LOUIS GALLO - v. TOWNSHIP OF WOODBRIDGE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6339-08T3

LOUIS GALLO,

Petitioner-Respondent,

v.

TOWNSHIP OF WOODBRIDGE,

Respondent-Appellant,

v.

SECOND INJURY FUND,

Respondent-Respondent.

_________________________________

Submitted May 4, 2011 Decided May 19, 2011

Before Judges Lihotz and J. N. Harris.

On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition No. 2002-27733.

Buttafuoco, Arce & Price, L.L.C., attorneys for appellant Township of Woodbridge (James G. Serritella, on the brief).

Stathis & Leonardis, attorneys for respondent Louis Gallo (Gregory A. Stathis, on the brief).

Paula T. Dow, Attorney General, attorney for respondent Second Injury Fund (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Jane G. Lafferty, Deputy Attorney General, on the brief).

PER CURIAM

The Township of Woodbridge (the Township) appeals from the final orders of the Department of Labor and Workforce Development, Division of Workers' Compensation (the Division), that awarded petitioner Louis Gallo permanent disability benefits under the Workers' Compensation Act, N.J.S.A. 34:15-1 to -128 (the WCA), and dismissed the associated Second Injury

Fund application, N.J.S.A. 34:15-95. The Township contends that

the Workers' Compensation judge erred in finding Gallo's injury to have arisen out of his employment and in awarding him permanent disability benefits. We have considered the arguments raised in light of the record and applicable legal standards. We affirm.

I.

Gallo was employed as a truck driver by the Township, where his duties included hauling materials used by highway crews in the maintenance of the Township's road network. On February 19, 2002, when alighting from his truck after bringing asphalt to co-workers performing pothole repairs, Gallo "touched the ground [when he] felt a pop in [his] back and [he] was hunched over from that point." Describing the pain in his lower back as "devastating," Gallo without delay sought out his immediate supervisor who, after further consultation with his boss, drove Gallo to the JFK Medical Center in Edison. At the hospital, Gallo was evaluated, treated, and released after receiving an injection of the pain medication Toradol.

Still in severe pain and discomfort, Gallo was soon thereafter examined by Dr. Gregory Gallick, who recommended physical therapy. Gallo did not improve, and later came under the care of Dr. Joseph Lombardi, who recommended back surgery. In June 2002, and again in May 2003, Gallo endured lumbar fusion surgeries in what became vain efforts to alleviate the constant pain he was experiencing in his back. These procedures did not produce the desired result, but Gallo nevertheless continued treatment with Dr. Lombardi, which included a regimen of pain medication, facet injections, and regular surveillance of Gallo's condition.

Gallo filed his claim petition on May 22, 2002. In it, he sought workers compensation benefits for the events of February 19, 2002, which he described as "[o]rthopaedic injury to lumbar spine necessitating surgery with installation of hardware." The petition also included a claim for an occupational injury caused by the long-term effects of his employment as a truck driver by the Township.1

On November 11, 2003, while Gallo was on his way for a pre-operative consultation with Dr. Lombardi relating to the evacuation of a hematoma, Gallo was involved in an automobile accident. Gallo testified that he did not sustain any personal injuries as a result of that incident.

On September 26, 2006, Gallo filed the associated application for Second Injury Fund benefits, which was bifurcated pursuant to N.J.A.C. 12:235-5.1(a)(2).

The case was tried over three discontinuous days in 2008 and 2009. Three witnesses testified: Gallo; his expert, Dr. David Weiss, D.O.; and the Township's expert, Dr. Kenneth C. Peacock, M.D. Over the course of trial, much was made of Gallo's prior medical history, which the Township claimed was fraudulently withheld from Dr. Weiss. That history disclosed four prior instances of back trouble described by the court as "minor insults" between 1992 and 1995. The Township further claimed that Dr. Weiss's opinions concerning the link between Gallo's back condition and his employment with the Township were tainted because Gallo had failed to inform him of the November 2003 automobile accident. In light of Dr. Weiss's truncated evaluation through no fault of the physician the Township argued that Dr. Peacock's opinion, which considered the full spectrum of Gallo's medical history, was the more accurate barometer of Gallo's supposed degenerative disc disease, arthritis, and pre-existing back condition.

Following the close of evidence, the court reserved decision and ultimately issued a detailed written opinion on May 26, 2009. The court found that Gallo had satisfied his burden of proof regarding the nexus to his employment of the accidental injury, but not the occupational injury. It further held that from March 20, 2002 until July 19, 2004, Gallo was temporarily totally disabled, and the date of Gallo's permanent total disability was July 20, 2004, when he received the treatment that "was the last before [Gallo] reached maximum medical improvement." The order memorializing the court's decision was entered on June 26, 2009. A separate order dismissing the Second Injury Fund application was entered on July 22, 2009. This appeal ensued.

II.

A.

The scope of our review is "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record,' considering 'the proofs as a whole,' with due regard to the opportunity of the one who heard the witnesses to judge of their credibility." Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). The factual findings of a judge of compensation are entitled to substantial deference. Ramos v. M & F Fashions, Inc., 154 N.J. 583, 594 (1998). "We may not substitute our own factfinding for that of the [j]udge of [c]ompensation even if we were inclined to do so." Lombardo v. Revlon, Inc., 328 N.J. Super. 484, 488 (App. Div. 2000).

Additionally, it is settled 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)). The judge 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, supra, 154 N.J. at 598. "That [the judge] 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).

Our review of the record leads us to conclude that all of the factual determinations made by the judge of compensation were supported by substantial credible evidence in the record "and [were] not so wide off the mark as to be manifestly mistaken." Tlumac v. High Bridge Stone, 187 N.J. 567, 573 (2006).

B.

The Township's first two points argue that Gallo's act of injuring his back while stepping off his truck was "an idiopathic event which did not cause a compensable injury arising out of employment," and that Gallo failed to sustain his burden of proof. The judge of compensation disagreed, and so do we.

After canvassing the record, finding Gallo "to be honest and straight forward," and assessing the quality of the opinions of the experts, the judge determined that although Gallo had "pre-existing degenerative disc disease,"

I find that in exiting the truck petitioner was doing his job in the manner the job required. Obviously, petitioner would have to exit the vehicle in order to assist his co-workers in distributing the blacktop. The manner in which he exited the truck is substantially different from the manner in which an individual exits a vehicle. In order to accomplish his job duties, petitioner had to climb down from his seat. This action was incident to his employment and not a personal proclivity as contemplated by the decisions defining personal risk.[2]

Commenting further upon Gallo's prior back problems, the judge acknowledged Dr. Weiss's conclusion that the manner in which Gallo exited his truck on the day in question "would be a competent producing cause of his disability." This was fortified by Dr. Weiss's opinion that Gallo's back had been "quiescent prior to the accident of February 19, 2002," and that Gallo "had not lost any time from work in the seven years prior to that day nor did he have any treatment." Accordingly, the judge found that Gallo had sustained his burden of proof that the injury was causally related to his employment and the Township failed in its endeavor to prove otherwise.

The evidence available for the judge of compensation to decide the disputed issues was plentiful. After sifting through the competing currents of disputed facts and conflicting opinions, she relied upon competent evidential materials in reaching her conclusions, which are well supported. This was more than adequate to withstand the Township's multi-faceted challenge. See Close, supra, 44 N.J. at 599; De Angelo v. Alsan Masons, Inc., 122 N.J. Super. 88, 89-90 (App. Div.), aff'd o.b., 62 N.J. 581 (1973).

C.

The Township further contends that Gallo's failure to fully apprise Dr. Weiss of his pre-existing conditions was fraudulent within the meaning of N.J.S.A. 34:15-57.4(b) and (c). The judge of compensation "reject[ed] this argument completely," as do we. In fact, we find the Township's contentions so bereft of merit that they do not warrant discussion in a written opinion. R. 2:11-3(e)(1)(D) and (E). Nevertheless, we add the following brief comments.

The statute in question provides in pertinent part:

b. Any person who wrongfully obtains benefits or evades the full payment of benefits or premiums by means of a violation of the provisions of subsection a. of this section shall be civilly liable to any person injured by the violation for damages and all reasonable costs and attorney fees of the injured person.

c. (1) If a person purposely or knowingly makes, when making a claim for benefits pursuant to [the WCA] a false or misleading statement, representation or submission concerning any fact which is material to that claim for the purpose of obtaining the benefits, the division may order the immediate termination or denial of benefits with respect to that claim and a forfeiture of all rights of compensation or payments sought with respect to the claim.

(2) Notwithstanding any other provision of law, and in addition to any other remedy available under law, if that person has received benefits pursuant to [the WCA] to which the person is not entitled, he is liable to repay that sum plus simple interest to the employer or the carrier or have the sum plus simple interest deducted from future benefits payable to that person, and the division shall issue an order providing for the repayment or deduction.

[N.J.S.A. 34:15-57.4.]

Gallo's omission of the four back incidents, which he considered remote in time and fully resolved, cannot be viewed in isolation. The judge of compensation heard testimony about them, they were reflected in historical medical records, and Dr. Weiss was cross-examined concerning their impact upon his opinions.

We again pay heed to our scope of review, which is limited to "whether the findings of the [j]udge of [c]ompensation could reasonably have been reached on sufficient credible evidence present in the whole record, after giving due weight to [her] expertise and [her] opportunity of hearing and seeing the witnesses." Kozinsky v. Edison Prods. Co., 222 N.J. Super. 530, 537 (App. Div. 1988). That standard is highly deferential and accordingly, we do not independently assess the evidence as if we were a court of first instance. Sager v. O.A. Peterson Constr., Co., 182 N.J. 156, 164 (2004) (citing State v. Locurto, 157 N.J. 463, 471 (1999)). The trial judge's findings are binding "when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Such is the situation here.

Finally, we do not share the Township's over-wrought claim that "[s]hould the Court allow the decision below to stand, it would encourage claimants to conveniently omit relevant facts from the history they relate to evaluating physicians for the purpose of enhancing the value of their claims." What cannot be fairly denied at this point, is that Gallo was found to be credible, and Dr. Weiss's opinions persuasive. The Township's concern about the promotion of fraud by omission is unfounded.

Affirmed.

1 The judge of compensation rejected Gallo's claim of an occupational injury, and Gallo has not appealed from that determination.

2 Although the judge did not expressly cite to decisional law, we are satisfied that she was referring to Coleman v. Cycle Transformer Corp., 105 N.J. 285, 290-92 (1986) and its progeny regarding the categories of risk that must be evaluated in order to satisfy N.J.S.A. 34:15-7's "arising out of employment" requirement.