PAUL M. SPENCE, JR. v. RAYTHEON CO.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4747-05T24747-05T2

PAUL M. SPENCE, JR.,

Petitioner-Appellant,

v.

RAYTHEON CO.,

Respondent-Respondent.

_________________________________________________________

 

Submitted December 13, 2006 - Decided December 29, 2006

Before Judges Wefing and C.S. Fisher.

On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers Compensation, Claim Petition No. CP-96-016303.

Herbert I. Ellis, attorney for appellant (Gerald A. Dienst, on the brief).

Margolis Edelstein, attorneys for respondent (Michael S. Affanato, on the brief).

PER CURIAM

Petitioner Paul M. Spence, Jr. filed a workers' compensation petition alleging he slipped and fell on ice and snow on January 12, 1996 during the course of his employment with respondent Raytheon Co. Following a trial, the workers' compensation judge rendered an oral decision in which he found that petitioner was not a credible witness and concluded that, as a result, petitioner failed to prove he sustained a compensable injury during the course of his employment. Petitioner appeals the order of dismissal entered on March 15, 2006.

During the trial, the compensation judge was presented with evidence that petitioner had also filed a suit in the Law Division, wherein he sought damages based upon allegations that he was injured on December 26, 1995 when he fell from what he claimed to be a defective chair at a Red Lobster restaurant. Respondent also demonstrated at trial that petitioner's answers to interrogatories and other discovery exchanged during the Red Lobster suit, including petitioner's lengthy deposition, revealed that petitioner sought damages in the Red Lobster suit for the same alleged injuries upon which this workers' compensation claim was based. It was also shown at trial during this workers' compensation matter that petitioner's Red Lobster suit resulted in a defense verdict. This evidence was offered by respondent to show that petitioner was not credible because he was inconsistent in describing the nature of his injuries and physical complaints in these two actions and, upon receiving an adverse jury verdict in the Red Lobster suit, petitioner attempted to attribute all his alleged physical ailments to the Raytheon accident.

After considering this and the other evidence in the record, the compensation judge found petitioner's testimony not worthy of being credited because, among other things, his physical complaints regarding the alleged work-related accident drastically changed once petitioner's claim against Red Lobster failed. After recounting numerous examples of petitioner's conflicting testimony and prior inconsistent sworn statements, the compensation judge concluded:

There are other conflicts in petitioner's testimony, but again there are so many that it would not be possible to effectively list all of them in a reasonable period of time. The ones I have listed . . . make it very clear to me that petitioner has not been candid in his testimony and that he failed to sustain his burden of proving permanent disability as related to the Raytheon accident here in question.

Our standard of review requires that we determine whether the compensation judge's findings "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." Sager v. O.A. Peterson Constr. Co., 182 N.J. 156, 164 (2004) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). The compensation judge had the opportunity to observe the witnesses as they testified and to assess and make credibility findings. After carefully reviewing the record in light of the arguments raised on appeal, we conclude that the compensation judge's findings were based upon testimony which he found credible and are, thus, entitled to our deference.

 
Affirmed.

(continued)

(continued)

4

A-4747-05T2

December 29, 2006