Laura Driscoll v. Costco

• Court: New Jersey Superior Court Appellate Division
• Decided: February 20, 2024
• Docket: A-2789-21
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2789-21

LAURA DRISCOLL,

Petitioner-Appellant,

v.

COSTCO,

Respondent-Respondent.

Argued October 3, 2023 – Decided February 20, 2024

Before Judges Rose and Perez Friscia.

On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition Nos. 2021-2937 and 2021-3701.

Christopher Peter Gargano argued the cause for appellant.

Jennifer Anne Cottell argued the cause for respondent (Capehart & Scatchard, PA, attorneys; John Hugh Geaney, of counsel; Jennifer Anne Cottell and McKenna Rae Parris, on the brief). PER CURIAM

In these compensation matters, petitioner Laura Driscoll appeals from a

March 31, 2022 final order denying her motions for medical and temporary

disability benefits against her employer, Costco, for two related claims; and two

June 1, 2021 orders denying her motions to suppress Costco's defenses and

compel discovery for each claim. We affirm.

I.

Driscoll testified at the eight-day plenary hearing and presented the

testimony of her supervisor, Sherrie Binder; Costco store clerk, Leigh-Ann

Terrell; and Alexander Pekurovsky, M.D., as an expert in anesthesia and pain

management. Costco called Richard Callahan, a membership manager; Jennifer

Yanow, M.D., as an expert in pain management; and Nomaan Ashraf, M.D., as

an expert in orthopedics. The testimony of the witnesses is accurately

summarized in the judge of compensation's opinion and need not be reiterated

here. Instead, we summarize the pertinent facts and procedural history from the

record before the judge of compensation.

While assisting a cashier during the course of her employment for Costco

on November 16, 2020, Driscoll injured her back lifting a heavy case of water

bottles. Driscoll was fifty-five years old with no prior history of back injuries.

A-2789-21 2 The following day, Costco authorized treatment with Randy Klein, M.D.,

who prescribed pain and anti-inflammatory medication, and placed Driscoll out

of work. Dr. Klein later prescribed physical therapy and referred Driscoll to Dr.

Ashraf, an orthopedic spine specialist.

Dr. Ashraf, in turn, prescribed a steroid pain reliever, an MRI, and

additional physical therapy. Driscoll thereafter reported her severe reaction to

the medicine, claiming she felt "very shaky, nauseous, very depressed, [and]

suicidal." On December 23, 2020, Dr. Ashraf recommended Driscoll return to

work on modified duty, including: "no lifting of weight greater than [five

pounds]"; "no repetitive bending [one] time[] per hour"; "limit[ing] standing to

[thirty] minutes with alternate sit[ting fifteen] minutes"; and "no climbing."

On January 2, 2021, Driscoll underwent an MRI. Dr. Ashraf's diagnostic

imaging review revealed a "small right paracentral disc herniation at L4-5 with

an associated annular fissure." On January 6, 2021, Dr. Ashraf returned Driscoll

to work with a twenty-pound lifting restriction. Driscoll testified she returned

to work sometime "after the new year."

On January 30, 2021, Costco assigned Driscoll to work inventory.

Driscoll testified the assignment involved moving "heavy stacks" of clothing.

She claimed the "repetitive lifting and bending aggravated [her] back," causing

A-2789-21 3 her to leave work around ninety minutes before the end of her scheduled shift.

Driscoll informed her manager she was injured but acknowledged she did not

complete an accident report. Driscoll further acknowledged her employer did

not ask her to lift more than twenty or twenty-five pounds.

On February 3, 2021, Driscoll filed her first claim petition, asserting she

injured her back during the November 16, 2020 incident. In its answer, Costco

accepted Driscoll's lower back injury. Costco asserted it "made full payment

benefits to petitioner" and "put her to her proofs on the issue of permanent

disability." Driscoll thereafter amended her petition to add a "neuropsychiatric

sequelae" injury. Costco filed an amended answer denying the claim.

Driscoll filed a second claim on February 11, 2021, contending she

sustained a new injury to her back on January 30, 2021, and an aggravation of

her November 16, 2020 back injury. Costco answered the complaint, denying

the claim.

Meanwhile, Driscoll continued authorized treatment with Dr. Yanow, a

pain management specialist referred by Dr. Ashraf. Dr. Yanow performed

medial branch block injections and rhizotomies. Thereafter, Driscoll reported

increasing pain, radiating from her right buttock to her foot and claimed she was

"unable to work in any capacity." Unable to discern the cause of Driscoll's pain,

A-2789-21 4 Dr. Yanow ordered an updated MRI and, pending the results, returned Driscoll

to work in a sitting-only capacity. Dr. Yanow refused Driscoll's request "to

write a note taking her out of work for the last couple of weeks."

In late March 2021, Driscoll moved for medical and temporary benefits.

Thereafter, Driscoll treated with Jagdip Desai, M.D., for pain management,

without Costco's authorization, and continued authorized treatment with Drs.

Yanow and Ashraf. Dr. Desai's treatment plan included joint injections, a

psychological evaluation, and removal from work. He also prescribed pain

medication.

In mid-April, Dr. Ashraf determined Driscoll had reached maximum

medical improvement, noting the updated MRI did not indicate a pathology that

required surgery. Driscoll filed additional motions for medical and temporary

benefits, demanding benefits from March 11, 2021 until further order of the

court, and requesting transfer of her medical care from Drs. Ashraf and Yanow

to Dr. Desai.

Costco opposed the motions. In a supplemental certification, Costco's

counsel asserted Driscoll was under authorized care with Dr. Yanow, who

disagreed with Dr. Desai's prognosis and treatment plan. Further, Driscoll was

A-2789-21 5 paid temporary benefits during the time frame that Drs. Ashraf and Yanow

restricted her from full duty.

In May, Driscoll began treatment with Dr. Pekurovsky, whose diagnoses

included lumbar radiculopathy, intervertebral disc disorders, low back pain, and

sacroiliitis. Dr. Pekurovsky performed a steroid injection followed by a

sacroiliac joint injection, which resulted in fifty percent relief. After Dr.

Pekurovsky left the practice, Driscoll continued treatment with another doctor

in the practice.

Around the same time, Driscoll underwent an EMG, which was ordered

by Dr. Yanow. The results indicated "evidence of a bilateral tibial motor and

peroneal motor neuropathy" as well as "evidence of a right sural sensory

neuropathy." The results showed no evidence of lumbar radiculopathy.

Thereafter, Dr. Yanow discharged Driscoll at maximum medical improvement

and cleared her for full-duty work, opining she could not offer anything else

"from a pain management standpoint."

Prior to hearing testimony on the return date of the motions, the judge of

compensation denied Driscoll's motions to suppress Costco's defenses and

compel discovery. The judge rejected Driscoll's argument that Costco failed to

provide the narrative reports of Drs. Ashraf and Yanow when, as the petitioner,

A-2789-21 6 Driscoll was required to do so. The judge reasoned a petitioner's obligation to

provide a medical report or an affidavit of a medical professional stems both

from the petitioner's inability to provide evidence concerning a diagnosis or

treatment, and the petitioner's obligation to present "some type of report from

[a] medical doctor, which will be contrary to what . . . in this case an authorized

treating physician sa[id]." See N.J.S.A. 12:235-3.2(b)(3). The judge noted,

conversely, Driscoll could subpoena her own treatment records, but ordered

Costco to reimburse Driscoll for the cost of obtaining the records it should have

provided.

Based on the evidence adduced at the hearing, the judge found Driscoll's

claim for medical benefits was "limited to the period of time that Dr. Pekurovsky

conducted treatment," noting the absence of "any testimony or medical records

for any treatment after July 9, 2021." The judge further found "Dr. Pekurovsky

alluded to the possibility of a need for additional treatment" but there was no

evidence in the record "as to what was done and the need thereof." Accordingly,

the judge declined to "make any findings as to any treatment done by a

subsequent physician."

The judge of compensation next addressed "the two main issues": whether

the January 30, 2021 incident was a compensable accident; and whether Driscoll

A-2789-21 7 attained maximum medical improvement under the authorized treatment by Drs.

Ashraf and Yanow, or whether Dr. Pekurovsky's treatment should have been

authorized.

Regarding the first issue, the judge credited the testimony of Driscoll and

her lay witnesses, finding petitioner sustained a second injury while employed

by Costco. However, the judge "was more persuaded by the testimony of

[Costco]'s doctors." The judge found credible the testimony of Drs. Ashraf and

Yanow, noting: "Both physic[ia]ns acknowledged that the patient was in pain

but there was nothing more that could be done." In his amplification statement,

the judge elaborated: "Both doctors gave detailed evidence as to the office

proce[dure]s, history taken, examinations and tests, reasoning for the treatment

performed[,] and final diagnosis."

Conversely, the judge found "Dr. Pekurovsky did not review the EMG or

the actual MRI of March 26, 2021. He did not have knowledge of the prior

medical history. The treatment rendered by Dr. Pekurovsky resulted in a 50%

improvement that lasted for one week" and he "had no plan for additional

treatment," which suggested to the judge "that further treatment would be of

little benefit."

A-2789-21 8 In her overlapping arguments on appeal, Driscoll challenges the

sufficiency of the judge of compensation's credibility and factual findings, and

claims the judge improperly relied on the net opinion of Costco's authorized

medical providers. Driscoll also contends the judge failed to make requisite

findings regarding her discovery motions, and Costco's failure to provide

discovery forced her to try the matter without evidence supporting her

employer's position, thereby denying her right to due process. We are not

persuaded.

II.

Well-settled principles guide our review. Our scope of review in a

workers' compensation case is narrow and deferential. Lapsley v. Twp. of

Sparta, 249 N.J. 427, 434 (2022). We accord "substantial deference" to the

factual findings made by a workers' compensation judge "in recognition of the

compensation judge's expertise and opportunity to hear witnesses and assess

their credibility." Goulding v. NJ Friendship House, Inc., 245 N.J. 157, 167

(2021) (quoting Ramos v. M & F Fashions, Inc., 154 N.J. 583, 594 (1998)). Our

role in reviewing such decisions therefore "is limited to '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

A-2789-21 9 opportunity of the one who heard the witnesses to judge of their credibility.'"

Lindquist v. City of Jersey City Fire Dep't, 175 N.J. 244, 262 (2003) (quoting

Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)); see also Hersh v. County of

Morris, 217 N.J. 236, 242 (2014).

"We may not substitute our own factfinding for that of the [j]udge of

[c]ompensation even if we were inclined to do so." 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,

175 N.J. at 262 (quoting Perez v. Monmouth Cable Vision, 278 N.J. Super. 275,

282 (App. Div. 1994)). However, we review de novo the judge of

compensation's legal conclusions. Hersh, 217 N.J. at 242.

We also recognize "[c]ompensation judges have 'expertise with respect to

weighing the testimony of competing medical experts.'" Martin v. Newark Pub.

Schs., 461 N.J. Super. 330, 337 (App. Div. 2019) (quoting Ramos, 154 N.J. at

598). A "judge of compensation 'is not bound by the conclusional opinions of

any one or more, or all, of the medical experts.'" Kaneh v. Sunshine Biscuits,

321 N.J. Super. 507, 511 (App. Div. 1999) (quoting Perez v. Capitol

A-2789-21 10 Ornamental, Concrete Specialties, Inc., 288 N.J. Super. 359, 367 (App. Div.

1996)). "That [the judge] gave more weight to the opinion of one physician as

opposed to the other provides no reason to reverse th[e] judgment." Martin, 461

N.J. Super. at 337 (alterations in original) (quoting Bellino v. Verizon Wireless,

435 N.J. Super. 85, 95 (App. Div. 2014)).

In our review, we are mindful that the Workers' Compensation Act,

N.J.S.A. 34:15-1 to -147, "is humane social legislation designed to place the

cost of work-connected injury on the employer who may readily provide for it

as an operating expense." Hersh, 217 N.J. at 243 (quoting Livingstone v.

Abraham & Straus, Inc., 111 N.J. 89, 94-95 (1988)). Accordingly, the act should

be "construed and applied in light of this broad remedial objective." Ibid.

(quoting Livingstone, 111 N.J. at 95); see also Goulding, 245 N.J. at 167.

Nonetheless, the petitioner bears the burden of establishing the

compensability of their injuries by a preponderance of the evidence. Lindquist,

175 N.J. at 263. "Whether the treatment is characterized as curative or

palliative, [it] is compensable if competent medical testimony shows that it is

'reasonably necessary to cure or relieve the effects of the injury.'" Martin, 461

N.J. Super. at 338 (quoting Hanrahan v. Twp. of Sparta, 284 N.J. Super. 327,

336 (App. Div. 1995)). Whether treatment is reasonable and necessary is not

A-2789-21 11 dependent on the petitioner's "desires or beliefs as to what treatment or service

will be most beneficial." Hager v. M&K Constr., 246 N.J. 1, 24 (2021). The

petitioner must demonstrate the treatment would "probably relieve [the]

petitioner's symptoms and thereby improve [the] ability to function." Hanrahan,

284 N.J. Super. at 336. "A mere showing that the injured worker would benefit

from the added treatment is not enough." Raso v. Ross Steel Erectors, Inc., 319

N.J. Super. 373, 383 (App. Div. 1999). There may be a point at which "the pain

or disability experienced by the worker is insufficient to warrant the expense of

active treatment." Hanrahan, 284 N.J. Super. at 336.

We have considered Driscoll's contentions in view of these guiding legal

principles and conclude the judge's findings are "supported by sufficient

credible evidence on the record as a whole," R. 2:11-3(e)(1)(D), and Driscoll's

arguments are without sufficient merit to warrant extended discussion in a

written opinion, R. 2:11-3(e)(1)(E). We affirm the March 31, 2022 order

denying Driscoll's motions for medical and temporary disability benefits

substantially for the reasons articulated by the judge of compensation. We add

only the following brief comments regarding Driscoll's challenges to the June 1,

2021 orders, denying her discovery motions.

A-2789-21 12 Workers' compensation proceedings are governed by the Workers'

Compensation Division Rules. See N.J.A.C. 12:235-1.1. Pursuant to N.J.A.C.

12:235-3.1, the respondent's answer must include certain information itemized

in N.J.A.C. 12:235-3.1(b)(1)(i) to (xi). However, a judge of compensation is

permitted to allow "the filing of the answer on such terms as may be fixed in the

[judge's] discretion." N.J.A.C. 12:235-3.1(b)(3). Contrary to Driscoll's

contentions, prior to commencing the testimonial hearing, the judge fully

explained his reasons for denying the discovery motions. We therefore discern

no reason to disturb the judge's decision.

Affirmed.

A-2789-21 13