KENNETH NICHOLS v. MIDSTATES PACKAGING INC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

KENNETH NICHOLS,

Petitioner-Respondent,

v.

MIDSTATES PACKAGING, INC.,

Respondent-Appellant.

________________________________________________________________

August 1, 2014

Submitted April 1, 2014 Decided

Before Judges Espinosa and Koblitz.

On appeal from the New Jersey Department of Labor and Work Force Development, Division of Workers' Compensation, Docket No. 2008-27702.

Law Offices of Viscomi & Lyons, attorneys for appellant (Thomas E. Miller, on the brief).

Demasi & Williams, attorneys for respondent (J. Scott DeMasi, on the brief).

PER CURIAM

Midstates Packaging, Inc. (Midstates) appeals from a judgment entered by a judge of the Workers Compensation Court in favor of petitioner Kenneth Nichols. Midstates does not dispute that Nichols had an accident during the course of his employment. It argues only that the decision must be reversed because the finding that there was a causal relation between Nichols's injuries and the accident is not supported by credible evidence. We disagree and affirm.

Nichols was employed by Midstates as a mechanic. As part of his employment, he serviced forklifts. On April 7, 2008, Nichols was trying to take the transmission out of a Hyster forklift. He placed the back wheels of the forklift up on blocks so he could take the bolts out of the transmission. While underneath the forklift, Nichols heard a pop in his shoulder at the same time the forklift rolled off the blocks and over his left shoulder. His skin was not broken by the fork lift. Nichols immediately reported his injury to his supervisor. A co-worker drove Nichols to Somerset Medical Center, where he was examined and an x-ray of his left shoulder was taken. Nichols was told he had pulled a muscle, given pain medication, and told to perform only light duties at work. He returned to work but continued to report shoulder pain to his supervisor.

Two weeks later, Nichols saw his family doctor, Dr. John Berdini, who gave him antibiotics and prescribed pain medication. Dr. Berdini scheduled an appointment for Nichols with an orthopedic surgeon one week later. The orthopedist told Nichols that if the pain did not get better, he would need surgery "because it was infected." Nichols developed a sore red lump on his collar bone. In May 2008, Dr. Berdini noted an abscess and wanted Nichols to have it drained. Nichols declined because he did not have insurance.

In June 2008, Nichols drove to Virginia for a family funeral. He collapsed upon arrival after stepping out of his truck and was taken to the hospital, where he remained for eleven days. He was diagnosed with liver failure, MRSA (methicillin-resistant Staphylococcus aureus), a broken collar bone, some broken ribs, and a herniated disk. Nichols was released to home health nursing care in Virginia for eleven weeks. He was treated with a PICC line to deliver antibiotics. When he returned to New Jersey, he was told his position had been terminated at Midstates.

Prior to his accident on April 7, 2008, and between the time of the accident and the funeral, Nichols had never been diagnosed with MRSA or received any injuries to his lower back, ribs, clavicle, or shoulder.

After his termination, Nichols continued to see Dr. Berdini for pain medicine and management. Nichols experienced several new medical issues after his termination. He had infections under his arms and on his scrotum. He experienced numbness in his left toes, prompting him to go to St. Luke's Hospital for treatment. At the hospital, an MRI was performed that revealed a swollen spine. Nichols was given pain pills and told to see a pain specialist. His right pinkie finger became completely rigid and unable to bend. Each week, he sees a pain specialist at St. Luke's, who has prescribed OxyContin and Percocet three to four times a day, antibiotics three times a day, and sleeping pills. Nichols continues to see Dr. Berdini monthly.

There were some differences in the accounts Nichols provided regarding how he was injured. The Somerset Medical Center record notes the "Reason for Exam" as "pain, 'pop' after lifting heavy object this am." His regional manager, Walter Whittle, testified that Nichols told him he was injured while pushing a tow motor. The record from the hospital in Virginia, Montgomery Regional Hospital, states, "The patient apparently had a fall from a forklift approximately 2 months ago in which he injured his left shoulder and since that time he has noticed some left shoulder swelling on and off that was associated with pain."

Two physicians testified on behalf of Nichols: Dr. Theodora Maio, a general surgeon, and Dr. Leonard Joachim, a specialist in internal medicine. Both concluded a causal relationship existed between the accident at Midstate and his injuries.

Based on her review of Nichols's Somerset Medical Center records, Dr. Maio diagnosed a fractured medial clavicle and a fractured rib. She found no evidence of a fracture in the x-rays of the left shoulder but also stated that the x-rays may not have included the clavicle portion that was fractured.

Dr. Joachim found that the blunt injury made the skin more vulnerable to MRSA, which he could have contracted at the Somerset Hospital Emergency Room. Dr. Joachim gave no significance to the differences in Nichols's accounts of how he was injured, relying instead on his injuries and symptoms.

Two physicians testified on behalf of Midstates that there was no connection between Nichols's injuries and the accident: Dr. Kenneth Peacock, an orthopedic surgeon, and Dr. Monroe Karetzky, a specialist in internal medicine.

Dr. Peacock reasoned that the injuries presented did not line up with the various descriptions of the accident. Dr. Peacock stated the x-rays of the outside of left shoulder did not reveal a fracture of the clavicle or rib, although he acknowledged the x-ray did not show the medial clavicle. Dr. Peacock stated that if Nichols did have a fractured clavicle or any other fracture, it would be difficult for him to carry out daily activities.

Dr. Karetzky also found no fractures in the x-rays but acknowledged bones were not his field and therefore he did not feel confident commenting on them. Based on his examination of a culture report, Dr. Karetzky believed that Nichols did not have MRSA but MSSA (methicillin-susceptible Staphylococcus aureus). Additionally, Dr. Karetzky found that Nichols's current scrotal testicular cutaneous fistula could not be related to an incident that occurred one year before it presented.

Our review of judgments in 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 both the factual findings and legal determinations made by the Judge of Workers' Compensation 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 v. Investors Ins. Co., 65 N.J. 474, 484 (1974)), certif. denied, 140 N.J. 277 (1995); see also Close, supra, 44 N.J. at 599 (stating that "in the case of agency review," we give "due regard also to the agency's expertise where such expertise is a pertinent factor").

The petitioner in a workers' compensation case "must prove both legal and medical causation," Lindquist, supra, 175 N.J. at 258-59, "by a preponderance of the probabilities." Perez, supra, 278 N.J. Super. at 282 "[P]roof of medical causation means proof that the disability was actually caused by the work-related event. Proof of legal causation means proof that the injury is work connected." Lindquist, supra, 175 N.J. at 259 (citation omitted). "The standard is one of reasonable probability; i.e., whether or not the evidence is of sufficient quality to generate a belief that the tendered hypothesis is in all likelihood the truth. The evidence must be such as to lead a reasonably cautious mind to the given conclusion." Lesniewski v. W.B. Furze Corp., 308 N.J. Super. 270, 279 (App. Div. 1998).

Midstates' contention that no causal relation existed is largely based on the facts that Nichols gave differing accounts of how the accident occurred and that no fracture was detected in the x-rays taken at Somerset Medical Center. The Judge of Workers' Compensation acknowledged both these factors in her decision, stating,

Granted, petitioner's history of the accident varies a little each time he relates it, but the general idea is constant. He hurt his shoulder at work and went to the hospital for treatment immediately. The MRSA infection correlates with the accident in time and area of the body affected as well as treatment in the hospital, a risk factor for MRSA. Unfortunately, petitioner is not the most articulate communicator, nor is he sophisticated as to medical causation. He described the accident as a shoulder injury. The hospital interpreted this to mean the shoulder joint and consequently x-rayed the joint.

As Dr. Maio suspected and Dr. Peacock confirmed, the x-ray taken at Somerset Medical Center did not include the medial clavicle where the fracture was later found. The judge cited the testimony given by both internal medicine experts that it is unnecessary for there to be a break in the skin for MRSA to develop. She discounted the testimony provided by Dr. Karetzky that "there is no evidence of a severe injury related to the" accident and that the April 7, 2008 injury aggravated the "initial left shoulder injury that resulted in an impingement syndrome," stating he was "an internist, not an orthopedist, and there was no prior left shoulder injury." She further questioned Dr. Karetzky's reasoning.

The judge noted Nichols had "no prior fractured ribs or clavicle, no prior left shoulder injury and no MRSA infections; nor did he suffer any of these conditions after the accident and before he was seen in Virginia." She found the "only logical conclusion" to be that "his MRSA infection, left shoulder injury, and fractures were caused by the work injury when he felt a pop in his shoulder and the fork lift rolled over him."

The fact that Nichols provided inconsistent statements regarding the accident and his injury did not defeat his claim; it required the judge to sift through the accounts, to consider the circumstances under which they were given, and to make a determination of Nichols's credibility. She gave the inconsistency little weight, noting his lack of sophistication, his poor ability as a communicator, and the fact that he was under the influence of morphine when he described the accident to the hospital staff in Virginia. She also made a credibility determination as to the weight to be given to the testimony provided by Midstates' experts. The judge compared the accounts with the known facts reflected in the medical records to arrive at what she termed "the only logical conclusion."

We are satisfied that the judge's decision is sufficiently supported by credible evidence in the record and is entitled to our deference.

Affirmed.