VERONICA GRAHAM v. SILVER CARE NURSING CENTER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

VERONICA GRAHAM,

Petitioner-Respondent,

v.

SILVER CARE NURSING CENTER,

Respondent-Appellant.

______________________________________________________________

March 7, 2014

Argued September 11, 2013 Decided

Before Judges Lihotz and Maven.

On appeal from the Division of Workers' Compensation, Department of Labor and Workforce Development, Claim Petition No. 2011-20738.

Cynthia E. Ringel argued the cause for appellant (Jasinski, P.C., attorneys; Ms. Ringel, of counsel and on the brief; Peter P. Perla, Jr., on the brief).

Susan L. Moreinis argued the cause for respondent (Ira F. Back, on the brief).

PER CURIAM

Silver Care Nursing Center (Silver Care) appeals from the January 17, 2013 order of the Workers' Compensation Court awarding petitioner Veronica Graham medical and temporary disability benefits for injuries caused by an admittedly compensable accident. The parties' medical experts agreed that petitioner had a preexisting arthritic hip. They disagreed as to whether petitioner's fall at work accelerated and exacerbated that preexisting condition to such an extent to necessitate hip replacement surgery. The judge of compensation credited petitioner's expert, who opined that the work injury caused the need for the surgery. Silver Care's sole argument on appeal is that the record lacked sufficient credible evidence to support the findings of the judge of compensation. We reject that argument and affirm.

While working on June 25, 2011 as a Certified Nursing Assistant at Silver Care, 55-year-old petitioner slipped on a wet floor and fell on her left hip, buttocks, and back. She suffered a contusion of the left hip and returned to work with no complaints of pain. Within the next few days, however, she complained of pain to her supervisor. Silver Care referred her for treatment at WORKNET,1 which began on June 29, 2011. She attended three physical therapy sessions, and took Tramadol, as prescribed, until she was discharged on July 18, 2011. During treatment, Silver Care placed petitioner on light duty folding laundry. She continued to work in this capacity while attending physical therapy. Thereafter, petitioner returned to work performing her regular duties.

Petitioner testified she had not experienced pain in her hip prior to the accident, but following physical therapy at WORKNET, began experienced increasing pain in her left hip. Petitioner testified she continued to work despite worsening pain in her back, buttocks, and hip, because Silver Care refused to provide her further treatment or an orthopedic evaluation. Petitioner stopped working in October.

In November 2011, petitioner met with Gregory S. Maslow, M.D., a board certified orthopedic specialist, who conducted an orthopedic evaluation of her hip, as well as physical and neurological examinations. Dr. Maslow prescribed Percocet for pain management.

Dr. Maslow's testimony confirmed petitioner's reported onset of hip pain after the accident. He testified that petitioner "absolutely denied having a problem with the left hip prior to that fall." Her x-ray disclosed moderately severe degenerative arthritis of the hip, which contrary to a normal hip, lacked cartilage between petitioner's hip bone and hip socket preventing the normal absorption of traumatic impact. He opined "the ball [portion of the hip joint] getting jammed into the socket without satisfactory articular surface coating caused continuing pain of the bony structure of the hip." He concluded that petitioner suffered a contusion of the left hip that aggravated her previously asymptomatic, degenerative joint disease. He further opined that the acceleration of petitioner's symptoms necessitated the need for hip replacement surgery.

Dr. Hausmann testified with respect to his evaluation of petitioner on behalf of Silver Care, and his review of her x-rays. He found a complete loss of the joint space and large spurs around the hip joint. He characterized the condition as "very severe arthritis" and agreed that petitioner's arthritic condition predated the accident. He concluded that given the extent of petitioner's joint degeneration, hip arthroplasty would have been necessary regardless of the workplace injury. In his view had petitioner not fallen at work, she would not have needed a hip replacement until "sometime later."

In rendering his decision, the judge of compensation accepted Dr. Maslow's analysis and conclusion, and found petitioner had proven a sufficient causal connection between the work accident and her current need for hip replacement surgery. The judge of compensation found petitioner's testimony credible and persuasive. He found she had no pain in her hip before the accident, but began to experience increasing pain after the accident. He also noted petitioner had been prescribed increasing dosages of pain medication.

The judge of compensation found that Silver Care, through its expert Dr. Hausmann, failed to produce medical evidence to counter petitioner's assertions and need for surgery. Of particular note, the judge of compensation determined Dr. Hausmann's testimony - agreeing with Dr. Maslow that symptoms of pain are the key indicator as to when a person should have hip surgery "strongly support[ed] [p]etitioner's assertion of acceleration and/or exacerbation of the condition of [her] hip, her increased pain level and current need for a hip replacement, attributable to her work accident."

Upon considering the evidence, the judge of compensation issued a final decision on January 17, 2013, finding that petitioner sustained an injury on June 25, 2011 that caused an exacerbation and acceleration of pre-existing degenerative joint disease of petitioner's hip "which has given rise to her need for a hip replacement." He therefore ordered Silver Care to provide medical treatment recommended by Dr. Maslow, "which shall include, but not be limited to a left hip arthroplasty." He also ordered temporary disability benefits.

On appeal, Silver Care argues that there was insufficient credible evidence to support the finding that hip replacement surgery was causally related to the accident or that the accident either accelerated or exacerbated petitioner's preexisting hip condition.

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 may not substitute our own fact-finding 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 Dep't, 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)).

Indeed, we afford enhanced deference to the findings of judges of compensation where their expertise is a relevant factor. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). Such courts are considered experts with respect to 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), but "[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) (quoting Lister v. J.B. Eurell Co., 234 N.J. Super. 64, 73 (App. Div. 1989)). 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).

Under the Workers' Compensation Act (Act), N.J.S.A.34:15-1 to -142, an employer is liable to an employee for disabling injuries sustained "by accident arising out of and in the course of employment." N.J.S.A.34:15-7. The petitioner, of course, has "the burden of proof to establish all elements of [the] case. Thereafter, the burden to defeat [petitioner]'s claim and establish contrary facts and legal conclusions exonerating the employer or mitigating liability shift[s] to the employer." Bird v. Somerset Hills Country Club, 309 N.J. Super.517, 521 (App. Div.), certif. denied, 154 N.J.609 (1998).

In cases such as this one, dealing with asserted exacerbation and acceleration of a preexisting condition, the law is well settled: "Employers take their employees as they find them, "with all of the pre-existing disease and infirmity that may exist." Verge v. Cnty. of Morris, 272 N.J. Super. 118, 125 (App. Div. 1994). Accordingly, employees are "not disqualified under the requirement that the injury arise out of the employment where the pre-existing condition is aggravated, accelerated or combined with the 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) (quoting Verge, supra, 272 N.J. Super.at 126).

"[T]o the extent any specific pre-existing injury or condition has been aggravated, activated or accelerated by the later compensable accidental injury[,] the employer will be liable for the disability caused by the compensable injury including any aggravation, activation or acceleration . . ." Zabita v. Chatham Shop Rite, 208 N.J. Super. 215, 222 (App. Div.), certif. granted, 107 N.J. 45 (1986), appeal dismissed, 107 N.J. 139 (1987).

Applying these fundamental principles, we are satisfied the compensation judge's findings and conclusions are supported by sufficient credible evidence in the record and comport with the applicable law. With respect to petitioner's claim of exacerbation and acceleration of degenerative arthritis, the record amply supports the judge's finding that petitioner's accident caused her previously asymptomatic hip to become symptomatic and increasingly painful. Silver Care's claim that petitioner's lack of candor and failure to disclose her earlier automobile accident undermined her credibility as to the current condition of her hip was for the judge of compensation to assess in his overall credibility determination of petitioner. In fact, the judge of compensation's findings mentioned plaintiff's omission and found it inconsequential because it did not impact her current injury.

It is clear to us that the judge made credibility determinations not only as between competing experts, but also within each expert's own testimony, to which we defer. Valdez v. Tri-State Furniture, 374 N.J. Super. 223, 231-32 (App. Div. 2005) (citing Zahner v. Pathmark Stores, Inc., 321 N.J. Super. 471, 476 (App. Div. 1999)). We determine that the judge's findings and conclusions of law were supported by sufficient credible evidence in the record, Tlumac v. High Bridge Stone, 187 N.J.567, 573 (2006), and we find no basis to disturb them.

We are satisfied that the compensation judge's written opinion provided a sufficient reasoned explanation based upon specific findings of fact to support the January 17, 2013 order awarding medical and temporary disability benefits, costs, and fees. The opinion was more than adequate to address the critical issues in the case. R. 2:11-3(e)(1)(A).

1 WORKNET was Silver Care's occupational medical treatment center.