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November 17, 2014


Submitted September 17, 2014 Decided

Before Judges Alvarez, Maven, and Carroll.

On appeal from the Department of Labor, Division of Workers' Compensation, Claim Petition No. 2006-26540.

Supple, DiPopolo & Watson, LLC, attorneys for appellant (James F. Supple, on the brief).

Livingston, DiMarzio & Baptista, attorneys for respondent Corey Johnson (Frank DiMarzio and Pablo N. Blanco, of counsel and on the brief).

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

Celentano, Stadtmauer & Walentowicz, LLP, attorneys for respondents Saint Barnabas Medical Center and Hackensack University Medical Center (Steven Stadtmauer, on the brief).


Respondent City & Suburban Delivery System (City) appeals from a May 31, 2013 order directing payment of temporary and permanent disability and medical benefits to petitioner Corey Johnson. City's challenge to the order centers on the judge of workers' compensation's (JWC) findings that Johnson was a credible witness, that Johnson complied with the Benson1 rule, and that City be required to pay unauthorized medical bills, including emergency room visits to three hospitals. We affirm.

The JWC found Johnson entitled to "temporary disability benefits at the stipulated rate of $691 per week for a total of $92,199.14." He deducted $12,118.02 from this amount for a temporary disability insurance lien. He further awarded Johnson permanent disability benefits for 240 weeks at $360.40 per week, totaling $88,320.

The following is a very brief distillation of the extensive record in this case, which included nine days of trial and some thirteen witnesses. Johnson had worked for approximately four years as a driver and newspaper bundler at City's warehouse when the two incidents occurred: the first on April 1, 2006, and the second, the event the JWC found compensable, on May 17, 2006.

In April, Johnson was struck a glancing blow by a delivery truck inside City's warehouse. City had refused to provide Johnson with medical treatment for this event.

In May, the picnic bench on which Johnson was seated collapsed. When he persisted in seeking medical treatment for this incident, City referred him to Richard S. Nachwalter, M.D., an independent medical examiner. Finding that Johnson had persistent pain at the lumbosacral junction, Nachwalter concluded that his complaints were "causally related to his work injury of May 17, 2006." He recommended x-rays, an MRI, and physical therapy, depending on the results of the testing. Nachwalter also found Johnson incapable of returning to work, although he suggested in a July 12, 2006 letter that he might be able to return if provided with "frequent breaks and changes in position."

Apparently dissatisfied with Nachwalter's recommendations, City sent Johnson for a second medical examination by Gregory Gallick, M.D., on July 26, 2006. Gallick opined that Johnson had "suffered a mild, trivial injury to his lumbar spine as a result of a bench breaking . . . ." Gallick went on to state that Johnson attributed "[ninety-nine percent] of the pain" to the earlier April incident and that his visits to three separate emergency rooms were likely the result of him seeking narcotic painkillers, not legitimate medical crises. In the ensuing months, the workers' compensation carrier refused to pay Johnson's medical expenses while he continued to undergo treatment and remained out of work.

In 1999, prior to these events, Johnson was involved in two motor vehicle accidents, one as a driver, the other as a pedestrian. He filed suit and recovered damages for documented injuries to his upper back and left leg.

During the trial, City took the position that Johnson's medical conditions were caused by the 1999 accidents, and supported that position with a purported 1999 MRI of Johnson's lower back. Johnson was extensively cross-examined about the earlier treatment he received for his upper back and neck, as well as surgery on his left knee.

Johnson vigorously disputed that the 1999 MRI was of his back. The MRI depicted discogenic disease, herniated discs at a different location than on the 2006 MRIs, and spurs. The MRI listed an incorrect birthdate for Johnson, although his correct date of birth was handwritten on it as well. Johnson obtained the 1999 films from the medical facility where they had been taken, although the films had been stored in a separate warehouse. In addition to denying that the 1999 MRI was of his lower back, he denied having suffered any lower back injuries from the 1999 accidents.

Johnson presented extensive medical proofs, including the testimony of treating physicians and expert witnesses. This included the deposition testimony of Steven P. Brownstein, M.D., a practitioner of diagnostic radiology. Brownstein opined that the disputed MRI could not belong to Johnson because herniated discs and bone spurs do not spontaneously disappear. Brownstein also stated that the 1999 MRI films depicted a fifty-year-old man, while Johnson's 2006 MRIs were of a man no older than thirty-five.

City presented contrary expert testimony to the effect that the MRI was of the same person and that it was possible that the herniated discs spontaneously resolved. City's expert also asserted that the two scans could not be meaningfully compared because of the years between them, the different machines employed in producing the images, and the fact that different radiologists read the films.

Richard Kaul, M.D., Johnson's treating physician, testified that as a result of the May 2006 injury, Johnson suffered significant cervical injuries, including herniation at L4-5 and L5-S1. He was initially treated via epidural and joint injections, and later with a lumbar discogram, followed by a lumbar endoscopic discectomy. Johnson declined a spinal fusion, however, he underwent additional cortisone injections in an effort to treat the pain radiating into his legs. Johnson also developed major depressive disorder with anxiety.

The judge found that Johnson failed to establish a disability attributable to the April event and dismissed those claims. The judge, however, regarded the May accident as far more significant, resulting in disc herniations at L4-5 and L5-S1. He found Johnson suffered from "a straightening of the lumbar spine consistent with muscle spasm, a left paracentral disc herniation at L4-5 and a broad-based disc herniation at L5-S1 with partial desiccation at both levels." Johnson's "complaints [were] very real and supported by very persuasive diagnostic test results[,] which [City's] doctors conveniently [chose] to ignore." The judge concluded that the May incident resulted in forty percent permanent partial disability, apportioned thirty percent for orthopedic and neurologic injuries and ten percent for major depressive disorder. Because the judge determined that Johnson was only partially disabled, he dismissed Johnson's Second Injury Fund application.

As to the issue of credibility, the JWC found Johnson "to be an extremely credible, honest and forthright young man." He "accept[ed] his version of the April 1st accident and the numerous attempts to follow-up with [City] to determine if treatment was needed."

He added

The behavior of [City] after the first accident was totally unresponsive. The behavior of [City] after the second accident was worse than unresponsive.

When [City] finally sent [Johnson] to an independent IME, Dr. Nachwalter provided a clear and reasonable course of treatment with diagnostic tests.

However, after three conversations with Dr. Nachwalter [City] dropped this authorized treater and selected Dr. Gallick to continue the case. The report issued by Dr. Gallick attributed [ninety-nine] percent of [Johnson's] complaints of pain to the earlier accident in April and described the May 17th event as trivial. I find the report by Dr. Gallick totally unreliable.

This is the exact opposite of the testimony given by [Johnson] . . . . Mr. Johnson testified he had minimal complaints from the first accident and serious complaints from the second and compensable event.

His conduct thereafter demonstrates the truthfulness of his testimony. He spent the next [two] years seeking treatment for his low back including a discectomy, a discogram and eventually considered but declined a fusion.

The JWC also found, pursuant to Benson v. Coca Cola Co., 120 N.J. Super. 60 (App. Div. 1972), that Johnson "was well within his rights to seek outside treatment" based upon City's denial of the April incident, the dilatory fashion in which it referred Johnson for treatment after the May incident, and its refusal to provide medical care even when recommended by its first medical examiner. He thus concluded the exception expressed in Benson applied and that it would have been futile for Johnson to have continued to request coverage for medical expenses.

Turning to the issue of the disputed MRI, the JWC described Brownstein's testimony as more "clear, logical[,] and persuasive." He noted that Johnson had been forthcoming about his prior accidents and injuries, but adamant about never having undergone an MRI of his lower back. Therefore, although the judge could not "explain the existence of the prior MRI," based "on all the credible evidence," he found that it was not of Johnson's back.

The JWC also found that City failed to present evidence challenging the reasonableness and necessity of Johnson's medical expenses, including bills for emergency room visits. Thus he required the employer to pay them all.


The Workers' Compensation Act (Act), N.J.S.A. 34:15-1 to 69.3, "is but one part of a statutory, decisional, and constitutional mosaic that provides dignity for all of our citizens in the workplace" by providing a rubric of compensation for employees injured on the job. Sager v. O.A. Peterson Constr. Co., 182 N.J. 156, 169 (2004). Our standard of review in a workers' compensation case is limited to asking "whether the findings [] 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." Id. at 163-64 (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). We give substantial weight to the expertise of a compensation court judge. Harbatuk v. S&S Furniture Sys. Insulation, 211 N.J. Super. 614, 620 (App. Div. 1986).

On appeal, we do not "engage in an independent assessment of the evidence as if [we] were the court of first instance." State v. Locurto, 157 N.J. 463, 471 (1999). Where findings of fact are "supported by adequate, substantial and credible evidence" they will be affirmed. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). In such instances, we will uphold these findings even if we may have reached a different result. In re Taylor, 158 N.J. 644, 657 (1999) (citing Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988); Goodman v. London Metals Exch., Inc., 86 N.J. 19, 28-29 (1981)).

Our highly deferential standard of review is of particular importance in this case, where appellant's principal points of error hinge on the JWC's credibility determinations. See Hersh v. Cnty. of Morris, 217 N.J. 236, 242 (2014) (quoting Sager, supra, 182 N.J. at 164). The JWC has the discretion to accept or reject expert testimony, in whole or in part. Kaneh v. Sunshine Biscuits, 321 N.J. Super. 507, 511 (App. Div. 1999). The judge 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." Ramos v. M&F Fashions, 154 N.J. 583, 598 (1998).


City attacks Johnson's credibility based on his testimony regarding his 1999 injuries and the disputed MRI. Although Johnson made occasional contradictory or confused statements, his complaints were objectively verified by medical diagnostic testing. The JWC observed that Johnson's behavior was consistent with that of a person who was injured and in desperate need of medical treatment to address pain when confronted with an employer who, in the JWC's view, "was worse than unresponsive."

In any event, employers take their employees as they find them "with all of the pre-existing disease and infirmity that may exist." Verge v. Cnty. of Morris, 272 N.J. Super. 118, 125 (App. Div. 1994). Despite City's claim that Johnson's injuries were attributable to his earlier motor vehicle accidents, the record includes objective evidence of recent cervical injury. Therefore, we simply cannot say that the JWC's findings and conclusions were "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 Dept., 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)).

Employers are responsible for treatment of a preexisting condition which is exacerbated by a work accident. Sexton v. Cnty. of Cumberland, 404 N.J. Super. 542, 555 (App. Div. 2009). The burden is on the employer to prove that the compensable accident was not the cause of the exacerbation. In this case, City did nothing more than attempt to prove that Johnson was lying about his 1999 medical conditions. Even if City is correct, in the judge's opinion, Johnson objectively established that the May 2006 accident caused him significant cervical and psychiatric injuries from which he currently suffers. See Verge, supra, 272 N.J. Super. at 125.

In addition to attacking the JWC's assessment that Johnson was a credible witness, City attacks the JWC's factual findings regarding the 1999 MRI. In support of the latter contention, City draws our attention only to the fact that the JWC incorrectly stated that Brownstein was the court's designated expert, when Brownstein was Johnson's expert. This mistake was inconsequential, as the judge's factual findings are otherwise supported by the record. The JWC not only stated that he was accepting the opinion of the court-designated expert, but that, as a separate issue, he evaluated Brownstein's opinion to be more persuasive. We see no need to discuss this point further. R. 2:11-3(e)(1)(E).


City next challenges the court's Benson rulings, contending that the court erred because Johnson could have filed an application earlier, when City initially denied treatment. City also points out that Johnson's medical expert did not consider the treatment administered by Kaul to be "the gold standard." That point is irrelevant, however, since regardless of whether it was "the gold standard" or not, it was a legitimate procedure.

Where the request for treatment "would be futile, it is unnecessary that the formality be accomplished." Benson, supra, 120 N.J. Super. at 64. In this case, City did not authorize medical treatment for Johnson even after it was recommended by City's first independent medical examiner. The only action City took was to obtain a second medical opinion. It is apparent that any further request for treatment would have been futile and that Johnson was therefore entitled to obtain medical treatment on his own. W. Jersey Health Sys. v. Croneberger, 275 N.J. Super. 303, 308 (App. Div. 1994), overruled on other grounds by, Univ. of Mass. Mem. Ctr., Inc. v. Christodoulou, 180 N.J. 334, 344 (2004). The JWC's decision that Johnson was entitled to payment pursuant to Benson was not error. Treatment was necessary and would not have been authorized by the employer.


Finally, City contends that the compensation judge erred in requiring it to pay Johnson's medical bills, including $14,009 from the emergency room visits. City now takes the position that hospital staff should have testified in order to establish the reasonableness of the amounts charged and the necessity of the medical treatment. City adds that since the hospitals were granted intervenor status, they should have participated.

Having established the compensability of Johnson's injuries, it was not error for the court to grant an award based on the medical bills attached to Johnson's petition. Due to the absence of any objection by City, the bills were essentially undisputed as to the services rendered and the amounts charged. In the absence of any evidence challenging the validity of the medical charges, the JWC properly ordered City to pay Johnson's hospital bills.


1 Benson v. Coca Cola Co., 120 N.J. Super. 60 (App. Div. 1972).