                        NOT FOR PUBLICATION WITHOUT THE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-4867-15T3

ANDREA ELIAS,

        Petitioner-Respondent,

v.

LIFE CARE SERVICES, d/b/a
HARROGATE,

     Respondent-Appellant.
_______________________________

               Argued September 25, 2017 – Decided October 11, 2017

               Before Judges Sabatino and Whipple.

               On appeal from the New Jersey Department of
               Labor and Workforce Development, Division of
               Workers' Compensation, Claim Petition No.
               2011-4216.

               Anne M. Hammill-Pasqua argued the cause for
               appellant   (Capehart   &   Scatchard,  PA,
               attorneys; Jammie Jackson and Stephen T.
               Fannon, on the briefs).

               Christopher R. Shea argued the cause                for
               respondent (R.C. Shea & Associates,                 PC,
               attorneys; Mr. Shea, on the brief).

PER CURIAM

        Life   Care   Services,     doing    business    as   Harrogate     ("Life

Care"), appeals a June 30, 2016 order of the Division of Workers'
Compensation granting petitioner Andrea Elias certain additional

temporary disability benefits and awarding her a penalty and

counsel fees.         Life Care contends that the compensation judge's

rulings are erroneous in numerous aspects.                     We disagree, and

affirm.

      Elias worked as a home health aide for Life Care. She injured

her   lower    back    on   December   3,     2010,    while   getting   up   after

showering a patient.

      After the accident, various diagnostic tests and epidural

injections were administered and Elias submitted to a functional

capacity examination.         The testing showed that Elias had suffered

certain lumbar injuries, but that she would still be able to

perform light duties.         Meanwhile, Life Care terminated Elias and

did not offer her a light duty position.                Elias retained counsel

and filed a claim for temporary disability and wage loss benefits

under the Workers' Compensation Act, N.J.S.A. 34:15-1 to -142.

      The matter originally settled on June 22, 2012, with an order

issued    by    Compensation      Judge       Eugene    Mulvaney    approving     a

settlement that awarded Elias 20% of permanent partial total

disability for residuals of lumbar sprain and strain, subject to

a 5% credit to the employer for her prior functional loss.                      The

parties stipulated at that time to a compromised average weekly

wage rate of $345 and a compensation rate of $241.50 a week.

                                          2                               A-4867-15T3
       Elias   made   attempts    to   return     to   work   without   success,

including working part time as a cashier twenty-six hours a week

for about six months through December 2011. That job ended because

she was unable to endure the back pain.

       Because Elias' pain had increased significantly in intensity

and duration, she moved to reopen her claim.                    Ultimately she

underwent an L5-S1 spinal decompression and fusion surgery with

Dr. Ramil S. Bhatnagar on January 29, 2014.             On July 11, 2014, Dr.

Bhatnagar      concluded   that   Elias     had    reached    maximum    medical

improvement, although he did acknowledge she had a permanent

restriction of lifting no more than ten pounds.                 He also relied

on a functional capacity evaluation, which concluded that she

performed all the protocols "with significant submaximal effort."

       Another examining physician, Dr. Robert R. Bachman, likewise

opined that Elias remained at maximum medical improvement.                 Elias

was also examined by another physician, Dr. Cary Skolnick, who

diagnosed a decrease in Elias's range of spinal motion to about

55%.   Dr. Skolnick found a "material lessening" of Elias's working

ability.       He did not comment on the issue of maximum medical

improvement.

       Elias sought another medical opinion.              An orthopedist, Dr.

Jason Cohen, evaluated her for that purpose.             Dr. Cohen found that

the fusion surgery had not been entirely successful in that the

                                        3                                A-4867-15T3
bone around the discs had not completely fused.              He disagreed with

Dr. Bhatnagar's conclusion that plaintiff had reached maximum

medical    improvement.     Dr.     Cohen     recommended    more   treatments,

including    epidural     steroid       injections,    a    facet   block,    and

radiofrequency denervation.

     The    reopened    matter    was    presented    to   Compensation      Judge

Salvatore Martino. Judge Martino was dissatisfied with the clarity

of the medical evidence provided on the papers, and asked that Dr.

Cohen be made available to testify via a telephonic conference.

Dr. Cohen thereafter provided that testimony, without objection

by Life Care's trial counsel.                The expert generally supported

Elias' contentions that she was still having problems stemming

from the lower back injury.

     Meanwhile, Elias again attempted to obtain employment.                   She

worked briefly as a cook at a banquet hall for about two weeks,

but left the position because she could not handle the lifting

duties imposed by the chef.

     On June 14, 2016, Judge Martino issued a ten-page opinion

awarding Elias additional temporary disability benefits for the

timeframe of July 11, 2014 to June 14, 2016, which results in a

total computed benefit of $24,322.50.

     Judge Martino specifically found that plaintiff's testimony

at the reopened hearing was credible and "inherently believable."

                                         4                              A-4867-15T3
He concluded that Dr. Bhatnagar's finding in July 2012 that Elias

had reached maximum medical improvement was "premature."                         In

addition, Judge Martino imposed on Life Care a 25% penalty because

of what he determined to be its "unreasonable and negligent delay"

in failing to provide benefits to Elias sooner.                 The judge also

assessed a 20% attorneys' fee pursuant to the statute.

      Life Care demanded a hearing on the claimant's proposed form

of   order    because   it     wanted   to   get   full   credit,   against    the

temporary disability award, for two "voluntary tenders" it made

to Elias, each in the amount of $6,360.               Judge Martino rejected

the employer's argument that these voluntary tenders should be

offset against Elias' temporary award, which would still allow

that to be offset against any enhanced permanent award she may

receive in additional proceedings.1

      On     appeal,    Life    Care    raises     several   arguments,     which

primarily are as follows:          (1) Elias failed to meet her burden of

proof at the reopened hearing, and it was improper for Judge

Martino to call Dr. Cohen sua sponte as a witness to help Elias

bolster her case; (2) the judge erred in concluding from the

evidence that Elias had not reached maximum medical improvement;

(3) the judge misapplied Cunningham v. Atlantic States Cast Iron


1
  At oral argument on appeal, counsel acknowledged that further
proceedings to reopen a permanent award are anticipated.

                                         5                                A-4867-15T3
Pipe Co., 386 N.J. Super. 423 (App. Div. 2006), in providing Elias

with wage loss benefits because she did not sufficiently attempt

to find work; and (4) the judge's imposition of the penalty and

attorneys' fees was unjustified.           Having duly considered these and

Life Care's other arguments, we decline to set aside any of the

judge's rulings.

     Our scope of review of a compensation court's decisions is

limited.    In general, we consider whether the findings made by the

judge of compensation "'could reasonably have been reached on

sufficient credible evidence'" in the record, "considering 'the

proofs as a whole,'" giving due regard to the judge's opportunity

to   observe    and    hear    the   witnesses    and   to   evaluate     their

credibility, and to the judge's expertise in the field of workers'

compensation.     Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)

(quoting State v. Johnson, 42 N.J. 146, 162 (1964)); see also

Brock v. Pub. Serv. Elec. & Gas Co., 149 N.J. 378, 383 (1997);

Perez v. Capitol Ornamental, Concrete Specialties, Inc., 288 N.J.

Super. 359, 367 (App. Div. 1996).

     Further, a reviewing court must defer to the findings of

credibility made by a judge of compensation, as well as to the

judge's    expertise    in    analyzing    medical   testimony.    Kaneh       v.

Sunshine Biscuits, 321 N.J. Super. 507, 511 (App. Div. 1999); see

also Kovach v. Gen. Motors Corp., 151 N.J. Super. 546, 549 (App.

                                       6                                A-4867-15T3
Div. 1978) ("It must be kept in mind that judges of compensation

are regarded as experts."). In the presence of sufficient credible

evidence, a compensation judge's findings of fact are binding on

appeal, and those findings must be upheld "even if the court

believes that it would have reached a different result."     Sager

v. O.A. Peterson Constr., Co., 182 N.J. 156, 164 (2004) (citations

omitted).

     Viewed through this prism of review, we conclude that the

compensation judge's rulings in this case were legally sound and

are amply supported by the record.   We only briefly comment on a

few of the main points presented by Life Care.

     Life Care argues in its brief that the compensation judge

unfairly elicited testimony from Dr. Cohen, and unduly relied on

that testimony.    As we have already noted, and as the judge

underscored in his July 14, 2016 letter submitted pursuant to Rule

2:5-1(b), Life Care's trial counsel failed to object to the record

being reopened to allow for Dr. Cohen's testimony.    We need not

reach Life Care's claim of error on that score, which was not

raised below.   Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234

(1973).

     Even if we did reach the issue, the judge had clear authority

and justification to request Dr. Cohen's testimonial clarification

of the findings contained in his written reports.    Handleman v.

                                7                          A-4867-15T3
Marwen Stores Corp., 53 N.J. 404, 411 (1969) (confirming the

"inherent power" of a compensation judge to call and examine expert

witnesses who, in the judge's "sound judgment," he or she "deems

. . . necessary for a proper determination of the case"); see also

N.J.R.E. 614 (analogously recognizing that authority of a judge

in Superior Court cases).            The judge also had the prerogative as

fact-finder to consider Dr. Cohen more credible than Dr. Bhatnagar

concerning Elias' post-surgical medical progress, even though the

latter physician had performed the surgery.                  See Ramos v. M&F

Fashions, Inc., 154 N.J. 583, 594 (1998).

      We     are    unpersuaded      by    Life   Care's   argument   that   the

compensation judge misapplied the principles of Cunningham, supra,

386   N.J.    Super.     at   432,   respecting     a   workers'   compensation

petitioner's ability to be employed.               In Cunningham, an employee

suffered a compensable injury, but later returned to work and was

terminated due to excessive absences unrelated to his injury.                Id.

at 424-27.         After his termination, Cunningham received treatment

from a doctor who concluded he could not work due to his work-

related injury.        Id. at 426.        Cunningham then filed for benefits.

Ibid.   However, because he had already been terminated, due to his

absenteeism, he suffered no actual loss of wages from his employer.

Id. at 428.        Consequently, Cunningham needed to show that he would

have been working elsewhere, but for the injury.                   Id. at 432.

                                            8                           A-4867-15T3
Because of the novelty of the legal issue, we remanded the case

to afford Cunningham an opportunity to present such other proofs

of actual wage loss.          Id. at 433-34.

       Here, Life Care contends that Elias has not shown any actual

wage   loss,   and   therefore     is   precluded    under   Cunningham      from

obtaining benefits.           Life Care overlooks, however, a critical

factual distinction that sets this case apart from Cunningham.

Elias, unlike Cunningham, was terminated by her employer for a

benign reason, and not because of any misconduct on her part.                 She

lost her job because of the very work-related injury that underlies

her claim.

       Life Care asserts that Elias should be denied benefits because

she    has   not   made   a    sufficiently     diligent   effort   to    obtain

replacement work.         The compensation judge had ample grounds to

reject that assertion.          The judge, who explicitly found Elias to

be a credible witness, accepted her explanation that she could not

obtain other cashier jobs because it was too uncomfortable to sit

and stand for long periods of time.            Elias also credibly testified

that she was impeded in finding other suitable work due to her

medically-imposed lifting restrictions.             The record exhibits the

good faith attempts by Elias to work despite her pain, first as a

cashier, and later as a cook.            In sum, the record sufficiently

supports the judge's assessment that Elias was available and

                                        9                                A-4867-15T3
willing to work, and that she would have been working but for her

disability.

     The balance of Life Care's arguments, including but not

limited to its claims that the 25% penalty and attorneys' fees the

judge imposed are unjustified, lack sufficient merit to warrant

discussion.   R. 2:11-3(e)(1)(D),(E).

     Affirmed.




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