                                NOT FOR PUBLICATION WITHOUT THE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.

                                        A.

      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.




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                                   23
