DIOMEDES AVILES v. NIELSON & BAINBRIDGE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1288-04T51288-04T5

DIOMEDES AVILES,

Petitioner-Appellant,

v.

NIELSON & BAINBRIDGE,

Respondent-Respondent.

________________________________________________________________

 

Argued December 6, 2005 - Decided

Before Judges Lisa and S.L. Reisner.

On appeal from Final Orders of the Division of Worker's Compensation, Department of Labor, 96-020053, 96-013669, 96-031170.

Otto Marcano argued the cause for appellant.

Daniel A. Lynn argued the cause for respondent (Braff, Harris & Sukoneck, attorneys; Christopher A. Diaz, on the brief).

PER CURIAM

In this worker's compensation case, petitioner, Diomedes Aviles, appeals from orders dismissing several claim petitions he filed. Between January and August 1996, petitioner filed four separate claim petitions. Each alleged occupational exposure during his years of employment with respondent, Nielson & Bainbridge, resulting in various disabilities. The first petition alleged orthopedic and neurological injuries to both hands. The second petition alleged a hernia and urologic disability. The third petition alleged disabilities to the lungs, left foot, ankle, knees, legs and right foot. The fourth petition initially alleged hearing loss, occupational nervousness and anxiety, and was later amended to include disability to both hands, the arm, carpal tunnel syndrome, lungs, pulmonary disease, left foot, left ankle, right foot, both knees, both legs, nervousness, anxiety, loss of sleep, hearing loss, urological disability, back, orthopedic, neurologic and internal.

The four petitions were tried together. Respondent admitted the existence of a compensable injury to petitioner's right hand. Based upon the proofs at trial, petitioner received a favorable award for carpal tunnel syndrome to both hands, and neither party has appealed from that determination. However, the judge of compensation found that petitioner failed to carry his burden of proving any other compensable disability and dismissed his remaining claim petitions.

On appeal, petitioner argues:

POINT ONE

THE FINDINGS OF THE COURT COULD NOT REASONABLY HAVE BEEN REACHED ON SUFFICIENT CREDIBLE EVIDENCE PRESENT IN THE RECORD.

POINT TWO

GIVEN RESPONDENT'S MEDICAL EXPERT'S TESTIMONY WHEREIN HE ACKNOWLEDGED PETITIONER SUFFERED FROM A BACK AND GROIN INJURY, CAUSALLY RELATED THE INCIDENT AND FOUND A DISABILITY RATING OF FIVE PERCENT FOR THE BACK AND TWO-AND-[ONE]-HALF PERCENT FOR THE GROIN, THE TRIAL COURT ERRED BY DISMISSING THE CLAIMS TO THE BACK AND GROIN AREA.

POINT THREE

THE COMPENSATION COURT'S DECISION MUST BE REVERSED BECAUSE IT FAILS TO SET FORTH BASIC FINDINGS OF FACT SUPPORTED BY THE EVIDENCE AND FAILS TO SUPPORT ITS ULTIMATE CONCLUSIONS AND FINAL DETERMINATION.

We are satisfied from our review of the record that the findings by the judge of compensation are amply supported by substantial credible evidence in the trial record as a whole. R. 2:11-3(e)(1)(D); Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). The arguments raised by petitioner on appeal lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Accordingly, we affirm. We add these brief comments.

Trial began before Judge of Compensation Bolstein on July 11, 2001, and continued before him on August 22, 2001, when petitioner testified. Judge of Compensation Bolstein then retired, and the trial resumed before Judge of Compensation Gottlieb on September 4, 2002, when petitioner gave further testimony. Trial continued on five separate dates, on which medical experts for both parties testified. Petitioner presented Dr. Edwin Turner regarding his orthopedic and hernia claims, and Dr. Malcolm Hermele regarding his pulmonary claim. Respondent presented the testimony of Dr. Arthur Canario regarding the orthopedic and hernia claims, Dr. Samuel Kahnowitz regarding the pulmonary claim, and Dr. Jeffrey Frankel regarding the neurologic claim. We note that petitioner presented no evidence regarding some of his claims, such as urologic and neurologic.

With respect to the hernia, there was no dispute that petitioner had a hernia, and according to respondent's medical expert, the hernia would result in some disability. However, the judge of compensation credited respondent's expert and found insufficient evidence from petitioner's testimony or that of his medical expert that the hernia was work related. The judge of compensation further found the hernia claim deficient because of a lack of notice to respondent. The judge of compensation summarized his findings regarding the hernia this way:

From the testimony and report in Evidence, it's abundantly clear that the Petitioner has a hernia. What is not clear is where it came from and when. I see nothing in the record to show that it was compensable. I note Dr. Canario's report relative to the history given by the client to him. He has no specific knowledge of a lifting episode which could explain the left-sided hernia. There is no objective medical findings to support an occupational neurologic disease. Even Dr. Turner diagnoses post traumatic injury involving left groin. There are notice requirements for hernias. Clearly, no notice was timely given. I do not accept Petitioner's assertion that he told Mrs. Vargas about it.

The record supports these findings.

 
With regard to the other disabilities petitioner claimed, the judge of compensation found a lack of credible, objective medical evidence to support them. In detailed findings, he explained why he attributed greater weight to the opinions rendered by respondent's experts than petitioner's and why he found that petitioner failed to carry his burden of proving work-related disabilities. The findings were made with sufficient specificity and are well supported by the record evidence. We will not disturb those findings on appeal.

Affirmed.

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5

A-1288-04T5

 

January 5, 2006