                         NOT FOR PUBLICATION WITHOUT THE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-3392-15T1
THOMAS VAN ARTSDALEN,

        Petitioner-Respondent,

v.

FRED M. SCHIAVONE
CONSTRUCTION,

        Respondent-Appellant.

___________________________________

              Submitted September 6, 2017 – Decided October 5, 2017

              Before Judges Rothstadt and Vernoia.

              On appeal from the Department of Labor and
              Workforce Development, Division of Workers'
              Compensation, Claim Petition No. 2013-24264.

              Law Offices of Styliades and Jackson,
              attorneys for appellant (Timothy J. Mello,
              on the brief).

              Petro Cohen Petro Matarazzo, PC, attorneys
              for respondent (Steven S. Lubcher, on the
              brief).

PER CURIAM

        In   this      workers'    compensation      matter,     the    employer,

respondent      Fred    M.   Schiavone    Construction,      appeals    from       the

court's March 10, 2016 judgment finding its employee, petitioner
Thomas Van Artsdalen, 47.5% permanently partially disabled as a

result of a compensable injury.        On appeal, Schiavone contends

that the judge's findings about Van Artsdalen's work history and

his injuries being inoperable were not supported by "substantial

evidence in the record."     It also contends the judge's assessment

that Van Artsdalen suffered a 47.5% permanent partial disability

constituted an abuse of her discretion because he could perform

his daily activities, had conservative treatment and does not

complain about his pain.

     The   judge   of   compensation   made   her   determination   after

conducting a trial at which Van Artsdalen was the only witness as

the parties agreed to the court's consideration of their experts'

reports in lieu of testimony.      The parties also stipulated that

Van Artsdalen suffered a compensable injury on January 26, 2012,

when he fell while he was at work as a carpenter and carrying

sixty to seventy pounds of plywood.

     Prior to the incident, Van Artsdalen, who was fifty-three

years old at the time, worked as a union carpenter for thirty-four

years, spending most of that time working for Schiavone.            Dating

back to 1992, Van Artsdalen was treated for lower back discomfort

for a few weeks by a chiropractor, and he suffered some symptoms

of minor lower back discomfort again in 2008, but otherwise he had

not experienced any persistent problems prior to his fall.

                                   2                            A-3392-15T1
     Despite his fall on January 26, 2012, and the related pain,

Van Artsdalen completed his workday.    He consulted with a doctor

after work and again two days after the fall.      He attempted to

return to work the day after the incident, but there were no work

assignments available.   When he did go back to work on January 30,

2012, he could not finish his shift due to his lower back pain.

     In February 2012, Schiavone sent Van Artsdalen for medical

treatment for his lower back.    The following month, he underwent

an MRI and was prescribed physical therapy and pain management.

Van Artsdalen continued treatment through May 5, 2012, when he was

cleared to return to work.   Despite being cleared, Van Artsdalen

did not return to work until July 12, 2012, due to the lack of

available job assignments.      He worked from July 2012 through

September 2013, when he retired because he could no longer endure

the pain.

     Van Artsdalen underwent an additional MRI in 2013 and was

evaluated by another physician who confirmed his continuing pain

was due to his January 2012 injury.    After he filed his petition

for compensation benefits, Van Artsdalen resumed treatment with

the same physician that Schiavone had sent him to in 2012.        He

received an additional MRI and more pain management, including an

epidural injection.   The treatment terminated in September 2014

and he never sought any additional treatment.

                                 3                         A-3392-15T1
      Van Artsdalen testified about his pain and the limitations

caused by his injury.        He stated that he had difficulty lifting

things, and suffered pain when he bent over while getting dressed

or performing household chores.           He described how he was subject

to   the   sudden   onset   of   sharp,    stabbing   pain   that   throbbed,

especially in his groin area.        He treated his pain with over-the-

counter medications and ice.         Van Artsdalen testified that his

pain at times interfered with his ability to sleep and prevented

him from lifting heavier objects.          Despite his pain, Van Artsdalen

stated he was able to perform his daily activities that included

household chores and transporting his grandchild to and from

school.

      In pursuit of his workers' compensation claim, Van Artsdalen

was evaluated by two medical experts who issued reports about his

injury and level of disability.           Van Artsdalen's expert, Dr. John

L. Gaffney, found that Van Artsdalen sustained a 52.5% permanent

partial disability.         Schiavone's expert, Dr. Mark E. Maletsky

disagreed and found that Van Artsdalen experienced only a 2%

permanent partial disability.         The experts based their opinions

on their examination of Van Artsdalen, his reported history of his

injury, treatment and current level of pain, medical records of

his treatment and diagnostic imaging.



                                      4                              A-3392-15T1
      After considering the evidence, the judge of compensation

placed her decision on the record, which she later amplified in a

written statement filed under Rule 2:5-1.        In her oral decision,

the judge considered the medical reports and found Schiavone's

expert to be less credible than Van Artsdalen's and rejected his

opinion as to the degree of permanent partial disability.              The

judge found Maletsky's assessment of Van Artsdalen to be "not in

line with the treatment, the loss of employment, the length of

time [Van Artsdalen] was out of work and the diagnostic studies."

Although the judge determined that Gaffney was more credible, she

also "disregard[ed] his estimate of permanent partial disability."

The judge found Van Artsdalen to be credible and found that he

suffered a 47.5% permanent partial disability.

      The judge of compensation entered judgment on March 10, 2016,

and Schiavone filed its appeal.      On June 7, 2016, the judge issued

her   written   amplification   of   her   reasons.   In   her   detailed

statement, the judge began by noting Van Artsdalen's lengthy work

history and his lack of any prior "significant back injury or

extensive back care" during that time.         She described how after

the injury he was forced to miss work despite his attempts to

"return to full time employment."          She found the fact that Van

Artsdalen did not try to claim that he was totally disabled added

to her finding that his testimony was credible, as did his "stoic-

                                     5                           A-3392-15T1
ness, forthrightness . . . [and] his desire to return to the only

employment that he has ever known."

     The judge described in detail the diagnostic imaging results

that depicted injuries to various levels of Van Artsdalen's spine,

recognized he did not have any surgery, and concluded the injuries

were "inoperable [as n]o surgical intervention was available to

relieve [Van Artsdalen's] pain due to the multiple levels and type

of . . . disc pathology."      She also stated that Van Artsdalen

"simply was inoperable due to his condition of multiple levels

impeded in [his] lumbar spine.      Therefore, his disability rating

is construed as worse than one who could obtain relief from a

procedure or operation."

     Addressing    the   experts'   reports,   the   judge   described

Gaffney's findings about Van Artsdalen's pain, the ineffectiveness

of the epidural injections, and the doctor's conclusions that Van

Artsdalen suffered from "chronic pain and lumbar fibromyositis

syndrome" and that Van Artsdalen's injuries caused "restriction

of function."     The judge concluded that Gaffney's findings were

consistent with his examination of Van Artsdalen and the diagnostic

studies.   She stated "it was understood that surgery could not be

wisely undertaken in [Van Artsdalen's] condition to obtain an

optimum result bettering his condition."



                                    6                         A-3392-15T1
     Turning to Maletsky's report, the judge stated that the report

was not as credible as Gaffney's, finding Maletsky's rejection of

Van Artsdalen's inability to return to work "when he worked his

entire    life   with     few   out    days"   and   Maletsky's    reliance     on

insignificant x-rays from 2008 undermined his credibility.                    The

judge also observed that Maletsky "not signify[ing] the extent of

the diagnostics and the effect of the multiple layers of discs now

impaired . . . . discount[ed] [his] . . . understanding of [Van

Artsdalen's] injuries and his permanent disability."                   She also

found that Maletsky did not "adequately address [Van Artsdalen's]

increased    symptomology       as     being   related   to   [the]   last   work

incident."

     In conclusion, the judge "disregarded the numbers of both

doctors     to   assess    [Van       Artsdalen's]   significant      permanency

impairment and loss of functionality."               In reaching her finding

of 47.5% permanent partial disability, the judge relied upon Van

Artsdalen's testimony, the doctor's examinations and the objective

evidence of his injuries.            She stated:

            The court does find that the progression of
            substantial injuries to [Van Artsdalen] and
            the multiple levels of disc pathology, along
            with the inability to operate on his lumbar
            spine condition resulted in his current
            symptomology resulting in a 471/2% permanent
            partial disability award. Specifically, for
            the orthopedic and neurologic residuals of the
            lumbar   spine   for  right   foraminal   disc

                                          7                             A-3392-15T1
            protrusion at L1-2; bulging disc at L2-3 and
            L3-4 with disc material bulging into the
            foraminal    regions    bilaterally,     right
            paracentral disc protrusion at L4-5 with disc
            bulge at L4-5 and bulging disc at L5-S1 status
            post   spinal   injection    with   persistent
            radiculopathy and chronic pain.

      On appeal, Schiavone contends the judge's findings regarding

Van Artsdalen's work history–—that he worked for that length of

time without missing many days–—and Van Artsdalen's injury being

inoperable were important to her conclusion but unsupported by the

evidence.    It also argues that the judge's determination of 47.5%

permanent partial disability was similarly unfounded because Van

Artsdalen stopped receiving treatment in 2014, does not take daily

pain medications, is not under any restrictions, and "[n]one of

the physicians, the treating physicians . . . or either parties[']

medical expert, found that [Van Artsdalen] was in need of a

surgical consult or surgery."

      Our review of decisions in workers' compensation cases is

"limited to whether the findings made could have been reached on

sufficient credible evidence present in the record . . . with due

regard also to the agency's expertise." Hersh v. Cty. of Morris,

217 N.J. 236, 242 (2014) (alteration in original) (quoting Sager

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

Renner v. AT&T, 218 N.J. 435, 448 (2014), and "to the opportunity

of   the   one   who   heard   the   witnesses   to   judge   .   .   .   their

                                       8                              A-3392-15T1
credibility."       Lindquist v. City of Jersey City Fire Dep't, 175

N.J. 244, 260 (2003) (quoting Reinhart v. E.I. Dupont De Nemours,

147 N.J. 156, 163-64 (1996)).            We give those factual findings

"substantial deference."       Bellino v. Verizon Wireless, 435 N.J.

Super. 85, 94 (App. Div. 2014) (citing Ramos v. M & F Fashions,

Inc., 154 N.J. 583, 594 (1998)).          "We may not substitute our own

factfinding for that of the [j]udge of [c]ompensation even if we

were inclined to do so."      Ibid. (alterations in original) (quoting

Lombardo v. Revlon, Inc., 328 N.J. Super. 484, 488 (App. Div.

2000)).     Deference must be accorded "unless . . . 'manifestly

unsupported    by    or   inconsistent    with    competent     relevant    and

reasonably    credible    evidence   as   to     offend   the   interests    of

justice.'"      Ibid. (quoting Lindquist, supra, 175 N.J. at 262

(2003)).    Where "[i]t is the legal consequences flowing from those

facts that form the basis of [the] appeal[, w]e owe no particular

deference to the judge of compensation's interpretation of the

law."     Sexton v. Cty. of Cumberland/Cumberland Manor, 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)).

     A compensation judge is considered to have expertise in

weighing the testimony of competing experts and assessing the

validity of the claim.       Ramos, supra, 154 N.J. at 598.        The judge

is "not bound by the conclusional opinions of any one or more, or

                                     9                               A-3392-15T1
all of the medical experts."       Bellino, supra, 435 N.J. Super. at

95 (quoting Kaneh v. Sunshine Biscuits, 321 N.J. Super. 507, 511

(App. Div. 1999)).      We will not reverse a judgment simply because

the judge gave more weight to the opinion of one physician over

the other.     Smith v. John L. Montgomery Nursing Home, 327 N.J.

Super. 575, 579 (App. Div. 2000).

      Applying these standards, and based upon our careful review

of the record and applicable legal principles, we are constrained

to vacate the judgement and remand for reconsideration as we

conclude there was no evidence to support the findings that Van

Artsdalen's injury was inoperable or that he took few days off

during his years of employment.      While these findings were central

to the judge of compensation's decision, as demonstrated by her

conclusion that Van Artsdalen's "disability rating is construed

as   worse"   because   his   injuries   were   inoperable,   neither   Van

Artsdalen nor the experts stated these facts or opinions, nor was

there any other evidence presented from which the judge could have

logically inferred them.

      Judgement vacated and remanded for reconsideration.            We do

not retain jurisdiction.




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