Miguel Valle - v. LML Supermarkets

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1910-08T31910-08T3

Miguel Valle,

Petitioner-Appellant,

v.

LML Supermarkets,

Respondent-Respondent,

and

SECOND INJURY FUND,

Respondent-Respondent.

________________________________

 

Argued March 9, 2010 - Decided

Before Judges Carchman, Parrillo and Ashrafi.

On appeal from Department of Labor, Division of Workers' Compensation, Claim Nos. 2000-31404; 2003-23669; 2003-34518.

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

Richard J. Williams, Jr. argued the cause for respondent LML Supermarkets (McElroy, Deutsch, Mulvaney and Carpenter, LLP, attorneys; Michael J. Marone, of counsel; Mr. Williams and Ifeoma Onuora, on the brief).

Cheryl B. Kline, Deputy Attorney General, argued the cause for respondent Second Injury Fund (Paula T. Dow, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Linda Schober, Deputy Attorney General, on the brief).

PER CURIAM

Petitioner Miguel Valle appeals from a final judgment of the Division of Workers' Compensation awarding him fifteen percent partial total permanent disability benefits as a result of a workplace accident on December 17, 1999, and dismissing his additional claims for occupational disease and for total disability against the Second Injury Fund from another workplace accident on August 3, 2002.

These are the pertinent facts. Petitioner was born May 10, 1948, and immigrated to the United States in 1973 where he held a series of manual labor jobs leading up to his employment with respondent LML Supermarkets from 1991 to 2003. Petitioner worked in various departments in the supermarket, including meat, dairy, produce, and at the food court. In the meat department, petitioner had to clean the animal grease off the tables, the floors, and the machines using "[v]ery strong" smelling chemicals. He was not given a mask for this work. His responsibilities also included pushing or carrying plastic receptacles containing meat, which weighed about eighty to a hundred pounds, and the utilization of a jack to push pallets weighing over one hundred fifty pounds. Additionally, petitioner had to clean the walls and floors in the dairy and meat freezers for up to an hour per day, five to six days a week.

Petitioner's first accident occurred on December 17, 1999, while he was cleaning a freezer in the supermarket's dairy department. He was rolling a cart with juice containers back into the freezer, and one of the wheels on the cart got stuck, causing the cart to fall toward him, pinning him against the door handle. The cart weighed between 150 and 200 pounds, and while he was able to hold it up for about five minutes, petitioner then fell to the ground, and the cart and its contents fell on top of his chest.

Petitioner was taken to Hackensack Medical Center Emergency Room, where he was diagnosed with a back contusion and released. Although he could not recall the exact amount of time he missed work, he estimated that he was out of work between two weeks and a month. Petitioner's work record, however, revealed that he returned to work immediately following the accident; he missed one week of work around January 22, 2000.

Petitioner continued doing the same job as before since he needed the "money [and] finances[,]" but claimed to be suffering from "strong pains in the back, problems with [his] hands . . ., respiratory problems as well as . . . pains in [his] chest." According to petitioner, "[d]ay by day the situation got worse and worse."

As a result of this accident, petitioner claimed to have sustained injury to his "[b]ack, nervous system, [and] neurological system." Petitioner was first treated for this injury, outside of the emergency room, by Dr. Jose R. Sanchez-Pe a in July 2000. In a January 22, 2001 report, Dr. Sanchez-Pe a noted that a July 7, 2000 MRI scan on petitioner revealed "no significant abnormalities." However, a CAT scan revealed disc desiccation "at L4-5 and L5-S1 with focal left side herniation and impingement of anterior aspect of the thecal sac." Dr. Sanchez-Pe a diagnosed petitioner with lumbar concussion with hematoma formation, lumbar disc herniation at L4-5, lumbar sprain/strain, disc dissecation at L4-5 and L5-S1, lumbar radiculitis with myelopathy, and lumbosacral apophysitis. This "diagnosis is causally related to the [December 19] accident[,]" and the "injury is severe and permanent in nature and will result in residual dysfunction."

In September 2000, petitioner began to be treated by Dr. Iqbal Ahmad. An October 19, 2000 CT scan revealed "[m]oderate degenerative changes . . . at L5-S1." There was also "left-sided disc herniation impressing on the proximal left S1 nerve root[,]" and "mild generalized disc bulges [at] L3-4 and L4-5 without focal disc herniation[,]" and "Schmorl's nodes . . . within the inferior end plate of L3." Additionally, the CT scan revealed bilateral L3-4 and L4-5 osteoarthritis, but "no compression fracture, spondylolisthesis[,] or spinal stenosis." In December 2000, Dr. Ahmad treated petitioner with "hydrocodone pads and active exercises[,]" which improved his condition. However, he did not, at that time, make an estimate of permanent disability.

Dr. Ahmad's January 2001 evaluation revealed that petitioner's

lumbar spine was spastic. The lumbar curve was flattened. Flexion of the low back was lost by 30 degrees; extension was restricted by 15 degrees, lateral bending was lost by 10 degrees. Lasegue's test and straight leg raising test was positive. Both the sacroiliac joints and greater siatic notches were tender. Muscle spasms extended to both the buttocks. Hamstring muscles were spastic. He had difficulty in squatting down and CAT scan did reveal arthritis of the lumbar spine. The disc was herniated at L5-S1 and the discs were bulging between L-3 and L-5.

Dr. Ahmad diagnosed petitioner, at that time, with "spinal sprain and arthritis" and "bulging and herniated discs[,]" but did not estimate a specific disability. Dr. Ahmad did conclude, however, that because of the accident, petitioner "has permanent residual effects."

Dr. Ahmad next treated petitioner in March 2002, at which time petitioner had a "similar history" but had injured "his head and back and he was treated by many physicians and at many hospitals." Dr. Ahmad's assessment and diagnosis was exactly the same as in 2001, except for a slightly reduced loss flexion of the low back. At this time, Dr. Ahmad estimated petitioner suffered from fifty percent partial total disability due to the December 19 accident.

The second back injury occurred on August 3, 2002. While at work at approximately 4:30 to 5:00 a.m., petitioner was attempting to push a plastic receptacle containing meat, when he slipped and fell backwards. When the store manager arrived at 6:00 a.m., he told petitioner to take off work and see a doctor. Although petitioner returned to work after the accident, he was in "a lot of pain[.]" His hours were reduced to two days a week, but even with the reduced hours, he was "unable to work" because of the pains in his back and his hands. According to petitioner, he became "[v]ery depressed" due to his inability to work, and a doctor prescribed a girdle to wear for support.

Following this accident, Dr. Ahmad examined petitioner again on July 31, 2003, and his evaluation revealed the same assessment as before, except with a slightly increased loss of flexion of the low back. The July 2003 report also revealed that "[t]here was no gross neurological deficit in the upper extremities. Deep tendon reflexes were intact." Dr. Ahmad concluded that petitioner's orthopedic disability in July 2003 remained at fifty-percent.

Dr. Ahmad examined petitioner for the last time on February 21, 2007, and his February 28 report was almost identical to his earlier reports, except he noted that petitioner's pain "radiate[d] into the shoulders and the upper extremities." There was, however, "no gross neurological deficit[,]" and "[d]eep tendon reflexes were intact." He concluded that petitioner was "totally disabled as a physiological unit." However, Dr. Ahmad conceded that this report was "more of an occupational claim than an accident[.]" Moreover, Dr. Ahmad testified that the December 17 accident "did not initiate the arthritis" revealed in the September 2000 CT scan, and further admitted that he did not review any MRI films or reports prior to making a diagnosis.

As a result of these injuries, petitioner filed a September 15, 2000 claim petition in the Division of Workers' Compensation for the December 17, 1999 injury and an October 10, 2003 claim petition for the August 3, 2002 injury. On the October 10 claim petition, petitioner sought benefits from the Second Injury Fund, see N.J.S.A. 34:15-95, asserting that he "is totally & permanently disabled as a result of [his] pre-existing conditions & [his] last compensable conditions." In support of these petitions, petitioner proffered the testimony and reports of his treating physicians, as described above.

Petitioner also filed a third claim petition, also on October 10, 2003, claiming "[o]ccupational exposure to dust, fumes, pulmonary irritants, bending, lifting, stress, strain, repeated manipulations, adverse environment, causing occupational conditions and diseases." He alleged pulmonary, psychiatric, cardiac, and orthopedic occupational claims, in support of which he proffered the testimony of Dr. Sidney Friedman (pulmonary, cardiac), Dr. Robert Latimer (psychiatric), and Dr. Ahmad (orthopedic).

Dr. Friedman examined petitioner on August 5, 2003. He performed a cardiac exam, an X-ray exam of petitioner's chest, an electrocardiogram (EKG), and a pulmonary function test (PFT). He read the PFT as "normal," yet diagnosed petitioner with "chronic occupational bronchitis[,] for which [he] estimated disability of 30% of total." According to Dr. Friedman, this was a result of petitioner's "exposure to dirt, dust, fumes, and other pulmonary irritants during his work life at the facility that he worked in."

However, Dr. Friedman input the wrong data into petitioner's PFT; his height was input at fifty-eight inches, rather than his actual height, sixty-eight inches. Factors such as age, height, weight, and race are all necessary factors for an accurate PFT. Dr. Friedman was thus unable to state what petitioner's expected results would be if the correct numbers were input into the PFT.

Furthermore, Dr. Friedman based his opinion on petitioner's history and exposure to dirt, dust, fumes, and other pulmonary irritants, as well as his exposure at respondent's facility to "cleaning fluids, numerous inhalents, numerous cleaning fluids, [and] chemicals[.]" According to the Judge of Compensation (JOC), petitioner, however, "failed to identify the substance to which he was exposed and [Dr. Friedman] failed to provide any scientific evidence establishing a causal link between the exposure and his alleged breathing difficulties." Dr. Friedman concluded that these unidentified chemicals "undoubtedly were causative of [petitioner's] pulmonary condition."

Dr. Friedman also diagnosed petitioner with cardiomegaly and with "mild hypersensitive cardiovascular disease," which he estimated "a disability of 50% of total." He testified, without any reference to any scientific sources, that "being in extremes of temperature and in and out of refrigeration" has a "direct effect" on the cardiovascular system. The cold, according to Dr. Friedman, "will increase the pulse rate and that will induce tachycardia and cold will also result in spasm of the arterioles." Likewise, lifting heavy containers in the refrigerator and exposure to noise will aggravate petitioner's cardiovascular status, as "the heart will beat rapidly," and petitioner will suffer an "arterial spasm" and elevated hypertension. Finally, Dr. Friedman testified that pain "accelerates the hypertension[.]"

Dr. Latimer, an expert in psychiatry, examined petitioner on May 8, 2002, and diagnosed him as "suffering from an adjustment disorder[,] which is a condition that is related to a situation that the person is not coping well. This was accompanied by emotional factors[,] which are anxiety and depression . . . ." Petitioner's prognosis was thirty percent partial permanent psychiatric disability. Notwithstanding this diagnosis, the diagnostic criteria in the Diagnostic and Statistical Manual of Mental Disorders (DSM)-IV for adjustment disorder provides that it occurs "within three months of the onset of the stressors;" Dr. Latimer, however, never determined when petitioner began to feel anxious, or how long he has been feeling like that.

Dr. Latimer re-examined petitioner on June 12, 2006 and issued a June 15, 2006 report, which incorporated the prior diagnosis of adjustment disorder with anxiety and depression. Although Dr. Latimer did not conduct another psychiatric examination, petitioner was found to be "totally and permanently disabled as a psychophysiological working unit . . . [and] he has deteriorated considerably since I first saw him on 5/8/02." In this regard, Dr. Latimer stated, somewhat inconsistently, that, although the thirty percent partial total disability was incorporated into his 2006 report, petitioner was now suffering from "total" disability.

Finally, as to petitioner's orthopedic occupational disability claim, Dr. Ahmad noted that petitioner suffered disability to his knees, since he cannot bend or straighten his knees without crepitus. Dr. Ahmad noted "[petitioner] has difficulty in weight bearing. He has difficulty in squatting down. . . . He had degenerative changes, especially of his knees. He has the cartilage, the meniscus[,] which is degenerative." This opinion was rendered despite the fact that petitioner "gave absolutely no complaints concerning his knees[,]" and that Dr. Ahmad did not review any MRI or CAT scan of petitioner's cervical spine or hands.

Respondent answered the three claim petitions, stipulating petitioner's employment and the December 17, 1999 accident, but denying all other allegations. In defense of the December 17, 1999 accident claim, respondent produced Dr. Rodney Cranston, an expert in orthopedic medicine. Dr. Cranston first examined petitioner on June 4, 2002, and determined that his "physical examination was objectively normal. There was some issue about whether a disc herniation was present. . . . I would so assume and give him the benefit of the doubt that it was present." He concluded that petitioner suffered three percent permanent partial total disability as a result of the December 17 injury.

Dr. David M. Prince, a board certified neurologist, testified for respondent on the claim petition involving the August 2, 2002 workplace incident. Dr. Prince performed a neurological examination of petitioner on January 4, 2005, and based upon a review of his medical records, a physical evaluation, and the MRI reports taken on February 7 and April 13, 2006, concluded that there was "no clinical objective evidence of any permanent neurological injury as a consequence of the work-related incident of 08/02/2002." Dr. Prince also opined that the "lumbar spine CT scan described on 10/19/00 revealed changes consistent with a chronic degenerative spine condition. All of this predates the accident of 08/02/2002

. . . . [Petitioner] has no objective neurological findings." According to Dr. Prince, petitioner's history and clinical presentation do not substantiate a diagnosis of permanent psychiatric disorder as a consequence of the incident of 08/02/2002.

To counter petitioner's occupational disease claim, respondent produced Dr. William Kritzberg, an expert in internal medicine. Dr. Kritzberg first reviewed a November 23, 2004 report by Dr. Joel Duberstein, who concluded, after performing pulmonary function tests, that petitioner had "[n]ormal cardiac status[,] [and] [n]ormal pulmonary status." Dr. Kritzberg re-examined petitioner on January 31, 2006 by taking a complete medical history, including a pulmonary history, a chest X-ray, and examination of petitioner to determine whether he has any pulmonary disease - a prerequisite for pulmonary disability. Dr. Kritzberg's physical examination of petitioner revealed he

is an obese male in no apparent distress. The lung fields are clear. The heart is not clinically enlarged and the sounds of good quality. There are no thrills or murmurs and the rhythm is regular. Abdominal examination is negative. There is no lymphadenopathy. There is no clubbing or bilateral peripheral edema.

Dr. Kritzberg also performed a PFT, which concluded that petitioner "is capable of normal pulmonary function." Petitioner's EKG tests "revealed . . . normal sinus rhythm[,]" and the X-ray of his chest revealed "[n]ormal cardiac status[] [and] [n]ormal pulmonary status." Dr. Kritzberg's ultimate conclusion was that petitioner "shows no evidence of chronic irritative industrial pulmonary disease and has zero pulmonary disability." He had a "normal physical examination with clear lungs, a chest x-ray that was unchanged from his previous examination and was basically normal and [PFTs] which were normal with the exception of trace reductions in FEV1 and %FEV1[,] which were due to [petitioner's] poor effort during these tests."

As to petitioner's cardiac disability claim, and in response to Dr. Friedman's opinion that going in and out of the refrigeration has a direct effect on the cardiovascular system and that extreme cold will increase the pulse rate and that will induce tachycardia, Dr. Kritzberg asserted:

various factors can cause stress, and I'm very [wary] about using the term "stress" because it's not defined in the medical literature, because various stressors can elevate your blood pressure.

. . . .

The literature is replete with assertions that [various stressors] can cause chronic changes in blood pressure, but so far they're not accepted in the medical community as causes of hypertension.

[(Emphasis added).]

And in contrast to Dr. Friedman's view that petitioner's chest x-ray was "extremely abnormal," Dr. Kritzberg testified the x-ray was "basically [a] normal chest x-ray."

Finally, with respect to petitioner's occupational orthopedic disability claim, Dr. Cranston examined petitioner on June 15, 2005, and concluded that petitioner's "cervical spine; cranial nerves were intact. His reflexes were all one plus, which again is normal. His grip strength was equal." The lumbar spine examination showed that petitioner "was able to flex until five inches of the floor. His quadr[i]ceps reflexes were two plus bilaterally. Ankle reflexes were one plus; these are normal."

At the close of evidence, the JOC, in an oral opinion of October 29, 2008, concluded that, on the first claim petition, petitioner "sustained a 15 percent partial total disability, orthopedic and neurological in nature, for a L5-S1 disc herniation following the December 17, 1999 accident." The JOC also concluded, however, that petitioner did not suffer any permanent disability from the August 3, 2002 accident "because no objective medical evidence was introduced from either [petitioner] or [respondent] as to the nature and extent of any disability [petitioner] sustained . . . ." The JOC similarly concluded that plaintiff did not present objective medical evidence of any occupational disability. Accordingly, the JOC dismissed petitioner's two claim petitions filed on October 10, 2003.

Specifically, on the claim petition for the December 17, 1999 accident, the JOC found:

the estimates of disability offered by Dr. Cranston to be more credible because it is based on sound medical reasoning and is consistent with the evidence produced at trial. Petitioner gave very limited complaints regarding the December 17, 1999 accident. His primary complaint consisted of having "very strong pains in the back. . ." According to petitioner, "day by day the situation got worse and worse." At most, petitioner missed one day to two days from work. Following the December 17, 1999 accident, petitioner returned to work doing the same job he did before the accident. Petitioner gave no complaints that the December 17, 1999 accident had an adverse effect on his personal life.

. . . .

. . . the fact that [petitioner] continued in his regular position, with no compensable lost time and no impact on his home, social or recreational life led me to conclude that petitioner's disability as a result of the December 17, 1999 accident is 15% of partial total, orthopedic and neurological in nature for an L5-S1 disc herniation.

Regarding the claim petition arising from the August 3, 2002 incident, the JOC concluded that neither petitioner nor respondent presented any objective medical evidence "as to the nature and extent of any disability [petitioner] sustained as a result of the August 3, 2002 accident." In fact, Dr. Ahmad, petitioner's own evaluating orthopedist, treated plaintiff following the August 3 accident in July 2003 and February 2007 but made no mention of the August 3 accident. Moreover, "Dr. Ahmad's disability assessment of the lumbar spine [in the July 2003 exam] remained at 50 percent partial total[,] which is the identical percentage of disability he assessed following the December 1999 accident." The JOC relied on this identical assessment of disability to the lumbar spine in rejecting petitioner's orthopedic occupational disability claim.

The JOC also made specific credibility determinations; in particular, she found petitioner was not a credible witness. In this regard, the JOC noted that petitioner's testimony - that he missed up to a month of work following the first accident - was inconsistent with his work record, which revealed that petitioner returned to work and did not miss any work immediately following the accident. Also, the JOC stated that petitioner claimed that the condition in his hands and chest worsened after the accident, but his claim petition did not allege injury to his hands or respiratory condition.

The JOC also found petitioner's testimony, "that he coughs and gets shortness of breath," not credible. The JOC noted that "[p]etitioner was in court on at least three occasions for a total of at least four hours and not once did petitioner cough." Likewise, "[a]lthough [petitioner] has treated with numerous physicians, not one doctor has prescribed any medication to aid [his] breathing."

Overall, the JOC found petitioner's testimony appeared "to be well coached and practiced. [He] cried as if on cue when his counsel asked how he felt." Moreover, petitioner never "ask[ed] for [n]or receive[d] any type of psychiatric treatment. . . . At no time did petitioner testify that he'd never sought psychiatric treatment because of the cost."

The JOC also discredited Dr. Ahmad's testimony regarding petitioner's orthopedic occupational disability claim. Noting that the "objective tests done by both Dr. Ahmad and Dr. Cranston show that . . . all of [petitioner]'s reflexes were normal . . .[,]" the JOC found that petitioner failed to present objective medical evidence that he suffered "something characteristic of or particular to a particular trade, occupation, process or place of employment[,]" as required. Instead, the JOC credited the expert opinion of Dr. Cranston that any orthopedic disability affecting petitioner "was not caused, aggravated or accelerated by his employment with the respondent . . . ." Accordingly, the JOC found that petitioner "did not suffer from any orthopedic occupational disability."

The JOC similarly discounted Dr. Friedman's opinion as to the cause of petitioner's cardiovascular condition, accepting Dr. Kritzberg's testimony that "there's not a consensus in the medical community that exposure to cold one to two hours per day results in chronic hypertension, that moving heavy objects for several hours each day results in chronic hypertension, and that chronic pain results in chronic hypertension." Ultimately, the JOC concluded that petitioner was simply "a 50 plus year old gentleman who had degenerative disc disease[,] which in the [c]ourt's opinion was just taking its normal course."

On appeal, petitioner raises the following issues:

I. MIGUEL VALLE IS ENTITLED TO PAYMENT OF HIS MEDICAL BILLS.

II. MIGUEL VALLE WAS ENTITLED TO TEMPORARY TOTAL DISABILITY.

III. JOC FAILED TO PROPERLY ANALYZE THE DISABILITY OF MIGUEL VALLE.

IV. REJECTION OF THE TESTIMONY OF TOTAL NEUROPSYCHIATRIC DISABILITY OF DR. LATIMER WAS ADVERSARIAL, BIASED, AND IMPROPER.

V. PETITIONER PROVED COMPENSABLE ACCIDENT AND OCCUPATIONAL DISEASE.

VI. JOC DENIAL OF TOTAL DISABILITY WAS ADVERSARIAL AND NOT IMPARTIAL.

VII. SECOND INJURY FUND POTENTIAL LIABILITY.

We find none of these contentions persuasive and affirm substantially for the reasons stated by the JOC in her oral opinion of October 29, 2008 and in her supplemental written opinion of December 16, 2008. We add, however, the following comments.

Pursuant to the Workers' Compensation Act, N.J.S.A. 34:15-1 to -142 (Act), a remedy is available to an employee who suffers injury "arising out of and in the course of employment" either by accident, N.J.S.A. 34:15-7, or by contracting a "compensable occupational disease," N.J.S.A. 34:15-34. See Brunell v. Wildwood Crest Police Dep't, 176 N.J. 225, 236 (2003). "[T]he entire workers' compensation law is based on disability caused by injury. A worker simply has no claim unless he can demonstrate either temporary or permanent disability." Id. at 237 (citing Cureton v. Joma Plumbing & Heating Co., 38 N.J. 326, 331 (1962); N.J.S.A. 34:15-12 (providing schedule of payments for temporary disability, partial permanent disability, and total permanent disability)).

Temporary disability requires payment of lost wages, while permanent disability requires "proof of a medical condition that materially 'restricts the function of the body or of its members or organs' and the claimant's ability to work." Brunell, supra, 176 N.J. at 237 (citing N.J.S.A. 34:15-36; Perez v. Pantasote, Inc., 95 N.J. 105, 114-16 (1984); Electronic Assocs., Inc. v. Heisinger, 111 N.J. Super. 15, 20-21 (App. Div. 1970)). The Act defines "Disability permanent in quality and partial in character" in part as

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. Subject to the above provisions, nothing in this definition shall be construed to preclude benefits to a worker who returns to work following a compensable accident even if there be no reduction in earnings.

[N.J.S.A. 34:15-36.]

"Disability permanent in quality and total in character" under the Act is

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.

Factors other than physical and neuropsychiatric impairments may be considered in the determination of permanent total disability, where such physical and neuropsychiatric impairments constitute at least 75% or higher of total disability.

[Ibid.]

Naturally, there must be an injury in order to trigger the effect of the Act, and the injury "must be traceable, within reasonable limits, to a definite time, place, occasion or cause." Brunell, supra, 176 N.J. at 238 (citing 2 Arthur Larson, Larson's Workers' Compensation Law 42.10 at 42-4 (2000)).

To recover under the Act, the injured "'employee must first prove by demonstrable objective medical evidence a disability that restricts the function of his body or its members or organ.'" Perez v. Monmouth Cable Vision, 278 N.J. Super. 275, 283 (App. Div. 1994) (quoting Pantasote, supra, 95 N.J. at 118), certif. denied, 140 N.J. 277 (1995).

"Objective Medical evidence is understood to mean evidence exceeding the subjective statement of the petitioner." [Pantasote, supra, 95 N.J. at 116.] This does not mean that the subjective complaints of the petitioner are to be excluded. Saunderlin v. E.I. DuPont Co., 102 N.J. 402, 412 (1986). The extent and manner to which the professional analysis must go beyond those complaints in order to constitute demonstrable objective medical evidence depends upon the nature of the disability. Id. at 412. "In most physical disability claims, medical analysis quickly goes beyond the subjective statement by the patient to clinical and laboratory tests by the physician. The medical diagnosis usually looks for, and is in terms of, observable, measurable, physical manifestation." Ibid.

[Monmouth Cable Vision, supra, 278 N.J. Super. at 283-84.]

On the other hand, "compensable occupational disease" under the Act is defined as "all diseases arising out of and in the course of employment, which are due in a material degree to causes and conditions which are or were characteristic of or peculiar to a particular trade, occupation, process or place of employment." N.J.S.A. 34:15-31(a). However, "[d]eterioration of a tissue, organ or part of the body in which the function of such tissue, organ or part of the body is diminished due to the natural aging process thereof is not compensable." N.J.S.A. 34:15-31(b).

"The petitioner has the burden to demonstrate by a preponderance of the evidence that his or her environmental exposure . . . was a substantial contributing cause of his or her occupational disease." Lindquist v. City of Jersey City Fire Dep't, 175 N.J. 244, 263 (2003); see also Fiore v. Consol. Freightways, 140 N.J. 452, 472 (1995) ("[A] petitioner claiming an occupational heart disease must show causes or conditions characteristic to the occupation or place of employment that substantially contributed in a material way to the disease.").

To satisfy the standard, a petitioner claiming occupational . . . disease must fulfill three requirements. First, as [N.J.S.A. 34:15-31] provides, the petitioner must show that the disease is due in "a material degree" to causes "arising out of the workplace and that are or were characteristic of or peculiar to a particular trade, occupation, process or place of employment." 1B [Arthur Larson, Workmen's Compensation Law] 41.64(c) at 7-479 [(1987)].

Second, the petitioner must prove "by suitable medical evidence that the employment exposure did indeed cause or contribute to the disease . . . ." 1B Larson, supra, 41.64(c) at 7-479.

. . . .

Third, the petitioner must show that the employment exposure substantially contributed to the development of the disease. An occupational exposure substantially contributes to the development of . . . [the] disease when the exposure is so significant that, without the exposure, the disease would not have developed to the extent that it caused the disability resulting in the claimant's incapacity to work. Rutledge [v. Tultex Corp./King Yarn], 301 S.E 2d [359,] 370 [(N.C. 1983)].

[Fiore, supra, 140 N.J. at 472-73 (emphasis added).]

Applying these well-settled principles of workers' compensation law to the facts she found credible, the JOC awarded fifteen percent partial total disability as a result of the 1999 workplace accident, but dismissed petitioner's other claims, finding no objective medical evidence of occupational disease or aggravation of a pre-existing condition due to the 2002 workplace incident.

We exercise a "limited" review of a JOC's decision, and a JOC's "findings are binding when based . . . on 'sufficient credible evidence in the record.'" Cooper v. Barnickel Enters., Inc., 411 N.J. Super. 343, 348 n.4 (App. Div. 2010) (citing Sager v. O.A. Peterson Const. Co., 182 N.J 156, 164 (2004)). We also give "'due regard to the compensation judge's expertise and ability to evaluate witness credibility.'" Lindquist, supra, 175 N.J. at 277 (quoting Magaw v. Middletown Bd. of Educ., 323 N.J. Super. 1, 15 (App. Div.) (internal citations omitted), certif. denied., 162 N.J. 485 (1999)). "Deference must be accorded the factual findings and legal determinations made by the [JOC] unless they are 'manifestly unsupported by or inconsistent with competent relevant and reasonably credible evidence as to offend the interests of justice.'" Id. at 262 (quoting Monmouth Cable Vision, supra, 278 N.J. Super. at 282 (internal quotations omitted)). Although considered experts in their field, a JOC's "findings . . . must be supported by articulated reasons grounded in the evidence." Lewicki v. New Jersey Art Foundry, 88 N.J. 75, 89-90 (1981).

Moreover, it is a long-standing principle that a "[JOC] '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) (internal citations omitted)). A JOC is considered to have "expertise with respect to weighing the testimony of competing medical experts and appraising the validity of [the petitioner's] compensation claim." Ramos v. M & F Fashions, Inc., 154 N.J. 583, 598 (1998). However, the JOC must "carefully explain[] why he [or she] considered certain medical conclusions more persuasive than others. That [the JOC] gave more weight to the opinion of one physician as opposed to the other provides no reason to reverse th[e] judgment." Smith v. John L. Montgomery Nursing Home, 327 N.J. Super. 575, 579 (App. Div. 2000).

In his challenge to the JOC's determination in this case, petitioner essentially argues the compensation judge improperly rejected the medical opinions of petitioner's experts. We disagree. Considering the compensation judge's expertise in weighing the testimony of competing medical experts and her ability to evaluate witness credibility in general, Lindquist, supra, 175 N.J. at 277, we conclude that the JOC adequately explained why she considered certain expert medical opinions more persuasive than others. The fact that the JOC gave more weight to the opinion of one physician as opposed to another "provides no reason to reverse th[e] judgment." Smith, supra, 317 N.J. Super. at 579. To the contrary, we conclude the JOC's findings are well-supported in the record.

We also reject petitioner's contention that the JOC, in "cross-examining" Dr. Latimer, and asking certain threshold questions of Drs. Ahmad and Latimer, exhibited bias against him. It is well-settled "[t]he credibility of the worker, and of his or her medical expert, will still be subject to the rigors of cross-examination and the possibility of competing proofs. Such competing proofs may, for example, reveal flaws in the manner in which the expert tested or otherwise evaluated the petitioner's condition." Schorpp-Replogle v. New Jersey Mfrs. Ins. Co., 395 N.J. Super. 277, 301 (App. Div. 2007); see also State v. Wakefield, 190 N.J. 397, 451-452 (2007) (noting that "an expert witness is always subject to searching cross-examination as to the basis of his opinion . . .") (internal quotations omitted), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). "[T]he scope of cross-examination is a matter for the control of the trial court and an appellate court will not interfere with such control unless clear error and prejudice are shown[.]" Id. at 452 (internal quotations and citations omitted).

Here, the record reveals no improper questioning of petitioner's witnesses by the JOC. The JOC properly inquired into the qualifications of the medical experts and further asked Dr. Latimer about the basis of his opinion and, in particular, whether certain factors such as the illness of petitioner's wife were taken into consideration. The inquiry, while searching, was neither confrontational nor adversarial.

 
Affirmed.

Petitioner died on August 28, 2007, during the pendency of this appeal, as a consequence of metastatic colon cancer.

The Second Injury Fund is made available to "persons totally disabled, as a result of experiencing a subsequent permanent injury under conditions entitling such persons to compensation therefor, when such persons had previously been permanently and partially disabled from some other cause[.]" N.J.S.A. 34:15-95 (emphasis added).

During the interview, petitioner "burst out suddenly crying and he was also very anxious and he was clinically depressed." Petitioner also told Dr. Latimer during the examination that his wife was ill; however, Dr. Latimer never inquired from what illness his wife was suffering. In fact, petitioner's wife was suffering from colon cancer and had undergone a colostomy, "which required that she be attended to throughout the day." Dr. Latimer conceded that he did not think it was significant enough to describe the illness.

Actually, Dr. Friedman did not note this abnormality when he wrote his initial report, and only changed his diagnosis the night before trial.

This finding was rendered in the JOC's supplemental letter opinion of December 16, 2008.

(continued)

(continued)

28

A-1910-08T3

April 16, 2010