JOSE RIVERA v. UNITED PARCEL SERVICE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

JOSE RIVERA,

Petitioner-Respondent,

v.

UNITED PARCEL SERVICE,

Respondent-Appellant.

December 17, 2013

Argued December 3, 2013 Decided

Before Judges Ostrer and Carroll.

On appeal from New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition No. 2004-14074.

Stephanie L. Meredith argued the cause for appellant (Freeman, Huber, Sacks, Brennan & Fingerman, attorneys; Ms. Meredith, on the brief).

Craig H. Livingston argued the cause for respondent (Livingston, DiMarzio & Baptista, and The Blanco Law Firm, attorneys; Pablo N. Blanco, of counsel and on the brief; Frank DiMarzio, on the brief).

PER CURIAM

Respondent United Parcel Service (UPS) appeals from an August 30, 2012 order of the Division of Workers' Compensation finding that petitioner Jose Rivera suffered a compensable workplace injury, and awarding Rivera benefits under the New Jersey Workers' Compensation Act, N.J.S.A. 34:15-1 to -142 (the Act). UPS argues that the finding of compensability is not supported by the weight of the credible evidence, and that Rivera's claim is barred by the statute of limitations. After reviewing the record in light of the contentions advanced on appeal, we affirm.

I.

Rivera began working for UPS in October 1992, initially loading trucks. In 1999 he became a commercial driver, picking up and delivering packages that ranged in weight between one ounce and 190 pounds. On May 3, 2004, Rivera filed a worker's compensation claim, in which he asserted an occupational disability to his back that manifested in January 2003, as a result of "constant bending, lifting and stretching" at work. UPS filed an answer denying Rivera's occupational claim, and asserting a lack of notice defense under N.J.S.A. 34:15-17. UPS did not plead the statute of limitations as a defense, nor did it ever seek to dismiss Rivera's claim on that basis during the ensuing trial.

Compensation Judge Geoffrey Rosamond presided over the first portion of the bifurcated trial. The only issue in dispute during this phase was whether Rivera sustained an injury that was compensable under the Act. During his testimony, Rivera referred primarily to a specific July 2003 work accident, as opposed to an occupational back claim. Describing how the incident occurred, he stated:

I was picking up for a company named Albees . . . [and] I was halfway done with the truck waiting for another truck to come, but was still loading. I just picked up this other box around 15, 20 pounds, and that is it, that is when I [] felt the pain . . .. I felt a sharp pain, and I called the supervisor. He said, "can you finish?" And I said, "I can try."

Rivera testified that he then notified his supervisor, Sam Battista, of his injury. According to Rivera, Battista asked him whether he could finish his shift. Rivera continued working and finished the day "with pain". Upon returning, he told Battista that he was "hurting a lot." Battista told him to go home and come back the next morning.

After being sent home again the next day (a Friday), Rivera returned on Monday after resting in bed for two days. Rivera explained that Battista s manager was not in, and therefore he was unable to obtain clearance to obtain treatment with Concentra, where UPS employees who sustain injuries on the job are sent after they obtain approval. Rivera testified that Chris Eltzholtz, his union shop steward, instructed him to seek treatment with a personal doctor through his own health insurance since it was apparent he was unable to obtain approval from UPS. Rivera then described the medical treatment he obtained on his own, following this advice by Eltzholtz. He was treated for a period of time by Gerrard Ferrer, D.O., until he was ultimately referred for surgery, which was performed by Ramesh Babu, M.D., at NYU Medical Center (NYU). Rivera later returned to work as a commercial driver following the successful surgery. On June 19, 2008, the court permitted NYU to intervene in order to recover payment of $49,525.35 for medical treatment that it alleged should have been reimbursed through UPS's workers' compensation coverage.

As noted, while Rivera's May 3, 2004 claim petition alleged an occupational back injury with a January 2003 manifestation, when the matter came to trial, petitioner's testimony alleged a specific accident in July 2003, and it was tried as such. Toward the end of Rivera's testimony on August 5, 2010, the judge inquired of Rivera's counsel regarding the inconsistency in the date of the alleged accident, and whether it was an ongoing occupational injury, or a specific accident:

[The Court]: The claim petition in this matter alleges occupational exposure on or about 1/2003?

[Counsel]: Correct.

[The Court]: Did I mishear when I heard July, 2003? . . .. Well, in other words, the direct testimony, July, 2003, picking up at Albee's? . . .. But yet the claim petition talks about January 2003, an occupational?

[Counsel]: Right. Those are not inconsistent. He also said, even after he finished picking up the box at Albee's, he continued to lift boxes and continued to have problems. That was the particular day when his back got really bad, but he was having problems since January [ 20]03, which is consistent with the treating records . . .

The trial then continued on January 20, 2011. UPS called Battista, who testified that he did not remember Rivera reporting a back injury to him in July 2003. Battista explained that, eight years earlier, he was a hub supervisor, overseeing inside employees only, not drivers; thus contradicting the claim that he was Rivera s supervisor. He further testified that during his time as a hub supervisor, he could not recall any driver reaching out to him to advise him of an injury. He also disputed Rivera's description of Eltzholtz's handling of the situation, stating "Chris [] is probably one of the best shop stewards [we] had in that building . . .. Chris is the type of person to get the proper paperwork to go to Concentra. He won't say go to your own doctor first . . .." On cross-examination, Battista did admit that drivers could return to the hub and talk to him there, and that it would not have been unusual if a driver had a problem and came by to talk to him about it.

When the trial resumed on May 5, 2011, Ricky Lezott, a center manager employed by UPS, was called to testify on behalf of Rivera. Lezott confirmed that Rivera was out of work from January 4, 2003 until April 21, 2003, as well as between August 12, 2003 and December 26, 2003. However, he was unable to provide any testimony relevant to whether Rivera sustained a work-related injury which was reported to UPS.

On August 23, 2011, Judge Rosamond placed an oral opinion on the record, finding that Rivera sustained a compensable injury arising out of his employment with UPS in July 2003. The judge found Rivera credible in his recitation of events, notwithstanding the considerable length of time since the injury occurred. While Judge Rosamond also found Battista testified credibly, he had conceded that he did not have any recollection of any work-related injury involving Rivera during January 2003. The judge also acknowledged that Rivera did not "precisely follow and adhere to UPS policy and procedures" in reporting and treating his injury, but nevertheless found it irrelevant to the determination that he did suffer a work-related injury. Judge Rosamond concluded:

Based on my analysis of all of the testimony and documentary evidence presented, I find, without question, that Petitioner has met his burden and has established clearly and convincingly that he did, in fact, sustain a work-related injury during July 2003, and immediately subsequent thereto, reported same to Samuel Battista. As previously stated, the fact that Mr. Rivera did not precisely follow and adhere to UPS policy and procedures is irrelevant to my determination that (a), he did, in fact, sustain a work-related injury, and (b), he did, in fact, notify respondent of this injury.

Following Judge Rosamond's retirement, the second phase of the bifurcated trial continued before Compensation Judge Yolanda Adrianzen on July 19, 2012, and focused solely on the nature and extent of Rivera's permanent disability. Dr. Arthur Tiger, an orthopedist, testified on behalf of Rivera, and his reports were introduced in evidence. UPS waived its right to present oral medical testimony, instead relying on the treatment reports of its own orthopedic expert, Dr. Arthur Canario. UPS also presented evidence in support of its claim for credit for Rivera's pre-existing lumbar disability, which stemmed from a non-work related motor vehicle accident in which Rivera was involved in 1998. On August 15, 2012, Judge Adrianzen entered judgment awarding Rivera 35% permanent partial disability, with a credit of 5% for pre-existing disability. The judge also ordered UPS to pay the outstanding NYU Medical Center bill of $49,525.35.

On appeal, UPS does not challenge the judge's findings of 35% of partial total, less the 5% credit. Rather, UPS challenges the ruling that Rivera sustained a compensable injury under the Act, arguing that there were inconsistencies among his claim petition, his trial testimony, and his pre-hearing explanation as to when and how his injury occurred. UPS also argues that Rivera's claim is barred by the statute of limitations.

II.

In evaluating these arguments, our scope of review is limited, giving due recognition to the expertise of the compensation court and the judge's first-hand opportunity to see and hear the testifying witnesses. We only consider whether the findings made by the compensation judge could reasonably have been reached on the basis of sufficient credible evidence in the record, considering the proofs as a whole. Close v. Kordulak Bros., 44 N.J.589, 599 (1965); see alsoBrock v. Pub. Serv. Elec. & Gas Co., 149 N.J.378, 383 (1997). We must defer to the judge's credibility findings, as well as 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).

So long as they rest on sufficient credible evidence, a compensation judge's findings of fact are binding on appeal, and those findings must be upheld "even if the [reviewing] court believes that it would have reached a different result." Sager v. O.A. Peterson Constr., Co., 182 N.J. 156, 164 (2004). We simply require that the compensation judge "make adequate findings of fact and give an expression of reasoning which, when applied to the found facts, [lead] to the conclusion" that the judge reached. Lister v. J.B. Eurell Co., 234 N.J. Super. 64, 73 (App. Div. 1989). Our de novo review is limited to any legal determinations made by the judge. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Having reviewed the record as a whole in light of these well-established appellate standards, we affirm the award of the compensation court respecting Rivera's claim, substantially for the reasons articulated in Judge Rosamond's opinion of August 23, 2011. We add the following remarks.

We first address UPS's argument that Judge Rosamond could not have reasonably concluded, based upon the evidence presented, that Rivera suffered a specific compensable injury arising out of his employment. As support for this argument, UPS asserts that on May 3, 2004, Rivera filed an occupational claim petition alleging a disability to his lower back with a manifestation in January 2003. He never filed a claim petition for a traumatic injury such as the one he allegedly suffered in July 2003, which his trial testimony focused on. In addition, Rivera answered occupation interrogatories claiming back problems through the years, which worsened in October 2002. However, these interrogatories do not appear to have been entered in evidence and are not properly part of the record.

In his thoughtful opinion, Judge Rosamond carefully evaluated and weighed the credibility of each of the three witnesses who testified. As noted, he found Rivera "to be completely truthful and forthcoming in his recitation of events." The judge stated that Rivera "credibly testified that he called his supervisor, Sam Battista" when the incident occurred. While the judge also found Battista credible, he noted that Battista "had no recollection" of any work-related injury involving Rivera, and that he was "unable to provide any relevant factual information." Although Rivera "demonstrated uncertainty as to certain dates," the judge attributed that uncertainty to the "considerable lapse of time," and accordingly "g[a]ve that uncertainty no weight whatsoever."

Judge Rosamond also specifically found that Rivera, "again credibly," described the medical treatment he obtained for his injury. Indeed, his credibility findings, and his conclusion that Rivera suffered a compensable injury, are further buttressed by Judge Adrianzen's subsequent independent findings. In also listening to Rivera's description of his injuries, Judge Adrianzen found that "he was forthright and convincing. His demeanor was both pleasant and candid . . . . He did not exaggerate nor embellish." The judge noted Dr. Tiger's opinion that the type of work Rivera did at UPS caused him to develop a slow onset of curvature of the back, which eventually deteriorated and herniated a disc at the L4 L5 level. In concluding her decision, Judge Adrianzen remarked:

In rendering my [d]ecision, [c]ounsel, I did want to highlight that in my review of Dr. Tiger's findings and testimony, the fact that I found Dr. Tiger to be more convincing, particularly because Dr. Tiger noted, and as I agree, when he was asked in terms of the credibility of petitioner's complaints, that he found Mr. Rivera to be quite credible and went so far as to indicate that Mr. Rivera presented himself honestly, and I'll quote as to Dr. Tiger's statement, "this patient went to see someone at NYU who I have a lot of respect for and who wouldn't have accepted those complaints and done the surgery without believing Mr. Rivera." So I found that to be quite persuasive, and particularly with respect to the assessment of disability. And I just wanted to note and add that for the record.

Further support for Judge Rosamond's determination is found in the attendance records produced by Lezott, which showed that Rivera missed considerable periods from work between January 4 and April 21, 2003 and then again from August 12 to December 26, 2003. Also, Dr. Ferrer's August 5, 2003 report, introduced in evidence at the hearing, specifically referenced Rivera's symptoms having returned approximately one month earlier "as he lifted a [fifteen] pound object."

We are satisfied that the record on appeal provides ample support for Judge Rosamond's credibility determination, and his determination that Rivera sustained a compensable injury.

We acknowledge that petitioner's claim petition referenced an occupational claim manifesting in January 2003, while Judge Rosamond's finding of compensability hinged upon the occurrence of a work-related injury in July 2003. However, Rivera's testimony alleged a specific accident in July 2003, and the case was tried as such. Essentially, the judge disregarded this inconsistency and amended the pleadings to conform to the evidence. In doing so, we perceive no error. See Kahle v. Plochman, Inc., 85 N.J. 539, 547 (1981) ("It has long been axiomatic to this Court that the Act is remedial social legislation and should be given liberal construction in order that its beneficent purposes may be accomplished.").

We similarly reject the argument, raised by UPS at oral argument, that it was unfairly surprised by Rivera's trial testimony with respect to the July 2003 injury. As noted, Dr. Ferrer's August 5, 2003 report, furnished during pre-hearing discovery, specifically referenced this event. Moreover, the pre-trial memorandum, entered by the court on June 3, 2010, designated "accident" and "injuries" as issues to be addressed at trial. Rivera first testified on August 5, 2010. Thereafter, additional hearings were held on January 20 and May 5, 2011, an intervening period that was certainly sufficient for UPS to investigate and challenge this supposed surprise testimony.

Finally, we conclude that UPS's statute of limitations argument is equally unavailing. Claims for compensation, depending on their nature, can either be adjudicated under the two-year "accident" statute of limitations, N.J.S.A. 34:15 51, or under the less onerous discovery-rule limitations period prescribed for occupational diseases." N.J.S.A. 34:15 34; see Brunell v. Wildwood Crest Police Dep't, 176 N.J. 225, 249-50, 255 (2003).

Pursuant to N.J.S.A. 34:15-34, no period of limitations is provided in occupational disease cases unless a claimant knew the nature of the disability and its relation to the employment, in which case the period of limitations is two years after the date on which the claimant first had such knowledge. Churukian v. Unarco Indus., Inc., 169 N.J. Super.122, 125 (App. Div.), certif. denied, 81 N.J.352 (1979). However, a claim for compensation of an occupational disease or injury shall be barred when not filed "within 2 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.

Rivera points out that UPS never asserted the statute of limitations as a defense, either in its answer or at trial. UPS responds that the statute of limitations is not a defense in workers' compensation cases. Rather, the timely filing of a workers' compensation claim is "jurisdictional and cannot be waived." Baijnath v. Eagle Plywood & Door Mfrs., 261 N.J. Super. 309, 314 (App. Div. 1993); see also Panzino v. Cont'l Can Co., 71 N.J. 298, 306 (1976). Regardless, whether we consider Rivera's claim as an occupational one that manifested in January 2003, or as a work-related accident that occurred in July 2003, his claim petition filed on May 3, 2004 was clearly timely.

Affirmed.