W.A. HARRIS VS. LOURDES MEDICAL CENTER OF BURLINGTON(DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT, DIVISIONOF WORKERS' COMPENSATION)

NOT FOR PUBLICATION WITHOUT THE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-2075-15T4
W.A. HARRIS,
Petitioner-Respondent,
v.
LOURDES MEDICAL CENTER OF BURLINGTON,
Respondent-Appellant.
Submitted July 12, 2017 – Decided August 3, 2017
Before Judges Simonelli and Carroll.
On appeal from the Department of Labor and
Workforce Development, Division of Workers'
Compensation, Case No. 2005-25400.
Marshall Dennehey Warner Coleman & Goggin,
attorneys for appellant (Robert J. Fitzgerald,
Jammie N. Jackson, and Walter F. Kawalec, III,
on the brief).
Taylor & Boguski, LLC, attorneys for
respondent (Gary W. Boguski, on the brief).
PER CURIAM
Respondent Lourdes Medical Center of Burlington appeals the
December 14, 2015 order of the Division of Workers' Compensation
granting petitioner W.A. Harris's motion for medical treatment
benefits. Because the decision by the Judge of Workers'
Compensation (JWC) is supported by sufficient credible evidence
in the record, we affirm.
Petitioner was employed by respondent as a security guard
when, on April 9, 2004, he suffered a work-related injury to his
right thumb. Petitioner filed a claim for benefits that culminated
in the entry of an October 25, 2007 order approving a settlement
for permanency benefits. Consequently, petitioner was awarded
five percent of the statutory right hand for orthopedic residuals
of a sprain and strain of the thumb with pain and weakness into
his right hand.
Petitioner filed his first application for review of the
October 25, 2007 award on June 22, 2009. He was thereafter
examined by various medical experts retained by both parties.
Additionally, on April 6, 2012, petitioner consulted and began
treating with Raymond Ragland III, M.D. Dr. Ragland compared X-
rays he took that day with earlier X-rays taken in 2005, and noted
advanced arthrosis of the right thumb metacarpophalangeal (MP)
joint and moderate arthrosis of the right thumb carpometacarpal
(CMC) joint. Dr. Ragland administered cortisone injections to
both thumb joints and provided petitioner with a thumb splint.
However, petitioner continued to experience recurrent discomfort
at the right thumb CMC joint. As a result, three weeks later, Dr.
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Ragland recommended that petitioner undergo a "right thumb CMC
arthrodesis using Acutrak screw."
Respondent's experts disputed petitioner's need for
additional medical treatment. Thus, on January 30, 2014,
petitioner filed a motion seeking to compel respondent to pay the
cost of further treatment for his right hand.
The JWC conducted an evidentiary hearing on the motion over
three non-consecutive days from November 10, 2014, through March
16, 2015. At the hearing, petitioner testified that he has
experienced increased pain in his right hand since the claim was
initially settled in 2007. He described the pain as "very sharp,"
and stated he now wore a brace on his hand as prescribed by Dr.
Ragland. The JWC viewed petitioner's hands, and observed
"substantial swelling" in the area of petitioner's right thumb.
Dr. John L. Gaffney, an orthopedist who is board-certified
in family medicine, testified on petitioner's behalf. Prior to
testifying, Dr. Gaffney reviewed petitioner's medical records,
including the reports of the treating physician, Dr. Ragland, and
respondent's expert orthopedist, Dr. Elliot L. Ames. Upon
examination, Dr. Gaffney found swelling in petitioner's right
thumb and no range of motion in his right thumb region. After
comparing X-rays of petitioner's right thumb taken in 2004, 2005,
and 2012, Dr. Gaffney noted increased, significant arthritis in
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the MP and CMC joints in the 2012 X-rays, consistent with Dr.
Ragland's findings. In Dr. Gaffney's opinion,
going back to [2004, petitioner] had a
hyperextension . . . strain and sprain of the
thumb which led to an inflammatory process and
injury to the joint of the thumb . . . which
would lead to the early development of
arthrosis or arthritis which has accelerated
as a result of that injury over the course of
the last several years to the point where he
is extremely symptomatic and in need of
treatment, as Dr. Ragland has stated in terms
of an arthrodesis.
Dr. Gaffney testified that he had referred patients to Dr.
Ames and Dr. Ragland and that both were well-respected hand
specialists. He noted that, while both doctors agreed on a
diagnosis, they disagreed as to whether petitioner's present
condition was causally related to his 2004 work injury. In this
case, Dr. Gaffney, relying on his "observation and research and
talking with the patient, [] agree[d] with Dr. Ragland's assessment
in terms of causality[,]" and concurred that the surgery Dr.
Ragland recommended would increase the functioning in petitioner's
right hand.
Respondent's expert, Dr. Ames, is board certified in
orthopedic surgery and specializes in hand surgery. Dr. Ames
evaluated petitioner in October 2011, and again in May 2014.
During the 2011 examination, Dr. Ames noted petitioner had
tenderness in his right thumb. During testing to determine range
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of motion, Dr. Ames was able to "move [petitioner's] thumb to an
additional [sixty-two] degrees and then was able to hold it there."
Dr. Ames concluded that petitioner was at maximum medical
improvement (MMI), and "[did not] recommend any treatment for the
right thumb causally related to the work accident of April 9,
2004."
The May 2014 evaluation did not alter Dr. Ames's opinion.
During that examination, petitioner complained of pain in his
right thumb, and Dr. Ames again noted tenderness in joints of the
thumb. Although Dr. Ames now found petitioner "had very limited
range of motion of the end joint of his thumb," he stated that
petitioner only exerted "a submaximal effort" during the testing.
Dr. Ames described the CMC arthrodesis procedure recommended by
Dr. Ragland as "a fusion of a joint . . . you typically will remove
the . . . articular cartilage of the joint and then put the two
bones together and hold them together with either pins or a screw
or a plate[.]" Based on his evaluation, Dr. Ames did not "see any
indication for surgery on that joint[,] whether an arthroplasty
or arthrodesis." He opined: "I don't think there's enough
arthritis in that joint to warrant an arthrodesis[,]" and that
performing the procedure would decrease the range of motion in
petitioner's thumb.
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During further questioning by the court, the following
colloquy ensued:
THE COURT: Doctor, your findings and
examination in 2014 indicated the [p]etitioner
is at MMI; is that correct?
THE WITNESS: Yes.
THE COURT: You didn't indicate that he
doesn't have a problem, you just felt that he
did not need any additional treatment; is that
correct?
THE WITNESS: Yes.
THE COURT: There is a problem there?
THE WITNESS: He's reporting pain.
THE COURT: So there is an issue and a
problem there?
THE WITNESS: Yes.
THE COURT: In fact, on [p]age [six] of
your 2014 report not only did you find
prominence of the radial condyle, but you
indicated that you found tenderness, it was
tender at the sesamoid and A1 pulley of the
right thumb and there was tenderness in the
first dorsal compartment and so forth. So you
did find an issue?
THE WITNESS: Yes.
THE COURT: So this disagreement is
basically between you and Dr. Gaffney and Dr.
Ragland as to whether or not treatment should
or should not be rendered?
THE WITNESS: Yes.
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After summarizing the procedural history and the testimony
and evidence presented, the judge began his findings with
petitioner, who he deemed "very credible." The JWC found
petitioner's "complaints were compatible and consistent with the
injury, and the injury that was subsequently acknowledged and
accepted as compensable by [] [r]espondent [is] an injury for
which they paid a permanent award."
In his comprehensive oral decision, the JWC rejected Dr.
Ames's testimony. The judge found the findings of Dr. Ragland,
as adopted by Dr. Gaffney, "are more compatible with the injury
and the credible complaints of the [p]etitioner. Although[] Dr.
Ragland was not an authorized doctor, the [r]espondent's doctor,
he nonetheless was an expert treating doctor. Ordinarily, a
treating doctor is given greater weight as compared to an
evaluating doctor." The JWC entered a memorializing order
providing for the requested treatment, and designated Dr. Ragland
as the authorized physician to treat petitioner.
Respondent appeals, raising the following issues for our
review:
Issue I: Standard of Review.
Issue II: The Court Erred in Finding That []
Petitioner Sustained His Burden Of Proving
That Any Current Need For Treatment Was
Causally Related To The April 9, 2004 Work
Accident.
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Issue III: The Court Erred in Finding That []
Petitioner Proved That The Treatment Requested
Would Be Necessary To Cure And Relieve His
Current Condition.
Issue IV: The Court Erred When It Failed To
Give Dr. Ames Expert Opinions Greater Weight
Than The Opinions Of Petitioner's Expert Dr.
Gaffney.
Issue V: The Court Erred When It Relied On The
Net Opinion Of Dr. Ragland Who Did Not Testify
Before The Court.
Issue VI: The Court Erred In Failing To Uphold
The Opinions Of Dr. Ames The Court Ordered
Evaluator As To The Need For Treatment And
Causal Relationship.
Issue VII[:] The Court Erred In Deeming Dr.
Ragland A Treating Physician And Giving His
Opinions Greater Weight.
We reject these arguments as unpersuasive.
Our review of workers' compensation cases is limited. Hersh
v. Cty. of Morris, 217 N.J. 236, 242-43 (2014). 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 and, in the case
of agency review, with due regard also to the
agency's expertise where such expertise is a
pertinent factor.
[Sager v. O.A. Peterson Constr. Co., 182 N.J.
156, 164 (2004) (quoting Close v. Kordulak
Bros., 44 N.J. 589, 599 (1965)).]
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We may not substitute our own factfinding for that of the
judge of compensation. Lombardo v. Revlon, Inc., 328 N.J. Super.
484, 488 (App. Div. 2000). We must defer to the factual findings
and legal determinations 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 v. City of Jersey City Fire
Dep't, 175 N.J. 244, 262 (2003) (quoting Perez v. Monmouth Cable
Vision, 278 N.J. Super. 275, 282 (App. Div. 1994), certif. denied,
140 N.J. 277 (1995)). We will "appraise the record as if we were
deciding the matter at inception and make our own findings and
conclusions" only if the judge of compensation "went so wide of
the mark that a mistake must have been made[.]" Manzo v.
Amalgamated Indus. Union Local 76B, 241 N.J. Super. 604, 609 (App.
Div.), certif. denied, 122 N.J. 372 (1990) (citations omitted).
However, we afford no deference to a judge of compensation's
interpretation of the law and review legal questions de novo.
Renner v. AT&T, 218 N.J. 435, 448 (2014).
Our highly deferential standard of review is of particular
significance in this case, where respondent's principal points of
error hinge on the JWC's decision to give greater weight to the
opinions of Dr. Gaffney and Dr. Ragland than to those of Dr. Ames.
Importantly, compensation judges have "expertise with respect to
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weighing the testimony of competing medical experts and appraising
the validity of [a petitioner's] compensation claim." Ramos v. M
& F Fashions, 154 N.J. 583, 598 (1998). In the end, a JWC has the
discretion to accept or reject expert testimony, in whole or in
part. Kaneh v. Sunshine Biscuits, 321 N.J. Super. 507, 511 (App.
Div. 1999).
Here, the JWC saw and heard the testimony of the competing
experts, and was in the best position to assess their demeanor and
credibility. Sager, supra, 182 N.J. at 164, 166. The JWC gave
several valid reasons for crediting Dr. Gaffney's testimony,
including the fact that it coincided with Dr. Ragland's findings
as petitioner's treating physician. Courts have stressed "the
greater opportunity of a treating physician, as compared with a
doctor who conducts a single examination in order to become an
expert medical witness, to know, understand and decide upon the
producing cause of the patient's condition." Mernick v. Div. of
Motor Vehicles, 328 N.J. Super. 512, 522 (App. Div. 2000) (quoting
Bober v. Indep. Plating Corp., 28 N.J. 160, 167 (1958)).
For the first time on appeal, respondent argues that Dr.
Ragland rendered a net opinion, and that the court erred in relying
upon it. At the hearing, however, respondent consented to the
admission of Dr. Ragland's reports in evidence, and did not object
to them as an inadmissible net opinion, or on any other basis. In
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conformity with general principles of appellate practice, we
decline to address issues that were not presented to the workers'
compensation court. See Nieder v. Royal Indem. Ins. Co., 62 N.J.
229, 234 (1973) (discussing the limited circumstances in which an
appellate court will consider an argument first raised on appeal).
Moreover, "[t]rial errors which were induced, encouraged or
acquiesced in or consented to by defense counsel ordinarily are
not a basis for reversal on appeal." State v. Harper, 128 N.J.
Super. 270, 277 (App. Div.), certif. denied, 65 N.J. 574 (1974).
Respondent also contends that petitioner failed to prove
causation by the preponderance of the credible evidence. Causation
need not be proven to a certainty; rather, "all that is required
is that the claimed conclusion from the offered facts must be a
probable or more probable hypothesis." Kiczula v. Am. Nat. Can
Co., 310 N.J. Super. 293, 303 (App. Div. 1998) (citations omitted).
Here, the compensation court credited Dr. Gaffney's testimony over
that of Dr. Ames, and found that petitioner's evidence established
both his injuries and their causation by the April 9, 2004
incident. Because the compensation judge's "findings of fact are
supported by substantial credible evidence in the record and are
not so wide [of] the mark as to be manifestly mistaken," this
court must defer. Tlumac v. High Bridge Stone, 187 N.J. 567, 573
(2006).
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Respondent's remaining arguments, to the extent we have not
specifically addressed them, lack sufficient merit to warrant
discussion in a written opinion. See R. 2:11-3(e)(1)(D) and (E).
Affirmed.
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