LISA MARIE KIESSLING v. PRUDENTIAL INSURANCE COMPANY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

LISA MARIE KIESSLING,

Petitioner-Appellant,

v.

PRUDENTIAL INSURANCE COMPANY,

Respondent-Respondent.

____________________________________________________

December 15, 2015

Argued November 17, 2015 Decided

Before Judges Fisher and Espinosa.

On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers'Compensation, Claim Petition No. 1993-32163.

Irwin R. Rein argued the cause for appellant (Mr. Rein, of counsel; Jeffrey Zajac, on the brief).

William T. Freeman argued the cause for respondent (Freeman, Huber, Sacks, Brennan & Fingerman, attorneys for respondent; Mr. Freeman, on the brief).

PER CURIAM

Petitioner Lisa Marie Kiessling suffered a work-related injury in 1992; in 2003, the compensation court determined that petitioner was totally and permanently disabled. In 2004, respondent's insurer approved payment for medication to treat petitioner's dry-mouth condition, which had allegedly resulted from prescribed pain medication. In 2006, however, respondent's insurer rejected petitioner's request for dental treatment. Consequently, in 2007, petitioner moved in the compensation court for relief; at or about the same time, respondent moved for the termination of all disability benefits.1 In 2009, the judge denied respondent's motion, and in 2010, the judge dismissed petitioner's motion, permitting petitioner to refile her motion when witnesses were available. Petitioner refiled her motion in 2011, but that application was abandoned while the parties attempted to negotiate a settlement.

On October 17, 2013, petitioner again moved for dental treatment. Petitioner also separately moved for leave to conduct a de bene esse deposition of Dr. David J. Kaufman, her Maryland psychiatrist, who she claims medically treated her over the years. Respondent moved for a dismissal of the claim.

The court heard testimony from petitioner, her dental expert, and respondent's dental expert on November 21, 2013, January 9, 2014, and May 8, 2014. The judge did not permit petitioner the opportunity to, in any fashion, elicit the testimony of Dr. Kaufman. On May 29, 2014, the judge rendered an oral opinion in respondent's favor.

Petitioner appeals, arguing

I. THE COMPENSATION COURT ERRED BY DENYING THE PETITIONER'S REQUEST FOR THE TESTIMONY OF HER TREATING PHYSICIAN SINCE 1997, A REQUEST THAT WAS MADE AT THE OUTSET OF THE INSTANT MOTION FOR BENEFITS.

A. Workers' Compensation Hearings Allow for the Full Presentation of Proofs, Including the Testimony of the Treating Physician, Whose Testimony Is Generally Accorded Greater Weight Than Those of Expert Witnesses.

B. Deposition And Telephonic Testimony Is Well Established in Workers' Compensation Courts in New Jersey.

C. The Administration of Justice Takes Precedence Over the Per-ceived Need to Effectively Dispose of Workers' Compensation Cases.

II. THE COMPENSATION COURT'S DECISION DENYING THE PETITIONER'S MOTION FOR MEDICAL AND DENTAL BENEFITS WAS AGAINST THE WEIGHT OF THE EVIDENCE, AND REPRESENTS AN ABUSE OF DISCRETION.

As noted, the trial consisted of petitioner's testimony regarding her dental complaints and her history of treatment and dental care, as well as the competing testimony of the parties' dental experts. The applicable standard of review calls for our deference to the judge's findings of fact. Lindquist v. City of Jersey City Fire Dep't, 175 N.J. 244, 262-63 (2003). In particular, we observe that the judge's denial of dental benefits was based on petitioner's "lack of hygiene and the bacteria in the mouth" resulting from "[p]etitioner's diet" and not the dry-mouth condition generated by the pain medication. With regard to this finding, the judge found petitioner's assertion of her diligent attention to dental hygiene to be less than credible, and he noted that petitioner did not provide "records or even details of normal dental hygiene during periods before, during and after when one would expect the dry mouth condition to have occurred and be complained about." The judge also observed that petitioner's "testimony about her own efforts to counter-attack such effects shows a material contribution by introducing excessive sugar products without minimal professional follow up." And, ultimately, the judge found that the conclusions provided by respondent's expert were "more medically probable" than those provided by petitioner's expert. Petitioner's argument that these findings were against the weight of, or insufficiently supported by, the evidence adduced at trial are without sufficient merit to warrant further discussion in this opinion. R. 2:11-3(e)(1)(E).

Petitioner, however, also argues that she was deprived of a full and fair opportunity to present her claim. Relying on N.J.A.C. 12:235-3.12(e)(1),2 petitioner contends that the judge erroneously failed to accommodate her request for Dr. Kaufman's testimony to be heard in some fashion.3 We find no error in the judge's determination to rule on the merits without Dr. Kaufman's testimony. As the judge observed in denying petitioner's request to have Dr. Kaufman testify as to when the dry-mouth condition arose, respondent "concede[d] that the medications that were provided through their authorized doctors can cause that condition." Having examined Dr. Kaufman's report, we agree with the compensation judge that Dr. Kaufman would have provided nothing of value to petitioner's case other than the issue that respondent had conceded. And certainly no prejudice was caused by the judge's determination not to further delay a decision on the merits because the ultimate denial of dental benefits was found to be based on petitioner's lack of oral hygiene and her diet, and not the dry-mouth condition.

Affirmed.

1 Respondent appealed the denial of its motion to terminate benefits. We affirmed. Kiessling v. Prudential Ins. Co., No. A-3051-08 (App. Div. May 10, 2010).

2 N.J.A.C. 12:235-3.12(e)(1) declares that "[e]xcept in situations where there is no material dispute of fact, issues shall not be decided until all sides have had the opportunity to provide full proofs based upon, but not limited to, oral testimony, affidavits and other proofs as stipulated by the parties or required by the judge."

3 At one point, petitioner argued Dr. Kaufman should be deposed de bene esse in Maryland. Petitioner also sought to have him testify by telephone, and argued on the last day testimony was heard that the record not be closed until Dr. Kaufman could appear in person to testify.