ALTAGRACIA POLANCO, Petitioner–Respondent, v. ROCKLAND COACHES, Respondent–Appellant.
DOCKET NO. A–005452–11T1
-- September 23, 2013
McHugh & Brancato, LLP, attorneys for appellant (Mark J. Brancato, on the brief). Gary J. Lustbader, attorney for respondent.
Respondent Rockland Coaches appeals from an order for judgment entered by the worker's compensation court in favor of Petitioner Altagracia Polanco. Respondent claims that a portion of the award was not supported by the evidence. We affirm.
Petitioner was employed by Respondent as a bus driver. On March 17, 2006, while driving a bus, Petitioner allegedly injured her neck and right shoulder. The judge of compensation dismissed the claim arising out of that injury, finding that Petitioner failed to sustain her burden of proof. She does not appeal that ruling.
On November 1, 2007, Petitioner fell in a pothole while exiting a bus on Respondent's premises. She alleged that she injured her neck, low back, right shoulder, and right ankle. The experts for both parties agreed that she had a herniated disc at the L5–S1 level and disc abnormalities at C5–C6. The experts disagreed on the extent of the permanent injuries to her neck, back, and shoulder, and on whether her ankle was permanently injured. The parties stipulated that Respondent was entitled to a credit for a previous workers' compensation award, for an April 26, 2004 rotator cuff tear in Petitioner's right shoulder, which award represented 12.5% of “partial total.” 1
The judge of compensation credited Petitioner's testimony that “she has functional loss to a material degree in her right shoulder and then also in her cervical region and her lumbosacral region” as a result of the fall on November 1, 2007. The judge found that those disabilities were serious and permanent. After considering the conflicting experts' opinions, and utilizing her own expertise, the judge entered an award:
It is this Court's opinion that petitioner is disabled in the amount of 50 percent of partial total. This Court feels the appropriate apportionment should be 27–1/2 percent of partial total for the injuries to the right shoulder with credit to respondent for the award previously paid of 12–1/2 percent of partial total. Petitioner is entitled to 12–1/2 of partial total for cervical disability involving a cervical bulge in the area of C5–C6, and petitioner is entitled to 15 percent of the partial total for a herniated disc in the area of L5–S1. This would be 300 weeks of compensation at a rate of $474 a week totaling $142,200. The credit for the previous award would be $14,250, leaving a balance due to the petitioner of $127,950.
The judge also awarded fees. Respondent appeals.
We must hew to our standard of review. “The factual findings of the compensation court are entitled to substantial deference.” Ramos v. M & F Fashions, 154 N.J. 583, 594 (1998). An appellate court
“must ‘limit[ ] its inquiry solely to whether the findings made by the Judge of Worker's Compensation 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 one who heard the witnesses to judge of their credibility and with due regard to [his] expertise.’ ”
[Ibid. (quoting Bradley v. Henry Townsend Moving & Storage Co., 78 N.J. 532, 534 (1979)).]
As quoted above, the judge found a percentage of “partial total” for each of the permanent injuries Petitioner received on November 1, 2007.
Respondent does not challenge the judge's findings of 12.5% of partial total for cervical disability, or 15% of partial total for the herniated lumbar disc. Respondent faults only the judge's finding that the 2007 accident caused 27.5% of partial total for the right shoulder.
Both parties presented testimony from orthopedic experts, Dr. Morris Horowitz for Petitioner and Dr. Gregory Gallick for Respondent. Respondent takes issue with the judge's statement:
Their diagnoses even were quite similar. Both found that petitioner needed the right rotator cuff repair and also a bursectomy and an acromioplasty and a partial claviculectomy.
Respondent argues that Dr. Gallick did not so testify. In fact, Dr. Gallick testified that Petitioner had a tear in her right rotator cuff that needed and received surgical repair, and that she had a bursectomy. He stated in his report that she had an “acromioplasty” and a “partial distal claviculectomy.” Dr. Horowitz's report said the same, as the judge correctly noted.
As the judge recognized, the two experts differed in their findings concerning the amount of permanent disability. Dr. Gallick agreed that on November 1, 2007, Petitioner sustained a right shoulder injury. He opined that after her surgery on February 7, 2008, she “regained the vast majority of motion” and was able to resume “most normal activities.” He conceded that her shoulder still “was not completely normal,” and that she had a “mildly limited range of motion” and “some pain in the shoulder and a little bit of weakness” and numbness. Dr. Gallick then testified that, for her right shoulder, he “gave her 10 percent impairment of total basically regardless of cause, and that [he] would consider half of that impairment to have causal relationship to this fall of November 1, 2007, and half” to be caused by the April 26, 2004 injury, resulting in 5% of partial total attributable to the 2007 injury.
By contrast, Dr. Horowitz found serious continuing problems with Petitioner's right shoulder, attributed “an orthopaedic disability of 75% of total overall for the right shoulder,” and apportioned the majority to the 2007 injury and the rest to the 2004 injury. This “differential in the amount of disabilities among [these] experts,” as the judge termed it, reflected their differing opinions. Dr. Gallick opined that the 2004 rotator cuff tear, for which surgery had been recommended, could not have been reinjured by the 2007 fall, while Dr. Horowitz posited that the 2007 accident “aggravated, accelerated and exacerbated the preexisting injury necessitating a surgical intervention.”
Faced with these disparate expert opinions, the judge of compensation used her “expertise with respect to weighing the testimony of competing medical experts and appraising the validity of [a] compensation claim.” Ramos, supra, 154 N.J. at 598. “Judges of Compensation have expertise in assessing the nature and extent of the disability.” Colon v. Coordinated Transp., 141 N.J. 1, 11 (1995). Absent evidentiary insufficiency or legal error, “we must defer to the judge of compensation's expertise in fixing percentages of disability.” Perez v. Capitol Ornamental, Concrete Specialties, Inc., 288 N.J.Super. 359, 368 (App.Div.1996).
Given the testimony of Petitioner and the experts, we cannot say that the judge's award of 27.5% of partial total was excessive or inconsistent with the weight of the evidence. This court “may not ‘engage in an independent assessment of the evidence as if it were the court of first instance.’ ” Sager v. O.A. Peterson Constr., 182 N.J. 156, 164 (2004) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). If “an appellate court finds sufficient credible evidence in the record to support the agency's conclusions, that court must uphold those findings, even if the court believes that it would have reached a different result.” Ibid.
Respondent lastly protests that when Petitioner was examined by Dr. Gallick, she denied any prior injury to her right shoulder. Whatever the reason for that misstatement in the doctor's office, Petitioner, the experts, and the judge all acknowledged at trial that Petitioner had injured her right shoulder in 2004, and the judge gave Respondent credit for the 12.5% award resulting from that 2004 injury. See Abdullah v. S.B. Thomas, Inc., 190 N.J.Super. 26, 29–35 (App.Div.1983).
1. FN1. “Partial total” refers to a situation where partial, permanent disability is established but the body part injured and the resulting disability is not specifically set out in the schedule of injuries in N.J.S.A. 34:15–12c(1)–(21), and is therefore addressed “as a percentage of total and permanent disability” under N.J.S.A. 34:15–12c(22). See Zuza v. Ford Motor Co., 84 N.J.Super. 588, 592–93 (App.Div.1964); see also N.J.S.A. 34:15–36. “[W]here two or more major members are injured,” rather than simply “ ‘adding up the fractional parts,’ ” the compensation court “is to look at the effect of the injuries and to make a reasonable assessment of the combined disability in terms of a percentage of permanent and total disability.” Poswiatowski v. Standard Chlorine Chem. Co., 96 N.J. 321, 330, 334 (1984) (quoting Orlando v. F. Ferguson & Son, 90 N.J.L. 553, 557–58 (E. & A.1917)); see Ventre v. CPC Intern., Inc./C.F. Mueller Co., 285 N.J.Super. 567, 574–75 (App.Div.1995).