PAUL CANO - v. JOHNSON & JOHNSON CONSUMER PRODUCTS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4944-08T24944-08T2

PAUL CANO,

Petitioner-Appellant,

v.

JOHNSON & JOHNSON CONSUMER

PRODUCTS,

Respondent-Respondent.

________________________________

 

Submitted April 21, 2010 - Decided

Before Judges Stern and Sabatino.

On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation.

Escandon, Fernicola, Anderson & Covelli, attorneys for appellant (Victor M. Covelli, of counsel and on the brief).

Adelson, Testan, Brundo & Jimenez, attorneys for respondent (Robert J. Weinstein, on the brief).

PER CURIAM

After three intermittent days of hearings before a compensation judge, the Division of Workers' Compensation determined that petitioner Paul Cano sustained no compensable injury on November 11, 2003 in the course of his employment with respondent, Johnson & Johnson. We affirm that determination, as it is supported by substantial credible evidence and it comports with the applicable law.

The crux of the parties' dispute concerns whether the pain and medical problems that petitioner complains of in this case arise from the alleged November 11, 2003 accident, or whether they instead are attributable to a prior workplace injury he sustained while with a different employer in 1999, or, alternatively, stem from a motor vehicle accident also unrelated to petitioner's work for respondent that occurred in 2004. With respect to those key issues, the record contains the following pertinent facts and medical proofs.

In 1999, petitioner injured his lower back while working for a prior employer, Frigidaire. That injury resulted in lower back pain and limitations to petitioner's range of motion of his back, as he suffered difficulties with squatting, bending, and twisting. Petitioner consequently filed a workers' compensation claim against Frigidaire. He was awarded twenty-five percent of partial total disability for the injury. After this award, petitioner received no further treatment for his back.

On November 11, 2003, while installing a conveyor belt during the course of his employment for respondent, petitioner allegedly felt a pain in his lower back, which traveled down his left leg. He informed his supervisor of the circumstances and was treated with ice at a first aid station on the premises. Petitioner returned to work the following day, but still allegedly felt pain in his lower back and leg.

To address his back pain and discomfort, petitioner began a course of physical therapy, authorized by his employer, within a week of the November 2003 incident. He was also examined by an orthopaedic specialist, Frederic A. Kleinbart, M.D., who initially cleared petitioner to resume work on a "light duty" basis, and prescribed additional physical therapy. After completing his brief course of physical therapy, petitioner underwent a functional capacity test. Following that test, he was cleared to resume "[m]edium-heavy" work. He then discontinued his physical therapy regimen.

Petitioner routinely worked out at a gym both before and after the November 2003 workplace incident, although, according to his testimony, he only did so at a "reduced level" after the incident. Nevertheless, after the November 2003 incident, petitioner was captured on videotape performing several tasks that required him to use his back muscles, including operating a self-propelled snow blower, moving a forty or fifty pound bag of sand, and pumping up a car tire. Petitioner subsequently admitted doing these tasks during the period in which he was allegedly too injured to work at full duty. He was thereafter terminated from his employment with respondent.

The record further reflects that, subsequent to the November 2003 incident and through April 2004, petitioner was in training to compete in the bench-press portion of a weightlifting competition. During this time frame, petitioner trained at a gym five days per week for varying periods of time, depending on what part of his body he was exercising. According to petitioner, he would avoid certain exercises if his back was bothering him.

Petitioner was involved in an automobile collision in June 2004. The record indicates that he injured his neck and right shoulder in the collision. The shoulder was repaired in surgery in June 2005. Petitioner also underwent a cervical fusion of disc levels C5 through C7 for his neck injury in November 2007.

Petitioner denied in the present case that he injured his back in the June 2004 motor vehicle accident. Even so, at the time of trial, petitioner believed that the pain in his lower back and leg was getting progressively worse.

Petitioner testified that he no longer does cardiopulmonary exercises, such as riding a bicycle, or using a treadmill. Nor does he continue to work out at a health club. He claimed that he frequently has to stretch his back and do movements that he was taught in therapy to allow for easier mobility. He stated that when he wakes up in the morning, his back is "crooked" and that he has to straighten it out before getting up. He also reported pain after sitting longer than twenty minutes.

Two medical experts, David Weiss, D.O., for petitioner, and Malcolm Coblentz, M.D., for respondent, separately examined petitioner at various times and testified as to their findings. Dr. Weiss, an orthopedist, first examined petitioner in 1999 after his injury with the prior employer, and again in 2007. Dr. Weiss opined that the pathology in petitioner's back and leg originated between 1995 and 1999, while he worked for Frigidaire. He noted that petitioner had his "most recent injury [to his back] in November of [2003]." Dr. Weiss did not, however, believe that petitioner experienced any new pathology after his 1999 incident.

Dr. Coblentz, an orthopaedic surgeon, examined petitioner before his auto accident in 2004, and again after the accident in 2005, 2007, and 2008. Dr. Coblentz testified that he didn't find any "significant pathology" in petitioner's back before the motor vehicle accident. He concluded from his last examination of petitioner in 2008 that "any pathology in the lower extremities should be related to the motor vehicle accident and not the accident when he was working for Johnson & Johnson[.]" In Dr. Coblentz's opinion, if petitioner was having problems with his back, those problems were related to the motor vehicle accident. He also noted that petitioner presented with calluses on his hands in 2008, indicating "some sort of physical activity."

After sifting through this testimony, Judge Joel Gottlieb, the compensation judge, concluded that "[p]etitioner's low back problem arises from either an earlier injury or a later motor vehicle accident and not from any accident occurring in November of 2003." In reaching that conclusion, Judge Gottlieb relied substantially upon various consistencies in the findings of both testifying experts, noting that "both of them . . . state or infer that [p]etitioner's earlier low back injury [at Frigidaire] and a later motor vehicle accident are responsible for [p]etitioner's back problem." Consequently, the judge rejected petitioner's claim for benefits arising out of the November 11, 2003 incident.

On appeal, petitioner argues that Judge Gottlieb's conclusions were against the weight of the evidence. He maintains that the judge erred by overextending the opinions of each of the experts. In particular, petitioner argues that the judge neglected to address more favorable portions of Dr. Weiss's testimony, and also did not recognize certain inconsistencies in Dr. Coblentz's testimony. He alleges that the court's attribution of the lower back pain as potentially arising from the motor vehicle accident is unsound because "no expert provided an opinion that a cervical defect was the cause of [petitioner's] lower back pain."

In assessing these points on appeal, our scope of review is limited. "The standard for appellate review of a workers' compensation judge's determination . . . requires the reviewing court to determine whether the findings reasonably could have been reached on the basis of sufficient credible evidence in the record[.]" Brock v. Pub. Serv. Elec. & Gas Co., 149 N.J. 378, 383 (1997) (citing Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). Given that deferential standard, we are satisfied that Judge Gottlieb's findings and his ultimate conclusion of non-compensability are sufficiently supported by substantial credible evidence in the record.

Although petitioner has highlighted certain portions of the testimony of Dr. Weiss and Dr. Coblentz that can be viewed as supportive of his theory of the case, the reality is that other aspects of their testimony, particularly from Dr. Coblentz, provide ample support for the respondent's competing position, which was adopted by the judge. The denial of benefits is further supported by the videotapes of petitioner weightlifting and performing other strenuous physical acts that can reasonably be viewed as inconsistent with his claims of disability. In addition, it is significant that petitioner did not continue or resume treatment following the brief course of therapy immediately after the November 2003 incident, until his motor vehicle accident in 2004.

Moreover, the denial of benefits for the November 2003 accident is consistent with applicable law. Even if it is accepted, for the sake of argument, that petitioner suffered some pain after the November 2003 incident at respondent's workplace, a new injury is not compensable unless there is new proven trauma, as opposed to an appearance or reappearance of pain. See, e.g., Singletary v. Wawa, 406 N.J. Super. 558, 565 (App. Div. 2009); Peterson v. Hermann Forwarding Co., 267 N.J. Super. 493, 505 (App. Div. 1993), certif. denied, 135 N.J. 304 (1994). The judge had ample justification to conclude that such proof of a new compensable trauma occurring in November 2003 was wanting. The expert opinions in this record were reasonably deemed insufficient to carry petitioner's burdens of proving substantiality of a new injury and causation.

 
Affirmed.

The caption of petitioner's brief identifies respondent as "Johnson & Johnson/Consumer Products, Ace American Insurance Company as Administered by Broadspire," whereas respondent identifies itself in its own brief simply as "Johnson & Johnson/Consumer Products."

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A-4944-08T2

July 8, 2010