COREY CUCCINIELLO v. THE SPORTS AUTHORITY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1235-07T31235-07T3

COREY CUCCINIELLO,

Petitioner-Respondent,

v.

THE SPORTS AUTHORITY,

Respondent-Appellant.

________________________________________________________________

 

Submitted September 9, 2008 - Decided

Before Judges Wefing, Parker and Yannotti.

On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, Docket No. 2006-3843.

Tompkins, McGuire, Wachenfeld & Barry, attorneys for appellant (Gregory Lois, on the brief).

Greenbaum Rowe Smith & Davis, attorneys for respondent (Alan S. Pralgever, Gary L. Koenigsberg and Dana L. Wefer, on the brief).

PER CURIAM

In this workers' compensation case, respondent The Sports Authority, a retail sporting goods chain, appeals from a judgment entered on October 30, 2007 granting petitioner's motion to compel respondent to pay medical and temporary disability benefits for injuries sustained while petitioner was working. We affirm.

On December 22, 2004, petitioner was struck by a forklift and pinned against a wall while he was working. He was not immediately treated for the injury, but four days later, he visited his own doctor when he experienced pain in his right hip and groin area. An X-ray indicated no fracture, and anti-inflammatory and pain medications were prescribed by Dr. Paul Lombardi, an orthopedic surgeon. An MRI of petitioner's right hip indicated an anterior labral tear. Dr. Lombardi referred petitioner to Dr. Brian Kelly, a hip specialist in New York. Dr. Kelly initially treated petitioner conservatively with injections and chiropractic treatment. Nine months after the accident, in September 2005, petitioner was authorized to return to work part time with restrictions not to lift anything over twenty pounds and to remain seated. Petitioner was authorized to return to work full time with no restrictions in December 2005. Thereafter, petitioner felt comfortable and did not seek further treatment.

In February 2006, however, while petitioner was walking through deep snow, he felt pain in his right hip which persisted. He also experienced a limitation of movement in his right leg that continued until Dr. Kelly performed arthroscopic hip surgery on March 13, 2007.

In February 2006, prior to the surgery, petitioner filed a claim for workers' compensation. Respondent denied liability but provided medical treatment and temporary disability benefits. In July 2006, after the February 2006 incident, petitioner moved for medical and disability benefits, alleging that his condition had worsened and that he now required surgery. Respondent denied liability, claiming that this was a subsequent, superseding injury.

During hearings before the compensation court, various experts testified with respect to petitioner's injury and need for further treatment. At the conclusion of the testimony, the compensation court rendered a written decision on December 19, 2007 in which it evaluated the evidence and concluded that petitioner was entitled to temporary disability benefits and reimbursement for his out-of-pocket payment to Dr. Kelly for the arthroscopic surgery in March 2007.

In this appeal, respondent argues that (1) petitioner's claim should have been dismissed as moot because petitioner showed no current need for emergent medical treatment; (2) the judgment should be reversed because it was not supported by credible medical proofs; and (3) petitioner should have been denied medical treatment and temporary disability because his walking through the snow caused a subsequent superseding injury.

Respondent initially contends that the compensation court erred in denying its request to dismiss petitioner's motion for medical and temporary disability benefits because it was rendered moot and non-emergent when petitioner had arthroscopic hip surgery.

At the March 20, 2007 hearing, petitioner's counsel advised the court that petitioner had arthroscopic hip surgery performed by Dr. Kelly on March 13, 2007. Petitioner required several months of post-surgery treatment and, therefore, sought future temporary disability benefits from the date of the surgery to the date he would be determined able to return to work. Respondent's counsel objected to the motion, arguing that it was rendered moot by the hip surgery.

The judge accepted petitioner's proffer that he would present medical testimony regarding the reasonableness and necessity of the post-surgery treatment. Noting that it was for the court to determine whether such post-surgery treatment was reasonable and necessary, the court determined that petitioner's hip surgery did not render the motion moot and allowed petitioner to proceed with his proofs.

"A case is moot if the disputed issue has been resolved, at least with respect to the parties who instituted the litigation." Caput Mortuum, L.L.C. v. S & S Crown Servs., Ltd., 366 N.J. Super. 323, 330 (App. Div. 2004). If an employer refuses or neglects to provide medical treatment, "the employee may secure such treatment and services as may be necessary . . . and the employer shall be liable to pay therefor[.]" N.J.S.A. 34:15-15. See also Dunlevy v. Kemper Ins. Group, 220 N.J. Super. 464, 468 (App. Div. 1987) ("[T]o alleviate delay of treatment in the event of a refusal or neglect to provide the required benefits, [the Workers' Compensation Act] authoriz[es] the employee to secure his own treatment and services making the employer liable for cost thereof."), certif. denied, 110 N.J. 176 (1988). If the employee obtains medical treatment on his own, the employer may be held liable to the medical provider for treatment costs. See Stafford v. Pabco Prods., Inc., 53 N.J. Super. 300, 304-05 (App. Div. 1958) ("[P]arties who furnish medical or hospital services to employees were intended to have enforceable rights to reimbursement by the employers under [N.J.S.A.] 34:15-15 in workmen's compensation proceedings."). The ability to seek treatment independently, however, is conditioned upon the employee first making a demand on the employer to provide such treatment. N.J.S.A. 34:15-15.

Here, petitioner first demanded that respondent pay for the arthroscopic hip surgery. When respondent refused, petitioner proceeded with the surgery and is entitled to seek reimbursement pursuant to N.J.S.A. 34:15-15. The issue is still disputed and not, therefore, moot.

Respondent next contends that the compensation court erred in granting petitioner's motion for medical and temporary disability benefits because petitioner sustained an independent, superseding injury in February 2006, which cut off its liability to petitioner. Respondent argues that "[petitioner's] testimony, the testimony of the orthopedic surgeon, and the objective medical records all confirm . . . a new, non-work related injury to [petitioner's hip]."

Our scope of 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); Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). No special deference is owed to the compensation court's interpretation of the law or application of the law to established facts. Auletta v. Bergen Ctr. for Child Dev., 338 N.J. Super. 464, 470 (App. Div.), certif. denied, 169 N.J. 611 (2001). The determination of the compensation judge, when reviewed on appeal, is equivalent to that of a trial by a judge without a jury. Abeles v. Adams Eng'g Co., 35 N.J. 411, 423-24 (1961). The Workers' Compensation Act is remedial social legislation and should be given a liberal construction in order to "implement the legislative policy of affording coverage to as many workers as possible." Brower v. ICT Group, 164 N.J. 367, 373 (2000); Torres v. Trenton Times Newspaper, 64 N.J. 458, 461 (1974).

It is undisputed that petitioner suffered a compensable injury on December 22, 2004. The issue is whether his walking through the snow in February 2006, subsequent to his original compensable injury, was an intervening, superseding event that would insulate respondent from further liability.

Significantly, all of the experts, including respondent's expert, testified that petitioner's act of walking through the snow aggravated or exacerbated his pre-existing hip injury. Dr. DeStefano and Dr. Maio testified for petitioner that the second injury was attributable to the original, compensable injury. The court was entitled to reject the opinion of respondent's expert, Dr. Canario, that petitioner's act of walking through the snow was a new, intervening event. Perez v. Capitol Ornamental, Concrete Specialties, Inc., 288 N.J. Super. 359, 367 (App. Div. 1996) (holding that a "judge of compensation 'is not bound by the conclusional opinions of any one or more, or all of the medical experts.'") (quoting Lightner v. Cohn, 76 N.J. Super. 461, 465 (App. Div.), certif. denied, 38 N.J. 611 (1962)).

Whether an employer is liable for injury to an employee subsequent to a compensable injury is dependent upon whether the second injury was the result of an independent, intervening cause. Hoogen v. Ritz Carlton Hotel, 14 N.J. Misc. 555, 556 (Dep't Labor 1936). "If a reasonably prudent person innocently aggravates the harmful effect of the original injury, the original wrongful cause continues to the end, and accomplishes the final result." Selak v. Murray Rubber Co., 8 N.J. Misc. 838, 839 (Sup. Ct. 1930), aff'd, 108 N.J.L. 548 (E. & A. 1932).

In Kelly v. Fed. Shipbuilding & Dry Dock Co., 1 N.J. Super. 245, 247 (App. Div. 1949), the petitioner sustained a compensable injury that required his leg to be placed in a cast. The company doctor, who set the cast, gave the petitioner permission to walk with the cast. Ibid. Three weeks later, while still wearing the cast, the petitioner broke his right wrist while attempting to save a child from falling down a flight of steps. Ibid. At trial a medical expert gave the opinion that the fall was a direct result of the cast, which prevented petitioner from regaining his balance before falling. Ibid.

In allowing recovery, the court concluded that the second injury was directly connected to the first injury, finding that the petitioner had engaged in an "instinctive act" that "innocently" contributed to the second injury. Id. at 248. The court noted "[t]he fact that the second injury was a wholly independent injury and not merely an aggravation of a compensable injury makes no difference in the result if the second injury is directly connected in a chain of physical causation with the compensable injury." Ibid. And see Hartman v. Fed. Shipbuilding & Dry Dock Co., 11 N.J. Super. 611, 615 (Cty. Ct. 1951) (holding that worsening of original compensable injury by subsequent "incidental daily occurrences . . . can hardly constitute independent intervening causes, sufficient to break the chain of causation running from the original [injury].")

Although respondent contends that petitioner suffered a new injury when he walked through deep snow, that conclusion is not supported by the facts or the applicable case law. This case is consistent with Kelly, in that petitioner's subsequent injury was reasonably attributable to, and directly connected with, the original compensable injury. By walking through snow, petitioner had engaged in an act that "innocently" contributed to his subsequent injury. There is no evidence in the record that petitioner acted recklessly or contrary to any doctor's orders. Moreover, it is irrelevant that petitioner re-injured his hip while he was not under active medical treatment or "subject to" permanent work restrictions. So long as the second injury is directly connected in a chain of physical causation with the compensable injury, respondent remains liable. Kelly, supra, 1 N.J. Super. at 248. See also Selak, supra, 8 N.J. Misc. at 839 (allowing recovery where respondent re-injured forearm over a year after the initial compensable injury); Randolph v. E.I. du Pont de Nemours & Co., 130 N.J.L. 353, 355 (Sup. Ct. 1943) (allowing recovery where subsequent eye injury was reasonably attributable to the original, compensable eye injury).

Respondent further argues that the order granting petitioner's motion for medical and temporary disability benefits should be reversed because the court's findings were not supported by credible medical evidence. We disagree. We have carefully reviewed the record and we are satisfied that Dr. DeStefano's and Dr. Maio's testimony as expert witnesses supported the court's findings. Sheffield v. Schering Plough Corp., 146 N.J. 442, 461 (1996); see also Paul v. Balt. Upholstering Co., 66 N.J. 111, 121 (1974) (noting that it is within compensation judge's province to accept or reject opinions of expert physicians concerning causation).

We defer to the trial court's findings of the credibility of medical witnesses. Kaneh v. Sunshine Biscuits, 321 N.J. Super. 507, 511 (App. Div. 1999). Indeed, "[d]ue regard must be given to the opportunity of the one who heard the witnesses to judge their credibility." Reinhart v. E.I. Dupont de Nemours, 147 N.J. 156, 164 (1996). Moreover, we defer to the compensation judge's expertise in analyzing medical testimony and abide by the long-standing principle that a "judge of compensation 'is not bound by the conclusional opinions of any one or more, or all of the medical experts.'" Kaneh, supra, 321 N.J. Super. at 511 (quoting Perez, supra, 288 N.J. Super. at 367).

Respondent contends that "a chiropractor can not present competent opinion evidence of the need for orthopedic surgery." It further argues that Dr. Maio, a general surgeon, "is not an orthopedic surgeon and her opinion testimony regarding orthopedic surgery should have been appropriately discounted by the [compensation c]ourt in favor of the testimony of an orthopedic surgeon, such as Dr. Canario." Respondent fails to provide any legal authority to support its argument, however. State v. Hild, 148 N.J. Super. 294, 296 (App. Div. 1977) (noting that the parties have a great burden to provide law for court). See also Weiss v. Cedar Park Cemetery, 240 N.J. Super. 86, 102 (App. Div. 1990) ("The failure to adequately brief the issues requires it to be dismissed as waived.").

Dr. DeStefano testified as a chiropractic expert. He was petitioner's treating chiropractor before and after the February 2006 incident in the snow. He testified that petitioner never became fully asymptomatic, his pain never fully resolved, and that it would not subside until the labral tear was repaired. His testimony, therefore, was relevant because it assisted petitioner in establishing that his increased pain was the result of an aggravation or exacerbation of his original injury and not an independent, subsequent injury.

Similarly, Dr. Maio testified as an expert in general surgery. She opined that based upon the mechanism of the original injury, the fact that there was increased pain, and that petitioner did not slip, fall or twist his body in the snow, he simply aggravated his pre-existing hip injury. Dr. Maio's testimony established that petitioner did not suffer an independent, subsequent injury in February 2006.

Respondent's suggestion that Dr. Maio's testimony should have been discarded because she never performed an arthroscopic hip surgery lacks merit. "[A] person can become an expert through actual experience or study or through both." Carbone v. Warburton, 22 N.J. Super. 5, 17 (App. Div. 1952), aff'd, 11 N.J. 418 (1953). See also N.J.R.E. 702 (providing that a witness may be qualified as an expert by knowledge, skill, experience, training, or education). Moreover, respondent's expert, Dr. Canario, never performed arthroscopic hip surgery. Simply stated, the findings and conclusions of the compensation court are supported by sufficient credible evidence.

Finally, respondent's argument that the court failed to rely on the most objective medical proofs in the case -- the MRI report and the surgical report - lacks sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E). Suffice it to say, both the MRI report and the surgical report were admitted into evidence and properly considered by the court.

Affirmed.

Robert DeStefano, D.C., a chiropractor, and Theodora Maio, M.D., a general surgeon, testified as petitioner's experts. Arthur T. Canario, M.D., an orthopedic surgeon, testified as respondent's expert.

(continued)

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A-1235-07T3

September 24,2008