KATERINA ZIMBITSKIY v. COUNTY OF MORRIS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2429-08T12429-08T1

KATERINA ZIMBITSKIY,

Petitioner-Appellant/

Cross-Respondent,

v.

COUNTY OF MORRIS,

Respondent-Respondent/

Cross-Appellant.

________________________________________________

 

Argued December 1, 2009 - Decided

Before Judges Messano and Lewinn.

On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, No. 1999-13005.

Katerina Zimbitskiy, appellant/cross-respondent, argued the cause pro se.

Christopher I. Woods argued the cause for respondent/cross-appellant (Johnson, Murphy, Hubner, McKeon, Wubbenhorst, Bucco & Appelt, attorneys; Mr. Woods, on the brief).

PER CURIAM

Petitioner Katerina Zimbitskiy appeals from the final judgment of the Department of Labor, Division of Workers' Compensation, that awarded her "10% of partial total [permanent disability] for the residuals of bilateral carpal tunnel syndrome . . . ." Respondent, County of Morris, County College of Morris (the County), cross-appeals from an earlier order that restored her petition to the "active list," thus permitting the matter to proceed to trial. We have considered the arguments raised in light of the record and applicable legal standards. We affirm.

Petitioner was employed by respondent as a custodian. She testified that on February 10, 1999, while vacuuming a large auditorium, her hands and arms became red and swollen. Shortly thereafter, petitioner received medical treatment on her hands and arms for a period of three weeks, and remained out of work for three months. When she returned to work in early May, she was not given a "light job," but rather one that required heavy lifting. After her "hands collapsed" and she dropped a heavy object, petitioner was again sent by the County for further medical treatment of her hands which were "red . . . and . . . very painful."

On May 3, 1999, petitioner filed a workers' compensation claim for the orthopedic injuries she sustained on February 10, 1999, specifically "carpal tunnel" syndrome. A June 30, 2006 trial date was set. At that time, petitioner was represented by the Law Offices of Russell P. Trocano and Associates. Petitioner did not appear, and her petition was dismissed. By letter dated November 17, 2006, Trocano's firm advised petitioner that it would no longer represent her, and that she had one year from June 30, 2006 to file a motion to restore the petition. By certified mail, petitioner forwarded a pro se "Motion to Restore" her claim, signed by her on June 29, 2007, and marked filed by the Division of Workers' Compensation on July 3, 2007. The County opposed the motion to restore.

A hearing was held on April 11, 2008. The judge noted two other petitions had also been previously dismissed, but that the motion to restore only addressed the claim for injuries to petitioner's "hands." Attorney James F. Paguiligan from the Trocano law firm testified that sometime before the June 30, 2006 trial date, his firm sent petitioner a letter by regular and certified mail, notifying her of the date. The certified mail was returned to Trocano's office while the regular mail was not. Petitioner testified that she was unaware of the trial date, and was not notified of the dismissal until "the end of December[]" 2006. She further claimed that she did not receive her file from the law firm until several days before the one-year statutory period expired, and her attempts to retain new counsel at that point were fruitless.

The judge concluded that petitioner complied with the one-year statute of limitations governing restoration of her claim. He also reasoned that even if she had not strictly complied with the statute, denial of the motion "would deprive the petitioner of her right to have the matter heard by the [c]ourt, . . . have her matter disposed of in a judicial fashion, [and] that it would be inconceivable for th[e] [c]ourt to . . . enforce a statute wherein the petitioner did in fact comply by mailing the Motion to Restore within a timely fashion within the statut[ory] period." The judge reinstated the petition and transferred venue to the county of petitioner's residence.

A trial on the underlying claim was held on August 11, 2008, before a different judge. Petitioner testified that she still experienced problems with her hands; that she could not sleep at night because the pain was too severe; that the swelling in her hands never went down; and that she had difficulty gripping things. She also testified that her right hand was "much worse . . . [m]ore often[]" than her left hand. Petitioner's medical reports were admitted into evidence.

Dr. Marc A. Cohen diagnosed petitioner with carpal tunnel syndrome in late February 1999. In a report dated April 8, 1999, Cohen diagnosed petitioner with "[b]ilateral carpal tunnel syndrome" and recommended that she "[c]ontinue . . . occupational therapy and obtain neurological EMG's to rule out bilateral carpal tunnel syndrome." Petitioner remained on prescription medication to control her pain after her return to work.

After the second work incident in May 1999, petitioner was seen by Dr. Steven A. Maser. Although the trial transcript reveals that Dr. Maser's reports were introduced into evidence by the County, we have been supplied with only a single page of office notes that petitioner herself introduced into evidence at trial. It diagnosed petitioner with "pain, arm." Petitioner testified she was seen by her family doctor, John Porcaro, who recommended she see another orthopedist, Dr. Barry J. Efros.

Efros saw petitioner "every two weeks," provided "some kind of massage," and sent her for a "surgery consultation." Apparently, a number of reports from Efros were admitted at trial, although the appellate record contains only one report dated August 18, 2000, addressed to the "Federal Disability Determination Services." In that report, Efros found petitioner "totally disabled from any meaningful employment" based upon "her inflammatory arthritis and her accelerated and very elevated hypertension . . . ."

Surgery was apparently recommended for petitioner's bilateral carpal tunnel syndrome by Dr. John A. Faccone. It is unclear whether his August 14, 2003 report was actually admitted into evidence at the trial, but it is part of the appellate record. Faccone prescribed "bilateral cock-up wrists splints," and encouraged petitioner's continued use of Vioxx. Faccone also prescribed "occupational therapy" and an EMG, and opined that if the condition remained unresolved, "surgery would probably most likely be the best answer . . . ."

Petitioner sought another opinion regarding surgery from Dr. Joseph A. Colao. On October 22, 2003, Colao reported his "impression" that petitioner had bilateral carpal tunnel syndrome, however, he also noted that "[o]verall, [he] . . . d[id] not feel that the etiology of [petitioner's] pain [wa]s due to a mild carpal tunnel syndrome, particularly with the severity of same." Colao considered that petitioner's hand problems could be "an undiagnosed neuropathic pain syndrome and/or [reflex sympathetic dystrophy]," but noted that there had been "no precipitating injury." Colao also opined that petitioner might be "malingering . . . ."

In a January 6, 2004 report, Dr. Robert T. Latimer concluded that petitioner was "totally and permanently disabled as a psychophysiological working unit with a 100% total permanent psychiatric component . . . directly related to . . . work stresses." In a report dated August 16, 2004, Dr. Arthur Tiger concluded that petitioner "ha[d] the residuals of bilateral carpal tunnel syndromes . . . ." He further "estimate[d] a disability of 33 and 1/3% of the right hand and 25% of the left hand."

At the conclusion of the trial, the judge noted that she would be receiving by fax the reports of Drs. "Kulkarni" and "Wong" regarding their examination of petitioner. She indicated she would mark them as exhibits, and include them in the record.

On August 13, the judge rendered her written decision and final judgment. First, she amended the claim from one solely for "an accident [on] February 10, 1999 . . . to one [for] an occupational disability[,] to conform to the proofs." The judge found that petitioner

did sustain an injury to both of her hands arising out of and in the course of her employment. [Petitioner] reported her problem immediately and her recitation of the events leading up to her problem was consistent to all of the doctors who treated and evaluated her. Most of the doctors did diagnose a bilateral carpal tunnel syndrome.

It is also clear . . . that [petitioner] did sustain a permanent disability in accordance with the requirements of [N.J.S.A.] 34:15-36. Obviously, her problems do amount to a lessening to a material degree of both her work and out of work ability. And her complaints are corroborated by objective medical evidence. In particular, petitioner's experts, Drs. Tiger and Wong both diagnose[d] bilateral carpal tunnel syndrome in part due to their finding positive Tinel signs among other things. I dismiss the opinion of respondent's expert . . . as frankly unpersuasive given the facts I have found and considering the consensus medical opinions of the petitioner's treating physicians.

I do note that both Drs. Kulkarni and Wong, petitioner's own experts, state that the petitioner did sustain subsequent injuries to both of her hands, and that their estimates of disability do include additional permanent disability from those subsequent injuries.

Considering the proofs before me, therefore, I conclude that petitioner has sustained a permanent disability of 10% of partial total for residuals of bilateral carpal tunnel syndrome, overall greater due to subsequent injuries, which approximates 15% of the right hand and 10% of the left hand.

On August 31, 2008, petitioner moved for reconsideration. She argued that "[t]he facts [were] misrepresented . . . ." She claimed that the judge failed to consider a report from Dr. I. Ahmad that her "disability [wa]s 45% of [the] right hand and 40% of the left hand . . . due to . . . occupational exposure." Petitioner also claimed that she had never seen Drs. Kulkarni and Wong and did not understand the judge's reference to "'subsequent injuries' . . . ." She further objected to Colao's reference to possible "malingering." In sum, petitioner claimed the award was insufficient.

The judge denied petitioner's motion for reconsideration in an oral decision from the bench. She noted that Kulkarni and Wong's reports were placed into evidence at the trial. As to Ahmad's report upon which petitioner was now relying, the judge noted that it was never introduced at trial; nonetheless, she considered the report and determined that the opinions he rendered were consistent with her findings. She further observed that she did not consider Colao's speculation that petitioner might be "malingering."

We first consider the County's arguments. It contends the appeal should be dismissed because it was not timely filed. In its cross-appeal, the County argues that the judge erred in restoring the petition because the motion to restore was not timely filed. We reject both arguments.

While there was some confusion caused by correspondence between the Clerk of the Appellate Division and counsel for the County regarding the pendency of the appeal, it is clear that petitioner did file an appeal in a timely fashion, and dismissal is therefore unwarranted.

N.J.S.A. 34:15-54 provides, in pertinent part:

No petition shall be dismissed for want of prosecution or for failure to formally adjourn the cause, until after notice shall be served by the respondent on the petitioner or his attorney that unless the cause is moved for hearing within one month from the date of the service thereof, the claim will be considered abandoned and the petition dismissed subject, however, to the right to have the petition reinstated for good cause shown, upon application made to the deputy commissioner before whom the matter was heard or to the Commissioner of Labor within one year thereafter.

[(Emphasis added).]

"[G]ood cause" means "a substantial reason that affords legal excuse for the default." Nemeth v. Otis Elevator Co., Inc. 55 N.J. Super. 493, 497 (App. Div. 1959). The County has not advanced any argument that good cause was lacking.

First, we note a question arises as to whether the dismissal of the petition was in strict accordance with the statute. We have not been provided with any record of the proceeding leading to the dismissal itself, though the date of the event, June 30, 2006, is apparently undisputed. Whether that was the result of a "notice . . . served by the respondent . . . that unless the cause [wa]s moved for hearing within one month" it would be dismissed, or whether dismissal took place simply because of petitioner's non-appearance on the trial date, is entirely unclear. Plaintiff's pro se brief, the County's brief, and the testimony at the hearing on the motion to restore fail to elucidate the issue. The statute clearly provides that the petition should not have been dismissed for non-appearance unless the proper notice had been provided more than thirty days earlier.

Nonetheless, we consider the merits of the County's cross-appeal. It argues that petitioner filed her motion to restore her claim on July 3, 2007. Since the one-year period provided by statute for restoration ended on June 30, 2007, which was a Saturday, petitioner had only until July 2, 2007, the following Monday, to file her motion. The Division stamped the motion filed on July 3, one day beyond the statutory period.

However, the judge, who specifically heard and considered petitioner's testimony, concluded that she had signed and mailed her motion to restore on June 29, 2007. He also found that the motion was "received . . . on . . . Monday," further observing that "knowing the process of stamping by the time the Division opens the mail, it may very well have been the 3rd, [when] they actually filed and stamped it." The judge further determined that petitioner attempted to comply, and that the statute should be "liberally construed" to permit the restoration of the petition.

We begin by recognizing the limited nature of our review, which "is the same as that on appeal in any nonjury case, [that is], '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 of their credibility." Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). Thus, the findings of fact made by a judge of compensation "are entitled to substantial deference." Ramos v. M&F Fashions, Inc., 154 N.J. 583, 594 (1998).

Here, the judge made specific factual findings and relied upon his own expertise regarding the procedures employed by the Division of Workers' Compensation. He found that petitioner mailed her motion within the statutory period, and that it was received on the last day within one year of the dismissal. We defer to those findings.

Moreover, we have noted "that the legislative intent and public policy will be furthered by a liberal construction of the Workers' Compensation Act in order to reach a salutary and remedial result favorable to the injured work[er], rather than one necessarily dictated by the 'coldly literal import' of the legislation." Camp v. Lockheed Electronics, Inc., 178 N.J. Super. 535, 546, certif. denied, 87 N.J. 415 (1981). As a result, we deny the County's cross-appeal.

We turn to the merits of petitioner's appeal. Petitioner argues that the judge erred because she failed to consider Ahmad's report and inappropriately relied on the reports of Drs. Efros, Maser, and Colao.

Although petitioner does not specifically raise the issue before us that she raised below regarding the reports of Drs. Kulkarni and Wong, we address it briefly to provide context to the judge's reference to the reports in her decision. Petitioner claimed she never saw either doctor. However, we have received copies of the reports that were part of the trial record and which were omitted from the appellate record. It is clear both doctors claimed to have examined petitioner, referenced the medical reports from other professionals that were admitted at trial, reached their own conclusions regarding petitioner's disability, and sent their reports to her former attorney. Dr. Vijaykumar Kulkarni, a surgeon, in a report dated May 30, 2006, opined that petitioner suffered a "permanent orthopedic disability of 30% of the left hand, plus 35% of the right hand." Dr. Cheryl Wong, in a report dated June 1, 2006, opined that petitioner suffered a "20% [impairment] of the left hand, plus 25% of the right hand[,]" and a "permanent psychiatric impairment estimated at 25% of total."

Although the judge did not admit Ahmad's report into evidence because petitioner failed to introduce it at trial, she considered its content when petitioner moved for reconsideration. While Ahmad's report, as well as petitioner's other reports actually admitted at trial, placed the percentage disabilities at greater amounts than those found by the judge, the judge was not bound by the expert opinions rendered in those reports.

We have noted, "Insofar as medical testimony is concerned, it is undisputed that the judge of compensation 'is not bound by the conclusional opinions of any one or more, or all of the medical experts.'" Perez v. Capitol Ornamental, Concrete Specialties, Inc., 288 N.J. Super. 359, 367 (App. Div. 1996) (quoting Lightner v. Cohn, 76 N.J. Super. 461, 465 (App. Div. 1962)). "[S]o long as the judge's findings are supported by articulated reasons grounded in the evidence, we must give deference to h[er] expertise in assessing disability." Ibid. (citing Lewicki v. N.J. Art Foundry, 88 N.J. 75, 88-90 (1981)).

In her written opinion, the judge discounted the County's medical expert's opinion, finding it to be "frankly unpersuasive" "considering the consensus medical opinions of the petitioner's treating physicians." She evaluated plaintiff's expert reports, finding that petitioner had suffered a workplace injury to her hands that resulted in permanent disability, though not to the extent found by petitioner's experts. The judge took note of plaintiff's own complaints regarding her condition. We accord particular deference to the judge's ability to determine credibility based upon observations of the witness. See Perez, supra, 288 N.J. Super. at 367 (noting our obligation to give "due regard to [the judge's] expertise in the field of workers' compensation and h[er] opportunity of seeing the witnesses and evaluating their credibility") (citing Bradley v. Henry Townsend Moving & Storage Co., 78 N.J. 532, 534 (1979)); Close, supra, 44 N.J. at 589. In short, we are satisfied that the conclusions the judge reached were supported by sufficient credible evidence at trial.

 
Petitioner's remaining argument concerning the other medical reports that were admitted at trial lacks sufficient merit to warrant any further discussion in this opinion. See R. 2:11-3(e)(1)(E).

Affirmed.

Petitioner appeared pro se at the motion hearing and at trial. She argued that all her petitions should be restored. The judge restored only the claim regarding injuries to petitioner's hands. She has not appealed that decision.

Petitioner's appendix includes reports that were not admitted at trial. We have attempted to limit our discussion to only the exhibits introduced at trial, though it has been necessary to include some limited reference to other reports that are contained in the appellate record in order to provide historical context to plaintiff's claims.

In this regard, the report from Schenk was not provided to us.

(continued)

(continued)

15

A-2429-08T1

January 15, 2010