EUGENE ROBERTS - v. AMERGEN ENERGY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2841-07T32841-07T3

EUGENE ROBERTS,

Petitioner-Respondent,

v.

AMERGEN ENERGY,

Respondent-Appellant.

_______________________________

 

Submitted: October 8, 2008 - Decided:

Before Judges Lihotz and Messano.

On appeal from the Division of Workers' Compensation, Department of Labor, Claim Petition No. 2001-35118.

Law Offices of Sherman & Viscomi, attorneys for appellant (Anthony J. Brown, on the brief).

Dasti, Murphy, McGuckin, Ulaky, Cherkos & Connors, attorneys for respondent (Christopher K. Koutsouris, on the brief).

PER CURIAM

We review a January 7, 2008, Division of Workers' Compensation order awarding medical and temporary benefits to petitioner-employee Eugene Roberts. Respondent-employer Amergen Energy appeals, arguing the judge of workers' compensation (JWC) erred by denying respondent's request for a plenary hearing on whether the claimed condition was causally related to the compensable workplace accident. We conclude a plenary hearing was necessary to resolve the conflicting medical reports regarding the causation of petitioner's newly asserted injury. Accordingly, we reverse and remand.

On July 15, 2001, petitioner fell on a stairway located on respondent's business premises resulting in a compensable injury to both knees (2001 injury). Medical and temporary benefits were awarded. Respondent does not challenge this order.

On March 13, 2006, petitioner filed an amended claim petition, seeking compensation for an injury to his lower back. Respondent denied payment for treatment because it did not accept that petitioner's newly claimed back condition was causally related to the 2001 injury. Petitioner filed a motion for medical and temporary benefits requesting additional diagnostic testing and pain management. He supported his application with reports from his treating physician, Robert Grossman, M.D., of Shore Orthopedics (Shore). Dr. Grossman suspected petitioner suffered a possible disc herniation at L4-5. Respondent opposed the motion and relied on its expert's report. By recommendation of a different JWC who conferenced the matter, it was agreed that petitioner would be evaluated by Richard Hartwell, M.D., Ph.D. Dr. Hartwell concluded there was "no causality of lumbar pain or radiculopathy to [petitioner's 2001] injury and any treatment suggested for his lumbar spine would be unrelated to his [2001] injury." By letter dated March 1, 2007, Dr. Grossman opined petitioner's back problems resulted from a change in ambulation status due to his knee injury.

The matter was reviewed by the JWC on March 19, 2007. The JWC ordered respondent to "authorize medical treatment as recommended by Dr. Grossman . . . for the back including epidural/facet blocks."

Thereafter, another physician at Shore, Cary D. Glastein, M.D., evaluated petitioner. In his July 24, 2007 report, Dr. Glastein found no evidence of spinal stenosis or herniated discs. He also found "no direct causal relationship to [petitioner's] lower back pain based on his work related injury of June 2001," except a soft tissue injury from his probable asymmetric ambulation. Dr. Glastein found no evidence of any chronic neurological problems and no need for pain management treatment.

Based on their differing diagnoses and recommended courses of treatment, Drs. Glastein and Grossman conferred. Dr. Grossman sent a letter to the respondent's insurance carrier stating: "Clearly, Dr. Glastein is right. [Petitioner] has degenerative back disease[,] but it is not work related." Further, Dr. Grossman stated the back injury was not caused by the 2001 injury. As a result, the carrier would not authorize payment for treatment.

Petitioner's motion for medical and temporary benefits was relisted. Respondent sought a hearing, arguing the evidence failed to support the condition resulted from a work related injury. The JWC denied respondent's request and ordered respondent to pay for pain management treatment without prejudice. Respondent filed this appeal.

On appeal, respondent argues the JWC erred in denying its request for a plenary hearing. Petitioner disagrees and maintains that respondent's opposing documentation is facially insufficient to fairly contradict or oppose the documentation in support of its motion.

Our workers' compensation scheme provides a remedy to employees who suffer an injury "arising out of and in the course of employment" by an accident. N.J.S.A. 34:15-7. An employer must "furnish to an injured worker such medical, surgical and other treatment, and hospital service as shall be necessary to cure and relieve the worker of the effects of the injury and to restore the functions of the injured member or organ where such restoration is possible[.]" N.J.S.A. 34:15-15. The employer's responsibility to provide treatment refers to those conditions related to or caused by an employee's compensable condition. Rivelli v. MH&W Corp., 383 N.J. Super. 69, 74 (App. Div. 2006). An employee must submit competent medical testimony showing the treatment is reasonably necessary to cure or relieve the effects of the employment related injury. Ibid.; Hanrahan v. Twp. of Sparta, 284 N.J. Super. 327, 336 (App. Div. 1995), certif. denied, 143 N.J. 326 (1996). Also, a finding of a casual relationship between the work related accident and the injury is necessary to determine the employer's liability. Rivelli, supra, 383 N.J. Super. at 74.

We have concluded that "a motion for temporary disability or medical benefits accompanied by supporting documentation can prevail without plenary hearing only if opposing documents are facially insufficient to fairly meet, contradict or oppose the material allegations of the documents in support of the motion." Hogan v. Garden State Sausage Co., 223 N.J. Super. 364, 367 (App. Div. 1988). In Hogan, we set forth the procedure, which must be followed:

[D]ocuments supporting the motion shall be [a] sufficient basis for an order for temporary disability or medical benefits unless contradicted or opposed on material matters by reports, testimony, affidavits or certifications in opposition to the motion. If so contradicted or opposed, the petitioner's documents are not sufficient basis for an order in petitioner's favor. In such a case, petitioner must produce persuasive live testimony to prevail.

The Judge of Compensation may not decide the motion by assigning greater weight to one physician's report or another, but must confine the inquiry at this point to a review of the face of the filed documents. If there are sufficient uncontradicted facts favoring relief, the Judge may order such relief. If there are not, then, unless the respondent waives its right to cross-examination, the Judge must give the petitioner the opportunity to present witnesses for respondent's cross-examination and, if petitioner so elects, for direct examination.

[Hogan, supra, 223 N.J. Super. at 366-67.]

In this matter, we disagree with petitioner's conclusion that the evidence presented provided "sufficient uncontradicted facts favoring relief." Ibid. Our review determines the medical reports were in conflict on the nature, cause, and proposed treatment of petitioner's back complaints. Significantly, petitioner's own physician, Dr. Grossman, offered divergent opinions on each of these areas in his letter reports. We conclude the record does not conclusively show whether petitioner's pain and problems were the resultant effect of the 2001 injury. Medical opinion was offered by respondent's expert, Drs. Hartwell and Glastein that the complaints resulted from degenerative conditions attributable to petitioner's age and obesity.

We cannot discern whether and how the JWC reconciled the apparent conflict. Our review is hampered by the JWC's failure to make findings on this issue and otherwise to articulate findings to support the order entered. See Tlumac v. High Bridge Stone, 187 N.J. 567, 573-74 (2006) (appellate court must defer to the decision "if the findings of fact are supported by substantial credible evidence in the record").

"A decision without proper factual findings and a reasoned explanation of the ultimate result 'does not satisfy the requirements of the adjudicatory process.'" Colon v. Coordinated Transp., 141 N.J. 1, 11 (1995) (quoting Lister v. J.B. Eurell Co., 234 N.J. Super. 64, 73 (App. Div. 1989)).

It is axiomatic . . . that an administrative agency acting quasi-judicially 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.

[Perez v. Pantasote, Inc., 95 N.J. 105, 118 (1984) (quoting N.J. Bell Tel. Co. v. Commc'n Workers of Am., 5 N.J. 354 (1950)).]

The lack of findings of fact and conclusions of law supporting the JWC's decision require reversal and remand for further proceedings. Allen v. Krause, 306 N.J. Super. 448, 454 (App. Div. 1997).

We conclude the record does not contain sufficient uncontradicted facts favoring relief. Unless the respondent waives cross-examination, the JWC must conduct a plenary hearing as to the nature of petitioner's back injury and whether it resulted from the 2001 compensable work injury.

Finally, we reject as meritless petitioner's argument that the January 7, 2008 order "was akin to a Motion to Enforce Litigant's Rights rather than a 'new motion[.]'" The application for medical and temporary disability benefits had not been fully adjudicated until January 7, 2008. R. 2:11-3(e)(1)(E).

 
Reversed and remanded for proceedings consistent with this opinion.

A transcript of this proceeding, if there was one, was not included in the record.

We have concluded that an award of temporary benefits by a judge of compensation is appealable as of right.
Della Rosa v. Van-Rad Contracting Co., 267 N.J. Super. 290, 294 (App. Div. 1993); but see Carberry v. Div. of State Police, 279 N.J. Super. 114, 116 n.1 (App. Div.), certif. denied, 141 N.J. 94 (1995).

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A-2841-07T3

November 19, 2008