MICHELLE MARIER - v. MARSHALL'S DEPARTMENT STORE -

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4166-09T2

MICHELLE MARIER,

Petitioner-Appellant,

v.

MARSHALL'S DEPARTMENT STORE,

Respondent-Respondent.

________________________________

May 11, 2011

Submitted April 11, 2011 - Decided

Before Judges Sabatino and Ostrer.

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

Leslie M. Bierman, attorney for appellant.

Baumann & Viscomi, attorneys for respondent (Donna J. Sova, on the brief).

PER CURIAM

This appeal arises out of a workers' compensation case that stretches back to an accident that occurred almost twenty-three years ago. For the reasons that follow, we affirm.

On October 11, 1988, petitioner Michelle Marier, who is the present appellant, was working for respondent Marshall's Department Store ("Marshall's) when she was injured while attempting to lift a heavy rack of bathrobes. The rack fell on her neck and right shoulder. This resulted in intermittent paralysis of petitioner's upper extremities. In addition, it left her with a psychiatric disability known as a "conversion disorder."1 Petitioner did not use her right arm for several years thereafter, apparently because of the conversion disorder, which made her think or feel that she could not move the arm regardless of its physical condition.

Petitioner continued working for Marshall's for a period of time while she received treatment. About two years later, she left Marshall's and began working for a different retail company. Petitioner had another accident in December 1990, which prevented her from working. That employer terminated her in 1991, and petitioner has not worked since that time.

In 1991 petitioner filed a workers' compensation claim against Marshall's arising out of the 1988 accident. Through a series of decisions in the early 1990s, petitioner received temporary disability benefits.

Marshall's, as the employer from the 1988 accident, contended that the 1990 accident was the cause of petitioner's limitations. The compensation judge who heard that case, Judge Beverly Karch, rejected Marshall's argument and found the petitioner was indeed suffering from a disability, i.e., conversion disorder, related to the October 1988 accident and not the December 1990 accident, that she was unable to work, and that she was in need of further treatment.

Judge Karch's opinion concerning the December 1990 accident was appealed to this court. In an unpublished opinion, we affirmed her decision. Marier v. Marshall's, Inc., No. A-5214-93 (July 27, 1995). Petitioner continued to receive treatment, and did not resume working.

Then, on September 16, 1998, petitioner had an episode in which she had four grand mal seizures. These seizures resulted in petitioner falling and fracturing her right shoulder. She had two surgeries to attempt to address the shoulder issues, one in 1998 and a second in 2003.

As we have noted, petitioner has not worked since 1990. She has been paid over $100,000 in temporary disability benefits and over $60,000 in medical bills.

The pivotal question is whether the 1998 seizures independently produced injuries to plaintiff's shoulder and psychological damage that were not proximately caused by the 1988 accident. Petitioner contends that all of her present problems are an outgrowth of her 1988 workplace accident. Marshall's, conversely, argues that the 1998 accident severed the chain of causation.

For reasons that are not readily apparent from the record supplied to us, there was a gap of nearly a decade before the present case was tried on intermittent days in 2008 and 2009 before Judge Jill Fader of the Compensation Court.

After considering the proofs, Judge Fader issued an order on April 6, 2010. Petitioner was awarded:

25% [partial] disability, psychiatric in nature, for a conversion disorder related to the work accident of October 11, 1988. Petitioner's overall psychiatric disability is higher and unrelated due to a subsequent intervening accident [on] September 16, 1988. Orthopedic [and] neurologic disability to Petitioner's neck, [right] arm, [right] shoulder and back are specifically ruled out.

[Emphasis added.]

Judge Fader issued an accompanying detailed oral opinion, explaining her reasons for these findings and analyzing the expert testimony and other proofs. The judge found that all of the six expert witnesses who respectively testified for the parties were generally credible, but she found the testimony of petitioner's experts problematic on several discrete points. Among other things, the judge noted that petitioner's orthopedic experts, Dr. David Myers and Dr. Theodora Maio, conceded on cross-examination that medical records did not substantiate their opinions that petitioner sustained osteopenia or osteoporosis from the 1988 accident. The judge also found no evidence that petitioner was treated for any disability to her back prior to the 1998 seizures.

Judge Fader further noted that petitioner's psychiatric expert, Dr. Peter Crain, had diagnosed a progression of her conversion disorder following the 1998 seizures, but that progression was a consequence of the 1998 shoulder surgery unrelated to the compensable 1988 accident. The judge also found no proof that petitioner has any neurological disability from the 1988 accident.

Based upon her analysis of the proofs, Judge Fader awarded petitioner $14,634, representing 150 weeks of compensation for her psychiatric injury from the 1988 accident. The judge denied petitioner's claims for greater compensation, including her disabilities that followed the 1998 seizures.

Petitioner now appeals, contending that Judge Fader misapplied principles of causation in not granting her a higher percentage for her psychiatric disability, and further erred in finding that petitioner's orthopedic and neurological disabilities related to her neck, right arm, right shoulder, and back are unrelated to the 1988 accident.

To be entitled to compensation under the Workers' Compensation Act, N.J.S.A. 34:15-1 to -142 (the "Act"), a claimant bears the burden of proving by a preponderance of the evidence, see Akef v. BASF Corp., 305 N.J. Super. 333, 340 (App. Div. 1997), that his or her injuries, "[arose] out of and in the course of employment [and were] due in a 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). Petitioner, as the claimant for benefits, bears that burden here.

Our standard of review is whether the findings made by the judge of compensation could reasonably have been reached on sufficient credible evidence in the record, considering the proofs as a whole, giving due regard to the judge's opportunity to observe and hear the witnesses and to evaluate their credibility, and to the judge's expertise in the field of workers' compensation. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965); see also Brock v. Pub. Serv. Elec. & Gas Co., 149 N.J. 378, 383 (1997); Perez v. Capitol Ornamental, 288 N.J. Super. 359, 367 (App. Div. 1996). In particular, a reviewing court must defer to the findings of credibility made by a judge of compensation, as well as to the judge's expertise in analyzing medical testimony. Kaneh v. Sunshine Biscuits, 321 N.J. Super. 507, 511 (App. Div. 1999); see also Kovach v. Gen. Motors Corp., 151 N.J. Super. 546, 549 (App. Div. 1978) ("It must be kept in mind that judges of compensation are regarded as experts."). 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 these standards, we sustain Judge Fader's conclusion that the 1998 seizure, and the complications that followed, were neither caused by, nor related to, the workplace injury that petitioner suffered at Marshall's ten years earlier. We defer to the expertise of the compensation judge on all of the contested issues, including but not limited to proximate cause, compensability, and the degree of disability. The judge's determinations are manifestly supported by substantial credible evidence.

We consequently affirm the order on appeal, substantially for the reasons set forth in Judge Fader's oral opinion dated April 6, 2010.

1 A conversion disorder involves physical symptoms that are produced not because of a physiological process but because of the psychiatric consequences of a bodily injury. See DSM-IV 300.11.