DEBORAH TOLEDO v. FOODARAMA SUPERMARKETS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

DEBORAH TOLEDO,

Petitioner-Appellant,

v.

FOODARAMA SUPERMARKETS and

SECOND INJURY FUND,

Respondents-Respondents.

_____________________________________

August 4, 2014

 

Argued January 29, 2014 Decided

 

Before Judges Grall and Waugh.

 

On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, CP 2006-1993.

 

Richard N. Schibell argued the cause for appellant (Schibell Mennie & Kentos LLC, attorneys; Mr. Schibell of counsel and on the brief).

 

David P. Kendall argued the cause for respondent Foodarama Supermarkets (Ann DeBellis, of counsel; Mr. Kendall, on the brief).

 

John J. Hoffman, Acting Attorney General, attorney for respondent Second Injury Fund (Rebecca A. Glick, Deputy Attorney General, on the statement in lieu of brief).

 

PER CURIAM

Petitioner Deborah Toledo appeals the December 18, 2012 orders entered by the Division of Workers' Compensation determining that she had sustained a fifty-percent permanent disability of her right hand, and dismissing her application for Second Injury Fund benefits and to reopen a prior claim. We affirm.

I.

We discern the following facts and procedural history from the record on appeal.

Toledo's new claim for workers' compensation benefits arose out of an injury she suffered while employed by respondent Foodarama Supermarkets, Inc. (Foodarama). On October 19, 2004, Toledo was standing on a stepladder in a walk-in freezer attempting to get a box of frozen crab legs from a shelf. As she pulled the box from the shelf, it and others fell and struck her. She claims that the accident resulted in an injury to her right hand, neck, and low back.

Toledo filed a workers' compensation claim in January 2006 and described the injury as a "permanent injury to right hand." Foodarama answered in March and acknowledged that Toledo was employed on the date of the accident and that the accident arose out of the course of her employment.

A year later, in January 2007, Toledo amended the claim petition to include "right hand injury, neck injury, [and] sympathetic response injury to left hand." She filed a Second Injury Fund verified petition in April 2010, claiming she was totally and permanently disabled. She claimed "[i]njury to right hand, neck injury, with sympathetic response to right hand after boxes fell" on her.

Toledo also reopened a claim she had filed regarding a January 2002 accident, in which she injured her right foot in a work-related accident involving a previous employer. That claim had resulted in a disability award of thirty-five percent of her statutory right foot. She further asserted that another prior work-related accident, as to which she had not previously filed a claim, led to a dislocated shoulder and limited her ability to work.

The parties attempted to settle Toledo's claims without success. The trial was held before a judge of compensation on April 18, June 20, and November 14, 2012.

Toledo and her expert, David Weiss, D.O., testified on her behalf. David Gross, M.D., testified on behalf of Foodarama. The parties also relied upon the reports of their non-testifying neuropsychiatric experts: Vinobha Gooriah, M.D., for Toledo; and Allen S. Josephs, M.D., and Erin Elmore, M.D., for Foodarama.

Toledo described two accidents prior to 2004 in which she sustained injuries while working. In 1998, she was working at Pathmark in Wall Township as a deli clerk. She separated her left clavicle and injured her left shoulder when attempting to move approximately ten-to-twelve cases of chicken.1 Toledo also described the injury to her right foot in January 2012, while working at Shop Rite, which was the subject of her earlier claim petition.

Toledo testified as follows regarding the 2004 event that caused her injuries:

[A c]ustomer came in, and he wanted king crab legs. We kept them on the top shelf. There were boxes in the freezer. The freezer was overstocked, and we had a stepladder there, and I didn't realize there was ice there. We when I put the stepladder down, I went to pull the box out, and there were other boxes on top which I did not see. I pulled them out, and those boxes came down. I fell backwards, and I tried to stop them from hitting me, and that's when I thought it just jammed my finger, but it was more.

 

She clarified that she attempted to "block" the boxes from falling on her, but the boxes "came down on my head, my neck, and my hand." She also testified that the boxes caused her to fall on the floor, which was slippery due to ice formed by condensation in the freezer.

Toledo reported the 2004 accident to the store manager, and then went to a family medical care facility. She was referred to Jersey Shore Medical Center for x-rays of her right hand. She was told she had a crack in her middle finger, which the hospital placed in a splint. She returned to work.

Toledo was subsequently treated by Teddy L. Atik, M.D., at Monmouth Medical Center, who eventually recommended that she stop working. According to Toldedo's testimony, Atik performed several procedures on her right hand: "a right carpal tunnel release and right middle finger flexor tenosynovectomy" on January 21, 2005; another release on May 24, 2005; a procedure on August 2, 2005, for the "right thumb, index finger, ring finger, pinkie finger, [and] trigger finger"; and two more similar procedures on August 15, 2005 and July 7, 2006.

Toledo also had a cervical MRI in November 2006, the result of which was determined by Foodarama's workers' compensation carrier to be unrelated to the original injury. As a result, she did not receive treatment for her neck problem through workers' compensation. However, she began receiving treatment after she became eligible for Medicare. In 2006, Toledo received care for pain management from Didier Demesmin, M.D., and Sharon C. Worosilo, M.D. Demesmin injected a series of epidural shots in Toledo's neck for pain. She also received care for her low back from Gino Chiappetta, M.D., who recommended back surgery. Toledo did not pursue the surgery due to the expense of the co-pay and Toledo's apprehension about the nature of the surgery.

At the time of trial, Toledo described the shape of her hand as "[l]ike a lobster claw." She wore a brace to protect her right hand and exhibited a limited range of motion. Toledo testified that her entire right hand aches on a daily basis, that she has a "[p]ins and needles" sensation in the palm and fingertips that radiates up the arm to the shoulder and neck, and that her head sweats and "just stays damp a lot." Toledo also testified that her injuries prevent her from sleeping, and that she has gained "about 100 pounds" since the 2004 accident.

On cross-examination, Toledo claimed that she needed a cane to move around outside of work after her injury in 2002, but that she did not use the cane at work because she "was walking on [her] toes." Regarding the 2004 accident, Toledo testified that there were two, twenty-pound boxes of shrimp on top of the thirty-pound king crab box.

Weiss testified for Toledo "as an expert in orthopedics and Workers' Compensation disability evaluations." He evaluated Toledo in June 2009 and issued a report based on that evaluation. In his report, Weiss noted that Toledo sustained injuries to her right hand, neck, and low back as a result of "a 20 pound box of frozen fish [falling] on her from 3-4 feet above."

Weiss concluded the following with respect to Toledo's injuries from the 2002 and 2004 accidents: (1) she experienced "77 1/2% of partial total [impairment] due to residuals of multiple stenosing tenosynovitis of the right hand" requiring multiple surgeries; (2) she had "57 1/2% [impairment] to the right hand due to residuals of a post-traumatic carpal tunnel syndrome"; (3) she experienced "47 1/2% of partial total [impairment] due to residuals of multi-level cervical disc pathology, an aggravation of pre-existing quiescent age related osteoarthritis, and cervical radiculitis" requiring pain management intervention for her cervical spine; (4) "57 1/2% of partial total [impairment] due to residuals of multi-level lumbar disc pathology, aggravation of pre-existing quiescent age related osteoarthritis, a lumbar radiculitis and post-traumatic facet joint syndrome" requiring pain management and surgery for her lumbar spine; and (5) she had a "65% of partial total [impairment] overall" for her right ankle and foot. This led him to the conclusion that she was "100% disabled as a physiological industrial unit from all causes."

Based on his report, Weiss testified that Toledo had daily, ongoing neck, low back, and right ankle and foot pain and stiffness. In response to a question as to whether Toledo's condition was related to her "two work-related accidents," Weiss responded:

I would say it is. I mean, in terms of the issues of the hand, the carpal tunnel, the right ankle and foot. In terms of the cervical and lumbar spine I did find preexisting pathology when I reviewed the films myself in both the neck and low back. That being said, could this patient certainly when she sustained the work-related injury of December 19, [20]04, could that have caused these aggravations to the point we are [at] now? It's certainly consistent. Somebody could fall. They could also get a axial load injury to the neck so it's all in the realm of things.

 

I mean, if you ask me from the MRI could I tell you that the herniated disc I saw, were they directly attributable to those injuries? We don't know when we look at MRIs. It's very hard when you look at films to say, this herniated disc is from this accident. All you can say is, I see a herniated disc here; I see these bulging discs; I see the enlargement of the facet joints. Could they have been there a week before this, before the injury? It's possible they could have been.

 

What you have to look at then is what's the medical record? Well, there was no medical record provided by your office to me that showed that this patient was under active treatment for her neck or low back prior to the injury. There's no record that she needed a hospitalization for her low back prior to the injury. There's no record that she needed interventional pain management with multiple cervical and lumbar epidural blocks and multiple facet joint blocks so to some extent you're relying on the medical record, to some extent you have to rely on the credibility of the Petitioner or the claimant in this case and so that's how you have to formulate these things.

 

Weiss testified that Toledo's cervical spine injury was consistent with boxes falling on her and her falling on the ground. Weiss noted that Toledo had age-related conditions regarding her back, but that she did not have these age-related problems prior to the accidents. Regarding Toledo's hand and the multiple surgeries on the hand, Weiss testified that "I think you'll get into a worse problem" in attempting to perform more surgery.

Weiss concluded that Toledo was

totally and permanently disabled from all causes, both if you look at preexisting issues that you find on the MRI studies, the issue of the preexisting right foot and ankle, and the subsequent injury with the right hand, the issue of the class II opioids that she's on now, she's not going to go back to work.

 

On cross-examination, Weiss noted that Toledo's description of the 2004 incident during his examination that "a 20 pound box of frozen fish fell on her from three to four feet above" was different from her assertion at trial that several boxes fell on top of her. In addition, Weiss admitted that he did not have an answer for why there would be a two-year delay in symptomatology regarding neck and back pain, stating that "what she told me is that when this event happened, I injured my neck, I injured my low back, I injured my right hand. The focus of my treatment was to my right hand. I didn't get better. Eventually the focus became my neck and low back."

Weiss noted that one of the medical reports he reviewed, which was prepared in October 2005, did not note any back or neck pain. Weiss also testified that, in his assessment of Toledo's cervical spine and lumbar spine, part of her injuries were "an aggravation of preexisting quiescent age-related osteoarthritis."

Gross testified on behalf of Foodarama as "an expert in the field of orthopedics." He examined Toledo in 2008 and again in 2011. In his November 2008 report, Gross characterized the events precipitating Toledo's injuries as "boxes fell on the right middle finger. Claimant said she injured only the finger which was struck by the box." He found that she showed "15 degree loss of motion for the neck," that her "[g]ait was normal, narrow-based," the cervical disc was "incidental, degenerative, and unrelated to this trauma or the occupation in any way" and she had "a permanent disability of 3% of partial total," and that she "shows an overall permanent disability of 25% of the right hand, regardless of cause." Gross concluded that Toledo "could work but has restricted use of the right hand."

After evaluating Toledo the second time, Gross produced another report in December 2011. He characterized the 2004 event as a "box fell on right middle finger" and the "2004 box falling on the right finger episode." In the 2011 report, he noted that Toledo "[a]mbulates with a cane." Gross found her right hand and neck disability percentages were the same, and "5% for the back." He also found five-percent permanent disability of the statutory right foot "regardless of cause," and "permanent disability 2% partial total regardless of cause" for her right shoulder. Gross concluded that Toledo "is capable of some form of light or sedentary work."

According to Gross, he "reviewed extensive records" from multiple doctors, and the records indicated Toledo "had a poor response to the treatment of the right hand, and it seemed to me the doctors were searching for additional causes for symptoms." He noted that an MRI was completed of her neck, which he believed "showed only some ordinary degenerative changes."

Regarding her gait, Gross testified that he did not notice any problems. As to her neck, Gross observed "15 degree loss of motion" in the neck, which would "normally turn the head 90 degrees to the right." With respect to Toledo's hand, he observed "scarification for four surgeries," "she has aching for the entire hand," and that "she has basically a stiff hand, worst for the long finger and the thumb, but also the other fingers are stiff such that her grip and grasp are markedly reduced and manipulations are also diminished."

Gross concluded that Toledo had "25 percent [impairment] of the statutory right hand, and . . . that the right hand was causally related to th[e 2004] accident." Regarding her neck, Gross stated that Toledo had "3 percent partial total [impairment] for the neck," but that it was due to "a degenerative issue in the neck . . . unrelated to this trauma or the occupation in any way meaning that it had not been accelerated[ or] aggravated." He noted that it would be "very very inconsistent with this history and treatment to conclude that there was a neck injury sustained at the time of this accident."

Based on his 2011 reassessment of Toledo, Gross testified that her right hand "look[ed] the same as in [20]08" and he was not "aware of any new significant treatments to the right hand." As a result, his assessment of disability remained the same for the right hand. Similarly, he examined Toledo's neck and found her condition to be the same. Regarding her low back, Gross found that Toledo had "a disability of 5 percent for the back regardless of cause."

Gross testified that he did not examine Toledo's right foot in 2008, but did examine it in 2011 because she complained of heel pain. He concluded that the source of her pain was the 2002 accident, and opined that the percentage of disability for the right foot was five percent. Gross observed that Toledo was using a cane in 2011 to walk, which "was new" as compared to the 2008 examination. He explained that he also examined Toledo's right shoulder and found "a disability 2 percent partial total regardless of cause for structural changes" that was "unrelated in any way to the right hand, the [20]04 injury, or the occupation."

On cross-examination, Gross testified that he believed "that definitely there is symptom magnification" regarding how Toledo presented herself during the examinations that was either "voluntary or involuntary." Gross later noted that a previous doctor suggested a number of theories regarding Toledo's injuries:

[I]t is Dr. [John] Vester who puts forth a number of theories including possibly in his words functional overlay which means symptom magnification or some other again voluntary or involuntary, but some cause that's functional, meaning not anatomic, not related to injury, and, yes, Dr. Vester puts forth other theories as well, and in this case he likewise comments that this injury was limited to a blunt trauma to the right hand in his words, and thus he's a little puzzled by the alleged carpal tunnel surgeries and the trigger finger surgeries as I've mentioned as well.

 

Gross was clear that he believed the neck and back pain were degenerative based upon Toledo being "100 pounds overweight . . . in her mid 50's."

Gooriah's March 2009 report concluded that "Toledo's injuries [were] the competent factor that resulted in the subjective symptoms" she exhibits, and accordingly ruled out malingering or symptom magnification. As a result, he classified her neuropsychiatric disability as "65% partial of total" and her neurologic disability as

55% permanent partial of total for cervical disc pathology, cervical radiculopathy, and migraine headache;

 

50% to the right hand for carpal tunnel syndrome with pain and paresthesias to the right hand[;]

 

20% to the left hand for carpal tunnel syndrome[;]

 

40% to the right shoulder for pain[; and]

 

20% to the statutory right upper extremity for cubital tunnel syndrome.

 

[(Alterations to formatting).]

 

Gooriah opined that, "[a]s a physiological industrial unit, . . . [Toledo is] totally and permanently disabled."

Josephs' May 2007 report from his "neurological and psychiatric consultation" concluded that Toledo "does appear to be suffering with some degree of chronic pain in the right upper extremity. Her disability is largely of an orthopedic nature and should be evaluated in this regard." Josephs opined: "Neuropsychiatrically, I find her to be overall normal." Accordingly, he assessed her "permanent neurologic disability at no more than 4% of the right hand. There is no evidence of any permanent neuropsychiatric disability in this patient."

Elmore's report from her December 2011 "neurological and psychiatric consultation," included the following impressions regarding Toledo:

I would remain at the assessment of permanent neurologic disability of the right hand although I believe that the hyperextension issues are either non organically related or related to an orthopedic disability. However, I suspect that these are more inorganic. I find no neuropsychiatic disability. I would remain at permanent neurologic disability at 4% of the right hand only. I find no evidence of a radiculopathy.

On December 18, 2012, the judge issued a written decision in which she found that Toledo had suffered a fifty-percent permanent disability of her right hand, related to the 2004 accident. The judge further determined that Toledo's neck and back problems were degenerative and not related to the 2004 accident. The judge also found that the prior work-related injury to Toledo's foot was unchanged and did not warrant additional disability payments. Accordingly, the judge granted judgment for the fifty-percent permanent disability for the right hand and dismissed Toledo's application for Second Injury Fund benefits and to reopen the 2002 case. This appeal followed.

II.

On appeal, Toledo argues that the judge's decision was not sufficiently detailed and, consequently, is not entitled to any deference. She further argues that the judge's decision is not adequately supported in the record.

Our standard of review is well-settled. We are bound by the compensation judge's factual findings that are supported by substantial credible evidence in the record. Sager v. O.A. Peterson Constr. Co., 182 N.J. 156, 163-64 (2004) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). We must give due regard to the compensation judge's expertise when that is a factor. Ibid. (quoting Close, supra, 44 N.J. at 599). "[D]eference must be accorded 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) (citations and internal quotation marks omitted). A petitioner bears the burden to establish the compensability of the claim being made. Id. at 279; Perez v. Monmouth Cable Vision, 278 N.J. Super. 275, 282 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995).

However, it is well-established that our review of a trial judge's conclusions of law is de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) ("A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference."). The same standard applies with respect to the legal rulings of a judge of compensation. Sexton v. Cnty. of Cumberland/Cumberland Manor, 404 N.J. Super. 542, 548 (App. Div. 2009).

Although we agree with Toledo that the judge's decision could have been more detailed, our reading of the written opinion in this case convinces us, nevertheless, that the judge chose to credit Gross's testimony over that of Toledo's expert witness.

Dr. Gross, a board certified orthopedist, examined petitioner on behalf of respondent on two occasions, in 2008 and 2011. Dr. Gross found petitioner's gait normal in 2008 and she walked without limping. He noted that she did not bring a cane to this examination. The doctor also pointed out an opinion of "functional overlay" by the treating doctor and Dr. Gross felt that there was definite symptom magnification, whether voluntary or involuntary.

 

As to the hand injury, he agreed with Drs. Weiss and Worosilo that petitioner did not have CRIPS. However, she did have quite a damaged hand. Both her long finger and thumb were rigid and stiff and her other fingers a little less so. Both her grip and her grasp were affected by the injury and he assessed her disability at 25% of the hand. Dr. Gross pointed out that petitioner's testimony was inconsistent with the medical records. The doctor observed that if she had injured her neck, shoulder or back in the accident she would certainly have had symptoms within a week. Moreover, petitioner is neither stoic nor shy about voicing her complaints. In short, the facts fail to support that the neck is related.

 

In his 2011 examination, Dr. Gross found the hand to be about the same and she had no significant treatment to it between examinations. Neither petitioner's neck nor her back is related to her work accidents but instead degenerative, as Dr. Weiss suspected, and a product of her aging. Dr. Gross found no disability in her left shoulder.

The judge's conclusions, that there was no increase in disability related to the 2002 foot injury and that Toledo's neck and back problems were not related to the 2004 accident, are amply supported by Gross's testimony. Gross's disability finding with respect to the foot was lower than the earlier compensation award, which was based on a finding of thirty-five percent, and certainly consistent with his finding of no further disability since the 2002 accident.

There was also evidence to support the finding that the neck and back problems were unrelated to the 2004 accident. Even Weiss, Toledo's expert, was unable to provide a convincing explanation for the two-year delay in symptomatology regarding Toledo's neck and back pain, and also conceded that there was evidence of preexisting pathology. Toledo was denied treatment through the compensation carrier based on the MRI results, which Gross testified reflected degenerative changes unrelated to the 2004 accident.

With respect to the right hand, Gross testified to a twenty-five percent disability, while Weiss claimed a total disability. The judge's finding of fifty-percent disability is consistent with her views on the relative value of the expert testimony and her apparent agreement with Gross that there was some degree of symptom magnification.

Based on the record before us, it cannot be said that the judge's findings and conclusions are "'manifestly unsupported by or inconsistent with competent relevant and reasonably credible evidence as to offend the interests of justice.'" Lindquist, supra, 175 N.J. at 262 (quoting Perez, supra, 278 N.J. Super. at 282). Because it finds support in the record, we will not question the percentage of disability determined by the judge. That is a determination particularly within the expertise of the judge of compensation. Close, supra, 44 N.J. at 599.

Affirmed.

 

 

 

1 The record is silent as to whether Toledo filed a claim with respect to the 1998 accident.