MICHAEL SCHULZ v. CITY OF LONG BRANCH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4575-06T54575-06T3

MICHAEL SCHULZ,

Petitioner-Respondent,

v.

CITY OF LONG BRANCH,

Respondent-Appellant/

Respondent.

_______________________________________

 

Argued March 11, 2008 - Decided

Before Judges Yannotti and LeWinn.

On appeal from the Division of Workers' Compensation, Claim Petitions Nos. 93-37950, 96-1211 and 05-31944.

Clark W. Convery argued the cause for appellant City of Long Branch (Convery, Convery & Shihar, P.C., attorneys; Mr. Convery, on the brief).

Celine M. Vitale argued the cause for respondent Michael Schulz (Shebell & Shebell, L.L.C., attorneys; Ms. Vitale, on the brief).

Lauren D. Bercik argued the cause for respondent City of Long Branch (Hanlon & Niemann, P.C., attorneys; Ms. Bercik, on the brief).

PER CURIAM

Respondent City of Long Branch appeals from an order entered by the Division of Workers' Compensation on January 30, 2007, which denied the City's motion to consolidate Claim Petitions Nos. 93-37950 and 96-1211 with Claim Petition No. 05-31944, and from an order entered on April 2, 2007, which required the City to provide additional medical treatment for petitioner Michael Schultz under petitions 93-37950 and 96-1211. For the reasons that follow, we affirm.

Petitioner is an employee of the City's police department. On September 2, 1993, he filed Claim Petition No. 93-37950 pursuant to the Workers' Compensation Act, N.J.S.A. 34:15-1 to -127 (the Act), seeking benefits for an injury that he sustained on June 23, 1993 while apprehending a suspect. On January 3, 1995, a judgment was entered on the claim awarding petitioner compensation for a 22% permanent disability of his right leg consisting of residual orthopedic injuries to the right knee, right knee sprain, internal derangement, surgical arthroscopy, and residual surgical scarring.

Petitioner thereafter re-opened the claim. A judgment approving a settlement of the re-opened claim was entered on June 4, 2000. Petitioner was awarded compensation for a 45% disability of his right leg due to residuals from internal derangement and two arthroscopic surgeries.

On January 11, 1996, petitioner filed Claim Petition No. 96-1211, seeking compensation for injuries to his left leg and back that he sustained on November 1, 1995 in a work-related automobile accident. A judgment was entered on February 15, 2000 approving a settlement of this claim. Petitioner was awarded 45% of partial total for the residuals from a disc herniation at C5 to C6, right shoulder impingement with arthroscopic decompression, left arm internal derangement, and aggravation of pain of the prior back injury, with a credit of 22.5% for the previous injuries.

In August 2000, petitioner filed an application for review or modification of the award on Claim Petition No. 96-1211. Petitioner alleged that he was in need of further treatment for the injuries sustained in the November 1, 1995 accident. On August 23, 2000, May 11, 2001, September 20, 2002, and December 2, 2004, petitioner filed motions for temporary disability benefits and additional medical treatment under Claim Petition No. 96-1211.

In addition, on May 3, 2001, petitioner filed an application for review and modification of the award on Claim Petition No. 93-37950. Petitioner alleged that he was suffering from increased pain and disability as a result of the injuries sustained in the 1993 accident. On June 5, 2001 and September 20, 2002, petitioner filed motions for temporary disability benefits and additional medical treatment under this petition. Petitioner sought additional treatment for his neck, right knee, and back.

On September 27, 2005, petitioner filed Claim Petition No. 05-31944, seeking benefits for injuries to his left leg and lungs that he sustained while making an arrest. The trial on the motions under Claim Petitions Nos. 96-1211 and 93-37950 began on July 12, 2005, and continued on February 7, 2006, May 23, 2006, and July 25, 2006. On August 21, 2006, the City moved to consolidate petitions 93-37950 and 96-1211 with petition 05-31944.

While the City's motion was pending, the parties in petition 05-31944 settled the claim, and an order approving settlement was entered on December 8, 2006, awarding petitioner 27-1/2% of partial total for residuals of a "saddle pulmonary thrombosis." On January 30, 2007, the compensation judge placed a decision on the record in which he concluded that the City's motion for consolidation should be denied. The judge entered an order on that day that memorialized his decision.

On April 2, 2007, the compensation judge rendered a decision on petitioner's motions under petitions 93-37950 and 96-1211. The judge found that petitioner required additional medical treatment for the compensable injuries that occurred in 1993 and 1995. The judge entered an order of judgment on April 2, 2007, requiring the City for pay for the medical treatment detailed in a report prepared by petitioner's expert, Dr. Steven Berkowitz. This appeal followed.

The City raises the following arguments for our consideration:

POINT I:

THE COMPENSATION JUDGE'S FACTUAL FINDINGS NAMELY, [THE] NEED FOR TREATMENT AND CAUSATION - ARE SO CONTRARY TO THE EVIDENCE THAT THEY SHOULD BE REVERSED.

A. [THE] INJURIES TO [PETITIONER'S] BACK ARE MRI-VERIFIED NEW INJURIES; THUS, CAUSATION IS LACKING.

B. [THE] INJURIES TO [PETITIONER'S] RIGHT KNEE AND RIGHT SHOULDER DO NOT REQUIRE TREATMENT.

POINT II:

THE COMPENSATION COURT ERRED WHEN IT REFUSED TO CONSOLIDATE [THE] CLAIM PETITION FOR [THE] 2005 INJURY WITH THIS ACTION.

We are convinced that these contentions are without merit. We therefore affirm the orders appealed from substantially for the reasons stated by the compensation judge in the decisions that he placed on the record on January 30, 2007, and April 2, 2007. R. 2:11-3(e)(1)(A). We add the following brief comments.

The scope of our review of the findings of fact made by a judge of compensation is limited. The judge's findings of fact are binding on appeal if they are based on sufficient credible evidence in the record, considering the evidence in its entirety, "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) (citing State v. Johnson, 42 N.J. 146, 162 (1964)). We are satisfied from our review of the record that there is sufficient credible evidence in the record to support the compensation judge's findings of fact and conclusions of law in this matter.

In this case, Dr. Berkowitz furnished a report dated September 26, 2005, in which he noted that petitioner had subjective complaints of weakness and throbbing of the right knee; sharp pain in the right shoulder; pain in the right hand; constant sharp pain in the lumbosacral spine; pain in left side buttock; and stiffness in the left thigh. Berkowitz additionally noted that his physical examination of petitioner revealed tenderness and trigger points in the right trapezius and levator scapular muscles, and decreased range of motion in the lumbar spine. The doctor further noted that his examination revealed a positive impingement sign and decreased range of motion in the right shoulder, and a decreased range of motion and tenderness in the right knee.

Dr. Berkowitz opined that petitioner's subjective complaints and the objective clinical findings regarding the cervical spine, right shoulder, lumbosacral spine, and right knee were causally related to petitioner's 1993 and 1995 work-related injuries. Berkowitz also opined that petitioner requires further treatment "for his back in the form of [a] corticosteroid injection of the sacroiliac joint, of the right shoulder in the form of repeat MRI with a possibility of arthroscopic release and manipulation of his shoulder and right knee [and] repeat MRI to determine whether further arthroscopic surgery is indicated."

The City argues that the judge erred by finding that petitioner's back problems were related to the injuries sustained in 1993 and 1995. The City points to the report of an MRI of petitioner's spine taken on April 25, 2005, which showed small central herniated discs at the C4-C5, C5-C6 and C6-C7 levels of the spine. As noted previously, the judgment entered on February 15, 2000 awarded petitioner compensation for, among other things, a disc herniation at C-5 to C-6.

The City maintains that the report of the 2005 MRI shows new disc herniations at C4-C5 and C6-C7. However, Dr. Berkowitz addressed this issue in his testimony. Dr. Berkowitz said that initially the herniations at C4-C5 and C6-C7 were not visible. He explained that over time, the initial herniation could lead to additional herniations at the supporting levels of the spine. The compensation judge found Dr. Berkowitz's testimony to be persuasive and rejected testimony to the contrary by Dr. Ian Fries and Dr. Jeffrey R. Bechler. Accordingly, there is sufficient evidence in the record for the judge's finding that the disc herniations at C4-C5 and C6-C7 were causally related to petitioner's 1993 and 1995 injuries.

The City also contends that the evidence does not support the judge's finding that petitioner's right knee and right shoulder require additional treatment. We disagree. The judge found that the treatment proposed by Dr. Berkowitz "would result in an increased range of motion[,] is not palliative in nature and, in fact, could be curative if successful [in] increasing this [p]etitioner's actual range of motion." The judge also found that the diagnostic testing proposed by Dr. Berkowitz "would be a very appropriate modality to utilize in order to ascertain this [p]etitioner's further need for treatment."

The Act requires employers to provide treatment to injured employees when the treatment is "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 claimant must show that the treatment would "probably relieve petitioner's symptoms and thereby improve his ability to function." Hanrahan v. Twp. of Sparta, 284 N.J. Super. 327, 336 (App. Div. 1995), certif. denied, 143 N.J. 326 (1996). We are satisfied that Dr. Berkowitz's testimony provided sufficient evidential support for the judge's finding that that additional treatment is warranted.

The City also argues that the compensation judge erred in denying its motion for consolidation of the petition arising from the 2005 accident with those that arose from the 1993 and 1995 injuries. Again, we disagree. In his January 30, 2007 bench decision, the judge concluded that the injuries sustained by petitioner in 2005 to his leg and lung were not related to the shoulder, knee and back injuries sustained in 1993 and 1995. Therefore, the 2005 claim petition did not involve questions of law or fact that were common to those raised in the motions brought under the previously filed petitions. We are convinced that in these circumstances, the judge did not abuse his discretion by denying the City's motion for consolidation.

We have considered the other contentions raised by the City in its appeal and find them to be of insufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).

Affirmed.

 

We note that the Middlesex County Joint Insurance Fund (MCJIF) provided counsel to the City for petitions 93-379050 and 96-1211, and Statewide Insurance provided counsel to the City for petition 05-31944. Because counsel have taken different positions in the appeal from the January 30, 2007 order, the City is designated in the caption both as appellant and respondent.

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A-4575-06T3

April 17, 2008