Kaneh v. Sunshine Biscuits

729 A.2d 501, 321 N.J. Super. 507, 1999 N.J. Super. LEXIS 190
CourtNew Jersey Superior Court Appellate Division
DecidedJune 1, 1999
StatusPublished
Cited by19 cases

This text of 729 A.2d 501 (Kaneh v. Sunshine Biscuits) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kaneh v. Sunshine Biscuits, 729 A.2d 501, 321 N.J. Super. 507, 1999 N.J. Super. LEXIS 190 (N.J. Ct. App. 1999).

Opinion

729 A.2d 501 (1999)

Rugie KANEH, Petitioner-Respondent,
v.
SUNSHINE BISCUITS, Respondent-Appellant.

Superior Court of New Jersey, Appellate Division.

Argued April 27, 1999.
Decided June 1, 1999.

*502 Joseph V. Wallace, Florham Park, for respondent-appellant (Hack, Piro, O'Day, Merklinger, Wallace & McKenna, attorneys; Mr. Wallace, of counsel and on the brief).

Kathryn Isaacs Rea, Princeton, for petitioner-respondent (Dean Anglin, attorney; Ms. Rea, on the brief).

Before Judges MUIR, Jr., and KEEFE.

The opinion of the court was delivered by KEEFE, J.A.D.

In this workers' compensation case, respondent Sunshine Biscuits appeals from a final judgment awarding petitioner Rugie Kaneh partial total disability benefits in the amount of $99,540.

The workers' compensation judge found that petitioner suffered from orthopedic, neurologic, and psychiatric disabilities in the form of twenty-five percent of partial total for the right shoulder, five percent of partial total for the left shoulder, fifteen percent of partial total for the cervical area, and seven and one-half percent of partial total for the adjustment disorder and depression stemming from the aforesaid injuries. The judge further found that these injuries resulted from the repetitive movements required by petitioner's position as a cookie packer on a "high-speed cookie conveyor" production line where petitioner was required to "raise her arms above her head, rotate her body to the left, and dump the cookies into a hopper...." Petitioner worked on this line for eight hours per day with two short lunch breaks and "would repeat the described activity ten to fifteen times within three to five minutes to keep up with the speed of the line...." According to the judge's findings, petitioner was engaged in this type of activity on February 11, 1993, when, "as she was reaching out to dump the cookies in the hopper, she felt a sharp pain in her right shoulder and her right arm became numb." Concluding from the evidence that all of the above described injuries stemmed from the same occupational exposure within the meaning of N.J.S.A. 34:15-31, the judge aggregated the weeks of compensation resulting from these disabilities and entered an award for 315 weeks of compensation at $316 per week.

Following the entry of judgment, respondent filed a motion for a new trial or, in the alternative, to reopen the record. The judge denied the motion in its entirety. This appeal followed in which respondent raises the following issues:

POINT I—THE FINDING BY THE COMPENSATION JUDGE THAT PETITIONER SUFFERS FROM A SINGLE ORTHOPEDIC OCCUPATIONAL DISEASE AS THE RESULT OF HER EMPLOYMENT MUST BE REVERSED AS THERE IS NO CREDIBLE EVIDENCE TO SUPPORT IT.
POINT II—THE DENIAL BY THE COMPENSATION JUDGE OF RESPONDENT'S MOTION FOR A NEW TRIAL OR TO REOPEN THE RECORD TO PRODUCE CRITICAL EVIDENCE WAS AN ABUSE OF DISCRETION.

We find no error and affirm for the reasons stated herein.

I.

In respondent's first point heading, it presents several interrelated issues. We first address respondent's criticism of the *503 trial judge's decision to accept the opinions of petitioner's medical experts over those of its own experts.

Our standard of review requires that we defer to the trial judge's findings as to credibility. Further, we are appropriately required to defer to the judge of compensation's expertise in analyzing medical testimony and abide by the long-standing principle that a "judge of compensation is not bound by the conclusional opinions of any one or more, or all of the medical experts.'" Perez v. Capitol Ornamental, Concrete Specialties, Inc., 288 N.J.Super. 359, 367, 672 A.2d 719 (App.Div.1996) (quoting Lightner v. Cohn, 76 N.J.Super. 461, 465, 184 A.2d 878 (App.Div.), certif. denied, 38 N.J. 611, 186 A.2d 308 (1962)). In this case, the trial judge found the petitioner to be "very credible" with respect to "the nature of her work and the result of her disabilities." He also found that her testimony concerning the effect the injuries had on her working ability was corroborated by the medical findings of her experts, Dr. Ruderman and Dr. Rubin. As to these experts, the judge found them to be "more credible and more attuned to the medical treatment and complaints of the petitioner than that presented by Dr. Rossi and Dr. Eisenberg for the respondent." Further, the judge gave reasons for that conclusion. Contrary to respondent's contention in its brief, we find no violation of Lewicki v. New Jersey Art Foundry, 88 N.J. 75, 89-90, 438 A.2d 544 (1981), Allen v. Ebon Servs. Int'l, Inc., 237 N.J.Super. 132, 135, 567 A.2d 228 (App. Div.1989), and Lister v. J.B. Eurell Co., 234 N.J.Super. 64, 73, 560 A.2d 89 (App. Div.1989). The trial judge gave sufficient reasons for his findings to enable appellate review. We find no reason to disturb those findings.

Respondent contends, alternatively, that the judge erred as a matter of law in accepting the testimony of petitioner's experts over that of its own experts because petitioner's experts' reports violated the principle of law stated in Allen cautioning workers' compensation judges against relying on stale medical reports. See also Perez v. Pantasote, Inc., 95 N.J. 105, 119, 469 A.2d 22 (1984). This objection, however, was not raised at the time of trial. Issues not raised in the trial court are deemed waived for appellate purposes unless they involve matters of great public importance. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234, 300 A.2d 142 (1973). In any event, respondent fails to point to anything in the judge's decision indicating that the judge was unaware of the basic proposition that "[a]n award of compensation for partial permanent disability must be based on the disability that exists at the time of the determination." Allen, supra, 237 N.J.Super. at 135, 567 A.2d 228.

Respondent next contends that the record unequivocally shows that petitioner's cervical disability, right shoulder disability, and left shoulder disability were all diagnosed on different dates, separated by months, and, in the case of the left shoulder disability, almost nineteen months after the February 11, 1993, event that prompted petitioner to leave work. Respondent argues that the record at the very least required the trial judge to find that the disabilities manifested themselves on three separate dates, rather than treating them as a single occupational disease resulting in an award of 315 weeks of compensation, equivalent to fifty-two and one-half percent of partial total disability.

We agree with respondent that the record shows that the three conditions were diagnosed on different dates, the diagnosis of the neck condition occurring in March 1993, the right shoulder in June 1993, and the left shoulder in September 1994. Respondent, however, fails to cite any cases supporting the proposition that the date of diagnosis of an injury determines the manifestation date for compensation rate-setting purposes. Indeed, manifestation can be determined either by diagnosis through medical examination, manifest loss of physical function, or incapacity *504 to work. Bond v. Rose Ribbon & Carbon Mfg. Co., 42 N.J. 308, 311, 200 A.2d 322 (1964).

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Bluebook (online)
729 A.2d 501, 321 N.J. Super. 507, 1999 N.J. Super. LEXIS 190, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kaneh-v-sunshine-biscuits-njsuperctappdiv-1999.