DIANE LEBEDNIKAS VS. ZALLIE SUPERMARKETS, INC., ETC. (DIVISION OF WORKERS' COMPENSATION) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2859-16T1
DIANE LEBEDNIKAS,
Petitioner-Appellant,
v.
ZALLIE SUPERMARKETS, INC.,
t/a SHOP RITE – LAUREL HILL,
Respondent-Respondent.
________________________________
Submitted July 9, 2018 – Decided July 24, 2018
Before Judges Yannotti and Haas.
On appeal from the New Jersey Department of
Labor and Workforce Development, Division of
Workers' Compensation, Claim Petition No.
2014-28059.
Lacovara & Burns, LLC, attorneys for appellant
(Nicholas T. Lacovara, on the brief).
Ann DeBellis, attorney for respondent (Ann
DeBellis, of counsel; David P. Kendall, on the
brief).
PER CURIAM
Petitioner Diane Lebednikas appeals from an order entered by
the Division of Workers' Compensation (Division) dated January 27,
2017, which denied her motion for medical benefits. We affirm.
I.
In 2002, petitioner had a unicompartmental arthroplasty, or
partial replacement of the right knee, and in 2012, petitioner had
a total arthroplasty, or replacement of the left knee. On January
21, 2014, while employed by respondent in its deli department,
petitioner caught her foot on a floor tile and twisted her right
knee. The store's surveillance camera recorded the incident.
Thereafter, petitioner had authorized treatment by Dr. Robert
Falconiero, D.O.
In a report dated April 14, 2014, Dr. Falconiero provided a
diagnosis for petitioner, noting a contusion, possible loosening
of the partial replacement, degenerative arthritis, and vascular
calcifications of the right knee. Dr. Falconiero recommended that
petitioner return to the orthopedic surgeon who performed the
partial replacement, Dr. Steven H. Kahn.
Dr. Kahn issued a report dated October 17, 2014, in which he
stated x-rays indicated that petitioner's partial right knee
replacement was in a satisfactory position and there was no
fracture in the prosthesis. The x-rays also showed some
degenerative changes in the patellofemoral joint and the lateral
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compartment. Dr. Kahn recommended a bone scan to ensure there was
no loosening of the prosthesis. He also recommended an MRI to
determine whether petitioner sustained any ligament injury as a
result of the January 21, 2014 incident.
Dr. Kahn issued another report dated November 17, 2014. The
doctor noted that the recommended bone scan and MRI had been
performed. The bone scan showed an "increase[d] uptake," which
indicated a loosening of the partial right knee replacement. The
MRI showed some degenerative changes in the patellofemoral joint
medial compartment.
Dr. Kahn stated that petitioner's symptomatology had
persisted despite the passage of time, physical therapy, anti-
inflammatories, and use of a hinged knee brace. The doctor
recommended surgery to convert petitioner's loose right partial
knee replacement to a total replacement. He stated that within a
reasonable degree of medical probability, the conversion was
needed as a result of the January 21, 2014 incident.
Petitioner filed a motion with the Division seeking the
medical treatment that Dr. Kahn recommended. Respondent opposed
the motion. The judge of compensation thereafter conducted an
evidentiary hearing in the matter. The parties stipulated to the
admission of the surveillance video of the incident. Petitioner
testified that the video accurately depicted the incident.
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Petitioner further testified that on January 21, 2014, while
working in respondent's deli department, she tripped, twisted her
body, hit a table, and "felt something pop" in her right knee.
Petitioner said that since that time, she has had pain and
"[p]opping" in her right knee, which has gotten worse. Petitioner
stated that immediately prior to the incident, she was not being
treated for her right knee.
In support of her motion, petitioner presented testimony from
Dr. Ralph G. Cataldo, D.O., who was qualified as an expert in
osteopathic medicine, with a subspecialty in workers' compensation
evaluations and pain management. Dr. Cataldo acknowledged that he
is not board certified in orthopedics, and does not perform
orthopedic surgery, such as knee replacements.
Dr. Cataldo testified that he reviewed petitioner's treatment
records, the reports of the imaging studies of petitioner's right
knee, the post-accident bone scan, and the surveillance video of
the incident. He also examined petitioner.
Dr. Cataldo stated that the bone scan showed "an increased
uptake" in the region of the partial knee replacement, which was
consistent with the loosening of her partial knee replacement. He
noted that the MRI of petitioner's right knee showed arthritis.
Dr. Cataldo testified, however, that petitioner's arthritis
was not related to whether petitioner required a full right knee
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replacement because petitioner had been "doing fine" until she
suffered the "twisting injury" on January 21, 2014. He testified
that petitioner needed the full knee replacement due to the January
21, 2014 incident.
On cross-examination, Dr. Cataldo stated that he did not know
the type of device that was installed for petitioner's partial
knee replacement or how long such replacements last. Dr. Cataldo
noted that when he examined petitioner in August 2015, she was
sixty years old and would be considered obese. He acknowledged
that an individual's knee replacement could be affected by the
individual's obesity, the level of activity, and the pressure
placed on the knee.
Dr. Richard DiVerniero testified for respondent. He is board
certified in orthopedic surgery. He has performed hundreds of knee
replacements, including fifty revisions of partial knee
replacements. After the January 21, 2014 incident, he treated
petitioner. He saw her on May 30, 2014, June 20, 2014, December
19, 2014, and April 7, 2015.
Dr. DiVerniero noted that during his initial examination, he
found that petitioner had a palpable knee joint effusion or
swelling, but no warmth or redness. Petitioner had full extension
and could raise her leg without lag. Her terminal flexion was
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about one hundred degrees. She also had patellofemoral and medial
joint line tenderness.
Dr. DiVerniero testified that petitioner had a "varus
posture." He explained that neutral posture is "straight," but
"varus posture" is "bowlegged" and "valgus posture" is "knock-
kneed." He stated that in joint replacements, doctors try to
achieve a "slight" valgus posture.
Dr. DiVerniero said petitioner's varus posture indicated she
had "an issue" with her knee, but he found no appreciable laxity
or instability. Dr. DiVerniero diagnosed pain in petitioner's
joint and lower right leg, with localized osteoarthritis, which
is "the wearing of the cartilage surfaces within a joint."
Dr. DiVerniero testified that he had reviewed the x-rays and
CT scan of petitioner's right knee, which were consistent with
wear in her partial knee replacement. He noted that the inside
portion of the replacement is made of polyethylene, which is a
"super type of plastic." Petitioner "had significant polyethylene
wear" that resulted in the varus deformity.
Dr. DiVerniero stated that an x-ray from 2003 indicated that
petitioner required the partial knee replacement because at that
time only one compartment of her knee had shown wear. He testified
that by the time he examined petitioner in May 2014, she had
developed arthritis in the other two compartments of the right
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knee. This was one of the reasons petitioner needed a conversion
of the partial replacement to a total replacement.
Dr. DiVerniero saw petitioner again in December 2014. He
noted an overall improvement in the condition of her knee. He said
that after the January 21, 2014 incident, petitioner had pain but
it was not agonizing pain. She continued to work and took anti-
inflammatory medications. The effusion had resolved, and she was
"back to her baseline."
Dr. DiVerniero further testified that the MRI did not show
any evidence of a fracture or loosening of the prosthesis, but
showed effusion and degenerative changes in the knee. He explained
that the polyethylene in the prosthesis was producing particles,
which were like dust, and they were accumulating in the knee. This
was a "very inflammatory process" that "incites the body to attack
[the particles] as foreign material" and causes the effusion.
Dr. DiVerniero opined that the January 21, 2014 incident did
not damage petitioner's partial knee replacement or cause the need
for additional treatment. He stated that petitioner required the
conversion to a full knee replacement before the incident. He said
the wear in the replacement was not due to a twisting injury.
The doctor also stated that the wear occurred over twelve
years of normal functioning of the replacement, which generated
wear-debris particles that caused inflammation and effusion. He
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explained that the twisting injury that occurred on January 21,
2014, could have aggravated petitioner's soft tissues, but it did
not "change the integrity of her components."
On January 25, 2017, the compensation judge filed a written
opinion on petitioner's motion. The judge found Dr. DiVerniero's
expertise in the field of orthopedic surgery was superior to that
of Dr. Cataldo. The judge noted that Dr. DiVerniero was an
accomplished orthopedic surgeon, who had specialized knowledge in
knee pathology and its causes, and the types of surgery to address
those conditions. Dr. DiVerniero also had personal involvement in
petitioner's post-accident care.
The judge found that Dr. DiVerniero's opinion on causation
was "more specialized, more credible and more persuasive than the
proofs offered by the petitioner." The judge determined that
petitioner had not carried her burden of proving that the need for
the total knee replacement surgery was causally related to her
January 21, 2014 incident. The judge filed an order dated January
25, 2017, denying petitioner's motion. This appeal followed.
II.
On appeal, petitioner argues that the compensation judge
erred by relying upon Dr. DiVerniero's testimony. He contends Dr.
DiVerniero's testimony was not competent and should have been
stricken.
8 A-2859-16T1
"[T]he scope of appellate review of factual findings by a
judge of compensation is limited." Renner v. AT&T, 218 N.J. 435,
448 (2014) (citing Close v. Kordulak Bros., 44 N.J. 589, 599
(1965)). We must determine "'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." Close, 44 N.J. at 599 (quoting
State v. Johnson, 42 N.J. 146, 162 (1964)). Moreover, we must
defer to the expertise of the compensation judges in addressing
issues of disability. Perez v. Capitol Ornamental, Concrete
Specialities Inc., 288 N.J. Super. 359, 367 (App. Div. 1996)
(citing Lewicki v. N.J. Art Foundry, 88 N.J. 75, 88-90 (1981)).
As stated previously, at the hearing on petitioner's motion,
Dr. DiVerniero testified that petitioner needed surgery to convert
her partial knee replacement to a total knee replacement, but the
conversion was not required due to the incident on January 21,
2014. The doctor testified that the conversion was required because
of wear in petitioner's polyethylene partial knee replacement and
the related progressive arthritis in the knee.
As noted, Dr. Cataldo offered a contrary opinion, but the
judge found Dr. DiVerniero's opinion on causation was more credible
and persuasive. The judge stated:
9 A-2859-16T1
Dr. DiVerniero's education, training and
experience along with his very clear and
detailed testimony clearly reveals that he is
an accomplished orthopedic surgeon who has
specialized knowledge with regard to knee
pathology, the causes for such pathology and
the types of surgery to address it. Dr.
DiVerniero's explanation of petitioner's
treatment, his use of the anatomic model to
describe the knee condition and his
explanation of the age-related breakdown of
the prior, partial knee replacement hardware
was credible and easy to understand.
The judge noted that Dr. DiVerniero had been personally
involved in petitioner's post-accident care, and the doctor had
reviewed the imaging studies and bone scan. The judge found that
Dr. DiVerniero's expertise in orthopedic surgery was superior to
that of Dr. Cataldo. He noted that Dr. Cataldo seemed to concede
that point when he indicated that "a treating orthopedic surgeon
would generally be in a better position to comment on a patient's
condition than a doctor performing a one-time evaluation."
We are convinced there is sufficient credible evidence in the
record to support the judge's assessment of the experts'
credentials and testimony. In this regard, we note that "in a
workers' compensation case, a treating physician is often in a
better position to express opinions as to cause and effect than
an expert who merely is examining the patient in order to give
expert testimony." Bird v. Somerset Hills Country Club, 309 N.J.
10 A-2859-16T1
Super. 517, 522-23 (App. Div. 1998) (citing Bober v. Indep. Plating
Corp., 28 N.J. 160, 167 (1958)).
Furthermore, Dr. DiVerniero's testimony provided ample
support for the judge's conclusion that while petitioner required
a total right knee replacement, this was not due to the January
21, 2014 incident but rather to the wear of petitioner's partial
knee replacement device and the related progressive arthritis in
her knee. The record supports the judge's determination that Dr.
DiVerniero's testimony on causation was more credible than Dr.
Cataldo's testimony.
III.
Petitioner argues that the judge erred by accepting Dr.
DiVerniero's testimony because the doctor purportedly did not
understand the standard for admission of expert medical testimony.
He contends the doctor offered personal opinions, not opinions to
the "reasonable degree of medical probability." We disagree.
During voir dire, petitioner's attorney asked Dr. DiVerniero
whether he understood "the standard that is typically expected of
a doctor to testify as an expert in [c]ourt." He replied, "Yes."
The doctor indicated he did not know what the standard is called,
and petitioner's attorney told him that the standard was "[a]
reasonable degree of medical certainty."
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Respondent's attorney objected to the question, and the judge
stated that the standard was one of probability, rather than
certainty. The judge asked the doctor whether his opinions and
diagnosis "will be to that standard." The doctor replied, "Yes."
Petitioner's attorney asked Dr. DiVerniero to explain his
understanding of the term "a reasonable degree of medical
probability." The doctor replied that the phrase means that the
statement is truthful to "the best of [his] knowledge and ability."
Petitioner's attorney then asked how that relates "to one's
belief in a medical condition or diagnosis?" The doctor responded
by stating that his opinions are based on his clinical experience,
as well as everything he has learned throughout his fifteen-year
career as an orthopedic surgeon, which included his courses in
medical school, day-to-day surgeries, and treatment of patients.
Respondent's attorney also questioned Dr. DiVerniero during
voir dire. He asked the doctor whether he intended "to express any
opinions on the [s]tand that are not accepted generally by the
medical community and more specifically by the medical community
that [performs] orthopedic surgery." The doctor replied, "No."
Petitioner's attorney moved to bar Dr. DiVerniero's
testimony, but the judge denied the motion. The judge noted that
Dr. DiVerniero was testifying as one of petitioner's treating
doctors. Dr. DiVerniero then testified as discussed previously.
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At the conclusion of his direct testimony, respondent's attorney
asked if the doctor had given his opinions within a reasonable
degree of medical probability, and he replied, "Absolutely."
Thus, the record shows that Dr. DiVerniero offered his
opinions on causation in accord with the applicable standard, that
is, to a reasonable degree of medical probability. Bondi v. Pole,
246 N.J. Super. 236, 240 (App. Div. 1991) (citing Germann v.
Matriss, 55 N.J. 193, 208 (1970)). Furthermore, in his testimony,
the doctor indicated that he had a sufficient understanding of
that standard. In addition, the doctor stated that his opinions
were consistent with those generally accepted by the medical
community.
It is well established that when an expert offers an opinion
on causation, the expert need not use the phrase "reasonable degree
of medical certainty." Eckert v. Rumsey Park Assocs., 294 N.J.
Super. 46, 51 (App. Div. 1996) (citing Aspiazu v. Orgera, 535 A.2d
338, 343 (Conn. 1981)). Moreover, the opinion of a medical expert
on causation should not be assessed based on "a single verbal
straightjacket," but the opinion should be considered in its
entirety and admitted if it "reflects an acceptable level of
certainty." Id. at 52 (quoting Matott v. Ward, 399 N.E.2d 532, 534
(N.Y. 1979)).
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Here, Dr. DiVerniero expressly stated that his opinion was
offered to a reasonable degree of medical probability, and it was
offered with "an acceptable level of certainty." Ibid. (quoting
Matott, 399 N.E.2d at 534). He explained his opinions were
consistent with those generally accepted by the medical community.
We therefore conclude the judge did not err by admitting and
relying upon Dr. DiVerniero's testimony.
IV.
Petitioner further argues that the judge erred by finding her
claim is not compensable since Dr. DiVerniero testified that the
conditions of her employment were a contributing cause of her need
for a total knee replacement.
We note that in her claim petition and motion, petitioner
indicated she was seeking medical treatment due to a workplace
accident, not an occupational disease. Furthermore, at the hearing
on her motion, petitioner's attorney confirmed that this matter
involved an accident claim, not an occupational claim.
In addition, petitioner testified that her complaints arose
out of the injury she sustained on January 21, 2014. She never
claimed the need for the treatment was due to her working
conditions. Moreover, petitioner's expert witness, Dr. Cataldo,
testified that the full knee replacement was required due to the
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workplace injury sustained on January 21, 2014, not the conditions
of employment.
Petitioner argues, however, that Dr. DiVerniero's testimony
supported a claim for treatment resulting from occupational
exposure. In his direct testimony, Dr. DiVerniero stated that many
"variables" could affect the length of time a partial knee
replacement might last. He noted that an individual's weight is
one of those factors.
On cross-examination, petitioner's attorney asked the doctor
whether the combination of petitioner's weight on the tile floor
of the store and her eight-hour shifts could cause the prosthesis
to break down sooner than if petitioner had a more sedentary job.
The judge noted that petitioner had not filed an occupational
claim. The judge also pointed out that no witness had opined "to
a reasonable degree of medical probability this was caused by
working on a hard tile floor."
The judge observed that Dr. DiVerniero had testified that the
age of the knee replacement, walking or doing things at home or
at work, or a combination of those factors "would cause wear over
time." The judge stated that if petitioner wanted to assert an
occupational claim, she should file one.
Petitioner's counsel then asked Dr. DiVerniero whether "given
the history, the video that you watched, the conditions that the
15 A-2859-16T1
petitioner worked in, within a reasonable degree of medical
probability[,] could this have been or is this an occupational
case?" The doctor replied:
My answer is no, that this is a combination
of multiple variables leading to the normal
wear and tear of a prosthesis that actually
survived fairly long in this patient. Every
patient is different. There [are] different
forms of wear in everyone. But this is
progressive ongoing wear. Regardless of where
she worked, regardless of what activities she
did outside of work, it's an ongoing
phenomenon of wear.
Petitioner's counsel then asked whether the doctor had agreed
that being overweight and working on a tile floor "would contribute
to the breakdown of that prosthesis." The doctor replied:
That's a different question. You said did it
contribute, not did it cause. . . . I just
said there are multiple variables that
contribute, so, yes, I testified that that's
one of the variables, but you're trying to
make me testify that that is the absolute and
only variable, and I'm not going to do it.
Petitioner argues that in order to establish an occupational
claim, she need only prove that the working conditions contribute
to the condition. She contends Dr. DiVerniero's testimony was
sufficient to support a claim of an occupational injury. She
asserts that the judge should have amended the pleadings to conform
to the evidence and found that the conversion to a total knee
replacement was due to a work-related injury.
16 A-2859-16T1
We are convinced, however, that the judge did not abuse his
discretion by refusing to treat petitioner's application as an
occupational claim. As noted in her petition and motion, petitioner
never indicated she was asserting such a claim. Furthermore,
respondent did not have notice that petitioner was pursuing an
occupational claim, and during the hearing, petitioner presented
no expert testimony to support such a claim. The judge properly
ruled that if petitioner wanted to assert an occupational claim,
she should file one.
Moreover, Dr. DiVerniero's testimony was insufficient to
establish a compensable occupational claim. Under the Workers'
Compensation Act, a "compensable occupational disease" is defined
to include "all diseases arising out of and in the course of
employment, which are due in a material degree to causes and
conditions which are or were characteristic of or peculiar to a
particular trade, occupation, process or place of employment."
N.J.S.A. 34:15-31(a).
"Material degree" is "an appreciable degree or a degree
substantially greater than de minimus." Singletary v. Wawa, 406
N.J. Super. 558, 565 (App. Div. 2009) (quoting Peterson v. Hermann
Forwarding Co., 267 N.J. Super. 493, 504 (App. Div. 1993)).
Therefore, to establish a compensable occupational claim, a
petitioner "must show that the alleged occupational exposure
17 A-2859-16T1
contributed to the resultant disability by an appreciable degree
or a degree substantially greater than de minimus." Ibid. (quoting
Peterson, 267 N.J. Super. at 504).
Here, Dr. DiVerniero testified that the fact that petitioner
worked standing on a tile floor could have been a contributing
factor to the wear of her partial knee replacement. However, Dr.
DiVerniero stated that the wear also could have been attributable
to petitioner's weight, the age of her prosthesis, and her other
physical activities.
Thus, Dr. DiVerniero's testimony did not establish that
petitioner's working conditions contributed to her disability by
an appreciable degree or a degree substantially greater than de
minimus. We therefore reject petitioner's contention that she
established a compensable occupational claim in this proceeding.
Affirmed.
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