FRANK HODSON - v. C. ABBONIZIO CONTRACTORS, INC -

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2083-14T3

FRANK HODSON,

Petitioner-Respondent,

v.

C. ABBONIZIO CONTRACTORS, INC.,

Respondent-Appellant.

_______________________________

May 2, 2016

 

Argued April 18, 2016 Decided

Before Judges Lihotz and Fasciale.

On appeal from the Division of Workers' Compensation, Department of Labor and Workforce Development, Claim Petition Nos. 2012-24701; 2012-24758; 2012-24831; & 2013-18414.

Nancy L. Musser argued the cause for appellant (Marshall Dennehey Warner Coleman & Goggin, attorneys; Ms. Musser and Walter F. Kawalec, III, on the brief).

Justin M. Cohen argued the cause for respondent (Law Offices of Adam M. Kotlar, L.L.C., attorneys; Mr. Cohen, on the brief).

PER CURIAM

Respondent, C. Abbonizio Contractors, Inc. (Abbonizio or respondent), appeals from a November 21, 2014 order awarding petitioner, Frank Hodson, medical benefits under the New Jersey Workers' Compensation Act (the Act), N.J.S.A. 34:15-1 to -128. We affirm.

Petitioner was employed as a laborer and driver for respondent. Petitioner alleged he was injured as a result of lifting and throwing a traffic barrel on May 10, 2013. In July 2013, petitioner filed an Employee Claim Petition seeking workers' compensation benefits for his injury. In August 2013, he amended his petition to include another workers' compensation carrier.1 Respondent filed an answer admitting petitioner was its employee on the date in question, but denying that petitioner's injury "[a]rose out of and in the course of employment."

In May 2014, petitioner filed a motion for medical and temporary disability benefits "seeking additional surgical and/or other necessary evaluations and medical treatment for his persistent injury symptoms[,]" "continuation of temporary total disability wage continuation benefits as appropriate[,]" and a twenty-six week "wage statement and all medical records associated with this case." In June 2014, respondent filed an answer denying petitioner suffered a compensable accident.

Trial on petitioner's motion commenced on June 24, 2014, before the Honorable Audrey Kernan, Judge of Compensation. She rendered an oral decision in favor of petitioner and entered the order under review.

On appeal, respondent first argues the workers' compensation judge erred in determining that petitioner suffered a work-related injury. Specifically, respondent argues that the credible evidence suggested that petitioner did not suffer an injury on May 10, 2013, while working for Abbonizio. Second, respondent argues that petitioner's medical history suggests that Abbonizio should not be liable to provide him with workers' compensation benefits, especially surgical intervention, as he sustained injuries while working for previous employers.

It is undisputed that petitioner had suffered previous injury to his back that required medical attention. Petitioner injured his back in 2011 while working for another employer. He lifted a manhole lid, which was heavier than expected, and he "felt some lower back pain." The following week after that injury, he began to feel "pain down [his] leg[,]" specifically his right leg. Petitioner filed workers' compensation petitions against his previous employer for these injuries.

The testimony adduced by each side at trial was in sharp conflict. As respondent challenges the workers' compensation judge's factual determinations, we will summarize the relevant testimony of the witnesses.

Petitioner, on direct examination, testified that while working on May 9 into May 10, he threw a traffic barrel and "felt a small click[-]like pop in [his] back." Petitioner was able to finish his shift, and testified that he intended to notify his supervisor, Dan Trainer, but was distracted when he was informed that a "crash truck"2 was hit by a vehicle and he needed to respond immediately. Petitioner testified he was "[s]ore" after the injury and by the time he was driving home, he was "[i]n a lot of pain." Petitioner testified that he was able to work and perform similar duties the following week. On May 26, petitioner's co-worker, Ray Batot, saw him limping and asked him what was wrong, and petitioner informed him that he injured his back. When Batot saw petitioner limping, he told Tom Abbonizio, the son of C. Abbonizio and a member of management, that he would take the harder job to give petitioner a break. Petitioner testified that on May 26, he had a conversation with Tom Abbonizio and Trainer, during which he informed them of his back injury. By May 26 or 27, he was taking ten milligrams of Percocet in addition to over-the-counter pain medication. He also saw a doctor who provided him with two epidural injections after the incident.

After his injury, petitioner testified he was told by his doctor that he could not work. After he called Carmen Ferrillo from Human Resources at Abbonizio, she told him he could not collect workers' compensation because no incident report was filed, and that he had to seek unemployment benefits.

On cross-examination, petitioner reiterated that he did not inform his foreman until May 26 or 27 about his injury despite having his cell phone number. He maintained he had no time to inform Trainer because he had to respond to the accident. Petitioner also reiterated that on May 26 or 27, he told Batot that his back and legs were sore. Petitioner testified that he was not aware there were two hospitals he could go to in the event of injury, even though he knew Batot was taken to the hospital for an injury on May 10, 2013. Petitioner has not worked at any time after being laid off by respondent on June 4, 2013, but he did, in January of 2014, "return to the union hall and make [him]self available for work." Petitioner testified he has to use a board to keep his back straight when lying on the couch or in bed, and that he is limited in activities he can perform physically.

Several discrepancies emerged during cross-examination. Petitioner testified on direct that prior to the date of the incident, he was not taking any prescription medication. On cross-examination, he conceded he was taking Lyrica for pain as of May 10, 2013, and was also taking Percocet prior to May 10, 2013. He testified that his dosage of Lyrica and Percocet increased after the incident.

Petitioner testified that he built a patio in his yard prior to working for respondent. After the May 10 incident, petitioner sought medical care from numerous doctors, indicating to one of the doctors that his "back was hurting worse than it ever hurt before." Petitioner also saw his family doctor, Dr. Barbara Winfield, and told her he was injured at work as a result of throwing barrels.

Petitioner did not attempt to contact Trainer about the issue, explaining that he had deleted Trainer's number after he was laid off and that he was dealing with Ferrillo directly. On the same day petitioner contacted his lawyer, an adjuster from Abbonizio's workers' compensation insurance carrier arrived at his house. Petitioner did not know the adjuster was coming, and the adjuster told him she could not speak with him because he had contacted an attorney. Petitioner testified that his medical bills were not covered by his insurance company because they were deemed work related.

Petitioner, with the assistance of Dr. Winfield, filed for New Jersey Temporary Disability benefits. He received approximately $15,000 in benefits. Dr. Winfield indicated on the form for the disability benefits that the accident was not work related. Petitioner testified that the information was incorrect, but accepted the benefits nonetheless.

Petitioner also presented testimony from Batot, who confirmed that he was working with petitioner on the night of the incident and that he saw petitioner moving barrels. Batot testified that he had a conversation with Tom Abbonizio about petitioner's back. Tom Abbonizio asked Batot to move a truck, but Batot gave the job to petitioner instead due to his injury. He testified Trainer was not involved in that conversation.

On cross-examination, Batot testified that on the night in question he was taken to the hospital after being rear ended in the crash truck, but that he saw petitioner limping earlier in the night at the beginning of the shift. As to the brick patio, Batot testified that petitioner was still working on the brick patio at the time he was employed by Abbonizio.

Respondent produced Ferrillo and Trainer, both of whom provided different accounts than petitioner. Ferrillo testified that in June 2013, petitioner called and asked for the information for the workers' compensation insurance carrier, and that petitioner told her he was injured on May 14, 2013. She testified she told petitioner she would file a workers' compensation claim and talk to Trainer regarding the incident. She testified that Trainer denied petitioner had suffered an injury to his back; nevertheless, she called in a workers' compensation claim to Abbonizio's insurance carrier. She denied telling petitioner that he had to file for unemployment, or that he could not file a workers' compensation claim.

Trainer testified that he did not see petitioner move any barrels on May 10, 2013. He testified that on May 10, 2013, petitioner did not tell him that he was injured on the job, nor did any other member of the crew. He testified that petitioner had his phone number and could have called him if he were injured. He also claims petitioner never informed him of any incident on the job. As to petitioner and Batot switching roles, Trainer testified it was because they had walked a long distance and that petitioner's legs were hurting.

Finally, petitioner presented testimony from Dr. Joseph Zerbo, D.O., an expert in orthopedics. Dr. Zerbo evaluated petitioner on July 23, 2014. Dr. Zerbo conducted objective tests and reviewed MRI results from February 2011 and June 2013. In comparing the two sets of films, Dr. Zerbo concluded that there was a "worsening of the disease process," which the doctor attributed to the May 10, 2013 accident. Dr. Zerbo testified that surgery would be an appropriate option for petitioner.

We generally give "substantial deference" to agency determinations. Lindquist v. City of Jersey City Fire Dep't, 175 N.J. 244, 262 (2003) (quoting Earl v. Johnson & Johnson, 158 N.J. 155, 161 (1999)). "In workers' compensation cases, the scope of appellate review 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.'" Ibid. (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). We must defer to the workers' compensation judge's factual findings and legal determinations unless they are "manifestly unsupported by or inconsistent with competent relevant and reasonably credible evidence as to offend the interests of justice." Ibid. (quoting Perez v. Monmouth Cable Vision, 278 N.J. Super. 275, 282 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995)); see also Perez v. Capitol Ornamental, Concrete Specialties, Inc., 288 N.J. Super. 359, 367 (App. Div. 1996).

However,where the focus of the dispute is not on credibility but, rather, alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom, our function broadens somewhat. Where our review of the record "leaves us with the definite conviction that the judge went so wide of the mark that a mistake must have been made," we may "appraise the record as if we were deciding the matter at inception and make our own findings and conclusions." Snyder Realty v. BMW of N. Amer., 233 N.J. Super. 65, 69 (App. Div.[])[, certif. denied, 117 N.J. 165 (1989)].

 
[Manzo v. Amalgamated Industries Union Local 76b, 241 N.J. Super. 604, 609 (App. Div.), certif. denied, 122 N.J. 372 (1990).]

The Act requires employers to compensate employees who are injured in the course of employment. N.J.S.A. 34:15-1; see also Tlumac v. High Bridge Stone, 187 N.J. 567, 571-72 (2006). N.J.S.A. 34:15-1 states, in pertinent part

When personal injury is caused to an employee by accident arising out of and in the course of his employment, of which the actual or lawfully imputed negligence of the employer is the natural and proximate cause, he shall receive compensation therefor from his employer, provided the employee was himself not willfully negligent at the time of receiving such injury.

The Act is remedial legislation designed to be interpreted broadly to provide "coverage to as many workers as possible." Tlumac, supra, 187 N.J. at 571-72 (quoting Brower v. ICT Group, 164 N.J. 367, 373 (2000)). With the exception of a few clearly delineated exclusions stated in N.J.S.A. 34:15-7,3 "the injured employee is entitled to recover workers' compensation benefits regardless of fault." Id. at 572.

Employers are responsible to compensate employees for treatment relating to injuries suffered on the job. N.J.S.A. 34:15-15 states

The employer shall 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 . . . .

If the employer shall refuse or neglect to comply with the foregoing provisions of this section, the employee may secure such treatment and services as may be necessary and as may come within the terms of this section, and the employer shall be liable to pay therefor. . . .

As a threshold matter, respondent argues that we should not accord such substantial deference to the judge because the judge failed to properly evaluate the evidence. See Manzo, supra, 241 N.J. Super. at 609 (explaining that "where the focus of the dispute is not on credibility but, rather, alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom, our function broadens somewhat" (emphasis added)). This court in Manzo accepted the findings of fact by the workers' compensation judge, but disagreed with the conclusions drawn from those facts. Id. at 614. In the matter before us, however, defendant challenges the judge's role in finding the facts in the first instance, namely whether petitioner suffered an injury on May 10, 2013. Such a determination requires credibility findings and the evaluation of evidence as establishing the pertinent fact the judge will then use to draw a legal conclusion. Stated differently, unlike Manzo, which addressed the evaluation of established facts, this matter seeks review of a trial judge's initial factual findings and credibility determinations based on the trial proofs, which, if supported, are entitled to our deference.

Respondent first argues that petitioner presented insufficient evidence that he suffered a work-related injury on May 10, 2013. Respondent points first to the medical records introduced into evidence during Dr. Zerbo's testimony. Specifically, on cross-examination, respondent brought to light various documents from other doctors casting doubt on petitioner's claim he suffered an injury on May 10, 2013. Dr. Zerbo did not review these records prior to testifying. Respondent contends the medical records demonstrate "[p]etitioner's long history of chronic back pain prior to his employment with [] Abbonizio as well as other occurrences unrelated to his employment." However, Dr. Zerbo concluded that even after reviewing the records, his opinion as to the best treatment option for petitioner and his opinion as to the reason for the aggravation of the lumbar injury did not change.

Respondent also points to inconsistencies in petitioner's testimony, specifically petitioner's testimony on direct that he only took over-the-counter pain medication prior to the alleged incident, which was later contradicted on cross when petitioner testified he was taking prescription Lyrica and Percocet. Respondent further notes petitioner's testimony that he had finished the brick patio prior to working for Abbonizio, which contradicted Batot's testimony that he was still working on the patio while working for respondent.

Respondent also emphasizes that petitioner failed to advise Trainer as to his alleged injury despite having his contact information; that there was inconsistent testimony as to whether the workers were advised that they could go to the hospital; that petitioner claimed he was told by Ferrillo that he could not file a workers' compensation claim, but that an adjuster arrived at his house; that he claimed disability benefits with forms that indicated he did not suffer a work-related accident; and that he remained on the union's list as ready, willing, and able to work.

However, despite these inconsistencies, the workers' compensation judge found that petitioner's "injury was a result of work[-]derived injuries and that his current complaints were the result of a traumatic incident of a road laborer while working for respondent." The judge credited petitioner's testimony that he heard a "pop" in his back after throwing the barrel and that he spoke with Dan Trainer and Tom Abbonizio. This conclusion has support in the record. Petitioner related the following testimony on cross-examination

Q. And did you ever say to Dan Trainer, "[h]ey, I hurt my back lifting a barrel," during this period of time?

A. Yes.

Q. Yes?

A. On the 26th or the 27th.

Q. But you just said you didn't speak to Dan?

A. That[ is] what I was trying to tell you, you switched gears on me. When I was dumping the trucks, that wasn't the end of the day, that was in the beginning of the day, that lasted for four, five, six hours, towards the end of the day when I was done dumping the trucks, I came back up to the work, where the work was being done.

At that point I was in the lane working, Dan came to me somewhere around I'm going to say five o'clock in the morning, to give me my assignment for closing the lanes. He said to me, . . . "[w]hat[ is] this I hear your back is hurting? Tom Abbonizio made a call and said to me that you hurt your back."

. . . .

And [Petitioner] said to [Tom Abbonizio], "[t]he barrels." And he started making a joke out of it, he said that[ is] how he had hurt his back and his doctor gave him aspirin.

The workers' compensation judge further credited Batot's testimony that he saw petitioner moving barrels on the night of May 9th into May 10th and that petitioner told him about the injury to his back. The workers' compensation judge acknowledged the testimony to the contrary produced by respondent, but nevertheless found "both Mr. Batot and [petitioner]'s testimony consistent, credible, reliable and binding upon [r]espondent's obligations to [petitioner] required under [the Act]." Moreover, the workers' compensation judge credited Dr. Zerbo's testimony and found that he "credibly concluded that [petitioner] was injured from his employ."

Thus, the court considered all of the relevant evidence and testimony, and concluded that petitioner suffered a work-related accident on May 10, 2013. Whether petitioner was ultimately injured on the job is a threshold finding of fact that must be made by consideration of the relevant evidence. Here, as there is inconsistent testimony, the workers' compensation judge was essentially faced with a credibility determination as to whether petitioner was injured on May 10, 2013. After hearing each of the witnesses and considering the evidence, the workers' compensation judge concluded that petitioner suffered a work-related injury. We conclude there is no reason to disturb that finding.

Respondent claims that even if this court should find that petitioner suffered a work-related injury while working for Abbonizio, it should not be held liable to pay for the workers' compensation benefits, specifically the surgical intervention sought by petitioner. Respondent notes petitioner only worked for Abbonizio for approximately two months, and that Dr. Zerbo testified it is "almost impossible to tell whether [the injury was] just the normal process or if it was related to additional injury." As a result, respondent argues that to the extent petitioner needs additional treatment for his legs and back, it should not be responsible for those payments; instead, respondent argues petitioner's previous employers for whom he has worked for a significant period of time should be responsible to pay.

This issue is premature as the workers' compensation judge has not had the opportunity to apportion costs among the respondents in the case. The workers' compensation judge's decision makes clear that the issue of contribution for petitioner's injuries among the different respondents is still an open question that must be fully resolved at a hearing, which is currently stayed pending appeal. As the workers' compensation judge properly noted

Other respondents remain as carriers in this matter for a forthcoming hearing of contribution. This contribution hearing is currently on an Appellate stay pending the appeal decision in case the matter in chief is dismissed in full. This last incident [(the Abbonizio incident)] may be merely the ["]straw that broke the petitioner[']s back . . . ." Thus, while a compensable incident did incur, and treatment must be rendered, ultimately contribution may be allocated after such hearing, which is pending, is completed.

T

his appeal turns on whether there is sufficient credible evidence in the record to hold Abbonizio accountable for the injury. Here, there was sufficient credible evidence supporting the workers' compensation judge's decision to award petitioner benefits.

Affirmed.

1 Petitioner also filed claim petitions against his previous employer, originally filed in 2012, seeking workers' compensation benefits for injuries to his back and legs. These other respondents are not involved in this appeal but are awaiting a forthcoming contribution hearing which is currently stayed pending the outcome of Abbonizio's appeal.

2 A crash truck or TMA truck is used to protect workers on the highway from oncoming motorists by trailing behind the workers with flashing lights and providing a barrier.

3 The employer is exempted from providing benefits where the injury or death is self-inflicted, where the employee is intoxicated or under the influence, or where the employee failed to use proper safety equipment, or when the injury is caused by recreational activity not linked to the employee's job duties. N.J.S.A. 34:15-7. None of these exclusions apply in this case.