ANA SANTIAGO - v. NORTH BRUNSWICK BOARD OF EDUCATION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4709-08T34709-08T3

ANA SANTIAGO,

Petitioner-Respondent,

v.

NORTH BRUNSWICK BOARD OF

EDUCATION

Respondent-Appellant.

____________________________________

 

Submitted April 27, 2010 - Decided

Before Judges Carchman, Parrillo and Ashrafi.

On appeal from a Final Decision of the New Jersey Department of Labor, Division of Workers' Compensation, Claim Petition Nos. 2003-6729 and 2003-21703.

Golden Rothschild Spagnola Lundell Levitt & Boylan, P.C., attorneys for appellant (E. Richard Boylan, on the brief).

Garces & Grabler, attorneys for respondent (Pamela J. Johnson, on the brief).

PER CURIAM

Appellant North Brunswick Board of Education (the Board) appeals from an order of the Division of Workers' Compensation dated May 4, 2009, denying its motion to terminate medical and temporary disability benefits and confirming a prior order of the Division dated August 13, 2007, requiring that the Board provide psychiatric treatment for petitioner for a period of three months. We affirm.

Petitioner Ana Santiago originally filed claim petition 2003-6729 on February 28, 2003, alleging injuries to her low back, neck, and shoulders sustained on September 6, 2002, during the course of her employment as a teaching assistant for the Board. She alleged that a thirteen year-old girl pushed her up against a wall and caused the orthopedic injuries alleged. The Board filed an answer on May 8, 2003, admitting the claim.

Santiago filed a second claim petition, numbered 2003-21703, on July 9, 2003, alleging injuries to both shoulders and "re-aggravation" of the neck injury. She alleged that after she returned to work, a student pulled a door that she had been holding and she twisted her back. The Board did not file an answer, later claiming that its attorneys did not have a record of receiving the second claim petition.

On March 22, 2004, the Judge of Compensation (JOC) conducted a conference on the claims, and the parties agreed to a settlement, assigning 22% of partial total disability for orthopedic injury, that is, residuals of herniated discs. On April 12, 2004, after the judge heard Santiago's testimony, an order was issued approving the settlement. The order referenced both claim petition numbers. It contained no reference to psychological injury, and none had been claimed up to that point.

Eleven months later, on March 4, 2005, Santiago filed applications to review or modify the award for each claim petition. The Board filed an answer to the application to modify the first claim, indicating there was no need for additional treatment or increase in disability; it did not answer the application for the second claim. On September 19, 2005, Santiago filed amended claims changing the date of the accident from September 6, 2002, to April 28, 2003, and also claiming psychiatric disability. Using the second claim number, the Board filed an answer stating:

Petitioner's amendment is inappropriate. A previous settlement was entered with respect to a September 6, 2002 accident in which petitioner sustained an injury. The alleged April 28, 2003 accident was merely a manifestation of symptoms of the prior injury. Respondent denies that any injury or disability occurred on the amended April 28, 2003 date.

On August 21, 2006, Santiago filed a motion for medical and temporary disability benefits seeking psychiatric treatment for both claims. The Board opposed the motion. Relying upon Brandt Shaw v. Sands Hotel & Casino, 282 N.J. Super. 106 (App. Div. 1995), and Yeomans v. City of Jersey City, 27 N.J. 496 (1958), the JOC rejected the Board's motion to dismiss the claims on various procedural and substantive grounds based on the 2004 proceedings and settlement of the claims.

At a hearing in February and March 2007, Dr. Vin Gooriah, a board certified forensic psychiatrist, testified in support of Santiago's motion. Dr. Gooriah diagnosed Santiago as suffering from a major depressive disorder bordering on psychosis, post traumatic stress disorder, and anxiety disorders, all "secondary to work-related injury." He described her symptoms as "very severe." He concluded that she was in need of psychiatric treatment, including medications and counseling with a psychiatrist and a psychologist.

The JOC found the testimony of Dr. Gooriah credible. He also referred to testimony of Santiago that she had experienced fear as a consequence of the original injury in September 2002 and that her psychological conditions were aggravated by the incident of April 2003. In addition, the judge relied on a report of the Board's examining psychiatrist, Dr. David Scasta. Dr. Scasta disagreed with the diagnoses of Dr. Gooriah but agreed that Santiago suffered from psychological conditions and was in need of treatment. Dr. Scasta stated in his report:

I believe . . . the patient has developed a Panic Disorder with Agoraphobia.

. . . .

The etiology of the patient's psychiatric symptoms is not clear. Her embellishment of symptoms (which appears to be at least partly conscious) makes it difficult to assess etiology accurately. There certainly were non-work related pre-existing factors such as the difficulty that she has had with her husband. She also was hyperthyroid, which would make her very anxious and, in fact, may have precipitated her Panic Disorder. Etiology is thus mixed.

The patient's current level of treatment appears to be appropriate. . . . I would estimate the patient will need to be in treatment for at least six more months. I would recommend more aggressive treatment of her anxiety symptoms as well as her depression.

The JOC concluded that Dr. Scasta's report supported a conclusion that Santiago was entitled to psychiatric treatment as part of her worker's compensation benefits, and offered the Board the opportunity to present Dr. Scasta as a witness if it wished. The Board later indicated it was not calling Dr. Scasta to testify.

On August 13, 2007, the JOC heard further argument and stated that he would order the Board to authorize psychiatric and pain management treatment and to provide for medications prescribed by the treating doctors. The judge stated that the Board must "at the very least" provide "a psychiatric consult or treatment as necessary and a pain management doctor to also take a look at the Petitioner." In denying the Board's application for a stay, the judge said, "it is at least my hope that even after an initial evaluation by a psychiatrist and a pain management expert some comment might be forthcoming as to whether or how much additional treatment may be needed." He said further:

And if we need to come back to this and in fact we will because hopefully we will have some indication from both the psychiatrist and the pain management expert as to what they see may be necessary for the Petitioner in the future.

The judge's order of August 13, 2007, stated that the Board "will authorize a treating psychiatrist and provide psychiatric treatment until further Order of the Court. [The Board] will pay temporary disability benefits if indicated by treating [doctor] . . . ." The order also required that the Board arrange for payment for medications.

Attempting to comply with the order of August 13, 2007, the Board arranged for Santiago to be seen by Dr. Henry Odunlami, a board certified psychiatrist. Dr. Odunlami saw Santiago on September 12, 2007, and issued a report concluding that:

[Patient's] symptoms appear exaggerated during the session and her symptoms of anxiety 5 years after initial episode appear exaggerated and excessive. [Patient] appears to have secondary gain to remain in the sick role and is not motivated for treatment.

Patient should be able to perform her duties or alternative that would remove her from the site of initial episode.

After obtaining a report from a treating pain management physician indicating that Santiago had reached "maximal medical improvement," the Board filed a motion on March 14, 2008, to terminate medical and temporary disability benefits.

While a number of adjournments delayed consideration of the Board's motion, the Board arranged for evaluation of Santiago by a second psychiatrist, Dr. William Head, on December 10, 2008. Dr. Head issued a detailed report concluding, among other things, that "Ms. Santiago's psychiatric examination revealed attempts to feign cognitive impairment and to simulate depression." Dr. Head agreed with Dr. Odunlami that Santiago was exaggerating her condition and seeking to avoid returning to work. He viewed her claims of auditory and visual halluci-nations as conscious fabrication, and he was troubled by her failure to be candid about the domestic violence and marital difficulties she had experienced. Regarding the accidents at the school, Dr. Head concluded:

In my opinion, Ms. Santiago likely sustained a temporary, mild emotional reaction to the described incidents at work, which she subsequently greatly exaggerated and is still exaggerating now. I can find no objective evidence of any current psychiatric condition from the September 6, 2002 or April 2003 incidents at work.

In response to the Board's motion and expert evaluations, Santiago presented a letter from a social worker employed by Catholic Charities stating that she still suffers from psychiatric problems and is in need of treatment.

The JOC heard the Board's motion to terminate medical treatment on May 4, 2009. The Board highlighted the conclusions of Drs. Odunlami and Head that Santiago was exaggerating and not in need of psychiatric treatment. Counsel for Santiago responded that a Dr. Quintana was able and willing to treat Santiago's psychiatric conditions. Neither counsel for the Board nor the JOC had any prior knowledge of Dr. Quintana or his qualifications. Despite the statements made at the August 13, 2007 hearing regarding a "psychiatric consult" and "an initial evaluation," the judge ruled that the Board had not complied with the order of that date because Drs. Odunlami and Head had only conducted evaluations rather than providing psychiatric treatment for Santiago. The judge stated further:

Now, I'm not a psychiatrist, and I'm not a doctor. I do have an obligation to attempt, at least to look after the petitioner's welfare while at the same time not burdening respondent unduly.

. . . .

I still hold to my order of 8-13-07. In view of the fact that there is a psychiatrist who is apparently willing to treat this patient, I am going to deny the motion. I am going to specifically at this point order that the respondent pay for treatment by Dr. Quintana whom, by the way, I am not familiar with either. So I make no comments as to his qualifications other than he's a psychiatrist and appears to be willing to treat.

Having said that, I do not enter a cart blanche order involving or requiring the respondent to pay for petitioner's treatment ad infinitum. I will order the treatment be initially for a period of three months. At that time or hopefully shortly before that time, I will ask the petitioner's attorney to make sure that we get or make arrangements for us to get a report of Dr. Quintana indicating what he has found; whether he thinks there is any purpose to continuing to treat the petitioner; whether the petitioner is making any progress, etc., etc., so that I can make an evaluation as to whether or not continued treatment with Dr. Quintana is desired or necessary.

The judge indicated that the Board would be permitted to present evidence at a future hearing regarding whether Santiago was entitled to further medical treatment and temporary disability benefits.

The Board filed a notice of appeal from the judge's order of May 4, 2009, which again denied the Board's motion to terminate psychiatric treatment and ordered the Board to pay for such treatment by Dr. Quintana for a period of three months. After the notice of appeal, the JOC filed a letter pursuant to Rule 2:5-1(b) to "amplify" his ruling. In that letter, the judge stated:

I entered the order of August 13, 2007 primarily on the basis of Dr. Gooriah's (3-31-06) and Dr. Scasta's (5-10-06) reports. Both indicated the need for psychiatric treatment. . . .

I denied the Motion to Terminate Treatment on the grounds that no treatment had yet been rendered. I continue to believe that I best serve the purposes of the Workers' Compensation statutes by providing that Petitioner receive psychiatric treatment. I note that the treatment I have ordered is for a fixed period of time, three months, and that Respondent has every right to renew its' Motion to Terminate after Dr. Quintana renders his report.

On appeal, the Board raises the following issues, most of which relate to the JOC's rulings originally made in May 2007:

POINT I THE TRIAL COURT ERRED IN NOT BARRING PETITIONER'S CLAIMS UNDER THE DOCTRINE OF JUDICIAL ESTOPPEL.

POINT II THE TRIAL COURT ERRED BY NOT FINDING PETITIONER, BY ENTERING INTO AN ORDER CONSOLIDATING BOTH CLAIM PETITIONS FOR A SEPTEMBER 6, 2002 ACCIDENT IS BARRED BY THE ENTIRE CONTROVERSY DOCTRINE FROM PURSUING A CLAIM FOR A LATER SUBSEQUENT ACCIDENT.

POINT III THE TRIAL COURT ERRED BY NOT FINDING PETITIONER'S CLAIM INVOLVING AN APRIL 28, 2003 ACCIDENT BARRED BY N.J.S.A. 34:15-41; THE TWO YEAR STATUTE OF LIMITATIONS.

POINT IV THE TRIAL COURT ERRED BY NOT DISMISSING PETITIONER'S CLAIM AS OUTSIDE THE SCOPE OF REVIEW OF N.J.S.A. 34:15-27.

POINT V THE TRIAL COURT ERRED BY NOT DISMISSING PETITIONER'S CLAIM PURSUANT TO THE DOCTRINE OF RES JUDICATA.

POINT VI THE TRIAL COURT ERRED BY NOT DISMISSING PETITIONER'S CLAIM PURSUANT TO N.J.S.A. 34:15-57.4.

POINT VII THE DECISION OF THE TRIAL COURT SHOULD BE REVERSED BECAUSE IT WAS NOT SUPPORTED BY SUFFICIENT OR SUBSTANTIAL CREDIBLE EVIDENCE.

Initially, we reject the Board's arguments that Santiago's application to modify the settlement award of April 12, 2004, should have been dismissed on grounds of res judicata and the entire controversy doctrine.

N.J.S.A. 34:15-27 provides in pertinent part:

A formal award, determination and rule for judgment or order approving settlement may be reviewed within 2 years from the date when the injured person last received a payment upon the application of either party on the ground that the incapacity of the injured employee has subsequently increased.

In Yeomans, supra, 27 N.J. 496, the Supreme Court explained that a worker's compensation award may be re-opened and modified:

When a subsequent change in the extent of incapacity is alleged, a prior award of compensation does not preclude a later proceeding to recover additional compensation for the increased incapacity, where the petitioner can show that his increased incapacity is causally related to the same accident upon which the initial award was founded.

[Id. at 508.]

We also stated in Calicchio v. Standard Brands, Inc., 1 N.J. Super. 276, 279 (App. Div. 1949), that:

[A]dditional compensation may be awarded where proof of increased disability is established by competent evidence. . . . [T]he [Division of Workers' Compensation] may modify an award of compensation to accord with an after occurring enlargement or diminution of the incapacity so found to have ensued from the established compensable injury.

In Brandt-Shaw, supra, 282 N.J. Super. at 108-09, the claimant's original claim alleged injury to her back and left knee, but the claim for her back was rejected. She later filed an application for review, seeking medical treatment for injury to her back. Id. at 108. The JOC ruled that the claim for the back was barred, apparently because the claimant had failed to raise it in a previous reopening of the claim for her knee. Id. at 108-09. We reversed the JOC's ruling. We quoted Yeomans and concluded that the claimant need only show a subsequent increase in incapacity arising from and causally connected to the same trauma complained of in the original petition. Id. at 109-10.

Here, the judge could find on the record presented that Santiago's claims of psychiatric injury were not barred by res judicata, the entire controversy doctrine, or the language of N.J.S.A. 34:15-27. Under Brandt-Shaw, supra, the settlement was limited to the "nature and extent of the then existing disability." 282 N.J. Super. at 110 n.1. Although the original settlement related only to orthopedic injuries, Santiago could seek modification alleging that her disability increased beyond the level specifically contemplated by the parties at the time of the settlement and it also included newly manifested psychiatric conditions.

With respect to its statute of limitations defense, the Board argues that the settlement order "clos[ed] both dockets on April 12, 2004, and confirm[ed] that only one accident occurred on September 6, 2002." It contends that Santiago's amended claim filed on September 19, 2005, based on an alleged accident of April 28, 2003, was filed more than two years after the incident and, therefore, barred by N.J.S.A. 34:15-41. See Adams v. N.Y. Giants, 362 N.J. Super. 101, 108 (App. Div.), certif. denied, 178 N.J. 33 (2003). The JOC, however, correctly rejected the statute of limitations defense because the amendment related back to the time of the original filings, which were July 9, 2003, for the original second claim petition and March 5, 2005, for the application to re-open and review the award granted on that claim.

The Board's defense of judicial estoppel and its argument under N.J.S.A. 34:15-57.4 are related and were also rejected correctly. The Board contends that, at the time of the settlement in April 2004, "Santiago purposely and/or knowingly mischaracterized the significance of the second April 28, 2003 accident and indicated she was at maximum medical improvement with permanency fixed, for the purpose of obtaining the benefits." The Board cites N.J.S.A. 34:15-16, which provides that "permanent disability, total or partial, shall not be determined or awarded until after 26 weeks from the date of the employee's final active medical treatment." The Board argues that, by settling through a partial permanency award, Santiago and her attorney misrepresented to the Board and the JOC that her final active medical treatment had occurred more than twenty-six weeks earlier. It contends that the false pretense under which the settlement was reached deprived the Board of the opportunity to investigate Santiago's claims of psychiatric injury and to control her covered treatment.

To argue intentional fraudulent conduct, the Board relies on Dr. Scasta's report, stating that Santiago said she had only settled the original claim in 2004 because her attorney encouraged her to do so with a promise to file an application to re-open the claim as soon as it was settled. Based on this evidence, the Board argues that since Santiago "knew at the time of the Order Approving Settlement on April 12, 2004, that she was in need of psychiatric and orthopedic treatment," she misled the Board and the judge by settling when she knew that she would "institute a new claim for additional medical treatment."

N.J.S.A. 34:15-57.4c(1) states:

If a person purposely or knowingly makes, when making a claim for benefits . . . a false or misleading statement, represen-tation or submission concerning any fact which is material to that claim for the purpose of obtaining the benefits, the division may order the immediate termination or denial of benefits with respect to that claim and a forfeiture of all rights of compensation or payments sought with respect to the claim.

The Board contends that this statute further supports denial of Santiago's application to modify her award because of the misleading statements and misrepresentations resulting in the April 2004 settlement.

Santiago responds that, because the Board denied the second accident had occurred and did not authorize any treatment resulting from that accident, it cannot argue now that it was deprived of the right to investigate and control her treatment as a result of the settlement. Additionally, Santiago contends the Board knew she "was receiving unauthorized treatment," in part because of the following testimony she gave at the April 12, 2004 hearing on approval of the settlement:

I'm just going for physical therapy because it took me, went to the emergency room, I couldn't take the pain anymore and I'm receiving Medicare [sic] through charity care at Robert Wood Johnson. Charity care that I did after the private physical therapist that I went to.

Although we find it troubling that Santiago's attorney allegedly advised her to accept a permanency settlement knowing that she was still undergoing medical treatment and that she would be making further claims, we also find sufficient evidence in the record to support the JOC's finding that Santiago did not have an intention to mislead the Board or the judge in accepting the settlement. The record establishes that Santiago's continuing medical treatment was made known at the time of the hearing, and the Board did not object on that basis to approval of the settlement. We conclude that the JOC did not err in rejecting the Board's contention that Santiago's claims were barred by judicial estoppel or N.J.S.A. 34:15-57.4c(1).

Finally, the Board argues that the JOC ignored its evidence that Santiago was feigning a psychiatric condition caused by the work incidents many years earlier and that there was insufficient evidence to support the ruling that she was entitled to psychiatric treatment provided by the Board.

When reviewing a compensation judge's decision, 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)); accord Kozinsky v. Edison Prods. Co., 222 N.J. Super. 530, 537 (App. Div. 1988). "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"). Due regard is also given to the compensation judge's expertise. Kovach v. Gen. Motors Corp., 151 N.J. Super. 546, 549 (App. Div. 1978). In the presence of 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 highly 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 Santiago and Dr. Gooriah were credible in their testimony. In addition, the JOC could reasonably conclude that Dr. Scasta's report at least supported the existence of her psychiatric condition and need for treatment, thus warranting a limited period of treatment while continuing evaluation of the claim. We note that the JOC did not reject out of hand the reports of Drs. Odunlami and Head but concluded that a limited period of psychiatric treatment and a report from the treating psychiatrist would assist in determining whether Santiago's disability was compensable by the Board.

Although Dr. Quintana was an eleventh-hour addition and his qualifications to treat Santiago have yet to be established, the Board is not precluded by the orders of August 13, 2007, and May 4, 2009, from challenging Santiago's entitlement to any further medical treatment or disability benefits. We presume the JOC will hear, after the three months of psychiatric treatment, either party's evidence to determine the bona fides of Santiago's claims.

We conclude that the JOC acted within his authority and discretion in ordering that the Board authorize three months of psychiatric treatments for Santiago and to pay for any medications that are prescribed in providing that treatment.

 
Affirmed.

The Board developed evidence that Santiago had a history of very serious marital difficulties and was the victim of domestic violence committed by her ex-husband. We will not recount details in this opinion. The Board contended that Santiago's psychological problems were caused by non-work related experiences rather than the shoving and pulling incidents while working as a teacher's assistant.

Santiago was represented by a different attorney at the time of the April 2004 settlement.

(continued)

(continued)

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A-4709-08T3

August 20, 2010