SHARON JOHNSON - v. SABRETTS FOOD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4872-06T14872-06T1

SHARON JOHNSON,

Petitioner-Appellant,

v.

SABRETTS FOOD and SECOND

INJURY FUND,

Respondents-Respondents.

___________________________________________________________

 

Argued September 17, 2008 - Decided

Before Judges Parrillo, Lihotz and Messano.

On appeal from Department of Labor, Division of Workers' Compensation, Claim No. 98-03095.

Samuel E. Bass argued the cause for appellant (Freeman & Bass, attorneys; Mr. Bass, on the brief).

Richard J. Williams argued the cause for respondent Sabretts Food (McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys; Mr. Williams and Joseph G. Fuoco, on the brief).

Linda A. Lockard-Phillips, Deputy Attorney General, argued the cause for respondent Second Injury Fund (Anne Milgram, Attorney General, attorney; Lewis Scheindlin, Assistant Attorney General, of counsel, Ms. Lockard-Phillips, on the brief).

PER CURIAM

This appeal follows a trial on the merits of petitioner Sharon Johnson's workers' compensation occupational exposure claim. The judge found petitioner's disability to be "30% of partial total allocated as follows: 15 [percent] partial total disability for restrictive pulmonary disease[;] 7.5 [percent] partial total disability for adjustment disorder with depression[;] and 7.5 [percent] partial total disability for cervical sprain." He also determined petitioner was not totally and permanently disabled, N.J.S.A. 34:15-36, and entered a second order dismissing petitioner's application for benefits from the Second Injury Fund (the Fund). N.J.S.A. 34:15-95. Petitioner contends that the judge "failed to make proper findings" based upon the significant medical evidence she produced and incorrectly concluded that she was not totally and permanently disabled. Respondents Sabretts Food (Sabretts), petitioner's employer, and the Fund counter by arguing that the judge's factual findings and legal conclusions were adequately supported by sufficient credible evidence and are entitled to our deference upon review.

We have considered the arguments raised in light of the record and applicable legal standards. We affirm.

I.

On August 27, 1998, petitioner filed a workers' compensation claim petition alleging occupational exposure to "dust, fumes, pulmonary irritants, bending, lifting, changes of temperature, dampness, standing, stress, strain, [and an] adverse environment[.]" She further alleged "total permanent disability involving [her] chest, lungs, nose, throat, neck, back, knees, arthritis, orthopedic system, internal organs, cardiovascular system, gastrointestinal system, nervous system, neurosis, and complications arising therefrom." On September 10, 2001, the Fund was added as a party. On July 25, 2003, petitioner filed an amended petition containing the same allegations and complaints.

Trial commenced on April 25, 2005 and continued over several days during the ensuing months. The claim against the Fund was not bifurcated, and it participated fully at trial. N.J.A.C. 12:235-5.1. The parties stipulated that the sole issue to be determined at trial was the nature and extent of petitioner's disability.

Petitioner worked as a packer for Sabretts, a frankfurter and hamburger manufacturer and distributor, beginning in 1964 and ending in 1997, when she could no longer stand up and perform her job as required. The temperature at petitioner's work station in the refrigerated portion of the plant was thirty-seven degrees Fahrenheit. During the peak season each year, from April to September, petitioner worked ten hours a day, six days a week. During the rest of the year, she worked full-time a minimum of forty hours per week.

Petitioner's meat packing work required her to push four-tier "trees" filled with hanging frankfurters to her work station, remove them, and package them. Petitioner testified that the "trees" weighed between 400 to 800 pounds each, and because they were tall, she had to climb onto them to reach the upper tiers. Because the "trees" would come directly from the smokehouse, steam would escape toward petitioner's workstation and she developed congestion, heavy breathing, and shortness of breath as a result. At the time of trial, breathing difficulties made it impossible for her to walk more than one block at a time.

With each passing year, and with constant exposure to the cold, wet air in the refrigerator, petitioner's ailments worsened. She visited various doctors for treatment of a swollen right knee, which included injections to remove fluid that had accumulated on the joint. She also received injections in her hands because they began to hurt from the cold working conditions. In addition to her breathing, knee, and hand problems, petitioner also testified that she experienced lower back and shoulder pain, and, at the time of trial, was receiving injections for her back pain. Petitioner also suffered from hypertension, which was diagnosed in the early 1980s, and diabetes, diagnosed in 2000.

During cross-examination, petitioner testified that she had first injured her back in 1977 and had pain injections at that time, though she did not file a permanency claim petition. Petitioner also conceded that she was in a motor vehicle accident in 2003 and received treatment for her shoulder after the accident. In 1986, petitioner had surgery to repair a hernia and, also in that year, she had a hysterectomy.

Dr. I. Ahmad, an orthopedic and hand surgeon, examined petitioner on September 30, 1998, seven years before trial. He testified that petitioner had significant arthritic changes to her back, neck, and upper and lower extremities and suffered from muscle spasms resulting in substantial restrictions of her range of movement. He found petitioner to be permanently and totally disabled as a result of her arthritis, bursitis in her shoulders, a partial tear of her rotator cuff, carpal tunnel syndrome, and a herniated disc, all of which he attributed to her employment.

However, on cross-examination Ahmad conceded that he "d[id] not know whether the work actually caused the arthritis, but [he] certainly kn[e]w that it aggravated the arthritis if she had it before." He also acknowledged his diagnoses of carpal tunnel syndrome and disc herniation were not based upon any examination he had conducted, but were based solely upon a review of petitioner's medical records. As to the alleged herniated disc, Ahmad conceded that he could not determine whether it was the result of "a one-time trauma or if [it] was from an ongoing exposure[.]"

Dr. Sidney E. Friedman, an internist, testified on petitioner's behalf regarding her pulmonary ailments. He, too, had examined petitioner in 1998 and noted she had a chronic, productive cough, had experienced wheezing, and had shortness of breath upon physical exertion. Friedman testified that his examination led him to conclude that petitioner's restrictive pulmonary disease was caused by exposure to dirt, dust, extreme temperature changes and other pulmonary irritants at her job. He concluded petitioner was totally disabled from: chronic bronchitis, for which he estimated thirty percent of total disability; peptic ulcer disease, for which he estimated twenty-five percent of total disability; and heart disease, for which he estimated sixty-five percent of total disability. He opined that petitioner should not return to the type of work she had been doing at Sabretts. On cross-examination, Friedman was unable to offer any citation to medical literature to support his opinion that dirt or dust had caused petitioner's ailments and he had no idea what type of dirt or dust petitioner may have been exposed to as part of her employment.

Dr. Robert Latimer, board certified in psychiatry and neurology, was petitioner's final witness. He performed his examination of her on October 27, 1999. Latimer opined that petitioner suffered from depression due to an adjustment disorder and that her psychiatric disability was work-related and resulted from the physical pain and the stresses of her job. He noted that she had never received any psychiatric treatment or therapy. On cross-examination, Latimer acknowledged that he had not conducted any standardized, diagnostic testing of petitioner.

Dr. Sidney E. Bender, an expert in neurology and neuropsychology, testified for respondent Sabretts. He examined petitioner on December 24, 1999, December 12, 2003, and December 9, 2004. It was Bender's opinion that petitioner had a long history of depression and anxiety, partly attributable to family problems, and he found no evidence causally connecting petitioner's "mood or emotional disturbances" to her employment at Sabretts. Bender also found no evidence of carpal tunnel syndrome or any other form of neurological disability related to petitioner's employment. Bender opined that petitioner's arthritis was not aggravated or caused by her job requirements of repeated bending or lifting.

Bender further opined that there was no neurological reason preventing petitioner from continuing her previous work duties in Sabrett's refrigeration unit, or her employment in some other capacity with a different employer. Bender estimated petitioner's disability to be five percent based upon depression and anxiety, but concluded those problems did not rise to a level sufficient to prevent petitioner "from functioning on a day-to-day basis."

Dr. Ralph E. Ricciardi, an orthopedist, testified on behalf of Sabretts. He opined that petitioner showed no evidence of permanent disability in the lumbosacral or cervical spine, her left shoulder, or her right hand, though he did find that petitioner had strained her lumbar spine and suffered from right knee myalgia and arthritis in both knees.

Dr. William Kritzberg, an internist, also testified on respondent's behalf. He examined petitioner on October 12, 2005. Kritzberg performed an EKG and pulmonary function test on petitioner and opined that her heart was not enlarged and that there were very minor changes to her EKG over the years. He found no evidence of pulmonary disease and noted that petitioner's test results had actually improved over time. Kritzberg estimated that petitioner suffered from a two percent pulmonary disability, the cause of which he was unsure. Noting petitioner's prior significant smoking habit, her exposure to her now-deceased husband's significant smoking habit over many years, her obesity, and other factors, Kritzberg testified that it was unclear whether any of her minimal pulmonary restrictions were related to her employment at Sabretts.

On April 19, 2007, the workers' compensation judge rendered his oral opinion on the record. After reciting petitioner's testimony at length, the judge carefully reviewed her medical proofs. He accepted based upon Freidman's testimony that petitioner had demonstrated some pulmonary disability; however, he found Freidman's estimate to be "highly exaggerated," in light of all the testimony, including respondent's doctors. He found petitioner had "sustained her burden of proof and [] established partial total disability for restrictive pulmonary disease at [fifteen] percent of total."

The judge rejected Friedman's testimony regarding petitioner's peptic ulcer disease and heart disease and their relation to her employment at Sabretts. He noted that petitioner's ulcer disease, by her own admission, began after she stopped working, and that Friedman "failed to connect" the condition with petitioner's "work place environment[.]" He reached a similar conclusion regarding the lack of proof that petitioner's heart condition was at all connected to her employment.

The judge then considered Ahmad's testimony and concluded that petitioner had sustained the burden of proof as to a "spinal sprain," which Ahmad had quantified as twenty percent of partial total in the cervical area and forty percent of partial total in the lumbar area, though he noted that these percentages were not in the doctor's report. After considering all the evidence, the judge concluded that petitioner suffered a 7.5 percent partial total disability because of a lumbar sprain. He rejected Ahmad's assertion that petitioner's arthritis and fibromyositis left her "totally disabled as a physiological unit," noting that Ahmad could not state that these conditions resulted from her workplace conditions.

The judge considered Latimer's testimony and concluded that petitioner had demonstrated a 7.5 percent partial total disability based upon an adjustment disorder with depression. However, to the extent Latimer had also diagnosed petitioner with diabetes, arthritis and sciatica that were related to the workplace, the judge found "no credible testimony to support th[ese] diagnos[e]s."

The judge continued by examining the evidence of the respondent's medical experts. He rejected Bender's conclusion that petitioner's adjustment disorder was the result of family problems or some pre-disposition on her part. He similarly rejected a report from Dr. Jeffrey Frankel, who was not called as a witness but whose report was admitted in evidence. Frankel had found that petitioner suffered from no "neurological or psychiatric disability related to [her] employment." The judge concluded that without the opportunity to evaluate Frankel's testimony after cross-examination, he could place "no weight whatsoever" on the evidence.

The judge agreed with Ricciardi's testimony that petitioner presented "no demonstrable evidence" of a permanent disability of her shoulder, hand, or knees, though he noted that even Ricciardi had conceded that petitioner had suffered some damage to her lumbar spine. The judge noted this testimony "lent credence to [p]etitioner's expert and" the judge's own conclusion that she indeed suffered a lumber sprain. Regarding Kritzberg's testimony, the judge found it to be "unwavering" even after extensive cross-examination. Yet, he noted that even Kritzberg had assessed some percentage of partial total disability to petitioner's pulmonary problems, and he found this "consistent in nature, if not amount of disability, with [p]etitioner's testimony and [her] experts . . . ."

The judge entered the judgment we have noted above, dismissing all claims against the Fund. This appeal ensued.

II.

Petitioner argues that the judge failed to give proper consideration to the testimony of her medical experts and to her own testimony as it related to her complaints of pain, the combined effect of her myriad physical and psychiatric ailments, and her loss of income as a result of having to leave Sabretts. When viewed collectively, she argues, the judge should have determined that she was totally disabled as a result of her workplace exposures, or, alternatively, that her pre-existing conditions, combined with her continued work-related exposures and injuries resulted in her total disability and should implicate the Fund's involvement.

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)). Due regard is given to the compensation judge's expertise and his "opportunity . . . [to] hear[] the witnesses [and] judge their credibility . . . ." Ramos v. M&F Fashions, 154 N.J. 583, 594 (1998) (citations omitted).

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., Inc., 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. N.J. Mfrs. Ins. Co., 392 N.J. Super. 377, 388 (App. Div.), certif. denied, 192 N.J. 477 (2007)(emphasis added).

A "compensable occupational disease" is one that arises "out of and in the course of employment" and is materially caused by conditions that are elements of either the occupation generally or the place of employment. N.J.S.A. 34:15-31; Brunell v. Wildwood Crest Police Dep't, 176 N.J. 225, 238 (2003). The development of an occupational disease is typically gradual and imperceptible over an extended period. Id. at 239.

We recounted in detail above the judge's findings and conclusions because they demonstrate a comprehensive and thoughtful review of all the medical testimony and all of petitioner's testimony. It is clear to us that the judge made credibility determinations not only as between competing experts, but also within each expert's own testimony. He accepted some opinions and rejected others, and he appropriately noted when his conclusions were supported by other evidence in the record. In short, we are convinced that the judge's findings and conclusions were supported by sufficient credible evidence in the record, and we find no basis to disturb them. Sheffield v. Schering Plough Corp., 146 N.J. 442, 461 (1996); R. 2:11-3(e)(1)(A).

Because we affirm the judge's decision regarding petitioner's failure to prove her permanent total disability under the statute, we also affirm his dismissal of the claim petition against the Fund. See Walsh v. RCA/Gen. Elec. Corp., 334 N.J. Super. 1, 6 (App. Div. 2000)(noting that the Fund is only "liable when a pre-existing condition combined with a work-related accident or disease renders a person totally and permanently disabled").

Affirmed.

In his oral decision placed on the record the same day the order for judgment was entered, the judge characterized this last award as one based upon a "lumbar sprain."

The doctor's first name is not revealed by the transcript of the proceedings, or his curriculum vitae and report that are in the appellate record.

Petitioner had been evaluated in previous years by Kritzberg's colleague, Dr. Joel Duberstein, whose reports were referenced throughout the testimony.

(continued)

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A-4872-06T1

December 5, 2008