JAMES GRAF - v. MITCHELL PARK FLOORING

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1775-10T1

JAMES GRAF,

Petitioner-Appellant,

v.

MITCHELL PARK FLOORING and

S&A WOOD FLOORS, INC.,

Respondents-Respondents.

______________________________________

December 19, 2011

Argued September 21, 2011 - Decided

Before Judges Waugh and St. John.

On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, CP Nos. 2004-37094; 2004-37096.

Gerald J. Monahan argued the cause for appellant (The Law and Mediation Offices of Gerald J. Monahan, attorneys; Mr. Monahan, of counsel and on the brief).

Jonathan Testa argued the cause for respondent Mitchell Park Flooring (Hack, Piro, O'Day, Merklinger, Wallace & McKenna, P.A., attorneys; John E. Burgio, of counsel and on the brief; Mr. Testa, on the brief).

Janis A. Eisl argued the cause for respondent S&A Wood Floors, Inc. (Freeman, Barton, Huber & Sacks, attorneys; Ms. Eisl, on the brief).

PER CURIAM

James Graf appeals from orders of dismissal with prejudice entered by the Division of Workers' Compensation on November 4, 2010. The appeal involves denial of Claim Petition No. 2004-37094 for benefits from S&A Wood Floors, Inc., and Claim Petition No. 2004-37096 for benefits from Mitchell Park Flooring, Inc., which have been consolidated.1 We affirm the decision of Jill M. Fader, Judge of Compensation.

I.

We derive the following facts from the evidence presented at trial. From 1982 to December 2002, Graf worked refinishing wood floors. During the course of his employment, he operated a 230-pound sander, a 50-pound edging machine, and a radiator sander. Graf would typically remove pieces of heavy equipment from his employer's van and carry them up one or more flights of stairs to reach the area where the work was to be performed. Graf also worked staining sanded floors, during which he would move around the area on his hands and knees.

Graf worked for S&A from July 1, 1998 until July 15, 1999. In his claim against S&A, Graf asserted a disability to his back that manifested in July 1999, resulting from occupational exposure while employed at S&A. There was no testimony regarding a specific accident or incident on or around July 15, 1999. However, Graf sought treatment and his Pascack Valley Hospital record dated July 23, 1999 indicates the following history:

[He was] moving a sanding machine that he was able to lift it up to the second floor. When he went home, he started having pain to the low back area. The patient states the pain is localized and does not go down his legs or to his abdominal area. The patient states that he went and saw a chiropractor on Monday, Tuesday and Wednesday. States that he was in bed on Thursday. States that it did not get much better. The patient states he took Advil 600 milligrams every six hours.

An x-ray was performed, which was normal.

Graf was treated by a chiropractor from July to September 1999, and then for one visit in December 1999. Graf testified that he sought treatment from two chiropractors while he worked at S&A. One doctor's records showed Graf's low back treatment from July 21, 1999 through September 29, 1999. Graf asserted that the chiropractors told him that he had "disc problems, back problems." The Judge of Compensation asked if he was seen by them because of the nature of his work, to which he answered, "yes." Graf's testimony related only to the fact that he visited the chiropractors, but he presented no testimony regarding any treatment received as a result of alleged exposure during his employment with S&A, nor how his alleged exposure caused a disability that had any impact on his work or out of work abilities. The Judge of Compensation determined "[t]here is no evidence before the court either by way of testimony, or medical records, that [Graf] was unable to work during this period of chiropractic treatment, or impeded in any way in his out of work abilities."

Graf worked for Mitchell from October 1999 through December 22, 2002. Graf asserts that he experienced a sharp pain in his lower back as he was lifting a heavy machine out of Mitchell's van on December 6, 2002. The pain subsided after a few minutes. Graf continued to work the remainder of that day. On December 8, while at home, Graf was assisting his wife in retrieving Christmas decorations from the attic. The attic, which was no more than a crawl space, was accessed by means of a fold-down ladder. His wife was in the crawl space, handing down the decorations to him. He was on the second rung from the bottom of the ladder and steadied himself against it to receive the decorations. Graf's wife handed him a small box of Christmas decorations weighing approximately three pounds eight ounces. Graf took the box, bent down to place it on the floor near the ladder and felt a sharp pain in his back. Graf characterized the pain as so severe that he required bed rest. The next day, Monday, he awakened in pain. He reported to work and informed his employer that he was in intense pain. He performed light-duty work that day, and could not install a new wood floor the next day because of his back pain. He left work, returned home, and since then has not worked in the flooring industry or held gainful employment.

Subsequent to the Christmas decorations injury, in January 2003, Graf was referred to a pain management specialist. Thereafter, in June 2003, Graf underwent laminectomy surgery, and in October 2004, spinal fusion surgery, performed by orthopedic surgeons. He was also treated by a pain management specialist. The Judge of Compensation concluded that Graf had a permanent disability with respect to his back.

II.

The case was tried before the Judge of Compensation over the course of four days, beginning with Graf's testimony, followed by the testimony of Graf's expert, Dr. Arthur Tiger, an orthopedist, and Mitchell's expert, Dr. Malcolm G. Coblentz, a general surgeon. Dr. Tiger testified that Graf's occupational duties during his twenty-year career led to his lower back problems. Dr. Tiger was of the opinion that the December 8 Christmas decorations injury was "the straw that broke the Camel's back." Dr. Coblentz opined that Graf's low back injury did not arise out of and in the course of his employment.

On November 4, 2010, the Judge of Compensation rendered her oral decision. She focused on the salient issue in dispute, "the causal relationship between the disability and [Graf's] employment, as opposed to a specific lifting incident at home on December 8 of 2002." The Judge of Compensation outlined the evidence, including medical records, Graf's testimony, and segments of Dr. Tiger's opinion, and concluded that "there was absolutely no testimony by [Graf] as to any functional loss, either in his work or non-work abilities, while employed by respondent Mitchell Park until after the incident at home on December 8, 2002."

She dismissed with prejudice Claim Petition No. 2004-37094 against S&A, holding that the occupational claim was barred by the two-year statute of limitations pursuant to N.J.S.A. 34:15-34 and N.J.S.A. 34:15-51. The Judge of Compensation dismissed Claim Petition No. 2004-37096 against Mitchell, determining that Graf failed to sustain his burden of proof to demonstrate, by a preponderance of the evidence, that he incurred a primary injury to his back that impacted his work and non-work abilities prior to the December 8, 2002 Christmas decorations incident. Further, the Judge of Compensation decided that Graf "failed to sustain the burden of proof that he has a disability to his back that arose out of and in the course of his employment."

III.

"The petitioner has the burden to demonstrate by a preponderance of the evidence that his or her environmental exposure . . . was a substantial contributing cause of his or her occupational disease." Lindquist v. City of Jersey City Fire Dep't, 175 N.J. 244, 263 (2003); see also Fiore v. Consol. Freightways, 140 N.J. 452, 472 (1995) ("[A] petitioner claiming an occupational heart disease must show causes or conditions characteristic to the occupation or place of employment that substantially contributed in a material way to the disease.").

To satisfy the standard, a petitioner claiming an occupational disease must fulfill three requirements:

First, as [N.J.S.A. 34:15-31] provides, the petitioner must show that the disease is due in a material degree to causes arising out of the workplace and that are or were characteristic of or peculiar to a particular trade, occupation, process or place of employment.

Second, the petitioner must prove by suitable medical evidence that the employment exposure did indeed cause or contribute to the disease[.]

Third, the petitioner must show that the employment exposure substantially contributed to the development of the disease. An occupational exposure substantially contributes to the development of . . . [the] disease when the exposure is so significant that, without the exposure, the disease would not have developed to the extent that it caused the disability resulting in the claimant's incapacity to work.

[Fiore, supra, 140 N.J. at 472-73 (citations and quotations omitted).]

Applying these well-settled principles of workers' compensation law to the facts she found credible, the Judge of Compensation found no objective medical evidence of occupational disease or aggravation of a pre-existing condition. The Judge of Compensation noted statements in Graf's December 23, 2002 medical records that undercut his contentions: "Patient complains of one week history of low back pain, non-radiating; no response to over-the-counter Motrin; no recent trauma, although Petitioner did lift heavy boxes. Accident at home, lifting injury. There is no history of previous back problems." Further, Graf's State of New Jersey Temporary Disability application stated "moving boxes from my attic I threw my back out very bad and cannot work as a result."

We exercise a "limited" review of the decision, and a judge of compensation's "findings are binding when based . . . on 'sufficient credible evidence in the record.'" Cooper v. Barnickel Enters., Inc., 411 N.J. Super. 343, 348 n.4 (App. Div.) (citing Sager v. O.A. Peterson Constr. Co., 182 N.J. 156, 164 (2004)), certif. denied, 201 N.J. 443 (2010). We also give "'due regard to the compensation judge's expertise and ability to evaluate witness credibility.'" Lindquist, supra, 175 N.J. at 277 (quoting Magaw v. Middletown Bd. of Educ., 323 N.J. Super. 1, 15 (App. Div.) (internal citation omitted), certif. denied, 162 N.J. 485 (1999)). "Deference must be accorded 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." Id. at 262 (quoting Perez v. Monmouth Cable Vision, 278 N.J. Super. 275, 282 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995)). Although considered experts in their field, a judge of compensation's "findings . . . must be supported by articulated reasons grounded in the evidence." Lewicki v. N.J. Art Foundry, 88 N.J. 75, 89-90 (1981).

Moreover, it is a long-standing principle that a "[judge of compensation] is not bound by the conclusional opinions of any one or more, or all of the medical experts." Kaneh v. Sunshine Biscuits, 321 N.J. Super. 507, 511 (App. Div. 1999) (quoting Perez v. Capitol Ornamental, Concrete Specialists, Inc., 288 N.J. Super. 359, 367 (App. Div. 1996)). A judge of compensation is considered to have "expertise with respect to weighing the testimony of competing medical experts and appraising the validity of [the petitioner's] compensation claim." Ramos v. M & F Fashions, Inc., 154 N.J. 583, 598 (1998). However, the judge of compensation must "carefully explain[] why he [or she] considered certain medical conclusions more persuasive than others. That [the judge of compensation] gave more weight to the opinion of one physician as opposed to the other provides no reason to reverse th[e] judgment." Smith v. John L. Montgomery Nursing Home, 327 N.J. Super. 575, 579 (App. Div. 2000).

IV.

In his challenge to the Judge of Compensation's determination in this case, Graf essentially argues that she improperly rejected the medical opinion of his expert. We disagree.

Considering the compensation judge's expertise in weighing the testimony of competing medical experts and her ability to evaluate witness credibility in general, Lindquist, supra, 175 N.J. at 277, we conclude that the Judge of Compensation adequately explained why she considered the medical opinion of Dr. Coblentz more persuasive than the medical opinion of Dr. Tiger. The fact that she gave more weight to the opinion of one physician as opposed to another "provides no reason to reverse th[e] judgment." Smith, supra, 327 N.J. Super. at 579. To the contrary, we conclude the Judge of Compensation's findings are well-supported in the record.

A.

We affirm the dismissal of the claim against S&A. Compensable occupational diseases include "all diseases arising out of and in the course of employment, which are due in material degree to causes and conditions which are or were characteristic of or peculiar to a particular trade occupation, process or place of employment." N.J.S.A. 34:15-31. A claim for an alleged occupational disease must be filed "within two years after the date on which the claimant first knew the nature of the disability and its relation to the employment[.]" N.J.S.A. 34:15-34. "Knowledge of the nature of a disability includes knowledge that the injury is compensable. The definition of compensable occupational disease includes diseases due in a material degree to conditions characteristic of a particular place of employment." Earl v. Johnson & Johnson, 158 N.J. 155, 161 (1999) (quotations and citations omitted). By comparison, specific accident claims must be filed within two years of the accident or last compensation payment under N.J.S.A. 34:15-51.

Graf's contention that the statute of limitations with regard to the S&A claim did not accrue until the date he knew his disability was compensable also lacks merit. Graf knew the nature and extent of his claimed disability, and that it was work related, no later than December 1999, when he last sought treatment from his chiropractor. Accordingly, the statute of limitations had expired when he filed the claim against S&A in December 2004.

B.

We discern no reason to overturn the Judge of Compensation's decision finding no objective medical evidence of occupational disease or aggravation of a pre-existing condition, and dismissing Graf's claims against Mitchell. We reject Graf's contention that the statute of limitations did not accrue until the date of last exposure at Mitchell. Contrary to Graf's assertion, the Court in Earl, supra, did not hold that the statute of limitations for an occupational disease claim is tolled once the exposure ends because it chose not to address the issue. Id. at 164. Rather, the Court held that a claim is not barred if it is filed within two years of the date on which the claimant knew, or should have known, the nature of the disability and its relation to the employment, even if the claim is filed more than two years after the exposure ended. Id. at 161. The Court determined the petitioner's claim to be timely because, despite when the period of exposure ended, she had filed her claim within two years of when she knew the true nature of her medical problems and its relation to her employment. Id. at 163-64.

The facts in Earl are distinguishable from those here. There, the petitioner did not become aware of the degree of her disability until several years after her first exposure, and she did not know she had a permanent loss of pulmonary function until medical testing confirmed it. Id. at 160, 162. Here, Graf was diagnosed by the chiropractors with "disc problems, back problems," which Graf asserted were caused by the nature of his work. He believed in 1999 that his disability was work-related. Consequently, the Judge of Compensation correctly dismissed the claim as time-barred, even though there had been additional exposure to similar working conditions at Mitchell.

A

1 A third matter, Claim Petition No. 2006-10807 against Mitchell, was dismissed by the Judge of Compensation based on the two-year statute of limitations for specific accidents under N.J.S.A. 34:15-51. Graf is not appealing that dismissal.