DEBORAH LINDSAY - v. BOROUGH OF CARTERET

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1266-08T31266-08T3

DEBORAH LINDSAY,

Petitioner-Respondent,

v.

BOROUGH OF CARTERET,

Respondent-Appellant.

______________________________

 

Submitted September 15, 2009 - Decided

Before Judges Fuentes and Simonelli.

On appeal from a Final Decision of the New Jersey Department of Labor, Division of Workers' Compensation, Agency Nos. CP 2004-9820 and CP 2004-9830.

Law Offices of Peter J. Barnes, III, LLC, attorneys for appellant (John L. Antonas, on the brief).

Law Offices of Campbell, Lynch & Ortiz, LLC, attorneys for respondent (Brian P. Campbell, of counsel; Lazaro Carvajal, on the brief).

PER CURIAM

Appellant Borough of Carteret (Borough) appeals from the October 9, 2008 order entered by the Division of Workers' Compensation in favor of petitioner Deborah Lindsay (Lindsay). The Borough contends that there is no evidential basis for the award of twenty-seven weeks temporary disability for the occupational injury to Lindsay's left hand, and for the award of five percent permanent partial disability for the traumatic injury to Lindsay's right hand and left knee. We reject these contentions and affirm.

We summarize the relevant facts from the record. Lindsay has been employed by the Borough since July 29, 1992. She began as a civilian police dispatcher working predominately on a computer, answering phones, and maintaining a call log. She is now a telecommunicator with the same job duties. Her work shift has always been ten-hours a day, four-days a week.

On June 10, 2003, Lindsay fell at work, injuring her right hand and left knee. The Borough authorized treatment for these injuries. Around October 2003, Lindsay began experiencing pain in her left hand, which she reported to her treating physician. The doctor diagnosed carpal tunnel syndrome and performed surgery. Despite receiving therapy, Lindsay still had pain and numbness in her left hand. She sought treatment from a different doctor, who concluded that the surgery had caused severe nerve damage, requiring a second surgery to correct.

As a result of the two surgeries, Lindsay lost one hundred and two sick days, fifteen vacation days, and eighteen holidays. She also experienced pain, numbness, and decreased dexterity in her left hand, which she claimed negatively impacted her ability to perform her job duties, to complete household chores and grooming, and to engage in her former hobbies of hairdressing, crafts, and fingernail painting. As a result of the injuries sustained in the accident and the carpal tunnel syndrome, Lindsay claimed that she suffered a permanent disability that impairs her personal and professional life. She filed two workers' compensation claims, one for a traumatic injury to her right hand and left knee due to the fall and the other for an occupational injury to her left hand.

At trial, Lindsay testified about her injuries and their impact on her everyday activities. Her experts testified that she had partial permanent disability in her right hand and left knee resulting from the workplace accident, and carpal tunnel syndrome in her left hand resulting from repetitive cumulative trauma caused by her work-related activities. Concerning the extent of the disability, Lindsay's expert found forty percent to the right hand, sixty percent to the left hand, and thirty percent to the left leg. Her expert also concluded that occupational exposure was the competent producing cause of the condition to Lindsay's left hand, and that the workplace accident was the competent producing cause of the condition to her right hand and left knee. The Borough's experts opined that there is no reliable scientific support that carpal tunnel syndrome can be causally connected to the duties Lindsay performs.

The judge of compensation found that Lindsay suffered a partial permanent disability of thirty-three and one-third percent in her left hand as a result of the carpal tunnel syndrome. The judge also found that as a result of the accident, Lindsay had a seven and one-half percent permanent partial disability, apportioned as follows: two and one-half to her left knee and five percent to her right hand.

The judge awarded Lindsay $13,883.19 in disability benefits, and "[twenty-seven] weeks of temporary disability at the rate of $542.50 per week based on a weekly wage of $775 per week[,]" totaling $14,647.50. The judge based her calculation of twenty-seven weeks on Lindsay's loss of one hundred and thirty-five days divided by five days per week. The judge also awarded Lindsay counsel fees, stenographic fees, medical records costs, and reimbursement for out-of-pocket medical expenses incurred. This appeal followed.

With respect to workers' compensation claims, our scope of review is limited to "'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.'" Linquist v. Jersey City Fire Dep't., 175 N.J. 244, 262 (2003) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)); accord Sager v. O.A. Peterson Constr., Co., 182 N.J. 156, 163-64 (2004); Brock v. Public Serv. Elec. & Gas Co., 149 N.J. 378, 383 (1997). We may not substitute our own fact-finding for that of the judge of compensation. Lombardo v. Revlon, Inc., 328 N.J. Super. 484, 488 (App. Div. 2000). We must defer to the factual findings and legal determination made by the judge of compensation "unless they are 'manifestly unsupported by or inconsistent with competent relevant and reasonably credible evidence as to offend the interests of justice.'" Linquist, supra, 175 N.J. at 262 (quoting Perez v. Monmouth Cable Vision, 278 N.J. Super. 275, 282 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995)); accord Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 484 (1974).

Further, when reviewing a workers' compensation decision, we are mindful "that judges of compensation are regarded as experts." Kovach v. GM Corp., New Departure Hyatt Bearings Div., 151 N.J. Super. 546, 549 (App. Div. 1978). Accordingly, we must "defer to the judge of compensation'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 v. Sunshine Biscuits, 321 N.J. Super. 507, 511 (App. Div. 1999) (quoting Perez v. Capitol Ornamental Concrete Specialists, Inc., 288 N.J. Super 359, 367 (App. Div. 1996)).

Based upon review of the record, in light of our limited scope of review, we are satisfied that the judge's factual and credibility findings are amply 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).

Affirmed.

We decline to address the Borough's contention, raised for the first time on appeal, relating to Lindsay's expert witnesses. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Further, the Borough did not object below to the experts' qualifications or testimony. See Biunno, Current N.J. Rules of Evidence, comment 2 on N.J.R.E. 104 (2009). Although we affirm on other grounds, we reject the Borough's meritless claim of judicial bias.

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A-1266-08T3

October 26, 2009