GERALD MURPHY v. GIAMBOI BROTHERS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2487-04T12487-04T1

GERALD MURPHY,

Petitioner-Respondent,

v.

GIAMBOI BROTHERS,

Respondent-Appellant.

___________________________________________

 

Submitted November 16, 2005 - Decided

Before Judges Fall and Lihotz.

On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, 2002-8179, 2002-4298 & 2002-10262.

Reilly, Supple & Wischusen, attorneys for appellant (Kathleen A. Hart, on the brief).

Tunney & Halbfish, attorneys for the respondent (Michael D. Halbfish, on the brief).

PER CURIAM

Respondent, Giamboi Brothers appeals from a Division of Workers' Compensation order issued January 5, 2005, granting petitioner, Gerald Murphy medical and temporary disability benefits, asserting the legal conclusions reached by the compensation judge were insufficient as a matter of law; we reverse and remand for further proceedings consistent with this opinion.

Murphy, while working for Giamboi, suffered a work-related injury to his right knee and back on February 27, 2001. His compensation claim was adjudicated on June 5, 2002, by an order approving settlement pursuant to N.J.S.A. 34:15-20. The awarded compensation based upon a determination of loss was described as "[twenty] percent of the right leg for residuals of sprains and strains and [a] tear of the medial meniscus and post operative residuals for a partial medial menisectomy and scarification, diffused synovitis, loss of range of motion, power and function." In addition, "[five] percent of partial total disability for post-traumatic contusions of the cervical and lumbar spine with diffused residuals of myositis and fibromyositis." Prior temporary disability payments of $11,904.43 were acknowledged as made and deemed adequate as paid. The partial permanent disability award was computed as ninety-three weeks at the rate of $158.23 per week, for a total award of $14,715. A voluntary payment had been made by Giamboi of seven and one-half percent, equating to $3,732.75; the partial total disability award then due and owing totaled $10,982.25. All authorized medical treatment was furnished and paid.

Murphy testified that in April 2003 after crossing a street, he stepped on the curb, his right leg buckled and he fell. He injured his right leg and ruptured his left Achilles tendon. Murphy contended his fall related to the continued problems and weakness of his right knee as a result of the initial injury suffered February 21, 2001.

On September 12, 2003, Murphy filed a pro se application to review and modify the prior award. Giamboi opposed the application, relying on a July 10, 2003 expert report by Dr. Arthur Canario. After a pre-hearing conference, Murphy retained counsel and on August 31, 2004, filed a motion for medical and temporary disability benefits claiming an aggravation of the prior right-knee injury and resultant left Achilles rupture, alleged to be causally related to the pre-existing condition.

Murphy attached reports from his examining physicians to support his motion. First, a report issued by Andrew Carollo, M.D. an orthopedic surgeon, dated March 21, 2003, related the findings noted after an examination on February 28, 2003. The report concluded Murphy's problems with his right knee were "directly attributable to the accident of [February 27, 2001]" and the lower back injury was described as "permanent." Dr. Carollo's examination and report preceded the April 2003 fall. Second, an addendum report by Dr. Carollo dated November 14, 2003, issued after an examination on that date, identified the April 2003 fall. In the course of the examination, Murphy's "right knee demonstrated a full range of motion with some tenderness." Dr. Carollo concluded Murphy "most likely re-injured the right knee" and recommended further tests.

Finally, Murphy submitted a report from Theodora J. Maio, M.D., a colleague of Dr. Carollo. She examined Murphy on March 10, 2004. Her report noted Murphy was last examined on January 14, 2004. No information about that visit was included. The report mentions the April 2003 fall only when discussing her review of "a report from Dr. Canario, dated July 21, 2003, noting that the patient had a fall resulting in a new derangement of the knee[,]" that "[t]his patient had a fairly recent re-injury to the right knee[,]" and "that the patient should be further evaluated with regard to new injury to the right knee." Dr. Maio concluded with the broad ultimate assertion: "[t]his patient's neck and lower back injuries are causally related to the accident of February 27, 2001." No opinion was expressed about whether the cause of the knee reinjury related to the February 27, 2001 accident.

Giamboi's opposition to Murphy's motion contained Dr. Canario's expert report dated July 10, 2003. He opined Murphy's fall had not occurred due to any instability in his right knee because he found no prior instability of the knee after treatment in 2001. His findings discerned Murphy's injury was a "new internal derangement of his knee." Dr. Canario did not dispute the fact that Murphy was injured and in need of treatment. The follow-up statement by Dr. Canario ascribed the fall as the direct cause of the ruptured left Achilles tendon and new internal derangement of his right knee. Therefore, he concluded the current condition was not related to the prior injury.

A hearing held before the compensation judge on October 20, 2004, provided Murphy's testimony. He complained of pain and discomfort since the April 2003 injury. Murphy discussed his work efforts: he was employed with Kramer Gunner for approximately ten days in August of 2002, but could not continue due to his inability to operate a forklift; he worked for Silicone from late March to early April 2003, but he could not perform the required amount of walking; and he remained unemployed having been unable to commence employment since his April 2003 fall due to his physical symptoms.

Nothing in the record reflects either party offered the medical reports attached to the respective pleadings into evidence. No objection was raised regarding the lack of expert testimony.

In the judge's decision of January 5, 2005, the issue framed was whether Murphy's injury experienced after the April 2003 fall was "a direct result of the original [work-related] injury" suffered on February 27, 2001. The judge reviewed the hearing transcripts from June 5, 2002, and October 20, 2004, as well as, the medical reports introduced into evidence to support the June 5, 2002 settlement. He also reviewed the recent medical reports and made the following pertinent findings:

When he testified on October of 2004, [Murphy] indicated that he didn't return to work immediately but after the last accident, he tried to work and had a problem with his knee. Now, again, I'm reading from my notes which I transcribed from the transcript. He tried to work and his knee kept buckling. He worked for two weeks in April of 2003. He stopped work because the knee buckled on the street. It [continued] to make clicking sounds. It irritated him. It's throbbing. He can't walk long distance[s] and he's seeking the treatment for his knee and mentioned the Achilles tendon was a problem. It started as a result of his knee buckling in April of 2003. He did indicate that he never, in fact, asked for treatment after the original settlement and both parties submitted medical support for their [positions], which I reviewed. Petitioner's doctor basically says yes, it's related and he needs treatment. The Respondent's doctor said, in fact, . . . that he does have the problem with his knee and he needs treatment but it's not related. So, the real question, as I said at the beginning, is it related or isn't it related? I believe it is. I'm satisfied that the incident, and I'll call it an incident as opposed to an accident, in April of 2003, was a direct result of the injury to [Murphy] back in 2001. He did indicate at the time of the settlement, he indicated in `02, that he continued to have problems. I think based on that it was not unreasonable to think that at some future date he might have a problem which was severe enough for him to want to come back and reopen. So, I'm satisfied that that's the situation. I am satisfied that Petitioner has made a case for additional treatment of some sort and I'm not a doctor and I'm going to defer to the doctors as to the treatment.

The judge further acknowledged Murphy had worked since the June 5, 2002 settlement, noting:

My recollection is that he worked on

at least two or three different jobs.

I understand that, however, there was

nothing in the testimony that I saw or

that I can recall that would indicate

that Petitioner suffered any particular

incident on any [of] these jobs that

would have caused this injury and this

is to a large degree and that's the reason

why my decision is what it is. If there

had been testimony and that he was working

on a job and whatever the day was, and he

twisted his leg where he hurt himself, then I think we may have a situation in where it

might be a new aggravation and not be an

aggravation of an old injury. From what I

heard, it appears to have been an

aggravation and related.

Thus, the court granted Murphy's motion and issued the January 5, 2005 order requiring Giamboi to furnish medical treatment and to pay temporary disability benefits for all periods during which Murphy was under treatment. The claim for temporary disability benefits from April 2003 was reserved as was Murphy's request for attorney fees and costs.

The notice of appeal was filed on January 24, 2005. On June 15, 2005, the Workers' Compensation judge denied Giamboi's application for a stay of the January 5, 2005 order. On June 23, 2005, we denied respondent's application for a stay.

On appeal, Giamboi presents these arguments:

POINT I

THE APPEAL IN THIS MATTER WAS APPROPRIATELY AND TIMELY FILED.

POINT II

THE WORKERS' COMPENSATION JUDGE ERRED IN ENTERING THE JANUARY 5, 2005 ORDER FOR MEDICAL AND TEMPORARY BENEFITS WITHOUT COMPETENT OBJECTIVE MEDICAL EVIDENCE.

POINT III

THE COMPENSATION JUDGE ERRED IS DISREGARDING PETITIONER-RESPONDENT'S SUBSEQUENT EMPLOYMENT AND INTERVENING ACCIDENT OF APRIL 2003.

The standard governing appellate review in workers' compensation matters is "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 and, in the case of agency review, with due regard also to the agency's expertise where such expertise is a pertinent factor." Sager v. O.A. Peterson Construction Co., 182 N.J. 156, 164, (2004) (citing Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). "An appellate court may not engage in an independent assessment of the evidence as if it were the court of first instance." Ibid. (citing, State v. Locurto, 157 N.J. 463, 471 (1999)).

We are first asked to address whether an order granting medical and temporary disability benefits upon a motion to review and modify the initial order for benefits, is appealable as of right per R. 2:2-3(a) or whether it is interlocutory, granted only upon leave. R. 2:2-4. It is well settled that an award for medical and temporary benefits made during the pendency of an initial workers' compensation case is appealable as of right. See Della Rosa v. Van-Rad Contracting Co., Inc., 267 N.J. Super. 290, 293-94 (App. Div. 1993); Hodgdon v. Project Packaging, Inc., 214 N.J. Super. 352, 358 (App. Div. 1986), certif. denied, 107 N.J. 109 (1987). In Della Rosa, Supra, the court stated:

An award for temporary medical and disability benefits shares many of the characteristics of a final judgment. It may be docketed in the Superior Court and executed upon. It is presently payable in the absence of a stay. A petitioner who receives such an award of temporary benefits receives the equivalent of a final money judgment, and a respondent should be entitled to pursue an appeal therefrom as a matter of right.

[267 N.J. Super. at 294.]

The procedural posture of this award, made after an application to reopen, should not alter the substantive rights of the parties. Disparate treatment of a party's right to appeal between an award of medical and temporary disability benefits entered after the initial complaint is filed and one entered after application to reopen the original order, would be both unreasonable and unwarranted. The reasoning expressed in Della Rosa remains applicable to the facts of this case. We hold that any award of medical and temporary benefits is appealable as of right.

Giamboi next questions the judge's conclusion that Murphy's current medical condition stems from the prior work-related injury. Giamboi explains Murphy's testimony alone could not support such a conclusion; medical evidence is necessary. Giamboi asserts the reliance by the judge on the initial medical reports from the June 2002 hearing was insufficient. So too, review and reliance on the conflicting medical reports not formally introduced into evidence during the hearing but attached to the filed motion papers was error. Without expert medical opinion as to medical causation, the findings are flawed.

Additionally, Giamboi asserts it did not waive its right to present or examine the medical experts. No party offered the medical reports as evidence. Had the issue of expert reports been raised, Giamboi state it would have insisted on live testimony from the doctors, affording it the right of cross-examination.

Murphy contests this position, suggesting Giamboi should have presented medical evidence at the hearing if it thought it relevant. Murphy argues that because Giamboi never requested the opportunity to present expert medical testimony,it is barred from raising this issue on appeal. Moreover, Murphy asseverates the judge's finding is reasonably supported by sufficient credible evidence adduced at the hearing.

The principle question for our determination is: In examining a request to modify a prior workers' compensation order of settlement, where the causation of the current medical condition is disputed, must there be medical evidence to support a finding that the injury necessitating medical treatment was causally related to the original injury? If so, are conflicting medical reports attached to pleadings sufficient to make this determination?

An order approving settlement "may be reviewed within [two] years from the date when the injured person last received a payment upon the application of either party on the ground that the incapacity of the injured employee has subsequently increased." N.J.S.A. 34:15-27. The burden of proof rests with the employee both as to the facts surrounding his injury and the proof that a work-related event contributed to his disability. Lindquist v. City of Jersey City Fire Dep't, 175 N.J. 244, 259 (2003).

The February 27, 2001 accident caused injury to Murphy's right knee. Murphy suggests this injury was not resolved so his subsequent fall, after his right knee buckled, and the medical conditions emanating therefrom, resulted from the original injury. The disagreement between the medical experts on the issue of causation of Murphy's recent injuries necessitated a plenary hearing. If the workplace injury contributed sufficiently to Murphy's current disability, employer liability is triggered. If the injury arose from circumstances outside of work, it is not compensable. Goyden v. State, 128 N.J. 54, 57 (1992). Thus, Giamboi's liability as Murphy's former employer turns on resolution of the question of medical causation.

Giamboi correctly points out no medical evidence was presented during the October 24, 2004 hearing; only Murphy testified. Medical reports were attached to support Murphy's motion per N.J.A.C. 12:235-3.2(b)(2), which "may constitute a prima facie case and may be sufficient basis for the issuance of an order compelling the respondent to provide the relief sought unless respondent files supporting affidavits or certifications to oppose said motion on a legal or factual basis, or files medical reports if there is a medical basis to oppose said motion." N.J.A.C. 12:235-3.2(f). Giamboi also, filed medical reports attached to its pleadings opposing Murphy's claim. The need for a formal hearing to resolve the conflict was presented.

Although deference is afforded the findings of the judge due to his expertise in workers' compensation matters, Close, supra, 44 N.J. at 598, "even a tribunal with expertise must predicate its ultimate determination on findings sustained by proofs to which it applies its special knowledge." Lewicki v. New Jersey Art Foundry, 88 N.J. 75, 90 (1981), (quoting Goldklang v. Metropolitan Life, 130 N.J. Super. 307, 311 (App. Div.), aff'd o.b., 66 N.J. 7 (1974)). While the rules of evidence do not control in workers' compensation proceedings, N.J.S.A. 34:15-56, the attachment of expert opinions to motion papers does not automatically make them part of the evidential record for review. This does not suggest medical causation issues cannot be considered on the basis of submitted medical reports, alone. Actual expert trial testimony is not always mandated to determine a motion for medical and temporary benefits. However, when faced with conflicting submitted documentation which, upon review, present a contradiction of material allegations, actual testimony is necessary.

The procedures governing a formal workers' compensation hearing apply to a contested motion for medical and temporary disability benefits. These procedures, as outlined in N.J.A.C. 12:235-3.10, define the manner of presentation of evidence for consideration by the judge of compensation. The record of this hearing reflects no stipulation was made to submit the medical reports without live testimony per N.J.A.C. 12:235-3.10(i). No party offered the medical reports obtained prior to the proceeding. Finally, no mention is made in the compensation court's decision identifying the formal submission of the expert opinions except the comment: "both parties submitted medical support for their [positions], which [were] reviewed."

Under the circumstances presented, utilization of these medical documents by the Judge of Compensation to render his findings, absent a stipulation to submit the reports as evidence and a waiver of cross-examination, was error. Had the Judge marked the medical reports into evidence during the course of the hearing upon Murphy's offer and Giamboi made no objection or request to present witnesses then the presumption that cross-examination was waived could reasonably be reached and the court would review that submitted evidence to determine if sufficient. Paco v. American Leather Mfg. Co., 213 N.J. Super. 90, 94 (App. Div. 1986).

The court however must enter such a finding. This requisite is highlighted in this matter because the medical reports contained conflicting conclusions. In Hogan v. Garden State Sausage Co., 223 N.J. Super. 364, 367 (App. Div. 1988) we noted:

The Judge of Compensation may not decide the motion [for medical and temporary benefits] by assigning greater weight to one physician's report or another, but must confine the inquiry at this point to a review of the face of the filed documents. If there are sufficient uncontradicted facts favoring relief, the judge may order such relief. If there are not, then, unless the respondent waives its right to cross-examination, the Judge must give the petitioner the opportunity to present witnesses for respondent's cross-examination and, if petitioner so elects, for direct examination. If the petitioner presents no witnesses, the motion for benefits must be denied. If witnesses are produced, then the Judge of Compensation will decide the motion after weighing all of the evidence properly produced by the parties.

In this matter, the only evidence which could properly be reviewed was the initial testimony at the June 2002 hearing, the medical reports admitted during that hearing and Murphy's current testimony. The failure to consider the current medical evidence, which would have set in motion the right to call the witnesses and the resultant right of cross-examination, requires the decision of the workers' compensation judge to be reversed.

One final concern. When making findings, the court must state with specificity its decision. Acknowledging his review of the medical reports filed with the pleadings, the compensation judge then noted the reports were in conflict as to causation. The court did not explicitly state its rationale resolving that conflict, but appears to have merely reached a conclusion. A compensation judge's findings must be supported by articulated reasons grounded in the evidence, Lewiki, supra,, 88 N.J. at 89-90, and a determination of medical causation must be based upon current competent credible medical evidence. Lindquist, supra. 175 N.J. at 260. In this matter in light of the clear dispute as to medical causation, assuming the reports were properly of record, testimony of the experts should have been required because the judge of compensation is not in a position to make a finding of medical causation based upon the lay testimony of the employee of his present symptoms and a review of the conflicting expert reports.

We find that to determine the medical causation of an injury incurred after the entry of the order approving settlement, that is, whether the employee's current injury results from and is related to the initial injury for which compensation was awarded, competent medical evidence must be presented. The experience of the employee and his lay opinion as to his condition is insufficient to prove medical causation and to trigger the legal liability of the employer. That expert evidence must be formally presented as part of the record and the judge's findings must articulate the findings presented by the evidence.

Based on our analysis, we need not consider Murphy's subsequent employment contributed to his current injuries', that issue may be considered at the remand proceedings. A hearing shall be scheduled within sixty (60) days.

 
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

(continued)

(continued)

17

A-2487-04T1

December 29, 2005