suffer from any psychiatric disability [for the following reasons].

Accordingly, the judge dismissed petitioner's claim petition for failure to sustain her burden of proof. This appeal ensued.

On appeal, petitioner argues that her "health was affected by the exposure to adverse conditions while employed at United Hospital" and, therefore, her claim for workers' compensation should not have been denied. In particular, petitioner contends she was in perfect health before she commenced her employment with respondent, but now she has significant, deteriorating health problems that require constant medication and nebulizer treatments. She challenges the judge's finding that she had a second automobile accident in l995 as not supported by the record and submits the pulmonary function test given by respondent's doctors was inaccurate. Petitioner further urges her workers' compensation claim should not have been denied because she was granted and has been receiving permanent disability benefits from the Social Security Disability Administration for the past decade, and was advised by Social Security that she had proven a disability case that her condition was a direct result of her employment at United Hospital. Plaintiff also submits documents listing OSHA violations and penalties assessed against respondent from l994 to l997, as proof of the fact the hospital was "saturated with asbestos, lead paint, formaldehyde and ethylene oxide." After reviewing the record and applicable law, we are not persuaded by petitioner's arguments. We affirm substantially for the reasons set forth by Judge Tuber in his comprehensive written opinion. We add the following brief comments.

When reviewing a compensation judge's decision, we consider "whether the findings made could reasonably have been reached on sufficient credible evidence present in the record" after giving due weight to the judge's expertise in the field and his opportunity to hear and observe the witnesses. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). We especially defer to those factual findings based on the judge's credibility determinations, since they are "often influenced by matters such as observations of the character and demeanor of the witnesses and common human experience that are not transmitted by the record." State v. Locurto, 157 N.J. 463, 474 (l999). We will not upset the determinations of the trial court unless "they are so wholly insupportable as to result in a denial of justice." Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 483-84 (l974). Nor may we vacate such decision because of doubts as to its wisdom or because the record may support more than one result. See Sager v. O.A. Peterson Constr. Co., 182 N.J. 156, 164 (2004).

We find the judge's findings of fact to be supported by competent evidence in the record, and his conclusions of law to be soundly based upon existing statutes and precedent. The judge's decision was based on an analysis of the totality of the evidence and credibility assessments. Thus, even if Judge Tuber inaccurately referenced a second motor vehicle accident in l995, it is evident from his written opinion and our review of the record that such single fact was far from the deciding factor in his decision. The expert evidence presented by respondent supporting non-compensability was both substantial and credible.

We further find no significance in Social Security's determination of petitioner as totally disabled because workers' compensation law has its own statute defining a "compensable occupational disease" and applies different standards. Nor is petitioner's burden of proof established by general citation to the OSHA violations and informal settlement of the penalty.

Affirmed.

 

The judge additionally noted that the petition also alleged that petitioner's employment with respondent caused, aggravated or accelerated either an otological or ophthalmological disability, but she produced no objective medical evidence as to either. Accordingly, those claims were also dismissed for failure to sustain her burden of proof.

Occupational Safety and Health Administration.

By order of December l4, 2009, we granted petitioner's motion to supplement the record.

N.J.S.A. 34:15-31 defines a "compensable occupational disease" to "include all diseases arising out of and in the course of employment, which are due in a material degree to causes and conditions which are or were characteristic of or peculiar to a particular trade, occupation, process or place of employment." The statute further provides that "[d]eterioration of a tissue, organ or part of the body in which the function of such tissue, organ or part of the body is diminished due to the natural aging process thereof is not compensable."

(continued)

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A-2134-08T3

August 18, 2010