NOT FOR PUBLICATION WITHOUT THE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-3486-15T3
DAVID KALUCKI,
Petitioner-Appellant,
v.
UNITED PARCEL SERVICE,
Respondent-Respondent.
_________________________________
Submitted August 8, 2017 – Decided August 15, 2017
Before Judges Sabatino and O'Connor.
On appeal from the New Jersey Department of
Labor and Workforce Development, Division of
Workers' Compensation, Claim Petition Nos.
1998-28398 and 2002-21506.
Shebell & Shebell, LLC, attorneys for
appellant (Danielle S. Chandonnet, of counsel
and on the brief).
Brown & Connery, LLP, attorneys for respondent
(Christopher M. Campanaro, on the brief).
PER CURIAM
Claimant David Kalucki appeals from a March 10, 2016 decision
by a workers' compensation judge denying all but one of his claims
for increased disability. The compensation judge issued his
decision after considering claimant's testimony and medical
testimony from the parties' competing experts. Applying our
limited scope of review and appropriate deference to the expertise
of the compensation court, we affirm.
By way of background, claimant was employed in a clerical
position by respondent United Parcel Service.1 On June 24, 2009,
claimant received two separate awards of disability from the
compensation court for two separate claims that he litigated. In
one claim (Docket No. CP #1998-28398) claimant received an award
of 40% permanent partial total disability associated with left
shoulder and cervical injuries, subject to a credit of 37.5%
relating to a previous compensation award. The shoulder and neck
condition had been the subject of two surgeries. On his other
prior claim award (Docket No. CP #2002-21506), claimant received
a 17.5% permanent partial total disability due to bilateral carpal
tunnel syndrome, subject to a credit of 15% for a previous carpal
tunnel award.
According to claimant, several of his conditions and symptoms
worsened in the years following the 2009 awards, even though he
has not sustained any intervening injuries. Among other things,
1
Since the time of the compensation judge's opinion, claimant has
reportedly retired. However, he presents no argument in his brief
that his retirement was forced due to the alleged increase in the
severity of his disabilities.
2 A-3486-15T3
he complained that his left shoulder and neck were more restricted
in range of motion, and that it was painful for him to move his
neck from side to side. He asserted that he cannot lay on his
left side, and that his shoulder aches and is numb to the touch.
Claimant further asserted an aggravation of his carpal tunnel
condition, complaining of numbness in his left hand and a loss of
grip strength. Claimant also separately complained of an increased
loss of hearing.
Claimant presented at trial expert medical testimony and a
written report from a general practitioner who examined him on
November 22, 2011. 2 That same expert had previously examined
claimant in 1999, 2002, 2004, and 2007 in connection with prior
awards. In his most current report, claimant's expert noted
tenderness and spasm in claimant's left shoulder, limited rotation
of twenty percent in the head and neck, and abduction and forward
elevation of the left arm and shoulder limited to ninety percent.
The expert further observed generalized tenderness in claimant's
wrists and arms, with flexion and extension of the wrists reduced
by fifteen percent, and a limitation of radial and ulnar deviation
2
The record indicates claimant's expert is a Fellow of the
American Academy of Disability Evaluating Physicians, and has been
qualified as an expert in the compensation court on many occasions.
Respondent's counsel at trial did not object to the expert's
qualifications to testify, and recognized he has been performing
disability evaluations for many years.
3 A-3486-15T3
and rotation in both wrists. Based on his examination, claimant's
expert found an increase in his disabilities since the time of the
2009 awards, estimating an increase of twenty-five percent in the
right hand, twenty-five percent in the left hand, and thirty
percent in the injuries relating to the neck. A separate medical
expert diagnosed and quantified claimant's increased loss of
hearing.
Respondent's expert, a board-certified orthopedic physician,
markedly disagreed with the findings of claimant's expert. The
orthopedist examined claimant on August 17, 2011, having
previously examined him for the neck and shoulder injuries in
2007. The orthopedist took an x-ray of the shoulder and discerned
no objective findings of any significant pathology or changes in
the cervical area. On physical examination, the orthopedist found
that claimant's range of motion had actually "significantly
improved" from his last exam in 2007, and that claimant's prior
disability level had not worsened.
With respect to claimant's carpal tunnel condition, the
orthopedist found no objective worsening of his overall condition.
The expert found no atrophy, and no decreased sensation, although
he did note negative grip strength in the right hand. The
orthopedist concluded that claimant's level of disability for the
4 A-3486-15T3
prior awards had not changed, and that he was "at maximum benefit
of treatment."
Sifting through this medical evidence, the compensation judge
made the following findings3 in his oral decision:
In considering the testimony of the
various witnesses, the Court finds that the
petitioner despite having increased
subjective complaints with respect to his
shoulder, neck and carpal tunnel problems
never sought any medical treatment whatsoever
to attempt to alleviate his alleged increased
symptomatology. It is this Court's view that
is the petitioner's pain and complaints were
increasing to the level he alleges medical
treatment would have been sought.
Petitioner's decision not to seek any
treatment displays to this Court that his
shoulder, neck and carpal tunnel problems have
not worsened to any material extent. The
Court finds that the petitioner was also able
to work his full-duty job and did not seek any
accommodations in terms of either changing his
duties or work hours. The Court believes that
the petitioner would have requested some
accommodation from the respondent if his
problems had worsened as alleged. He also
lost no time from work due to his medical
problems. This does not support his position
of increased disability.
. . . .
In analyzing the testimony of the medical
experts, the Court rejects the opinion of
[claimant's expert] as he is clearly less
qualified than respondent's expert[.] . . .
[The latter expert's] superior training in the
area of orthopedics places him in a better
3
The record does not explain why the judge's decision was not
issued until two years after the evidentiary record closed.
5 A-3486-15T3
position with respect to the determination of
petitioner's alleged increase in disability
since his last appearance before the Court. A
review of [claimant's expert's] examinations
indicate[s] that many of the objective
findings noted in [that] doctor's various
reports showed no change whatsoever. Findings
such as sidebending, flexion and extension,
as well as abduction, remained the same which
displayed to the Court that the petitioner's
condition had not worsened. The fact that
atrophy . . . was indicated in the doctor's
report in 2007, but not in 2011, actually
points to an improvement of the petitioner's
condition. The Court finds that [claimant's
expert's] finding of an over 100 percent
disability when combined, does not ring true
based upon petitioner's continued full-duty
employment. [Respondent's expert's] finding
of full motion with respect to petitioner's
cervical spine, as well as lateral bending and
rotation and normal reflexes, do not support
a finding of an increase in the petitioner's
disability. The negative Spurling's test, as
well as lack of atrophy, further supports
[respondent's expert's] view of no increase
in disability. The Court accepts this view
as it is supported by objective medical
findings rather than [claimant's expert's]
increase based upon petitioner's subjective
complaints.
The Court also accepts [respondent's
expert's] view with respect to the
petitioner's allegation of carpal tunnel
increase. The finding of full motion of
dorsiflexion, pronation, supination along
with no decreased sensation of the radial
distribution supports his view that there is
no increase in carpal tunnel disability. The
petitioner presented with normal hand grip
strength during the doctor's examination and
the decreased sensation of an ulnar
distribution is not caused by carpal tunnel.
The fact that the dermatomal pattern as noted
6 A-3486-15T3
by the doctor in his examination of the
petitioner was not correct indicates that the
petitioner's complaints were not as a result
of an increase in his carpal tunnel problem.
The Court believes [respondent's expert] and
finds that there is no increase with respect
to the petitioner's carpal tunnel disability.
[(Emphasis added).]
Apart from these findings as to parts of the body germane to
the present appeal, the judge concluded that claimant had
separately established a one-percent increase in occupationally-
induced hearing loss, and made a corresponding award for that
discrete injury. Neither party has appealed the hearing loss
determination.
On appeal, claimant argues that the compensation judge erred
in rejecting his claims for increased disability concerning his
neck and shoulder, as well as his carpal tunnel injury. He
contends that the judge should have adopted the opinions of
claimant's own expert, and deemed credible his claims of worsening
and causation. Claimant further asserts that the judge unfairly
gave more credence to respondent's medical expert because that
expert, unlike claimant's examining doctor, was a board-certified
orthopedist. Claimant further asserts that the judge's decision
was inconsistent in various respects and not supported by the
evidence.
7 A-3486-15T3
The applicable law imposes upon an injured worker such as
claimant, who seeks additional compensation benefits following an
earlier award, the burden of proving an increased incapacity or
an increase in functional loss. N.J.S.A. 34:15-27; Yeomans v.
City of Jersey City, 27 N.J. 496, 508-09 (1958); Brandt-Shaw v.
Sands Hotel, 282 N.J. Super. 106, 109 (App. Div. 1995). Such an
alleged increase in incapacity must be shown to arise from, and
be causally connected with, the original workplace injury.
Yeomans, supra, 27 N.J. at 508. Moreover, a claimant must satisfy
the general principle of workers' compensation law requiring that
disability be established by appropriate objective evidence, and
that disability cannot be based solely upon a claimant's subjective
complaints of a present level of incapacity. Perez v. Pantasote,
Inc., 95 N.J. 105, 114-16 (1984).
Our scope of review of fact-laden decisions by compensation
judges is limited. We must consider whether the findings made by
the judge of compensation "'could reasonably have been reached on
sufficient credible evidence'" in the record, "considering 'the
proofs as a whole,'" giving due regard to the judge's opportunity
to observe and hear the witnesses and to evaluate their
credibility, and to the judge's expertise in the field of workers'
compensation. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)
(quoting State v. Johnson, 42 N.J. 146, 162 (1964)); see also
8 A-3486-15T3
Brock v. Pub. Serv. Elec. & Gas Co., 149 N.J. 378, 383 (1997);
Perez v. Capitol Ornamental, Concrete Specialties, Inc., 288 N.J.
Super. 359, 367 (App. Div. 1996). In particular, a reviewing
court generally must defer to the findings of credibility made by
a judge of compensation, as well as to the judge's expertise in
analyzing medical testimony. Kaneh v. Sunshine Biscuits, 321 N.J.
Super. 507, 511 (App. Div. 1999); see also Kovach v. Gen. Motors
Corp., 151 N.J. Super. 546, 549 (App. Div. 1978) ("It must be kept
in mind that judges of compensation are regarded as experts.")
(citing Goldklang v. Metro. Life Ins. Co., 130 N.J. Super. 307,
311 (App. Div.), aff’d o.b., 66 N.J. 7 (1974)). Where there is
sufficient credible evidence in the record, a compensation judge's
findings of fact are binding on appeal, and those findings must
be upheld "even if the court believes that it would have reached
a different result." Sager v. O.A. Peterson Constr., Co., 182
N.J. 156, 164 (2004) (citations omitted).
Applying these legal principles, we affirm the determinations
reached by the worker's compensation court, substantially for the
reasons the judge set forth in his March 10, 2016 oral decision.
There is more than sufficient proof in the record to sustain the
judge's conclusion that claimant did not meet his legal burden of
proving increased incapacity of his neck, shoulder, and carpal
tunnel conditions causally related to his workplace activities.
9 A-3486-15T3
The objective findings of respondent's expert in particular amply
support the judge's conclusions.
Although claimant testified that he has experienced an
increase in certain subjective symptoms, the judge had a reasonable
basis to conclude that those subjective claims, apart from the
hearing loss, were not sufficiently corroborated by objective
proof. Claimant continued to work after his 2009 award without
any material change in his duties. Apart from continuing to take
over-the-counter pain medications, he did not pursue additional
treatment to attempt to alleviate his symptoms. Although we
recognize that respondent's expert acknowledged that further
surgery would not be likely to benefit claimant, there is no
evidence that claimant pursued any other methods of palliative
care since the time of his prior awards.
In addition, respondent has identified several portions from
claimant's testimony from the earlier 2009 proceeding that are
essentially the same or similar in nature to his present
complaints. As just one example, claimant's expert testified that
plaintiff's range of motion in his neck on examination in 2011 was
limited by twenty degrees, as compared with a higher limitation
of twenty-five percent revealed on examination in 2007.
The compensation judge was entitled under case law to find
respondent's expert more credible than claimant's expert. In
10 A-3486-15T3
situations where qualified experts present opposing opinions on
disputed issues, the trier of fact may accept the testimony or
opinion of one expert, in full or in part, and reject the other.
Angel v. Rand Express Lines, Inc., 66 N.J. Super. 77, 85-86 (App.
Div. 1961) (citations omitted). See also Brown v. Brown, 348 N.J.
Super. 466, 478 (App. Div.) (citing Carey v. Lovett, 132 N.J. 44,
64 (1993)), certif. denied, 174 N.J. 193 (2002). This principle
flows out of the well-known proposition that jurors, or a judge
in a bench trial, have the best "opportunity to hear and see the
witnesses and to get a 'feel' for the case that the reviewing
court [cannot] enjoy." Twp. of W. Windsor v. Nierenberg, 150 N.J.
111, 132 (1997) (citing State v. Whitaker, 79 N.J. 503, 515-16
(1979)).
Our appellate courts are consequently "reluctant" to
interfere with a judge's decision, where the "error asserted is
largely a matter of how much weight should be accorded [to]
competing expert opinion." Peer v. Newark, 71 N.J. Super. 12, 31
(App. Div. 1961) (citing Coll v. Sherry, 29 N.J. 166, 173 (1959)),
certif. denied, 36 N.J. 300 (1962). The Supreme Court has applied
these principles specifically in the workers' compensation
context. See Paul v. Baltimore Upholstering Co., 66 N.J. 111,
121-22 (1974) (concluding that it is within the province of the
11 A-3486-15T3
compensation judge to accept the opinion of one party's expert and
reject the opinion of the other party's expert).
As part of his credibility assessment, the judge reasonably
took into account that claimant's expert, unlike the expert for
4
respondent, is not a board-certified orthopedic physician.
Although we surely would not endorse a per se principle that
medical experts who are board-certified are invariably more
credible than expert physicians who are not, the compensation
judge did not espouse such a rigid principle in this case.
Instead, the judge cited the board certification as one of several
factors in his credibility assessment. Moreover, respondent's
expert performed an x-ray, an objective test, whereas claimant's
expert did not. In addition, the judge posed his own pointed
questions to the experts, which reflects his careful consideration
of the evidence and his demonstrated knowledge as a jurist of the
pertinent medical terminology and concepts.
4
"The American Board of Medical Specialties ("ABMS") and American
Osteopathic Association ("AOA") recognize a number of specialty
practice areas and offer 'board certification' in each
specialty. A physician seeking board certification must satisfy
heightened training and testing requirements." Nicholas v.
Mynster, 213 N.J. 463, 469 n.1 (2013) (citing ABMS, About Board
Certification, http://www.certificationmatters.org/about-board-
certified-doctors/about-board-certification.aspx; AOA Board
Certification, http://www.osteopathic.org/inside-
aoa/development/aoa-board-certification/Pages/default.aspx
(2013)).
12 A-3486-15T3
Although claimant argues that respondent's expert's opinions
are inconsistent or flawed in various respects, those alleged
shortcomings, even if we accepted them as such, do not compel the
repudiation of his overall conclusions that were found credible
by the judge.
Affirmed.
13 A-3486-15T3