KEVIN DURNIEN v. UNITED PARCEL SERVICE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

KEVIN DURNIEN,

Petitioner-Appellant,

v.

UNITED PARCEL SERVICE and

SECOND INJURY FUND,

Respondents-Respondents.

______________________________________________________

August 8, 2014

Argued July 16, 2014 - Decided

Before Judges Lihotz and Guadagno.

On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition No. 2007-32794.

Danielle S. Chandonnet argued the cause for appellant (Shebell & Shebell, LLC, attorneys; Ms. Chandonnet, on the brief).

Shealtiel Weinberg argued the cause for respondent United Parcel Service (Freeman, Huber, Sacks, Brennan & Fingerman, attorneys; Michael Huber and Mr. Weinberg, on the brief).

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

PER CURIAM

Petitioner Kevin Durnien appeals from an order of the workers' compensation court entered June 3, 2013, dismissing his claim against respondent the Second Injury Fund. He also appeals from an order for judgment entered June 21, 2013, awarding him twenty-percent partial total disability. For the reasons that follow, we affirm both orders.

Durnien began working as a tractor-trailer driver for respondent United Parcel Service (UPS) in 1996. In 2003, Durnien was diagnosed with Parkinson's disease. After the diagnosis, Durnien continued his work at UPS, although he was required to renew his commercial driver's license every six months as opposed to every two years. See 49 C.F.R. 391.43(f) (2014) ("In instances where the medical examiner has determined that more frequent monitoring of a condition is appropriate, a certificate for a shorter period should be issued."). Durnien began to take medication for the Parkinson's in 2004.

On October 25, 2007, Durnien was making a warehouse pickup when he fell on his elbow and injured his rotator cuff. Durnien underwent arthroscopic surgery on his shoulder followed by physical therapy. UPS deemed the injury work-related and compensable. Durnien's medical expenses were paid and he was given a partial total permanent disability award.

A few weeks after his surgery, Durnien noticed a worsening of his Parkinson's symptoms. He experienced depression and tremors and his medication had to be increased. Durnien's physician would not recommend the renewal of Durnien's commercial driver's license (CDL) and he lacked sufficient seniority at UPS to qualify for a light-duty assignment. He separated from UPS on October 1, 2008.

Durnien filed an initial claim petition on December 5, 2007, alleging only the right shoulder injury. On April 6, 2009, Durnien filed a claim against the Second Injury Fund pursuant to N.J.S.A. 34:15-95.1, claiming total and permanent disability as the result of a combination of his pre-existing Parkinson's condition and the October 25, 2007 accident. The claims were consolidated and tried before the Chief Judge of Compensation, Peter J. Calderone. Testimony was provided by Durnien, Anca Bereanu, M.D., his examining neurologist, Floyd Krengel, D.O., his examining orthopedist, and Steven Mandel, M.D., UPS's neurologist. The judge also considered reports prepared by Vijay Paharia, M.D., UPS's orthopedist, and David J. Gallina, M.D., UPS's examining psychiatrist.

Following trial, Judge Calderone read a decision into the record finding that Durnien had not established a compensable disability related to his Parkinson's disease or his psychiatric condition but had established a twenty-percent partial total disability as to his right shoulder injury. Durnien's claim against the Second Injury Fund was dismissed. On July 31, 2013, Judge Calderone provided a written amplified decision pursuant to Rule 2:5-1(b).

On appeal, Durnien presents the following arguments:

point i

the petitioner had sufficient pre-existing medical conditions to be [eLIGIBLE] for second injury fund benefits.

a. the work accident of October 25, 2007 resulted in permanent injury to the petitioner's right shoulder and accelerated and/or aggravated his parkinson's disease.

point ii

the order for judgment was insufficient to compensate petitioner for permanent disability for the right shoulder injury in light of the expert opinions.

Our role when reviewing a decision of a judge of compensation is limited. Lindquist v. City of Jersey City Fire Dep't., 175 N.J. 244, 262 (2003). We consider "'whether the findings made could reasonably have been reached on sufficient credible evidence presented 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." Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).

In concluding that the October 24, 2007 accident did not "aggravate, accelerate or adversely affect" Durnien's pre-existing Parkinson's disease, Judge Calderone made specific credibility findings supporting his rejection of Dr. Bereanu's conclusions and reliance on Dr. Mandel's. Judge Calderone found that Bereanu "was not a credible witness [and was] ill prepared for her testimony which was essentially a repetitive without foundation assertion that the work accident somehow aggravated petitioner's Parkinson's Disease in some non-measureable way."

By contrast, Judge Calderone found Dr. Mandel "credible, competent and fully prepared to support his findings that the Parkinson's Disease was not aggravated by the work accident." The judge also noted that Dr. Mandel actively treats patients suffering from Parkinson's and fully researched the trial issues.

We owe these factual findings substantial deference. See Ramos v. M & F Fashions, Inc., 154 N.J. 583, 594 (1998). "We may not substitute our own factfinding for that of the [j]udge of [c]ompensation even if we were inclined to do so." Lombardo v. Revlon, Inc., 328 N.J. Super. 484, 488 (App. Div. 2000). We must accord deference to the judge'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.'" Lindquist, supra, 175 N.J. at 262 (quoting Perez v. Monmouth Cable Vision, 278 N.J. Super. 275, 282 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995)).

Sufficient credible evidence in the record sustains Judge Calderone's finding that the twenty-percent partial total award fully compensated Durnien for his work-related injury. The judge relied primarily on Dr. Gallina's extensive report and conclusions that "there is no direct causal connection between any neuropsychiatric illness or disorder and the accident in question [and] no neuropsychiatric treatment is indicated for Mr. Durnien at this time as related to the accident in question." We must defer to Judge Calderone's expertise in assessing Durnien's disability, "so long as the judge's findings are supported by articulated reasons grounded in the evidence" in the record. See Perez v. Capitol, Ornamental Concrete Specialties, Inc., 288 N.J. Super. 359, 367 (App. Div. 1996) (citing Lewicki v. N.J. Art Foundry, 88 N.J. 75, 88-90 (1981)).

Finally, the record fully supports the judge's decision that Durnien failed to establish Second Injury Fund liability. The Second Injury Fund provides compensation "to persons totally disabled, as a result of experiencing a subsequent permanent injury under conditions entitling such persons to compensation therefor, when such persons had previously been permanently and partially disabled from some other cause[.]" N.J.S.A. 34:15-95. The purpose of the Second Injury Fund is "to encourage the hiring by industry of people handicapped by pre-existing disabilities[.]" Paul v. Balt. Upholstering Co., 66 N.J. 111, 129 (1974); Sexton v. Cnty. of Cumberland, 404 N.J. Super. 542, 555 (App. Div. 2009). However, "the Legislature has manifested concern that the Fund not be subject to undue invasion[.]" Paul, supra, 66 N.J. at 129. The statute precludes benefits "[i]f a person who is rendered permanently partially disabled by the last compensable injury subsequently becomes permanently totally disabled by reason of progressive physical deterioration or preexisting condition or disease." N.J.S.A. 34:15-95(d).

It is not disputed that Durnien's Parkinson's disease predated his workplace injury by at least four years and continued to progress after the accident. Although Durnien's physician would not certify him for a CDL, Durnien testified that he was capable of continuing to work at UPS and sought a position that did not require a CDL. He failed to obtain a lighter-duty job not because of a disability, but due to his lack of seniority.

In addition, as Judge Calderone noted, after Durnien's separation from UPS, he received unemployment benefits. To be eligible for unemployment benefits, an individual must be "able to work, and . . . available for work[.]" N.J.S.A. 43:21-4(c)(1). The proofs at trial failed to establish that Durnien's compensable accident aggravated his pre-existing Parkinson's disease. Because such evidence is lacking, Second Injury Fund liability is precluded.

Affirmed.