RICHARD FORKER v. CIRCUIT FOIL, USA, INC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2462-07T12462-07T1

RICHARD FORKER,

Petitioner,

v.

CIRCUIT FOIL, USA, INC.,

Respondent-Appellant,

and

SECOND INJURY FUND,

Respondent.

___________________________________________________________

 

Argued October 16, 2008 - Decided

Before Judges Parrillo, Lihotz and Messano.

On appeal from the New Jersey Department of Labor, Division of Worker's Compensation, Claim No. 2002-8751.

Kristin Schoenberg argued the cause for appellant (Law Offices of Edward H. Keiper, attorneys; Ms. Schoenberg, on the brief).

Kathleen M. Dotoli argued the cause for respondent Richard Forker (Kushinsky, Dotoli & Gans, LLC, attorneys; Ms. Dotoli, on the brief).

Jane G. Lafferty, Deputy Attorney General, argued the cause for respondent Second Injury Fund (Anne Milgram, Attorney General, attorney; Ms. Lafferty, on the brief).

PER CURIAM

Respondent Circuit Foil U.S.A., Inc. (Circuit Foil) appeals from the December 20, 2007 order that found petitioner Richard Forker "to be permanently and totally disabled as a result of [a] traumatic event on May 21, 1997 and a pre-existing disability," and ordered a thirty percent contribution by respondent, the Second Injury Fund (the Fund). N.J.S.A. 34:15-95. Circuit Foil and the Fund argue that petitioner failed to prove by "demonstrable objective medical evidence" a functional loss resulting in "a lessening to a material degree of [his] working ability." N.J.S.A. 34:15-36. They further contend that petitioner's experts rendered net opinions regarding the May 1997 accident, that the judge "failed to distinguish [petitioner's] pre-existing condition" from the results of the May 1997 accident, and otherwise failed to make appropriate findings of fact and conclusions of law. We have considered these arguments in light of the record and applicable legal standards. We reverse and remand.

I.

Three workers' compensation claim petitions were the subject of the trial below. Claim petition #97-036680, filed on October 22, 1997, alleged petitioner suffered a work-related accident on May 23, 1997 resulting in a lumbosacral sprain, superimposed upon a prior back injury, and bilateral radiculitis. The second claim petition, #01-23669, filed on July 23, 2001, alleged injuries, specifically a broken arm requiring surgery and neurological sequelae, caused by a "fall down" after petitioner's "leg gave way because of [a] foot drop" resulting from the injuries suffered in the May 1997 accident. Petitioner's third claim petition, #02-8751, filed on March 11, 2002, alleged occupational exposure from May 21, 1997 through June 26, 1999, petitioner's last day of work with Circuit Foil, resulting in "reinjury to [his] low back."

The trial testimony that occurred over several days between January 29, 2007 and July 16, 2007 revealed that petitioner, who was fifty-three years old at the time of the May 1997 accident, had worked as a laborer for his entire career. He began working for Circuit Foil in 1968, and, but for a brief interruption when he worked elsewhere, had remained in its employ until 1999 when he was compelled to retire because of back pain. Petitioner began his career as a mechanic, then became a welder, and ultimately finished his career as a machinist.

Petitioner's typical work day consisted of lifting rollers that weighed between 300 and 1500 pounds using overhead crane machines. He would usually lift the rollers by himself four to six times per day and also had to "jog drums" that weighed six to seven tons into place. On the day in question, petitioner injured his back lifting one of these rollers.

Petitioner had a long history of back problems, dating back to 1970, when he slipped, fell, and experienced lower back pain as a result. Sometime in the early 1970's, he injured his back again when he attempted to move stainless steel plates. Petitioner testified he injured his back again in 1989 and thereafter experienced continuous pain on a daily basis, requiring him to "use heat packs on [his] back almost everyday." He was advised against lifting heavy objects by his doctors, but he testified it was a necessary part of his job and he continued to do so against medical advice. Petitioner asserted, however, that his condition substantially worsened after the May 1997 accident.

Subsequently, he was unable to sleep through the night because of back pain, and he experienced pain radiating down his legs. Against the advice of his doctors, petitioner returned to work after the May accident and coped with the pain by taking medications, doing physical therapy exercises prescribed after his 1989 accident, and wearing a back brace. He was unable to do routine chores around his home. In October 1997, petitioner sought emergency medical treatment because he was unable to stand or move because of intense back pain. He continued to work until June 1999 when he retired because of his condition.

In July 2001, petitioner was sitting on the front porch of his home and fell because "[his] legs just gave out." Petitioner testified that after the 1997 accident, he would "lose all strength in [his] leg." As a result of the fall, he fractured his arm, requiring surgery.

Over the years, petitioner received treatment for his back from several doctors. He acknowledged that as early as 1994, one of his doctors, Francis J. Pizzi, recommended spinal fusion surgery, but he rejected that option. Beginning in 1998, he received facet block injections for his pain but did not receive any other treatment until 2001 after the fall from his porch. After leaving Circuit Foil, he applied for and qualified for disability benefits from the Social Security Administration. In addition to his back problems, petitioner suffered from a host of other physical ailments including hypertension, diabetes, sleep apnea, erectile dysfunction, Lyme disease, cellulitis and had "three, maybe four" hernia surgeries. In February 2006, he underwent "gastric banding" surgery in an effort to deal with his obesity.

Petitioner's work-related accidents that occurred prior to the May 1997 incident resulted in the filing of multiple workers' compensation claims and multiple awards. In 1995, the year the last claim petition was filed before those at issue in this case, petitioner received an award of thirty percent partial total disability based upon the injuries to his back.

On cross-examination, petitioner admitted that as early as 1993, he had reported to his doctor that he had lost strength in his foot, had trouble walking up stairs, and had weakness in both legs. He had experienced numbness in his feet since sometime in 1989 and had complained of impotency to doctors that treated him before the 1997 accident.

Martin Riss, a doctor of osteopathic medicine, testified as petitioner's first expert witness. Riss examined petitioner in 1991 and in 1993 following work-related accidents. His diagnosis at that time was that petitioner suffered from a "recurrent lumbosacral sprain," rendering him 85% disabled orthopedically. Riss evaluated petitioner again on October 26, 1998, and, in his report, summarized his diagnoses as: "post recurrent lumbosacral sprains, L4-5 radiculopathy, degenerative disc disease at L4-5 and bulging disc at L3-4, L5-1 (from 11/10/89 through . . . 3/23/93); lumbosacral sprain; sclerosis at L5-S1; degenerative disc changes at L2-3, L3-4, L4-5, and L5-S1; disc herniation at L2-3 lateralizing to the left side; [and] arthrolisthiasis of L5 on S1 . . . ." Riss opined that petitioner was now 100% disabled orthopedically.

Riss evaluated petitioner in 2002 after his fall from the porch of his home. Noting his reliance upon a myelogram and CAT scan performed on petitioner in September 2001, Riss reiterated all his prior findings, but noted "additional findings," specifically, a "retrolisthesis with end plate hypertrophy indenting on the thecal sac" at L3-4; "end plate hypertrophy indenting on the ventral thecal sac" at L3-4; indentation on the thecal sac caused by the previously noted "anterolisthesis at L5-S1"; and "degenerative changes in the mid and upper lumbar levels with indentation on the thecal sac at L2-3 level and degenerative changes." Riss opined that these findings "would indicate an individual who has got a bad back, a bad back that's getting worse." Riss's report indicated that petitioner remained "totally disabled," and that the findings and diagnoses were "causally related to the accident of May 21, 1997 and the occupational exposure from May 21, 1997 through June 26, 1999 and [were] permanent in nature[.]" Riss further opined that petitioner's 2001 fall was caused by his underlying back problem.

On cross-examination, Riss acknowledged that he did not read "the films" himself and was relying upon reports of various diagnostic tests performed on petitioner. He acknowledged that an MRI performed on petitioner's back after the 1997 accident showed no "appreciable change" from an MRI performed in 1994. He also admitted that measurements of petitioner's range of motion taken in 2002 were almost identical to those Riss made in 1993.

Petitioner's second expert witness, Lawrence Eisenstein, a psychiatrist, performed his evaluation in August 2000. Eisenstein testified that he "found evidence of both neurological and psychiatric disability" causally related to the May 1997 accident. Eisenstein re-evaluated petitioner in May 2006 and concluded there was no change in petitioner's condition, opining that he was thirty-seven and one-half percent "neurologic[ally] disabled" as a result of "lumbosacral radiculopathy," and thirty percent "psychiatric[ally] disab[led]." On cross-examination, Eisenstein acknowledged that there was evidence prior to the May 1997 accident that petitioner suffered from radiculopathy and complained of numbness in his legs.

Circuit Foil produced Kenneth C. Peacock, an orthopedist, as its expert. Peacock had seen petitioner on several occasions since the May 1997 accident and had authored a total of four reports. Peacock concluded petitioner's condition did not undergo any significant change since 1994 and that the May 1997 accident may have led to increased subjective complaints from petitioner, but that there was no objective medical evidence demonstrating any change in his condition caused by the accident. Peacock opined that petitioner suffered from ten percent partial total disability, which was "all related to [petitioner's] preexisting condition."

On December 10, 2007, the workers' compensation judge rendered an oral decision finding petitioner totally and permanently disabled as a result of the May 1997 work-related accident, and he ordered thirty percent contribution by the Fund. He dismissed the other two claim petitions. The judge found petitioner to be "a pretty honest fellow," and reviewed petitioner's testimony at length, including his prior complaints of back pain and the treatment he received before 1997. The judge concluded that a work-related accident occurred on May 21, 1997 based upon the petitioner's testimony and medical records that documented his efforts to seek treatment two days later on on May 23, 1997.

The judge reached no conclusions regarding the divergent medical testimony in the case. In fact, he did not mention it at all during his oral decision. The judge concluded by stating,

I am satisfied from the evidence that . . . [petitioner] is totally and permanently disabled, and I think he falls within the statutory definition of total permanent disability. I think it's pretty clear that there is a progression of his condition. I think when he finally had to stop working that he . . . simply was unable to do that or any job . . . . I'm satisfied that he could no longer hold onto anything.

. . . .

So, I'm satisfied that he's totally and permanently disabled as of June 26th, 1999, and I will direct that [Circuit Foil] pay him total permanent disability from that date.

I'm further satisfied that [thirty] percent of that is due to--I'm satisfied that the disability is on an orthopedic basis for the back only. I'm not going to get into the other conditions which may or may not have contributed to his overall disability.

Circuit Foil moved to stay the judgment and for a new trial, which was denied by the judge. This appeal ensued.

II.

We begin by recognizing the limited nature of our review, which "is the same as that on appeal in any nonjury case, [that is], '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)). Thus, the findings of fact made by a judge of compensation are entitled to substantial deference. Ramos v. M&F Fashions, 154 N.J. 583, 595 (1998).

Pursuant to N.J.S.A. 34:15-36,

"Disability permanent in quality and partial in character" means a permanent impairment caused by a compensable accident or compensable occupational disease, based upon demonstrable objective medical evidence, which restricts the function of the body or of its members or organs; included in the criteria which shall be considered shall be whether there has been a lessening to a material degree of an employee's working ability . . . .

"Disability permanent in quality and total in character" means a physical or neuropsychiatric total permanent impairment caused by a compensable accident or compensable occupational disease, where no fundamental or marked improvement in such condition can be reasonably expected.

In Perez v. Pantasote, Inc., 95 N.J. 105 (1984), the Supreme Court established a two-prong test to determine whether a petitioner has demonstrated a permanent disability under the statute.

[T]he employee must first prove by demonstrable objective medical evidence a disability that restricts the function of his body or its members or organs. Second, he 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] subjective complaint of pain or discomfort without accompanying 'demonstrable objective medical evidence,' N.J.S.A. 34:15-36, does not satisfy a petitioner's burden of proving the existence of partial-permanent disability." Colon v. Coordinated Transp., 141 N.J. 1, 9-10 (1995). So, for example, tests showing a diminution in a petitioner's range of motion, standing alone, are insufficient to meet the standard. Id. at 4. "Unlike permanent partial disability, a finding of permanent total disability cannot be made unless the injured person cannot be reasonably expected to make a fundamental or marked improvement. To be final, the diagnosis must be made at a time when it may be presumed that the disability has become permanent." Ramos, supra, 154 N.J. at 597. "[U]nlike partial permanent disability, a necessary prerequisite for total permanent disability is the inability to work because of the compensable injury or illness." Portnoff v. New Jersey Mfrs. Ins. Co., 392 N.J. Super. 377, 388 (App. Div.), certif. denied, 192 N.J. 477 (2007)(emphasis added).

Additionally, it has long been held that when a petitioner is alleging the worsening of a condition that pre-existed the compensable accident at issue, he must demonstrate "an alleged subsequent increase in incapacity . . . by proofs which permit comparison and cannot be based solely upon an estimate of the injured person's present degree of incapacity." Yeomans v. Jersey City, 27 N.J. 496, 512 (1958). Furthermore, it is the interplay between a pre-existing condition, and the petitioner's subsequent total permanent disability, as defined by the statue, that implicates the Fund's potential liability. "The Fund is liable when a pre-existing condition combined with a work-related accident or disease renders a person totally and permanently disabled." Walsh v. RCA/Gen. Elec. Corp., 334 N.J. Super. 1, 6 (App. Div. 2000).

The judge's obligation to make findings of fact and to state the conclusions of law that flow there from is critical to an appellate court's meaningful review. Ronan v. Adely, 182 N.J 103, 111 (2004). The Supreme Court long ago emphasized the importance of this obligation with respect to administrative agencies, stating:

It is axiomatic in this State . . . that an administrative agency . . . must set forth basic findings of fact, supported by the evidence and supporting the ultimate conclusions and final determination, for the salutary purpose of informing the interested parties and any reviewing tribunal of the basis on which the final decision was reached so that it may be readily determined whether the result is sufficiently and soundly grounded or derives from arbitrary, capricious or extra-legal considerations.

[In re Application of Howard Sav. Inst., 32 N.J. 29, 52 (1960).]

While we may exercise original jurisdiction as "necessary to the complete determination of any matter" we review, Rule 2:10-5, we rarely do so if issues of witness credibility are involved, or if the expertise of the agency may be relevant. Pressler, Current N.J. Court Rules, comment on R. 2:10-5 (2008).

Our brief review of the substantive law regarding total permanent disability as set forth above demonstrates how critical explicit factual findings are to our ability to review the order. Whether a petitioner has demonstrated by "demonstrable objective medical evidence" that he sustained a "total permanent impairment caused by a compensable accident" requires the workers' compensation judge to evaluate the petitioner's medical condition before the work-related accident, and his condition after. In this case, there was additional evidence related to the effect of petitioner's fall in 2001, and his occupational claim, that needed to be assessed in light of petitioner's latest medical evaluations.

Also, the medical evidence, which the judge did not reference at all, was important in determining whether petitioner had met his burden of proof. Circuit Foil's expert disputed petitioner's claim that his disability resulted from the May 1997 accident, noting that the objective testing that occurred in 1994, prior to the alleged compensable accident, showed essentially the same conditions that existed afterwards. Petitioner's expert countered by noting certain different conditions revealed by the diagnostic tests taken after the accident that were not noted on the prior test reports. The judge made no finding at all as to which medical expert was credible and whether his opinion was believable, a factual finding that was critical to resolving the case. Furthermore, the judge needed to make explicit findings regarding the Fund's liability by focusing upon the extent of plaintiff's pre-existing condition which he clearly did not do.

In Perez, supra, the Supreme Court remanded the matter to the workers' compensation judge, noting his failure to "articulate that the functional disability was based upon demonstrable objective medical evidence," and to "indicate whether he found that there was or was not a lessening to a material degree of the employee's working ability." 95 N.J. at 120. So too here, the judge's failure to make factual findings and to explain how his legal conclusions flowed from those findings make meaningful review impossible. We must, therefore, reluctantly remand the matter to the workers' compensation judge for further proceedings consistent with this opinion.

As a result of our remand, we must also vacate the dismissal of plaintiff's other two petitions. It would appear to us that depending upon the actual factual findings and legal conclusions reached by the judge, those petitions may need to be addressed directly. Obviously, in light of the judge's determination that petitioner was totally permanently disabled as a result of the May 1997 accident, he did not consider the merits of the other two petitions. Our remand requires that he do so in light of all the evidence adduced.

Lastly, because of our remand, we consider Circuit Foil's argument that Riss' testimony should be stricken because it was a net opinion. We find the argument to be of insufficient merit to warrant any further discussion. R. 2:11-3(e)(1)(E).

Reversed and remanded. We do not retain jurisdiction.

In several medical reports contained in the record the date of the accident is referred to as May 21, 1997. In his oral decision, the workers' compensation judge adopted that date as the date of the accident.

Circuit Foil was insured by two different insurers during the applicable period of time. From June 1997 to June 1999, it was insured by The PMA Insurance Group, and, at the time of the May 1997 accident, by Travelers Indemnity Company. Therefore, the judge's decision to base his determination solely on the May 1997 accident, and dismiss the other two petitions, had significance as to which insurer would be responsible for payment of the award.

(continued)

(continued)

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A-2462-07T1

November 26, 2008