JAN WAKE Petition- v. TOWNSHIP OF TOMS RIVER -

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

JAN WAKE,

Petition-Appellant,

v.

TOWNSHIP OF TOMS RIVER,

Respondent-Respondent.

_______________________________________

September 16, 2015

Argued July 21, 2015 Decided

Before Judges Nugent and Accurso.

On appeal from the Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition Nos. 2008-15822 and 2011-16442.

Adam L. Gans argued the cause for appellant (Kushinsky & Gans, LLC, attorneys; Mr. Gans, on the brief).

Patrick L. Cimino argued the cause for respondent (Gilmore & Monahan, PA, attorneys; Mr. Cimino, on the brief).

PER CURIAM

Jan Wake appeals from the Division of Workers' Compensation's dismissal of his claim petition for medical and temporary benefits brought pursuant to N.J.S.A. 34:15-27, for review or modification of formal award, commonly referred to as a reopener. Wake concedes that "the only issue in dispute is whether [his] work accident and/or his treatment therefor[e] contributed to the current need for treatment." He argues, however, that the Division's prior order approving settlement, which awarded benefits for a work-related injury causing an "acute exacerbation of bi-compartmental degenerative joint disease," of the right knee, makes "axiomatic that the underlying condition is worsened and that the natural course of the condition is altered."

Wake's expert opined that when the surgeon repairing Wake's knee in 2008, following his work-related injury, removed both the posterior horn and the entire middle portion of the lateral meniscus, he removed almost all of the shock absorber between the two arthritic bones, thereby augmenting and materially exacerbating Wake's pre-existing arthritis. Wake contends that his expert's opinion is "the only opinion rendered in this case that is consistent with permanent exacerbation of degenerative arthritis," which he maintains is what the parties agreed Wake suffered as a result of a work-related injury by their earlier settlement.

The judge of compensation disagreed. In a comprehensive and well-reasoned opinion delivered from the bench, Judge Allen found, based on the report of the authorized treating surgeon and respondent Township of Toms River's expert, that Wake is not entitled to medical treatment or temporary benefits. The judge gave "greater weight to the testimony of [Toms River's expert] whose findings are basically in union with the authorized treating physician" that Wake's "need for treatment is causally related to his pre-existing degenerative arthritic condition rather than his work related injury," and that Wake "would be suffering from the same symptomology had the work[-]related injury not occurred."

Specifically, the judge stated he

believe[ed] [Toms River's expert], in that [Wake] has serious pre-existing arthritis which is acknowledged by all the examining doctors. The court rejects [Wake's expert]'s view that the removal of the cushion of meniscal material aggravated [Wake]'s arthritic condition. [Wake] was not benefitting from any cushion effect on his knee based upon [Toms River's expert]'s findings and therefore the removal of same made no difference. [Wake]'s condition is degenerative in nature and the court believes [Toms River's expert]'s view that [Wake]'s symptomology is associated with the continued degeneration of this very serious arthritic condition which is not the responsibility of respondent.

It is well settled that a worker seeking benefits based upon increased incapacity bears the "burden of proving by a preponderance of the evidence not only the fact of increase but also that it is causally related to the original accident and resulting injury." Schiffres v. Kittatinny Lodge, Inc., 39 N.J. 139, 148-49 (1963). Our scope of review in such 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.'" Lindquist v. City of Jersey City Fire Dep't, 175 N.J. 244, 262 (2003) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (internal quotations mark omitted)).

Because we conclude that the judge's findings of fact and conclusions of law are well supported by the record, we affirm substantially for the reasons expressed by Judge Allen in his well-reasoned oral decision of July 10, 2014.

Affirmed.