Opinion
DOCKET NO. A-3818-14T3
05-17-2016
WILLIAM S. TEAGUE, Petitioner-Respondent, v. PALERMO BROTHERS MASONRY, Respondent-Appellant.
Christopher Robert Bridgman argued the cause for appellant (Carpenter, McCadden & Lane, L.L.P., attorneys; Mr. Bridgman, on the brief). Steven Scott Lubcher argued the cause for respondent (Petro, Cohen, Petro Matarazzo, PC, attorneys; Mr. Lubcher, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Manahan. On appeal from Division of Workers' Compensation, Department of Labor and Workforce Development, Claim Petition No. 2012-22577. Christopher Robert Bridgman argued the cause for appellant (Carpenter, McCadden & Lane, L.L.P., attorneys; Mr. Bridgman, on the brief). Steven Scott Lubcher argued the cause for respondent (Petro, Cohen, Petro Matarazzo, PC, attorneys; Mr. Lubcher, on the brief). PER CURIAM
Palermo Brothers Masonry (PBM) appeals from an order entered by the Workers' Compensation judge entering judgment in favor of petitioner William Teague. We affirm.
We discern the following facts from the record. Teague began working as a mason in 1984 and became a union mason in 1993. He began to experience back problems in 2004. In 2005 and 2006, Teague took time off from working as a mason because of significant pain in his back. He received treatment in 2005 with a chiropractor and his primary care physician after a March 8, 2005 MRI study revealed a disc bulge at L3-L4 and L5-S1 with a disc herniation at L4-L5. He took time off in 2008 as well due to back pain. Teague worked through 2009, and was eventually employed as a mason with PBM from May 2010 through September 15, 2010. In the months prior to being employed by PBM, Teague experienced "slight" pain in his back.
During his employment with PBM, Teague worked seven hours and twenty minutes per day. He was first assigned to a job at Shore Memorial Hospital, which required him to erect walls using cement blocks while working from a scaffold. The cement blocks weighed fifteen to fifty pounds. His work included twisting his body and bending down to pick up the blocks, and lifting the blocks over his head to construct the walls. He installed between 50 and 150 blocks per day. The "block work" occurred primarily during the first three weeks of the job, and during that time Teague experienced "excruciating" and "constant" pain running down his legs from his back. Following the block assignment, Teague was assigned a job erecting a wall at Shore Memorial Hospital using bricks that weighed between three and five pounds. The assignment required Teague to bend over, and he installed approximately 200 to 250 bricks per day. He experienced significant pain during this assignment as well.
Due to his physical limitations, Teague never returned to work as a mason after September 15, 2010. He eventually applied for unemployment compensation. Teague is presently employed as an "electrician helper" and is on a regimen of medication for physical complaints associated with his back.
An MRI study was conducted on July 10, 2012. Dr. James Lowe evaluated Teague on July 18, 2012, and reviewed the July 10, 2012 MRI films, comparing them with the March 8, 2005 MRI study. In addition to the bulging disc at L5-S1 noted in the March 2005 MRI, Lowe concluded there was disc protrusion at L3-L4, increased disc herniation at L4-L5, and a new herniation or bulging at L1-L2. Lowe concluded that Teague's symptoms and diagnosis were causally related to "the occupational exposure described at Shore Memorial Hospital in 2010."
Teague filed a workers' compensation claim on August 29, 2012. An amended claim petition was filed on September 13, 2012. PBM filed an answer to the petition on or about October 5, 2012. In its answer, PBM denied that petitioner sustained a compensable occupational disease, and also raised a statute of limitations defense. On September 14, 2012, Teague filed a motion for temporary and/or medical benefits. PBM filed an answer to the motion on or about October 12, 2012. PBM did not raise a statute of limitations defense in its answer to the motion. On February 1, 2013, an order was entered by the judge, and also signed by counsel for PBM, requiring PBM to authorize and provide causally related medical treatment for Teague.
The trial took place on October 3, 2014, November 14, 2014, and January 16, 2015. PBM did not raise the statute of limitations defense in the pretrial memorandum executed by counsel for the parties or at any time during trial. The judge heard testimony from Teague, as well as John L. Gaffney, D.O., on behalf of Teague, and Francis C. Meeteer, D.O., on behalf of PBM. As a result of PBM's stipulation to causation in the February 1, 2013 order, the sole issue tried before the judge was "the nature and extent of [Teague's] permanent injury, if any, as it relates to his work for [PBM]."
Gaffney testified that he evaluated Teague on December 10, 2013, and diagnosed Teague with multi-level disc pathology in the lumbar spine. He opined that Teague suffered from 52 1/2% permanent partial disability arising from the period of occupational exposure during his employment with PBM, with his overall presentation of disability being closer to 70%. Meeteer testified that he evaluated Teague on April 2, 2013, and opined that Teague suffered from 7 1/2% permanent partial disability. Contrary to PBM's stipulation to causation, Meeteer testified that Teague's condition was not caused by occupational exposure while working for PBM.
On March 13, 2015, the judge entered an order in favor of Teague. In an oral opinion of the same date, the judge held Teague sustained a compensable occupational disease and suffered a 40% whole person impairment related to his occupation with PBM, with a 12 1/2% pre-existing permanent disability. This appeal followed.
PBM sought a stay of the order of judgment, which the judge denied on June 26, 2015. We also denied a request for a stay on August 24, 2015. On September 4, 2015, a consent order was entered directing PBM to pay all accrued permanency benefits within seven days.
PBM raises the following arguments on appeal:
POINT I
[TEAGUE] FILED THE CLAIM PETITION MORE THAN [TWO] YEARS FROM WHEN HE WAS AWARE OF HIS DISABILITY AND THE RELATIONSHIP TO HIS EMPLOYMENT AND THUS THE DIVISION OF WORKERS' COMPENSATION DID NOT HAVE JURISDICTION OVER HIS CLAIM.
POINT II
[PBM] SHOULD NOT BE LIABLE FOR [27 1/2%] OF [TEAGUE'S] 40% DISABILITY WHEN HE WORKED
THERE FOR APPROXIMATELY FOUR MONTHS OVER A [TWENTY FIVE]-YEAR CAREER.
The Division of Workers' Compensation "is deemed to have primary jurisdiction to decide compensability issues[.]" Kristiansen v. Morgan, 153 N.J. 298, 314 (1998), modified, 158 N.J. 681 (1999). 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. Pub. 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). We 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. 583, 598 (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). Where there is conflicting medical evidence, it is incumbent upon a workers' compensation judge to appraise that evidence and determine which of that evidence is the soundest. Bialko v. H. Baker Milk Co., 38 N.J. Super. 169, 171 (App. Div. 1955), certif. denied, 20 N.J. 535 (1956). A judge may give greater weight to the evidence provided by a treating physician than an expert physician. Ibid.
Based on our review of the record and the applicable standard of review, we affirm substantially for the reasons set forth by the judge in his comprehensive oral opinion. R. 2:11-3(e)(1)(A). We add the following.
We commence by addressing PBM's argument that the claim was barred by the statute of limitations. N.J.S.A. 34:15-51 requires claimants to file a petition for workers' compensation resulting from accidental injury on the job within two years of the accident. Petitions based on occupational disease are barred if they are not filed within two years of the date plaintiff discovered the nature of the disability and its relationship to employment. N.J.S.A. 34:15-34.
The term "occupational disease" has been liberally construed to include "any departure from the state of health presenting marked symptoms." Giambattista v. Thomas A. Edison, Inc., 32 N.J. Super. 103, 113 (App. Div. 1954) (citation and internal quotations omitted); see also Walsh v. Kotler, 43 N.J. Super. 139, 144 (Law Div. 1956), aff'd, 46 N.J. Super. 206 (App. Div. 1957) ; Salerno v. McGraw-Edison Indus., 59 N.J. 129, 137 n. 1 (1971) (citing Gibson v. Todd Shipyard Corp., 45 N.J. Super. 283, 293 (Cty. Ct. 1957), aff'd, 48 N.J. Super. 535 (App. Div. 1958) ). --------
Unlike an accident, the precise onset of an occupational disease may be difficult to ascertain. Earl v. Johnson & Johnson, 158 N.J. 155, 163-64 (1999); Peck v. Newark Morning Ledger Co., 344 N.J. Super. 169, 185 (App. Div. 2001). As a result, "N.J.S.A. 34:15-34 and our courts have recognized that the period for filing an occupational claim does not run until two years after the date the worker knew the nature of the occupational disability and its relationship to employment." Peck, supra, 344 N.J. Super. at 184. For statute of limitations purposes, "'knowledge of the nature of [the] disability' connotes knowledge of the most notable characteristics of the disease, sufficient to bring home substantial realization of its extent and seriousness." Earl, supra, 158 N.J. at 163 (quoting Bucuk v. Edward A. Zusi Brass Foundry, 49 N.J. Super. 187, 212 (App. Div.), certif. denied, 27 N.J. 398 (1958)).
Teague argues that PBM's statute of limitations claim should be deemed waived because it was not raised at any time during trial. However, we will not consider issues not properly brought before the trial court when that opportunity was available "unless the questions so raised on appeal go to the jurisdiction of the trial court . . . ." Reynolds Offset Co. v. Summer, 58 N.J. Super. 542, 548 (1959), certif. denied, 31 N.J. 554 (1960). Since the timely filing of a workers' compensation claim is jurisdictional and cannot be waived, Baijnath v. Eagle Plywood & Doors Mfrs., 261 N.J. Super. 309, 314 (App. Div. 1993), we consider the statute of limitations issue here.
PBM contends that "Teague did not file his claim petition until August 2012, which was more than two years after he knew his work activities caused back pain (May or June of 2010)[,]" which therefore required dismissal of claim petition. We disagree. Here, although Teague knew he was experiencing pain during the course of his work, he sustained continuing exposure to the injury, and the medical diagnosis of his condition did not occur until well after his occupational exposure ended. See Earl, supra, 158 N.J. at 164 (holding that while New Jersey does not "go so far as to require an actual diagnosis," the policy concerns in New Jersey are similar to Pennsylvania's, which state that the "statute of limitations for occupational disease does not begin to run until pertinent medical diagnosis is completely established to the knowledge of the claimant that [the] . . . disability is work related." (citations and internal quotations omitted)). As such, in our determination of the controlling time limitation for filing his claim, we are satisfied Teague was unaware of "the nature of the occupational disability" (i.e., the disability he developed and the symptoms he endured from May to September 2010) "and its relationship to [his] employment" with PBM until he was evaluated by Lowe on July 18, 2012 - a date within two years of the filing of the claim. Peck, supra, 344 N.J. Super. at 184.
In addressing the substantive decision, we defer to the judge's expertise, particularly as it relates to weighing the testimony of Gaffney and Meeteer. Ramos, supra, 154 N.J. at 598. After considering and giving weight to both doctors' testimony, the judge held that Teague sustained a compensable occupational disease and suffered a 40% whole person impairment related to his occupation with PBM, with 12 1/2% pre-existing permanent disability.
The judge held that Meeteer's testimony regarding a purported lack of causation "[led] the court to doubt his review of the full history of [the] matter" given PBM's stipulation to causation, which "detract[ed] from his veracity and credibility." The judge also noted that Meeteer "made some medical statements without providing a clear clinical basis for same." In contrast, the judge held that Gaffney established "a clear correlation between [Teague's] work effort and his objective findings and [Teague's] current complaints. Overall, Gaffney's testimony was consistent with [Teague's] complaints and the court's review of the medical records."
We conclude the judge's decision was premised upon well-reasoned credibility determinations and consideration of the proofs as a whole. Lindquist, supra, 175 N.J. at 262. In light of the record and the deference we accord, we discern no basis to disturb that decision.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION