Opinion
DOCKET NO. A-0039-12T4
04-01-2013
MICHAEL P. JOHNSON, Petitioner-Respondent, v. HAMILTON TOWNSHIP, Respondent-Appellant.
Carla P. Aldarelli argued the cause for appellant (Capehart & Scatchard, P.A., attorneys; Ms. Aldarelli, of counsel and on the brief; Mary Ellen Rose, on the briefs). David P. Schroth argued the cause for respondent.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Leone.
On appeal from the Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition No. 2011-16975.
Carla P. Aldarelli argued the cause for appellant (Capehart & Scatchard, P.A., attorneys; Ms. Aldarelli, of counsel and on the brief; Mary Ellen Rose, on the briefs).
David P. Schroth argued the cause for respondent. PER CURIAM
Respondent Hamilton Township appeals the order of the workers' compensation court, which awarded temporary disability benefits to petitioner Michael P. Johnson. Respondent argues that the court erred in crediting petitioner's treating physician, finding causation, ruling him unready for light duty, and allowing benefits despite his misstatements. We affirm.
I.
On January 31, 2011, while working at the Hamilton Township Water Pollution Control Facility, petitioner was found semi-conscious and slumped against a dumpster, with black char marks on the fingers of his right hand. Petitioner later stated that the electrical panel box he used to control the flow of sludge had malfunctioned, that he had reached inside the box to reset it, and that he had received an electric shock. Emergency medical technicians found petitioner unresponsive and took him to the hospital. Petitioner had a burn on his right thumb, and claimed that he had pain, numbness from the chest down, and impaired vision in his left eye. Weeks later, he complained of migraine headaches, psychological problems, and tingling and numbness in his right hand. Dr. James Ware, a board-certified neurologist with experience in electrical injuries, treated petitioner on multiple occasions since March 23, 2011. Dr. Ware diagnosed petitioner as having an electrical injury to his central nervous system causing the migraines, decreased vision, severe paresthesia of the right arm, and a concussion.
On April 28, 2011, respondent's neurological expert examined petitioner for an hour or less, and found no evidence that he could not return to full-time work. On June 6, 2011, Dr. Ware evaluated petitioner as still unable to work. Immediately thereafter, respondent de-authorized Dr. Ware as a treating physician, and ordered petitioner to report for light duty work. Petitioner appeared on June 8, 2011, and was told to sit in his supervisor's office and read safety manuals. Petitioner said he did not feel well, left after a short time, and never returned. Petitioner later claimed that he left due to anxiety, and, later still, that he left because he felt a migraine beginning.
On June 29, 2011, petitioner filed a claim for temporary disability benefits. Respondent opposed his petition, noting that petitioner had failed to disclose his prior vision problems, right hand injuries, medications, drug use, and psychological problems. The compensation court ordered petitioner's prior medical records, respondent's expert report, and a surveillance video to be provided to Dr. Ware. After reviewing those records, Dr. Ware issued a report confirming his prior diagnoses and reiterating that petitioner should remain out of work.
At trial, Dr. Ware testified that, to the highest degree of medical certainty, petitioner's reported injuries were causally related to his electric shock injury. Dr. Ware added that as a result of medications, petitioner's headaches were less frequent and severe, but required more care to improve further, and that he was still able to return to work even for light duty. Respondent's neurological expert testified that petitioner's subjective complaints of hand numbness and tingling, diminished vision, and headaches were unsupported by objective medical evidence. Respondent's expert emphasized petitioner's prior hand injuries and vision problems. Respondent's expert added that petitioner's headaches could be attributable to his medications, prior drug use, and psychiatric problems, and that his headaches permitted him to do light work and were not improving.
The compensation court heard testimony on thirteen days. It issued a written opinion and an order, dated August 14 and 27, 2012, respectively, requiring respondent to pay both temporary disability benefits beginning June 8, 2011, and medical benefits, including the cost of petitioner's continuing care by Dr. Ware. Respondent appeals.
II.
We must hew to our standard of review. "The factual findings of the compensation court are entitled to substantial deference." Ramos v. M & F Fashions, 154 N.J. 583, 594 (1998). This court "must 'limit[] its inquiry solely to whether the findings made by the Judge of Worker's Compensation 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 one who heard the witnesses to judge of their credibility and with due regard to his expertise.'" Ibid. (quoting Bradley v. Henry Townsend Moving & Storage Co., 78 N.J. 532, 534 (1979)). If "an appellate court finds sufficient credible evidence in the record to support the agency's conclusions, that court must uphold those findings, even if the court believes that it would have reached a different result." Sager v. O.A. Peterson Constr., 182 N.J. 156, 164 (2004).
III.
Respondent claims that the compensation court erred in giving greater weight to the testimony of Dr. Ware than to the testimony of respondent's expert. Compensation judges, however, have "expertise with respect to weighing the testimony of competing medical experts." Ramos, supra, 154 N.J. at 598. This court "may not 'engage in an independent assessment of the evidence as if it were the court of first instance.'" Sager, supra, 182 N.J. at 164 (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). The compensation judge saw and heard the testimony of the experts, and was in the best position to assess their demeanor and credibility. Id. at 164, 166. The judge gave several valid reasons for crediting Dr. Ware's testimony, including his greater involvement with petitioner's medical care as a treating physician. Courts have stressed "the greater opportunity of a treating physician, as compared with a doctor who conducts a single examination in order to become an expert medical witness, to know, understand and decide upon the producing cause of the patient's condition." Mernick v. Division of Motor Vehicles, 32 8 N.J. Super. 512, 522 (App. Div. 2000) (quoting Bober v. Independent Plating Corp., 28 N.J. 160, 167 (1958)).
Respondent argues that the judge could not accept Dr. Ware's opinion because there was little if any objective medical evidence to support that petitioner had injuries or that they were caused by the incident. Respondent asserts that proof of temporary disability, like other disabilities addressed by the workers' compensation statute, cannot rest on the employee's subjective complaints, but must be based upon a "satisfactory showing of demonstrable objective medical evidence of a functional restriction of the body, its members or organs." Colon v. Coordinated Transport, Inc., 141 N.J. 1, 9 (1995) (quoting Perez v. Pantasote, Inc., 95 N.J. 105, 116 (1984)).
Those cases take the above-quoted language from a definition of "disability partial in character and permanent in quality," which reads, in pertinent part:
"Disability permanent in quality and partial in character" means a permanent impairment caused by a compensable accident or compensable occupational disease, based upon demonstrable objective medical evidence, which restricts the function of the body or of its members or organs; included in the criteria which shall be considered shall be whether there has been a lessening to a material degree of an employee's working ability.The Legislature added that definition to the statute in 1979 to restrict claims for such "permanent partial disability" under N.J.S.A. 34:15-12(c). Colon, supra, 141 N.J. at 8-9; Saunderlin v. E.I. Du Pont Co., 102 N.J. 402, 407-10, 413-14 & n.7 (1986); Perez, supra, 95 N.J. at 108, 109-15. Petitioner, however, is not now claiming permanent partial disability under N.J.S.A. 34:15-12(c) and 34:15-36.
[N.J.S.A. 34:15-36 (emphasis added).]
In oral argument, respondent invoked Lindquist v. City of Jersey City Fire Dep't, 175 N.J. 244 (2003), which states:
It is well established that "[t]he absence of any objective medical or scientific evidence establishing a causal link between petitioner's place of employment and a claimed occupational disease will usually be fatal to the petitioner's workers' compensation case."
[Id. at 278.]
Instead, petitioner is seeking "temporary disability" under N.J.S.A. 34:15-12(a), and medical benefits under N.J.S.A. 34:15-15. These provisions neither use the phrase "disability partial in character and permanent in quality," nor incorporate any language from its definition. This phrase, its definition, and its requirements thus do not apply to the temporary benefits petitioner is currently seeking. See Brunell v. Wildwood Crest Police Dep't, 176 N.J. 225, 237 (2003) (temporary disability "requires lost wages," while permanent disability requires "proof of a medical condition that materially 'restricts the function of the body or of its members or organs' and the claimant's ability to work," quoting N.J.S.A. 34:15-36).
Temporary disability is not expressly defined in the statute. James v. Board of Trustees, 323 N.J. Super. 100, 105 (App. Div. 1999), rev'd on other grounds, 164 N.J. 396 (2000). It is "defined only by context." Ibid. Temporary disability benefits are payable from "the day that the employee is first unable to continue at work by reason of the accident, . . . up to the first working day that the employee is able to resume work and continue permanently thereat," N.J.S.A. 34:15-38, or until the employee "'is as far restored as the permanent character of the injuries will permit,' whichever happens first," Cunningham v. Atlantic States Cast Iron Pipe Co., 386 N.J. Super. 423, 427 (App. Div. 2006) (quoting Monaco v. Albert Maund, Inc., 17 N.J. Super. 425, 431 (App. Div. 1952)). "Actual absence from work is a prerequisite to a temporary disability award." Id. at 428. Temporary benefits begin after seven days, N.J.S.A. 34:15-14, and cannot be paid "beyond 400 weeks," N.J.S.A. 34:15-12(a).
Thus, during that temporary period after a work-related injury, see N.J.S.A. 34:15-1, an employee who seeks to obtain temporary disability benefits under N.J.S.A. 34:15-12(a) must show that he is absent from and unable to resume work by reason of the injury, and is not yet as restored as he can be from his injury. To obtain medical benefits, N.J.S.A. 34:15-15 "requires only that the treatment be shown by competent medical evidence to be reasonably necessary to cure or relieve the worker of the effects of the injury." Hanrahan v. Township of Sparta, 284 N.J. Super. 327, 334 (App. Div. 1995), certif. denied, 143 N.J. 326 (1996). Thus, to obtain temporary disability or medical benefits, petitioner was not required to present "demonstrable objective" medical evidence, as he would to obtain permanent partial disability benefits.
Of course, the presence or absence of demonstrable objective medical evidence may affect the weight of an employee's case for temporary disability and medical benefits. It is not a prerequisite, however. The compensation court, knowing the dearth of objective evidence, nonetheless could and did credit Dr. Ware's testimony.
IV.
Respondent next complains that petitioner failed to prove causation by the preponderance of the credible evidence. Causation need not be proven to a certainty; rather, "'all that is required is that the claimed conclusion from the offered facts must be a probable or more probable hypothesis.'" Kiczula v. American Nat. Can Co., 310 N.J. Super. 293, 303 (App. Div. 1998) (citations omitted). "Deference 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, supra, 175 N.J. at 262 (citations omitted). The compensation court, crediting Dr. Ware's testimony and discrediting respondent's expert, found that the petitioner's evidence established both his injuries and their causation by the incident. Because the compensation judge's "findings of fact are supported by substantial credible evidence in the record and are not so wide off the mark as to be manifestly mistaken," this court must defer. Tlumac v. High Bridge Stone, 187 N.J. 567, 573 (2006).
V.
Respondent, again citing Perez, asserts that petitioner must show "a lessening to a material degree of his working ability." See Perez, supra, 95 N.J. at 118. That language too is part of the definition of "disability permanent in quality and partial in nature" in N.J.S.A. 34:15-36, quoted above. See Perez, supra, 95 N.J. at 110, 115-18. That language has no applicability to petitioner's claim of temporary disability.
Respondent next argues that the compensation court failed to address petitioner's functional ability to perform light duty work, specifically reviewing safety manuals in his supervisor's office. Respondent asserts that because petitioner left his light duty assignment after a short time and never returned, respondent can terminate his temporary disability benefits.
Although "temporary disability continues until the employee is able to resume work and continue permanently thereat," the workers' compensation statute does not contemplate that an employee is unable to return to work until he is "able to return to the identical employment he was engaged in at the time of the fateful event." Tamecki v. Johns-Mansville Products Corp., 125 N.J. Super. 355, 359 (App. Div. 1973), certif. denied, 64 N.J. 495 (1974) (full-time student injured during summer job is not temporarily disabled if he is able to resume full-time studies as he intended); cf. Outland v. Monmouth-Ocean Educ. Serv. Comm'n, 154 N.J. 531, 538-39 (1998) (teacher is entitled to temporary disability benefits during the summer "if she can prove that she is unable to resume whatever type of work she otherwise would have had").
If an employer makes "suitable light duty work readily available" to an employee, even if not identical to his prior work, and the employee is able to perform that light duty work full time, temporary disability benefits may not be appropriate. See Harbatuk v. S & S Furniture Sys. Insulation, 211 N.J. Super. 614, 624-28 (App. Div. 1986). However, "'the fact that an individual is capable of working a few hours at a time at light work does not affect the right to temporary total disability payments.'" Tobin v. All Shore All Star Gymnastics, 378 N.J. Super. 495, 502 (App. Div. 2005) (quoting Harbatuk, supra, 211 N.J. Super. at 626). Moreover, "[a]n employee's ability to do some light work is not a basis for denying benefits when the employee is trained in a skill which she cannot perform because of her injury or when her employer has no light work available." Id. at 501 (citing Harbatuk, supra, 211 N.J. Super. at 621-24). Whether the light work is paid differently is also a consideration. Ibid. "The burden was upon the employer to show that light work was offered to petitioner," Williams v. Topps Appliance City, 239 N.J. Super. 528, 532 (App. Div. 1989), and that it was "unjustifiably spurned by him," Harbatuk, supra, 211 N.J. Super. at 628.
Even assuming the light work offered by respondent met the criteria above, petitioner testified that he was physically unable to perform that light work when he tried to do so on June 8, 2011. Dr. Ware testified that respondent ordered petitioner to return to light duty contrary to his medical opinion, and that petitioner was still unable to return to work even for light duty. The compensation court credited Dr. Ware's testimony, and found that petitioner was still not capable of returning to work and has not yet reached maximum medical improvement. Those findings are not "manifestly mistaken." Tlumac, supra, 187 N.J. at 573.
VI.
Finally, respondent contends that the judge should have denied petitioner's claim for temporary disability benefits because petitioner violated N.J.S.A. 34:15-57.4(c)(1). That statute provides:
If a person purposely or knowingly makes, when making a claim for benefits pursuant to R.S. 34:15-1 et seq., a false or misleading statement, representation or submission concerning any fact which is material to that claim for the purpose of obtaining the benefits, the division may order the immediate termination or denial of benefits with respect to that claim and a forfeiture of all rights of compensation or payments sought with respect to the claim.
[Ibid.]
Respondent asserts that petitioner made misrepresentations concerning the incident and his light duty assignment, prior medical problems, medications, and drug use. Respondent contends that his misstatements tainted Dr. Ware's opinions, and were not considered by the compensation judge. To the contrary, the judge noted petitioner's conflicting explanations for his inability to do light duty. Further, the judge found that "[p]etitioner was in fact less than candid when revealing information about his past and present medical history." Nonetheless, the judge disagreed that "the lack of candor rises to the level that would warrant my denying the [m]otion." The judge gave "great weight to the fact that Dr. Ware's opinion concerning the causal relationship of petitioner's injuries and need for further treatment remained unchanged after reviewing the documents" which revealed misstatements by petitioner. The judge found petitioner's other testimony to be credible and corroborative of Dr. Ware's testimony.
Even if petitioner's misstatements satisfied the requirements of N.J.S.A. 34:15-57.4(c)(1), that statute states that benefits "may" be denied, ibid., so denial is not mandatory. Similarly, the "false about one fact, false about all" maxim invoked by respondent "is not a mandatory rule of evidence, but rather a presumable inference that a jury [or judge sitting without a jury] may or may not draw when convinced that an attempt has been made to mislead them by a witness in some material respect." State v. Fleckenstein, 60 N.J. Super. 399, 408 (App. Div.), certif. denied, 33 N.J. 109 (1960). The compensation judge's decision to credit the remainder of petitioner's testimony was not "manifestly mistaken." Tlumac, supra, 187 N.J. at 573.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
Lindquist, however, concerned a finding of permanent partial disability. Id. at 252. Lindquist quotes Magaw v. Middletown Bd. of Educ., 323 N.J. Super. 1, 13 (App. Div.), certif. denied, 162 N.J. 485 (1999), a temporary disability case, which cited the "objective medical or scientific evidence establishing a causal link" language in a permanent disability case, Wiggins v. Port Auth., 276 N.J. Super. 636, 644 (App. Div. 1994). Even assuming the requirements for injury parallel those for occupational disease, see N.J.S.A. 34:15-32, -35, & -36, we do not read Magaw's reference, in dicta, to Wiggins as changing the statutory requirements for temporary disability.