CHRISTOPHER R. BRAND SR v. NEW JERSEY MANUFACTURERS INSURANCE CO.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4131-08T3

CHRISTOPHER R. BRAND, SR.,

Petitioner-Respondent,

v.

NEW JERSEY MANUFACTURERS

INSURANCE CO.,

Respondent-Appellant,

and

SECOND INJURY FUND,

Respondent.

________________________________________

October 13, 2010

Submitted September 15, 2010 - Decided

Before Judges Sapp-Peterson and Simonelli.

On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition No. 2005-29491.

Naulty, Scaricamazza & McDevitt, LLC, attorneys for appellant (Ronald P. Bartash, on the brief).

Leslie J. Jandoli, attorney for respondent Christopher Brand (Thomas W. Polaski, on the brief).

Paula T. Dow, Attorney General, attorney for respondent Second Injury Fund (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Cheryl B. Kline, Deputy Attorney General, on the brief).

PER CURIAM

Respondent, New Jersey Manufacturers Insurance Co. (NJM), appeals from the order of judgment entered by a judge of the Division of Workers' Compensation on March 16, 2009, awarding permanent total disability to petitioner, Christopher Brand, arising out of work-related injuries he sustained. The judge of compensation awarded Brand 450 weeks of disability payments as of July 1, 2005, and at the end of that time, on February 13, 2014, "which is the expiration of the 450[-]week period," his benefits would continue subject to N.J.S.A. 34:15-12(b). The compensation judge also dismissed petitioner's claim against the Second Injury Fund (SIF), N.J.S.A. 34:15-95 to -95.5. We affirm.

On appeal, NJM contends the award should be reversed because the compensation judge's decision "was not based on the substantial, competent evidence of [the] record." Specifically, NJM argues that (1) the evidence in the record did not support the compensation judge's finding that petitioner was "100 [percent] totally disabled and not capable of sedentary work[,]" and (2) the evidence did not support the compensation judge's dismissal of the SIF.

We have considered these arguments in light of the record, the arguments of counsel and applicable principles, and we are satisfied that the findings of the judge of compensation are supported by substantial credible evidence in the record and that those findings also support the dismissal of petitioner's petition against the SIF.

Brand worked for NJM as a senior fraud investigator. According to Brand, on March 13, 2002, he was driving his surveillance vehicle, specifically following a vehicle being operated by an individual suspected of engaging in insurance fraud, when a truck rear-ended his vehicle. The impact pushed Brand's vehicle into the rear of the suspect's vehicle. Brand received twenty weeks of temporary disability and, on October 6, 2005, he filed a claim petition for injuries he sustained to his "right shoulder[,] cervical spine[,] left shoulder and psychiatric residual[,] both knees." NJM filed an answer to the petition on January 25, 2006, accepting petitioner's injuries to his "[r]ight and left shoulder rotator cuff [and] [c]ervical spine sprain." On June 13, 2007, petitioner filed a verified petition alleging that he was totally and permanently disabled, seeking SIF benefits.

Trial commenced on November 14, 2007, and testimony was presented on non-consecutive days over the course of the next sixteen months from petitioner as well as from medical experts. Judge of Compensation Michael P. Mullen rendered a bench decision on March 11, 2009, finding that petitioner sustained his burden of proving total and permanent disability as a result of the compensable accident of March 13, 2002.

In reaching this conclusion, the compensation judge acknowledged that petitioner had physical limitations causally related to a preexisting bilateral knee condition, but noted petitioner's preexisting condition had not "stop[ped] him from fully functioning in his job and enjoying, though with some difficulty, his recreational pursuits such as golf, playing softball." The compensation judge found the testimony of petitioner's experts more credible than the testimony presented by the experts who testified on behalf of NJM. In particular, considerable weight was given to the testimony of petitioner's treating physician, Dr. Scott A. Rodeo, an orthopedic surgeon, observing that Dr. Rodeo noted that the injuries to Brand's neck and bilateral shoulder affected his ability to turn and engage in activities such as driving or to maintain a physical posture necessary to perform desk work.

The compensation judge also found that petitioner was credible and that his complaints and limitations about which he testified were consistent with the injuries petitioner sustained as a result of the compensable accident. Likewise, the compensation judge found that the injuries from the compensable accident were supported by demonstrable objective evidence, "including but not limited to the five surgeries for his shoulder and the surgical fusion and the limitations of range of motion in the unoperated shoulder." Finally, the compensation judge found the evidence credibly supported petitioner's psychiatric condition of chronic depression stemming from the "catastrophic motor vehicle accident of 3/13/02."

Our standard of review from a determination of a judge of compensation is the same standard we employ in the review of any non-jury case. Brock v. Pub. Serv. Elec. & Gas Co., 149 N.J. 378, 383 (1997). "We may not substitute our own factfinding for that of the Judge of Compensation even if we were inclined to do so." Lombardo v. Revlon, Inc., 328 N.J. Super. 484, 488 (App. Div. 2000). Rather, our task is to 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) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). Further, we accord "due regard to the opportunity of the one who heard the witnesses to judge of their credibility[,]" and where an agency's expertise is a factor, give due regard to that expertise. Ibid.

Against this standard of review, we are satisfied that there is substantial credible evidence to support the compensation judge's findings and we discern no basis to disturb those findings. Having determined that petitioner's total and permanent disability is one hundred percent causally related to the compensable accident of March 13, 2002, the compensation judge properly ruled that petitioner's claim against the SIF must be dismissed. See N.J.S.A. 34:15-95(c) (providing that no person shall be eligible to receive payments from the SIF if "the disability resulting from the injury caused by the person's last compensable accident in itself and irrespective of any previous condition or disability constitutes total and permanent disability within the meaning of [the SIF]").

The SIF is a statutorily-mandated source of workers' compensation benefits provided to workers who are already partially disabled, who subsequently experience a work-related injury, and who are rendered totally disabled by the two work-related injuries taken together. Ibid. Here, the compensation judge's finding that the disability is solely related to the compensable accident precluded liability being imposed upon the SIF. Katz v. Twp. of Howell, 68 N.J. 125, 129 (1975) (Katz II).

NJM points to the fact that petitioner returned to work performing a sedentary job and left his job not because of his inability to perform a desk job but because on the second day of his return to employment, he learned that his accrued vacation time would be enough to fulfill a three-week commitment he needed to complete in order to become fully vested for pension purposes. Petitioner testified that his return to work was prompted by a doctor's recommendation that he try to resume working on a part-time basis. He also acknowledged that his return to work was influenced by his understanding that he needed more time to obtain his full benefit package from NJM. Petitioner explained that he was given a clerical position that consisted of sitting at a desk and using a computer. He performed this work for a total of sixteen hours over four days and testified that "[a]fter a couple hours my shoulder would ache so bad that I couldn't -- I couldn't even use the computer." The compensation judge credited this testimony and found that "[t]here was no reason for him to continue forward with this situation." The compensation judge also found that petitioner's return "was nothing more than a magnanimous gesture on the part of NJM to help [petitioner] qualify for his full package of benefits."

In short, the compensation judge rejected the opinions expressed by NJM's experts that a portion of petitioner's disability was causally related to petitioner's preexisting conditions, and also rejected their opinions as to whether petitioner could perform sedentary duties. Rather, the compensation judge credited the testimony of petitioner and petitioner's experts. Given the deferential standard we accord to the factual findings and legal determinations of a compensation judge, we find no basis to disturb Compensation Judge Mullen's factual findings and legal determinations here. Perez v. Monmouth Cable Vision, 278 N.J. Super. 275, 282 (App. Div. 1984).