                        NOT FOR PUBLICATION WITHOUT THE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-2075-15T4


W.A. HARRIS,

        Petitioner-Respondent,

v.

LOURDES MEDICAL CENTER OF BURLINGTON,

        Respondent-Appellant.


              Submitted July 12, 2017 – Decided August 3, 2017

              Before Judges Simonelli and Carroll.

              On appeal from the Department of Labor and
              Workforce Development, Division of Workers'
              Compensation, Case No. 2005-25400.

              Marshall Dennehey Warner Coleman & Goggin,
              attorneys for appellant (Robert J. Fitzgerald,
              Jammie N. Jackson, and Walter F. Kawalec, III,
              on the brief).

              Taylor   &   Boguski,  LLC,   attorneys   for
              respondent (Gary W. Boguski, on the brief).

PER CURIAM

        Respondent Lourdes Medical Center of Burlington appeals the

December 14, 2015 order of the Division of Workers' Compensation

granting petitioner W.A. Harris's motion for medical treatment
benefits.      Because   the   decision   by   the   Judge   of   Workers'

Compensation (JWC) is supported by sufficient credible evidence

in the record, we affirm.

     Petitioner was employed by respondent as a security guard

when, on April 9, 2004, he suffered a work-related injury to his

right thumb. Petitioner filed a claim for benefits that culminated

in the entry of an October 25, 2007 order approving a settlement

for permanency benefits.       Consequently, petitioner was awarded

five percent of the statutory right hand for orthopedic residuals

of a sprain and strain of the thumb with pain and weakness into

his right hand.

     Petitioner filed his first application for review of the

October 25, 2007 award on June 22, 2009.             He was thereafter

examined by various medical experts retained by both parties.

Additionally, on April 6, 2012, petitioner consulted and began

treating with Raymond Ragland III, M.D.        Dr. Ragland compared X-

rays he took that day with earlier X-rays taken in 2005, and noted

advanced arthrosis of the right thumb metacarpophalangeal (MP)

joint and moderate arthrosis of the right thumb carpometacarpal

(CMC) joint.      Dr. Ragland administered cortisone injections to

both thumb joints and provided petitioner with a thumb splint.

However, petitioner continued to experience recurrent discomfort

at the right thumb CMC joint.     As a result, three weeks later, Dr.

                                    2                              A-2075-15T4
Ragland recommended that petitioner undergo a "right thumb CMC

arthrodesis using Acutrak screw."

     Respondent's      experts     disputed       petitioner's        need     for

additional   medical     treatment.       Thus,    on   January   30,        2014,

petitioner filed a motion seeking to compel respondent to pay the

cost of further treatment for his right hand.

     The JWC conducted an evidentiary hearing on the motion over

three non-consecutive days from November 10, 2014, through March

16, 2015.      At the hearing, petitioner testified that he has

experienced increased pain in his right hand since the claim was

initially settled in 2007.       He described the pain as "very sharp,"

and stated he now wore a brace on his hand as prescribed by Dr.

Ragland.     The   JWC   viewed    petitioner's      hands,     and    observed

"substantial swelling" in the area of petitioner's right thumb.

     Dr. John L. Gaffney, an orthopedist who is board-certified

in family medicine, testified on petitioner's behalf.                  Prior to

testifying, Dr. Gaffney reviewed petitioner's medical records,

including the reports of the treating physician, Dr. Ragland, and

respondent's    expert   orthopedist,     Dr.     Elliot   L.   Ames.         Upon

examination, Dr. Gaffney found swelling in petitioner's right

thumb and no range of motion in his right thumb region.                      After

comparing X-rays of petitioner's right thumb taken in 2004, 2005,

and 2012, Dr. Gaffney noted increased, significant arthritis in

                                      3                                  A-2075-15T4
the MP and CMC joints in the 2012 X-rays, consistent with Dr.

Ragland's findings.       In Dr. Gaffney's opinion,

           going back to [2004, petitioner] had a
           hyperextension . . . strain and sprain of the
           thumb which led to an inflammatory process and
           injury to the joint of the thumb . . . which
           would lead to the early development of
           arthrosis or arthritis which has accelerated
           as a result of that injury over the course of
           the last several years to the point where he
           is extremely symptomatic and in need of
           treatment, as Dr. Ragland has stated in terms
           of an arthrodesis.

     Dr. Gaffney testified that he had referred patients to Dr.

Ames and Dr. Ragland and that both were well-respected hand

specialists.      He noted that, while both doctors agreed on a

diagnosis,     they    disagreed   as    to    whether     petitioner's    present

condition was causally related to his 2004 work injury.                    In this

case, Dr. Gaffney, relying on his "observation and research and

talking with the patient, [] agree[d] with Dr. Ragland's assessment

in terms of causality[,]" and concurred that the surgery Dr.

Ragland recommended would increase the functioning in petitioner's

right hand.

     Respondent's       expert,    Dr.       Ames,   is    board    certified     in

orthopedic surgery and specializes in hand surgery.                       Dr. Ames

evaluated petitioner in October 2011, and again in May 2014.

During   the    2011    examination,     Dr.    Ames      noted    petitioner   had

tenderness in his right thumb.           During testing to determine range

                                         4                                 A-2075-15T4
of motion, Dr. Ames was able to "move [petitioner's] thumb to an

additional [sixty-two] degrees and then was able to hold it there."

Dr.    Ames   concluded    that   petitioner     was    at     maximum    medical

improvement (MMI), and "[did not] recommend any treatment for the

right thumb causally related to the work accident of April 9,

2004."

       The May 2014 evaluation did not alter Dr. Ames's opinion.

During that examination, petitioner complained of pain in his

right thumb, and Dr. Ames again noted tenderness in joints of the

thumb.    Although Dr. Ames now found petitioner "had very limited

range of motion of the end joint of his thumb," he stated that

petitioner only exerted "a submaximal effort" during the testing.

Dr. Ames described the CMC arthrodesis procedure recommended by

Dr. Ragland as "a fusion of a joint . . . you typically will remove

the . . . articular cartilage of the joint and then put the two

bones together and hold them together with either pins or a screw

or a plate[.]"    Based on his evaluation, Dr. Ames did not "see any

indication for surgery on that joint[,] whether an arthroplasty

or    arthrodesis."       He   opined:   "I   don't    think    there's    enough

arthritis in that joint to warrant an arthrodesis[,]" and that

performing the procedure would decrease the range of motion in

petitioner's thumb.



                                         5                                A-2075-15T4
    During   further   questioning   by   the   court,   the   following

colloquy ensued:

              THE COURT:    Doctor, your findings and
         examination in 2014 indicated the [p]etitioner
         is at MMI; is that correct?

               THE WITNESS:   Yes.

              THE COURT: You didn't indicate that he
         doesn't have a problem, you just felt that he
         did not need any additional treatment; is that
         correct?

               THE WITNESS: Yes.

               THE COURT: There is a problem there?

               THE WITNESS: He's reporting pain.

              THE COURT: So there is an issue and a
         problem there?

               THE WITNESS: Yes.

              THE COURT: In fact, on [p]age [six] of
         your 2014 report not only did you find
         prominence of the radial condyle, but you
         indicated that you found tenderness, it was
         tender at the sesamoid and A1 pulley of the
         right thumb and there was tenderness in the
         first dorsal compartment and so forth. So you
         did find an issue?

               THE WITNESS: Yes.

              THE COURT: So this disagreement is
         basically between you and Dr. Gaffney and Dr.
         Ragland as to whether or not treatment should
         or should not be rendered?

               THE WITNESS: Yes.



                                 6                               A-2075-15T4
      After summarizing the procedural history and the testimony

and   evidence   presented,       the    judge    began    his    findings       with

petitioner,    who   he   deemed    "very       credible."       The   JWC     found

petitioner's "complaints were compatible and consistent with the

injury, and the injury that was subsequently acknowledged and

accepted as compensable by [] [r]espondent [is] an injury for

which they paid a permanent award."

      In his comprehensive oral decision, the JWC rejected Dr.

Ames's testimony.     The judge found the findings of Dr. Ragland,

as adopted by Dr. Gaffney, "are more compatible with the injury

and the credible complaints of the [p]etitioner.                  Although[] Dr.

Ragland was not an authorized doctor, the [r]espondent's doctor,

he nonetheless was an expert treating doctor.                      Ordinarily, a

treating   doctor    is   given    greater       weight    as    compared     to    an

evaluating    doctor."     The     JWC       entered   a   memorializing       order

providing for the requested treatment, and designated Dr. Ragland

as the authorized physician to treat petitioner.

      Respondent appeals, raising the following issues for our

review:

           Issue I: Standard of Review.

           Issue II: The Court Erred in Finding That []
           Petitioner Sustained His Burden Of Proving
           That Any Current Need For Treatment Was
           Causally Related To The April 9, 2004 Work
           Accident.

                                         7                                   A-2075-15T4
          Issue III: The Court Erred in Finding That []
          Petitioner Proved That The Treatment Requested
          Would Be Necessary To Cure And Relieve His
          Current Condition.

          Issue IV: The Court Erred When It Failed To
          Give Dr. Ames Expert Opinions Greater Weight
          Than The Opinions Of Petitioner's Expert Dr.
          Gaffney.

          Issue V: The Court Erred When It Relied On The
          Net Opinion Of Dr. Ragland Who Did Not Testify
          Before The Court.

          Issue VI: The Court Erred In Failing To Uphold
          The Opinions Of Dr. Ames The Court Ordered
          Evaluator As To The Need For Treatment And
          Causal Relationship.

          Issue VII[:] The Court Erred In Deeming Dr.
          Ragland A Treating Physician And Giving His
          Opinions Greater Weight.

We reject these arguments as unpersuasive.

     Our review of workers' compensation cases is limited.     Hersh

v. Cty. of Morris, 217 N.J. 236, 242-43 (2014).   We must determine

          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 and, in the case
          of agency review, with due regard also to the
          agency's expertise where such expertise is a
          pertinent factor.

          [Sager v. O.A. Peterson Constr. Co., 182 N.J.
          156, 164 (2004) (quoting Close v. Kordulak
          Bros., 44 N.J. 589, 599 (1965)).]




                                8                            A-2075-15T4
      We may not substitute our own factfinding for that of the

judge of compensation.        Lombardo v. Revlon, Inc., 328 N.J. Super.

484, 488 (App. Div. 2000).          We must defer to the factual findings

and legal determinations made by the judge of compensation "unless

they are 'manifestly unsupported by or inconsistent with competent

relevant     and    reasonably     credible       evidence    as   to   offend    the

interests of justice.'"            Lindquist v. City of Jersey City Fire

Dep't, 175 N.J. 244, 262 (2003) (quoting Perez v. Monmouth Cable

Vision, 278 N.J. Super. 275, 282 (App. Div. 1994), certif. denied,

140 N.J. 277 (1995)).        We will "appraise the record as if we were

deciding the matter at inception and make our own findings and

conclusions" only if the judge of compensation "went so wide of

the   mark   that    a   mistake    must       have   been   made[.]"     Manzo    v.

Amalgamated Indus. Union Local 76B, 241 N.J. Super. 604, 609 (App.

Div.), certif. denied, 122 N.J. 372 (1990) (citations omitted).

However, we afford no deference to a judge of compensation's

interpretation of the law and review legal questions de novo.

Renner v. AT&T, 218 N.J. 435, 448 (2014).

      Our highly deferential standard of review is of particular

significance in this case, where respondent's principal points of

error hinge on the JWC's decision to give greater weight to the

opinions of Dr. Gaffney and Dr. Ragland than to those of Dr. Ames.

Importantly, compensation judges have "expertise with respect to

                                           9                                A-2075-15T4
weighing the testimony of competing medical experts and appraising

the validity of [a petitioner's] compensation claim."             Ramos v. M

& F Fashions, 154 N.J. 583, 598 (1998).          In the end, a JWC has the

discretion to accept or reject expert testimony, in whole or in

part.   Kaneh v. Sunshine Biscuits, 321 N.J. Super. 507, 511 (App.

Div. 1999).

     Here, the JWC saw and heard the testimony of the competing

experts, and was in the best position to assess their demeanor and

credibility.       Sager, supra, 182 N.J. at 164, 166.        The JWC gave

several    valid    reasons   for   crediting   Dr.   Gaffney's   testimony,

including the fact that it coincided with Dr. Ragland's findings

as petitioner's treating physician.             Courts have stressed "the

greater opportunity of a treating physician, as compared with a

doctor who conducts a single examination in order to become an

expert medical witness, to know, understand and decide upon the

producing cause of the patient's condition."            Mernick v. Div. of

Motor Vehicles, 328 N.J. Super. 512, 522 (App. Div. 2000) (quoting

Bober v. Indep. Plating Corp., 28 N.J. 160, 167 (1958)).

     For the first time on appeal, respondent argues that Dr.

Ragland rendered a net opinion, and that the court erred in relying

upon it.     At the hearing, however, respondent consented to the

admission of Dr. Ragland's reports in evidence, and did not object

to them as an inadmissible net opinion, or on any other basis.              In

                                      10                             A-2075-15T4
conformity    with   general    principles    of   appellate    practice,     we

decline to address issues that were not presented to the workers'

compensation court.       See Nieder v. Royal Indem. Ins. Co., 62 N.J.

229, 234 (1973) (discussing the limited circumstances in which an

appellate court will consider an argument first raised on appeal).

Moreover,    "[t]rial    errors   which     were   induced,    encouraged     or

acquiesced in or consented to by defense counsel ordinarily are

not a basis for reversal on appeal."           State v. Harper, 128 N.J.

Super. 270, 277 (App. Div.), certif. denied, 65 N.J. 574 (1974).

       Respondent also contends that petitioner failed to prove

causation by the preponderance of the credible evidence. Causation

need not be proven to a certainty; rather, "all that is required

is that the claimed conclusion from the offered facts must be a

probable or more probable hypothesis."             Kiczula v. Am. Nat. Can

Co., 310 N.J. Super. 293, 303 (App. Div. 1998) (citations omitted).

Here, the compensation court credited Dr. Gaffney's testimony over

that of Dr. Ames, and found that petitioner's evidence established

both   his   injuries    and   their   causation   by   the    April   9,   2004

incident.    Because the compensation judge's "findings of fact are

supported by substantial credible evidence in the record and are

not so wide [of] the mark as to be manifestly mistaken," this

court must defer.       Tlumac v. High Bridge Stone, 187 N.J. 567, 573

(2006).

                                       11                              A-2075-15T4
    Respondent's remaining arguments, to the extent we have not

specifically addressed them, lack sufficient merit to warrant

discussion in a written opinion.   See R. 2:11-3(e)(1)(D) and (E).

    Affirmed.




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