WILLIAM CONTRERAS v. THE CITY OF NEW BRUNSWICK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3431-08T13431-08T1

WILLIAM CONTRERAS,

Petitioner-Respondent,

v.

THE CITY OF NEW BRUNSWICK,

Respondent-Appellant.

_____________________________________________________________

 

Argued November 18, 2009 - Decided

Before Judges Graves and J.N. Harris.

On appeal from a Final Judgment of the

Department of Labor and Workforce Development,

Division of Workers' Compensation.

Michael J. Frank argued the cause for appellant

(Psak & Associates, attorneys; Mr. Frank, on

the brief).

Allan L. Lockspeiser argued the cause for

respondent (Wysoker, Glassner, Weingartner,

Gonzalez & Lockspeiser, attorneys; Mr. Lockspeiser,

on the brief).

PER CURIAM

On October 20, 2005, petitioner William Contreras filed a workers' compensation claim alleging he sustained multiple injuries in a motor vehicle accident while working as a New Brunswick police officer. In its answer, the City of New Brunswick (the City) admitted the accident arose in the course of petitioner's employment but the City disputed the nature and extent of petitioner's injuries. The City appeals from an order of judgment awarding disability benefits to petitioner. We conclude from our review of the record that there is sufficient credible evidence to support the findings and conclusions of the compensation judge, and we affirm.

On October 1, 2005, while petitioner was on patrol and traveling at approximately fifty miles per hour, his vehicle was struck by a vehicle that "ran a stop sign." Following the accident, petitioner received emergency room treatment at the Robert Wood Johnson Hospital and was out of work for about two months. When he returned to work, he was on light duty for approximately a month before resuming his regular duties.

During his emergency room treatment, petitioner was diagnosed with facial fractures and lacerations, a left bicep tear, and a right knee contusion and laceration. Following his discharge from the hospital, plaintiff had blurred vision and pains in his back, knee, arm, and elbow. Because petitioner experienced pain when using stairs and performing other routine tasks, he underwent physical therapy and surgery on his right knee.

Prior to trial, both parties agreed to submit all of the medical reports to the court in lieu of expert testimony. Therefore, petitioner was the only witness to testify during the trial.

Petitioner testified he "was in perfect health" and had no physical problems prior to the accident. When asked to describe his "current status," petitioner testified his right knee often bothers him when the weather is cold, or when he performs routine activities that involve squatting, running, sitting for long periods of time or when walking up stairs. He also testified he experiences "blurriness" in his left eye and headaches that he never had before the accident. Petitioner further testified his back bothers him when he tries to sleep, when he sits in a car for an extended length of time, and when he exercises. In addition, one of petitioner's medical reports noted petitioner "does not have the full use of his arm."

On February 20, 2009, the court awarded permanent partial disability benefits to petitioner in the total amount of $124,042.50, less a third-party settlement credit pursuant to N.J.S.A. 34:15-40, for a net award of $86,379.08. The award of benefits pursuant to N.J.S.A. 34:15-12(c) was based on seventeen and one-half percent disability for the right leg for "various knee problems, including surgery"; ten percent disability for the facial fractures; fifteen percent disability for the lumbar sprain with disc bulges; and twenty-two and one-half percent disability for the left arm bicep tear and elbow sprain.

"The standard for appellate review of a workers' compensation judge's determination is equivalent to that used for review of any nonjury case." Brock v. Pub. Serv. Elec. & Gas Co., 149 N.J. 378, 383 (1997). We will only decide "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record,' considering 'the proofs as a whole[.]'" Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (citation omitted). We must also afford "due weight to [the compensation judge's] expertise in the field and his opportunity of hearing and seeing the witnesses." De Angelo v. Alsan Masons, Inc., 122 N.J. Super. 88, 89-90 (App. Div.), aff'd o.b., 62 N.J. 581 (1973). See also Lewicki v. N.J. Art Foundry, 88 N.J. 75, 89 (1981) ("Compensation Judges are regarded as experts, and their findings are entitled to deference." (internal citation omitted)).

The worker's compensation statute was intended "to eliminate awards for minor partial disabilities while increasing awards for the more seriously disabled." Kozinsky v. Edison Prods. Co., 222 N.J. Super. 530, 538 (App. Div. 1988). Accordingly, the court must maintain "careful adherence to the requirement of focusing award findings upon the true cumulative loss of functional and working ability objectively supported by the record." Ventre v. CPC Int'l, Inc., 285 N.J. Super. 567, 574 (App. Div. 1995). A compensation award "cannot rest upon imagination, surmise or conjecture, or upon speculation." DiCostanzo v. Matthews Constr. Co., 110 N.J. Super. 383, 389 (App. Div. 1970), aff'd, 58 N.J. 159 (1971).

The definition of partial permanent disability under N.J.S.A. 34:15-36 first requires "a satisfactory showing of demonstrable objective medical evidence of a functional restriction of the body, its members or organs." Perez v. Pantasote, Inc., 95 N.J. 105, 116 (1984). "[O]bjective medical evidence is understood to mean evidence exceeding the subjective statement of the petitioner." Ibid. (quoting Senate Labor, Industry and Professions Committee, Joint Statement to Substitutes for S. 802 and A. 840). The determination cannot "rest upon petitioner's subjective complaints" alone. Ibid.

Second, the petitioner must show "either that he has suffered a lessening to a material degree of his working ability or that his disability otherwise is significant and not the result of a minor injury." Id. at 118. "Material degree means an appreciable degree or a degree substantially greater than de minimis." N.J.S.A. 34:15-7.2. The petitioner carries "[t]he burden of proving both of these elements . . . since he has the onus of establishing permanent partial disability." Perez, supra, 95 N.J. at 118 (citing Januszewski v. Pub. Serv. Coordinated Transp., 9 N.J. 107, 114 (1952)).

The City argues the record does not support the finding that petitioner sustained compensable injuries to his eye, face, left arm, knee, and lower back. However, the requirement of objective medical evidence simply mandates that the determination of disability not "rest upon petitioner's subjective complaints" alone. Perez, supra, 95 N.J. at 116. And in this case, the medical reports submitted by petitioner, which the court credited, provide objective medical evidence of compensable injuries because they exceed petitioner's subjective statements regarding the effects and extent of his injuries.

Moreover, petitioner established that his injuries caused a lessening to a material degree of his working ability and were significant rather than minor, thus satisfying the second statutory requirement. For example, petitioner's facial fractures resulted in a material reduction of his working ability because he suffered blurred vision and sensitivity to light, which caused him to work the night shift to ease the strain on his eyes. During petitioner's treatment in the emergency room, a CT scan revealed fractures in petitioner's face in the left orbital regions. In June 2006, Dr. Horwitz confirmed that petitioner sustained "blunt trauma to the facial/left orbital regions" and a "comminuted fracture of the left medial orbital wall [and] fracture of the left orbital floor," which caused "pain and tenderness elicited upon palpation." Petitioner's facial fractures in the left eye area lessened his working ability to a material degree because his impaired vision precluded him from working the day shift as he did before the accident.

In addition, petitioner's left elbow injury led to stiffness and soreness in the elbow, which caused him to have "difficulty lifting and carrying heavy objects" due to the incomplete use of his left arm. Similarly, petitioner testified he experienced back pain after sitting for long periods of time in his squad car. Thus, petitioner established that these injuries materially impaired his ability to satisfactorily perform his responsibilities as a police officer.

Petitioner's knee injury also materially decreased his working ability because it caused him pain when he was required to "squat, kneel, or climb," and he could not "stand or walk for extended periods of time." Petitioner's knee injury was also sufficiently severe that it required surgery, as opposed to a minor injury such as a contusion or laceration.

Finally, the City contends the court erred by failing to weigh "the true cumulative effects" of petitioner's injuries and by failing to accurately calculate the exact amount of time petitioner was absent from his job while recovering from his injuries. We conclude, however, that the court's factual findings could have reasonably been reached based upon the credible evidence present in the record, and the City's remaining arguments are without sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E).

 
Affirmed.

(continued)

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A-3431-08T1

February 18, 2010