THOMAS VAN ARTSDALEN VS. FRED M. SCHIAVONE CONSTRUCTION(DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT, DIVISIONOF WORKERS' COMPENSATION) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
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-3392-15T1
THOMAS VAN ARTSDALEN,
Petitioner-Respondent,
v.
FRED M. SCHIAVONE
CONSTRUCTION,
Respondent-Appellant.
___________________________________
Submitted September 6, 2017 – Decided October 5, 2017
Before Judges Rothstadt and Vernoia.
On appeal from the Department of Labor and
Workforce Development, Division of Workers'
Compensation, Claim Petition No. 2013-24264.
Law Offices of Styliades and Jackson,
attorneys for appellant (Timothy J. Mello,
on the brief).
Petro Cohen Petro Matarazzo, PC, attorneys
for respondent (Steven S. Lubcher, on the
brief).
PER CURIAM
In this workers' compensation matter, the employer,
respondent Fred M. Schiavone Construction, appeals from the
court's March 10, 2016 judgment finding its employee, petitioner
Thomas Van Artsdalen, 47.5% permanently partially disabled as a
result of a compensable injury. On appeal, Schiavone contends
that the judge's findings about Van Artsdalen's work history and
his injuries being inoperable were not supported by "substantial
evidence in the record." It also contends the judge's assessment
that Van Artsdalen suffered a 47.5% permanent partial disability
constituted an abuse of her discretion because he could perform
his daily activities, had conservative treatment and does not
complain about his pain.
The judge of compensation made her determination after
conducting a trial at which Van Artsdalen was the only witness as
the parties agreed to the court's consideration of their experts'
reports in lieu of testimony. The parties also stipulated that
Van Artsdalen suffered a compensable injury on January 26, 2012,
when he fell while he was at work as a carpenter and carrying
sixty to seventy pounds of plywood.
Prior to the incident, Van Artsdalen, who was fifty-three
years old at the time, worked as a union carpenter for thirty-four
years, spending most of that time working for Schiavone. Dating
back to 1992, Van Artsdalen was treated for lower back discomfort
for a few weeks by a chiropractor, and he suffered some symptoms
of minor lower back discomfort again in 2008, but otherwise he had
not experienced any persistent problems prior to his fall.
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Despite his fall on January 26, 2012, and the related pain,
Van Artsdalen completed his workday. He consulted with a doctor
after work and again two days after the fall. He attempted to
return to work the day after the incident, but there were no work
assignments available. When he did go back to work on January 30,
2012, he could not finish his shift due to his lower back pain.
In February 2012, Schiavone sent Van Artsdalen for medical
treatment for his lower back. The following month, he underwent
an MRI and was prescribed physical therapy and pain management.
Van Artsdalen continued treatment through May 5, 2012, when he was
cleared to return to work. Despite being cleared, Van Artsdalen
did not return to work until July 12, 2012, due to the lack of
available job assignments. He worked from July 2012 through
September 2013, when he retired because he could no longer endure
the pain.
Van Artsdalen underwent an additional MRI in 2013 and was
evaluated by another physician who confirmed his continuing pain
was due to his January 2012 injury. After he filed his petition
for compensation benefits, Van Artsdalen resumed treatment with
the same physician that Schiavone had sent him to in 2012. He
received an additional MRI and more pain management, including an
epidural injection. The treatment terminated in September 2014
and he never sought any additional treatment.
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Van Artsdalen testified about his pain and the limitations
caused by his injury. He stated that he had difficulty lifting
things, and suffered pain when he bent over while getting dressed
or performing household chores. He described how he was subject
to the sudden onset of sharp, stabbing pain that throbbed,
especially in his groin area. He treated his pain with over-the-
counter medications and ice. Van Artsdalen testified that his
pain at times interfered with his ability to sleep and prevented
him from lifting heavier objects. Despite his pain, Van Artsdalen
stated he was able to perform his daily activities that included
household chores and transporting his grandchild to and from
school.
In pursuit of his workers' compensation claim, Van Artsdalen
was evaluated by two medical experts who issued reports about his
injury and level of disability. Van Artsdalen's expert, Dr. John
L. Gaffney, found that Van Artsdalen sustained a 52.5% permanent
partial disability. Schiavone's expert, Dr. Mark E. Maletsky
disagreed and found that Van Artsdalen experienced only a 2%
permanent partial disability. The experts based their opinions
on their examination of Van Artsdalen, his reported history of his
injury, treatment and current level of pain, medical records of
his treatment and diagnostic imaging.
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After considering the evidence, the judge of compensation
placed her decision on the record, which she later amplified in a
written statement filed under Rule 2:5-1. In her oral decision,
the judge considered the medical reports and found Schiavone's
expert to be less credible than Van Artsdalen's and rejected his
opinion as to the degree of permanent partial disability. The
judge found Maletsky's assessment of Van Artsdalen to be "not in
line with the treatment, the loss of employment, the length of
time [Van Artsdalen] was out of work and the diagnostic studies."
Although the judge determined that Gaffney was more credible, she
also "disregard[ed] his estimate of permanent partial disability."
The judge found Van Artsdalen to be credible and found that he
suffered a 47.5% permanent partial disability.
The judge of compensation entered judgment on March 10, 2016,
and Schiavone filed its appeal. On June 7, 2016, the judge issued
her written amplification of her reasons. In her detailed
statement, the judge began by noting Van Artsdalen's lengthy work
history and his lack of any prior "significant back injury or
extensive back care" during that time. She described how after
the injury he was forced to miss work despite his attempts to
"return to full time employment." She found the fact that Van
Artsdalen did not try to claim that he was totally disabled added
to her finding that his testimony was credible, as did his "stoic-
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ness, forthrightness . . . [and] his desire to return to the only
employment that he has ever known."
The judge described in detail the diagnostic imaging results
that depicted injuries to various levels of Van Artsdalen's spine,
recognized he did not have any surgery, and concluded the injuries
were "inoperable [as n]o surgical intervention was available to
relieve [Van Artsdalen's] pain due to the multiple levels and type
of . . . disc pathology." She also stated that Van Artsdalen
"simply was inoperable due to his condition of multiple levels
impeded in [his] lumbar spine. Therefore, his disability rating
is construed as worse than one who could obtain relief from a
procedure or operation."
Addressing the experts' reports, the judge described
Gaffney's findings about Van Artsdalen's pain, the ineffectiveness
of the epidural injections, and the doctor's conclusions that Van
Artsdalen suffered from "chronic pain and lumbar fibromyositis
syndrome" and that Van Artsdalen's injuries caused "restriction
of function." The judge concluded that Gaffney's findings were
consistent with his examination of Van Artsdalen and the diagnostic
studies. She stated "it was understood that surgery could not be
wisely undertaken in [Van Artsdalen's] condition to obtain an
optimum result bettering his condition."
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Turning to Maletsky's report, the judge stated that the report
was not as credible as Gaffney's, finding Maletsky's rejection of
Van Artsdalen's inability to return to work "when he worked his
entire life with few out days" and Maletsky's reliance on
insignificant x-rays from 2008 undermined his credibility. The
judge also observed that Maletsky "not signify[ing] the extent of
the diagnostics and the effect of the multiple layers of discs now
impaired . . . . discount[ed] [his] . . . understanding of [Van
Artsdalen's] injuries and his permanent disability." She also
found that Maletsky did not "adequately address [Van Artsdalen's]
increased symptomology as being related to [the] last work
incident."
In conclusion, the judge "disregarded the numbers of both
doctors to assess [Van Artsdalen's] significant permanency
impairment and loss of functionality." In reaching her finding
of 47.5% permanent partial disability, the judge relied upon Van
Artsdalen's testimony, the doctor's examinations and the objective
evidence of his injuries. She stated:
The court does find that the progression of
substantial injuries to [Van Artsdalen] and
the multiple levels of disc pathology, along
with the inability to operate on his lumbar
spine condition resulted in his current
symptomology resulting in a 471/2% permanent
partial disability award. Specifically, for
the orthopedic and neurologic residuals of the
lumbar spine for right foraminal disc
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protrusion at L1-2; bulging disc at L2-3 and
L3-4 with disc material bulging into the
foraminal regions bilaterally, right
paracentral disc protrusion at L4-5 with disc
bulge at L4-5 and bulging disc at L5-S1 status
post spinal injection with persistent
radiculopathy and chronic pain.
On appeal, Schiavone contends the judge's findings regarding
Van Artsdalen's work history–—that he worked for that length of
time without missing many days–—and Van Artsdalen's injury being
inoperable were important to her conclusion but unsupported by the
evidence. It also argues that the judge's determination of 47.5%
permanent partial disability was similarly unfounded because Van
Artsdalen stopped receiving treatment in 2014, does not take daily
pain medications, is not under any restrictions, and "[n]one of
the physicians, the treating physicians . . . or either parties[']
medical expert, found that [Van Artsdalen] was in need of a
surgical consult or surgery."
Our review of decisions in workers' compensation cases is
"limited to whether the findings made could have been reached on
sufficient credible evidence present in the record . . . with due
regard also to the agency's expertise." Hersh v. Cty. of Morris,
217 N.J. 236, 242 (2014) (alteration in original) (quoting Sager
v. O.A. Peterson Constr., Co., 182 N.J. 156, 164 (2004)); see also
Renner v. AT&T, 218 N.J. 435, 448 (2014), and "to the opportunity
of the one who heard the witnesses to judge . . . their
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credibility." Lindquist v. City of Jersey City Fire Dep't, 175
N.J. 244, 260 (2003) (quoting Reinhart v. E.I. Dupont De Nemours,
147 N.J. 156, 163-64 (1996)). We give those factual findings
"substantial deference." Bellino v. Verizon Wireless, 435 N.J.
Super. 85, 94 (App. Div. 2014) (citing Ramos v. M & F Fashions,
Inc., 154 N.J. 583, 594 (1998)). "We may not substitute our own
factfinding for that of the [j]udge of [c]ompensation even if we
were inclined to do so." Ibid. (alterations in original) (quoting
Lombardo v. Revlon, Inc., 328 N.J. Super. 484, 488 (App. Div.
2000)). Deference must be accorded "unless . . . 'manifestly
unsupported by or inconsistent with competent relevant and
reasonably credible evidence as to offend the interests of
justice.'" Ibid. (quoting Lindquist, supra, 175 N.J. at 262
(2003)). Where "[i]t is the legal consequences flowing from those
facts that form the basis of [the] appeal[, w]e owe no particular
deference to the judge of compensation's interpretation of the
law." Sexton v. Cty. of Cumberland/Cumberland Manor, 404 N.J.
Super. 542, 548 (App. Div. 2009) (citing Manalapan Realty, L.P.
v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
A compensation judge is considered to have expertise in
weighing the testimony of competing experts and assessing the
validity of the claim. Ramos, supra, 154 N.J. at 598. The judge
is "not bound by the conclusional opinions of any one or more, or
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all of the medical experts." Bellino, supra, 435 N.J. Super. at
95 (quoting Kaneh v. Sunshine Biscuits, 321 N.J. Super. 507, 511
(App. Div. 1999)). We will not reverse a judgment simply because
the judge gave 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).
Applying these standards, and based upon our careful review
of the record and applicable legal principles, we are constrained
to vacate the judgement and remand for reconsideration as we
conclude there was no evidence to support the findings that Van
Artsdalen's injury was inoperable or that he took few days off
during his years of employment. While these findings were central
to the judge of compensation's decision, as demonstrated by her
conclusion that Van Artsdalen's "disability rating is construed
as worse" because his injuries were inoperable, neither Van
Artsdalen nor the experts stated these facts or opinions, nor was
there any other evidence presented from which the judge could have
logically inferred them.
Judgement vacated and remanded for reconsideration. We do
not retain jurisdiction.
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