KIRK UNGER VS. MOONEY CONSTRUCTION (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NOT FOR PUBLICATION WITHOUT THE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-3844-18T2

KIRK UNGER,

Petitioner-Respondent,

v.

MOONEY CONSTRUCTION,

Respondent-Appellant.

Submitted January 7, 2020 - Decided February 20, 2020

Before Judges Currier and Firko.

On appeal from the New Jersey Department of Labor
and Workforce Development, Division of Workers'
Compensation, Claim Petition No. 2017-913.

Lois Law Firm, LLC, attorneys for appellant (Michael
Gervolino, on the briefs).

Hobbie, Corrigan & DeCarlo, PC, attorneys for
respondent (Michael Robert Hobbie, of counsel;
Chelsey M. Rowe, on the brief).

PER CURIAM
 Appellant Mooney Construction appeals from the order for judgment

finding petitioner Kirk Unger to have a 45% partial total disability as a result of

injuries to his ankles and right shoulder incurred during his employment.

Appellant contends there was insufficient evidence to support the award,

requiring its reversal. We affirm.

While working for appellant as a framer, petitioner fell approximately

sixteen feet off a scaffold. He fractured both ankles and tore the rotator cuff and

labrum in his right shoulder. Petitioner underwent surgery to both ankles, with

the placement of plates and screws. He had arthroscopic surgery to the shoulder.

During the trial, petitioner described the pain and swelling and limitation of

motion he continued to experience in both of his ankles and his shoulder.

Petitioner testified the residual problems from his injuries prevented him

from returning to work as a framer. About a year after the accident, petitioner

began to work as a handyman. Although he has pain in his ankles and shoulder,

he stated he is able to work a couple of hours a day doing tasks such as installing

doors, painting and tile work.

Dr. Lance Markbreiter, an orthopedic surgeon, evaluated petitioner in

April 2018. He found petitioner had almost no function in the right shoulder

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and he would never regain normal strength in his right arm. Therefore, the

doctor opined there was a 90% permanent disability of the right shoulder.

In examining petitioner's ankles, Dr. Markbreiter found a significant loss

of motion – petitioner could not move his right foot up and down, and he had no

side to side motion in the left foot. The doctor determined there was a 75%

permanent disability in the right ankle and a 60% permanent disability in the

left. He stated further that petitioner would continue to have pain in his ankles

and shoulder and that his range of motion in the affected areas would worsen

over time.

Appellant presented Dr. Jeffrey France as an expert in the evaluation of

disability and impairment ratings, including workers' compensation cases. He

evaluated petitioner in November and December 2017. He reported he found

petitioner had a normal range of motion in his ankles and a "mild motion deficit"

in his right shoulder. The doctor found "some mild weakness" in the shoulder

but no weakness in either ankle. Dr. France concluded petitioner had a 10%

disability of the right shoulder and a 5% permanent disability in both ankles.

Appellant also presented three witnesses who had surveilled petitioner.

The first investigator followed petitioner for four days in September 2018. On

the first day, the witness videotaped petitioner working for an hour at a private

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residence doing landscaping and riding a lawn mower. He described petitioner

using a hedge clipper to trim bushes and a hand-held power saw to cut branches.

On the third day, petitioner was observed carrying a putty knife and a tray into

a home. Petitioner worked at a second house that day, using several tools from

a toolbox in his truck. On the last day, the investigator described petitioner

working at a house carrying paint cans and rollers. In total, the investigator

captured two and a half hours of video over the four-day period.

A second investigator observed petitioner for approximately eight hours

on January 22, 2018. He saw petitioner working for approximately ninety

minutes during that time. The investigator produced forty-two minutes of

footage that showed petitioner working on the back of a residence, where he

moved a ladder, repaired siding that was falling off the residence and put up

some new siding. The witness estimated the ladder to be between two to four

feet high.

A third investigator surveilled petitioner for ten hours on January 26,

2018, producing a twenty-five-minute video of petitioner's activities. The

footage showed petitioner doing "some brief shoveling" (two or three shovel

motions), picking up an empty trailer with both arms, and throwing two cement

blocks underhand to the side of the trailer.

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 The judge of compensation issued a comprehensive oral decision on

March 12, 2019. He described petitioner as "a very credible witness." The

compensation judge reviewed the extensive medical records, and the expert

testimony. He found Dr. Markbreiter had "outstanding credentials and was an

excellent witness."

The compensation judge stated he had "closely reviewed the six days of

surveillance," noting the six days only resulted in three to four hours of footage.

He stated:

The surveillance did not show anything that was
inconsistent with the petitioner's testimony. Over the
six days, it did show him doing some handyman type
activities, such as limited hammering overhead for
short periods, standing approximately two to three steps
off the ground on the step ladder or step stool, and some
trimming of bushes. There was nothing shown that
would in any respect significantly detract from
[petitioner's] testimony.

In a light most favorable to [appellant], the
surveillance showed a bit of freedom of movement of
the shoulder and ambulation beyond what I expected.
On the other hand, considering [appellant] spent six
days following the petitioner, they found nothing that
contradicted his testimony. In fact, over the six days,
[petitioner] is not seen doing anything that could
remotely be considered recreational. If anything, the
surveillance reinforced his testimony that his activities
were substantially limited outside of work, and that
there was no footage of him doing anything but driving

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 or going to convenience stores beyond the limited
handyman work referenced earlier.

In discussing petitioner's permanent disability, the compensation judge

noted "both doctors find permanent disability as to the shoulder and both ankles.

The issue is the extent of the disability." He accorded

much greater weight to Dr. Markbreiter's findings
[because] he is a very experienced treating orthopedist,
having performed many ankle surgeries. . . . His range
of motion findings were more consistent with the
credible complaints of [petitioner] as to his feet. Dr.
France is not a treating orthopedist and confines his
practice to defense exams.

The judge of compensation found it difficult to accept "that given the extent of

the bilateral foot injuries with the significant remaining hardware, that there is

no restriction of range of motion or swelling."

In continuing his analysis, the compensation judge stated:

As to the effect on [petitioner's] life, the injuries have
very significantly altered his life. He worked in
construction with a major component of his work being
that as a framer for many years. In addition to his own
testimony that he cannot do the work, the treating
shoulder surgeon, Dr. Markbreiter and Dr. France all
agree that he has a permanent lifting restriction of
[twenty] pounds.

In addition, [petitioner] has significant difficulty
with being on his feet for extended periods of time. He
has given up his profession and now works as a part
time handyman earning much less money. . . .

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 I find his testimony credible that the injuries have
very significantly impacted his ability to do the
enjoyable activities of his life, such as skiing, playing
ice-hockey, running and going to the gym. In addition,
he has daily pain and must rest after extended periods
of activity. . . .

In assessing the appropriate percentage of
disability, I must assess the injuries as [a]ffecting
[petitioner] in totality. In the event of a future
application to modify the award, if any of the
conditions worsen, it's also important that I
approximate the disability. Based upon my detailed
review of the testimony, review of the documentary
evidence, review of the surveillance tapes, and my
experience as a Worker[s'] Compensation Judge, I find
[petitioner] has sustained a [45%] partial total
disability. It is apportioned [22.5% partial total]
disability as to the [right] shoulder, . . . [30% to the]
right [ankle], and [27.5% to the] left [ankle]. . . .

The award entitles [petitioner] to 270 weeks of
disability, at the rate of $538 per week, for a gross sum
of $145,260.

Appellant contends on appeal that the judge of compensation: (1) did not

have objective credible medical evidence to support his findings of permanent

residual disability; and (2) failed to properly consider petitioner's ability to work

after the accident. Therefore, appellant seeks the reversal of the permanent

disability finding.

Our review in a workers' compensation case "is limited to 'whether the

findings made could reasonably have been reached on sufficient credible

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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. City of Jersey City Fire Dep't, 175 N.J. 244, 262

(2003) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). Our review

of a judge's interpretation of an issue of law is de novo. Manalapan Realty, L.P.

v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) (citing State v. Brown,

118 N.J. 595, 604 (1990)).

Under the Workers' Compensation Act, N.J.S.A. 34:15-1 to -146, a worker

may apply for permanent disability benefits if a work-related injury has resulted

in a permanent disability. N.J.S.A. 34:15-12. The statute defines a permanent

disability as:

[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.

[N.J.S.A. 34:15-36.]

In Perez v. Pantasote, Inc., 95 N.J. 105, 118 (1984), the Supreme Court

held that "[an] employee must first prove by demonstrable objective medical

evidence a disability that restricts the function of his body or its members or

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organs." The employee must then "establish either that he has suffered a

lessening to a material degree of his working ability or that his disability

otherwise is significant and not simply the result of a minor injury." Ibid. The

employee has "[t]he burden of proving both of these elements . . . ." Ibid. (citing

Januszewski v. Pub. Serv. Coordinated Transp., 9 N.J. 107, 114 (1952)).

As stated, the first prong requires a showing of objective evidence of a

functional restriction of the body. The determination cannot rest upon the

employee's "subjective complaints." Perez, 95 N.J. at 116.

"Once a permanent disability is proven by such objective evidence, the

next issue is determining whether the injury is minor or is serious enough to

merit compensation." Ibid. "Two major components of the lessening criterion

are 'a material degree' and an 'employee's working ability.'" Ibid. "Material

degree means an appreciable degree or a degree substantially greater than de

minimis." N.J.S.A. 34:15-7.2; see Perez, 95 N.J. at 116.

The second component of the lessening criterion "refers to [an

employee's] capability to perform his work duties, as differentiated from

disability in the broader sense to carry on the 'ordinary pursuits of life.'" Perez,

95 N.J. at 117 (quoting Heidel v. Wallace & Tiernan, 37 N.J. Super. 522, 528-

29 (Cty. Ct. 1955)). As a result, "the question . . . is whether there has been an

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appreciable impairment of the employee's ability to work. If there has been,

then the lessening criterion has been satisfied and the claim is compensable."

Ibid. "However, if there has not been an appreciable impairment of the

employee's ability to work, then the inquiry . . . . is whether there has been a

disability in the broader sense of impairment in carrying on the 'ordinary pursuits

of life.'" Ibid.

Appellant argues that the judge of compensation erred in his determination

of permanent disability because he relied on subjective evidence from petitioner

and gave greater weight to Dr. Markbreiter's findings than those of Dr. France.

Appellant contends that both petitioner and Dr. Markbreiter testified that

petitioner could not lift his right arm overhead. But the video evidence

demonstrated to the contrary because some footage showed petitioner lifting his

right arm over his head. Therefore, appellant asserts that both petitioner and Dr.

Markbreiter were not credible witnesses and petitioner has not presented

objective credible evidence of a permanent disability. We disagree.

Petitioner testified that he could not lift his right arm higher than his

shoulder without using his left arm to push it up. If he uses his left hand to put

the right arm overhead, he stated he can keep the right hand over his head for a

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little while. This testimony was consistent with the actions seen on the

videotape.

In reaching his determination of permanent disability, Dr. Markbreiter

examined petitioner, reviewed operative reports, performed range of motion and

strength testing, palpated the hardware on both ankles, and observed the residual

scars on the ankles and shoulder.

The compensation judge reached his conclusion of permanent disability

after reviewing the extensive medical records, and the expert reports and

testimony from Drs. Markbreiter and France. He found Dr. Markbreiter's

testimony more persuasive based on his credentials and orthopedic experience

as an ankle surgeon. We are satisfied the records and testimony presented

sufficient objective medical evidence to support the judge's determination of a

disability restricting the function of petitioner's ankles and shoulder. The judge's

determination did not solely rest upon petitioner's subjective complaints.

We turn to the second Perez prong and consider whether petitioner

established he suffered a "lessening to a material degree of his working ability

. . . ." Id. at 118. It cannot be disputed that petitioner met the first component

of the lessening criterion – that his injuries were "substantially greater than de

minimis." N.J.S.A. 34:15-7.2; see Perez, 95 N.J. at 116. The injuries to his

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ankles and shoulder were significant, requiring surgery and an extensive course

of treatment.

Appellant contends that the video evidence demonstrates petitioner can

perform the work duties he formerly did as a framer, and therefore he ca nnot

satisfy the second component of the lessening criterion. Again, we disagree.

Petitioner testified that work as a framer required climbing stairs and

ladders, carrying heavy material, setting up scaffolding, building walls, setting

up beams, and general heavy physical labor. Because of his pain and limited

range of motion, in addition to the lifting restrictions imposed by his treating

physician, petitioner stated he could no longer perform the framing job.

Despite his limitations, however, petitioner began working as a handyman

for homeowners – installing doors, painting, tiling, and similar work. Petitioner

stated he can only work several hours each day before he is hampered by pain.

His income as a handyman is substantially less than his pay as a framer.

Therefore, with respect to the second component of the lessening criterion, it is

clear "there has been an appreciable impairment of [petitioner's] ability to

work." Perez, 95 N.J. at 117.

In considering petitioner's ability to work, the compensation judge

discussed the testimony of petitioner and Dr. Markbreiter that petitioner could

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not return to work as a framer but was working as a handyman, albeit for

considerably less pay. The judge noted petitioner's inability to engage in

recreational activities, his daily pain and the rest he required after extended

periods of activity. We are satisfied the judge properly evaluated petitioner's

functional working ability in his assessment of permanent partial disability.

In light of our stated reasons, we discern no reason to disturb the

compensation judge's determination of permanent disability. The judge properly

weighed "the testimony of competing medical experts and apprais[ed] the

validity of [the] compensation claim[s]." Ramos v. M & F Fashions, 154 N.J.

583, 598 (1998) (citing Lewicki v. N.J. Art Foundry, 88 N.J. 75, 89 (1981)

(recognizing the deference entitled to compensation courts due to their

expertise)).

In his evaluation of the opinions of competing doctors, the compensation

judge "carefully explained why he considered certain medical conclusions more

persuasive . . . ." Smith v. John L. Montgomery Nursing Home, 327 N.J. Super.

575, 579 (App. Div. 2000). As we have stated, affording "more weight to the

opinion of one physician as opposed to the other provides no reason to reverse

[a] judgment." Ibid. The judge also made credibility findings of the witnesses.

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We are satisfied the record demonstrates sufficient credible evidence supporting

the finding of permanent partial disability.

Affirmed.

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