EDWARD THOMPSON, JR v. QUALITY FIRST CONTRACTING, INC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1117-10T1

EDWARD THOMPSON, JR.,

Petitioner-Respondent,

v.

QUALITY FIRST CONTRACTING, INC.,

Respondent-Appellant,

v.

PLUMBRITE PLUMBING & HEATING, INC.,

Respondent-Respondent.

________________________________________________________________

July 27, 2011

 

Submitted July 5, 2011 - Decided

 

Before Judges Axelrad and Lisa.

 

On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition No. 2006-12618.

 

Romando, Zirulnik, Sherlock & Demille, attorneys for appellant (Barbara Nabors, on the brief).

 

Mayo & Russ, P.A., attorneys for respondent Edward Thompson, Jr. (A. Todd Mayo, on the brief).

 

McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys for respondent Plumbrite Plumbing & Heating, Inc. (Michael J. Marone, of counsel; Richard J. Williams, Jr. and Cristina A. DeFazio, on the brief).

 

PER CURIAM

This is a workers' compensation case. Appellant, Quality First Contracting, Inc. (Quality First) was the employer of Edward Thompson, Jr. when Thompson suffered a work-related injury to his right wrist on October 31, 2005. The injury was surgically repaired on January 13, 2006. On March 19, 2006, Thompson fell down a flight of stairs at home, fracturing his right thumb and a bone in his right wrist. Thompson subsequently became employed as a plumber's assistant for Plumbrite Plumbing & Heating, Inc. (Plumbrite). During his employment with Plumbrite, Thompson was not involved in any accidents.

As a result of persistent numbness, weakness, and related symptoms in his right wrist and elbow, further medical evaluations revealed that Thompson suffered from right-sided cubital tunnel syndrome and ulnar neuropathy. It was determined that surgical intervention to the right ulnar nerve subluxation in the form of an ulnar nerve transposition was required to correct this condition.

Quality First moved to implead Plumbrite, alleging that Thompson's subsequent work history with Plumbrite might have been the cause of his ongoing medial problem. The motion was granted.

On July 27, 2010, Thompson filed a motion to authorize surgical intervention and to compel Quality First to pay the costs. The matter came on for hearing on October 18, 2010. Over the objection of Quality First, the judge determined that a plenary hearing was not warranted. After hearing the arguments of all counsel, the judge rendered her decision based upon her review and analysis of the medical reports that the parties had filed. She observed that it was undisputed that the surgery was necessary, thus leaving causation as the only issue in dispute. Based upon the medical reports, the judge was persuaded that the need for surgery was occasioned by the compensable accident of October 31, 2005. She therefore entered an order authorizing the surgery and directing Quality First to pay the costs.

On appeal, Quality First argues that the judge erred by not conducting a plenary hearing, misapplied the provisions of N.J.A.C. 12:235-3.2 and 3.2(h), and improperly relied on the net opinion contained in one of the medical reports. We reject these arguments and affirm.

Thompson is a manual laborer. His initial compensable injury occurred while he was pulling a wheelbarrow off of a truck. He lost control of the wheelbarrow, forcing his right wrist into a contorted position. His treating physician, Dr. Franklin Chen, rendered a diagnosis of right wrist ulnar carpal pain, and inflammation and tear of the triangular fibrocartilage complex (TFCC). After a course of conservative treatment was unsuccessful, Dr. Chen surgically repaired the TFCC on January 13, 2006. Postoperatively, Dr. Chen applied a long-arm cast. Because of numbness in Thompson's fingers, Dr. Chen replaced the long-arm cast with a short-arm cast.

Subsequently, as we have stated, defendant fell in his home on March 19, 2006, fracturing his right thumb and a bone in his right wrist. Dr. Chen also treated him for those injuries.

At some point, Thompson's employment at Quality First ended. For a time, he apparently worked as a parts delivery person at a car dealership. In approximately the spring of 2009, Thompson became employed with Plumbrite as a plumber's assistant.

The record before the judge of compensation was voluminous. It contained numerous medical reports and records. The transcript of the October 18, 2010 hearing makes clear that the judge was thoroughly familiar with the record and the relevant medical details underlying the disputed causation issue. For our purposes, we set forth only a brief summary of what was reported by the various doctors who evaluated and treated Thompson.

Dr. Chen opined that there was no causal relationship between Thompson's cubital tunnel syndrome and the compensable accident. He denied that the long-arm cast was the likely source of the problem. He commented generally that Thompson's repetitive movements in his employment at Plumbrite "may have" caused the problem.

Dr. David Weiss performed an independent medical examination (IME) at the request of Thompson's attorney on May 6, 2009. He deferred rendering any opinion, but instead recommended that Thompson be evaluated by an upper extremity specialist and undergo and repeat MRI of the right wrist. Indeed, he recommended two particular upper extremity specialists, one of whom was Dr. Joseph Barmakian, who we will soon discuss.

Dr. Alan J. Sarokhan saw Thompson on a number of occasions beginning on November 16, 2006. His reports were addressed to Quality First's attorney. Dr. Sarokhan agreed with the diagnosis of cubital tunnel syndrome and right-sided ulnar neuropathy. He was of the view that this condition was unrelated to Thompson's compensable injury of October 31, 2005. He was further of the view that Thompson's fall at home on March 19, 2006 was unrelated to the compensable injury. Finally he suggested that the current condition "may be" related to Thompson's work at Plumbrite. Dr. Sarokhan ultimately opined that Thompson was 5% disabled, 2.5% of which was attributable to his compensable accident, and the remaining 2.5% to his fall at home.

Dr. David E. Gross evaluated Thompson on September 7, 2010 at the request of Plumbrite. Dr. Gross opined that Thompson's current condition preexisted his employment with Plumbrite and was not caused or aggravated by the "theoretically alleged exposure" of his work duties at Plumbrite, involving asserted repetitive hand movements.

The final physician we will discuss is Dr. Joseph Barmakian. The judge determined that she would order an IME to be performed by a highly qualified hand physician to be selected by the court. She chose Dr. Barmakian, who evaluated Thompson on August 11, 2010. He reviewed all of the medical reports and records that were sent to him, including the results of various diagnostic tests. He took a history from Thompson and conducted a clinical examination. He concluded that Thompson's current condition was causally related to the compensable injury of October 31, 2005. He attributed the condition to the postoperative application of the long-arm cast. Dr. Barmakian also opined that the condition was not caused by Thompson's fall at home.

We are presented with conflicting contentions as to Dr. Barmakian's role in this matter. It is clear that he was selected and appointed by the court. Quality First's insurer arranged for Thompson's appointment with Dr. Barmakian and paid the fee for his services. In their appellate briefs, Thompson and Plumbrite contend that it was agreed by all counsel in chambers that, in light of the conflicting information regarding causation, the court-appointed physician would serve as the "tie breaker," and that his opinion would be dispositive of the issue. Quality First takes a contrary position, contending that Dr. Barmakian's evaluation and report would be non-binding.

This discrepancy is not explicitly resolved by reference to the October 18, 2010 hearing transcript. There was no mention by any counsel or the court of an off-the-record agreement as to the effect of Dr. Barmakian's evaluation and report.

Thompson and Plumbrite refer us to comments made by the judge in rendering her decision that plausibly support their position that this was intended to be a binding opinion. For example, in stating the reasons for her decision, the judge said that she had "ordered a one time evaluation with Dr. Barmakian for the purpose of determining causal relationship and need for treatment." (emphasis added). Then, after summarizing Dr. Barmakian's exemplary qualifications, the judge continued that "[h]e was chosen by this [c]ourt to help with the determination as to A, the need for treatment and B, causal relationship." Later in her decision, in explaining why she rejected Quality First's contention that it was improperly denied a plenary hearing, the judge said:

I did not hear an objection to the use of Dr. Barmakian when I suggested it. [Quality First's insurer] made the appointment with Dr. Barmakian. [Quality First's insurer] paid for the appointment with Barmakian and the only time that they've rejected the opinion of Dr. Barmakian is after the report was received and causal relationship was placed squarely on their doorstep.

 

These comments by the judge have a general tendency to support the contention that there was a binding agreement to accept as conclusive Dr. Barmakian's opinion. However, the fact that the judge referred to the purpose of Dr. Barmakian's evaluation and report to "help" in resolving the issue militates to the contrary, as does the judge's comparison of Dr. Barmakian's report and opinions to those of the other physicians, concluding that the court found that "the opinion of Dr. Barmakian is most persuasive."

Because it is unclear from the record whether there was a binding agreement, we cannot decide the issue before us on the basis that there was such an agreement. Indeed, if there were such an agreement, we expect that someone would have said so at the October 18, 2010 hearing.

Turning to the merits of the issue, we are satisfied that the judge did not mistakenly exercise her discretion in ruling on the papers, and, in doing so, we are further satisfied that the judge's determination is supported by competent evidence in the record. This was a motion to authorize surgical treatment, the need for which was not disputed by any party. There was no competent evidence in any of the reports to attribute the need for the surgery to Thompson's fall at home or to his work activities at Plumbrite.

Pursuant to N.J.A.C. 235-3.2(h), the judge was authorized to order one carrier or employer to pay benefits without prejudice in circumstances such as these. The judge acted accordingly. She rejected Quality First's due process argument, commenting that she was "not going to deny them the opportunity to see the doctors." She further stated:

I think it is appropriate in this matter to order Quality to furnish treatment to the petitioner and temporary disability benefits to start as of the day of the surgery. This respondent is not going to be denied the right of cross-examination. If Quality can make the case that Plumbrite Plumbing in some way contributed to this then they can establish that case through testimony after the petitioner has received their surgery. I note that this is an arm surgery. I think in reviewing all the papers that were submitted as part of the motion this is a fair disposition to the petitioner at this point. I would agree, but for the opinion of Dr. Barmakian an independent, a completely independent physician who has outstanding, unimpeachable credentials that the respondent might have a point and have the right to trial.

 

We reject out of hand Quality First's final argument, namely, that Dr. Barmakian's report was incompetent evidence because it was a net opinion. Dr. Barmakian considered and relied upon extensive medical data, records, diagnostic tests, and reports. He took a history and conducted a clinical examination, upon which he also relied. He applied his own extensive education, training and experience in formulating his opinions. Finally, he explained the basis for his opinions in considerable detail. This was clearly not a net opinion. See N.J.R.E. 703; Rosenberg v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002).

I

n the procedural posture in which this case was decided in the Compensation Court, the medical reports, particularly that rendered by Dr. Barmakian, were sufficient to justify a ruling on the papers. See Reinhart v. E.I. Dupont De Nemours, 147 N.J. 156, 163 (1996); Hogan v. Garden State Sausage Co., 223 N.J. Super. 364, 367 (App. Div. 1988).

Affirmed.