NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-5917-17T2
PRISCILLA ROBINSON,
Petitioner-Appellant,
v.
UNITED AIRLINES,
Respondent-Respondent. ___________________________
Submitted May 1, 2019 – Decided September 18, 2019
Before Judges Nugent and Mawla.
On appeal from the Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition No. 2017-5603.
Kotlar, Hernandez & Cohen, LLC, attorneys for appellant (Matthew J. Solin and Erika M. Page, on the briefs).
Capehart & Scatchard, PA, attorneys for respondent (Prudence M. Higbee, on the brief).
The opinion of the court was delivered by
NUGENT, J.A.D. In this workers' compensation action, petitioner, Priscilla Robinson,
appeals from an order that denied her motion for medical and temporary
disability benefits. Petitioner claimed that while undergoing authorized therapy
for a fractured wrist that arose out of and in the course of her employment, she
either tore the rotator cuff in her left arm or aggravated an existing tear, and now
requires surgery. Respondent, United Airlines, disputed the injury arose out of
her employment. Respondent contended petitioner's injury existed before she
started her therapy and was neither caused nor aggravated by the therapy. The
judge of compensation (JOC) determined petitioner had not carried her burden
of proving her claim was compensable and denied the claim. For the reasons
that follow, we affirm.
I.
A.
Petitioner filed a claim petition in which she alleged she sustained an
injury to her left shoulder on June 15, 2016, while undergoing authorized
therapy for a previous work injury. The following month, respondent filed an
answer to the claim petition and admitted petitioner's shoulder injury arose out
of and in the course of her employment. After receiving additional information
concerning petitioner's injury, respondent filed an amended answer to the claim
A-5917-17T2 2 petition and denied that petitioner's injury arose out of and in the course of her
employment.
In view of respondent's amended claim petition and denial that petitioner's
injury was compensable, petitioner filed a Notice of Motion for Temporary and
Medical Benefits. The hearing on petitioner's motion took place on four
nonconsecutive days from December 2017 through May 2018. Following
written submissions, the JOC denied petitioner's motion. This appeal followed.
B.
The parties presented the following evidence during the hearing on
petitioner's motion for temporary and medical benefits. Petitioner had been
employed by respondent for thirty-two years as a flight attendant when she
sustained an injury to her right wrist during the course of her employment in
March 2016. Respondent authorized three phases of treatment for petitioner's
wrist injury: casting and medical treatment necessary for the injury to heal;
occupational therapy; and physical therapy to condition her to return to work.
Petitioner completed the first two phases without incident. She began the third
phase, work conditioning, on June 15, 2016. She contended she sustained or
aggravated her left shoulder injury that day.
A-5917-17T2 3 Petitioner and the therapist who oversaw the therapy gave conflicting
testimony about what happened. According to petitioner, on June 15, 2016, her
first day of work-conditioning therapy, the therapist made her do several
exercises in sets of ten. For the first exercise, the therapist put weights in
buckets and petitioner had to walk from one end of the room to the other carrying
both buckets. When she finished that set of ten, she worked on what she
described as a lift-up machine, in which she would lift a bar to approximately
eye level. Last, she did ten sets of exercise requiring her to push against a wall,
followed by an exercise where she lifted her arms and brought them back.
Plaintiff did not feel well at the completion of these exercises, though she
could not pinpoint the precise problem. She had shortness of breath and
palpitations. The upper part of her body "didn't feel right." Nonetheless, she
began to ride a stationary bike but could not complete the scheduled fifteen
minutes. She stopped after nine or ten minutes.
Petitioner left therapy without complaining about any shoulder pain.
Once home, however, she experienced pain in her left shoulder which became
worse during the course of the afternoon. The next day, she saw her primary
physician, who wrote a letter to the therapist. According to petitioner, her
A-5917-17T2 4 physician advised the therapist "to hold off on the work conditioning until we
got the results back from the X-ray and the MRI."
The physical therapist testified for respondent and contradicted
petitioner's testimony. The therapist was a sixteen-year employee of the
outpatient rehabilitation facility that petitioner attended. She testified that when
petitioner appeared on June 15, 2016, for her first work conditioning session,
she started the session with pre-conditioning exercises. The pre-conditioning
exercises were all stretching exercises. Seven involved the lower extremities,
waist, and lower back. The eighth was a combination shoulder-chest exercise
where one stretched the chest muscles by pinching the shoulder blades together
and then relaxing. Petitioner had no complaints concerning her shoulder during
the stretching exercises. Had she so complained, the therapist would have made
an entry in her notes. Petitioner also did some cardio training—seven minutes
on an upright, recumbent bike.
Petitioner reported feeling heart palpitations and weight on her chest. The
therapist offered to take petitioner's vital signs, that is, petitioner's blood
pressure and heart rate, or call 9-1-1. Petitioner declined. The therapist
reviewed some home exercises with petitioner, and petitioner said she would see
A-5917-17T2 5 her doctor the next day. The therapist told petitioner to obtain clearance to
resume work conditioning.
Petitioner returned two days later, on June 17, 2016, with a physician's
note. The physician's note said petitioner had reported severe left shoulder pain.
Pending an MRI, she was to do therapy for her right wrist only. Petitioner was
also scheduled to see a cardiologist. In view of the note, the therapist modified
the Baltimore Therapeutic Equipment machine—a machine that simulated
workplace activities—to restrict exercises to petitioner's right hand and right
uppers only. The therapist noted petitioner had no complaints of pain that day.
Petitioner next returned on June 20, 2016. She had no complaints of pain
and no complaints of cardiac issues. That day, petitioner did one exercise where
she used both arms: the push-pull cart, which simulated pushing a beverage cart.
Typically, a clinic patient pushes the cart for approximately 200 feet. That was
the only exercise petitioner did with both hands; she did the other exercises with
her right hand.
Petitioner's medical expert, Craig H. Rosen, an orthopedic surgeon,
examined petitioner on January 11, 2018. He reviewed her medical records,
including a June 22, 2016 MRI, which revealed a torn rotator cuff in petitioner's
left shoulder. Dr. Rosen diagnosed petitioner with a left rotator cuff tear and
A-5917-17T2 6 recommended that she undergo arthroscopic surgery to repair the torn rotator
cuff. Post-surgical care would include physical therapy for two or three months.
Concerning causation, Dr. Rosen expressed the following opinion:
Either the injury occurred at the time of her physical therapy session on June 15, 2016, with the maneuvers that she was doing, and she described lifting some kind of bar and getting in some kind of swimming motion, and, therefore, that would make the tear directly related to that episode or that incident. The other alternative is that she could have had a pre-existent tear on her shoulder that was quiescent, asymptomatic, and that this was a precipitating event that made her symptomatic and aggravated the underlying problem that she did not know about.
Dr. Rosen explained that because the muscles going into the rotator cuff
were not atrophied and had no fatty infiltration, "this is not a longstanding
chronic tear." If the tear was longstanding, the MRI would show some evidence
of muscle atrophy or fatty infiltration. Generally, it takes two or three years for
fatty infiltrates to develop.
Dr. Rosen repeated that from the MRI, he could not say whether this was
an old tear or a new tear. The MRI showed the tendon was torn off at the surface,
but the doctor did not "know the age of that." He further explained: "it 's a large
enough tear, it will move immediately a bit, but it is not a chronic retracted tear
to the left of the glenoid or the dish in the shoulder that would indicate that this
A-5917-17T2 7 is being [sic] there for any long period of time." With a large tear, over time,
there would be some "retraction of the tendon and atrophy of the muscles, but
that takes time to develop."
Dr. Rosen reiterated that petitioner told him she was lifting some type of
bar and going through a swimming type of motion during her work conditioning.
He elaborated:
If I'm understanding her correctly, and I'm just going on her telling me what the - - if she was lifting something heavy, a bar that went up at least to shoulder level and higher, and doing some type of motion with her arm out in that position, it is possible to tear a rotator cuff. If you take a [two] or [three]-pound weight, and put it in your hand, when you hold it out straight, you now multiply that, if you go through the physics and biomechanics of it, you've now multiplied that weight many, many times, by the lever of your arm, so a [two] or [three] pound weight may be [fifteen] or [twenty] pounds or more. I didn't do the analysis right off the top of my head here, but a small weight can place much, much greater stress on the shoulder, if the arm is out extended.
During cross-examination, Dr. Rosen said petitioner told him "she was
holding onto a bar, and she had to lift her arm up in a swimming-type motion."
She said nothing more specific concerning the movement of her arms, other than
that "it was a swimming-type motion." In the history he recorded, Dr. Rosen
ascribed the following statement to petitioner: "[w]ell, my initial note said . . .
A-5917-17T2 8 'she says, at that point, according to myself, she was lifting a bar, doing a swim-
type exercise, and noted the onset of pain in her left shoulder.'" Dr. Rosen added
that if she was lifting the bar from shoulder to eye level, the exercise could cause
a rotator cuff tear provided there was enough weight and stress. He could not
quantify the amount of weight necessary,
Respondent's evaluating physician, Kenneth A. Levitsky, also an
orthopedic surgeon, disagreed that petitioner's left rotator cuff tear was caused
or exacerbated by her work conditioning therapy. Dr. Levitsky explained that
the most likely mechanism of injury for a rotator cuff tear would be an extension
or abduction stretch-type injury with the arm overhead. Other causes could be
"a very, very forceful twisting injury perhaps, but to a lesser likelihood, perhaps
with the arm below the shoulder blade." The doctor opined that leaning against
a wall was an unlikely cause of a rotator cuff tear. He found leaning against a
wall to be an unlikely cause because "to tear a rotator cuff acutely it requires a
significant amount of force and it requires the right mechanism, and simply
leaning against the wall in my opinion, . . . isn't a plausible or a mechanism that
would cause a rotator cuff tear."
Shown a list of the preconditioning exercises petitioner performed on June
15, 2016, Dr. Levitsky opined that none of the exercises would cause a rotator
A-5917-17T2 9 cuff tear. None, he said, were forceful enough and none fit the classic
mechanism of injury. He added, "[t]here's no exercise here that demonstrates or
would cause a significant twisting force on the shoulder with the arm in an
unusual position."
Dr. Levitsky examined petitioner on July 24, 2016. He also took a history
and reviewed her medical records, including the June 2016 MRI study. Based
on the history petitioner gave him, his review of medical records including the
diagnostic studies, and his clinical examination of petitioner, Dr. Levitsky
concluded the rotator cuff tear "was likely in my opinion to be a pre-existing
tear and was not causally related from the occurrence that was a self-described
stretching and pushing exercise against the wall." The doctor reiterated that the
exercise plaintiff did on her first day of work conditioning was not a sufficient
mechanism of injury to cause a rotator cuff tear.
Dr. Levitsky also read the testimony given by petitioner, the therapist, and
Dr. Rosen. Citing the therapist's testimony that petitioner only performed
stretching exercises on her first day of work conditioning, and never complained
of pain, Dr. Levitsky said the therapist's testimony confirmed his opinion.
Nothing in the occupational therapist's testimony indicated a mechanism of
injury that would cause a rotator cuff tear.
A-5917-17T2 10 Petitioner's testimony did not alter his opinion. He thought Dr. Rosen's
testimony demonstrated some confusion about which exercises petitioner
performed on each of the three dates she participated in work conditioning
therapy. For example, Dr. Rosen thought petitioner had lifted a bar on June 15,
2016. This was not the case, as testified to by the therapist and documented in
her notes.
Dr. Levitsky further opined that in order to materially aggravate or
exacerbate a pre-existent rotator cuff tear, one would still need an adequate
mechanism of injury, which was not the case here. Further, to reach such a
conclusion, one would have to seek comparative MRI studies, before and after
the purported injury, to determine if a tear existed and was made materially
worse.
Like Dr. Rosen, Dr. Levitsky could not say from his review of the MRI
when the tear occurred. He pointed out, however, that the MRI of petitioner's
shoulder also showed some degenerative changes, which were clearly pre-
existing to her physical therapy.
During cross-examination, Dr. Levitsky agreed that merely having a
rotator cuff tear is not enough to require surgery. Surgery would be required if
a tear was accompanied by pain and interference with activities of daily living
A-5917-17T2 11 and the condition was not getting better with time. Dr. Levitsky also agreed
with Dr. Rosen that petitioner needs surgery to repair her torn rotator cuff, and
he did not have any reason to believe she was a shoulder-surgery candidate
before June 15, 2016, when she began her work conditioning therapy.
According to Dr. Levitsky's report, petitioner's rotator cuff tear was likely
asymptomatic before reporting shoulder pain to her treating physician the day
after she began work conditioning therapy. Dr. Levitsky recommended three
weeks of physical therapy and a cortisone injection as treatment for the torn
rotator cuff.
C.
In a written opinion, the JOC found petitioner had not proven her rotator
cuff tear was caused or exacerbated by her work conditioning therapy. The JOC
noted that at no time during petitioner's three work conditioning sessions did she
complain of having suffered an injury to her left shoulder during therapy. This
was corroborated by the daily activity logs completed by the therapist after each
session. Moreover, when petitioner first saw her doctor about discomfort in her
left shoulder, she did not state that she had suffered a traumatic accident which
resulted in the injury. And though petitioner told Dr. Rosen she had injured her
shoulder while lifting a bar and doing a swimming-type motion, petitioner's
A-5917-17T2 12 therapist testified petitioner did not lift a bar during the initial work conditioning
session on June 15, 2016.
The JOC found Dr. Levitsky's opinion credible, logical, and both
medically and factually well supported. In contrast, the JOC found Dr. Rosen's
testimony as to the cause of petitioner's rotator cuff tear to be speculative and
without certainty. Consequently, the JOC determined petitioner had not
sustained her burden of proving she had sustained a compensable accident.
II.
On appeal, petitioner argues the JOC misapplied the burden of proof and
misunderstood the standard for expert testimony. Petitioner asserts that when
"it is claimed the accident was the result of the physical condition of the
employee, the burden of proof is on the employer to show such cause."
According to petitioner, respondent failed to demonstrate petitioner's injury was
"idiopathic."
Petitioner points out that during cross-examination, Dr. Levitsky said he
had no reason to doubt that her symptoms started on or about June 15, 2016.
Moreover, Dr. Levitsky agreed petitioner required surgery to repair the rotator
cuff tear and petitioner was not a surgical candidate before her first work
A-5917-17T2 13 conditioning session on June 15, 2016. In his report, Dr. Levitsky recommended
some treatment for petitioner's shoulder. Specifically, Dr. Levitsky wrote:
If the examinee's history as presented to me is factually correct . . . I would recommend physical therapy for [three] weeks and a cortisone injection into the subacromial space for treatment as it relates to the reported physiotherapy incident. I would not indicate surgical treatment for repair of the rotator cuff tear as it relates to the reported June 16, 2016 injury as it is my opinion that this rotator cuff abnormality was pre- existing. Further treatment for the rotator cuff tear in my opinion would be appropriately pursued outside of her Worker's Compensation claim.
Petitioner construes this part of Dr. Levitsky's opinion as a concession that her
shoulder injury was exacerbated by her physical therapy.
Petitioner also argues the JOC erred by rejecting the testimony of Dr.
Rosen. Last, petitioner argues that the JOC's decision is not supported by
credible evidence on the record.
Respondent counters that the JOC's decision is supported in its entirety by
competent evidence, including lay and expert testimony. Respondent asserts the
JOC properly found the testimony of both petitioner and her medical expert
lacking in credibility. Consequently, the JOC properly concluded petitioner had
not sustained her burden of proving each element of her claim.
A-5917-17T2 14 III.
The Workers' Compensation Act (Act), N.J.S.A. 34:15-1 to -146, is
"remedial social legislation that should be liberally construed in order that its
beneficent purposes may be accomplished." Shaudys v. IMO Indus., Inc., 285
N.J. Super. 407, 410 (App. Div. 1995) (citing Fiore v. Consol. Freightways, 140
N.J. 452, 465 (1995)). It is an "axiomatic principle that the language of the [Act]
must be liberally construed in favor of the claimant[.]" Close v. Kordulak Bros.,
44 N.J. 589, 604 (1965).
The burden of proving that an accident is compensable "rests upon a
workers' compensation claimant." Drake v. Essex Cty., 192 N.J. Super. 177,
179-80 (1983) (citing Mahoney v. Nitroform Co., 36 N.J. Super. 116, 125 (App.
Div. 1955), rev'd on other grounds, 20 N.J. 449 (1956)). Under the Act, an
injury is compensable if it "is caused to an employee by [an] accident arising
out of and in the course of his employment[.]" N.J.S.A. 34:15-1. The phrase
"arising out of" refers to the accident's "causal origin," and the phrase "course
of employment" refers to the "time, place, and circumstances of the accident in
relation to the employment." Cannuscio v. Claridge Hotel & Casino, 319 N.J.
Super. 342, 349 (App. Div. 1999) (quoting Shaudys, 285 N.J. Super. at 410).
A-5917-17T2 15 The arising out of requirement "looks to a causal connection between the
employment and the injury. It must be established that the work was at least a
contributing cause of the injury and that the risk of the occurrence was
reasonably incident to the employment." Coleman v. Cycle Transformer Corp.,
105 N.J. 285, 290 (1986).
New Jersey uses "the 'but for' or positional-risk test" in "determining the
requisite connection[.]" Ibid. "Essentially, that test asks 'whether it is more
probably true than not that the injury would have occurred during the time and
place of employment rather than elsewhere.'" Id. at 290-91 (quoting Howard v.
Harwood's Rest. Co., 25 N.J. 72, 83 (1957)). "Unless it is more probable that
the injury would not have occurred under the normal circumstances of everyday
life outside of the employment, the necessary causal connection has not been
established." Id. at 291.
One of the components of the "but for" test is the nature of the risk that causes injury to the employee. Our courts have established three categories of risks. The first category includes risks "distinctly associated" with the employment, which are compensable. Examples of such injuries are industrial injuries resulting from machinery. The second category includes compensable "neutral" risks which do not originate in the employment environment but rather happen to befall the employee during the course of employment. The typical examples of neutral risks are acts of God, such as lightning. The third category of
A-5917-17T2 16 risks includes those "personal" to the employee and are not compensable. In this category, the employment connection with the injury is minimal; it is the personal proclivities or contacts of the employee, not anything associated with the employment that gives rise to the injury. An epileptic seizure would be a classic example.
[Shaudys, 285 N.J. Super. at 411 (citations omitted).]
The third category of risks—personal proclivities or contacts of the
employee that give rise to the injury—are often referred to as "idiopathic."
George v. Great E. Food Prods., Inc., 44 N.J. 44, 45 (1965).
Risks that are personal to the claimant are defined as follows:
If the time has come for the employee to die a natural death, or to expire from the effects of some disease or internal weakness of which he would as promptly have expired whether he had been working or not, the fact that his demise takes place in an employment setting rather than at home does not, of course, make the death compensable. Or if the employee has a mortal personal enemy who has sworn to seek him out wherever he may be, and if this enemy happens to find and murder the employee while the latter is at work, the employment cannot be said to have had any causal relation to his death. [1 Arthur] Larson, [Workmen's Compensation] § 7.20 (1990).]
[Verge v. Cty. of Morris, 272 N.J. Super. 118, 127 (App. Div. 1994).]
A-5917-17T2 17 Another example of idiopathic injuries "are falls brought on by heart
attacks[.]" Id. at 124. "The burden of proof to establish an idiopathic cause is
placed on the employer." Id. at 128 (citing Spindler v. Universal Chain Corp.,
11 N.J. 34, 38 (1952)). "To bar recovery, the record must substantiate a finding
that the event was caused solely by disease or infirmity peculiar to the individual
and not a condition of the employment." Id. at 124 (citing Spindler, 11 N.J. at
39).
Our review of the JOC's denial of petitioner's motion for temporary and
medical benefits 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 opportunity of the one who heard
the witnesses to judge[ ] their credibility." Lindquist v. City of Jersey City Fire
Dep't, 175 N.J. 244, 262 (2003) (quoting Close, 44 N.J. at 599). "We owe no
particular deference to the [JOC's] interpretation of the law." Sexton v. Cty. of
Cumberland, 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)). If a JOC
mistakenly applies the law to the facts, an appellate court "must grant
appropriate relief." Ibid. (quoting Verge, 272 N.J. Super. at 123).
A-5917-17T2 18 B.
With these principles in mind, we first address petitioner's arguments that
the JOC misapplied the burden of proof and misunderstood the legal standard
for expert testimony. Petitioner contends the JOC should have considered the
proofs under principles applicable to idiopathic injuries, which shift the burden
of proof to respondent. We disagree. In our view, petitioner confuses those
cases in which an employee's idiopathic condition causes a work accident or
event that results in injury, with a work accident or event that aggravates a pre-
existing condition or injury. Our cases make the distinction clear.
The Supreme Court's Spindler decision is illustrative. There, the
employee, while operating a spooling machine, turned to replace a wrench on
the tool shelf behind her when she slipped and fell on the concrete floor. 11 N.J.
at 36. She was uncertain about what had caused her to fall, speculating a piece
of wire may have been the cause. Id. at 37. Her employer argued "her injury
probably resulted from dizziness or a fainting spell caused by a physical ailment
rather than from any accident arising out of and in the course of her
employment." Id. at 38. As the court noted, however, there was "no affirmative
evidence in the record to support this supposition other than the answer to a
hypothetical question asked of a physician produced by the employer." Ibid.
A-5917-17T2 19 The court explained that "[w]here it is claimed the accident was the result of the
physical condition of the employee, 'the burden of proof is on the employer to
show such cause.'" Ibid. (emphasis added) (quoting Atchison v. Colgate & Co.,
3 N.J. Misc. 451 (Sup. Ct.), aff'd, 102 N.J.L. 425 (E. & A. 1925)). The Court
further explained:
Here the fall resulting in the injury is not disputed. The difference of opinion centers in the cause.
If it was occasioned by or was the result of a disease or physical seizure and was not contributed to by "what the workman had to do," it is not compensable. On the other hand, if the fall "would not have occurred but for the service rendered" in the employment, it is covered by the statute.
[Id. at 39.]
The court concluded the accident was compensable. Id. at 39-40.
Similarly, in Verge, the dispute between the employer and employee was
whether the permanent orthopedic injury petitioner suffered when she fell in the
course of her employment was caused when her left foot slipped on a rug, or
whether, as the employer claimed, her fall was an event not incident to
employment but rather one that could have occurred anywhere at any time as
one was walking normally. 272 N.J. Super. at 121-23. Reversing the dismissal
A-5917-17T2 20 of petitioner's claim petition due to an inadequate record, we remanded the
matter for further proceedings. Id. at 128-29. We explained:
Petitioner need not show that the rug was defective or that she was free from fault. Respondent, however, cannot be denied the opportunity to prove by direct or circumstantial evidence that petitioner did not actually slip, but rather that her knee condition caused the event and therefore, her injury was caused solely because of her pre-existing or personal infirmity or condition. This is an issue which the judge could not resolve on the limited proofs permitted.
....
The burden of proof to establish an idiopathic cause is placed on the employer.
[Id. at 128.]
In the case before us, the parties' dispute does not focus on whether an
accident or event that occurred in the course of petitioner's employment was
caused, on one hand, by an idiopathic condition or disease of petitioner, or, on
the other hand, by what the worker had to do. Rather, the dispute focused on
whether petitioner's shoulder injury was occasioned or aggravated by her
therapy, or whether it represented the progression of a pre-existing injury.
Stated differently, the dispute was whether any event had occurred at work and
caused or aggravated petitioner's injury. Consequently, the burden of proof did
A-5917-17T2 21 not shift to the employer and the JOC did not err by finding petitioner did not
sustain her burden.
That leads us to petitioner's next argument: the court applied the wrong
standard for evaluating expert testimony. We disagree. There was a factual
dispute concerning the facts upon which petitioner's medical expert based his
opinion. Petitioner's therapist refuted by her testimony and by her
contemporaneous records that petitioner was doing the exercises to which her
medical expert attributed the onset or aggravation of her shoulder injury. This
foundation for her expert's testimony, as well as the difference in the opinions
of the two medical experts, presented issues of credibility. The JOC's credibility
determinations, as well as his findings of fact, "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 . . . their credibility." Lindquist, 175 N.J. at 262 (quoting
Close, 44 N.J. at 599).
IV.
Petitioner last argues that the JOC's findings of fact are not grounded in
credible evidence, and his decision fails to sufficiently articulate the basis for
the factual and medical findings underlying his opinion. These arguments are
A-5917-17T2 22 belied by the record. The judgment was based on findings of fact which were
adequately supported by the evidence. R. 2:11-3(e)(1)(A). Petitioner's
arguments to the contrary are without sufficient merit to warrant further
discussion. R. 2:11-3(e)(1)(E).
Affirmed.
A-5917-17T2 23