SHEILA CONDI - v. COMPUCOM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6453-08T3 6453-08T3

SHEILA CONDI,

Petitioner-Appellant,

v.

COMPUCOM,

Respondent-Respondent.

____________________________________

 

Submitted February 25, 2010 - Decided

Before Judges Fisher and Sapp-Peterson.

On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition No. 2007-21166.

Hoffman DiMuzio, attorneys for appellant (Cristie R. Nastasi and Christine DiMuzio Sorochen, on the brief).

Marshall, Dennehey, Warner, Coleman & Goggin, attorneys for respondent (Angela Y. DeMary and Jammie N. Jackson, on the brief).

PER CURIAM

Appellant, Sheila Condi, appeals from the September 1, 2009 order of the Division of Workers' Compensation (Division) denying her temporary total disability benefits. We affirm.

Condi was employed as a materials handler by respondent, Compucom. On July 11, 2007, she sustained work-related injuries to her left hand, arm, and shoulder during a lifting movement. She went on authorized sick leave on August 16, which was followed by surgery performed on her shoulder in September by Dr. Craig Rosen and surgery on her left forearm, left elbow and left wrist performed by Dr. John Bednar in March 2008. CompuCom offered Condi a light duty assignment in May, but Dr. Bednar had not cleared her to return to work, including light duty.

In a June 3, 2008 Work Status Report, Dr. Bednar recommended a "Psych Consult." In response to this recommendation, respondent scheduled Condi for evaluation with Dr. William M. Holl, Jr., a psychiatrist, who opined, on the basis of his evaluation, that Condi was suffering from "chronic anxiety and chronic depression which pre-exists and is unrelated to the accident of July 11, 2007."

In a July 18, 2008 letter, respondent advised Condi of the following:

It is Company policy that, unless otherwise required by law, once an associate has been on an approved medical leave for a continuous twelve (12) months, the Associate's employment with CompuCom will be terminated. Your workers' compensation benefits are not affected by your end of employment.

If you are still unable to return to work, your employment will terminate effective August 17, 2008.

Condi did not return to work and was therefore terminated, effective August 17. On August 11, she had filed her first "motion for temporary and/or medical benefits" seeking psychiatric treatment based upon Dr. Bednar's June 3 prescription for a psychiatric "consultation, evaluation and treatment" for "reactive depression." Respondent opposed the motion, relying upon Dr. Holl's conclusion that Condi's chronic depression pre-existed and was unrelated to the July 11, 2007 accident.

Although terminated from her employment with respondent, Condi continued to receive her temporary disability benefits. On December 9, Dr. Bednar discharged Condi from orthopedic care and authorized her to return to work with permanent weight- lifting restrictions. Dr. Bednar's discharge note made no reference to the need for psychiatric treatment. On December 10, Condi, on her own, presented to Dr. Edward H. Tobe, a psychiatrist, for an evaluation. This was her first effort to seek a psychiatric evaluation since the June 3 referral for a psychiatric consult from Dr. Bednar and the July 24 evaluation performed by Dr. Holl at respondent's request in which Dr. Holl opined that her chronic depression pre-existed and was unrelated to the July 11, 2007 work-related accident. Dr. Tobe diagnosed Condi as suffering from:

a major depressive disorder, single episode moderate. Outpatient psychiatric treatment is warranted. Such treatment is curative in nature and directly related to her work injury. The [p]etitioner did have a history of panic attacks prior to her work injury and [that] has also been exacerbated. If this woman is going to be denied appropriate medical treatment as a direct result of her work injury[,] there is a major depressive disorder and an aggravation and acceleration of her preexisting panic disorder causing a 50 percent permanent total psychiatric disability.

Dr. Tobe's report did not address Condi's ability to work. Based upon his recommendation, however, Condi filed a "motion for temporary and/or medical benefits" on January 28, 2009. In
a February 25 order, Condi abandoned her motion based upon respondent's agreement to "provide treatment and/or temporary disability benefits" if Dr. James Hewitt, a psychiatrist, determined that such treatment was warranted.

Dr. Hewitt examined Condi on March 10 and, in a report of that same date, expressed the opinion that Condi suffered from a pre-existing anxiety disorder that "has been aggravated by the work injury of July 11, 2007" and that she "is totally and temporarily disabled and in need of curative psychiatric treatment." Based upon Dr. Hewitt's report, Condi's attorney corresponded with respondent's counsel seeking confirmation that respondent would reinstate "temporary disability benefits from January 1, 2009 and ongoing as we discussed." Respondent's counsel, in an April 17 letter, advised that respondent had authorized psychiatric treatment with Dr. Hewitt but requested that the attorneys confer to discuss Condi's request for temporary total disability benefits, noting that "there are certain burdens that your client must meet under Cunningham [v. Atl. States Cast Iron Pipe Co., 386 N.J. Super. 423 (App. Div.), certif. denied, 188 N.J. 492 (2006)]."

The record does not reflect what, if any, discussions ensued thereafter. However, on May 5, Condi filed a motion for temporary total disability benefits effective January 1, 2009. Respondent opposed the motion on the basis that petitioner had no lost wages, a condition precedent to recovering temporary total disability benefits under the Cunningham decision. Id. at 432-33. Prior to the return date of the motion, Dr. Tobe issued a supplemental report in which he reiterated that Condi was in need of "curative medical treatment" for her psychiatric condition. Once again, Dr. Tobe did not address Condi's ability to work. On June 30, one day before the scheduled return date of the motion, Dr. Tobe submitted a third report stating: "On December 10, 2008, Mrs. Sheila Condi came to my office. She was temporarily totally disabled from work as a direct cause from her injury."

The motion proceeded as scheduled on July 1. Condi was the only witness to testify. The judge reserved decision. On August 11, the judge entered an order denying Condi's motion, concluding:

The [p]etitioner has not presented any evidence which conclusively proves that Dr. Bednar's release from orthopedic treatment was pre[]mature. If the [p]etitioner had been released from orthopedic treatment prior to the expiration of the twelve (12) months, and, thereafter, authorized out of work on a psychiatric basis or even a second round of orthopedic treatment, then a new clock would have started to run on a new "continuous" out of work period. But, the facts here are that she was out of work for twelve consecutive months based upon her orthopedic disability and as a result was terminated for cause; thereafter, unless she finds work within her orthopedic restrictions, she is no longer losing wages as a result of a "new" disability but rather because of her termination for cause. Such is the situation in the case at hand and, as a result, the [p]etitioner is not entitled to temporary disability benefits.

On September 1, the workers' compensation judge issued an amplification of her August 11 reserved decision. The judge expounded upon her factual findings:

The [p]etitioner did not treat, authorized or unauthorized, psychiatric or orthopedic, between the date of her release from treatment by Dr. Bednar (December 9, 2008) and the date of Dr. Hewitt's examination on March 10, 2009. Despite the [p]etitioner's termination by the [r]espondent effective August 18, 2008 and her subsequent release from treatment with permanent orthopedic restrictions, she also did not look for work within her restrictions after December 9, 2008. The respondent, gratuitously, continued her temporary disability benefits through the end of December.

Despite Dr. Bednar's June 3, 2008 recommendation for treatment, [p]etitioner did not set it[]s own psychiatric evaluation until December 10, 2008. Dr. Tobe wrote a total of three reports; December 10, 2008, June 12, 2009 and June 30, 2009. His December report did not address the [p]etitioner's work status. His first report in June stated that the [p]etitioner was "temporarily totally [psychiatrically] disabled["] at this time[.] [H]is second June report stated that on December 10, 2008 the [p]etitioner was temporarily totally disabled. In light of the chronology of events, and the timing of [p]etitioner's attempt to obtain a "new[] out of work" status, the [c]ourt is not convinced that Dr. Tobe felt that the [p]etitioner was temporarily totally disabled on December 10, 2008.

The court also specifically addressed the application of the Cunningham decision to her factual findings:

The Cunningham case tells us to look at the [p]etitioner's status at the time of his or her disability and determine whether or not the [p]etitioner is losing wages. The [p]etitioner was unemployed effective August 18, 2008 and could have begun her exploration of work within her projected permanent restrictions. When her temporary disability benefits were terminated effective December 31, 2008, she was no longer employed by the [r]espondent. In March, when Dr. Hewitt opined that she was temporarily totally disabled, she was unemployed and had no wages to replace.

The present appeal followed.

On appeal, Condi contends the workers' compensation judge misapplied the Cunningham decision and it must be revisited in order to prevent workers' compensation judges from "contractually removing a petioner[']s fundamental statutory rights to temporary disability benefits." We reject these arguments and affirm substantially for the reasons expressed by Judge Ingrid L. French in her August 11, 2009 decision and her September 1, 2009 amplification of the August 11, decision.

Our review of a final administrative agency decision "is quite circumscribed." Fraternal Order of Police v. Bd. of Trs. of the Police and Firemen's Ret. Sys., 340 N.J. Super. 473, 479 (2001). Substantial deference is given to an agency's expertise. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (giving high regard to an agency's expertise in the area). An agency's determination is reversed "only if it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980).

The Workers' Compensation Act, N.J.S.A. 34:15-1 to -142, is remedial legislation, the primary purpose of which is to "to provide an employee, when [s]he suffers a work-connected injury, with a speedy and efficient remedy for loss of wages . . . ." Cureton v. Joma Plumbing & Heating Co., 38 N.J. 326, 331 (1962). Temporary disability benefits represent one form of compensation an injured worker may receive. Young v. W. Elec. Co., 96 N.J. 220, 226 (1984). The receipt of such benefits, however, is keyed to the loss of wages occasioned by the work-related injury. Ibid. (noting temporary disability is paid in lieu of lost wages); Ort v. Taylor-Wharton Co., 47 N.J. 198, 208 (1966) ("[T]emporary disability represents a partial substitute for loss of current wages."); Gorski v. Town of Kearny, 236 N.J. Super. 213, 215 (App. Div. 1989) ("Temporary disability benefits are paid in lieu of salary."); Elec. Assocs., Inc. v. Heisinger, 111 N.J. Super. 15, 20 (App. Div. 1970) (finding that an injured worker was not entitled to temporary disability payments because she suffered no current wage loss "as a result of an ailment attributable to her occupation").

In Cunningham, supra, 386 N.J. Super. at 425, the petitioner sustained a torn medial meniscus while working as a machine operator. His employer authorized treatment and he underwent surgery to repair the knee. Ibid. A month after injuring his knee, Cunningham was terminated for violating company policy related to leaves of absence. Ibid. He was reinstated, effective January 5, 2004, conditioned upon him not having any unauthorized absences for one year. Ibid. He successfully completed the conditions for his reinstatement on January 5, 2005. Ibid. Later that month he had another unauthorized period of leave from work, but his union negotiated another agreement with his employer that called for him to return to work on February 2, 2005. He was granted a one-day extension of that date. Id. at 426. He reported to work on February 3, 2005, as scheduled, but requested permission to leave less than one hour later due to child care issues. Ibid. Permission was denied and Cunningham was told that if he left, he would be terminated. Ibid. Cunningham left work and was terminated. Ibid. He did not make any further attempts to return to work. Ibid. We stated that "the reason for separation from employment, if unrelated to the employment or disability, is not dispositive of the overriding issue--did the employee suffer a current wage loss?" Id. at 429. In other words, the sole inquiry is whether an injured worker has lost income because of the work-related disability. Id. at 433. We remanded the matter to the Division of Workers' Compensation to afford the petitioner "an opportunity to prove actual wage loss." Id. at 434.

Here, Judge French found that after Dr. Holl's July 2008 examination resulted in his opinion that Condi's chronic depression pre-existed and was unrelated to the July 11, 2007 accident, Condi did not seek her own independent evaluation. Nor did she undergo any psychiatric treatment at any time thereafter, until commencing her treatment with Dr. Hewitt in the spring of 2009. Judge French further noted that Dr. Tobe authored three reports, with the first two making no reference to Condi's work status. The judge expressed the view that the chronology and timing of events reflected an effort by Condi to secure a new out of work status and did not convince her "that Dr. Tobe felt that the Petitioner was temporarily totally disabled on December 10, 2008." The judge noted that when Condi's temporary disability benefits were terminated, effective December 31, 2008, Condi had not been employed with respondent since August 18, 2008, and that the record reflected no effort on Condi's part to pursue employment opportunities "within her projected permanent restrictions."

Our standard of review from a determination of a judge of workers' compensation is the same standard we employ in the review of any non-jury case. Brock v. Pub. Serv. Elec. & Gas Co., 149 N.J. 378, 383 (1997). "We may not substitute our own factfinding for that of the Judge of Compensation even if we were inclined to do so." Lombardo v. Revlon, Inc., 328 N.J. Super. 484, 488 (App. Div. 2000). Rather, our task is to decide "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record,' considering 'the proofs as a whole'. . . ." Close, supra, 44 N.J. at 599 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). Further, we accord "due regard to the opportunity of the one who heard the witnesses to judge of their credibility[,]" and, where an agency's expertise is a factor, give due regard to that expertise. Id. at 598-99.

On this record, we discern no basis to disturb the findings reached in this matter. There is substantial credible evidence in the record to support Judge French's determination that at the time "Dr. Hewitt opined that [Condi] was temporarily totally disabled, she was unemployed and had no wages to replace." Cunningham, supra, 386 N.J. Super. at 433. There is no dispute that Condi, due to respondent's policy, was no longer employed with the company as of August 17, 2008, but continued to receive temporary disability benefits through December 31, 2008. There is also no dispute that Dr. Bednar discharged Condi from treatment as of December 9, 2008, returning her to work with permanent weight-lifting restrictions. Equally undisputed is the fact that Dr. Bednar imposed no other restrictions and did not address his earlier recommendation for a "Psych Consult." Additionally, Condi does not dispute that when Dr. Tobe examined her one day later and recommended psychiatric treatment, he did not indicate in his report authored on the same day that she was unable to work due her psychiatric condition. Finally, it is undisputed that Condi was continuously unemployed as of August 17, 2008. Consequently, the workers' compensation judge properly found that when Dr. Hewitt concluded that Condi was temporarily totally disabled because of her psychiatric condition, Condi was unemployed and had no wages to replace.

Temporary disability benefits are payable from the first day the employee is unable to work because of an injury until "the first working day that the employee is able to resume work and continue permanently thereat . . . ." N.J.S.A. 34:15-38. December 10, 2008 became the first day that Condi was able to return to work, having been cleared to do so by Dr. Bednar one day earlier. Dr. Tobe did not indicate in his December 10 report that Condi was unable to work as of December 10, 2008. Nor did he do so when he authored his second report seven months later. In that report, Dr. Tobe indicated, "[a]t this time [Condi] presents as temporarily totally psychiatrically disabled as a direct result of her work injury." (emphasis added). It was not until he wrote his second supplemental report, one day before the June 30, 2009 hearing date, that he indicated in a one-line sentence that when Condi came to his office on December 10, 2008, in his opinion, she was "temporarily totally disabled from work as a direct cause from her work injury." Judge French, after considering the chronology of events and the timing of Dr. Tobe's report, was not convinced that Dr. Tobe believed that Condi was temporarily totally disabled on December 10, 2008. Perez v. Capitol Ornamental, Concrete Specialties, Inc., 288 N.J. Super. 359, 367 (App. Div. 1996) (noting that a workers' compensation judge "'is not bound by the conclusional opinions of any one or more, or all of the medical experts.'" (quoting Lightner v. Cohn, 76 N.J. Super. 461, 465 (App. Div.), certif. denied, 38 N.J. 611 (1962)).

The scope of our review is limited to a determination of whether the findings and conclusions of Judge French could reasonably have been reached on sufficient credible evidence in the record, considering the proofs as a whole, giving due regard to her expertise in the field of workers' compensation and her opportunity to assess the credibility of Condi, the only witness who testified, and to evaluate the credibility of the other evidence she presented. Bradley v. Henry Townsend Moving & Storage Co., 78 N.J. 532, 534 (1979); see also Close, supra, 44 N.J. at 599. Reviewed under this standard, we are satisfied there is substantial credible evidence in the record to support Judge French's determination.

Affirmed.

 

The original August 11, 2009 opinion was amplified on September 1, 2009.

In its brief, respondent contends the motion was "denied and abandoned," a contention Condi disputes in her reply brief. No order reflecting the disposition of the motion was included in the appendix. The workers' compensation judge, in her September 1, 2009 amplification of her August 11, 2009 reserve decision, stated: "Pursuant to Dr. Holl's opinion[,] the [c]ourt closed the Motion on September 10, 2008 and adjourned the matter as a pre-trial."

(continued)

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A-6453-08T3

April 16, 2010