JULIO OTOYA v. JERSEY CITY PARKING AUTHORITY (2011)

Appellant, Jersey City Parking Authority (Parking Authority), appeals from the March 10, 2010 order of the Division of Workers' Compensation (Division) awarding petitioner, Julio Otoya, the gross sum of $58,926, representing 30.5 percent of permanent partial disability arising out of his work-related injuries.   We affirm.

Otoya was employed by the Parking Authority and worked in the boot department.   His duties included monitoring cars parked without a valid permit.   When petitioner found a car illegally parked, he immobilized the car by placing a boot on it.   On February 16, 2006, while attempting to place a boot on a vehicle, petitioner fell, injuring his right shoulder and left elbow.   He was treated at Jersey City Medical Center where x-rays were taken and his left arm placed in a sling.   He was not admitted to the hospital but discharged that same day.   Fifteen months later, petitioner underwent arthroscopic surgery.   The postoperative diagnosis was right shoulder acromioclavicular joint arthrosis, impingement syndrome, and superior labrum anterior posterior lesion.

Following surgery, petitioner missed approximately four to five months of work.   When he returned to work, he no longer immobilized vehicles.   He was assigned to locate vehicles registered to scofflaws, and when such vehicles were located, he ticketed the vehicles and made arrangements to have the particular vehicle towed.

Petitioner filed a claim for workers' compensation benefits.   A trial before a judge of workers' compensation took place on January 6, 2010.   The parties stipulated that petitioner suffered compensable injuries on February 16, 2006;  and petitioner's average weekly wage was $556, resulting in a weekly temporary disability rate of $389.20, and a $184 weekly starting rate for partial permanent disability.   The parties also agreed that the sole issue to be resolved at trial was the nature and extent of petitioner's permanent disability.   The court adopted, as part of its findings, the parties' stipulations.

Petitioner was the sole witness to testify at trial.   The parties waived their right to present oral medical testimony and agreed to rely upon their respective medical evaluation reports.   Therefore, the court admitted, without objection, the July 9, 2008 report of Dr. Vijaykumar Kulkarni, a board certified general surgeon;  the July 21, 2008 report of Dr. Arthur Canario, an orthopedic surgeon;  the treatment records of Dr. Jeffrey R. Augustin, the orthopedic surgeon who performed the shoulder surgery;  and the hospital records from Christ Hospital where Dr. Augustin performed the surgery.

Based upon the testimony presented, the exhibits admitted, and the stipulations, the compensation judge made the following findings:

Pursuant to N.J.S.A. 34:15-36, the [p]etitioner must make a satisfactory showing of objective medical evidence which demonstrates a restriction in the function of the body or of its members or organs and that there has been a lessening to a material degree of [p]etitioner's working ability or that he has suffered a disability that has significantly interfered with his ordinary pursuits of daily living.

In listening to the [p]etitioner's testimony, I find that he was forthright and candid.   His testimony was consistent.   He did not exaggerate or embellish.   Thus, I find that the [p]etitioner was indeed very credible, notwithstanding the subjective nature of his complaints.

In order for this [c]ourt to regard subjective complaints as convincing evidence of disability, the complaints ought to be compatible with the injury.   They ought to correspond with objective findings, which means that there must be some consistency.   In comparing the [p]etitioner's testimony to Dr. Kulkarni's orthopedic evaluation report, I do find that there is consistency.   As for Dr. Canario's evaluation, I conclude that there is less consistency between the [p]etitioner's testimony and the doctor's evaluation, which I attribute to discrepancies in the history taken by Dr. Canario and perhaps to a less than comprehensive review of the [p]etitioner's medical records and the treating physicians' findings contained therein․

During his testimony, the [p]etitioner credibly testified as to his daily and constant pain that prevent[s] him [from] performing normal daily activities such as grocery shopping, making minor household repairs or even carrying or playing with his infant child.   Moreover, [p]etitioner credibly testified as to his significant weight gain as a result of being unable to engage in physical exercise as he did before the accident.   Lastly, I found his subjective complaints regarding his difficulties in sleeping to be entirely consistent with the nature of his injuries, and therefore persuasive as to the extent of his disability.

Although I must give consideration to the expertise of the medical evaluators, I am not bound by the opinions of such experts.   As the trier of fact, I may adopt as much of the expert opinion as I deem appropriate, I may reject all of it, or adopt all of it.   Accordingly, I am not required to accept any expert's percentages of disability evaluation, but may use such percentages as a guide.

Taking the above into consideration, I conclude that Dr. Kulkarni's findings and opinions were more persuasive and credible than those of Dr. Canario.   I therefore rely more on Dr. Kulkarni's opinion since I find that [p]etitioner's testimony and subjective complaints are entirely consistent with Dr. Kulkarni's objective findings.

Having considered all of the proofs presented, I find that the [p]etitioner has substantial complaints which significantly restrict his function, materially lessen his ability to work, and which significantly interfere with his ordinary pursuits.   I therefore find that the [p]etitioner has met his burden of proof by a preponderance of the objective medical evidence, supported with consistent subjective complaints, to support a finding of partial permanent disability[,] under Perez v. Pantasote [, Inc., 95 N.J. 105 (1984),] of approximately 30 1/2 [percent] partial total for:  (1) residuals of sprain/strain of the right shoulder with impingement syndrome and superior labrum anterior posterior lesion status post right shoulder arthroscopy and repair of the labrum (SLAP) lesion, and posttraumatic synovitis with loss of range of motion, power and function[,] and for (2) residuals of a sprain/strain of the left elbow with medial epicondylitis with loss of range of motion;  apportioned [twenty-five percent] partial total for the right shoulder and [ten percent] of the left arm, which[,] in the year 2006[,] equates to 183 weeks at $322 per week for a total of $58,926.

Appellant's sole contention on appeal is that the compensation judge's finding that Otoya sustained permanent partial disability of 30.5 percent was based upon insufficient credible evidence in the record.   We disagree.

Our review of a final administrative agency decision “is quite circumscribed.”  Fraternal Order of Police v. Bd. of Trs. of the Police & Firemen's Ret. Sys., 340 N.J.Super. 473, 479 (App.Div.2001).   Substantial deference is given to an agency's expertise.  Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (giving high regard to an agency's expertise in the area).   An agency's determination is reversed “only if it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole.”  Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980).

The Workers' Compensation Act, N.J.S.A. 34:15-1 to -142, is remedial legislation, the primary purpose of which is “to provide an employee, when he suffers a work-connected injury, with a speedy and efficient remedy for loss of wages․”  Cureton v. Joma Plumbing & Heating Co., 38 N.J. 326, 331 (1962).   Permanent partial disability benefits represent one form of compensation an injured worker may receive.  Young v. W. Elec. Co., 96 N.J. 220, 226 (1984).  N.J.S.A. 34:15-36 provides a statutory framework of the elements of proof of a claim for partial-permanent disability:

“Disability permanent in quality and partial in character” means 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․  Injuries such as minor lacerations, minor contusions, minor sprains, and scars which do not constitute significant permanent disfigurement, and occupational disease of a minor nature such as mild dermatitis and mild bronchitis shall not constitute permanent disability within the meaning of this definition.

Thus, the receipt of such benefits, however, is keyed to a petitioner, by the preponderance of the evidence, making a “satisfactory showing of demonstrable objective medical evidence of a functional restriction of the body, its members or organs,” established by more than the petitioner's subjective complaints alone.  Perez, supra, 95 N.J. at 116.   In addition, the petitioner must 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.”  Id. at 118.

Here, there was demonstrable objective proof of an injury that necessitated surgery, resulting in a postoperative diagnosis of right shoulder acromioclavicular joint arthrosis, impingement syndrome, and superior labrum anterior posterior lesion.   The compensation judge found that the subjective complaints of petitioner as to how his injuries affected his activities of daily living were consistent with Dr. Kulkarni's objective findings, which the court credited.   Additionally, the evidence disclosed that following surgery, petitioner changed jobs to a less physically demanding one.

The scope of our review is limited to a determination of whether the findings and conclusions of the compensation judge could reasonably have been reached on sufficient credible evidence in the record, considering the proofs as a whole, giving due regard to her expertise in the field of workers' compensation and her opportunity to assess the credibility of Otoya, the only witness who testified, and to evaluate the credibility of the other evidence presented.   Bradley v. Henry Townsend Moving & Storage Co., 78 N.J. 532, 534 (1979);  see also Close, supra, 44 N.J. at 599.  “We may not substitute our own fact [-]finding for that of the [j]udge of [c]ompensation even if we were inclined to do so.”  Lombardo v. Revlon, Inc., 328 N.J.Super. 484, 488 (App.Div.2000).   Reviewed under this standard, we are satisfied there is substantial credible evidence in the record to support the compensation judge's determination.

Affirmed.

PER CURIAM