GARY HUMPHREY - v. LUBE EXPRESS -

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3240-09T4

GARY HUMPHREY,

Petitioner-Appellant,

v.

LUBE EXPRESS,

Respondent-Respondent.

_____________________________

December 13, 2010

Submitted December 6, 2010 - Decided

Before Judges Reisner and Sabatino.

On appeal from Department of Labor and Workforce Development, Division of Workers' Compensation, Claim No. 2008-27214.

Samuel Rothfeld, attorney for appellant (Valerie Steiner, of counsel and on the brief).

McElroy, Deutsch, Mulvaney & Carpenter, L.L.P., attorneys for respondent (Michael J. Marone, of counsel; Richard J. Williams, Jr. and Ifeoma Onuora, on the brief).

PER CURIAM

Petitioner Gary Humphrey appeals from a February 23, 2010 order of the Division of Workers Compensation dismissing his petition for workers compensation benefits. We affirm.

I

Petitioner, an employee of Lube Express in Bergenfield, contended that on August 1, 2008, he injured his back while at work. The employer denied that petitioner was injured at work. The case was tried on the issue of liability only, specifically whether a work-related accident occurred.

Two witnesses testified at the hearing. According to petitioner, at about eleven o clock in the morning, he was rotating the tires on a Jeep. He first testified that while trying to loosen the lug nuts on the tires, he bent down in an awkward position and experienced severe lower back pain. On cross-examination, he testified that he was actually lifting the tire off the vehicle when he experienced the pain.

According to petitioner, his supervisor "Mike" witnessed the accident. The supervisor called an ambulance. However, petitioner testified that he refused to go to Hackensack Hospital in the ambulance because he was concerned that he might have to stay there overnight and his car might be stolen from the parking lot next to the Lube Express building.1 Instead, at around 11:45 a.m., he left work and drove himself to St. Joseph s Hospital in Paterson, where he lived. He testified that he arrived there at about 12:30 p.m., and it took about half an hour before he was seen by a doctor. Without objection, the hospital records were marked for identification, and the employer s attorney used them in cross-examining petitioner.

Petitioner s former supervisor, Michael Asomani, testified that on August 1, 2008, petitioner reported for work between 7:30 and 8:00 a.m. and immediately asked Asomani for "a painkiller." Asomani offered him Motrin, but petitioner wanted a different medication. Asomani allowed petitioner to go across the street to buy Aleve at a Walgreens store.

According to Asomani, shortly after returning to work from the Walgreens store, petitioner began complaining that his back hurt. Asomani called an ambulance, but petitioner refused to go to the hospital. After an hour passed, petitioner left work, telling Asomani that he was "going to see his doctor."

Asomani denied seeing petitioner "get hurt on the job." He also denied that petitioner told him that he was injured while rotating a tire. He testified that if petitioner had told him that he could not continue working on a car due to an injury, Asomani would have finished the job himself.

In an oral opinion issued on February 23, 2010, the workers' compensation judge found that petitioner was not credible. She described him as a "truculent" witness who gave terse answers to questions and did not make eye contact with her. She also noted that he gave a less than convincing explanation for refusing to ride to the hospital in the ambulance that his employer called for him after he complained of intense back pain. Referring to the emergency room records, the judge further noted they indicated that petitioner did not arrive at the emergency room until 3:45 p.m. She did not believe petitioner s testimony that he was injured at work.

On the other hand, the judge credited Asomani's testimony that petitioner was already complaining of pain when he reported for work. She described in detail her reasons for finding Asomani more credible, including his "pleasant and cooperative" demeanor and willingness to make eye contact with her. The judge concluded that petitioner was not injured at work, but instead was already suffering from back pain when he arrived at work.

II

On this appeal, petitioner argues that the workers compensation judge improperly considered the emergency room records, because they were not introduced in evidence. He also contends that the records may have been inaccurate as to the time petitioner went to the emergency room. He further argues that the judge's credibility findings, concerning his refusal to go to the hospital in an ambulance, were unreasonable. Finally, he contends that the judge's decision is not supported by the evidence. Having reviewed the record, we conclude that these contentions are without sufficient merit to warrant discussion in a written decision. R. 2:11-3(e)(1)(E). We add the following comments.

On this appeal, our review of the judge s decision is limited. We must affirm the judge s factual findings so long as they are supported by sufficient credible evidence. Tlumac v. High Bridge Stone, 187 N.J. 567, 573 (2006); Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). And we owe particular deference to the judge s credibility findings. State v. Locurto, 157 N.J. 463, 474 (1999). In light of that legal standard, we find no basis to disturb the judge's factual findings, which were largely based on her evaluation of witness credibility.

Even if the judge erred in considering the time of arrival stated in the emergency room record, a document which was not in evidence, we conclude the error was harmless. The judge s decision was primarily based on the demeanor of the witnesses and the inconsistency between petitioner s claim to be in severe pain and his refusal to go to the hospital in the ambulance. It is not our role to second-guess the judge s factual findings so long as they find sufficient support in the record, and we conclude that they do. See Reinhart v. E.I. Dupont de Nemours, 147 N.J. 156, 163-64 (1996).

Affirmed.

1Although he had worked at the Bergenfield location for over a year at the time of the incident, he claimed not to be familiar with the area.