REMI BEAUSEJOUR v. CHAMBERLIN PLUMBING

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

REMI BEAUSEJOUR,

Petitioner-Appellant,

v.

CHAMBERLIN PLUMBING &

HEATING, INC.,

Respondent-Respondent.

___________________________

January 29, 2014

Submitted December 4, 2013 Decided

Before Judges Simonelli and Haas.

On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, Claim Petition Nos. 2010-16161 and 2010-26751.

Kushinsky, Dotoli & Gans, LLC, attorneys for appellant (Kathleen M. Dotoli, on the brief).

Stahl & DeLaurentis, P.C., attorneys for respondent (Marcia Stander Freedman, on the brief).

PER CURIAM

Appellant Remi Beausejour appeals from the October 19, 2012 judgments of the Division of Workers' Compensation, which dismissed his claim petition against respondent Chamberlin Plumbing & Heating for a pre-existing lower back condition allegedly worsened or aggravated by a work-related injury that occurred on December 2, 2009. We affirm.

Appellant has a history of lower back problems dating back to a February 2006 work-related injury.1 The injury caused pain in appellant's lumbar spine and down his right leg. A March 17, 2006 MRI revealed "[d]egenerative disc disease with disc herniation predominately on the right side at L3-L4 and L4-L5 levels with foraminal stenosis on the right at both these levels." Appellant was diagnosed with lumbar strain and sprain, herniated discs at L3-L4 and L4-L5, and lumbar radiculopathy. He was placed on modified duty at work with restrictions,2 underwent physical therapy, took pain medications, and received epidural injections. He returned to work full duty in late April 2006, and was discharged from treatment in June 2006.

Appellant suffered a second lower-back work-related injury in January 2008, for which he received additional medical treatment. On September 17, 2009, appellant suffered an injury at home that exacerbated his lower back problem.3 Hospital records indicated that appellant "awoke with slight pain to [his] right hip, then he bent down to get a pot and felt a pop to [his] right hip [and was] unable to sit presently due to pain." Appellant's treating physician's records indicated that appellant "was at home, injured himself at home by picking up a heavy pot. The pain is exactly the same as he had five years ago, radiating down the lower extremity." The doctor determined that appellant "appear[ed] to be suffering from acute lumbar radiculopathy."

A September 28, 2009 MRI revealed a "small right paracentral annular tear and disc herniation [at L1-L2] indenting the right lateral margin of the thecal sack," a "disc bulge [at L2-L3] with a superimposed central posterior and right paracentral annular tear indenting the ventral margin of the thecal sac," "a disc bulge [at L3-L4] with indentation of the ventral margin of the thecal sac and bilateral foraminal encroachment," and "a broad-based right paracentral and foraminal disc herniation [at L4-L5] indenting the right lateral margin of the thecal sac that is encroaching/mildly narrowing the neural foramen . . . [and] encroaches the right lateral recess . . . [with] mild spinal stenosis at this level." Appellant was also diagnosed with lumbar radiculopathy and received medical treatment, including epidural injections. He also took pain medications, and was out of work for approximately three weeks.

Appellant returned to work in October 2009. He had his last epidural injection in November 2009. On December 2, 2009, he fell eighteen feet from a ladder and fractured his left ankle. He claimed the accident worsened or exacerbated his pre-existing lower back condition. However, a January 17, 2011 MRI revealed that appellant's lower back condition had not changed significantly from the 2009 MRI. Appellant still had multi-level disc disease that "appear[ed] to have slightly progressed at the level of L3-L4 and L4-L5 since [the September 28, 2009 MRI]." A February 2010 EMG revealed "acute L5-S1 radiculopathy."

Appellant's treating physician, Lance Markbreiter, M.D., compared the 2009 and 2011 MRIs and found there was "no significant change" and "no traumatic finding." he determined that the changes between the two MRIs were "[v]ery minor changes . . . consistent with the standard of what one would clearly expect for degenerative changes to progress over" the time period between the MRIs. The doctor testified that had appellant actually injured his back from the December 2009 fall, the 2011 MRI would have shown more of a pathology in the form of either spinal fractures or acute disc herniations. The doctor testified that appellant's lumbar pathology was pre-existing and "the difficulties [appellant was] currently having with his back and the radiculopathy was present prior to the fall and there was not any significant exacerbator made worse by the fall." He added that appellant's lower back "complaints would be the same" even if the accident had not occurred" and attributed the increase in appellant's back pain to the effects of the epidural injections wearing off. The doctor concluded that appellant's back issues were pre-existing and not caused or exacerbated by the December 2009 accident.

Plaintiff's orthopedic expert, Cary Skolnick, M.D., who examined appellant on one occasion, came to a different conclusion. After reviewing the MRIs and EMG, he opined that the accident aggravated and exacerbated appellant's pre-existing lumbar degenerative disc disease.

In a written opinion, Judge of Compensation Watson P. Berich found that Dr. Markbreiter, who was appellant's treating physician, was more persuasive and credible than Dr. Skolnick, who had only examined appellant on one occasion. Relying on the objective medical evidence and Dr. Markbreiter's testimony, the judge determined that there was no demonstrable objective medical evidence of an exacerbation of appellant's pre-existing condition. The judge concluded that appellant failed to meet his burden of proof to establish a lumbar causal relationship to the December 2009 accident. This appeal followed.

On appeal, appellant contends that Judge Berich's findings were against the weight of the evidence, and appellant sustained his burden of proof. We disagree.

Our review of workers' compensation cases 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 and, in the case of agency review, with due regard also to the agency's expertise where such expertise is a pertinent factor.

[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)) (internal quotation marks omitted).]

We may not substitute our own factfinding for that of the judge of compensation. Lombardo v. Revlon, Inc., 328 N.J. Super. 484, 488 (App. Div. 2000). We must defer to the factual findings and legal determinations made by the judge of compensation "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 Dept., 175 N.J. 244, 262 (2003) (quoting Perez v. Monmouth Cable Vision, 278 N.J. Super. 275, 282 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995)). While the judge of compensation has "expertise with respect to weighing the testimony of competing medical experts and appraising the validity of [the petitioner's] compensation claim[,]" Ramos v. M & F Fashions, Inc., 154 N.J. 583, 598 (1998), the judge must "carefully explain[] why he considered certain medical conclusions more persuasive than others." Smith v. John L. Montgomery Nursing Home, 327 N.J. Super. 575, 579 (App. Div. 2000). We will "appraise the record as if we were deciding the matter at inception and make our own findings and conclusions" only if the judge of compensation "went so wide of the mark that a mistake must have been made." Manzo v. Amalgamated Indus. Union Local 76B, 241 N.J. Super. 604, 609 (App. Div.) (internal quotations omitted), certif. denied, 122 N.J. 372 (1990). Applying these standards, we discern no reason to disturb the judge's decision.

The New Jersey Workers' Compensation Act is "humane social legislation designed to place the cost of work-connected injury upon the employer who may readily provide for it as an operating expense." Tocci v. Tessler & Weiss, Inc., 28 N.J. 582, 586 (1959). The Act must be liberally construed "in order that its beneficent purposes may be accomplished." Torres v. Trenton Times Newspaper, 64 N.J. 458, 461 (1974). This canon of liberal construction of the Act, however, "does not extend to the evaluation of credibility or of the weight or sufficiency of evidence." Lindquist, supra, 175 N.J. at 258.

Pursuant to N.J.S.A. 34:15-1, a compensable workers' compensation injury must be caused by an accident "arising out of and in the course of" the worker's employment. New Jersey adheres to the proposition that an employer takes an employee as the employer finds the employee, with all of the pre-existing disease and infirmity that may exist. Kelly v. Alarmtec, Inc., 160 N.J. Super. 208, 212 (App. Div.), certif. denied, 78 N.J. 340 (1978). Therefore, an employee is "not disqualified under the requirement that the injury arise out of the employment where [a] pre-existing condition is aggravated, accelerated, or combined with [a] pre-existing disease or infirmity to produce the disability for which compensation is sought." Sexton v. Cnty. of Cumberland/Cumberland Manor, 404 N.J. Super. 542, 555 (App. Div. 2009). Thus, any definable disability that is directly attributable to an aggravation or acceleration of a pre-existing condition and that is a direct effect of the compensable accident is the burden of the employer. Gulick v. H.M. Enoch, Inc., 280 N.J. Super. 96, 114 (App. Div. 1995).

An employer is required to "furnish to the injured worker such medical, surgical and other treatment, and hospital service as shall be necessary to cure and relieve the worker of the effects of the injury and to restore the functions of the injured member or organ where such restoration is possible." N.J.S.A. 34:15-15. However, there must be evidence that the issues complained of are indeed the "effects" of the injury that occurred, and "a successful petitioner in workers' compensation generally must prove both legal and medical causation when those issues are contested." Lindquist, supra, 175 N.J. at 259. "Medical causation means the injury is a physical or emotional consequence of work exposure" and "that the disability was actually caused by the work-related event." Ibid. Proof of legal causation means proof that the injury is work connected. Kasper v. Bd. of Trustees of Teachers' Pension and Annuity Fund, 164 N.J. 564, 591 (2000) (Coleman, J., concurring).

"It is the petitioner's burden to establish a causal link between the employment and the disease." Kiczula v. Am. Nat'l Can Co., 310 N.J. Super. 293, 303 (App. Div. 1998). "The link must be proven by a preponderance of the evidence," ibid., and the focus is on "the proof of a causal connection between working conditions and the harm." Giambattista v. Thomas A. Edison, Inc., 32 N.J. Super. 103, 112 (1954). "The standard is one of reasonable probability; i.e., whether or not the evidence is of sufficient quality to generate a belief that the tendered hypothesis is in all likelihood the truth." Lister v. J.B. Evrell Co., 234 N.J. Super. 64, 72 (1989). Thus, the appropriate test asks "'whether it is more probably true than not that the injury would have occurred during the time and place of employment rather than elsewhere.'" Coleman v. Cycle Transformer Corp., 105 N.J. 285, 290-91 (1986) at 290-91 (quoting Howard v. Howard's Restaurant Co., 25 N.J. at 72, 82 (1957). "Unless it is more probable that the injury would not have occurred under the normal circumstances of everyday life outside of the employment, the necessary causal connection has not been established." Id. at 291 (emphasis and citation omitted).

Further, it is within the judge's discretion to accept the expert opinion of a petitioner's treating physician and to reject the opinion of an expert physician who has examined petitioner only for purposes related to the underlying litigation. Paul v. Baltimore Upholstering Co., 66 N.J. 111, 121 (1974), superseded on other grounds by statute, L. 1979, c. 283, 17. This is because "[i]t is generally recognized that a treating physician is in a better position to express an opinion as to cause and effect than one making an examination in order to give expert medical testimony." DeVito v. Mullen's Roofing Co., 72 N.J. Super. 233, 236 (App. Div.), certif. denied, 37 N.J. 222 (1962).

Appellant was required to prove that the exacerbation of his pre-existing condition was causally connected to the December 2009 accident. Coleman, supra, 105 N.J. at 290. There was sufficient credible evidence in the record supporting Judge Berich's factual and credibility findings and his determination that appellant failed to sustain his burden of proof. R. 2:11-3(e)(1)(D). We have considered appellant's contentions to the contrary, conclude they lack sufficient merit to warrant further discussion, R. 2:11-3(e)(1)(E), and affirm substantially for the reasons Judge Berich expressed in his well-reasoned and comprehensive written opinion.

1 Appellant was thirty-nine years old at the time of this injury.

2 The restrictions included sedentary work only, no repetitive bending, stooping or kneeling, no running or ladder climbing and no lifting anything more than fifteen pounds.

3 Appellant testified before the Judge of Compensation that this injury occurred at work; however, the medical records proved otherwise.