PIETRO PEZZINO v. LIBERTY CONTRACTING CORPORATION

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1601-06T51601-06T5

PIETRO PEZZINO,

Petitioner-Respondent,

v.

LIBERTY CONTRACTING CORPORATION,

Respondent-Appellant.

_______________________________

 

Submitted May 21, 2007 - Decided June 5, 2007

Before Judges Lintner and S.L. Reisner.

On appeal from the Department of Labor, Division of Workers' Compensation, Nos. 1999-11892, 1999-11969.

Tompkins, McGuire, Wachenfeld & Barry, attorneys for appellant Liberty Contracting Company as insured by Reliance Insurance Co. (Joseph K. Cobuzio, of counsel; Gregory Lois, on the brief).

Hack, Piro, O'Day, Merklinger, Wallace & McKenna, attorneys for respondent Liberty Contracting Company as insured by ITT Specialty Risk Services (John E. Burgio, of counsel; Erin Burke Cirelli, on the brief).

Schenck, Price, Smith & King, attorneys for respondent Pietro Pezzino (Richard J. Toniolo, on the brief).

Stuart Rabner, Attorney General, attorney for respondent Second Injury Fund (Linda Schober, Deputy Attorney General, on the brief).

PER CURIAM

This is a workers' compensation case in which the employee, petitioner Pietro Pezzino, made three claims resulting from injuries at his workplace, Liberty Contracting Company (Liberty). The appellant is his employer Liberty "as insured by" Reliance National Insurance Company, the workers' compensation insurer that covered Liberty at the time of the first and second injuries.

Following a lengthy hearing, Judge Farrington issued a cogent oral opinion on June 7, 2006, concluding that petitioner was totally and permanently disabled. He attributed two-thirds of petitioner's total disability to the second injury, in which petitioner fell head-first into a dumpster filled with demolition debris, and one-third to the third injury in which petitioner was hit in the eye by a piece of metal. The judge did not attribute any permanent disability to the first accident, in which petitioner suffered a lacerated forearm. However, he awarded petitioner two weeks of temporary disability as a result of the first accident. Liberty appeals from Judge Farrington's September 20, 2006 order memorializing his determination. We conclude that Judge Farrington's decision was supported by substantial credible evidence and affirm. See Close v. Kordulak Bros., 44 N.J. 589, 598-99 (1965).

I

Petitioner, whom the judge found credible, is an Italian immigrant who does not speak or read English and has a fifth grade education. He worked as a laborer in construction demolition. As the judge concluded, petitioner has a tremendous work ethic and was economically as well as psychologically motivated to continue working as long as possible despite physical pain.

Petitioner incurred three work-related injuries within a span of a few months. In September 1998, he cut his arm on a metal duct. The wound was stitched and he returned to work after two weeks. In October 1998, he fell six feet off a platform head-first into a dumpster full of demolition debris. He injured his head, neck and back, and was out of work for eight days. He then returned to work for one day, but experienced too much pain to continue working. He therefore went home and stayed out of work for another week. The employer did not pay him when he was out of work. He had a mortgage to pay and a son to put through school. And, as his son testified, petitioner's work was his life. Petitioner went back to work, despite severe pain in his neck and back.

In January 1999, petitioner was hit in the right eye with a piece of metal and lost virtually all of the vision in that eye. He also experienced some neck pain, which one of his experts, Dr. Maio, described as possible whiplash from his neck snapping back when the metal hit his eye. Petitioner was never able to return to work. After the third injury, he was treated for severe neck and back problems. MRI's revealed herniated discs in his cervical and lumbar spine. He was diagnosed with radiculopathy, or radiating pain caused by nerve compression. He also suffered from depression, due to his inability to work.

Petitioner's experts who testified on the issue all agreed that the permanent damage to his neck and back was caused by the October 1998 accident. At most, his experts testified that he might have suffered a temporary aggravation to his neck from the January 1999 injury. Petitioner's treating orthopedic doctor, Dr. Lambrakis, explained why petitioner would have sought treatment for the neck and back problems after the eye injury rather than immediately after the October accident. He testified that petitioner would have experienced greater pain from the neck and back injuries once he stopped working due to the eye injury, because working would tend to mask the neck and back pain. All of his experts testified that petitioner was 100% permanently disabled.

Liberty presented one expert, Dr. Canario, who testified that petitioner's herniated discs were degenerative in nature rather than caused by trauma, and testified that at most petitioner was 2.5% disabled as a result of orthopedic injuries. However, Dr. Canario apparently did not know that petitioner fell from a six-foot height into a dumpster and admitted on cross-examination that a fall from such a height could cause a herniated disc. Dr. Canario, who testified in 2006, had not examined petitioner since 2002, had not reviewed the transcripts of petitioner's hearing testimony, and had not reviewed the MRI films.

II

On this appeal, Liberty raises the following issues:

THE DECISION OF THE JUDGE OF COMPENSATION AS TO AMOUNT AND TYPE OF PERMANENT DISABILITY, CAUSAL RELATIONSHIP, AND APPORTIONMENT OF DISABILITY IS NOT SUPPORTED BY THE RECORD.

A. THE JUDGE OF COMPENSATION ERRED BY FINDING PERMANENT ORTHOPEDIC AND NEUROLOGIC DISABILITY REFERABLE TO THE OCTOBER 26, 1998 INCIDENT (C.P. 1999-11892).

B. THE JUDGE OF COMPENSATION FAILED TO RELY ON SUFFICIENT CREDIBLE EVIDENCE IN FINDING THE AMOUNT OF DISABILITY ATTRIBUTABLE TO THE FINAL INCIDENT.

C. SUPERSEDING INJURY - THE PETITIONER'S ALLEGED PERMANENT DISABILITIES ARE DUE TO HIS SUPERSEDING INJURY OF JANUARY 29, 1999.

D. PETITIONER'S EXPERT'S OPINIONS ARE "NET OPINIONS" AND SHOULD BE DISREGARDED BY THE COURT.

Based on our review of the record, we find no merit in any of these contentions. None of Liberty's arguments warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), beyond the following comments.

Our review of Judge Farrington's decision is limited to determining whether it is supported by substantial credible evidence. Close v. Kordulak Bros., supra, 44 N.J. at 498-99. We defer to the judge's determinations as to witness credibility. Ramos v. M & F Fashions, Inc., 154 N.J. 583, 594 (1998). This case was a credibility contest between petitioner's several experts, among them his treating physician Dr. Lambrakis, and Liberty's expert Dr. Canario. Having read the entire hearing transcript we find no basis to disturb the judge's determination that petitioner's experts were credible and Liberty's expert was not. Contrary to Liberty's appellate argument, petitioner's experts did not render net opinions but rather provided cogent, well-explained testimony based on medical evidence. See Buckelew v. Grossbard, 87 N.J. 512, 524-25 (1981). We also defer to the judge's conclusion that petitioner was a credible witness.

The judge's decision to attribute a greater percentage of petitioner's disability to the fall in October 1998 is consistent with the weight of the evidence and with logic. It is far more likely that petitioner would have incurred severe neck and back injuries from falling six feet head-first into a dumpster than from being hit in the eye with a piece of metal. Given petitioner's employment performing heavy physical labor, there is nothing incongruous in his experts' opinions that the neck and back injuries would eventually have resulted in his total inability to work even if he had not incurred the eye injury. And, given petitioner's limited education and employment skills, his economic need, and his strong work ethic, it is entirely believable that he would return to work after the October 1998 injury despite severe pain.

Affirmed.

 

In addition to refusing to pay petitioner for any time lost from work, Liberty did not offer petitioner any continuing medical treatment after the October 1998 accident and denied that it was a compensable accident.

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A-1601-06T5

June 5, 2007