KEVIN LITTLE v. COUNTRY CLUB TRANSPORTATION

Annotate this Case

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

KEVIN LITTLE,

Petitioner-Appellant,

v.

COUNTRY CLUB TRANSPORTATION,

Respondent-Respondent.

______________________________

December 17, 2015

 

Submitted December 2, 2015 Decided

Before Judges Alvarez, Haas and Manahan.

On appeal from the Division of Workers' Compensation, Case No. 2008-006495.

David J. Heintjes, attorney for appellant.

Ann DeBellis, attorney for respondent (Ms. DeBellis, of counsel; Jesse J. Simchera, on the brief).

PER CURIAM

Petitioner Kevin Little appeals from the November 25, 2013 order of the Division of Workers' Compensation, finding that an injury he sustained in 2007 was compensable and awarding him "50% partial total" disability based on a cervical disc herniation. We affirm.

We derive the following facts and procedural history from the record on appeal. Petitioner worked as a limousine driver for respondent Country Club Transportation. On December 2, 2007, petitioner suffered a compensable injury when he fell while lifting luggage. In February 2008, petitioner underwent an "anterior cervical discectomy and fusion." The parties stipulated that petitioner had a pre-existing work disability to his neck from a 2001 compensable injury sustained while working for respondent, and that petitioner "received 22.5% partial total in February[] 2003" for that injury.

On February 27, 2008, petitioner filed a claim petition, and, on December 1, 2010, filed a Second Injury Fund application, alleging that he was now "totally and permanently disabled" as a result of his injuries. Based upon the parties' stipulations, the only issue to be determined at trial was the extent of petitioner's disability and whether he was totally disabled.

Judge of Compensation Lenore K. Mohr conducted hearings over six days between December 2012 and October 2013. In his claim petition, petitioner alleged that he suffered the following injuries in the 2007 accident: "cervical sprain and radiculopathy resulting in an anterior cervical discectomy fusion, right shoulder sprain, strain and rotator cuff tendonitis and impingement, lumbar strain and related neuropsychiatric complications." In his Second Injury Fund application, "petitioner also alleged injuries to [his] dorsal spine as a result of the compensable accident."

However, during his testimony at trial, petitioner did not complain of "any problems . . . or loss of function regarding his lumbar area, his right shoulder or his dorsal or thoracic spine." Instead, petitioner stated that "the right side of [his] neck" gave him the most trouble, and he experienced pain that radiated down his arm, thumb, index finger, and middle finger. Petitioner also alleged that his right hand was continuously numb and that he felt a "continuous pounding in the back of [his] neck."

Petitioner's complaints of problems with his right arm, however, were belied by the post-surgery report prepared by Dr. Richard Nachwalter, who performed the anterior cervical discectomy and fusion in 2008. According to the February 27, 2008 report, petitioner had "no right arm pain" following the surgery, but experienced "some discomfort in the left side of his trapezius with some radiation into his left arm."

Petitioner testified that he lived with his mother, who suffered from a serious medical condition, and that he was one of her primary caregivers. However, he told his neuropsychiatric expert, Dr. Anca Bereanu, that he had no contact with either of his parents.

Petitioner stated that he managed his pain by taking Percocet and other prescription medications. However, he admitted indicating that he did not take any medications in a medical questionnaire submitted to one of respondent's experts.

Petitioner's orthopedic expert, Dr. Arthur Becan, testified that he examined petitioner on April 6, 2010, and reviewed his medical records. Petitioner reported the following subjective complaints: daily "cervical spine pain and stiffness," which "waxed and waned"; "pain radiating to the right upper extremity" that increased with coughing and sneezing; "thoracic spine pain and stiffness"; "right shoulder pain and stiffness . . . on an intermittent basis"; "clicking of the right shoulder with motion"; and "weakness of the right upper extremity."

Based on his review of petitioner's medical records, subjective complaints of pain, medical history, and the objective findings of his physical examination, Dr. Becan diagnosed petitioner with the following conditions

1. Chronic post-traumatic cervical and dorsal strain and sprain.

2. Aggravation of pre-existing cervical disc pathology.

3. Status post anterior cervical discectomy and fusion using bone graft and spinal instrumentation, 02/15/08.

4. Status post repeat anterior cervical discectomy with removal of spinal instrumentation and previous graft with revision discectomy, bilateral foraminotomy, and application of interbody cage and repeat fusion using bone graft and anterior instrumentation, 03/13/08.

5. Bilateral cervical radiculopathy, confirmed on EMG/NCV.

6. Bulging thoracic discs at T4-T5, T5-T6, T6-T7, and T7-T8, confirmed on MRI.

7. Post-traumatic subacromial impingement syndrome right shoulder.

8. Post-traumatic chronic rotator cuff tendinopathy right shoulder.

Dr. Becan further opined that petitioner was "100% disabled as a physiological industrial unit from all causes," with 87.5% of his disability attributable to his cervical spine, 47.5% attributable to his right shoulder, and 50% attributable to his thoracic spine.

Dr. Bereanu examined petitioner on February 15, 2013. Based upon petitioner's subjective complaints of pain, she diagnosed petitioner with similar cervical injuries, as well as "[c]hronic pain syndrome of cervical spine necessitating class-2 narcotics[,]" and "[m]oderate reactive depression due to chronic pain associated and compounded by chronic sleep disorder and partial loss of function to the cervical spine."

However, Dr. Bereanu conceded that her "chronic sleep disorder" diagnosis, as well as her diagnosis of depressive disorder, was based only on what petitioner had told her and that there were no objective tests to verify petitioner's claims. Nevertheless, Dr. Bereanu concluded that petitioner was suffering from a 57.5% partial total neuropsychiatric impairment.

Respondent's orthopedic expert, Dr. Albert Thrower, also examined petitioner and reviewed his medical records. Based on petitioner's medical history and Dr. Thrower's physical examination, as well as his subjective complaints of pain, Dr. Thrower opined that petitioner's "symptom[] now [was] predominantly pain in [the] neck and upper back which [was] residual[] from the [cervical] fusion." Dr. Thrower further noted that he believed petitioner had "an overall disability of [4%]" of partial total. Dr. Thrower "expect[ed] about 25[% of that 4%] to be pre-existing and related to the initial accident, and 75[% of the initial 4% related] to the current accident and subsequent surgery." Although Dr. Thrower did not believe that petitioner would be able to go back to lifting luggage, as he had prior to the second accident, Dr. Thrower did "think he[] [was] able to do light work."

Respondent also presented the testimony of its neurology and neuropsychiatry expert, Dr. Ivan Dressner. Dr. Dressner had examined petitioner in connection with his 2001 neck injury and conducted a second examination on January 30, 2013. Dr. Dressner noted that petitioner's MRI of his cervical spine from January 21, 2008, prepared approximately one month after his second accident, was "[t]ruly identical" to his cervical spine MRI following his first accident in 2001. Unlike Dr. Bereanu, Dr. Dressner concluded that petitioner suffered from no neurological disability as a result of his second accident based on petitioner's medical history, physical examination, as well as his subjective complaints of pain.

In a thorough written opinion, Judge Mohr concluded that petitioner had not demonstrated that he was totally disabled as the result of the 2001 and 2007 accidents. However, the judge ruled that petitioner had "sustained his burden and prove[n] that[,] as a result of [his] cervical disability[,] he [was] entitled to disability to the extent of 50% partial total with a credit of 22[.5]% for [his] prior award."

In her decision, Judge Mohr highlighted the many "inconsistencies" in petitioner's testimony and found that he was not credible. This finding was significant because most of the experts' conclusions were based upon petitioner's subjective complaints, which the judge did not believe. The judge explained

[A]s part of my determination as to the extent of disability, I must rely on the credibility of the petitioner. I do not accept as truthful the testimony of petitioner as to the extent of his functional loss as a result of his cervical disability. His testimony was that he cannot work and he spends his day watching television and lying in bed. His wife and children live about [forty] miles away and he goes to be with them on weekends. The rest of the week he spends caring for his mother who has [a serious medical condition]. He says it is not his responsibility to do anything other than sit with his mother . . . ; his brothers, a cousin[,] and a home health aide also split the responsibilities. I don't believe the petitioner's testimony. It is obvious that he has a casual attitude about giving truthful responses. He definitely has a significant neck injury but I do not find it to amount to total disability.

Judge Mohr rejected Dr. Becan's opinion that petitioner was totally disabled. Dr. Becan attributed 50% of petitioner's disability to his thoracic spine. However, petitioner did not specifically "testify as to any problems[,] . . . complaints[,] or loss of function regarding his lumbar area, his right shoulder[,] or his dorsal or thoracic spine[,]" apart from the fact that he used a TENS unit in his shoulder area. Moreover, although a MRI indicated bulges in petitioner's thoracic spine, the judge found that "there is nothing in Dr. Becan's report that explain[ed] how a thoracic injury [was] related to the compensable accident."

Dr. Becan also attributed 47.5% of petitioner's disability to petitioner's right shoulder. However, the judge found that Dr. Becan failed to explain "how any shoulder disability was related to the compensable accident." Instead, Dr. Becan stated "in his report that the disability to the right shoulder [was] 'from all causes.'" Dr. Thrower found no permanent disability to petitioner's right shoulder. Thus, Judge Mohr concluded that petitioner's disability was limited to his "cervical area."

Turning to the alleged "psychiatric component" of petitioner's disability, the judge noted that "petitioner did not testify about any psychiatric disability or any loss of function as a result." The judge rejected Dr. Bereanu's opinion that petitioner had suffered a 57.5% partial total neuropsychiatric impairment. The judge stated that, with the exception of the medical records she reviewed, Dr. Bereanu's conclusions were based entirely upon petitioner's subjective, and not credible, complaints. Dr. Bereanu did not conduct any objective testing to verify any of petitioner's alleged symptoms. Therefore, Judge Mohr accepted the opinion of Dr. Dressner that petitioner suffered from no neurological disability as a result of the 2007 accident.

The judge concluded that "[t]he only disability petitioner ha[d] proven [was of] his cervical area." In determining the degree of petitioner's disability, the judge stated

There is no doubt that [p]etitioner has a substantial disability to his cervical area as a result of the compensable accident. He sustained a herniated disc and as a result had a discectomy and fusion at C6-C7 anteriorly with a site plate and screws and then a second surgery removing the previous anterior instrumentation with a revision of the discectomy bilaterally with foraminotomy and application of an interbody cage with an allograft and anterior instrumentation with microsurgical technique.

As noted above, Dr. Becan's conclusion that petitioner was totally disabled was "based not only on the cervical disability, but also on the right shoulder and thoracic disability[,]" which the judge found did not exist. The judge also determined that petitioner did not suffer from a psychiatric disability. Under those circumstances, the judge concluded that petitioner was "entitled to disability to the extent of 50% partial total with a credit of 22[.5%] for the prior award."1 This appeal followed.

On appeal, petitioner contends that "[t]he decision of the compensation court lacks sufficient reasoning to support its ultimate conclusion" and that "[f]urther proceedings are necessary to determine the adequacy of the award." We disagree.

Our standard of review is well-settled. We are bound by the judge's factual findings when 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 judge's expertise. Id. at 164 (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. Jersey City Fire Dep't., 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)).

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. 583, 598 (1998). Thus, the 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 Specialties, 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. See Smith v. John L. Montgomery Nursing Home, 327 N.J. Super. 575, 579 (App. Div. 2000).

Having applied these principles to the record before us, we discern no basis to disturb the judge's findings of fact and conclusions of law. We affirm substantially for the reasons set forth in Judge Mohr's well-reasoned written opinion.

Contrary to petitioner's contentions, the judge thoroughly discussed the evidence presented, made well-supported credibility findings, and based her legal conclusions firmly on the evidence presented at the lengthy trial. While the judge did not specifically discuss her method for arriving at the percentage of petitioner's disability, it is clear that her decision was based upon her assessment of the medical evidence, and her conclusion that petitioner's disability was limited to his cervical spine.

Because petitioner's experts' opinions that petitioner was totally disabled were based upon petitioner having additional conditions which the judge found did not exist, there was ample support for the judge's finding that petitioner was not totally disabled. Giving deference to the judge's credibility determinations, and her expertise in weighing the testimony of competing experts and assessing the validity of claims, we are also satisfied that the judge's conclusion that petitioner's disability was limited to "50% partial total" is based upon substantial credible evidence in the record.

Affirmed.

1 Because the judge found that petitioner was not totally disabled, she dismissed the Second Injury Fund from the case.


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