What is the Standard of Review for a Appellate Court of a Workers Compensation Judge’s Decision

Submitted by New Jersey Workers Compensation Lawyer, Jeffrey Hark.

Fitzgerald v. Walmart

What is the Standard of Review for a Appellate Court of a Workers Compensation Judge’s Decision. In this case the Appellate Division affirmed the dismissal of a Workers Compensation petitioner after a hearing took place in the Workers Compensation court.

The facts are relatively simple. Petitioner alleged on April 26, 2010, while working as a zone merchandising supervisor for respondent, Walmart, she was walking down an action alley when she suddenly felt a “pop” in her lower back. She was not engaged in any activity other than walking at the moment of the injury, though testimony revealed that at some time prior to the injury she was engaged in her everyday activities while on the job, which included lifting of some kind.  In April 2012, petitioner filed two claim petitions with the Division of Workers’ Compensation, asserting alternative causes of injury. The first claim petition alleged petitioner sustained an injury in an accident suffered while working for respondent on April 26, 2010. The second claim petition alleged, in the alternative, that petitioner’s injury resulted from occupational exposure from her start date in December 2008, and that it was occupationally aggravated following the injury. Respondent filed answers to both petitions denying compensability of the claims.   Petitioner’s medical expert diagnosed protruding discs at L4-L5 and L5-S1 with an annular tear at the S1 nerve root. He found her to be suffering from lumbar radiculopathy, lumbar and cervical fibromyositis syndrome, and cervical radiculopathy. He opined that petitioner’s physical condition was causally related to her employment with respondent. Respondent’s medical expert diagnosed petitioner with an annular tear and disc protrusion at L4-L5 and L5-S1, and opined that her physical condition or injury from the April 26, 2010 incident was not causally related to her employment with respondent. Petitioner and respondent both submitted psychiatric evaluations, suggesting that petitioner suffers from depressive disorder and other similar disorders, and that her injury was a contributing factor to her emotional condition.

The standard of review is laid out very clearly as follows:

The Division of Workers’ Compensation “is deemed to have primary jurisdiction to decide compensability issues . . . .”Kristiansen v. Morgan, 153 N.J. 298, 314 (1998). An appellate court’s scope of review is limited to “‘whether the findings made 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 the one who heard the witnesses to judge of their credibility.'” Lindquist v. Jersey City Fire Dep’t., 175 N.J. 244, 262 (2003) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)); accord Brock v. Public Serv. Elec. & Gas Co., 149 N.J. 378, 383 (1997). An appellate court may not substitute its own fact-finding for that of the judge of compensation. Lombardo v. Revlon, Inc., 328 N.J. Super. 484, 488 (App. Div. 2000). The court must defer to the factual findings and legal determination made by the judge of compensation “unless they are ‘manifestly unsupported by or inconsistent with competent relevant and reasonably credible evidence as to offend the interests of justice.'” Lindquist, supra, 175 N.J. at 262 (quoting Perez v. Monmouth Cable Vision, 278 N.J. Super. 275, 282 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995)); accord Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 484 (1974).  A workers’ compensation judge is considered to have expertise in weighing the testimony of competing experts and assessing the validity of the claim. Ramos v. M&F Fashions, Inc., 154 N.J. 589, 599 (1965). A workers’ compensation judge is “not bound by the conclusional opinions of any one or more, or all of the medical experts.” Kaneh v. Sunshine Biscuits, 321 N.J. Super. 507, 511 (App. Div. 1999) (quoting Perez v. Capitol Ornamental, Concrete Specialists, Inc., 288 N.J. Super. 359, 367 (App. Div. 1996)). It is not a basis for reversal where a judge gives more weight to the opinion of one physician over the other. Smith v. John L. Montgomery Nursing Home, 327 N.J. Super. 575, 579 (App. Div. 2000). A judge may give greater weight to the evidence provided by a treating physician than an expert physician. Bialko v. H. Baker Milk Co., 38 N.J. Super. 169, 171 (App. Div.), certif. denied, 20 N.J. 535 (1956).

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