ELIJAH DAVIS v. DROGIN BUS COMPANY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1991-04T31991-04T3

ELIJAH DAVIS,

Petitioner-Respondent,

v.

DROGIN BUS COMPANY,

Respondent-Appellant.

__________________________________________

 

Submitted: December 5, 2005 - Decided:

Before Judges A. A. Rodr guez, C. S. Fisher and Yannotti.

On appeal from the Division of Workers' Compensation.

Francis T. Giuliano, attorney for respondent-appellant.

Leonidas P. Doumas, attorney for petitioner-respondent.

PER CURIAM

Petitioner, Elijah Davis, filed a workers' compensation occupational disease claim. He alleged that, starting six years after he commenced work as a driver for respondent, Drogin Bus Company (Drogin), he was exposed to conditions that caused him to develop pulmonary disease. Davis worked for Drogin from 1966 until 1997, when Drogin ceased operations. It is conceded that he had no pulmonary medical treatment during the period of employment, although he was treated for "shortness of breath." At the time of trial, Davis was not being treated for a pulmonary condition.

The matter was tried. The judge heard testimony from petitioner as well as four expert witnesses. Malcolm H. Hermele, M.D., a specialist in internal medicine, and Bruce Johnson, M.D., testified for petitioner. Joel L. Duberstein, M.D., and Sydney E. Bender, a psychiatrist and neurologist, testified for Drogin.

Dr. Hermele opined that "Davis has chronic bronchitis and restrictive pulmonary disease for which I would estimate a permanent pulmonary disability of 30% of total." An x-ray of Davis's chest revealed that, "the right diaphragm is elevated over the left diaphragm by 4 cm."

Dr. Johnson opined that Davis has generalized anxiety disorder related to his occupation. Dr. Johnson ascribed a disability of "20% of total" to this condition.

Dr. Duberstein testified that Davis is significantly obese. Based on pulmonary function tests, Dr. Duberstein opined that Davis had "normal ventilatory function." He found this very significant in light of Davis' obesity and history of smoking. A chest x-ray revealed that Davis' chest wall is "very heavy," and the lung fields are clear. Dr. Duberstein concluded that Davis was not suffering from "chronic irritative industrial pulmonary disease or related disability."

Dr. Bender examined Davis and found no objective evidence of permanent neurology or neuropsychiatric disability resulting from occupational exposure.

The compensation judge entered judgment in favor of Davis finding a disability of "12 % partial total, pulmonary in nature for a chronic bronchitis and restrictive pulmonary disease." The judge awarded seventy-five weeks of compensation at $132 per week for a total award of $9,900.

On appeal, Drogin contends that: (1) the judge erred in failing to appreciate that the pulmonary function testing by both of the medical experts affirmatively disproved the presence of chronic bronchitis in the petitioner; (2) each of the grounds advanced by the judge for rejecting Dr. Duberstein's test results are not supported by the record; (3) at most, petitioner's chest x-rays establish an anatomical change but do not constitute demonstrable objective medical evidence of a restriction in the functioning of petitioner's lungs; and (4) Dr. Hermele's pulmonary function test results prove nothing more than a minor disability, not compensable under N.J.S.A. 34:15-36.

From our review of the entire record, we conclude that the judge's findings are supported by substantial evidence. There is no basis for rejecting these findings, or the conclusions based upon them, especially in light of the workers' compensation judge's administrative expertise. Close v. Kordulak Bros., 44 N.J. 589, 598-99 (1965). The appellant contends that the judge's disregard for Dr. Dubenstein's opinion is not supported by the record. We reject this contention. The judge accorded the testimony of Dr. Hermele greater weight. That is the proper role for the factfinder. Credibility and assessment of the weight to be accorded proofs is always for the factfinder to determine. Ferdinand v. Agric. Ins. Co. of Watertown, N.Y., 22 N.J. 482, 492 (1956). In fact, "a case may present credibility issues requiring resolution by a trier of fact even though a party's allegations are uncontradicted." D'Amato by McPherson v. D'Amato, 305 N.J. Super. 109, 115 (App. Div. 1997). Here, the judge was faced with opposite opinions regarding the existence of pulmonary disease. It is "improper for the Appellate Division to engage in an independent assessment of the evidence as if it were the court of first instance." State v. Locurto, 157 N.J. 463, 471 (1999). Where the lower court has made credibility determinations, even without specifically articulating detailed findings of credibility, and where the reasons for its determination may be inferred from the record, we are not free to make its own credibility determination. Id. 472-75. See also Close v. Kordulak Bros., 44 N.J. at 599, and DeAngelo v. Alsan Masons, Inc., 122 N.J. Super. 88, 89-90 (App. Div.), aff'd o.b., 62 N.J. 581 (1973).

 
Affirmed.

(continued)

(continued)

5

A-1991-04T3

December 21, 2005