DEBORAH S PSCHUNDER-HAAF v. SYNERGY HOME CARE OF SOUTH JERSEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

DEBORAH S. PSCHUNDER-HAAF,

Petitioner-Respondent,

v.

SYNERGY HOME CARE OF

SOUTH JERSEY,

Respondent-Appellant.

____________________________

May 22, 2015

Submitted May 12, 2015 Decided

Before Judges Fasciale, Hoffman and Whipple.

On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, Petition No. 2009-33493.

Weber Gallagher Simpson Stapleton Fires & Newby, L.L.P., attorneys for appellant (Richard K. Tavani, on the brief).

Adam M. Kotlar, attorney for respondent.

PER CURIAM

Respondent Synergy Home Care of South Jersey ("Synergy") appeals from a February 25, 2014 order (the "February 2014 order") of the Division of Workers' Compensation (the "Division") imposing sanctions and compelling Synergy to provide petitioner Deborah S. Pschunder-Haaf with medical treatment, temporary wage benefits, and counsel fees. We affirm in part and remand in part.

I.

Pschunder-Haaf, a home health aide, was injured when her patient fell onto her causing injuries to her lower back, spine, neck, and head (the "incident"). She subsequently filed a workers' compensation claim for the incident.

A compensation judge ordered Synergy, her employer, to provide medical and temporary wage benefits, and required that Pschunder-Haaf be evaluated by Dr. Luis Cervantes. The compensation judge then entered a September 7, 2010 order (the "September 2010 order") permitting treatment of Pschunder-Haaf with Dr. Cervantes, and continuing temporary wage benefits until either Dr. Cervantes cleared Pschunder-Haaf to return to work, or until Synergy provided a light-duty work option authorized by Dr. Cervantes.

Synergy failed to pay Pschunder-Haaf's medical bills and eventually terminated the temporary wage benefits. Pschunder-Haaf filed two motions to enforce the September 2010 order, and the compensation judge entered orders1 requiring Synergy to provide temporary wage benefits, medical care, and counsel fees to Pschunder-Haaf.

Pschunder-Haaf then underwent fusion surgery, suffering post-surgical complications related to her left shoulder. Synergy did not provide for post-surgical treatment, so Pschunder-Haaf filed another motion seeking to enforce the September 2010 order, requesting sanctions and counsel fees. The compensation judge entered an order compelling Synergy to provide treatment related to the post-surgical complications. Pschunder-Haaf subsequently filed amended claim petitions to include the derivative injury to her left shoulder and a purported derivative injury to her left knee (collectively the "derivative injuries").

Synergy again failed to authorize certain medical care and temporary wage benefits, forcing Pschunder-Haaf to file another motion to enforce the September 2010 order. The compensation judge entered an order requiring Synergy to provide medical treatment and temporary wage benefits pending a hearing.

At the hearing, the compensation judge heard testimony from Pschunder-Haaf, her medical expert, Dr. Craig Rosen, and a medical expert for Synergy, Dr. Gregory Maslow.2 The compensation judge issued an oral decision compelling Synergy to provide medical treatment for Pschunder-Haaf's primary and derivative injuries related to the incident, and temporary wage benefits. The compensation judge denied Synergy's motion for reconsideration and entered the February 2014 order requiring the continuation of medical care and temporary wage benefits; imposing sanctions on Synergy in the amounts of $5000 and $10,000; and awarding Pschunder-Haaf $7500 in counsel fees and $5654.10 in reimbursement for other expenses.3

On appeal, Synergy contends that Pschunder-Haaf's petition regarding her derivative injuries was procedurally deficient, that the February 2014 order went against the weight of the evidence, and that the imposition of sanctions and award of fees were erroneous.

II.

We reject Synergy's contention that Pschunder-Haaf's petition, related to her derivative injuries, was procedurally deficient.

We afford an agency's interpretation of its own regulations "substantial deference." In re Freshwater Wetlands Gen. Permit No. 16, 379 N.J. Super. 331, 341 (App. Div. 2005). This is because "the agency that drafted and promulgated the rule should know the meaning of that rule." Id. at 342 (citation and internal quotation marks omitted). We will not reverse the ultimate determination unless it was "arbitrary, capricious or unreasonable, or that it lacked fair support in the evidence, or that it violated legislative policies[.]" Campbell v. Dep t of Civil Serv., 39 N.J. 556, 562 (1963).

The Division's rules provide that

In all motions by the petitioner for temporary disability or medical benefits, the original notice of motion shall be filed with the district office to which the case is assigned and a copy of the notice of motion and claim petition served by certified mail or personal service on the attorneys of record.

[N.J.A.C. 12:235-3.2(a).]

The notice of motion must contain a detailed account of compensable lost time; affidavits by petitioner or petitioner's attorney; and reports of the treating physician or an affidavit in lieu of the report. N.J.A.C. 12:235-3.2(b). "Affidavits, certifications and medical reports submitted . . . in support of the motion may constitute a prima facie case and may be sufficient basis for the issuance of an order compelling the respondent to provide the relief sought" unless the respondent files supporting affidavits, medical reports, or certifications to oppose the motion. N.J.A.C. 12:235-3.2(f).

Here, Synergy argued before the compensation judge, and again on appeal, that Pschunder-Haaf's petition was deficient because it did not contain a medical report establishing that she was in current need of treatment for the derivative injuries. The compensation judge summarily rejected this conclusion and we have no reason to disturb this ruling. Pschunder-Haaf filed an amended petition as it related to her knee and shoulder thus putting Synergy on notice of her claim. Pschunder-Haaf's counsel requested a hearing; she was examined by multiple doctors, including Synergy's expert; and Synergy had the opportunity to review the reports prior to the hearing.

III.

We also reject Synergy's argument that the compensation judge's decisions, that Pschunder-Haaf's left knee injury was a derivative injury and that her left shoulder injury required medical treatment, were against the weight of the evidence.

Despite Synergy's contention, we do not apply the "weight of the evidence" standard in the review of a workers' compensation judge's decision. Rather, the standard of appellate review "is equivalent to that used for review of any nonjury case[.]" Brock v. Pub. Serv. Elec. & Gas Co., 149 N.J. 378, 383 (1997). We must determine "whether the findings reasonably could have been reached on the basis of sufficient credible evidence in the record, with due regard to the agency's expertise." Ibid. When "the Judge of Compensation fail[s] to make necessary factual findings to support his [or her] ultimate conclusion . . . the ultimate result does not satisfy the requirements of the adjudicatory process." Colon v. Coordinated Transp., Inc., 141 N.J. 1, 11 (1995) (citation and internal quotation marks omitted).

Here, the compensation judge stated in her amplification of reasons that "Ms. Pschunder-Haaf credibly testified [as to the] injuries to her left shoulder, [and] left knee[,]" and that she "testified credibly, congruently, consistently and concisely about her . . . medical history and treatment . . . . She also credibly demonstrated her medical restrictions."

The compensation judge found that the injury to the left shoulder occurred during the initial fusion surgery as a result of the incident, or "during that time period while Ms. Pschunder-Haaf was in the hospital. This caused the left shoulder to be a compensable derivative claim." The compensation judge also concluded that the injury to the left knee occurred because Pschunder-Haaf's "right leg gave way on her. Her right leg was unstable as a result of her other injuries. . . . [The] right leg historically had been giving way since the time of [the incident] and as a result of [the incident]. . . . The [c]ourt finds this right leg issue is radicular from the back problems."

The compensation judge also found the testimony of Pschunder-Haaf's expert, Dr. Rosen, to be more credible than that of Synergy's expert, Dr. Maslow. The compensation judge stated that

Dr. Maslow's testimony was inconsistent with all of the other doctors . . . was inconsistent with Ms. Pschunder-Haaf's demonstrable and credible testimony . . . and . . . was inconsistent with the [c]ourt's findings. Furthermore, Dr. Maslow did not testify credibly when he said that his examination . . . of the left knee was "entirely normal" . . . . That is insulting . . . to . . . the [c]ourt as it is blatantly without credibility as Dr. Maslow's testimony flagrantly flies in the face of the medical records and reports[.]

We find no reason to disturb the compensation judge's findings which were aptly stated in her amplified decision. The compensation judge considered the evidence presented, and her conclusions that the left knee was a derivative injury and that the left shoulder required medical care are supported by credible evidence in the record. The credible evidence established that the left knee injury occurred because of the instability with Pschunder-Haaf's back and right leg stemming from the incident; the left shoulder was injured during the surgery resulting from the incident; and the left shoulder and left knee required medical treatment.

IV.

We now turn to the award of sanctions, fees, and costs ordered by the compensation judge.

This court reviews a monetary award by the judge of compensation for an "abuse of discretion" and "will modify or set aside such an award only if it is manifestly excessive or inadequate[.]" Akef v. BASF Corp., 305 N.J. Super. 333, 341 (App. Div. 1997).

N.J.S.A. 34:15-64a ("section 64") provides that a judge of compensation

may allow to the party in whose favor judgment is entered, costs of witness fees and a reasonable attorney fee, not exceeding [twenty percent] of the judgment; and a reasonable fee not exceeding $400 for any one witness, except that the following fees may be allowed for a medical witness

(1) (a) A fee of not more than $400 paid to an evaluating physician for an opinion regarding the need for medical treatment or for an estimation of permanent disability, if the physician provides the opinion or estimation in a written report; and

(b) An additional fee of not more than $400 paid to the evaluating physician who makes a court appearance to give testimony; or

(2) (a) A fee of not more than $450 paid to a treating physician for the preparation and submission of a report including the entire record of treatment, medical history, opinions regarding diagnosis, prognosis, causal relationships between the treated condition and the claim, the claimant's ability to return to work with or without restrictions, what, if any, restrictions are appropriate, and the anticipated date of return to work, and any recommendations for further treatment; and

(b) (i) An additional fee of not more than $300 per hour, with the total amount not to exceed $2,500, paid to the treating physician who gives testimony concerning causal relationship, ability to work or the need for treatment; or

(ii) An additional fee of not more than $300 per hour, with the total amount not to exceed $1,500, paid to the treating physician who gives a deposition concerning causal relationship, ability to work or the need for treatment.

When there is an unreasonable or negligent delay or a refusal to pay temporary disability compensation, a party "shall be liable to the petitioner for an additional amount of [twenty-five percent] of the amounts then due plus any reasonable legal fees incurred by the petitioner as a result of and in relation to such delays or refusals." N.J.S.A. 34:15-28.1 ("section 28.1"). This statute has been interpreted to mean that "a petitioner who resorts to section 28.1 to force payment of temporary disability benefits receives not only the [twenty-five percent] penalty but also reasonable legal fees . . . not subject to the [twenty percent] limitation of section 64[.]" Quereshi v. Cintas Corp., 413 N.J. Super. 492, 503 (App. Div. 2010).

Similarly, the Division's rules provide that

[u]pon a finding by a judge of noncompliance with a court order or the workers' compensation statute or rules, the judge, in addition to any other remedy provided by law, may take any or all of the following actions

1. Impose costs and simple interest on any monies due.

i. The judge may impose an additional assessment not to exceed [twenty-five] percent on any moneys due if the judge finds the payment delay to be unreasonable;

2. Levy fines or other penalties on parties or case attorneys in an amount not to exceed $5,000 for unreasonable delay or continued noncompliance.

i. A fine shall be imposed by the judge as a form of pecuniary punishment.

ii. A penalty shall be imposed by the judge to reimburse the Division's administrative costs.

iii. The proceeds under this paragraph shall be paid into the Second Injury Fund;

. . . .

5. Take other appropriate case-related action to ensure compliance; and/or

6. Allow a reasonable counsel fee to a prevailing party, where supported by an affidavit of services.

[N.J.A.C. 12:235-3.16(h) (emphasis added).]

Here, the compensation judge required Synergy to "reimburse [Pschunder-Haaf's] [c]ounsel the sum of $5654.10 which represents the actual out-of-pocket expenses associated with this matter to date." This amount was based on an exhibit attached to the February 2014 order which listed, among other costs, an $800 and $4500 expense for Dr. Rosen. The compensation judge also ordered Synergy to pay the "temporary total wage benefits" owed within ten days or else a "$10,000 sanction shall be automatic unless all doctors . . . terminate all treatment" and provide "written notification" that Pschunder-Haaf achieved the "maximum medical improvement[.]" The compensation judge also awarded $7500 in counsel fees and an additional $5000 sanction.

We affirm those parts of the February 2014 order which imposed the attorney's fees, the $5000 sanction, and other costs on Synergy as not excessive and within the compensation judge's discretion pursuant to section 64, section 28.1, and N.J.A.C. 12:235-3.16(h).

However, the record must be more fully developed as to the $5654.10 award related to Dr. Rosen's $800 and $4500 fees. A review of the record provides no explanation for these costs. Although we agree that a successful party is entitled to reimbursement for the costs of a testifying physician, these costs are specifically limited. See N.J.S.A. 34:15-64a (listing the cost of reimbursement allowed). Thus, on remand, the compensation judge should ascertain the purpose of these costs and determine their reasonableness in light of the relevant statutes and Division rules.

We also vacate and remand the imposition of the $10,000 sanction because the compensation judge abused her discretion by awarding a sanction in excess of the Division's rules. N.J.A.C. 12:235-3.16(h)2 allows a sanction for "continued noncompliance" in the amount of $5000. However, the compensation judge on remand could impose a sanction, if warranted, pursuant to N.J.A.C. 12:235-3.16(h)2.

Affirmed in part and remanded in part. We do not retain jurisdiction.

1 These orders are dated February 15, 2011 and August 19, 2011.

2 The compensation judge who conducted the hearing was not the same judge who had entered the September 2010 order and subsequent orders.

3 On May 6, 2014, the compensation judge issued a seven-page amplification of reasons further supporting the February 2014 order.