KOSTASSTAIKOS v. FAIRVIEW BOARD OF EDUCATION

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-0723-16T3

KOSTAS STAIKOS,

        Petitioner-Respondent/
        Cross-Appellant,

v.

FAIRVIEW BOARD OF EDUCATION,

        Respondent-Appellant/
        Cross-Respondent.

_____________________________________

              Argued January 30, 2018 – Decided February 21, 2018

              Before Judges Leone and Mawla.

              On appeal from the New Jersey Department of
              Labor and Workforce Development, Division of
              Workers' Compensation, Claim Petition No.
              2012-7875.

              Randolph Brause argued the cause for appellant/
              cross-respondent (Leitner, Tort, DeFazio &
              Brause, PC, attorneys; Randolph Brause, on the
              briefs).

              John L. Schettino argued             the    cause    for
              respondent/cross-appellant.

PER CURIAM
     Fairview   Board     of   Education       (Fairview)   appeals    from    a

September 30, 2016 order of the Division of Workers' Compensation,

which granted Kostas Staikos medical and temporary disability

benefits.    We affirm.

     The following facts are taken from the record.                   In 2009,

Staikos injured his back, neck, and left shoulder shoveling snow

while employed for Fairview. As a result, on May 13, 2010, Staikos

had surgery on his lower back.              A few months after the surgery,

Staikos began to experience renewed pain in his lower back.                   He

received    physical    therapy   and       epidural   injections   from    his

treating physician, Dr. Brian A. Cole.

     On December 1, 2010, Staikos hurt his back, right knee, and

neck in an auto accident.         The following day, Staikos continued

to experience pain and went to the emergency room.            Following the

December 2010 accident, Dr. Cole continued to treat Staikos, and

the treatment included epidural injections.

     In 2012, Staikos filed a claim petition for the 2009 incident

alleging injuries to his neck, back, and left shoulder.                Staikos

was examined by Dr. Cheryl Wong and Dr. Theodora Maio in October

2011, and at the request of Fairview, by Dr. Barry A. Halejian in

September 2011.        All three doctors issued reports addressing

Staikos' injuries and disability, for both the 2009 work-related

accident, and the 2010 automobile accident.

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     In April 2014, the judge of compensation conducted a hearing

to determine the extent and nature of Staikos' disability resulting

from the 2009 accident.         Staikos testified at the hearing and Dr.

Maio's reports were submitted into evidence.              The reports opined

that "the motor vehicle accident had little, if any, impact on the

patient's overall standing."           Fairview's counsel represented to

the judge that Fairview was aware of the automobile accident and

had taken it into consideration in its decision to settle the

claim.    As a result, the judge adopted Dr. Maio's medical opinion

and incorporated it in the judgment approving settlement finding

Staikos sixty percent permanently disabled.                The judge found

Staikos'    testimony     and   the   medical   reports    demonstrated      his

present condition was causally related to the 2009 work-related

accident.

     In    August   and    September    2014,   Staikos     submitted     three

requests for authorization to Fairview for additional medical

treatment due to increasing pain in his lower back.             Fairview did

not respond.    Therefore, Staikos filed a motion for medical and

temporary benefits.

     On October 28, 2015, the judge conducted a hearing on the

motion.     Staikos testified that a few months after his May 13,

2010 surgery, his back pain returned.             Dr. Cole, who had been

Staikos' treating physician and surgeon since the February 2009

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work-related   accident,      also   testified   extensively   regarding

Staikos' symptoms, therapy, and treatment prior to and after the

December 2010 automobile accident.

     Specifically, Dr. Cole performed decompression surgery on May

13, 2010, and after Staikos continued to experience pain, he

prescribed palliative treatment consisting of therapy and epidural

injections.    Dr.   Cole's    medical   notes   indicated   Staikos   was

suffering from residual lumbar-radiculopathy-type symptoms and

gave an assessment of lumbar radiculopathy.          Dr. Cole testified

that, prior to the automobile accident, he scheduled a second

epidural injection, and anticipated Staikos would need a second

surgery.

     Dr. Cole noted there was no difference in Staikos' MRI studies

before and after the automobile accident.         Dr. Cole testified he

reviewed all of the medical records from the 2010 automobile

accident.   He opined that Staikos' present condition and need for

surgery was due to the 2009 work-related accident.

     Dr. Halejian also testified.        He stated he examined Staikos

on more than one occasion, agreed that he required surgery, and

believed his injuries were caused by the motor vehicle accident.

Dr. Halejian testified he formed his opinion based on the treatment

records from the motor vehicle accident.



                                     4                            A-0723-16T3
     The trial judge issued a decision awarding Staikos medical

and temporary disability benefits.           This appeal followed.

     We begin with our standard of review.                  According to the

Supreme Court:

            [T]he    standard    to    govern    appellate
            intervention with respect [to workmens'
            compensation cases] is . . . "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.

            [Close v. Kordulak Bros., 
44 N.J. 589, 599
            (1965) (quoting State v. Johnson, 
42 N.J. 146,
            162 (1964)).]

"The factual findings of the compensation court are entitled to

substantial deference."      Ramos v. M&F Fashions, 
154 N.J. 583, 594

(1998).    "We may not substitute our own factfinding for that of

the Judge of Compensation even if we were inclined to do so."

Lombardo v. Revlon, Inc., 
328 N.J. Super. 484, 488 (App. Div.

2000).    Deference to findings of fact is owed so long as they "are

supported by substantial credible evidence in the record as a

whole and are not so wide of the mark as to be manifestly mistaken."

Id. at 488.

     The    judge   has   "expertise       with   respect   to   weighing   the

testimony of competing medical experts and appraising the validity

of [the petitioner's] compensation claim."              Ramos, 154 N.J. at

                                       5                               A-0723-16T3
598.    "That [the judge gives] more weight to the opinion of one

physician as opposed to the other provides no reason to reverse

[a] judgment."   Smith v. John L. Montgomery Nursing Home, 
327 N.J.

Super. 575, 579 (App. Div. 2000).

       On appeal, Fairview contends the trial judge's opinion was

conclusory, was not based upon the greater weight of the evidence,

and instead placed undue weight on Dr. Cole's testimony.    Fairview

also argues "[e]ven if one accepts Dr. Cole's opinion that the

motor vehicle accident did not change the underlying structural

instability in [Staikos'] spine, [it] still does not mean that the

accident did not aggravate, exacerbate, or accelerate [Staikos']

condition."

       In his written opinion, the trial judge found the following:

            There is no dispute that [Staikos] sustained
            serious back injuries in an admitted work-
            related accident in February, 2009, for which
            he previously underwent surgery.     On this
            motion, the medical experts presented by both
            parties agree that more surgery is necessary.
            Accordingly, the sole issue is whether there
            is a causal relationship between [Staikos']
            current need for surgery and his February,
            2009 work injury. Dr. Cole, who has provided
            authorized treatment to [Staikos] since
            shortly after the work accident has opined
            that the current need for surgery is causally
            related to that accident.       I found his
            testimony to be wholly credible and grounded
            in objective findings.   His credibility was
            greatly enhanced by the level of familiarity
            that he has with [Staikos'] case based on his
            lengthy treating relationship during which he

                                  6                          A-0723-16T3
          operated on [Staikos]. In light of Dr. Cole's
          testimony and his admitted reports, I accord
          his opinion substantially more weight than
          that of Dr. Halejian.      Although I have no
          reason to doubt Dr. Halejian's expertise or
          general credibility, I found his opinion to
          have a much less substantial basis in fact.
          Specifically, he changed his initial opinion
          on causation based on his review of the
          records of other providers who treated
          [Staikos] through PIP after his automobile
          accident.   In addition, I believe that Dr.
          Halejian's opinion relied too greatly on how
          [Staikos] described the motor vehicle accident
          to him, as opposed to any objective medical
          evidence regarding the condition of [Staikos']
          back both before and after the motor vehicle
          accident. Dr. Halejian was admittedly aware
          throughout that [Staikos] had been in a motor
          vehicle accident and had received treatment
          through PIP.   If he initially believed that
          [Staikos'] condition was work-related, I am
          not   convinced    that    reviewing   another
          provider's   records    should   realistically
          change that opinion.

     "It is generally recognized that a treating physician is in

a better position to express an opinion as to cause and effect

than one making an examination in order to give expert medical

testimony."   De Vito v. Mullen's Roofing Co., 
72 N.J. Super. 233,

236 (App. Div. 1962) (citing Bober v. Indep. Planting Corp., 
28 N.J. 160, 167 (1958)).   Here, considering the evidence presented,

the findings made by the judge were not an abuse of discretion.

There is sufficient credible evidence to support the judge's

decision, which was certainly not conclusory.



                                 7                         A-0723-16T3
     As we noted, the trial record contains ample evidence to

demonstrate the judge's reasons for crediting Dr. Cole's testimony

over Dr. Halejian's was not an abuse of discretion.        The judge

explained his reasons for accepting Dr. Cole's opinion             as a

treating physician, and stated why he found Dr. Halejian's opinion

lacked credibility.     Given the weight of the adequate credible

evidence in the record, we do not have a basis to second guess the

trial judge's determination.

     Lastly, because we have concluded the judge's opinion is

sound, we do not reach Staikos' argument on cross-appeal that the

April 2012 settlement is a res judicata bar to Fairview's ability

to   contest   the   nature   of   Staikos'   injuries.   The    judge,

appropriately so, did not rely upon the doctrine and made his

determination following a hearing on the merits.

     Affirmed.




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