ROMMEL CALLE - v. DEJANA INDUSTRIES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0797-10T2

ROMMEL CALLE,

Petitioner-Respondent,

v.

DEJANA INDUSTRIES,

Respondent-Appellant.

_______________________________

October 7, 2011

Submitted September 19, 2011 - Decided

Before Judges Sabatino and Fasciale.

On appeal from the Division of Workers' Compensation, Department of Labor and Workforce Development, Claim Petition No. 2005-26279.

McBreen & Kopko, attorneys for appellant (John J. Feczko, on the brief).

Friedman, Friedman & Scherman, P.A., attorneys for respondent (Robert G. Bressler, on the brief).

PER CURIAM

Respondent DeJana Industries, d/b/a Aero Snow Removal Corp. (DeJana), appeals from a September 13, 2010 order finding petitioner Rommel Calle permanently disabled and awarding total disability benefits. DeJana argues that the workers' compensation judge reached a decision unsupported by and inconsistent with the law and the credible evidence at trial. We disagree and affirm.

DeJana employed Calle to load its trucks with de-icing bags of salt between November 2004 and March 2005. Calle worked for DeJana during the winter for several years, and performed work as a laborer for other employers during the spring, summer, and fall. The parties stipulated that Calle was injured as a result of a compensable accident on March 8, 2005. He injured his low back when he slipped and fell while pulling a hand truck loaded with approximately fifty bags, each bag weighing fifty pounds.

On the day of the accident, Calle was taken to the emergency room where he was examined, x-rayed, and prescribed pain medication. While there, he received an epidural injection for pain in his low back. In April 2005, Dr. Shailendra Desai performed an MRI of Calle's low back, which showed "[a] central and left lateral large protruding disc with left neural foraminal encroachment."

Dr. Lester treated him conservatively from May 2005 to August 2005. Dr. Lester noted that "[Calle] has a left-sided disk protrusion at L5-S1 with posterior displacement of the S1 nerve root and absent left ankle reflex." He administered two epidural steroid injections, but Calle's pain continued. As a result, Dr. Lester performed a discogram in August 2005, which revealed "a positive provocative and analgesic response with injection of the L5-S1 disk correlating to his current back pain syndrome," and noted a "severely degenerative nucleogram pattern with disruption of the posterior annulus." In August 2005, Dr. Lester referred Calle to a surgeon, Dr. Richard Nachwalter, because his back pain remained unresolved.

On November 15, 2005, Dr. Nachwalter performed a lumbar laminectomy and fusion at L5-S1, inserted hardware, and performed a bone graft. Calle underwent post-operative physical therapy and remained out of work. In his June 2006 report, Dr. Nachwalter notes that "[Calle had] no appreciable improvement," and he ordered a functional capacity evaluation (FCE) "to determine what [Calle] is capable of doing."

The parties tried the case on seven non-consecutive days between January 2010 and September 2010. The primary contested issue was the nature and extent of the injury. Calle testified and produced two expert medical witnesses, Dr. Sheryl Wong, a forensic neurologist and psychiatrist, and Dr. Theodora J. Maio, an expert in the field of orthopedics. DeJana produced Dr. Ivan R. Dressner, a forensic neurologist and neuropsychiatrist, Dr. Arthur Canario, an expert in orthopedics, and Monica A. Lynch, a biomechanical expert.

Calle, whose primary language is Spanish, testified with the assistance of an interpreter. He testified that he worked for DeJana usually when it snowed. During the winter, he earned $11 per hour from DeJana, but during the summer he earned between $20 and $22 per hour working odd jobs for other employers. He was unable to work for any employer after the accident because of the constant pain. He testified that after the accident he felt "very bad," and that he did not "feel like . . . a normal person."

Dr. Wong examined Calle in January 2007. She diagnosed him as having "a central bilateral L5 radiculitis secondary to a L5-S1 disc herniation status post laminectomy and fusion at L5-S1 level," and an anxiety disorder. She reported an initial neurologic disability determination of thirty-seven and a half percent, and a twenty percent psychiatric disability. In March 2007, Dr. Wong issued a joint addendum report with Dr. Maio, considered Calle's neurological, orthopedic, and neuropsychiatric disability, and opined that Calle was totally disabled.

Dr. Maio examined Calle in January 2007. She diagnosed Calle with "post-traumatic injury to the lumbosacral spine . . . with disc herniation at L5-S1, status post epidural injections." She stated that after the laminectomy and fusion, Calle suffered from residuals "of lumbosacral myositis and fibromyositis . . . loss of range of motion lumbar radiculopathy as manifested by his complaints of radiating radicular pain, resultant reflexes predominantly left-sided sciatic neuralgia and post-operative scarification." Dr. Maio initially opined that Calle's orthopedic disability was sixty-six-and-two-thirds percent of total disability. She later supplemented her opinion, after reading a February 2007 report from Dr. Wong, and testified that Calle is totally disabled.

Dr. Dressner examined Calle in April 2007. He admitted that Calle sustained "an injury which was trauma to the back." He opined that Calle suffered from strains and sprains, the operation was unnecessary, and there was no objective evidence of permanent neurological or psychiatric disability.

Dr. Canario examined Calle in 2006 and again in 2009. He diagnosed him as having "L5-S1 fusion and diskectomy," and opined that Calle was permanently disabled, "17-and-a-half [percent] of total." Dr. Canario disagreed with Dr. Dressner and opined that the back surgery was appropriate. Dr. Canario also acknowledged that he would not be surprised if Calle experienced residual pain after the surgery.

Lynch, a biomechanical expert, testified concerning FCEs performed by her employer, Kinematic Consultants (KC). In June 2006, KC tested Calle and evaluated his functional movements, strength and balance. Although Lynch did not perform the FCEs, she interpreted the results and testified that Calle was capable of performing "medium category work," that is, "occasional lifting work, up to 50 pounds; frequent work up to 20 pounds; and constant lifting work up to 10 pounds." She acknowledged, however, that Calle had "some residual movement issues that may impair his ability for repetitive bending[.]"

On September 13, 2010, the compensation judge issued an oral opinion and concluded that Calle's orthopedic and neurological disabilities rendered him totally and permanently disabled. The compensation judge found Calle credible, observed over the nine-month period while the case was being tried that he walked with a limp, and concluded that he was unable to return to work. After reconstructing Calle's wage to be $440 a week based on $11 per hour, the compensation judge awarded total disability benefits in the amount of $138,600.1

On appeal, DeJana argues that the compensation judge reached a decision unsupported by and inconsistent with the credible evidence at trial. DeJana contends that the judge erred by (1) ignoring the absence of objective neurological injuries and results from the FCEs; (2) invoking the odd lot doctrine; (3) permitting Calle's experts to render net opinions; and (4) reconstructing Calle's rate of compensation.

Our scope of review is limited. Generally, we are bound to those findings of a compensation judge which "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) (internal quotations omitted). We accord deference to the legal determinations and findings of fact made by a compensation judge "unless they are 'manifestly unsupported by or inconsistent with competent relevant and reasonably credible evidence as to offend the interests of justice.'" Linquist v. City of Jersey City Fire Dep't, 175 N.J. 244, 262 (2003) (quoting Perez v. Monmouth Cable Vision, 278 N.J. Super. 275, 282 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995)).

Although compensation judges are considered experts, Kovach v. General Motors Corporation, 151 N.J. Super. 546, 549 (App. Div. 1978), and their findings are entitled to deference, "such findings nevertheless must be supported by articulated reasons grounded in the evidence." Lewicki v. N.J. Art Foundry, 88 N.J. 75, 89-90 (1981). Here, the findings made by the compensation judge are supported by credible evidence.

We begin by addressing DeJana's argument that there were no objective findings of neurological injuries and that the compensation judge ignored the results of the FCEs. We disagree.

The MRI showed a "left lateral large protruding disc with left neural foraminal encroachment." Dr. Lester found that there was "posterior displacement of the S1 nerve root and absent left ankle reflex." The discogram showed "a positive provocative and analgesic response with injection of the L5-S1 disk correlating to his current back pain syndrome." Dr. Maio tested Calle for nerve root irritation and noted that the results of the Lasegue's and Patrick's tests showed "moderately positive on the right [side and] strongly positive on the left [side]." Dr. Maio testified that Calle "had sciatic notch tenderness on the left side," and that he had pain radiating down the left side. The record contains sufficient evidence of neurological injuries.

The compensation judge listened to the testimony from Lynch and acknowledged that the FCE results showed Calle could do moderate work, but then he stated

I did not find that compelling when taken in the entirety of the case. My observation of [Calle] on several occasions and [the] testimony of the expert witnesses, particularly [Calle's] doctor who felt that he was significantly injured, [was more persuasive]. I believe that the orthopedic and neurological disabilities alone render him totally disabled.

We are required to "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)). The compensation judge found the FCEs to be unpersuasive, and we defer to that reasonably-based conclusion.

Next, we reject DeJana's contention that the compensation judge improperly applied the odd lot doctrine, which is a concept intended "to protect a worker who finds himself in an 'odd-lot' of the labor market by reason of the effects of a work-related accident or injury." Darmetko v. Electron Tech., 243 N.J. Super. 536, 540 (App. Div. 1990), appeal dismissed, 126 N.J. 316 (1991). The doctrine allows the judge to consider factors beyond physical and neuropsychiatric impairments, such as age, education, background, training, and substantial unlikelihood of finding employment. See Lister v. J.B. Eurell Co., 234 N.J. Super. 64, 75 (App. Div. 1989). Workers' compensation judges are statutorily barred, however, from considering such factors unless the petitioner is found to be at least seventy-five percent disabled by the physical and neuropsychiatric impairment. See N.J.S.A. 34:15-36; Darmetko, supra, 243 N.J. Super. at 540.

The compensation judge found that "the accident and injury [orthopedically and neurologically] totaled [Calle]." He then stated that "one could certainly consider that [Calle is an] odd lot given the fact that he has Spanish as a primary language;2 he has no other formal education[.]" The compensation judge considered Calle's orthopedic and neurological disabilities, as well as an underlying neuropsychiatric disability, and credited the expert medical testimony of Drs. Wong and Maio that demonstrated a greater than seventy-five percent permanent total disability. Although the compensation judge found that the odd lot doctrine could apply, he did not base his decision of total disability on Calle's odd lot eligibility: "I would also find [Calle] to be total odd lot." (Emphasis added). Therefore, the compensation judge properly considered the doctrine, as an alternative basis for his decision, in the context of the proofs as a whole.

DeJana further argues that Drs. Wong and Maio rendered inadmissible "net opinions" when they issued a joint March 2007 supplemental report.3 DeJana contends that their amended opinion clarifying the degree of disability, without conducting another examination of Calle or running more tests, constitutes a "net opinion." Calle acknowledges that there may have been some overlap between the experts' disability percentages, but argues that their finding of total permanent disability was nonetheless based in medical evidence.

"[A]n expert's bare opinion that has no support in factual evidence or similar data is a mere net opinion which is not admissible and may not be considered." Pomerantz v. New Cmty. Corp, 207 N.J. 344, 372 (2011). "[T]he net opinion rule 'requires an expert to give the why and wherefore of his or her opinion, rather than a mere conclusion.'" State v. Townsend, 186 N.J. 473, 494 (2006) (quoting Rosenberg v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002)).

An expert witness's expertise qualifies him or her to take facts and form opinions based on those facts, not to offer a factually unsupported opinion. Bowen v. Bowen, 96 N.J. 36, 50 (1984); see also Johnson v. Salem Corp., 97 N.J. 78, 91 (1984) (indicating that the probative weight of an expert's opinion can rise no higher than the underlying facts); Dawson v. Bunker Hill Plaza Assocs., 289 N.J. Super. 309, 323 (App. Div.) (holding that an expert's opinion "must be based on a proper factual foundation"), certif. denied, 146 N.J. 569 (1996). When an expert's opinion is merely a bare conclusion unsupported by factual evidence, it is inadmissible. Buckelew v. Grossbard, 87 N.J. 512, 524 (1981).

We reject the net opinion contentions. In January 2007, Drs. Maio and Wong examined Calle, reviewed medical records, and issued separate reports on February 21, 2007 and February 13, 2007 respectively. Initially, neither doctor reviewed the other's report, but they later amended their opinions. Dr. Maio testified that before reviewing Dr. Wong's February report, she was unable to render "an opinion regarding overall totality." Dr. Maio explained that after the review, she clarified her opinion concerning Calle's percentage of total disability. Dr. Wong rendered similar testimony. The judge correctly found that their opinions were credible, fact-based determinations, and impliedly, not net opinions.

Finally, DeJana argues that the judge erred by reconstructing Calle's rate of compensation. Workers' compensation judges should calculate injured workers' wages pursuant to N.J.S.A. 34:15-37, which states that

[w]hen the rate of wages is fixed by the hour, the daily wage shall be found by multiplying the hourly rate by the customary number of working hours constituting an ordinary day in the character of the work involved. In any case the weekly wage shall be found by multiplying the daily wage by the customary number of working days constituting an ordinary week in the character of the work involved; provided, however, if the employee worked less than the customary number of working days constituting an ordinary week in the character of the work involved, the weekly wage for the purposes of compensation under provisions of [N.J.S.A.] 34:15-12a only shall be found by multiplying the hourly rate by the number of hours of work regularly performed by that employee in the character of the work involved.

It is undisputed that Calle earned $11.00 per hour when he worked for DeJana. The judge recognized that prior to his injury, though he did not work for DeJana full-time in the traditional sense of a five-day workweek, Calle searched for full-time work daily. When work was unavailable from DeJana, Calle would stand on a corner waiting for painting work for which he was paid a minimum of $120.00 per day.

In calculating the benefit, the compensation judge utilized a "reconstructed wage," following the Supreme Court's opinion in Katsoris v. South Jersey Publishing Company, 131 N.J. 535 (1993). In Katsoris, the Court emphasized that "[t]he key to the availability of compensation based on a reconstructed work week for a part-time employee is . . . whether the disability reaches into the future and affects probable future earning capacity or has an impact on probable future earnings." Id. at 547-48; see also Maver v. Dwelling Managers Co., 34 N.J. 440, 443 (1961) (holding that "[t]he object of the [workers' compensation] statute is to compensate for the inroad upon the full-time earning capacity . . . and of course a part-time job may be the setting of the destruction of an earning unit capable of full-time work"). Further, the Court stated that

the ordinary part-time worker today may have full-time employment tomorrow or that a part-time worker . . . may have four or five such jobs each week. And an accident suffered in one employment by such person causes pecuniary loss as the result of the consequent physical disability in all the employments or prevents or interferes with later full-time employment.

[Id. at 548 (quoting Engelbretson v. Am. Stores, 49 N.J. Super. 19 (App. Div. 1957), aff d, 26 N.J. 106 (1958).]

Thus, "[t]he critical inquiry is whether petitioner has demonstrated that [his] injuries, which disable [him] from engaging in part-time employment, have disabled or will disable [him] with respect to [his] earning capacity in contemporary or future full-time employment." Ibid.

The petitioner in Katsoris delivered newspapers part-time and worked as a secretary full-time. Id. at 537. She was injured in a car accident while delivering papers, and subsequently filed a petition for disability under the Workers' Compensation statute. Id. at 538. The Court held that because her injury did not affect her ability to work in her full-time position, the compensation judge was precluded from including the wages earned in that position when reconstructing the wage. Id. at 547-48.

Here, Calle was injured performing work for DeJana, and unlike the petitioner in Katsoris, Calle's injury rendered him unable to perform similar full-time work for other employers. The compensation judge found that Calle had other full-time work, and the work from DeJana existed only in the winter. Calle's testimony supported this finding. He testified that he would typically make himself available for full-time work to other employers when work was unavailable at DeJana. The compensation judge found that "under these circumstances . . . this injury is what is keeping or what kept [Calle] from full[-]time employment." The judge stated that "but for this injury [Calle] would have been doing full[-]time work and this is what his loss is." As such, the compensation judge concluded that Calle should be compensated for a forty-hour week at $11 per hour,4 and the judge reasonably based the reconstructed wage rate on the wage DeJana paid for his part-time seasonal labor.

1 DeJana was credited $18,690, the amount it previously had paid in temporary disability, leaving a balance of $119,910.

2 The judge noted that Calle had a language barrier since his testimony was given in Spanish through a translator, and most of the witnesses testified that they communicated with him only in Spanish.

3 At trial, DeJana's counsel did not object to the admissibility of the March 2007 amended report.

4 There were also awards for customary allowances such as expert and counsel fees, which are not challenged on appeal.