DONNA DE ANGELO v. DAILY NEWS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3242-11T4

DONNA DE ANGELO,

Petitioner-Appellant,

v.

DAILY NEWS,

Respondent-Respondent.

___________________________________________

April 22, 2013

Submitted February 4, 2013 - Decided

Before Judges Espinosa and Guadagno.

On appeal from the Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition No. 2010-13980.

Garruto & Calabria, L.L.C., attorneys for appellant (Andrew F. Garruto, on the brief).

Law Offices of Baumann & Viscomi, attorneys for respondent (Robert M. Gilbert, on the brief).

PER CURIAM

Donna De Angelo appeals from an order entered February 17, 2012, by a judge of compensation denying her petition for medical and temporary disability benefits. For the reasons that follow, we affirm.

De Angelo began working for respondent Daily News in March 2002 as a truck driver. Her responsibilities included loading her truck with newspapers, driving to various delivery locations, and unloading the truck. On February 22, 2010, she injured her back while loading her truck. De Angelo continued to work, but was treated by Dr. Ralph D'Agostino later that day. Dr. D'Agostino diagnosed her with a thoracic-lumbar strain and back spasms, and determined she would be unable to work for seven days. Dr. D'Agostino referred De Angelo to Dr. David Greifinger, an orthopedist who examined her on March 4, 2010, and viewed her X-rays. Dr. Greifinger diagnosed De Angelo with acute spinal strain but found no evidence of radiculopathy in either the upper or lower extremities. Dr. Greifinger prescribed medication and physical therapy.

Respondent paid De Angelo temporary disability benefits of $747 per week, from February 23, 2010, through May 17, 2010. When De Angelo's symptoms persisted, Dr. Greifinger ordered an MRI of the lower spine, an electromyography of the upper right extremity, and recommended an epidural block. De Angelo refused the epidural treatment. On March 24, 2010, Dr. Marvin Ruderman, a neurologist, conducted an electromyography of De Angelo's right upper extremity. Dr. Ruderman found evidence of mild right ulnar neuropathy at the elbow, but no other evidence of neuropathy. On May 7, 2010, Dr. Ruderman performed nerve conduction studies and electromyography of De Angelo's lower extremities, finding evidence of a right-sided lumbar radiculopathy and mild axonal sensory neuropathy.

On May 17, 2010, Dr. Greifinger cleared De Angelo to return to work, concluding that De Angelo had "achieved maximum medical improvement from an orthopedic vantage point." With this clearance, De Angelo's temporary disability payments ended.

On June 3, 2010, De Angelo filed a claim petition and a motion for temporary and medical benefits with the Division of Workers' Compensation. A hearing before a workers' compensation judge began on August 17, 2010. De Angelo testified that she wanted to return to work but was unable to due to the pain from her injury. She admitted that Dr. Greifinger had twice recommended that she undergo epidural blocks, but she refused the treatment as she was not "comfortable with the idea of surgery."

On July 30, 2010, De Angelo was examined by Dr. Charles, who is identified in respondent's brief as a neurologist.1 Dr. Charles formed the impression that De Angelo was "manifesting a somatization disorder[,]" and concluded that:

She has already received maximum benefit from treatment and requires no further treatment or testing. She may return to work immediately without restriction. Her neurological prognosis is excellent and there is no neurological disability from the accident.

Also on July 30, 2010, De Angelo was examined by Dr. David Porter, an osteopath specializing in family practice. When the hearing continued on November 24, 2010, Dr. Porter testified that he diagnosed De Angelo with "acute post-traumatic disc herniation of L4-5 and L5-S1, with radiculopathies; post-traumatic cervical and lumbar sprain, and a right ulnar neuropathy." Dr. Porter concluded that De Angelo was physically unable to work from May 17, 2010, through July 30, 2010.

Dr. Angela Adams, a neurologist, examined De Angelo on August 4, 2010, and diagnosed right ulnar neuropathy and lumbosacral radiculopathy due to the February 22, 2010 accident. Dr. Adams also concluded that De Angelo suffered an adjustment disorder with mixed anxiety and depressed mood. In addition to neurological and orthopedic evaluations, Dr. Adams recommended psychiatric evaluation and treatment.

The judge of compensation recommended that De Angelo be referred to a pain management specialist and that respondent pay her temporary disability benefits for the period May 17, 2010, through July 30, 2010. Pursuant to this recommendation, De Angelo was paid an additional $7,901, and had three appointments with Dr. Jonathan Lester, beginning on September 14, 2010. Dr. Lester diagnosed lumbar strain and myofascial pain syndrome/fibromyalgia but noted the diagnosis of fibromyalgia was unrelated to the February 22, 2010 accident. At a follow-up evaluation on October 15, 2010, Dr. Lester recommended a lumbar epidural steroid injection, which De Angelo refused. Dr. Lester saw De Angelo again on November 16, 2010, and concluded that, although she had reached "maximum medical improvement," she continued to experience chronic low back pain "that will preclude her from returning to her former occupation." Dr. Lester released De Angelo from care and suggested she seek a "less physically challenging job where she is doing only light lifting on a less frequent basis."

On April 19, 2011, the hearing continued with the testimony of Dr. Arthur Canario, an orthopedist, who concluded that De Angelo suffered "nothing more than a straightforward back strain," that she had achieved "maximum benefit of care and she was certainly employable, [and] did not require to be out of work for 10 months." Dr. Canario examined all of De Angelo's test results and evaluations. He noted the apparent conflict in two of De Angelo's MRIs; one interpreted as showing a herniated disc and the other report finding no herniation, as "an excellent example of how subjective MRI readings can be." He explained that both MRIs were "identical" and neither showed displacement of nerve roots. Dr. Canario also noted that any symptoms relating to De Angelo's upper extremities did not result from the February 22, 2010 accident, as the upper extremity or the cervical spine was never injured. Dr. Canario concurred with Dr. Greifinger that there was no evidence of herniation and concluded that De Angelo could return to her job delivering newspapers.

After receiving this report, the judge of compensation ordered what he referred to in his decision as an "independent medical examination regarding the need for further treatment." In June 2011, De Angelo was examined by Dr. Kenneth Kopacz, a specialist in orthopedic and spinal disorders. Dr. Kopacz did not testify but provided reports that were considered by the judge of compensation. Although De Angelo's MRI showed a left paracentral protruded disc herniation, Dr. Kopacz concluded that "the cervical and thoracic MRI do not show significant spinal chord compression that would cause the patient's symptoms."

On February 14, 2012, the judge of compensation issued an oral decision summarizing De Angelo's symptoms and the various medical reports of her treating and examining physicians. The judge noted that De Angelo had received seventeen sessions of physical therapy and had not demonstrated an entitlement to additional therapy. The judge agreed with Dr. Canario that De Angelo had reached "maximum medical improvement" and had not shown sufficient cause for additional therapy.

On appeal, appellant claims the denial of medical and temporary disability benefits is unsupported by the record and inconsistent with the evidence.

Our review of a final administrative agency decision "is quite circumscribed." Fraternal Order of Police v. Bd. of Trs. of the Police and Firemen's Ret. Sys., 340 N.J. Super. 473, 479 (App. Div. 2001). Appellate courts generally defer to the special expertise of compensation judges and give "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). Even if we would not have reached the same result in the first instance, we must defer to the judge's findings unless they are manifestly unsupported by the evidence. In re Taylor, 158 N.J. 644, 656-57 (1999); Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Accordingly, the review of a workers' compensation determination is limited to "'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.'" Lindquist v. City of Jersey City Fire Dep't, 175 N.J. 244, 262 (2003) (quoting Close, supra, 44 N.J. at 599).

The judge of compensation's interpretation of the law, however, is not entitled to special deference. Sexton v. Cnty. of Cumberland, 404 N.J. Super. 542, 548 (App. Div. 2009) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)). If mistaken, the application of law to facts will result in reversal. See Verge v. Cnty. of Morris, 272 N.J. Super. 118, 123 (App. Div. 1994).

In this case, the burden is on De Angelo to demonstrate "that the agency's action was arbitrary, unreasonable or capricious . . . ." Raso, supra, 319 N.J. Super. at 380-81 (citing Barone v. Dep't of Human Servs., 210 N.J. Super. 276, 285 (App. Div. 1986), aff d, 107 N.J. 355 (1987)). Given the deference afforded to the workers' compensation judge, we conclude that the judge's findings and conclusions were amply supported by the trial record. In a hearing that spanned eighteen months, De Angelo was evaluated by several doctors with specialties in orthopedics, neurology, and pain management. Even after the thorough review and evaluation conducted by Dr. Canario, the judge of compensation ordered another independent evaluation by Dr. Kopacz, whom the judge chose himself. Dr. Kopacz reviewed past tests and evaluations, and ordered an updated MRI on August 18, 2011, which confirmed his diagnosis that there was no significant spinal chord compression.

After giving due weight to the judge of compensation's expertise in the field and his opportunity to hear and see the witnesses, we are satisfied that his decision was based on sufficient credible evidence present in the record and that De Angelo has failed to show that the denial of her petition was in any way arbitrary, unreasonable or capricious.

A

1 The report is not on any type of letterhead and bears no indicia of authorship.