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Superior Court of New Jersey, Appellate Division.

GEORGE CARRELLI, Petitioner–Respondent, v. HAMILTON MALL, Respondent–Appellant.

DOCKET NO. A–2244–12T3

    Decided: July 09, 2013

Before Judges Sapp–Peterson and Sabatino.Michael L. Bileci argued the cause for appellant (Capehart & Scatchard, P.A., attorneys;  Mr. Bileci, of counsel and on the brief). Lindsey M. Burwell argued the cause for respondent (D'Arcy Johnson Day, P.C., attorneys;  Christopher M. Day, on the brief).

In this appeal, Hamilton Mall (“Hamilton”) seeks to overturn the workers' compensation court's award of benefits to petitioner George Carrelli, a security guard employed by Hamilton.   After several days of hearings, the compensation judge concluded that petitioner injured (1) his left knee in an incident at the mall on May 3, 2012, and (2) his right knee in a second workplace incident on May 31, 2012.   Hamilton now raises several claims of trial error, and further argues that the proofs do not support the court's award for either injury.   We reject these arguments and affirm.

At the time of the two incidents in question, petitioner was sixty-eight years old.   Although his account of the details of the incidents varied, he repeatedly asserted that they both occurred while he was working at the mall for Hamilton.   Subject to those variations, petitioner essentially claimed that in the first incident he injured his left knee while responding to a call for assistance from a co-worker, and that in the second incident he sustained a derivative injury to his right knee at work as the result of favoring his damaged left knee.

Petitioner received treatment from his primary care physician, John Gaffney, D.O., and an orthopedic surgeon, Thomas Dwyer, M.D. Based upon his examination and review of x-rays taken during petitioner's emergency room visit, Dr. Gaffney determined that petitioner had suffered a meniscal injury in his left knee and a separate injury to his right knee, and that both injuries were causally related to plaintiff's employment.

Dr. Dwyer, similarly, diagnosed petitioner with a torn left meniscus.   He recommended surgery on that knee, which apparently was performed while the present appeal was pending.   He also acknowledged a separate injury to the right knee.   Unlike Dr. Gaffney, however, Dr. Dwyer was of the opinion that petitioner's knee injuries were not work-related, and instead stemmed from degenerative conditions.

The compensation judge considered at trial the expert testimony of Dr. Gaffney, who was called by petitioner, and of Dr. Dwyer, who was called by Hamilton.   After evaluating their opinions, the judge found that Dr. Gaffney was more credible than Dr. Dwyer.   The judge also considered lay testimony from petitioner himself, and from two co-workers called by Hamilton, who claimed that petitioner had given them inconsistent explanations of how he became injured.   The judge found neither of the employer's two lay witnesses to be credible.

The judge concluded that petitioner had sustained his burden of proof and was entitled to an award of compensation benefits.   Among other things, the judge noted, in an amplified oral opinion, that petitioner had sustained “two twisting events to his left knee on May 3, 2012,” and also that, on May 31, 2012, he “suffered a derivative injury to his right knee and now requires ․ follow up care.”   Based upon the medical testimony, the judge further concluded that petitioner had suffered a torn meniscus to his left knee that required surgery.   The judge also found that petitioner had separately hurt his right knee, as a result of being on crutches for his left knee and “putting more pressure” on the other knee.

On appeal, Hamilton argues that:  (1) the judge improperly relied upon facts not in evidence and an inadmissible prior statement of Dr. Dwyer from another case;  (2) the judge irrationally found that petitioner's claims were legitimate, despite his varying accounts of the incidents;  (3) the judge unfairly rejected the testimony of Hamilton's lay witnesses;  and (4) the judge should have found Dr. Dwyer, as the treating orthopedist, more credible than Dr. Gaffney.   Having fully considered these arguments, we conclude that they lack merit.

Our scope of review here is a narrow one.   In reviewing a compensation judge's findings, we must give recognition to the expertise of the compensation court and the judge's first-hand opportunity to see and hear the testifying witnesses.  Close v. Kordulak Bros., 44 N.J. 589, 599 (1965).   We consider only whether the judge's findings could reasonably have been reached on the basis of sufficient credible evidence in the entirety of the record.   Ibid.;  see also Brock v. Pub. Serv. Elec. & Gas Co., 149 N.J. 378, 383 (1997).   The petitioner's evidential burden is one of “probability rather than ․ certainty[,]” and only must be shown by a preponderance of the evidence.  Laffey v. City of Jersey City, 289 N.J.Super. 292, 303 (App.Div.) (internal quotation marks omitted), certif. denied, 146 N.J. 500 (1996);  see also Dwyer v. Ford Motor Co., 36 N.J. 487, 494 (1962).

Applying that deferential review standard to this record, we sustain the compensation judge's findings.   Although Hamilton submits that the judge should have found Dr. Dwyer more credible than Dr. Gaffney, and also should have given greater credence to the employer's two lay witnesses, it is not our role to second-guess the judge's credibility findings and his analysis of the medical testimony.   See 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.Div.1978).   The compensation judge is free to accept the opinions of the petitioner's expert physicians while rejecting contrary opinions of the employer's expert physicians.  Paul v. Balt. Upholstering Co., 66 N.J. 111, 121–22 (1974), superseded on other grounds by statute, L.1979, c. 283, § 17.   The judge's findings must be upheld “even if [this] panel believes that it would have reached a different result[,]” unless the judge's findings could not have reasonably been reached.  Sager v. O.A. Peterson Constr., Co., 182 N.J. 156, 164 (2004).

We are satisfied that there is a reasonable evidential basis to support the judge's findings that petitioner was injured in two work-related incidents.   We are cognizant that petitioner gave varying accounts of exactly how he was injured, but those variations do not undermine the judge's core finding that petitioner's injuries occurred while he was on the job.   Although Hamilton contends that there was no proof of two twisting events on May 3, the record does contain testimony from petitioner that he twisted his knee twice that day, once by the escalator and again while getting out of a vehicle at the mall.   In any event, even if there was one twisting event rather than two on May 3, one such work-related incident will suffice.   There is also sufficient evidence that petitioner's right knee was injured at work on May 31.

The judge did not commit reversible error by commenting about Dr. Dwyer's testimony from another case, in which the expert suggested that the longer a person is on crutches, the more likely a second knee can be damaged.   Although such cross-referencing to a witness's testimony from a different case is disfavored, see Laffey, supra, 289 N.J.Super. at 307–08, any such error was harmless here because the judge clarified in his amplified opinion that he did not take Dr. Dwyer's prior testimony into consideration when analyzing the merits of the present case.

The judge also acted within his discretion as fact-finder in declining to rely on the employer's lay witnesses, one of whom claimed that petitioner had admitted having a pre-existing knee condition.   Even if there was a pre-existing knee condition, that does not preclude a petitioner's claim so long as, as the compensation court found here, there was a work-related incident that aggravated the petitioner's injury.   See Verge v. Cnty. of Morris, 272 N.J.Super. 118, 125–26 (App.Div.1994).

Lastly, we reject Hamilton's argument that the court had to treat Dr. Dwyer's expert testimony as “far more compelling” than that of Dr. Laffney, who is not an orthopedic surgeon.   As we have noted, the court is free to believe or disbelieve the opinions of each testifying expert.  Paul, supra, 66 N.J. at 121–22.   Moreover, Dr. Dwyer acknowledged on cross-examination that petitioner suffered “some” form of left knee injury at work on May 3, and “some” form of right knee injury at work on May 31.



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