COLLEEN FITZGERALD v. WALMART

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

COLLEEN FITZGERALD,

Petitioner-Appellant,

v.

WALMART,

Respondent-Respondent.

____________________________________

November 20, 2015

Argued October 21, 2015 Decided

Before Judges Haas and Manahan.

On appeal from Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition Nos. 2012-10294 and 2012-10296.

Walter J. LaCon argued the cause for appellant (Cooper Levenson, attorneys; Mr. LaCon, on the brief).

Lora V. Northen argued the cause for respondent (Capehart & Scatchard, P.A., attorneys; Ms. Northen, of counsel; Andrea L. Schlafer, on the brief).

PER CURIAM

Petitioner, Colleen Fitzgerald, appeals from the orders and decision(s)1 entered by a workers' compensation judge dismissing with prejudice her claim petitions filed with the New Jersey Division of Workers' Compensation. After a careful review of the record, we affirm the judge's decision.

We derive the following facts from the record. On April 26, 2010, while working as a zone merchandising supervisor for respondent, Walmart, petitioner was walking down an action alley when she suddenly felt a "pop" in her lower back. She was not engaged in any activity other than walking at the moment of the injury, though testimony revealed that at some time prior to the injury she was engaged in her everyday activities while on the job, which included lifting of some kind. Petitioner immediately experienced severe pain radiating into her buttocks and down her legs. She reported the injury to her zone manager, but did not fill out an accident report because she believed the injury was temporary and the pain would subside. When she returned to work the following day she experienced severe pain and her leg began to give out. She was sent home.

Petitioner was seen by her family doctor on April 29, 2010. The doctor prescribed two medications and an MRI. Petitioner completed paperwork for her first twelve-week leave of absence on the same date. A May 13, 2010 MRI revealed protruding discs at L4-L5 and L5-S1, and mild displacement of the right L5 and the S1 nerve roots. Petitioner was also treated by a chiropractor in May 2010.

Following petitioner's return from her leave of absence, the pain was "bearable," but still hurt and would increase throughout the day. Petitioner was initially prescribed various pain medications and used Ibuprofen to cope with the pain at work. In June 2011, petitioner sought additional care after her back pain increased from a bout of coughing. Upon being placed on a second leave of absence, petitioner received a series of epidural injections.2 In November 2011, petitioner was involved in a non-work-related slip-and-fall and broke her left elbow, requiring a third leave of absence. She never returned to work for respondent and was terminated in September 2012. Petitioner continued to receive treatment and injections through December 2013.

In April 2012, petitioner filed two claim petitions with the Division of Workers' Compensation, asserting alternative causes of injury. The first claim petition alleged petitioner sustained an injury in an accident suffered while working for respondent on April 26, 2010. The second claim petition alleged, in the alternative, that petitioner's injury resulted from occupational exposure from her start date in December 2008, and that it was occupationally aggravated following the injury. Respondent filed answers to both petitions denying compensability of the claims.

In December 2013, petitioner filed a notice of motion for temporary and/or medical benefits pursuant to N.J.A.C. 12:235-5.2. Respondent filed an answer, and the motion was subsequently amended to include an additional expert report. The claim petitions were then amended, and respondent filed an answer to the amended claim petitions which included additional expert reports in support of its defense. The judge heard testimony from petitioner, petitioner's medical and psychiatric experts, and from respondent's medical expert. The judge also admitted respondent's psychiatric expert report by stipulation.

Petitioner's medical expert diagnosed protruding discs at L4-L5 and L5-S1 with an annular tear at the S1 nerve root. He found her to be suffering from lumbar radiculopathy, lumbar and cervical fibromyositis syndrome, and cervical radiculopathy. He opined that petitioner's physical condition was causally related to her employment with respondent. Respondent's medical expert diagnosed petitioner with an annular tear and disc protrusion at L4-L5 and L5-S1, and opined that her physical condition or injury from the April 26, 2010 incident was not causally related to her employment with respondent. Petitioner and respondent both submitted psychiatric evaluations, suggesting that petitioner suffers from depressive disorder and other similar disorders, and that her injury was a contributing factor to her emotional condition.

On September 26, 2014, the judge issued a decision dismissing both petitions with prejudice. A "corrected version" of the decision was issued on September 29, 2014. On October 14, 2014, the judge entered two orders dismissing each petition with prejudice. This appeal follows.

Petitioner raises the following points on appeal

POINT I

THE JUDGE OF COMPENSATION ERRED BY FAILING TO CONSIDER THAT THE PETITIONER'S APRIL 26, 2010, BACK INJURY RESULTED FROM WORK-RELATED LIFTING BUT MANIFESTED WHILE WORKING.

POINT II

THE JUDGE OF COMPENSATION ERRED BY FAILING TO CONSIDER THE MEDICAL REPORTS OF THE PETITIONER'S DOCTORS TREATING HER FOR PAIN MANAGEMENT THAT NOTED THE OCCUPATIONAL AGGRAVATION OF PETITIONER'S BACK INJURY.

The Division of Workers' Compensation "is deemed to have primary jurisdiction to decide compensability issues . . . ." Kristiansen v. Morgan, 153 N.J. 298, 314 (1998). An appellate court's scope of review 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. Jersey City Fire Dep't., 175 N.J. 244, 262 (2003) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)); accord Brock v. Public Serv. Elec. & Gas Co., 149 N.J. 378, 383 (1997).

An appellate court may not substitute its own fact-finding for that of the judge of compensation. Lombardo v. Revlon, Inc., 328 N.J. Super. 484, 488 (App. Div. 2000). The court must defer to the factual findings and legal determination 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, 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)); accord Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 484 (1974).

A workers' compensation judge is considered to have expertise in weighing the testimony of competing experts and assessing the validity of the claim. Ramos v. M&F Fashions, Inc., 154 N.J. 589, 599 (1965). A workers' compensation judge is "not bound by the conclusional opinions of any one or more, or all of the medical experts." Kaneh v. Sunshine Biscuits, 321 N.J. Super. 507, 511 (App. Div. 1999) (quoting Perez v. Capitol Ornamental, Concrete Specialists, Inc., 288 N.J. Super. 359, 367 (App. Div. 1996)). It is not a basis for reversal where a judge gives more weight to the opinion of one physician over the other. Smith v. John L. Montgomery Nursing Home, 327 N.J. Super. 575, 579 (App. Div. 2000). A judge may give greater weight to the evidence provided by a treating physician than an expert physician. Bialko v. H. Baker Milk Co., 38 N.J. Super. 169, 171 (App. Div.), certif. denied, 20 N.J. 535 (1956).

In light of the applicable standard of review, we see no reason to disturb the judge's findings of fact or the conclusions of law. We affirm substantially for the reasons set forth in the judge's comprehensive and well-reasoned written opinion. We add only the following.

In reaching his decision, the judge engaged in an extensive discussion of the underlying facts and his findings were well-reasoned, supported by the credible evidence in the record, and were not "so wide off the mark as to be manifestly mistaken." Tlumac v. High Bridge Stone, 187 N.J. 567, 573 (2006). Moreover, the judge properly engaged in an analysis of the two-step test for determining whether the injury arose out of the course of employment, known as the "positional risk test," set forth in Sexton v. County of Cumberland/Cumberland Manor, 404 N.J. Super. 542, 549-50 (App. Div. 2009) (citing Coleman v. Cycle Transformer Corp., 105 N.J. 285, 290 (1986)).3

In the first step of the positional risk test, a court must determine whether "but for" the fact of employment, the injury would not have happened. Sexton, supra, 404 N.J. Super. at 553 (citing Howard v. Hardwood's Rest. Co., 25 N.J. 72, 83 (1957)). Next, a court must analyze the "nature of the risk" that caused the injury. Sexton, supra, 404 N.J. Super. at 553; Coleman, supra, 105 N.J. at 291; Howard, supra, 25 N.J. at 85 ("Thus establishing the positional relation of the employment to the injury we must next determine the nature of the risk involved.").

Applying the test, the judge concluded the petitioner failed to satisfy the first step of the test, in part because "[t]he facts here do not establish that the petitioner would not have been exposed to the risk if she had not been at work." An appellate court must give "due regard to the opportunity of the one who heard the witnesses to judge of their credibility" and owes deference to the judge's expertise in workers' compensation issues. Close, supra, 44 N.J. at 599 (citation omitted).

Based upon our review of the record and our standard of review, we conclude the judge's decision was not erroneous.

Affirmed.

1 Following entry of the judge's initial decision on September 26, 2014, a "corrected version" was subsequently entered on September 29, 2014. There is no discernable difference between the two decisions. We refer to the judge's determination in the singular.

2 It is undisputed that petitioner was placed on a second leave of absence in June 2011, even though the testimony at trial may have been mistaken. It is unclear whether petitioner was on a leave of absence until September or October 2011.

3 It is undisputed that petitioner's injury arose during or "in the course of" petitioner's employment. Thus, the relevant inquiry was whether the injury arose "out of" the course of, or because of, petitioner's employment. See N.J.S.A. 34:15-7; Seiken v. Todd Dry Dock, 2 N.J. 469, 474-75 (1949) (citation omitted).