LISA MARIE KIESSLING - v. PRUDENTIAL INSURANCE COMPANY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3051-08T23051-08T2

LISA MARIE KIESSLING,

Petitioner-Respondent,

v.

PRUDENTIAL INSURANCE COMPANY,

Respondent-Appellant.

________________________________________________________________

Argued April 28, 2010 - Decided May 10, 2010

Before Judges Sapp-Peterson and Espinosa.

On appeal from New Jersey Department of Labor, Division of Workers' Compensation, Docket No. 1993-32163.

William T. Freeman argued the cause for appellant (Freeman, Barton, Huber & Sacks, attorneys; Mr. Freeman, on the brief).

Irwin R. Rein argued the cause for respondent (Irwin R. Rein, P.A., attorneys; Mr. Rein, of counsel; Jeffrey Zajac, on the brief).

PER CURIAM

Lisa Kiessling was employed by Prudential Insurance Company (Prudential) from 1989 to 1993, when she applied for disability benefits based upon her complaints of pain and lack of feeling in her hands. She was awarded permanent total disability benefits in 2003, an award that Prudential did not challenge. In 2007, Prudential filed a motion to modify the order for total disability, set it aside and enter an order updated to reflect Kiessling's physical capabilities at that time. Prudential appeals from a final decision of the workers' compensation court denying that motion. We affirm.

The evidence presented at trial is set forth in detail in the extensive written decision of the Honorable Stephen Tuber, J.W.C., and need not be repeated here. We note only the following salient facts.

To support its motion that the award should be modified, Prudential presented the testimony of two physicians who had examined Kiessling, a psychiatrist, Dr. David Gallina, and a neurologist, Dr. Charles Effron, as well as two neighbors of Kiessling, Ruth Beam and Catherine Reilly, who have an acrimonious relationship with her. Kiessling testified and presented the testimony of Dr. Peter M. Crain, a psychiatrist and neurologist.

Kiessling testified that her condition has gotten worse in the years since the compensation court found her totally disabled because she is physically weaker and has less endurance. She has had a total of six operations to correct her condition. The prescribed medications she takes on a daily basis include:

Buspar, an anti-anxiety medication, three times a day

Nortiptyline, and anti-pain and antidepressant medication, three times a day

Oxycontin, a pain medication, four times a day

Topomax, a seizure medication used for pain relief, twice a day

Methodone, a pain medication, four times a day

Wellbutrin, an antidepressant, two to three times a day

Bethanechol, a medication for dry mouth

Prevacid, a stomach medication

She described a typical day to the court and stated that she still suffers from chronic pain that limits her everyday activities and has caused her to compromise her personal hygiene and housekeeping. She has only spurts of energy. Kiessling testified that one of the side effects of her medications was that a drying effect had an impact on her vision, especially when she used a computer, and, as a result, she cannot sit at a computer for more than two hours at a time. She explained that she obtained tattoos to help her deal with her "suicidal ideation" and to camouflage the scars she bore from the multiple operations. She owned three Great Danes that were service dogs to assist her in dealing with her stress and pain.

Beam and Reilly described their observations of Kiessling performing activities that were purportedly inconsistent with her claimed disability status, such as shoveling snow, building a fence, carrying groceries and other presumably heavy objects, walking her dogs, and climbing a ladder. When she testified, Kiessling acknowledged many of these activities and provided explanations that the court found credible. Upon examination, the neighbors' characterizations of Kiessling's activities appeared exaggerated. For example, the snow shoveling was observed on only two occasions for limited periods of time; Kiessling explained that her "building a fence" was no more than lacing bamboo reeds into an existing chain link fence over the course of a month in a series of efforts lasting fifteen to twenty minutes at a time. In some respects, the neighbors corroborated Kiessling's description of her life. They testified that the dogs were, indeed, well behaved on their walks and, although she walked her dogs "sometimes" on a daily basis, there were also times when she would go for a week or two without walking the dogs at all. Beam confirmed that Kiessling accumulated her trash in her garage and had someone else haul it rather than take it to the curb twice a week. When Judge Tuber asked whether Kiessling exercised, jogged, or played ball with the kids in the area, Beam replied, "No. No. I have never seen her do anything like that."

Dr. Gallina was able to compare his recent evaluation of Kiessling with his evaluation in 2001, prior to the award of permanent total disability benefits. He testified that, from a purely psychiatric point of view, Kiessling had improved since then and was now employable. He noted that she was living independently in a home she owned and bore the responsibility of caring for three Great Danes. Dr. Gallina diagnosed Kiessling with Chronic Pain Syndrome and Borderline Personality Disorder. As Judge Tuber noted, although Dr. Gallina concluded that Kiessling was capable of working, he did not disagree with Dr. Crain's opinion that the present psychiatric treatment she was receiving was medically necessary. As to Kiessling's prognosis, Dr. Gallina opined that she had numerous incentives to maintain her disability lifestyle. He compared the information received from Kiessling regarding her ability to maintain herself and her home with that in the Baltimore City Bureau of Animal Control decision on her application for a multi-pet permit and found that Kiessling's representations in the application reflected a much higher level of functioning than she had described to him. Dr. Gallina found that the reports of Kiessling's activities provided by her two neighbors were also incompatible with the limitations described to him by Kiessling.

Dr. Effron also evaluated Kiessling in 2001 and in 2007. At his 2001 evaluation, Dr. Effron found that Kiessling presented with evidence of a neurologic disability. However, in the 2007 test he found no objective evidence of any neurological diagnosis. Dr. Effron also opined that a person with neuropathic pain would not get tattoos.

Dr. Crain, who testified for Kiessling, disagreed, stating that her explanation of the reasons she got tattoos made psychiatric sense. Based on his May 9, 2007, neuropsychiatric examination of petitioner, he reached the following diagnoses: Bilateral Carpal Tunnel Syndromes, Left Cubital Tunnel Syndrome,

Bilateral Brachial Plexopathies, Chronic Pain Syndrome and Nature Depressive Disorder, Severe. He concluded that she was totally disabled, having sustained "a neurologic disability of 40% of total," and that she suffered from "chronic pain syndrome and major depression, which both account for a neuropsychiatric disability of 50% of total." His findings suggested that, despite six surgeries, it appeared that some of them had failed to improve Kiessling's condition. He explained that Kiessling's inability to work exacerbates her depression, especially because work had been a comfort to her in her prior personal problems. Dr. Crain indicated that Kiessling is caught in a Catch-22 dilemma. If she takes her medications, she is unable to work because of their effects; if she does not take them, her pain and depression will prevent her from working. As it is, she is only capable of doing things in "spurts" and would be unable to do any sustained work. He suggested that the activities observed by Kiessling's neighbors were consistent with his diagnosis because Kiessling is capable of doing activities in spurts and that her medications allow her to do "baseline function activities" but opined that when a person goes beyond them, the medications "lose their effect." Based on her lack of stamina, Dr. Crain explained that she would not be able to work a full day and that she could work only for a "benevolent employer" who allowed her to take breaks and lie down when tired.

After carefully reviewing the testimony given by each of the physicians and comparing it to the testimony given by the lay witnesses, Judge Tuber rejected the testimony given by Drs. Gallina and Effron in favor of that given by Dr. Crain. The court concluded that Prudential had failed to sustain its burden of proof. See Jersey City Printing Co. v. Klochansky, 9 N.J. Super. 361 (Cty. Ct. 1949), aff'd, 8 N.J. Super. 186 (App. Div. 1950) (employer seeking to reduce payments of an existing award has the burden of proof). Accordingly, Prudential's motion was denied and this appeal followed.

The standard of appellate review in a workers' compensation case 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 of their credibility[,]" Sager v. O.A. Peterson Constr., Co., 182 N.J. 156, 163-64 (2004); Close v. Kordulak Bros., 44 N.J. 589, 599 (1965); and also, giving due weight to the expertise of a compensation court judge. Harbatuk v. S & S Furniture Sys. Insulation, 211 N.J. Super. 614, 620 (App. Div. 1986). Because we find the compensation court's decision to be supported by sufficient credible evidence, the issues raised do not merit discussion in a written opinion, R. 2:11-3(e)(1)(D), beyond the following comments.

The thrust of Prudential's challenge to the compensation court's decision is that the court relied upon evidence that was not credible. However, we are required to give "due regard to the opportunity of the one who heard the witnesses to judge of their credibility[.]" Sager, supra, 182 N.J. at 164; Close, supra, 44 N.J. at 599. A review of Judge Tuber's decision shows that he carefully compared and contrasted each witness's testimony to determine the extent to which it was supported or refuted by other evidence and to probe the support for any conclusions expressed by expert or lay witnesses. We perceive no basis for rejecting his thoughtful consideration of the credibility of the witnesses, including the experts presented.

The court rejected the testimony of Dr. Gallina and Dr. Effron that Kiessling was employable because it contradicted not only Dr. Crain and his objective medical evidence of the diagnostics and six "progressively pervasive surgical interventions" operations, but also the testimony of all the fact witnesses that Kiessling had a limited capacity for activity. Ultimately, the court agreed with Dr. Crain's opinion that the "spurts" of Kiessling's activity, the pain if she does not take her medication and the low stamina caused by the medication make her employable only by a "benevolent employer." See Harbatuk, supra, 211 N.J. Super. at 624 (being capable of a few hours of light activity does not stop one from being totally disabled). Consequently, the court's determination that Prudential failed to satisfy its burden of showing Kiessling capable of employment was adequately supported by competent, credible evidence.

Prudential also argues that it was reversible error for the court to refuse to admit a public record of the City of Baltimore regarding the administrative hearing, conclusions of law and fact and recommended decision regarding Kiessling's application for a multi-pet permit. Prudential contends that the representations made by Kiessling and the findings contained in this document contradicted her testimony regarding her ability to maintain her property. However, the document also reported that neighbors who opposed the application complained about Kiessling's failure to adequately address waste disposal issues. Even though the Rules of Evidence do not apply to administrative hearings, N.J.S.A. 34:15-56; N.J.R.E. 101(a)(3); the decision whether to admit evidence lies within the discretion of the trial judge and will not be the basis for reversal in the absence of an abuse of discretion. Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008). We see no abuse of discretion here and further note that Dr. Gallina did refer to the information contained in this document as support for his opinions.

 
Affirmed.

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