VICKI L. HAM - v. ANCHOR GLASS CONTAINER CORPORATION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1797-09T3

VICKI L. HAM,

Petitioner-Respondent,

v.

ANCHOR GLASS CONTAINER

CORPORATION,

Respondent-Appellant.

_____________________________________

January 20, 2011

Argued October 6, 2010 - Decided

Before Judges Fuentes, Gilroy and Ashrafi.

On appeal from a Final Decision of the New Jersey Department of Labor, Division of Workers' Compensation, Agency No. 2005-9454.

Richard K. Tavani argued the cause for appellant (Weber Gallagher Simpson Stapleton Fires & Newby, LLP, attorneys; Mr. Tavani, on the brief).

Sal B. Daidone argued the cause for respondent (Law Offices of Sal B. Diadone, attorneys; Patricia R. Carley, on the brief).

PER CURIAM

Respondent-employer Anchor Glass Container Corporation appeals from a judgment of the Division of Workers' Compensation dated November 6, 2009, granting benefits and attorney's fees to petitioner Vicki Ham. We affirm.

Briefly summarized, the facts are that Ham slipped and fell on a wet surface while working at Anchor Glass on January 31, 2005. She reported the fall to her supervisor and was treated at Salem Hospital, initially complaining of pain in her shoulder and wrist. Ham continued to work after the fall, but the pain and stiffness in her shoulder and wrist worsened. Anchor Glass referred her for further treatment to an orthopedic surgeon, Dr. Richard DiVerniero. After a course of treatment that included injections to treat the pain, Dr. DiVerniero performed arthroscopic surgery on July 14, 2005, to repair a torn rotator cuff in Ham's right shoulder.

Within two days after the surgery, Ham left New Jersey for North Carolina to aid her husband in addressing a serious family emergency involving their teenage son. She notified her attorney, whose office made calls and wrote to the attorney for Anchor Glass and the claims representative for the insurance carrier, Chubb Group of Insurance Companies, to notify them that Ham would be in North Carolina. As a result of her absence, Ham missed follow-up visits with Dr. DiVerniero and physical therapy that was necessary to rehabilitate her shoulder and arm.

While in North Carolina, Ham called the claims representative at Chubb seeking authorization for physical therapy and other medical treatment in North Carolina. Chubb refused to authorize treatment in North Carolina and insisted that Ham return to New Jersey for further examination by Dr. DiVerniero. Chubb also terminated the temporary disability payments Ham was receiving on the ground that she had not complied with treatment directives of Dr. DiVerniero. Consequently, Ham received no post-surgery treatment for a period of forty days while she was in North Carolina. During that time, she kept her arm and shoulder immobile in a sling, and her husband had to remove the surgical sutures after Chubb would not authorize a visit to a hospital emergency room for that purpose.

Ham eventually returned to New Jersey and went to see Dr. DiVerniero on August 24, 2005. By that time, she had developed adhesive capsulitis of the shoulder, commonly called a "frozen shoulder." Dr. DiVerniero believed that failure to obtain physical therapy after surgery "played a role" in Ham's development of that condition.

After some months of physical therapy following her return, Ham returned to work at Anchor Glass in December 2005. She could not perform the same job as she had previously, and Anchor Glass changed her job duties. Her shoulder continued to be very stiff, and she felt pain when stretching her arm. She also had pain and numbness in her hand, elbow, and wrist, which worsened over time. Dr. DiVerniero diagnosed cubital tunnel syndrome, a stretching and relocation of the ulnar nerve, which can cause stiffness and limited mobility in the elbow.

In April 2006, Ham underwent a second surgical procedure, nerve manipulation of her elbow. Because Chubb denied her claim for coverage of the surgical procedure, Ham was required to obtain the services of Dr. DiVerniero as a private patient.

At the trial of her claim petition for benefits, the Judge of Compensation heard testimony over eleven days from May 21, 2008, to July 15, 2009. He issued a lengthy oral decision on October 16, 2009, followed by adjustments and corrections of the award by oral decision on November 6, 2009. The judge found Anchor Glass liable for medical expenses of the second surgery in April 2006, temporary disability benefits from July 14 to August 24, 2005, and from February 8 to June 2, 2006, a monetary penalty for failure to pay temporary disability benefits, and permanent partial disability benefits of seventy-five percent of total for the injuries to Ham's shoulder and arm. The judgment awarded specific monetary amounts and attorney's fees to Ham.

On appeal, Anchor Glass makes a number of arguments, which we list verbatim to highlight that the appeal predominantly challenges the compensation judge's factual findings after trial:

A. THE TRIAL COURT ERRED IN ITS LEGAL CONCLUSION THAT ANCHOR GLASS AND ITS INSURANCE CARRIER CHUBB INSURANCE W[ERE] OBLIGATED TO PROVIDE VICKIE HAM WITH MEDICAL TREATMENT IN NORTH CAROLINA.

B. THE TRIAL COURT ERRED IN ITS FINDING THAT ANCHOR GLASS WAS COMPELLED TO PAY PETITIONER ADDITIONAL TEMPORARY BENEFITS FROM JULY 14, 2 005 THROUGH AUGUST 24, 2005 AND FURTHER IN FINDING THAT ANCHOR GLASS UNREASONABLY REFUSED TO PAY TEMPORARY BENEFITS DURING THAT TIME PERIOD.

C. THE TRIAL COURT ERRED IN ITS FINDING THAT THE NEED FOR PETITIONER'S SECOND SURGICAL PROCEDURE ON THE RIGHT SHOULDER, AND HER NEED FOR SURGERY ON THE RIGHT ELBOW FOR THE DEVELOPMENT OF CUBITAL TUNNEL SYNDRONE, WAS THE RESPONSIBILITY OF ANCHOR GLASS AND ITS CARRIER CHUBB INSURANCE.

D. THE TRIAL COURT ERRED IN NOT FINDING PETITIONER'S NON-COMPLIANCE, WHICH CAUSED HER ADHESIVE CAPSULITIS, TO BE AN INTERVENING SUPERSEDING EVENT.

E. THE TRIAL COURT ERRED IN ITS FINDING THAT MS. HAM WAS ENTITLED TO TEMPORARY BENEFITS FROM FEBRUARY 8, 2 006 TO JUNE 20, 2006.

F. THE TRIAL COURT'S DECISION REGARDING THE OVERALL PERMANENCY AWARD IS AGAINST THE WEIGHT OF EVIDENCE.

G. THE TRIAL COURT INAPPROPRIATELY COMPELLED THE PRODUCTION OF THE CLAIMS FILE VIOLATING THE ATTORNEY/CLIENT PRIVILEGE, AND ON THAT BASIS THIS JUDGMENT SHOULD BE VACATED IN ITS ENTIRETY.

Appellate review is not an opportunity to reargue the facts found from conflicting evidence produced at a trial. The scope of appellate review is limited to determining "whether the findings made could reasonably have been reached on sufficient credible evidence present in the record" after giving due weight to the judge's expertise in the field and his opportunity to hear and observe the witnesses. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)); see also Kovach v. Gen. Motors Corp., 151 N.J. Super. 546, 549 (App. Div. 1978) (compensation judge's expertise). "Deference must be accorded to the factual findings and legal determinations 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.'" Lindquist 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)).

We especially defer to those factual findings dependent on the judge's credibility determinations. Ramos v. M & F Fashions, 154 N.J. 583, 594-95 (1998); see also State v. Locurto, 157 N.J. 463, 474 (1999) (credibility determinations are "often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record"). Where the record contains sufficient credible evidence, a compensation judge's findings of fact are binding on appeal, and those findings must be upheld "even if the court believes that it would have reached a different result." Sager v. O.A. Peterson Constr., Co., 182 N.J. 156, 164 (2004).

Here, the record contains sufficient credible evidence to support the judge's findings of fact and legal determinations reached from those findings. The oral decision of October 16, 2009, discussed at length the testimony of all witnesses, including the several doctors who testified on behalf of each party to explain the resulting condition of Ham's shoulder and elbow, and to evaluate her disability. The judge credited the medical testimony of Ham's expert doctor over that of the doctors presented by Anchor Glass with regard to the level of Ham's permanent disability. He also strongly credited the testimony of Ham and her witnesses and discredited the testimony of the Chubb claims representatives questioning Ham's reasons for departing the State after her surgery, and her efforts to notify Chubb and obtain post-surgery treatment in North Carolina. We find no basis to conclude that the judge was mistaken in making those credibility determinations. Therefore, we reject Anchor Glass's arguments that the judge made errors in his factual findings and conclusions from the evidence presented.

Anchor Glass also argues that the judge was mistaken as a matter of law in holding that an employer is obligated to provide medical services out of state because the employer has a right to monitor and manage medical services provided to an injured employee.

The Workers' Compensation Act ("the Act") states that "[t]he employer shall furnish to the injured worker such medical, surgical and other treatment, and hospital service as shall be necessary to cure and relieve the worker of the effects of the injury and to restore the functions of the injured member or organ where such restoration is possible." N.J.S.A. 34:15-15. The claimant must show that medical treatment is "reasonable and necessary" by sufficient credible evidence, taking into account the individual patient's condition and need. Squeo v. Comfort Control Corp., 99 N.J. 588, 599 (1985). The employer's inadequate authorization of treatment is the equivalent of a refusal to provide reasonable treatment. Benson v. Coca Cola Co., 120 N.J. Super. 60, 66-67 (App. Div. 1972).

The Act does not contain any geographical limitations on the provision of medical treatment. Anchor Glass has not cited legal authority supporting its argument that an employer's duty under the Act is limited to treatment in New Jersey. To the contrary, our Supreme Court has recognized that under certain circumstances an employer may be liable for the costs associated with unforeseen out-of-state medical care, even where there was no prior notice given to the employer. Univ. of Mass. Mem'l Med. Ctr. v. Christodoulou, 180 N.J. 334, 345 (2004); see also Med. Diagnostic Assocs. v. Hawryluk, 317 N.J. Super. 338, 343 (App. Div. 1998) (employer is liable for coverage of medical expenses when the circumstances are so peculiar that the medical expenditures incurred by the employee are justified), certif. denied, 160 N.J. 89 (1999), overruled on other grounds, Univ. of Mass. Mem'l Med. Ctr., supra, 180 N.J. 334.

Here, Dr. DiVerniero testified that the standard procedure is to begin physical therapy within three to seven days after the surgery he performed on Ham in July 2005. Ham did not attend scheduled physical therapy sessions in New Jersey because her son's difficulties required her presence in North Carolina. Her attorney's office contacted Chubb about her travel, and Ham herself later called Chubb representatives to request medical treatment in North Carolina.

The medical experts testified that Ham's lack of physical therapy after surgery contributed to the onset of her frozen shoulder. The Chubb claims representatives agreed that it is important for the patient to start physical therapy and that a delay could lead to frozen shoulder. Nevertheless, Chubb insisted that Ham return to New Jersey and see Dr. DiVerniero again before authorizing physical therapy. There was no legal justification for Chubb to refuse coverage for physical therapy in North Carolina.

Ham presented substantial credible evidence to show that the conditions she developed were caused by Chubb's withholding of authorization for medical treatment and physical therapy. Chubb and Anchor Glass were responsible for deterioration of Ham's medical condition and her resultant disability.

For the same reasons, there was no error in the judge's finding that Ham's non-compliance with authorized treatment in New Jersey was not an intervening cause that absolved Anchor Glass of its responsibility to provide reasonable medical treatment for Ham's injuries.

In sum, we conclude that the Judge of Compensation did not err in ruling that Anchor Glass was required to authorize the type of medical treatment in North Carolina requested by Ham, and that its refusal to do so was a cause of Ham's deteriorating medical condition.

Anchor Glass also contends that the judge erroneously compelled the production of documents that were protected by the attorney-client privilege. In response to Ham's motion for discovery, the judge ordered that Chubb's claim file be produced for his in camera review. After examining the file, the judge ordered Chubb to disclose some, not all, documents in the file.

Although Anchor Glass argues that the documents were subject to the attorney-client privilege, it has not described the contents of the documents or asserted the reasons they were privileged. It argues only generally that Chubb's claim file was protected by the attorney-client privilege. Ham responds that the documents disclosed were not privileged because they were not communications between client and attorney but claims notes created by Chubb adjusters and nurses in the ordinary course of handling the claim.1

The applicability of the attorney-client privilege is primarily a legal determination. Paff v. Div. of Law, 412 N.J. Super. 140, 149 (App. Div.), certif. denied, 202 N.J. 45 (2010). Therefore, our standard of review is plenary. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Having reviewed the documents that were disclosed, we agree with the judge's ruling. The "claim entries" contained in the documents do not appear to have been communications between client and attorney. The entries were addressed to the file and were entered into the database maintained by Chubb on Ham's claim. Communications between Chubb representatives and attorneys were excluded from disclosure. We find no error in ordering disclosure of the computerized claims notes in Chubb's file.

1 Ham also argues that the claims file was not subject to the work-product privilege, but Anchor Glass has not made that argument, and we will not address it.