CONSTANCE WHITE v. BED BATH & BEYOND

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

CONSTANCE WHITE,

Petitioner-Appellant,

v.

BED BATH & BEYOND,

Respondent-Respondent.

________________________________________

December 17, 2013

 

Argued November 18, 2013 - Decided

 

Before Judges Harris, Kennedy, and Guadagno.

 

On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition No. 2008-5541.

 

Michael O'Brien argued the cause for appellant (Jacobs, Schwalbe and Petruzzelli, P.C., attorneys; Mr. O'Brien, on the brief).

 

Corinne M. Martin argued the cause for respondent (Worthington & Worthington, attorneys; Francis W. Worthington, on the brief).

PER CURIAM

Petitioner, Constance White, appeals from a January 15, 2013 final judgment of the Division of Workers' Compensation (Division). The Division determined White suffered a compensable injury while in the employ of respondent, Bed Bath & Beyond, but rejected her claim of 100% disability and instead awarded her 32% partial total disability. The Division also dismissed her psychiatric disability claim. On appeal, White alleges several trial errors and claims the award is inconsistent with the evidence. Because we find that the decision of the judge of compensation was supported by substantial credible evidence, we affirm.

I.

White began working at Bed Bath & Beyond in 2004. Her job duties included loading and unloading freight, unpacking boxes, shipping items, and taking inventory. She testified that her job duties were not sedentary and she was always on her feet. Taking inventory occurred once a year, and included counting items with a scan gun while on a ladder.

On February 6, 2008, White was taking inventory atop a twelve-foot ladder when she fell to the ground, landing on her right side. She was immediately taken to the hospital where they determined her right knee had a "comminuted depressed bicondylar tibial plateau fracture with fracture of the fibula head" and her right elbow had an "open dislocation," which means that the bone was "exposed to the air out of the skin." She underwent an "irrigation, debridement and wound closure" of her right elbow and an "open reduction internal fixation with bone grafting" of her right knee. After six days in the hospital, she was admitted into a rehabilitation therapy center.

After her release, White lived in her downstairs living room for approximately four weeks, as she was unable to climb stairs. Her home's only bathroom was on the second floor, so she used a "commode" in her living room, and bathed in the kitchen sink until her husband had a lift installed for her to ascend the stairs.

White underwent two subsequent knee surgeries, including a total right knee replacement in March 2009 and a right knee arthroscopic surgery in September 2009. The post-operative diagnoses were "post traumatic arthritis" and "right knee stiffness . . . and extensive arthrofibrosis[.]"

In January 2010, White's leg specialist, Dr. Michael Sidor, cleared her to return to work, but only for sedentary work. Bed Bath & Beyond offered her a transitional job, informing her that it would work within her limitations. White testified that she declined the offer because of concerns about getting to work and bad weather.

In White's claim petition, she described her injury as "right side, right arm dislocation & lacerations, ligament damage, right leg (2 fractures)." She subsequently amended her petition to include a claim for psychiatric disability, "neuropsychiatric residuals."

White's orthopedic expert, Dr. Ralph Cataldo, concluded that she had "been rendered totally and permanently disabled from all causes." However, he admitted at trial that he was not aware that she had a bachelor's degree in marketing and merchandising. When asked whether he thought it "was an important question to ask her when [] evaluating whether she could reenter the workforce[,]" he responded that it was not.

Bed Bath & Beyond's orthopedic expert, Dr. Tim Pinsky, concluded that White suffered "10% of permanent partial disability referable to the statutory right arm" and "20% of permanent partial disability referable to the statutory right leg."

White's psychiatric expert, Dr. Edward Tobe, concluded that she had "an Adjustment Disorder with Mixed Anxiety and Depressed Mood. . . . [resulting in] a 22-1/2 percent permanent of total psychiatric disability." However, White herself testified that she never sought "any psychiatric or [counseling] treatment" for her alleged psychiatric disability and it had not affected her sleep.

Bed Bath & Beyond's psychiatric expert, Dr. Walden Holl, Jr., concluded that there was "no clinical evidence of psychiatric disability" and White had "neither sought nor received any psychiatric or psychological care and is taking no psychiatric medications."

White has a bachelor's degree in marketing and merchandising, but testified that none of the skills required for working at Bed Bath & Beyond were transferable from her college training. At a post-trial hearing, the judge of compensation raised the issue of how White's education affected her physical disabilities and ability to reenter the workforce. The judge later clarified that the "odd lot" doctrine1did not apply to the case and entered an order to that effect on July 10, 2012.

At the September 11, 2012 hearing, the judge found Dr. Holl to be more credible than Dr. Tobe, and White's psychiatric claim to be "without basis" and "frivolous." The judge dismissed with prejudice White's amended neuropsychiatric residuals claims. He then found White "not totally and permanently disabled."

At the October 23, 2012 hearing, the judge explained that he "need[ed] to know the definition of disability claimed, and

. . . whether the Respondent has a belief that the Petitioner has submitted the burden of proof. . . . I need to know from the Petitioner what has been proven by demonstrable objective medical evidence as the disability." The judge further added that the case for total disability was now over and it was a different, "brand new" case for partial total disability. White's counsel raised his concern of "judicial error" by the court deciding the case "in a piecemeal manner."

At the December 21, 2012 hearing, the judge ruled that White suffered a disability of twenty percent of the right arm and forty percent of the right leg, thirty-two percent partial total; but decided her alleged hip injury was not before the court, as it was not included in her claim. White was awarded $346 a week for 192 weeks, a total of $66,432. In his decision, the judge questioned Dr. Cataldo's credibility, finding his statement that education was not important to be "surprising."

On appeal, White presents the following arguments:

point i

 

the judge of compensation failed to properly apply the holding in perez v. capit[o]l ornamental[,] con[crete] special[ties,] inc.,[2]due to his failure to consider factors such as the petitioner's undisputed inability to return to her lifelong occupation in retail sales and by reducing the award merely because she is educated.

 

point ii

 

the judge of compensation committed error by holding every injured worker required a unique definition of disability rather than applying the statutory definition in N.J.S.A.34:15-36.

 

point iii

 

the decision of the judge of compensation is against the overwhelming weight of the evidence since it is unsupported, contrary to and inconsistent[] with the competent relevant and undisputed evidence in the record and not based upon the actual testimony of the medical experts.

 

point iv

 

the judge of compensation committed error by deciding the case in a piecemeal fashion rather than considering the cumulative impact of the injuries on the petitioner's ability to function.

 

II.

The scope of appellate review of workers' compensation cases is limited to "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole, with due regard to the opportunity of the one who heard the witnesses to judge of their credibility.'" Lindquist v. City of Jersey City Fire Dep't, 175 N.J.244, 262 (2003) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). We defer to the judge of compensation's factual findings and legal determinations, "unless they are 'manifestly unsupported by or inconsistent with competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Perez v. Monmouth Cable Vision, 278 N.J. Super.275, 282 (App. Div. 1994) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J.474, 484 (1974)), certif. denied, 140 N.J.277 (1995). Such courts are considered experts with respect to weighing the testimony of competing medical experts and appraising the validity of compensation claims. Ramos v. M & F Fashions, Inc., 154 N.J. 583, 598 (1998). However, "[a] decision without proper factual findings and a reasoned explanation of the ultimate result 'does not satisfy the requirements of the adjudicatory process.'" Colon v. Coordinated Transp., Inc., 141 N.J.1, 11 (1995) (quoting Lister v. J.B. Eurell Co., 234 N.J. Super. 64, 73 (App. Div. 1989)). "Where our review of the record 'leaves us with the definite conviction that the judge went so wide of the mark that a mistake must have been made,' we may 'appraise the record as if we were deciding the matter at inception and make our own findings and conclusions.'" Manzo v. Amalgamated Indus. Union Local 76B, 241 N.J. Super. 604, 609 (App. Div.) (quoting C.B. Snyder Realty Inc. v. BMW of N. Amer. Inc., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J.165 (1989)), certif. denied, 122 N.J.372 (1990). N.J.S.A. 34:15-36 defines "[d]isability permanent in quality and partial in character" 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[.]" To obtain benefits for such a disability under our workers' compensation statute, first, one must make "a satisfactory showing of demonstrable objective medical evidence of a functional restriction of the body, its members or organs." Perez v. Pantasote, Inc., 95 N.J. 105, 116 (1984). In Perez, the Court explained that "[t]his determination can no[t] . . . rest upon petitioner's subjective complaints[]" and noted that "objective medical evidence is understood to mean evidence exceeding the subjective statement of the petitioner." Ibid.

We first reject White's argument that the judge of compensation failed to properly apply this court's holding in Perez, supra, 288 N.J. Super.359. In Perez, we stated:

Clearly, an educated person who earns his living reading, writing and performing other sedentary duties, having the same injury and the same residuals as the petitioner here, may have the same orthopedic disability as the petitioner. However, that same person is less disabled in terms of an ability to work than this petitioner, an illiterate laborer who is incapable of doing anything more than the job which his orthopedic disability prevents him from doing. The Workers' Compensation judge erred in failing to consider these relevant factors in assessing this petitioner's award.

 

[Id. at 370.]

Unlike the judge of compensation in Perez, the judge here properly applied the standard by considering White's education and ability to work. The judge found it "surprising" that Dr. Cataldo did not think that her education was important and found it "remarkable" that she never applied for any jobs, even declining Bed Bath & Beyond's employment offer. We reject White's contention that the judge reduced her award "merely" because of her college education and specifically ruled that "an individual who is educated is less disabled than one who is not educated[,]" as there is no support for such in the record.

White next argues that "the judge of compensation committed error by holding every injured worker required a unique definition of disability rather than applying the statutory definition in N.J.S.A. 34:15-36." This contention also finds no support in the record. The judge informed the parties that according to the statutory definition of disability, White "must first prove by demonstrable objective medical evidence a disability that restricts the function of her body or its members or organs[.]" He added that White needed to show him "what has been proven by demonstrable objective medical evidence as [to] the disability."

We find that the judge properly applied the statutory definition by requiring White to show how she had met her burden under the statute. He was not actually asking for a new or different definition of disability. This finding is confirmed by the judge's statements later in the hearing that he needed White's attorney to "fill in the blank" and "tell me the percentage you believe you carried" and "propose the judgment."

We also find that the judge's determination of disability is supported by the weight of the evidence. See R. 2:11-3(e)(1)(D). The judge properly evaluated the experts' credibility and made fact-finding determinations that are entitled to our "substantial deference." See Ramos, supra, 154 N.J. at 594. The judge found Bed Bath & Beyond's orthopedic expert, Dr. Pinsky, more credible than White's expert, Dr. Cataldo. The judge of compensation 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." Id. at 598. The dismissal of the psychiatric disability claim is also supported by the evidence, as White herself testified that she never sought "any psychiatric or [counseling] treatment" and it did not affect her sleep. See R. 2:11-3(e)(1)(D).

Next, White argues that the judge erred in determining that her right hip claim was not before the court, as her petition alleged "right side" injuries. The credible evidence supports a finding that there was no right hip disability. See R. 2:11-3(e)(1)(D). The medical reports did not discuss any treatment for a hip injury and Dr. Pinsky testified that White did not have any disability in her hip.

White's final argument is that "the judge of compensation committed error by deciding the case in a piecemeal fashion rather than considering the cumulative impact of the injuries on the petitioner's ability to function." The judge informed the parties of his decision that White was not totally disabled, and that he would consider her claim as one for partial disability. He informed the parties of the percentage of White's partial disability at a later hearing. This procedure is not so wide of the mark to require reversal. There were not two trials held; the judge's decision was simply rendered over two separate hearings.

We find that White's remaining arguments lack sufficient merit to warrant any further discussion in our opinion. R. 2:11-3(e)(1)(E). Given the expertise of workers' compensation judges and the deferential standard we are obligated to apply, we see no reason to disturb the judge's decision.

Affirmed.

1 "The odd lot doctrine is applied where the handicaps personal to the worker over and above the limitations on work capacity directly produced by his accidental injury render the worker unemployable on a regular basis in a reasonably stable market. In such circumstances the worker is considered totally disabled." Kovach v. Gen. Motors Corp., 151 N.J. Super. 546, 552 (App. Div. 1978) (citing Germain v. Cool-Rite Corp., 70 N.J. 1, 9 (1976)). Here, the judge found that the odd lot doctrine did not apply because of lack of notice. See id. at 552-53.

2Perez v. Capitol Ornamental, Concrete Specialties, Inc., 288 N.J. Super. 359 (App. Div. 1996).