Opinion
DOCKET NO. A-0723-16T3
02-21-2018
KOSTAS STAIKOS, Petitioner-Respondent/Cross-Appellant, v. FAIRVIEW BOARD OF EDUCATION, Respondent-Appellant/Cross-Respondent.
Randolph Brause argued the cause for appellant/cross-respondent (Leitner, Tort, DeFazio & Brause, PC, attorneys; Randolph Brause, on the briefs). John L. Schettino argued the cause for respondent/cross-appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. Before Judges Leone and Mawla. On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition No. 2012-7875. Randolph Brause argued the cause for appellant/cross-respondent (Leitner, Tort, DeFazio & Brause, PC, attorneys; Randolph Brause, on the briefs). John L. Schettino argued the cause for respondent/cross-appellant. PER CURIAM
Fairview Board of Education (Fairview) appeals from a September 30, 2016 order of the Division of Workers' Compensation, which granted Kostas Staikos medical and temporary disability benefits. We affirm.
The following facts are taken from the record. In 2009, Staikos injured his back, neck, and left shoulder shoveling snow while employed for Fairview. As a result, on May 13, 2010, Staikos had surgery on his lower back. A few months after the surgery, Staikos began to experience renewed pain in his lower back. He received physical therapy and epidural injections from his treating physician, Dr. Brian A. Cole.
On December 1, 2010, Staikos hurt his back, right knee, and neck in an auto accident. The following day, Staikos continued to experience pain and went to the emergency room. Following the December 2010 accident, Dr. Cole continued to treat Staikos, and the treatment included epidural injections.
In 2012, Staikos filed a claim petition for the 2009 incident alleging injuries to his neck, back, and left shoulder. Staikos was examined by Dr. Cheryl Wong and Dr. Theodora Maio in October 2011, and at the request of Fairview, by Dr. Barry A. Halejian in September 2011. All three doctors issued reports addressing Staikos' injuries and disability, for both the 2009 work-related accident, and the 2010 automobile accident.
In April 2014, the judge of compensation conducted a hearing to determine the extent and nature of Staikos' disability resulting from the 2009 accident. Staikos testified at the hearing and Dr. Maio's reports were submitted into evidence. The reports opined that "the motor vehicle accident had little, if any, impact on the patient's overall standing." Fairview's counsel represented to the judge that Fairview was aware of the automobile accident and had taken it into consideration in its decision to settle the claim. As a result, the judge adopted Dr. Maio's medical opinion and incorporated it in the judgment approving settlement finding Staikos sixty percent permanently disabled. The judge found Staikos' testimony and the medical reports demonstrated his present condition was causally related to the 2009 work-related accident.
In August and September 2014, Staikos submitted three requests for authorization to Fairview for additional medical treatment due to increasing pain in his lower back. Fairview did not respond. Therefore, Staikos filed a motion for medical and temporary benefits.
On October 28, 2015, the judge conducted a hearing on the motion. Staikos testified that a few months after his May 13, 2010 surgery, his back pain returned. Dr. Cole, who had been Staikos' treating physician and surgeon since the February 2009 work-related accident, also testified extensively regarding Staikos' symptoms, therapy, and treatment prior to and after the December 2010 automobile accident.
Specifically, Dr. Cole performed decompression surgery on May 13, 2010, and after Staikos continued to experience pain, he prescribed palliative treatment consisting of therapy and epidural injections. Dr. Cole's medical notes indicated Staikos was suffering from residual lumbar-radiculopathy-type symptoms and gave an assessment of lumbar radiculopathy. Dr. Cole testified that, prior to the automobile accident, he scheduled a second epidural injection, and anticipated Staikos would need a second surgery.
Dr. Cole noted there was no difference in Staikos' MRI studies before and after the automobile accident. Dr. Cole testified he reviewed all of the medical records from the 2010 automobile accident. He opined that Staikos' present condition and need for surgery was due to the 2009 work-related accident.
Dr. Halejian also testified. He stated he examined Staikos on more than one occasion, agreed that he required surgery, and believed his injuries were caused by the motor vehicle accident. Dr. Halejian testified he formed his opinion based on the treatment records from the motor vehicle accident.
The trial judge issued a decision awarding Staikos medical and temporary disability benefits. This appeal followed.
We begin with our standard of review. According to the Supreme Court:
[T]he standard to govern appellate intervention with respect [to workmens' compensation cases] is . . . "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."The factual findings of the compensation court are entitled to substantial deference." Ramos v. M&F Fashions, 154 N.J. 583, 594 (1998). "We may not substitute our own factfinding for that of the Judge of Compensation even if we were inclined to do so." Lombardo v. Revlon, Inc., 328 N.J. Super. 484, 488 (App. Div. 2000). Deference to findings of fact is owed so long as they "are supported by substantial credible evidence in the record as a whole and are not so wide of the mark as to be manifestly mistaken." Id. at 488.
[Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).]
The judge has "expertise with respect to weighing the testimony of competing medical experts and appraising the validity of [the petitioner's] compensation claim." Ramos, 154 N.J. at 598. "That [the judge gives] more weight to the opinion of one physician as opposed to the other provides no reason to reverse [a] judgment." Smith v. John L. Montgomery Nursing Home, 327 N.J. Super. 575, 579 (App. Div. 2000).
On appeal, Fairview contends the trial judge's opinion was conclusory, was not based upon the greater weight of the evidence, and instead placed undue weight on Dr. Cole's testimony. Fairview also argues "[e]ven if one accepts Dr. Cole's opinion that the motor vehicle accident did not change the underlying structural instability in [Staikos'] spine, [it] still does not mean that the accident did not aggravate, exacerbate, or accelerate [Staikos'] condition."
In his written opinion, the trial judge found the following:
There is no dispute that [Staikos] sustained serious back injuries in an admitted work-related accident in February, 2009, for which he previously underwent surgery. On this motion, the medical experts presented by both parties agree that more surgery is necessary. Accordingly, the sole issue is whether there is a causal relationship between [Staikos'] current need for surgery and his February, 2009 work injury. Dr. Cole, who has provided authorized treatment to [Staikos] since shortly after the work accident has opined that the current need for surgery is causally related to that accident. I found his testimony to be wholly credible and grounded in objective findings. His credibility was greatly enhanced by the level of familiarity that he has with [Staikos'] case based on his lengthy treating relationship during which he
operated on [Staikos]. In light of Dr. Cole's testimony and his admitted reports, I accord his opinion substantially more weight than that of Dr. Halejian. Although I have no reason to doubt Dr. Halejian's expertise or general credibility, I found his opinion to have a much less substantial basis in fact. Specifically, he changed his initial opinion on causation based on his review of the records of other providers who treated [Staikos] through PIP after his automobile accident. In addition, I believe that Dr. Halejian's opinion relied too greatly on how [Staikos] described the motor vehicle accident to him, as opposed to any objective medical evidence regarding the condition of [Staikos'] back both before and after the motor vehicle accident. Dr. Halejian was admittedly aware throughout that [Staikos] had been in a motor vehicle accident and had received treatment through PIP. If he initially believed that [Staikos'] condition was work-related, I am not convinced that reviewing another provider's records should realistically change that opinion.
"It is generally recognized that a treating physician is in a better position to express an opinion as to cause and effect than one making an examination in order to give expert medical testimony." De Vito v. Mullen's Roofing Co., 72 N.J. Super. 233, 236 (App. Div. 1962) (citing Bober v. Indep. Planting Corp., 28 N.J. 160, 167 (1958)). Here, considering the evidence presented, the findings made by the judge were not an abuse of discretion. There is sufficient credible evidence to support the judge's decision, which was certainly not conclusory.
As we noted, the trial record contains ample evidence to demonstrate the judge's reasons for crediting Dr. Cole's testimony over Dr. Halejian's was not an abuse of discretion. The judge explained his reasons for accepting Dr. Cole's opinion as a treating physician, and stated why he found Dr. Halejian's opinion lacked credibility. Given the weight of the adequate credible evidence in the record, we do not have a basis to second guess the trial judge's determination.
Lastly, because we have concluded the judge's opinion is sound, we do not reach Staikos' argument on cross-appeal that the April 2012 settlement is a res judicata bar to Fairview's ability to contest the nature of Staikos' injuries. The judge, appropriately so, did not rely upon the doctrine and made his determination following a hearing on the merits.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION