DENNIS OBADO v. LAB SUPPORT, INC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0795-05T20795-05T2

DENNIS OBADO,

Plaintiff-Appellant,

v.

LAB SUPPORT, INC.,

Defendant-Respondent.

________________________________________________________________

 

Submitted February 27, 2007 - Decided March 28, 2007

Before Judges Kestin and Graves.

On appeal from decision of New Jersey

Department of Labor and Workforce

Development, Division of Workers'

Compensation, CP# 2003-7933.

Dennis Obado, appellant pro se.

Tompkins, McGuire, Wachenfeld & Barry,

attorneys for respondent (Joseph K. Cobuzio,

of counsel; Gregory Lois, on the brief).

PER CURIAM

This is a workers' compensation appeal. On March 26, 2001, petitioner Dennis Obado (Obado) was a microbiology technician employed by defendant, Lab Support, Inc. (Lab Support) when some chemicals squirted into his right eye and his face during a laboratory procedure. Obado sought workers' compensation benefits, alleging that he suffered permanent disabilities to his "left eye" and "nervous system." He appeals from a judgment entered by the Division of Workers' Compensation on July 28, 2005, dismissing his claim petition. We affirm.

On appeal, Obado presents the following arguments:

POINT I

CLAIMANT'S MEDICAL EXPERTS ESTABLISHED A FAIR PR[E]PONDER[A]NCE OF EVIDENCE REGARDING THE BURDEN OF PROOF REQUIRED TO PROVE THAT PROXIMATE RELATIONSHIP OF THE INJURY SUSTAINED ON THE JOB FOR THE CHEMICAL SPILL IN THE EYES.

POINT II

THE TRIAL JUDGE OVERLOOKED THE PSYCHIATRIC COMPONENT OF THE EYE INJURY AND THE EXTREME PSYCHOLOGICAL EFFECT AND POST TRAUMATIC STRESS IT HAS CAUSED UPON ME WITH RESPECT TO MY REASONABLE WORRY THAT THE DRY EYE CAN LEAD TO BLINDNESS.

POINT III

PRESIDING JUDGE IMPROPERLY RELIED ON THE TESTIMONY OF RESPONDENT'S [OPHTHALMOLOGIST] WHO[SE] MISREPRESENTATION OF A MATERIAL FACT UNDERMINED RESPONDENT'S EXPERT'S CREDIBILITY AND WHO[SE] MEDICAL REPORT IS INCONSISTENT WITH HIS TRIAL TESTIMONY REGARDING A TEAR TESTING TEST, THAT WAS NEVER CONDUCTED DURING HIS PHYSICAL EXAMINATION OF ME.

POINT IV

TRIAL JUDGE'S DECISION WAS NOT ROOTED IN FAIRNESS, HIS DECISION IS BASED ON BIASED TESTIMONY FROM RESPONDENT'S EYE EXPERT AND PREJUDICIAL STATEMENTS RAISED BY RESPONDENT'S ATTORNEY THAT ARE TOTALLY IRRELEVANT TO THE WORKMEN[S'] COMPENSATION CLAIM.

POINT V

TRIAL JUDGE ERRONE[O]USLY SPEAKS OF A PREJUDICIAL "PRECONCEIVED NOTION" REGARDING MY MINDSET WHEN I WAS EVALUATED BY RESPONDENT'S EYE EXPERT, WHO[SE] CREDIBILITY IS QUESTIONABLE SINCE HE MISREPRESENTED A MATERIAL FACT AT TRIAL[.]

POINT VI

THE ATTORNEY FOR RESPONDENTS MADE PREJUDICIAL STATEMENTS REGARDING MY CLAIM FOR WORKMEN[S'] COMPENSATION THAT BIASED THE JUDGE[']S ABILITY TO EVALUATE MY CLAIM FAIRLY ACCORDING TO STATUTORY LAW, PROCEDURAL DUE PROCESS AND THE MANDATES OF A FAIR TRIAL AS WELL AS EQUAL PROTECTION OF THE FOURTEENTH AMENDMENT[.]

Based on our review of the record, we are satisfied that the factual findings and legal conclusions by the judge of compensation are amply supported by substantial credible evidence in the record. R. 2:11-3(e)(1)(D); Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). Accordingly, we affirm the judgment dismissing Obado's petition substantially for the reasons expressed by Judge Mullen, with only the following comments.

The case was tried on various dates commencing on August 26, 2004, and concluding on May 5, 2005. Throughout the trial, Lab Support denied that Obado suffered any permanent injuries as a result of the incident on March 26, 2001. Following the submission of post-trial briefs by counsel, the compensation judge rendered an oral decision on July 28, 2005, describing Obado's testimony as "vague" and concluding Obado was not a credible witness:

Again, his testimony putting it altogether is not convincing at all. Then he testified again a second day of trial as his condition was getting worse when he was asked if there was any change in the past few months.

Again, I find this not to be credible. As a matter of fact, one of the medical records of St. Peter's indicating that he had mild problems in his left eye and assuming for the moment he had some insult to his left eye, I'm not sure it went beyond that particular time in March of '01 although I don't have to make a ruling as to whether that in fact happened or not.

He continued in his testimony by indicating "the dryness has gotten worse at this point. I'm concerned about possible blindness in that eye, you know, that's really my major concern." This testimony is incredible. The case again is not a loss of vision case and yet the petitioner thinks he is going blind. There's no basis in the medicals for such a concern.

. . . .

He also admitted he didn't have any complaints with his left eye at the time of the incident and he also indicated that he had complaints even on the 29th of March when he had one of his visits. I think that is the second visit to the care station. He had complained only about the right eye and he also admitted to a discharge to full duty with no limitations after the second visit to the respondent's clinic or care center and he also admitted on cross-examination that his visit on 3-31-01 at St. Peter's was with reference to complaints only with reference to his right eye.

The compensation judge also found the testimony of Dr. Goldfeder, Lab Support's medical expert, was more credible and persuasive than the testimony of Obado's experts. The compensation judge's findings regarding the expert medical testimony included the following:

Dr. Goldfeder testified on April 14, 2005[,] as an expert in ophthalmology and his report was dated 6-20-03. He found no conjunctivitis, normal visual acuity with corrective lenses and he indicated findings in both eyes and he found all to be normal. He also indicated as part of his testimony that he found no red eye, no inflamed retina, no extra tearing, no tearing flowing down his eyes. None of that was present in his examination. Also, he indicated that quote, "this man has completely normal eyes with the exception that he needed glasses the same way I do and therefore with the exception of eye glasses on which we call retractive, I found him to have normal eyes. Therefore, there was no organic anatomical or physiological explanation for the above described complaints[."]

I found this doctor's testimony, Dr. Goldfeder, to be credible and more credible th[a]n the petitioner's doctor for the reasons that I eluded to before vis- -vis my analysis of Dr. Klein's testimony. I also find that the testimony of Dr. Goldfeder makes more sense considering Mr. Obado's testimony presented in this trial and I find his testimony again more credible th[a]n that of Dr. Klein since I also find Dr. Klein's testimony to be lacking in credibility to some extent by the testimony that I referred to before and also the objective testimony that Dr. Klein provided, I believe was somewhat limited to the Schirmer test, . . . and did not find his testimony to be as extensive as the respondent's doctor and also . . . his testimony was less convincing.

I also find that Dr. Klein's testimony regarding blurred vision to be subject to some criticism and I note that Dr. Wong had indicated in her testimony as I mentioned before that if one complains of blurred vision and again their eyes are 20/20 or . . . the blurred vision would be in her opinion a subjective complaint and not objectively oriented.

The compensation judge also concluded, based on Dr. Eisenberg's report, that there was no objective evidence that Obado had sustained a psychological disability as a result of the incident on March 26, 2001.

In a permanent partial disability case, such as this, where the petitioner is not seeking total disability, the petitioner must satisfy a two-prong test. Perez v. Panasote, Inc., 95 N.J. 105, 116 (1984). First, a petitioner must make a "satisfactory showing of demonstrable objective medical evidence of a functional restriction of the body, its members or organs." Ibid. This showing may not "rest upon petitioner's subjective complaints." Ibid. Second, a petitioner "must establish either that he has suffered a lessening to a material degree of his working ability or that his disability otherwise is significant and not simply the result of a minor injury." Id. at 118.

A petitioner's right to recover for permanent partial disability includes claims for psychiatric injury. But an award for permanent partial psychiatric disability must be based on "objective medical evidence of a fairly high quality" that goes beyond the "mere parroting" of the petitioner's subjective complaints. Saunderlin v. E. I. DuPont Co., 102 N.J. 402, 418 (1986).

The scope of our review from a judgment of the Division of Workers' Compensation is limited. We may not substitute our own factfinding for that of the judge of compensation, even if we are inclined to do so. Lombardo v. Revlon, Inc., 328 N.J. Super. 484, 488 (App. Div. 2000). Our review is limited "to a determination of whether the findings of the judge of compensation could reasonably have been reached on sufficient credible evidence present in the whole record, after giving due weight to his expertise in the field and his opportunity of hearing and seeing the witnesses." De Angelo v. Alsan Masons, Inc., 122 N.J. Super. 88, 89-90 (App. Div.), aff'd o.b., 62 N.J. 581 (1973).

In this case, the compensation judge had sound reasons for concluding that Obado's testimony was lacking in credibility, and he set forth adequate reasons for rejecting the testimony of Obado's experts and accepting the opinions provided by Lab Support's experts. The compensation judge concluded that Obado failed to present objective medical evidence of a permanent injury to his eye, and he also failed to present objective medical evidence of a permanent psychiatric disability. Based on our review of the record, we are satisfied that Judge Mullen's findings and conclusions, including his credibility assessments, are supported by the record. Accordingly, we perceive no legitimate basis to intervene.

Affirmed.

 

Defendant is also referred to as On Assignment, Inc. and On Assignment Lab Support.

(continued)

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A-0795-05T2

March 28, 2007