DONALD CAREY - v. JERSEY CENTRAL POWER AND LIGHT COMPANY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0540-10T2

DONALD CAREY,

Petitioner-Respondent,

v.

JERSEY CENTRAL POWER AND

LIGHT COMPANY,

Respondent-Appellant,

and

GPU ENERGY,

Respondent-Respondent.

_________________________________

October 20, 2011

Argued September 19, 2011 - Decided

Before Judges Sabatino and Ashrafi.

On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, CP No. 2004-19502.

Louis M. Masucci, Jr. argued the cause for appellant (Weiner Lesniak LLP, attorneys; Mr. Masucci, on the brief).

Jeffrey Rosen argued the cause forrespondent Donald Carey (Hobbie, Corrigan & Bertucio, P.C., attorneys; Michael R. Hobbie, of counsel; Justin Lee Klein, on the brief).

Sharon K. Galpern argued the cause for respondent GPU Energy (Stahl & DeLaurentis, P.C., attorneys; Ms. Gelpern, on the brief).

PER CURIAM

In this workers' compensation appeal, the employer, Jersey Central Power and Light Company (JCP&L), appeals from a judgment after trial that apportioned liability for benefits between two periods of petitioner Donald Carey's employment, one while the employer carried workers' compensation insurance and the second while it was self-insured. Carey and the insurance carrier oppose the appeal. JCP&L challenges the findings and conclusions of the Division of Workers' Compensation (the Division) that Carey's prior work-related injuries and disability increased as a result of continuing employment with JCP&L and that the increase should be attributed equally to both periods of employment.

The Judge of Compensation heard testimony from Carey and five medical witnesses over six days of trial. He rendered an oral opinion by which he concluded that a 15% increase in Carey's disability was caused equally by the exacerbation of his prior injuries and new occupational injury. He held JCP&L as insured before 2004 liable for 7 % and JCP&L as self-insured beginning in 2004, liable for the other 7 % of Carey's benefits.1

Finding no error in the proceedings conducted by the Division, and substantial evidentiary support in the record for the judge's findings and conclusions, we affirm.

I.

Carey is a long-time employee of GPU and JCP&L. In March 2000, he was injured in a workplace accident. He suffered headaches and periodic numbness and pain in his neck, shoulders, and right arm and fingers. His ability to lift objects and to perform household tasks was diminished, and he experienced difficulties with thinking and memory. Carey filed a claim for workers' compensation benefits in 2000. An MRI was taken of his spine that year.

In 2002, Carey and GPU entered into a settlement agreement, and the Division approved the settlement by order dated September 12, 2002. The order provided that Carey had a 45% permanent partial disability as a result of a herniated cervical disk at C5-6, a bulges at C2-C5, lumbosacral sprain and myositis, cervical radiculpathy, and post-concussion syndrome.

Carey continued to work for JCP&L after his March 2000 accident and the 2002 settlement. From 2000 to 2005, he was employed as a lineman and troubleman. These positions required rigorous physical exertion, including regularly lifting and manipulating heavy objects, boring with augers, installing poles, and climbing ladders while carrying ten-foot one-hundred pound cross-arms. In the spring of 2003, Carey began to complain that his neurological ailments had worsened.

In January 2004, shortly after JCP&L became self-insured, Carey asked his supervisor for additional medical treatment because the pain in his neck and lower back had become severe. JCP&L sent Carey to be examined by a doctor, who reported in January 2004 that Carey's complaints were the result of an "exacerbation of his pre-existing cervical and lumbar strain" caused by the March 2000 accident.

Carey contends JCP&L refused to provide further medical treatment after it received its doctor's report. Consequently, in February 2004, Carey sought treatment from his family physician, who ordered a new MRI. After comparing the 2 004 MRI to the 2000 MRI, the family doctor concluded there were new injuries to Carey's spine: herniated disks at L5-S1, C3-4, and C4-5, an annular tear at L5-S1, and a disk bulge at L4-5.

In June and July 2004, Carey initiated new workers' compensation claims, alleging both aggravation of his prior injury and new occupational injury. Five years later, the matter was finally tried before the Judge of Compensation. Carey testified at the trial that the intensity and duration of the pain and numbness in his head, neck, lower back, shoulders, and right arm and hand had increased from 2000 to 2009. Additionally, the pain and numbness had spread to his legs, feet, and left arm and hand. The judge found Carey to be a candid and credible witness and also observed that Carey seemed to be suffering significant pain during the proceedings.

Dr. Sidney Tobias, an orthopedic expert, testified on behalf of Carey. He had examined Carey three times from February 2006 to November 2009. He had also read Carey's testimony and reviewed his medical history, including the 2000 and 2004 MRIs. Dr. Tobias concluded that Carey's orthopedic health had substantially worsened after 2002. On the issue of causation, he testified that Carey's condition deteriorated between January 2004 and November 2009 because of his continued work for JCP&L. The judge found Dr. Tobias a credible expert witness.

Dr. Vindbha Gooriah, a neurological and neuropsychiatric expert, also testified on behalf of Carey. He had examined Carey in September 2007 and November 2009, considered Carey's testimony, and reviewed Carey's medical history including the 2000 and 2004 MRIs. Dr. Gooriah diagnosed Carey with neuropsychiatric disorder and found that his condition worsened from an adjustment disorder with depressed mood in 2007 to a major depressive disorder and anxiety disorder in 2009. The doctor stated the cause of Carey's neuropsychiatric condition was ongoing occupational exposure, which was aggravating his pre-existing orthopedic and neurological injuries. Dr. Gooriah also found that Carey's neurological health had deteriorated because his radiculopathy had spread from the left-side of his body to both sides. The judge found Dr. Gooriah's testimony very credible and authoritative, emphasizing the doctor's reliance on objective medical standards, such as the Hamilton Scale for evaluating depression and anxiety and the Visual Analog Scale for assessing pain.

JCP&L produced three medical experts at trial. Dr. Robert Dennis, an orthopedist, testified that if Carey's symptoms had increased since 2000, they were caused by natural degeneration and not workplace exposure. He also testified that there is often a delay between the time of trauma and when it will appear in an MRI, and therefore, the injuries shown in the February 2004 MRI could have occurred two or three months earlier, that is, before JCP&L became self-insured. However, the doctor had examined Carey only once, in 2009, and he had an incomplete knowledge of his medical history and the strenuous nature of Carey's work. The judge gave Dr. Dennis's testimony less weight than Carey's experts.

Dr. David Scasta, a neuropsychiatric expert, also testified on behalf of JCP&L. Based on a November 2009 evaluation, Dr. Scasta diagnosed Carey with an adjustment disorder that was precipitated by a November 2009 work-related incident. He testified that Carey's disorder was not caused by his pre-existing orthopedic injuries. On cross-examination, Dr. Scasta conceded that Carey's orthopedic pain could cause irritability, which could in turn result in a neuropsychiatric disorder. The judge noted that both JCP&L's and Carey's neuropsychiatric experts diagnosed Carey with a psychiatric disorder and that the cause, in some manner, related to Carey's employment.

Dr. David Saur, a neurologist, was also an expert witness on behalf of JCP&L. Dr. Saur found no deterioration of Carey's neurological health between 2004 and 2009. He concluded that Carey's current symptoms were caused by his pre-existing injury and a lack of physical activity. Dr. Saur had also examined Carey only once, in 2009, and he was not entirely aware of the strenuous nature of Carey's work until it was described at trial in a hypothetical question. Dr. Saur conceded that strenuous work can accelerate natural degeneration. The judge gave Dr. Saur's testimony less weight than Carey's experts because he was not aware of some important facts relevant to Carey's condition.

Taking into consideration all the testimony at trial, the judge concluded that Carey's work with JCP&L through at least the end of 2005 was a cause of increased orthopedic disabilities and that the worsening orthopedic injuries were also directly a cause of his neuropsychiatric disability. The judge found "there is ample credible objective medical evidence to conclude that [Carey's] disabilities have gotten worse." Accordingly, the judge increased Carey's permanent partial disability from 45% to 60% attributing 7 % of the increase to orthopedic and neurological disability and 7 % to neuropsychiatric disability.

The judge acknowledged the difficulty of apportioning liability between JCP&L and GPU for the increased disabilities. He divided liability equally between the two respondents but attributed to GPU a 5% increase in orthopedic disability and 2 % in neuropsychiatric disability, and the reverse percentages to JCP&L for occupational injury occurring after January 1, 2004.

II.

On appeal, JCP&L asserts that there was insufficient evidence to support the judge s conclusion that occupational exposure aggravated Carey s pre-existing disability. It argues Carey did not establish that his disability changed between the time of the prior settlement for the 2000 injury and his testimony in this matter in September 2009.

In Perez v. Pantasote, Inc., 95 N.J. 105, 118 (1984), the Court stated that, to prove the aggravation of a permanent partial disability:

the employee must first prove by demonstrable objective medical evidence a disability that restricts the function of his body or its members or organs. Second, he must establish either that he has suffered a lessening to a material degree of his working ability or that his disability otherwise is significant and not simply the result of a minor injury.

The second part of the Perez test is to preclude recovery for "nuisance or minor injury." Williams v. Port Auth., 175 N.J. 82, 92 (2003). When applying the second part:

The statute expressly contemplates that the Judge of Compensation should consider other factors besides material lessening of working ability, . . . A second criterion is whether there has been a disability in the broader sense of impairment in carrying on the ordinary pursuits of life.

[Perez, supra, 95 N.J. at 117 (quotation marks omitted).]

Here, the judge concluded that "ample credible objective medical evidence" demonstrated that Carey's condition deteriorated since the prior injury and settlement.

The scope of appellate review is limited to determining "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)); see also Kovach v. Gen. Motors Corp., 151 N.J. Super. 546, 549 (App. Div. 1978) (compensation judge's expertise). "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)). Appellate review is not an opportunity to reargue the facts found from conflicting evidence produced at a trial.

We especially defer to those factual findings dependent on the judge's credibility determinations. Ramos v. M & F Fashions, 154 N.J. 583, 594-95 (1998); see also State v. Locurto, 157 N.J. 463, 474 (1999) (credibility determinations are "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"). Where the record contains 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).

Under this deferential standard of review, we see no basis to disturb the trial judge's findings and conclusions.

Dr. Gooriah concluded that Carey's radiculopathy had "progressed and become bilateral." Using the Visual Analog Scale, Dr. Gooriah also found an "objective" increase in Carey's level of pain from 2007 to 2009. He confirmed that Carey s ability to function had materially worsened since the 2000 accident. Dr. Tobias also concluded that the disability had worsened based on three examinations from 2006 through the time of trial in 2009. Carey s testimony demonstrated a gradual and increasing impairment in daily activities in many aspects of his life, including increased difficulty getting in and out of bed, staying seated, and entering and coming out of a vehicle. Under the test stated in Perez, supra, 95 N.J. at 117-18, there was objective medical evidence and credible subjective evidence from Carey to support the court s conclusion that his pre-existing disability increased from 2002 through 2009.

More specifically, JCP&L argues the evidence was insufficient to conclude that the material cause of Carey's current condition was occupational exposure from 2002 through 2009. Evidence was presented, however, to demonstrate the strenuous work efforts of Carey through at least the end of 2005. In Lindquist, supra, 175 N.J. at 259, the Court discussed proof of causation:

It is sufficient in New Jersey to prove that the exposure to a risk or danger in the workplace was in fact a contributing cause of the injury. That means proof that the work related activities probably caused or contributed to the employee's disabling injury as a matter of medical fact. Direct causation is not required; proof establishing that the exposure caused the activation, acceleration or exacerbation of disabling symptoms is sufficient.

[(internal citations and quotation marks omitted).]

The evidence in this case met this standard.

Making an evidentiary argument, JCP&L contends the judge erroneously relied upon Dr. Gooriah's report and testimony in concluding that Carey suffers from a neuropsychiatric disability. It argues that Dr. Gooriah's report was inadmissible hearsay and that his testimony on the topic of neuropsychiatric disability should have been excluded because Carey did not state during his own testimony that he suffered from the neuropsychiatric symptoms upon which Dr. Gooriah relied in reaching his conclusions. JCP&L asserts it was denied a fair opportunity to cross-examine Carey and to rebut Dr. Gooriah s testimony as to the issue of neuropsychiatric disability.

Regarding cross-examination of Carey, although Carey testified earlier than Dr. Gooriah, JCP&L could have anticipated the nature and subjects of Dr. Gooriah's testimony and questioned Carey about matters contained in the doctor's report. Alternatively, JCP&L has not shown why it could not recall Carey to testify at trial if there was good reason to do so after Dr. Gooriah's testimony. The trial provided JCP&L with opportunity to cross-examine both Carey and Dr. Gooriah.

As to admission of Dr. Gooriah's report, N.J.S.A. 34:15-56 states that a judge of compensation "shall not be bound by the rules of evidence." Nevertheless, the Supreme Court has held that the judge's decision must be based on competent evidence. Reinhart v. E.I. Dupont de Nemours, 147 N.J. 156, 163-64 (1996). The Court explained:

The purpose of not requiring strict compliance with the Rules of Evidence is to simplify the nature of proofs that can be offered in workers' compensation proceedings. . . . Despite the inapplicability of the Rules of Evidence, they are still relevant in determining whether evidence is competent.

[(citations omitted).]

We find no abuse of discretion in the judge's determination that Dr. Gooriah's report was competent evidence, and that the doctor could rely on the information he had gathered in the course of his examinations of Carey. See N.J.R.E. 703. We also reject JCP&L's contention that the opinions of Dr. Gooriah should have been excluded because they were inadmissible net opinions. See Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 372 (2011); Buckelew v. Grossbard, 87 N.J. 512, 524-25 (1981).

Next, JCP&L argues that the judge erred in apportioning liability to JCP&L because there was insufficient evidence that any aggravation of Carey's pre-existing disability occurred during JCP&L's coverage period, beginning from January 1, 2004.

When assessing the apportionment of liability between successive employers or insurers, the critical question is whether a progressive occupational disease was due in material degree to causes characteristic of the successive occupation. Peterson v. Hermann Forwarding Co., 267 N.J. Super. 493, 503 (App. Div. 1993). A material degree is defined as an appreciable degree or a degree substantially greater than de minimis. Perez, supra, 95 N.J. at 116.

JCP&L cites Bond v. Rose Ribbon & Carbon Mfg. Co., 42 N.J. 308, 311 (1964), for the proposition that a successive insurer cannot be held liable for an occupational disease or condition unless it manifested during the insurer's period of coverage. JCP&L contends manifestation of Carey's worsening symptoms occurred before JCP&L became self-insured in January 2004.

Bond does not require that the petitioner point to a specific incident to trigger the liability of a successive employer. Rather, a successive employer or insurer may be held liable when an undetected progressive occupational disease is disclosed during the time of coverage of that employer or insurer. Bond, supra, 42 N.J. at 311; accord Akef v. Basf Corp., 140 N.J. 408, 415 (1995). An occupational disease can be "disclosed" by a "medical examination, work incapacity, or manifest loss of physical function." Bond, supra, 42 N.J. at 311.

Here, Carey's occupational condition was disclosed during JCP&L s coverage period when the February 2004 MRI and the examining doctors' reports in early 2004 provided credible medical evidence of the deterioration of Carey's spine. JCP&L argues that the 2004 MRI is insufficient evidence that the condition occurred during JCP&L's coverage period because Dr. Dennis testified the new injuries occurred at least two to three months before the date of the MRI. The manifestation of the injuries, however, occurred during the coverage period.

Furthermore, the weight of medical expert opinions was that the 2004 MRI, when compared with the 2000 MRI, established that Carey's condition had worsened, but the MRI was not the only evidence of continuing worsening of Carey's condition. Drs. Gooriah and Tobias also testified about the results of their own examinations from 2006 through 2009. The experts for both sides disputed what caused the changes in Carey's condition namely, aging, lack of exercise, strenuous work, or natural progression of the old injuries. However, the medical examinations over the ensuing years provided credible evidence of continuing deterioration of Carey's condition.

JCP&L's argument neglects two relevant cases. In Peterson, supra, 267 N.J. Super. at 506-07, a successive employer avoided liability for an occupational disease, even though it was disclosed during its time of employment, because the work exposure did not materially contribute to the progression of the occupation disease. While the condition manifested during the successive employment, there was insufficient evidence that the work exposure at the successive employer's workplace materially contributed to it. Id. at 508-09. We noted in Peterson that the employee had only worked for the employer for five days, there was no dispositive objective medical evidence for purposes of comparison (only one MRI), and an expert witness was unable to say, with medical certainty, that the five days of employment materially contributed to the progression of the occupational disease. Id. at 499-500.

By contrast, in Singletary v. Wawa, 406 N.J. Super. 558, 567 (App. Div 2009), we affirmed the decision of the Judge of Compensation that the work for a successive employer had materially contributed to the petitioner's condition. The petitioner in Singletary had continued strenuous work for five years, comparative MRIs four years apart provided objective medical evidence of the worsening of the petitioner's condition, and a medical expert's testimony supported the conclusion that continued employment caused the accelerated deterioration of the employee's health. Id. at 566-67. We also emphasized in Singletary the limited role of an appellate court in reviewing the findings of fact of the judge of compensation in regard to material contribution to the disability caused by continuing work exposure. Id. at 561, 567.

In this case, like Singletary and unlike Peterson, there was sufficient credible medical evidence and objective factual evidence to support the judge's finding that exposure at JCP&L's workplace after 2003 and thus during JCP&L's coverage period materially contributed to the deterioration of Carey's health. Carey engaged in strenuous work through at least the end of 2005. Dr. Tobias testified that Carey's continuing employment aggravated his pre-existing disability.

Because the record includes credible evidence to support the judge's finding that Carey's pre-existing disability was aggravated during JCP&L's coverage period, and also because the injuries objectively manifested during that time, we find no reversible error in the judge's determination as to apportionment of liability.

Having concluded that the Judge of Compensation reached findings and conclusions supported by the evidence at trial, we need not address JCP&L's further argument that it was entitled to summary judgment prior to the trial.

Affirmed.

1 Before 2004, JCP&L also used the name GPU Energy. To distinguish between the employer as insured and as self-insured, we will refer to it for the time before 2004 as GPU and for the time beginning in 2004 as JCP&L.