EDWARD FLYNN v. HENKELS & MCCOY, INC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3794-05T13794-05T1

EDWARD FLYNN,

Petitioner-Appellant,

v.

HENKELS & MCCOY, INC.,

Respondent-Respondent.

_____________________________

 

Argued June 4, 2007 - Decided July 3, 2007

Before Judges Seltzer and C.L. Miniman.

On appeal from the New Jersey Department

of Labor, Division of Workers' Compensation,

2000-22054.

Thomas W. Polaski argued the cause for appellant (Robert A. Olkowitz, attorney; Jeffrey V. Stripto, on the brief).

Eric E. Fingerman argued the cause for respondent (Freeman, Barton, Huber & Sacks, attorneys; Mr. Fingerman and Michael Huber, on the brief).

PER CURIAM

Petitioner, Edward Flynn, appeals from a February 23, 2006, order of Emille R. Cox, Judge of Workers' Compensation, that awarded petitioner, for the reasons set out in the judge's written January 21, 2006, opinion, "22 1/2% partial total for residual of low back surgery." We affirm.

Judge Cox heard testimony from petitioner and from his experts, Dr. Floyd Krengel, an orthopedist, and Dr. Paul J. Kiell, a neuropsychiatrist, as well as respondent's experts, Dr. Kenneth C. Peacock, an orthopedist and Dr. Charles R. Effron, a psychiatrist and neurologist. The judge summarized the conclusions of the experts: "Petitioner's experts estimate Petitioner to be 40% disabled orthopedically and 50% neurologically and 30% neuropsychiatrically" while "Respondent's experts estimate Petitioner to be 5% disabled orthopedically and find no psychiatric disability."

The judge found no psychiatric disability and that finding is not challenged on appeal. The judge then proceeded to deal with the orthopedic and neurological disability. He concluded that:

This court also agrees with Respondent's assertion that a separate award for a neurological disability is not warranted in this case. Most damaging to Petitioner's claim for such an award, is the testimony of his own expert who, when asked on direct examination, the difference between an orthopedic and neurological disability, responded with refreshing candor:

They're not different, really . . . I think the courts are behind the times in trying to make them separate. If this person had an illness like Parkinson's or multiple sclerosis or had a stroke, then that's separate . . . I don't think they should be separate . . . but since the court still thinks there is, I have given a neurologic diagnosis. So I'm putting in a pitch for enlightenment, but he does have a lumbosacral radiculopathy.

This Court considers Dr. Kiell's contention that it is the courts that adhere to the stated distinction to be debatable. Nevertheless I willingly embrace the invitation to enlightenment and adopt his conclusion that there is no such distinction in this case. Indeed, Petitioner testified to no deficits that approach the debilitating conditions associated with the referenced Parkinson's disease or multiple sclerosis. There will be no separate award for neurological disability.

The court then dealt with the degree of disability and agreed with "[r]espondent's contention that Petitioner obtained a very good result [because it] is supported by the treatment records." The judge concluded: "Based on all of the testimony and evidence presented, I find Petitioner's permanent partial disability to be 22 1/2%."

On appeal, petitioner asserts that Judge Cox failed to make sufficient specific factual findings to support his decision as to the extent of petitioner's disability and that he was required to award a neurological disability. We disagree with both contentions.

Our review of a decision of a judge of compensation is limited. We determine only "'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." Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).

Nevertheless, we recognize the obligation of the judge to provide "articulated reasons grounded in the evidence," for the decision. Lewicki v. N.J. Art Foundry, 88 N.J. 75, 89-90 (1981). The judge here referenced the result petitioner had obtained and his testimony regarding his complaints. He also considered the opinions of the testifying experts. Given that evidential base, the judge quantified the disability at a point slightly lower than the mid-range between the competing experts. Under the circumstances, the judge's reference to the testimony was sufficient to discharge his obligation to explain his decision.

We also reject petitioner's claim that the judge failed either to award a neurological component or to explain sufficiently why he did not. The judge specifically referenced Dr. Kiell's contention that the orthopedic and neurological disability sustained by plaintiff were "not different really." We note that Dr. Kiell, in addition to the testimony quoted by the judge in his opinion, had explained that the lumbosacral radiculopathy exhibited by petitioner "is something the orthopedists usually examine for and would not necessarily send a person to a neurologist for." That testimony would be sufficient to support the judge's conclusion that the neurological disability was subsumed by and completely overlapped the orthopedic symptoms.

Indeed, respondent's testimony from Dr. Effron was to the effect that the "neurological disability was of 2[%] and I felt there was overlapping with the orthopedic disability." When asked why he believed "it's overlapping with an orthopedic disability," Dr. Effron explained that "my estimate of disability was really based on pain since there were no neurological deficits and orthopedic disability similarly encompasses the same factors of pain that I am using to reach a conclusion of disability."

Accordingly, both petitioner and respondent produced medical experts who indicated that the distinction between neurological and orthopedic deficits in this case was artificial and described exactly the same disability. Moreover, because the lumbosacral radiculopathy, which respondent attempts to characterize as neurological, is something that would usually be treated by orthopedists, the record amply supports the judge's refusal to enter a separate neurological component of petitioner's disability.

 
Affirmed.

(continued)

(continued)

6

A-3794-05T1

 

July 3, 2007