RICHARD FORKER - v. CIRCUIT FOIL USA INC.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2934-08T12934-08T1

RICHARD FORKER,

Petitioner-Respondent,

v.

CIRCUIT FOIL USA,

INC./TRAVELERS INDEMNITY

COMPANY,

Respondent-Appellant.

______________________________________

 

Argued March 23, 2010 - Decided

Before Judges Parrillo, Lihotz and Ashrafi.

On appeal from a Final Decision of the New Jersey Department of Labor, Division of Workers' Compensation, Claim Petition No. 97-036680.

Kristin Schoenberg argued the cause for appellant (Edward H. Keiper Law Offices, attorneys; Ms. Schoenberg, on the brief).

Kathleen M. Dotoli argued the cause for respondent (Kushinsky, Dotoli & Gans, LLC, attorneys; Ms. Dotoli, on the brief).

Paula T. Dow, Attorney General, attorney for respondent State of New Jersey, Department of Labor, Second Injury Fund (Jane G. Lafferty, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

The employer, Circuit Foil, USA, Inc., appeals from an Order for Total Disability dated January 22, 2009, issued by the Division of Workers' Compensation in favor of petitioner Richard Forker following our previous remand. See Forker v. Circuit Foil, USA, Inc., Docket No. A-2462-07T1 (November 26, 2008). The original appeal was from a similar order dated December 20, 2007, finding that petitioner had become totally and permanently disabled as a result of a May 1997 workplace accident. We remanded to the Judge of Compensation (JOC) to make more specific findings of fact and to explain the reasons for that decision. The judge issued a written decision dated January 14, 2009, complying with our directive and setting forth detailed findings and conclusions. Having reviewed the record in the light of the applicable standard of review, we now affirm.

We incorporate without repetition the statement of facts and procedural history contained in our prior opinion, noting that no new evidence was presented on remand. Briefly to summarize, Forker was employed as a laborer for more than thirty years by Circuit Foil. He worked a "hard job" with extensive heavy lifting, causing repeated strain on his back. During a typical work day, he was required to lift rollers that weighed more than 300 pounds and maneuver them to his machine for fabrication. He also had to "jog drums" that weighed six to seven tons into place for lifting by overhead cranes.

Petitioner had a long history of back problems dating back to 1970. Throughout the years, he had experienced persistent lower back pain and accidents resulting in several workers' compensation claims. Petitioner also suffered from other ailments and physical conditions that were not the direct result of his work duties, including hypertension, diabetes, and morbid obesity. In 1995, petitioner had been awarded 30% partial permanent disability as a result of orthopedic injuries to his back.

When the pain in his back worsened several months after a May 1997 accident at work, petitioner received treatment and needed several weeks of recovery time out of work. He then returned to his job and worked until he retired in June 1999 at the age of fifty-five. He has not been able to work since that time because of his back pain and related neurological and psychological conditions. He was granted Social Security disability benefits. According to the JOC's findings, he decreased his work duties during his last two years on the job as the condition of his back deteriorated. The JOC found that it was the 1997 accident, rather than occupational exposure in his last two years of work, or a fall off his porch in 2001, that was the cause of petitioner's total permanent disability.

We previously remanded for additional fact finding and explanation of reasons for the order of total permanent disability because the 2007 oral decision of the JOC did not adequately refer to the conflicting medical evidence or the extent of petitioner's pre-existing condition before the 1997 accident. The employer had argued that petitioner's expert witnesses, Martin Riss, a doctor of osteopathic medicine, and Lawrence Eisenstein, a neurologist and psychiatrist, did not establish from objective medical evidence a change in petitioner's condition caused by the 1997 accident, as required by N.J.S.A. 34:15-36 and pertinent case law. See Perez v. Pantasote, Inc., 95 N.J. 105, 118 (1984); Yeomans v. City of Jersey City, 27 N.J. 496, 512 (1958). In particular, Circuit Foil had argued that the 1997 MRI of petitioner's lower back showed no new developments in comparison to a pre-accident 1994 MRI. Circuit Foil's medical expert, Kenneth Peacock, an orthopedist, had testified that there was no change in petitioner's condition before and after the 1997 accident, as evidenced by the two MRIs.

In addition, Circuit Foil argued that new 2002 findings of Dr. Riss could not be attributed to the 1997 accident as opposed to petitioner's occupational exposure, his fall in 2001, or his other non-work-related medical conditions. In our prior opinion, we also sought more explicit findings comparing petitioner's pre-existing condition to medical findings after the 1997 accident, and explaining why the JOC did not attribute petitioner's condition to other potential causes following that accident. These findings affected the potential liability of the Second Injury Fund and also determined which worker's compensation carrier for Circuit Foil was liable for payment of petitioner's disability benefits.

In his decision of January 14, 2009, the JOC first explained reasons for crediting the testimony of petitioner on the subject of his increased disability after the May 1997 accident. Next, the JOC set forth his reasons for finding that the pre-existing orthopedic disability, and hence the liability of the Second Injury Fund, was 30% partial total disability. Most significant for purposes of Circuit Foil's challenge on this appeal, the JOC stated in detail his reasons for finding the testimony of petitioner's experts to the effect that the 1997 accident was the cause of petitioner's total disability more credible than the contrary testimony of Circuit Foil's expert. In that regard, the JOC stated:

In considering the medical evidence that was presented at trial, I take into account Dr. Riss' interpretation of the findings in the 1994 MRI report and his further interpretation of the findings in the November 1997 MRI. I realize that both of these tests were initially read by radiologists who reported specific findings that they recorded when they read the films. Dr. Riss reviewed these findings and used his own expertise to make his own independent medical interpretation. MRI reports normally contain the instruction to doctors who order them that their results should be correlated clinically. In other words, Dr. Riss took all the clues he found in these two reports and put them together with the findings of his medical examination to conclude that there was a greater amount of orthopedic and neurological pathology in Mr. Forker's back as a result of this accident than there was beforehand. He assessed objective medical findings and used them to reach a diagnosis.

Dr. Riss' and Dr. Eisenstein's dermatonal findings, Dr. Riss' clinical test results such as positive straight leg raising and the Lasague's findings as well as his review and analysis of the clinical findings of the doctors, nurses and physical therapists who examined him and followed him during the course of his treatment at Healthcare, Heath South and Community Medical Center constitute persuasive demonstrable objective medical evidence that Petitioner Forker has permanent disability as a result of his May 23, 1997 accident. These treating notes and records upon which Dr. Riss relied and which were put into evidence show that he had to stay out of work under treatment for nearly seven months. They show that, during this time, he was treated with steroids, potent anti-inflammatory drugs like Tordol, and with narcotic pain killers such as Vicodin and Per[coc]et. They also show that he received intensive physical therapy and had considerable restrictions placed on his activity. It would be absurd to conclude that Petitioner's injury, which was documented by all the treatment medical records . . . is some mere triviality, or something that did not significantly increase the quantum of his overall disability.

I am persuaded by Dr. Riss' testimony that Petitioner now has a greater amount of lumbar disc pathology (particularly at the site of his L2-L3 epidural nerve block level, and his retolisthesis) and that his disability after his 1997 accident considerably exceeded what it was before this accident. I am persuaded by Dr. Riss' testimony that this accident has caused grave restrictions in his ability to function, and that finally, it prevented him from working at all. Dr. Riss interpreted the objective findings in the MRI report to show that Petitioner had a shifting of the spinal structure at the L2-L3 level which caused instability there and caused pressure on the thecal sac, thus interfering with nerve conduction from his spinal canal and caudia equina into the peripheral nerve network which enervates motion, coordination and sensation in his legs. His testimony is persuasive and indeed explains why Petitioner had increasingly severe searing pains in his legs and often loses the control of his foot and legs . . . and is therefore subject to frequent falls. I don't find any other plausible medical explanation of this fact.

By contrast, Dr. Kenneth Peacock's analysis of Forker's medical condition has little persuasive impact on me.

. . . .

What Dr. Peacock says in effect is that Petitioner has quite a bit of orthopedic disease in his lower back which he found to have been caused by earlier injuries to that area of his body, but he cannot find any evidence to persuade him that that new injury which required seven months to cure to the point where he could return to work with restrictions played any causative role in any further disability which he might have there. When Dr. Peacock was questioned on cross-examination about a myelogram taken by Dr. Sarris showing indentation on nerve roots emanating from a lumbosacral foramen, he minimized the situation and rejected the possibility . . . that it caused any radicular problems in the legs. He then stated that this radiculopathy had never been correlated by any clinical tests. But, he doesn't say whose clinical tests. Were they his own tests? Did he conclude that Dr. Sarris never did any such clinical tests because he didn't mention them in his reports? The fact that Dr. Sarris may not have recorded his clinical findings along with his positive myelogram test report doesn't mean that he didn't perform such test. Indeed, it would be reasonable to infer the opposite. A treating doctor would be extremely unlikely to do a somewhat risky invasive test like a myelogram unless clinical testing strongly indicated that it was necessary.

Looking at the evidence in its entirety and applying the proof standards set forth in our statutory and decisional law, I am satisfied that Petitioner has shown by greater than a fair preponderance of the credible evidence that his disability is causally related to his May 23, 1997 accident. His injury arose out of and occurred during the course of his employment.

In looking at Petitioner Forker as a total occupational unit, considering his work history, his skills and applying the standard in Katz vs. Howell Twp., 67 N.J. 51 (1975), I conclude that he is "unemployable in a reasonably stable job market." I am satisfied and I find that on June 26, 1999, when he had to stop working, that he was disabled to a degree that no fundamental or marked improvement could be expected. The decline in his orthopedic condition during the past nine and one half years certainly corroborates my belief that Petitioner Forker is totally and permanently disabled as an occupational unit.

Circuit Foil challenges the JOC's findings and conclusions in an exclusively fact-based argument. It contends that the judge misinterpreted the evidence and failed to acknowledge that on cross-examination Dr. Riss agreed with the medical opinions of three treating doctors that the 1997 MRI did not show objective evidence of any change from the 1994 MRI. Circuit Foil also argues Dr. Eisenstein did not conclude that petitioner was totally disabled as a result of the 1997 accident. Circuit Foil's brief dissects the testimony of petitioner's experts virtually line-by-line in an attempt to demonstrate that the JOC was simply wrong in his findings and conclusions.

Appellate review, however, is not an opportunity to reargue the facts found from conflicting evidence produced at a trial. The scope of appellate review is limited. Kozinsky v. Edison Prods. Co., 222 N.J. Super. 530, 537 (App. Div. 1988). 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) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)); see also Kovach v. Gen. Motors Corp., 151 N.J. Super. 546, 549 (App. Div. 1978) (compensation judge's expertise). "Deference must be accorded to the factual findings and legal determinations made by the Judge of Compensation unless they are 'manifestly unsupported by or inconsistent with competent relevant and reasonably credible evidence as to offend the interests of justice.'" Lindquist v. City of Jersey City Fire Dep't, 175 N.J. 244, 262 (2003) (quoting Perez v. Monmouth Cable Vision, 278 N.J. Super. 275, 282 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995)).

We especially defer to those factual findings based on the judge's credibility determinations. Ramos v. M&F Fashions, 154 N.J. 583, 594 (1998); see also State v. Locurto, 157 N.J. 463, 474 (1999) (credibility determinations "often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record"). Where the record contains sufficient credible evidence, a compensation judge's findings of fact are binding on appeal, and those findings must be upheld "even if the court believes that it would have reached a different result." Sager v. O.A. Peterson Constr., Co., 182 N.J. 156, 164 (2004).

Applying this deferential standard of review, we conclude the JOC's findings and conclusions are adequately supported by the evidential record. In particular, we must defer to the JOC's finding that petitioner and Dr. Riss were credible in their testimony. The JOC could also determine the weight to be accorded particular evidence, such as Dr. Riss's opinion that petitioner suffered additional injury as a result of the 1997 accident in comparison to his general agreement with the opinions of the treating doctors regarding the MRI readings.

The judge's conclusions were based on the totality of evidence tending to show that the 1997 accident caused further disabling injury. He viewed as objective medical evidence the results of physical examinations conducted by Dr. Riss and others as well as the MRI findings. We conclude that the JOC based his finding of causation of additional disability on sufficient credible evidence in the record.

As to the occupational exposure and other potential causes following the 1997 accident, the JOC relied upon Peterson v. Hermann Forwarding Co., 267 N.J. Super. 493 (App. Div. 1993), certif. denied, 135 N.J. 304 (1994). In that case, we held that, to receive an award for compensable occupational disease, "a petitioner must show that the alleged occupational exposure contributed to the resultant disability by an appreciable degree or a degree substantially greater than de minimis." Id. at 504. The JOC found that petitioner's last two years of work did not "to a material degree" cause petitioner's disability. That conclusion is also adequately supported by the evidentiary record. Furthermore, petitioner's expert had testified that the fall in 2001 was caused by his existing orthopedic condition.

Our review of the record does not "leave[] us with the definite conviction that the judge went so wide of the mark that a mistake must have been made." Manzo v. Amalgamated Indus. Union Local 76B, 241 N.J. Super. 604, 609 (App. Div.) (quoting Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989)), certif. denied, 122 N.J. 322 (1990).

Affirmed.

 

Circuit Foil argues that the reference to seven months is in error. It appears that petitioner lost time from work for about two months in 1997. The discrepancy was not crucial to the JOC's findings and conclusions.

(continued)

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A-2934-08T1

August 23, 2010