ANTONIO PEREIRA VS. OASIS FOODS (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NOT FOR PUBLICATION WITHOUT THE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-0405-15T2

ANTONIO PEREIRA,

Petitioner-Appellant,

v.

OASIS FOODS,

Respondent-Respondent.

________________________________________________________________

Submitted December 20, 2016 – Decided June 13, 2017

Before Judges Reisner and Rothstadt.

On appeal from the Department of Labor and
Workforce Development, Division of Workers'
Compensation, Docket No. 2014-14393.

Mark Law Firm, LLC, attorneys for appellant
(Jamison M. Mark, of counsel; Jennifer L.
Casazza, on the brief).

Law Office of Ann Debellis, attorneys for
respondent (Ann Debellis, of counsel; David
P. Kendall, on the brief).

PER CURIAM

This appeal involves a workers' compensation claim by

petitioner, Antonio Pereira, for medical benefits for an alleged

derivative injury he sustained while receiving treatment for a
recognized work-related injury he suffered six months earlier.

The judge of compensation conducted a plenary hearing, made

detailed credibility findings, and concluded the alleged

derivative injury was not compensable as Pereira failed to prove

it was work-related or arose from his earlier work related injury.

In his appeal from the August 13, 2015 order denying medical

benefits for the injury, Pereira argues that the evidence did not

support the judge's findings, she relied upon "incompetent

evidence" and errors made by Pereira's first attorney, and the

judge should have had an interpreter assist him during the hearing.

He also contends that we should consider materials acquired after

the judge's decision in the interest of justice. We disagree and

affirm.

The facts found by the judge of compensation after the hearing

can be summarized as follows. On July 10, 2013, Pereira injured

his back in a work-related automobile accident and filed a claim

(No. 2013-029419) for workers' compensation benefits. Oasis's

workers' compensation carrier approved treatment for the injury

that included physical therapy.

On May 20, 2014, Pereira filed a workers' compensation claim,

No. 2014-014393, in which he alleged that on January 17, 2014, he

sustained an "occupational hernia" as a result of "[l]oading,

lifting, [and] unloading merchandise." In its answer, Oasis denied

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the occurrence arose out of and in the course of employment and

denied coverage.

Pereira filed a motion for medical benefits on July 18, 2014,

under both claims' case numbers. In the motion, Pereira's attorney

filed a certification to which he attached reports from doctors

that stated the hernia was caused by work-related "repetitive

stress and strains," and "caused over time from straining at work

and physical therapy."

At the ensuing plenary hearing, however, Pereira's attorney

informed the court that the hearing was limited to his clients'

"January hernia case . . . the motor vehicle" accident. In his

testimony at the hearing, Pereira never attributed his injury to

any repetitive strain at work. Rather, he testified that on

January 27, 2014, he sustained an umbilical hernia that required

surgical treatment due to strenuous exercises that he was subjected

to during his auto accident-related physical therapy. According

to Pereira, while he was performing the exercise, his physical

therapist noticed a bulge protruding from his stomach. He denied

that he felt any type of "pop" or that he experienced any pain

associated with the bulge.

In treatment notes, the physical therapist described the

bulge, noted her advice to Pereira that he should consult with his

medical doctor and stated that Pereira reported to her that he

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fell in 2011 and afterwards "notic[ed] a bulge over his abdomen

when he contracts his abdominals." Subsequent entries indicated

that Pereira spoke with his physician, who told him "that the

herniation existed prior to the workers comp accident and therefore

was not to be treated at the time." According to medical records

admitted into evidence without objection, Pereira exhibited

symptoms of diastasis recti when he was treating for a prior work-

related back injury in 2011. At that time it was considered to

be "moderate."

According to Pereira's expert witness, diastasis recti is a

condition where the muscles in the abdomen separate. Obese

individuals with diastasis recti are at risk of developing

umbilical hernias because the extra weight weakens the fascia

making them more susceptible to tearing. Pereira, who is no more

than 5'6" tall and weighs 229 pounds, is considered "morbidly

obese" and his weight made him "prone to hernias."

The judge denied Pereira's application and set forth her

findings and reasons in an eight-page written decision that she

later amplified in writing. R. 2:5-1(b). Based on her evaluation

of the parties' experts' opinions and what she described as

Pereira's conflicting testimony, the judge concluded that he

"failed to sustain his burden of proof" because the evidence

established that "it was more likely than not that [the] hernia

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was caused over a long period of time from the diastasis recti."

In the judge's amplification, she explained that she found

Pereira's "testimony varied with each doctor he consulted from

what he stated in open court [and it] varied from the medical

records."

"Appellate review of workers' compensation cases is 'limited

to whether the findings made could have been reached on sufficient

credible evidence present in the record . . . with due regard also

to the agency's expertise[.]'" Hersh v. Cty. of Morris, 217 N.J.

236, 242 (2014) (alteration in original) (quoting Sager v. O.A.

Peterson Constr., Co., 182 N.J. 156, 164 (2004)); see also Renner

v. AT & T, 218 N.J. 435, 448 (2014). We "generally give

'substantial deference' to [their] determinations . . .

'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) (first quoting Earl v. Johnson & Johnson,

158 N.J. 155, 161 (1999); then quoting Close v. Kordulak Bros.,

44 N.J. 589, 599 (1965)). "Deference must be accorded . . . unless

. . . 'manifestly 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,

5 A-0405-15T2
140 N.J. 277 (1995)). Where "[i]t is the legal consequences

flowing from those facts that form the basis of [the] appeal[, w]e

owe no particular deference to the judge of compensation's

interpretation of the law." Sexton v. Cty. of

Cumberland/Cumberland Manor, 404 N.J. Super. 542, 548 (App. Div.

2009) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,

140 N.J. 366, 378 (1995)).

In our review, we are mindful that the Workers' Compensation

Act, N.J.S.A. 34:15-1 to -146, "is humane social legislation

designed to place the cost of work-connected injury on the employer

who may readily provide for it as an operating expense." Hersh,

supra, 217 N.J. at 243 (quoting Livingstone v. Abraham & Straus,

Inc., 111 N.J. 89, 94-95 (1988)). The Act should be "construed

and applied in light of this broad remedial objective." Ibid.

(quoting Livingstone, supra, 111 N.J. at 95).

The Act authorizes an award of workers' compensation benefits

to an employee injured in an accident "arising out of and in the

course of employment . . . ." N.J.S.A. 34:15-7; see also Hersh,

supra, 217 N.J. at 238. In order for the injury to be compensable,

there must be "a causal connection between the employment and the

injury." Coleman v. Cycle Transformer Corp., 105 N.J. 285, 290

(1986). "It must be established that the work was at least a

contributing cause of the injury and that the risk of the

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occurrence was reasonably incident to the employment." Ibid. The

"test asks 'whether it is more probably true than not that the

injury would have occurred during the time and place of employment

rather than elsewhere.'" Id. at 290-91 (quoting Howard v.

Harwood's Rest. Co., 25 N.J. 72, 83 (1957)).

An "employee is not disqualified under the requirement that

the injury arise out of the employment where the pre-existing

condition is aggravated, accelerated or combined with the pre-

existing disease or infirmity to produce the disability for which

compensation is sought." Verge v. Cty. of Morris, 272 N.J. Super.

118, 126 (App. Div. 1994). "In the context of aggravation of a

preexisting condition, the corollary to that rule is that

disqualification under the 'arising out of' criterion occurs when

the preexisting condition is the sole cause of the injury for

which compensation is sought." Sexton, supra, 404 N.J. Super. at

556 (citing Spindler v. Universal Chain Corp., 11 N.J. 34, 39

(1952); Shaudys v. IMO Indus., Inc., 285 N.J. Super. 407, 414-17

(App. Div. 1995); Verge, supra, 272 N.J. Super. at 128-29).

A petitioner seeking workers' compensation benefits generally

must prove both legal and medical causation when those issues are

contested. Lindquist, supra, 175 N.J. at 259. "Medical causation

means the injury is a physical or emotional consequence of work

exposure. Stated another way, proof of medical causation means

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proof that the disability was actually caused by the work-related

event." Ibid. (citation omitted). "Proof of legal causation

means proof that the injury is work connected." Ibid. (citing

Kasper v. Bd. of Trustees of Teachers' Pension and Annuity Fund,

164 N.J. 564, 591 (2000) (Coleman, J., concurring)).

Applying these standards, and based upon our careful review

of the record and applicable legal principles, we affirm the judge

of compensation's conclusion that Pereira failed to meet his

burden, see Perez, supra, 278 N.J. Super. at 282, substantially

for the reasons the judge stated in her comprehensive written

decision and amplification, as we conclude her findings were

supported by sufficient credible evidence on the record as a whole.

R. 2:11-3(e)(1)(D).

In an attempt to persuade us that the judge of compensation's

decision was incorrect, Pereira argues that we should consider

additional evidence that was developed after the hearing,

including additional medical records and records from an ambulance

service. We reject this invitation to re-open the record as our

"review is limited to the record developed before the [workers'

compensation] court," Davis v. Devereux Found., 209 N.J. 269, 296

n.8 (2012), and any argument based upon newly discovered evidence

must be brought before that court for consideration before we

engage in any review. See R. 4:49-1; Pressler & Verniero, Current

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N.J. Court Rules, comment 1.4 on R. 4:49-1 (2017); see also R.

4:50-1(b) (regarding relief from judgment based upon newly

discovered evidence); Saldana v. Essex Cty. Div. of Welfare, 224

N.J. Super. 1, 3 (App. Div. 1987) (regarding Superior Court Rules

applicability to administrative proceedings).

Finally, we turn to Pereira's argument that his due process

rights were violated because he was not provided with a Brazilian-

Portuguese interpreter. There is nothing in the record of the

hearing, however, that reflects any request by Pereira for an

interpreter, nor was the issue raised before the judge of

compensation after she denied Pereira's application. Pereira

raised the issue of a due process violation for the first time in

an affidavit he filed with this court. Under these circumstances,

we have no reason to consider his argument. See Nieder v. Royal

Indem. Ins. Co., 62 N.J. 229, 234 (1973). Moreover, while we

"acknowledged the important role that proper translation into the

language of the litigant plays in our legal system," Alicea v. Bd.

of Review, 432 N.J. Super. 347, 352 (App. Div. 2013), we agree

with the judge of compensation's finding that "there was no

language barrier [as] Pereira testified at length before th[e]

court" without any impediment.

To the extent we have not specifically addressed any of

Pereira's remaining arguments, we find them to be without

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sufficient merit to warrant discussion in a written opinion. R.

2:11-3(e)(1)(E).

Affirmed.

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