Can I appeal my workers combination decision to a Appeal Court ?

Submitted by New Jersey Workers Compensation Lawyer, Jeffrey Hark.



In 2005, petitioner was injured when another vehicle struck the bus he was driving for NJT. Through the workers’ compensation system, he underwent multiple surgeries on his arms and neck. In two successive settlements, he received an award of sixty-six and two-thirds percent of permanent partial total disability in 2008, and seventy percent of permanent partial total disability in 2011. After still more surgery, he filed a second application for review and modification of the award in September 2012, seeking an award of permanent total disability. See N.J.S.A. 34:15-27; N.J.S.A. 34:15-36. At the hearing, petitioner testified about his increasingly severe physical limitations in the use of his neck, hands and arms, and his complete inability to work. He presented several expert witnesses who opined as to his increased medical disability and his inability to work at all. Petitioner’s first expert, Dr. Riss, had examined petitioner several times over the years since his injury. Dr. Riss had always been of the opinion that petitioner was 100 percent disabled. His current findings, that petitioner’s condition had continued to deteriorate, confirmed his opinion that petitioner was permanently and totally disabled. Dr. Riss gave detailed testimony explaining the extent to which petitioner’s range of motion and hand strength had deteriorated over the years, leaving him completely unable to work. Brian Daly, a vocational expert, testified that petitioner’s physical limitations, combined with his educational limitations2 and his age (then fifty- five), rendered him unemployable. Mr. Daly confirmed that, even if petitioner did not have problems with his lower back and his legs – issues not caused by the bus accident – he would still be unemployable due to the problems with his neck and arms. Daly explained why petitioner could not work as a security guard, and why petitioner’s educational limitations made it unlikely that anyone would hire him for a white collar job.

Finally, petitioner presented testimony from Dr. Lawrence Eisenstein, an expert in neuropsychiatry. Dr. Eisenstein had examined petitioner in 2008, 2010, and 2013. Based on the 2013 examination, Dr. Eisenstein opined that petitioner had neurological deficits and psychiatric problems that, together, rendered him one hundred percent disabled. Respondent presented testimony from Dr. Ivan Dressner, a neurologist. Dr. Dressner opined, essentially, that petitioner had no disability attributable to the accident; he was entirely capable of working; and petitioner’s treating physicians had misdiagnosed him and subjected him to multiple unnecessary operations. However, Dr. Dressner also testified that he had never personally viewed petitioner’s MRI films, although it was his usual practice to examine MRI films when diagnosing a patient. He testified that he asked for the films multiple times, but they were not supplied to him.

Respondent also presented testimony from Dr. Arthur Canario, an orthopedic surgeon. Dr. Canario examined petitioner in 2007, 2011, and 2012. While Dr. Canario agreed that petitioner’s percentage of disability had increased over the years, he opined that petitioner was not unemployable. For example, he believed petitioner could work in sales, a desk job, or a security job. However, Dr. Canario conceded he was unfamiliar with petitioner’s limited educational background. Dr. Canario opined that the surgeries petitioner underwent were not medically necessary. The JOC found that petitioner proved he was totally and permanently disabled, as set forth in N.J.S.A. 34:15-36, and as construed in Perez v. Pantasote, Inc., 95 N.J. 105, 116-18 (1984). The JOC credited the testimony of petitioner’s experts rather than respondent’s experts, for reasons he explained in his opinion. He also found that respondent did not present competent or credible evidence to support its position that petitioner “could work in some type of job if he were motivated to do so.”

Decision on Appeal :

The JOC’s detailed decision was based on his evaluation of petitioner’s testimony and that of the parties’ respective experts. We will not disturb the judge’s factual findings so long as they are supported by sufficient credible evidence. Paul v. Baltimore Upholstering Co., 66 N.J. 111, 119 (1974). In applying that test, we owe deference to the judge’s expertise and his opportunity to evaluate the credibility of the witnesses. Ibid. We find no basis to second- guess the judge’s credibility determinations, and we conclude that the decision is supported by sufficient credible evidence. We affirm the order finding petitioner totally and permanently disabled. Respondent’s arguments on this point are without sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E).

Issues in this case to review:

The WCJ concluded that petitioner had proved he was totally and permanently disabled, crediting petitioner’s experts over respondent’s experts. On appeal, the court affirmed the order finding petitioner totally disabled, declining to disturb the WCJ’s factual findings.


Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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