Workers Compensation Review: Dennis Blake vs. Asbury City & Second Injury Fund

Submitted by Workers Compensation Attorney, Jeffrey Hark

Disability and Appellate Court Standard of Review

The subject of this case is the court’s determination, and the appellate division’s affirmation, of the petitioner’s overall level of disability and the appellate court’s standard of review.

Review the entire case here.

Appellate Court Deference to Trial Court Ruling

The key aspects of this case deal with the great discretion the appellate court is required to give the trial court judge’s ruling because that judge is in the best position to determine credibility, make findings of fact, and exercise his/her decision making process and memorialize that decision in a written opinion.

The appellate court, just as in the numerous other cases I have reported on, gives great deference to the trail court’s rulings on credibility of the testimony, not just of the petitioner, but also the testifying doctors.  The truth, preparedness of the witnesses, and the manner in which they testify, including demeanor, tone, gaze, and eye contact with the judge are all tools the court employs to determine who is honest, and who is not.

Listen to the words the court used:

(a)Our review of a determination by a judge of compensation is equivalent to that used for review of a judgment in a non-jury case. Brock v. Pub. Serv. Elec. & Gas Co., 149 N.J. 378, 383 (1997). The appellate court determines “‘whether the findings made could reasonably have been reached on sufficient credible evidence present in the record,’ considering the ‘proofs as a whole.'” 319 N.J. Super. at 380 (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)); see also Ramos v. M & F Fashions, 154 N.J. 583, 594 (1998) (quoting Bradley v. Henry Townsend Moving & Storage Co., 78 N.J. 532, 534 (1979)).

Due weight must be given to the compensation judge’s “expertise in the field and his opportunity of seeing and hearing the witnesses.” De Angelo v. Alsan Masons, Inc., 122 N.J. Super. 88, 89-90 (App. Div.), aff’d 62 N.J. 581 (1973); see also Kovach v. Gen. Motors Corp., 151 N.J. Super. 546, 549 (App. Div. 1977) (“It must be kept in mind that judges of compensation are regarded as experts” (citation omitted)).

An appellate court will therefore defer to the judge of compensation’s expertise “where such expertise is a pertinent factor.” Close, supra, 44 N.J. at 599. The judge found petitioner’s testimony credible. In any matter credibility of witnesses is very important.

In this matter Officer Blake testified at length. I had considerable time to observe his demeanor in conjunction with his testimony. During the entire time Officer Blake was very respectful to the Court and the attorneys. He answered questions directly to the best of his ability. Throughout his mood was downcast. At times when speaking of the incidents of October 2006 and November 2006 he appeared even more somber. His complaints relative to his orthopedic injuries were consistent with complaints relative to the type of injury he experienced.

Likewise his explanation as to how the October 2006 and November 2006 incidents affected him were entirely believable.

Moreover, as the fact-finder, the court has the discretion to accept or reject any or all of an expert’s testimony. See Model Jury Charge (Civil), “Expert Testimony” (1995) (citing State v. Spann, 236 N.J. Super. 13, 21 (App Div. 1989)). “The judge is obligated to evaluate a doctor’s testimony according to his demeanor and qualifications, the trustworthiness of the testimony, and the quality of the underlying examination upon which the opinions are based.” Goyden v. State Judiciary, 256 N.J. Super. 438, 443 (App. Div. 1991) (citing Margaritondo v. Stauffer Chem. Co., 217 N.J. Super. 560, 563-64 (App. Div. 1985)), aff’d, 128 N.J. 54 (1992) . . . . . .  I find Dr. Gooriah’s opinion to be well supported. He visually observed Officer Blake throughout the exam to objectively verify his mood. He clearly asked extensive questions to ensure accuracy. His diagnosis was made pursuant to the DSM IV. In substantial detail he explained his diagnosis on how Officer Blake’s condition fit the criteria.

His repeated and lengthy questioning along with his personal observations of Officer Blake enhanced the objectivity. In fact, there’s no dispute that Officer Blake suffers from depression in that respondent’s doctor agrees that Officer Blake has depression. Dr. Holl testified that petitioner suffered from a personality disorder rooted early in his life. The judge found Dr. Holl’s testimony “less than persuasive.” I find the doctor gave no plausible explanation for such a diagnosis. He could not point to anything of significance in Officer Blake’s past that would evidence any pre existing personality disorder.

He further could not quantify the degree of disability from depression regardless of cause since he did not remember Officer Blake and had nothing in his report. Until testifying he was unaware of [the] diagnosis of posttraumatic stress disorder. He testified he could not tell if Officer Blake could work as a police officer which was a very evasive response. On the whole his testimony was less than persuasive

Confronted with disparate expert medical opinions, the judge of compensation used his “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 (“The factual findings of the compensation court are entitled to substantial deference“).

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). We conclude that the judge’s award was neither excessive nor inconsistent with the credible evidence. If “an appellate court finds sufficient credible evidence in the record to 11 A-1551-12T1 support the agency’s conclusions, that court must uphold those findings, even if the court believes that it would have reached a different result.” Sager v. O.A. Peterson Constr., 182 N.J. 156, 164 (2004) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)).