KEVIN ROY VS. MARSDEN & SONS ELECTRIC (DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT,DIVISION OF WORKERS' COMPENSATION)

NOT FOR PUBLICATION WITHOUT THE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-1324-15T1

KEVIN ROY,

Petitioner-Respondent,

v.

MARSDEN & SONS ELECTRIC,

Respondent-Appellant.

_______________________________

Submitted December 19, 2016 – Decided August 9, 2017

Before Judges Nugent and Currier.

On appeal from Department of Labor and
Workforce Development, Division of Workers'
Compensation, Claim Petition No. 2011-32131.

Carpenter, McCadden & Lane, LLP, attorneys for
appellant (Christopher R. Bridgman, on the
brief).

Petro Cohen Petro Matarazzo, PC, attorneys for
respondent (Janis A. Eisl, on the brief).

PER CURIAM

This is a workers' compensation action. Respondent Marsden

Electric appeals from an October 16, 2015 order for judgment on

petitioner Kevin Roy's Application for Review or Modification of
Formal Award ("re-opener"). The order for judgment awarded

petitioner forty-two and one-half percent of partial total

permanent disability, an increase of twenty percent.

On appeal, respondent argues petitioner presented

insufficient credible medical evidence to prove his partial total

disability increase from twenty-two and one-half percent to forty-

two and one-half percent. Having considered respondent's

arguments in light of the record and applicable legal principles,

we reject the argument and affirm the order for judgment.

These are the facts. On July 26, 2011, while working on a

ladder during the course of his employment with respondent,

petitioner fell eight to ten feet. Five months after his accident,

petitioner filed a workers' compensation employee's claim petition

in which he alleged he was partially disabled as a result of

injuries to his lumbar spine. His workers' compensation claim was

resolved when a Judge of Compensation ("JOC") entered an October

2, 2012 order approving settlement. The settlement resulted in

an award to petitioner of twenty-two and one-half percent of

partial total permanent disability "for orthopedic and neurologic

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residuals of the lumbar spine for a compression fracture at L1 and

L2 and for a bulging disc at L5-S1."1

Slightly less than two years after the JOC entered the order

approving settlement, petitioner filed the re-opener. He alleged

he had "suffered an increase in disability since the entry of the

prior Award." Following the exchange of discovery, petitioner's

claim was scheduled for a hearing on October 16, 2015.

Petitioner and respondent waived their right to present

expert witnesses and agreed to have the JOC decide the case based

on petitioner's testimony and twenty-one documentary exhibits the

parties entered into evidence by agreement. The first thirteen

exhibits consisted of medical records concerning petitioner's

treatment from the date of his accident through the order approving

settlement of the original claim. The next four exhibits included

medical records concerning petitioner's resumption of treatment

in 2014, the report of a December 17, 2014 MRI scan of petitioner's

lumbar spine, and the reports of petitioner's evaluating physician

concerning petitioner's increased disability. The final four

exhibits consisted of four medical reports, two concerning

respondent's doctor's medical evaluation following petitioner's

1
The medical records and pleadings are not consistent in
describing the fractures. Some describe the fractures at L1 and
L2, others at L1 and L5. The parties do not appear to dispute the
second compression fracture occurred at L5.

3 A-1324-15T1
fall from the ladder, and two concerning respondent's medical

expert's evaluation of petitioner for the re-opener.

Following the 2012 order approving settlement, petitioner

next consulted a doctor on November 13, 2014. Dr. Joseph R.

Zerbo's report of the visit summarizes the relevant history:

[Petitioner] is a 45 year old right[-]handed
male who presents today for spinal re[-]
evaluation regarding progressive worsening of
low back pain stemming from an initial work-
related injury on 7/26/11. I initially saw
[petitioner] on 7/27/11 at the Trauma Center
at Atlanticare Regional Medical Center after
he sustained a fall at work from approximately
10 feet. [Petitioner] was diagnosed with
compression fractures of the lumbar spine at
L1 and L2. We initially treated [petitioner]
with a lumbosacral orthosis which was worn for
approximately three months. This was removed
and [petitioner] was started in a formal
physical therapy program. Physical therapy
was performed three times a week at NovaCare
in Rio Grande. This also included a work
hardening program. Once the work hardening
program completed, [petitioner] did undergo
Functional Capacity Evaluation at Kinomatic
Consultants on 3/14/12. This did allow
[petitioner] to return to full[-]time full
duty work.

Unfortunately, [petitioner] states that he has
continued to deal with progressively
increasing low back pain associated with
occasional numbness and paresthesias in the
lower extremities bilaterally. He has
physical restrictions with any type of
prolonged sitting, standing, walking,
bending, or lifting secondary to the pain.
[Petitioner] describes no other injuries to
his low back since the work accident of
7/26/11.

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 Dr. Zerbo recommended petitioner obtain a new MRI study of

the lumbar spine. The MRI scan was completed on December 17,

2014. According to the report of the physician who evaluated the

MRI scan, the scan revealed the following: mild scoliosis; old

compression fractures of L1 and L5; disc bulge at L4-5, minimal

disc bulges at L3-L4 and L5-S1, with no significant spinal stenosis

or visible nerve root compression, and no focal disc herniation;

and suspected cholelithiasis.

On January 8, 2015, Dr. Zerbo met with petitioner after

reviewing the MRI. Dr. Zerbo diagnosed petitioner's condition as

"internal disc derangement at L4-5 and L5-S1 producing discogenic

lumbar syndrome." According to Dr. Zerbo, the MRI also confirmed

petitioner's previous fractures had "healed satisfactorily." Dr.

Zerbo recommended petitioner consider surgery, which would involve

posterior lumbar inter-body fusion at L4-5 and L5-S1, if

petitioner's physical capacities "are of such a debilitating

degree." Petitioner declined to undergo surgery. Dr. Zerbo

discharged him from active care.

Dr. John L. Gaffney, board certified in family medicine,

evaluated petitioner. Dr. Gaffney noted he had evaluated

petitioner on April 17, 2012, in reference to the injuries

petitioner had sustained in the July 26, 2011 work accident.

5 A-1324-15T1
 Dr. Gaffney's physical examination of petitioner revealed

petitioner had "difficulty transferring positions from a supine

to sitting to standing position due to his spinal pain."

Petitioner also had spasm and tenderness over the paralumbar muscle

regions of the lumbar spine. According to Dr. Gaffney's report,

"[t]here is sensory deficit with pinprick into the bilateral

extremities, over the L4-L5 and L5-S1 dermatomal region." Certain

clinical tests Dr. Gaffney considered objective were positive for

pain, and petitioner had limited range of motion of the lumbar

spine.

Based on Dr. Gaffney's review of relevant medical records and

examination of petitioner, he rendered the following diagnosis:

orthopedic residuals for a compression fracture of superior

endplate of L1, and compression fracture of the superior endplate

of L2; new progressive lumbar disc injury with bulging disc at L3-

L4 and L4-L5, and a disc osteophyte complex and L5-S1; persistent

and progressive lumbar radiculopathy; lumbar fibromyositis

syndrome; and chronic pain in the lumbar spine.

Dr. Gaffney opined, within a reasonable degree of medical

probability, that petitioner's injuries were directly and causally

related to the work-related accident of July 26, 2011. According

to Dr. Gaffney's report, the injuries "have produced demonstrable

objective medical evidence of restriction of function and

6 A-1324-15T1
lessening of a material degree of working ability, as well as

interferences with ability to perform activities of daily

living[.]" Dr. Gaffney concluded: "The objective medical findings

. . . have resulted in an increase of 45 percent permanent/partial

disability in reference to the lumbar spine, above the previously

noted award of compensation."

Respondent's evaluating physician, Francis C. Meeteer,

examined petitioner on July 14, 2015. The doctor had not

previously evaluated petitioner. Unlike Dr. Gaffney, Dr. Meeteer

found no tenderness or spasm when he examined petitioner's lumbar

spine. Clinical tests were generally negative. Dr. Meeteer

concluded:

As a result of my findings as outlined above,
it is my opinion that [petitioner] has a [five
percent] permanent partial total disability
due to his chronic lumbar or low back pain
with compression fracture at L1 and L5 and
disc bulging of the lumbar spine as outlined
above that occurred as the result of the work-
related accident on July 26, 2011. My
opinions are stated within a reasonable degree
of medical certainty.

Petitioner testified at the hearing. He claimed his condition

was considerably worse than when the settlement was approved in

October 2012. In 2012, he experienced a severe, stabbing pain in

his back that radiated down to both feet, but lasted maybe an hour

and occurred only a few times each month. He rated the pain as a

7 A-1324-15T1
three or four. According to petitioner's testimony during the re-

opener hearing in 2015, however, the sharp shooting pain radiating

through the sides of his buttocks, throbbing down his legs, and

causing his toes to tingle, was "there constantly."

In 2012, the pain would waken him from a night's sleep

occasionally. By the 2015 hearing, the pain woke him two or three

times each night. He was unable to sleep through the night. He

was also unable to lay on his side, and discomfort and a sharp

shooting pain wakened him.

In 2012, petitioner could walk three miles and lift objects

weighing approximately thirty to forty pounds. Otherwise, he

generally led a sedentary life. Now, petitioner no longer walks

long distances due to fear that he may not be able to "walk back";

leaves his shoes tied and uses a long shoe horn to put his shoes

on, because he can no longer bend down to do so; and seldom lifts

objects that weigh more than a grocery bag.

The parties agreed that from the documentary evidence and

petitioner's testimony, the JOC had to determine whether

petitioner sustained an increase in his permanent disability and,

if so, to what extent. As previously noted, the JOC found

petitioner sustained a twenty-percent increase in his disability.

In an oral opinion delivered from the bench at the conclusion

of the hearing, as amplified in a January 15, 2016 written

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decision, the JOC reiterated the sole issue before her was whether

an increase in petitioner's previous award was justified and, if

so, in what amount. The JOC found petitioner testified "candidly

and credibly." She noted that during his testimony petitioner was

in "obvious distress." The distinctions he made between his pain,

disabilities, and functional losses between 2012 and 2015 were

corroborated by the recent MRI findings.

The JOC noted that only petitioner's evaluator, Dr. Gaffney,

evaluated him in both 2012 and 2015. Different medical experts

performed evaluations for respondent in 2012 and 2015. The JOC

found Dr. Gaffney's evaluation more credible than that of Dr.

Meeteer "as to the consistency of the findings . . . when compared

to the diagnostic evidence[.]" The JOC noted "Dr. Gaffney is the

only medical doctor who had the benefit of [completing a] full

term . . . case evaluation – both pre-the first settlement in 2012

and after that settlement for this re-opener in 2015[.]"

Significantly, the JOC determined that the treating records,

diagnostic studies, and a functional capacity examination enabled

her to note the diagnostic changes that had occurred during the

intervening years. Based on petitioner's credible testimony, the

explicit descriptive differences in his functionality between the

first settlement and the hearing on his re-opener, as well as the

medical records and diagnostic tests, the JOC determined there was

9 A-1324-15T1
"a new progressive lumbar disc injury with MRI evidence of bulging

disc at L3-4 and L4-5 and disc osteophyte complex at L5-S1 with

internal disc disruption/derangement at L5-S1 with bilateral

radiculopathy superimposed upon prior compression fracture of two

lumbar superior end plates."

The JOC concluded the "award of an increase of twenty

[percent] is consistent with all of the records, diagnostics,

petitioner's testimony and his multiple evaluating doctor's

reports which were taken in as testimony."

On appeal, respondent argues there was insufficient credible

medical evidence, and insufficient testimony from petitioner, to

prove his partial total disability increased from twenty-two and

one-half to forty-two and one-half percent. Respondent initially

asserts petitioner "did not present credible medical evidence

causally relating such an increase in disability to the original

incident and resulting injury." Respondent acknowledges that Dr.

Gaffney's report includes the statement, "the injuries noted are

directly and causally related to the work-related accident, which

occurred on July 26, 2011"; but asserts Dr. Gaffney "provided no

basis or detail surrounding his opinion as to causation besides a

mere conclusory statement."

Respondent goes on, however, to acknowledge the new evidence

of petitioner's L3-4 and L4-5 bulging lumbar discs is causally

10 A-1324-15T1
related to the original accident, as admitted by respondent's

evaluating physician. Respondent asserts these "are the only

possible injuries for which [petitioner] has met his burden of

proof for an increase in disability," but further asserts "[a]n

increase from [twenty-two and one-half] to [forty-two and one-

half] percent permanent partial total is excessive for a disc

bulge at L4-5 and minimal bulge at L3-4."

Parsing the medical evidence rather than considering it as a

whole, respondent asserts some of the JOC's findings are

unsupported by the record. Respondent also argues petitioner's

testimony was inadequate to support an increase in partial

permanent disability of twenty percent "by a preponderance of the

evidence."

The scope of our review is well established.

In workers' compensation cases, . . .
appellate 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
. . . their credibility."

[Lindquist v. City of Jersey City Fire Dep't,
175 N.J. 244, 262 (2003) (quoting Close v.
Kordulak Bros., 44 N.J. 589, 599 (1965)).]

"Deference must be accorded the factual findings and legal

determinations made by the [JOC] unless they are 'manifestly

11 A-1324-15T1
unsupported by or inconsistent with competent relevant and

reasonably credible evidence as to offend the interests of

justice.'" Ibid. (quoting Perez v. Monmouth Cable Vision, 278

N.J. Super. 275, 282 (App. Div. 1994), certif. denied, 140 N.J.

277 (1995)).

Having considered petitioner's arguments in light of these

principles and the hearing record, we affirm the JOC's

decision. Her decision is supported by sufficient credible

evidence on the record as a whole. Petitioner's arguments to the

contrary are without sufficient merit to warrant extended

discussion. R. 2:11-3(e)(1)(D) and (E). We add only these brief

comments.

Respondent's argument is based largely on parsing out and

isolating different parts of various medical records and reports,

rather than construing them as a whole. In addition, respondent

is critical of petitioner's expert's reports because the reports'

explanations concerning the extent of petitioner's increased

disability and the causal relation of that increase to the original

accident does not contain sufficient elaboration. Yet, by agreeing

to present the medical evidence in reports rather than by experts'

testimony, respondent now criticizes the JOC for doing precisely

what the parties tasked her with doing; namely, reviewing the

documentary evidence as a whole and determining the credibility

12 A-1324-15T1
of conflicting reports based on all the documentary evidence as

well as petitioner's testimony. That is precisely what the JOC

did, and her findings are amply supported by the documentary

evidence and petitioner's testimony.

Although not entirely clear, it appears that respondent

concedes petitioner suffered some increased disability.

Respondent insists, however, that a newly diagnosed condition,

documented on MRI, could not have possibly caused a twenty percent

increase in petitioner's partial permanent disability. That

determination, however, is well within the expertise of a JOC,

with respect to whom our standard of review is deferential.

Respondent has pointed to nothing in the record, and particularly

nothing in the medical records and expert reports, that provide

us with either a methodology or basis for questioning the JOC's

quantification of petitioner's increased disability.

Affirmed.

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