NOT FOR PUBLICATION WITHOUT THE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-4867-15T3
ANDREA ELIAS,
Petitioner-Respondent,
v.
LIFE CARE SERVICES, d/b/a
HARROGATE,
Respondent-Appellant.
_______________________________
Argued September 25, 2017 – Decided October 11, 2017
Before Judges Sabatino and Whipple.
On appeal from the New Jersey Department of
Labor and Workforce Development, Division of
Workers' Compensation, Claim Petition No.
2011-4216.
Anne M. Hammill-Pasqua argued the cause for
appellant (Capehart & Scatchard, PA,
attorneys; Jammie Jackson and Stephen T.
Fannon, on the briefs).
Christopher R. Shea argued the cause for
respondent (R.C. Shea & Associates, PC,
attorneys; Mr. Shea, on the brief).
PER CURIAM
Life Care Services, doing business as Harrogate ("Life
Care"), appeals a June 30, 2016 order of the Division of Workers'
Compensation granting petitioner Andrea Elias certain additional
temporary disability benefits and awarding her a penalty and
counsel fees. Life Care contends that the compensation judge's
rulings are erroneous in numerous aspects. We disagree, and
affirm.
Elias worked as a home health aide for Life Care. She injured
her lower back on December 3, 2010, while getting up after
showering a patient.
After the accident, various diagnostic tests and epidural
injections were administered and Elias submitted to a functional
capacity examination. The testing showed that Elias had suffered
certain lumbar injuries, but that she would still be able to
perform light duties. Meanwhile, Life Care terminated Elias and
did not offer her a light duty position. Elias retained counsel
and filed a claim for temporary disability and wage loss benefits
under the Workers' Compensation Act, N.J.S.A. 34:15-1 to -142.
The matter originally settled on June 22, 2012, with an order
issued by Compensation Judge Eugene Mulvaney approving a
settlement that awarded Elias 20% of permanent partial total
disability for residuals of lumbar sprain and strain, subject to
a 5% credit to the employer for her prior functional loss. The
parties stipulated at that time to a compromised average weekly
wage rate of $345 and a compensation rate of $241.50 a week.
2 A-4867-15T3
Elias made attempts to return to work without success,
including working part time as a cashier twenty-six hours a week
for about six months through December 2011. That job ended because
she was unable to endure the back pain.
Because Elias' pain had increased significantly in intensity
and duration, she moved to reopen her claim. Ultimately she
underwent an L5-S1 spinal decompression and fusion surgery with
Dr. Ramil S. Bhatnagar on January 29, 2014. On July 11, 2014, Dr.
Bhatnagar concluded that Elias had reached maximum medical
improvement, although he did acknowledge she had a permanent
restriction of lifting no more than ten pounds. He also relied
on a functional capacity evaluation, which concluded that she
performed all the protocols "with significant submaximal effort."
Another examining physician, Dr. Robert R. Bachman, likewise
opined that Elias remained at maximum medical improvement. Elias
was also examined by another physician, Dr. Cary Skolnick, who
diagnosed a decrease in Elias's range of spinal motion to about
55%. Dr. Skolnick found a "material lessening" of Elias's working
ability. He did not comment on the issue of maximum medical
improvement.
Elias sought another medical opinion. An orthopedist, Dr.
Jason Cohen, evaluated her for that purpose. Dr. Cohen found that
the fusion surgery had not been entirely successful in that the
3 A-4867-15T3
bone around the discs had not completely fused. He disagreed with
Dr. Bhatnagar's conclusion that plaintiff had reached maximum
medical improvement. Dr. Cohen recommended more treatments,
including epidural steroid injections, a facet block, and
radiofrequency denervation.
The reopened matter was presented to Compensation Judge
Salvatore Martino. Judge Martino was dissatisfied with the clarity
of the medical evidence provided on the papers, and asked that Dr.
Cohen be made available to testify via a telephonic conference.
Dr. Cohen thereafter provided that testimony, without objection
by Life Care's trial counsel. The expert generally supported
Elias' contentions that she was still having problems stemming
from the lower back injury.
Meanwhile, Elias again attempted to obtain employment. She
worked briefly as a cook at a banquet hall for about two weeks,
but left the position because she could not handle the lifting
duties imposed by the chef.
On June 14, 2016, Judge Martino issued a ten-page opinion
awarding Elias additional temporary disability benefits for the
timeframe of July 11, 2014 to June 14, 2016, which results in a
total computed benefit of $24,322.50.
Judge Martino specifically found that plaintiff's testimony
at the reopened hearing was credible and "inherently believable."
4 A-4867-15T3
He concluded that Dr. Bhatnagar's finding in July 2012 that Elias
had reached maximum medical improvement was "premature." In
addition, Judge Martino imposed on Life Care a 25% penalty because
of what he determined to be its "unreasonable and negligent delay"
in failing to provide benefits to Elias sooner. The judge also
assessed a 20% attorneys' fee pursuant to the statute.
Life Care demanded a hearing on the claimant's proposed form
of order because it wanted to get full credit, against the
temporary disability award, for two "voluntary tenders" it made
to Elias, each in the amount of $6,360. Judge Martino rejected
the employer's argument that these voluntary tenders should be
offset against Elias' temporary award, which would still allow
that to be offset against any enhanced permanent award she may
receive in additional proceedings.1
On appeal, Life Care raises several arguments, which
primarily are as follows: (1) Elias failed to meet her burden of
proof at the reopened hearing, and it was improper for Judge
Martino to call Dr. Cohen sua sponte as a witness to help Elias
bolster her case; (2) the judge erred in concluding from the
evidence that Elias had not reached maximum medical improvement;
(3) the judge misapplied Cunningham v. Atlantic States Cast Iron
1
At oral argument on appeal, counsel acknowledged that further
proceedings to reopen a permanent award are anticipated.
5 A-4867-15T3
Pipe Co., 386 N.J. Super. 423 (App. Div. 2006), in providing Elias
with wage loss benefits because she did not sufficiently attempt
to find work; and (4) the judge's imposition of the penalty and
attorneys' fees was unjustified. Having duly considered these and
Life Care's other arguments, we decline to set aside any of the
judge's rulings.
Our scope of review of a compensation court's decisions is
limited. In general, we 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
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).
Further, a reviewing court 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.
6 A-4867-15T3
Div. 1978) ("It must be kept in mind that judges of compensation
are regarded as experts."). In the presence of sufficient credible
evidence, 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).
Viewed through this prism of review, we conclude that the
compensation judge's rulings in this case were legally sound and
are amply supported by the record. We only briefly comment on a
few of the main points presented by Life Care.
Life Care argues in its brief that the compensation judge
unfairly elicited testimony from Dr. Cohen, and unduly relied on
that testimony. As we have already noted, and as the judge
underscored in his July 14, 2016 letter submitted pursuant to Rule
2:5-1(b), Life Care's trial counsel failed to object to the record
being reopened to allow for Dr. Cohen's testimony. We need not
reach Life Care's claim of error on that score, which was not
raised below. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234
(1973).
Even if we did reach the issue, the judge had clear authority
and justification to request Dr. Cohen's testimonial clarification
of the findings contained in his written reports. Handleman v.
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Marwen Stores Corp., 53 N.J. 404, 411 (1969) (confirming the
"inherent power" of a compensation judge to call and examine expert
witnesses who, in the judge's "sound judgment," he or she "deems
. . . necessary for a proper determination of the case"); see also
N.J.R.E. 614 (analogously recognizing that authority of a judge
in Superior Court cases). The judge also had the prerogative as
fact-finder to consider Dr. Cohen more credible than Dr. Bhatnagar
concerning Elias' post-surgical medical progress, even though the
latter physician had performed the surgery. See Ramos v. M&F
Fashions, Inc., 154 N.J. 583, 594 (1998).
We are unpersuaded by Life Care's argument that the
compensation judge misapplied the principles of Cunningham, supra,
386 N.J. Super. at 432, respecting a workers' compensation
petitioner's ability to be employed. In Cunningham, an employee
suffered a compensable injury, but later returned to work and was
terminated due to excessive absences unrelated to his injury. Id.
at 424-27. After his termination, Cunningham received treatment
from a doctor who concluded he could not work due to his work-
related injury. Id. at 426. Cunningham then filed for benefits.
Ibid. However, because he had already been terminated, due to his
absenteeism, he suffered no actual loss of wages from his employer.
Id. at 428. Consequently, Cunningham needed to show that he would
have been working elsewhere, but for the injury. Id. at 432.
8 A-4867-15T3
Because of the novelty of the legal issue, we remanded the case
to afford Cunningham an opportunity to present such other proofs
of actual wage loss. Id. at 433-34.
Here, Life Care contends that Elias has not shown any actual
wage loss, and therefore is precluded under Cunningham from
obtaining benefits. Life Care overlooks, however, a critical
factual distinction that sets this case apart from Cunningham.
Elias, unlike Cunningham, was terminated by her employer for a
benign reason, and not because of any misconduct on her part. She
lost her job because of the very work-related injury that underlies
her claim.
Life Care asserts that Elias should be denied benefits because
she has not made a sufficiently diligent effort to obtain
replacement work. The compensation judge had ample grounds to
reject that assertion. The judge, who explicitly found Elias to
be a credible witness, accepted her explanation that she could not
obtain other cashier jobs because it was too uncomfortable to sit
and stand for long periods of time. Elias also credibly testified
that she was impeded in finding other suitable work due to her
medically-imposed lifting restrictions. The record exhibits the
good faith attempts by Elias to work despite her pain, first as a
cashier, and later as a cook. In sum, the record sufficiently
supports the judge's assessment that Elias was available and
9 A-4867-15T3
willing to work, and that she would have been working but for her
disability.
The balance of Life Care's arguments, including but not
limited to its claims that the 25% penalty and attorneys' fees the
judge imposed are unjustified, lack sufficient merit to warrant
discussion. R. 2:11-3(e)(1)(D),(E).
Affirmed.
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