ELBA NAG v. STATE OF NEW JERSEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

ELBA NAG,

Petitioner-Appellant,

v.

STATE OF NEW JERSEY and

SECOND INJURY FUND,

Respondents-Respondents.

October 15, 2014

Submitted September 30, 2014 Decided

Before Judges Fasciale and Hoffman.

On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition No. 2004-18848.

Elba Nag, appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent State of New Jersey, Hagedorn Psychiatric Hospital (Melissa H. Raksa, Assistant Attorney General, of counsel; Michael Pushko, Deputy Attorney General, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent Second Injury Fund (Linda A. Lockard-Phillips, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

Pro se petitioner Elba Nag appeals from the September 4, 2013 judgment of the Division of Workers' Compensation dismissing her claim petition. We affirm.

I.

On June 14, 2004, petitioner filed a claim petition with the Department of Labor, alleging that she suffered an injury in 2003 when she "was attempting to pick up a patient" and then "felt a pop between her shoulders and lower neck." Petitioner claimed she sustained both "orthopedic and neuro/neuropsychiatric injuries." On November 2, 2009, petitioner filed a Second Injury Fund1 petition, claiming she was totally and permanently disabled as a result of pre-existing disabilities and the 2003 incident. In a bifurcated trial, the judge of compensation first dealt with the issue of whether petitioner suffered a compensable injury in 2003, and found petitioner failed to meet her burden of proof.

We briefly state the relevant facts. Petitioner was employed as a registered nurse by Hagedorn Psychiatric Hospital (Hagedorn) when, on May 3, 2003, she attempted to assist a male patient who had fallen over while strapped into a "geri-chair." After petitioner unsuccessfully tried to upright the patient on her own by grabbing his hands, the patient refused to release her hands and "was trying to pull [her] down." As petitioner attempted to pull her hands away, she heard a "pop" in her back; she did not feel any immediate pain and was unable to specify where in her back the "pop" occurred. Following the incident, petitioner finished her shift, continued to work her regular schedule, and performed her normal duties without any restrictions for almost another two weeks.

On May 16, 2003, petitioner left work early because she was feeling "nauseated and shaky," but not because she was feeling neck or back pain. After she failed to return to work, Hagedorn informed petitioner she would need to submit forms from a doctor authorizing a leave of absence or else she would be "abandoning [her] job." Petitioner never submitted these forms; eventually, she signed an appeal settlement agreement with Hagedorn on September 18, 2003, agreeing to resign from her position in exchange for the hospital rescinding the removal charges.

On October 15, 2003, petitioner applied for temporary disability benefits (TDB) from the Department of Labor after her psychiatrist placed her on a leave of absence for psychiatric reasons. On her TDB application, petitioner indicated "no" in answer to the question of whether her employment caused her injury or illness. Although petitioner saw multiple psychiatrists and psychologists subsequent to May 3, 2003, she did not see a doctor for orthopedic treatment until the following spring, in April 2004.

At the bifurcated trial, petitioner was the sole witness. Based on petitioner's testimony, medical records and medical reports, the judge of compensation rendered an oral decision finding petitioner did not suffer a compensable injury as a result of the May 3, 2003 incident. Specifically, the judge found

While an incident may have occurred on May 3, 2003, wherein she was trying to assist a patient who fell out of a Geri chair, I find that [petitioner] did not sustain a compensable injury pursuant to Perez v. Pantasote, Inc., 95 N.J. 105 (1984) and, therefore, this claim will be denied with prejudice for failure to sustain the burden of proof.

In reaching this decision, the judge cited testimony by the petitioner that contradicted her doctors' reports and medical history, as well as her delay in seeking orthopedic treatment. When evaluating the psychological aspect of petitioner's claim, the judge noted a medical report stating petitioner was in denial of her psychiatric conditions and that the majority of her psychiatric disability was related to her underlying condition. The judge also cited that the medical report indicated psychological conditions predating May 3, 2003.

The judge's specific findings regarding petitioner's orthopedic and psychological claims included the following

By her own testimony and the concurrent treating medical records there were no complaints of any physical injuries after this incident, just the complaints which she attributed to her prescription medication that she was taking before the alleged date of loss. She stated that she continued to work without restrictions following the incident. . . . She stated she had been on Zoloft on a prior occasion and had similar complaints. . . .

While the [p]etitioner attributes . . . hearing voices to this incident, this court takes into consideration the Second Injury Fund [v]erified [p]etition in which [p]etitioner notes preexisting medical conditions in 1992 of major depression and post[-]traumatic stress disorder, and in 2002 cognitive impairment and depression. Under the title of current medical conditions, she had stated bipolar disorder with psychiatric symptoms versus schizoaffective disorder.

. . . .

The records from Dr. Caruso as noted in Dr. Wong's report do not substantiate petitioner's claim that she was injured on May 3, 2003. Petitioner testified that she did not remember any prior injuries to her neck . . . as a result of a motor vehicle accident in 1982 which was a rear-end hit. However, in the [v]erified [p]etition as part of her preexisting medical conditions, she listed whiplash.

. . . .

This court takes issue with the facts as presented by the [p]etitioner in that she had no pain relating to her specific incident that would cause her to go to a doctor regarding the pop in her neck. She continued to treat for her psychiatric conditions, but never mentioned to these doctors any affliction regarding her neck. When she finally saw an osteopath, her complaints extended throughout her body as indicated in the [c]laim [p]etition and exhibits attached to petitioner's attorney['s] letter brief.

Accordingly, the judge dismissed petitioner's claim petition for failure to sustain the burden of proof.

II.

On appeal, petitioner essentially argues she is entitled to compensation because she suffered physical injuries and psychological disabilities as a result of the May 3, 2003 incident. In her pro se brief, petitioner offers no legal arguments to support these assertions and simply restates her version of the facts.

When reviewing the decision of a judge of compensation, our role 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 . . . .'" Sager v. O.A. Peterson Constr., Co., 182 N.J. 156, 163-64 (2004) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)); Hersh v. Cnty. of Morris, 217 N.J. 236, 242 (2014). Compensation judges are additionally considered to have expertise in "weighing the testimony of competing medical experts and appraising the validity of . . . compensation claims." Ramos v. M&F Fashions Inc., 154 N.J. 583, 598 (1998).

Accordingly, the compensation court's factual findings and legal determinations must be given deference "unless they are 'manifestly unsupported by or inconsistent with competent relevant and reasonably credible evidence as to offend the interests of justice.'" Lindquist v. City of Jersey City Fire Dep't, 175 N.J. 244, 262 (2003) (citations and internal quotation marks omitted); Bellino v. Verizon Wireless, 435 N.J. Super. 85, 94 (App. Div. 2014). This deference is limited only when a "decision without proper factual findings and a reasoned explanation of the ultimate result does not satisfy the requirements of the adjudicatory process." Colon v. Coordinated Transp., Inc., 141 N.J. 1, 11 (1995) (citations and internal quotation marks omitted).

Giving appropriate deference to the compensation judge's expertise in the area and her opportunity to assess petitioner's credibility, we are satisfied the record contains sufficient credible evidence to support the judge's findings and conclusion that petitioner failed to prove she sustained a compensable injury. We affirm substantially for the reasons set forth in the compensation judge's oral decision.

Petitioner's pro se brief further raises other arguments, many of them relate to issues not properly before us, that are without merit and do not warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1 The Second Injury Fund is a special compensation fund "that makes benefit payments to workers already partially disabled who subsequently experience a work related injury which when combined, render them totally disabled." Rosales v. State Dep't of the Judiciary, 373 N.J. Super. 29, 35 (App. Div. 2004).