                        NOT FOR PUBLICATION WITHOUT THE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-2859-16T1


DIANE LEBEDNIKAS,

        Petitioner-Appellant,

v.

ZALLIE SUPERMARKETS, INC.,
t/a SHOP RITE – LAUREL HILL,

     Respondent-Respondent.
________________________________

              Submitted July 9, 2018 – Decided July 24, 2018

              Before Judges Yannotti and Haas.

              On appeal from the New Jersey Department of
              Labor and Workforce Development, Division of
              Workers' Compensation, Claim Petition No.
              2014-28059.

              Lacovara & Burns, LLC, attorneys for appellant
              (Nicholas T. Lacovara, on the brief).

              Ann DeBellis, attorney for respondent (Ann
              DeBellis, of counsel; David P. Kendall, on the
              brief).

PER CURIAM
     Petitioner Diane Lebednikas appeals from an order entered by

the Division of Workers' Compensation (Division) dated January 27,

2017, which denied her motion for medical benefits. We affirm.

                                        I.

     In 2002, petitioner had a unicompartmental arthroplasty, or

partial replacement of the right knee, and in 2012, petitioner had

a total arthroplasty, or replacement of the left knee. On January

21, 2014, while employed by respondent in its deli department,

petitioner caught her foot on a floor tile and twisted her right

knee.    The    store's   surveillance       camera   recorded   the    incident.

Thereafter, petitioner had authorized treatment by Dr. Robert

Falconiero, D.O.

     In a report dated April 14, 2014, Dr. Falconiero provided a

diagnosis for petitioner, noting a contusion, possible loosening

of the partial replacement, degenerative arthritis, and vascular

calcifications of the right knee. Dr. Falconiero recommended that

petitioner return to the orthopedic surgeon who performed the

partial replacement, Dr. Steven H. Kahn.

     Dr. Kahn issued a report dated October 17, 2014, in which he

stated   x-rays     indicated   that    petitioner's      partial      right   knee

replacement was in a satisfactory position and there was no

fracture       in   the   prosthesis.    The     x-rays   also      showed     some

degenerative changes in the patellofemoral joint and the lateral

                                        2                                 A-2859-16T1
compartment. Dr. Kahn recommended a bone scan to ensure there was

no loosening of the prosthesis. He also recommended an MRI to

determine whether petitioner sustained any ligament injury as a

result of the January 21, 2014 incident.

    Dr. Kahn issued another report dated November 17, 2014. The

doctor noted that the recommended bone scan and MRI had been

performed. The bone scan showed an "increase[d] uptake," which

indicated a loosening of the partial right knee replacement. The

MRI showed some degenerative changes in the patellofemoral joint

medial compartment.

    Dr.      Kahn   stated        that       petitioner's     symptomatology      had

persisted despite the passage of time, physical therapy, anti-

inflammatories,     and     use    of    a    hinged   knee   brace.   The    doctor

recommended surgery to convert petitioner's loose right partial

knee replacement to a total replacement. He stated that within a

reasonable    degree   of    medical         probability,     the   conversion    was

needed as a result of the January 21, 2014 incident.

    Petitioner filed a motion with the Division seeking the

medical treatment that Dr. Kahn recommended. Respondent opposed

the motion. The judge of compensation thereafter conducted an

evidentiary hearing in the matter. The parties stipulated to the

admission of the surveillance video of the incident. Petitioner

testified that the video accurately depicted the incident.

                                             3                               A-2859-16T1
     Petitioner further testified that on January 21, 2014, while

working in respondent's deli department, she tripped, twisted her

body, hit a table, and "felt something pop" in her right knee.

Petitioner   said   that   since   that   time,   she   has   had    pain   and

"[p]opping" in her right knee, which has gotten worse.              Petitioner

stated that immediately prior to the incident, she was not being

treated for her right knee.

     In support of her motion, petitioner presented testimony from

Dr. Ralph G. Cataldo, D.O., who was qualified as an expert in

osteopathic medicine, with a subspecialty in workers' compensation

evaluations and pain management. Dr. Cataldo acknowledged that he

is not board certified in orthopedics, and does not perform

orthopedic surgery, such as knee replacements.

     Dr. Cataldo testified that he reviewed petitioner's treatment

records, the reports of the imaging studies of petitioner's right

knee, the post-accident bone scan, and the surveillance video of

the incident. He also examined petitioner.

     Dr. Cataldo stated that the bone scan showed "an increased

uptake" in the region of the partial knee replacement, which was

consistent with the loosening of her partial knee replacement. He

noted that the MRI of petitioner's right knee showed arthritis.

     Dr. Cataldo testified, however, that petitioner's arthritis

was not related to whether petitioner required a full right knee

                                     4                                 A-2859-16T1
replacement because petitioner had been "doing fine" until she

suffered the "twisting injury" on January 21, 2014. He testified

that petitioner needed the full knee replacement due to the January

21, 2014 incident.

     On cross-examination, Dr. Cataldo stated that he did not know

the type of device that was installed for petitioner's partial

knee replacement or how long such replacements last. Dr. Cataldo

noted that when he examined petitioner in August 2015, she was

sixty years old and would be considered obese. He acknowledged

that an individual's knee replacement could be affected by the

individual's obesity, the level of activity, and the pressure

placed on the knee.

     Dr. Richard DiVerniero testified for respondent. He is board

certified in orthopedic surgery. He has performed hundreds of knee

replacements,   including   fifty   revisions   of   partial    knee

replacements. After the January 21, 2014 incident, he treated

petitioner. He saw her on May 30, 2014, June 20, 2014, December

19, 2014, and April 7, 2015.

     Dr. DiVerniero noted that during his initial examination, he

found that petitioner had a palpable knee joint effusion or

swelling, but no warmth or redness. Petitioner had full extension

and could raise her leg without lag. Her terminal flexion was



                                5                           A-2859-16T1
about one hundred degrees. She also had patellofemoral and medial

joint line tenderness.

     Dr.   DiVerniero   testified   that   petitioner   had   a    "varus

posture." He explained that neutral posture is "straight," but

"varus posture" is "bowlegged" and "valgus posture" is "knock-

kneed." He stated that in joint replacements, doctors try to

achieve a "slight" valgus posture.

     Dr. DiVerniero said petitioner's varus posture indicated she

had "an issue" with her knee, but he found no appreciable laxity

or instability. Dr. DiVerniero diagnosed pain in petitioner's

joint and lower right leg, with localized osteoarthritis, which

is "the wearing of the cartilage surfaces within a joint."

     Dr. DiVerniero testified that he had reviewed the x-rays and

CT scan of petitioner's right knee, which were consistent with

wear in her partial knee replacement. He noted that the inside

portion of the replacement is made of polyethylene, which is a

"super type of plastic." Petitioner "had significant polyethylene

wear" that resulted in the varus deformity.

     Dr. DiVerniero stated that an x-ray from 2003 indicated that

petitioner required the partial knee replacement because at that

time only one compartment of her knee had shown wear. He testified

that by the time he examined petitioner in May 2014, she had

developed arthritis in the other two compartments of the right

                                    6                             A-2859-16T1
knee. This was one of the reasons petitioner needed a conversion

of the partial replacement to a total replacement.

     Dr. DiVerniero saw petitioner again in December 2014. He

noted an overall improvement in the condition of her knee. He said

that after the January 21, 2014 incident, petitioner had pain but

it was not agonizing pain. She continued to work and took anti-

inflammatory medications. The effusion had resolved, and she was

"back to her baseline."

     Dr. DiVerniero further testified that the MRI did not show

any evidence of a fracture or loosening of the prosthesis, but

showed effusion and degenerative changes in the knee. He explained

that the polyethylene in the prosthesis was producing particles,

which were like dust, and they were accumulating in the knee. This

was a "very inflammatory process" that "incites the body to attack

[the particles] as foreign material" and causes the effusion.

     Dr. DiVerniero opined that the January 21, 2014 incident did

not damage petitioner's partial knee replacement or cause the need

for additional treatment. He stated that petitioner required the

conversion to a full knee replacement before the incident. He said

the wear in the replacement was not due to a twisting injury.

     The doctor also stated that the wear occurred over twelve

years of normal functioning of the replacement, which generated

wear-debris particles that caused inflammation and effusion. He

                                7                          A-2859-16T1
explained that the twisting injury that occurred on January 21,

2014, could have aggravated petitioner's soft tissues, but it did

not "change the integrity of her components."

      On January 25, 2017, the compensation judge filed a written

opinion on petitioner's motion. The judge found Dr. DiVerniero's

expertise in the field of orthopedic surgery was superior to that

of   Dr.   Cataldo.   The   judge   noted   that   Dr.   DiVerniero   was    an

accomplished orthopedic surgeon, who had specialized knowledge in

knee pathology and its causes, and the types of surgery to address

those conditions. Dr. DiVerniero also had personal involvement in

petitioner's post-accident care.

      The judge found that Dr. DiVerniero's opinion on causation

was "more specialized, more credible and more persuasive than the

proofs offered by the petitioner." The judge determined that

petitioner had not carried her burden of proving that the need for

the total knee replacement surgery was causally related to her

January 21, 2014 incident. The judge filed an order dated January

25, 2017, denying petitioner's motion. This appeal followed.

                                     II.

      On appeal, petitioner argues that the compensation judge

erred by relying upon Dr. DiVerniero's testimony. He contends Dr.

DiVerniero's testimony was not competent and should have been

stricken.

                                      8                               A-2859-16T1
     "[T]he scope of appellate review of factual findings by a

judge of compensation is limited." Renner v. AT&T, 218 N.J. 435,

448 (2014) (citing Close v. Kordulak Bros., 44 N.J. 589, 599

(1965)). 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." Close, 44 N.J. at 599 (quoting

State v. Johnson, 42 N.J. 146, 162 (1964)). Moreover, we must

defer to the expertise of the compensation judges in addressing

issues   of   disability.    Perez    v.   Capitol   Ornamental,   Concrete

Specialities Inc., 288 N.J. Super. 359, 367 (App. Div. 1996)

(citing Lewicki v. N.J. Art Foundry, 88 N.J. 75, 88-90 (1981)).

     As stated previously, at the hearing on petitioner's motion,

Dr. DiVerniero testified that petitioner needed surgery to convert

her partial knee replacement to a total knee replacement, but the

conversion was not required due to the incident on January 21,

2014. The doctor testified that the conversion was required because

of wear in petitioner's polyethylene partial knee replacement and

the related progressive arthritis in the knee.

     As noted, Dr. Cataldo offered a contrary opinion, but the

judge found Dr. DiVerniero's opinion on causation was more credible

and persuasive. The judge stated:

                                      9                             A-2859-16T1
          Dr. DiVerniero's education, training and
          experience along with his very clear and
          detailed testimony clearly reveals that he is
          an accomplished orthopedic surgeon who has
          specialized knowledge with regard to knee
          pathology, the causes for such pathology and
          the types of surgery to address it. Dr.
          DiVerniero's   explanation  of   petitioner's
          treatment, his use of the anatomic model to
          describe   the   knee   condition   and   his
          explanation of the age-related breakdown of
          the prior, partial knee replacement hardware
          was credible and easy to understand.

     The judge noted that Dr. DiVerniero had been personally

involved in petitioner's post-accident care, and the doctor had

reviewed the imaging studies and bone scan. The judge found that

Dr. DiVerniero's expertise in orthopedic surgery was superior to

that of Dr. Cataldo. He noted that Dr. Cataldo seemed to concede

that point when he indicated that "a treating orthopedic surgeon

would generally be in a better position to comment on a patient's

condition than a doctor performing a one-time evaluation."

     We are convinced there is sufficient credible evidence in the

record   to   support   the   judge's   assessment   of   the   experts'

credentials and testimony. In this regard, we note that "in a

workers' compensation case, a treating physician is often in a

better position to express opinions as to cause and effect than

an expert who merely is examining the patient in order to give

expert testimony." Bird v. Somerset Hills Country Club, 309 N.J.



                                  10                             A-2859-16T1
Super. 517, 522-23 (App. Div. 1998) (citing Bober v. Indep. Plating

Corp., 28 N.J. 160, 167 (1958)).

     Furthermore,   Dr.   DiVerniero's   testimony   provided     ample

support for the judge's conclusion that while petitioner required

a total right knee replacement, this was not due to the January

21, 2014 incident but rather to the wear of petitioner's partial

knee replacement device and the related progressive arthritis in

her knee. The record supports the judge's determination that Dr.

DiVerniero's testimony on causation was more credible than Dr.

Cataldo's testimony.

                                III.

     Petitioner argues that the judge erred by accepting Dr.

DiVerniero's testimony because the doctor purportedly did not

understand the standard for admission of expert medical testimony.

He contends the doctor offered personal opinions, not opinions to

the "reasonable degree of medical probability." We disagree.

     During voir dire, petitioner's attorney asked Dr. DiVerniero

whether he understood "the standard that is typically expected of

a doctor to testify as an expert in [c]ourt." He replied, "Yes."

The doctor indicated he did not know what the standard is called,

and petitioner's attorney told him that the standard was "[a]

reasonable degree of medical certainty."



                                11                              A-2859-16T1
     Respondent's attorney objected to the question, and the judge

stated that the standard was one of probability, rather than

certainty. The judge asked the doctor whether his opinions and

diagnosis "will be to that standard." The doctor replied, "Yes."

     Petitioner's attorney asked Dr. DiVerniero to explain his

understanding   of   the   term   "a    reasonable    degree    of   medical

probability." The doctor replied that the phrase means that the

statement is truthful to "the best of [his] knowledge and ability."

     Petitioner's attorney then asked how that relates "to one's

belief in a medical condition or diagnosis?" The doctor responded

by stating that his opinions are based on his clinical experience,

as well as everything he has learned throughout his fifteen-year

career as an orthopedic surgeon, which included his courses in

medical school, day-to-day surgeries, and treatment of patients.

     Respondent's attorney also questioned Dr. DiVerniero during

voir dire. He asked the doctor whether he intended "to express any

opinions on the [s]tand that are not accepted generally by the

medical community and more specifically by the medical community

that [performs] orthopedic surgery." The doctor replied, "No."

     Petitioner's    attorney     moved    to   bar    Dr.     DiVerniero's

testimony, but the judge denied the motion. The judge noted that

Dr. DiVerniero was testifying as one of petitioner's treating

doctors. Dr. DiVerniero then testified as discussed previously.

                                   12                                A-2859-16T1
At the conclusion of his direct testimony, respondent's attorney

asked if the doctor had given his opinions within a reasonable

degree of medical probability, and he replied, "Absolutely."

     Thus,   the   record   shows   that   Dr.   DiVerniero   offered   his

opinions on causation in accord with the applicable standard, that

is, to a reasonable degree of medical probability. Bondi v. Pole,

246 N.J. Super. 236, 240 (App. Div. 1991) (citing Germann v.

Matriss, 55 N.J. 193, 208 (1970)). Furthermore, in his testimony,

the doctor indicated that he had a sufficient understanding of

that standard. In addition, the doctor stated that his opinions

were consistent with those generally accepted by the medical

community.

     It is well established that when an expert offers an opinion

on causation, the expert need not use the phrase "reasonable degree

of medical certainty." Eckert v. Rumsey Park Assocs., 294 N.J.

Super. 46, 51 (App. Div. 1996) (citing Aspiazu v. Orgera, 535 A.2d

338, 343 (Conn. 1981)). Moreover, the opinion of a medical expert

on causation should not be assessed based on "a single verbal

straightjacket," but the opinion should be considered in its

entirety and admitted if it "reflects an acceptable level of

certainty." Id. at 52 (quoting Matott v. Ward, 399 N.E.2d 532, 534

(N.Y. 1979)).



                                    13                             A-2859-16T1
     Here, Dr. DiVerniero expressly stated that his opinion was

offered to a reasonable degree of medical probability, and it was

offered with "an acceptable level of certainty." Ibid. (quoting

Matott,   399   N.E.2d   at   534).   He    explained   his   opinions     were

consistent with those generally accepted by the medical community.

We therefore conclude the judge did not err by admitting and

relying upon Dr. DiVerniero's testimony.

                                      IV.

     Petitioner further argues that the judge erred by finding her

claim is not compensable since Dr. DiVerniero testified that the

conditions of her employment were a contributing cause of her need

for a total knee replacement.

     We note that in her claim petition and motion, petitioner

indicated she was seeking medical treatment due to a workplace

accident, not an occupational disease. Furthermore, at the hearing

on her motion, petitioner's attorney confirmed that this matter

involved an accident claim, not an occupational claim.

     In addition, petitioner testified that her complaints arose

out of the injury she sustained on January 21, 2014. She never

claimed   the   need   for    the   treatment   was   due   to   her   working

conditions. Moreover, petitioner's expert witness, Dr. Cataldo,

testified that the full knee replacement was required due to the



                                      14                               A-2859-16T1
workplace injury sustained on January 21, 2014, not the conditions

of employment.

     Petitioner argues, however, that Dr. DiVerniero's testimony

supported   a   claim   for   treatment     resulting    from    occupational

exposure. In his direct testimony, Dr. DiVerniero stated that many

"variables"     could   affect   the    length   of   time   a   partial   knee

replacement might last. He noted that an individual's weight is

one of those factors.

     On cross-examination, petitioner's attorney asked the doctor

whether the combination of petitioner's weight on the tile floor

of the store and her eight-hour shifts could cause the prosthesis

to break down sooner than if petitioner had a more sedentary job.

The judge noted that petitioner had not filed an occupational

claim. The judge also pointed out that no witness had opined "to

a reasonable degree of medical probability this was caused by

working on a hard tile floor."

     The judge observed that Dr. DiVerniero had testified that the

age of the knee replacement, walking or doing things at home or

at work, or a combination of those factors "would cause wear over

time." The judge stated that if petitioner wanted to assert an

occupational claim, she should file one.

     Petitioner's counsel then asked Dr. DiVerniero whether "given

the history, the video that you watched, the conditions that the

                                       15                              A-2859-16T1
petitioner   worked   in,   within   a    reasonable   degree   of   medical

probability[,] could this have been or is this an occupational

case?" The doctor replied:

          My answer is no, that this is a combination
          of multiple variables leading to the normal
          wear and tear of a prosthesis that actually
          survived fairly long in this patient. Every
          patient is different. There [are] different
          forms of wear in everyone. But this is
          progressive ongoing wear. Regardless of where
          she worked, regardless of what activities she
          did outside of work, it's         an ongoing
          phenomenon of wear.

     Petitioner's counsel then asked whether the doctor had agreed

that being overweight and working on a tile floor "would contribute

to the breakdown of that prosthesis." The doctor replied:

          That's a different question. You said did it
          contribute, not did it cause. . . . I just
          said there are multiple variables that
          contribute, so, yes, I testified that that's
          one of the variables, but you're trying to
          make me testify that that is the absolute and
          only variable, and I'm not going to do it.

     Petitioner argues that in order to establish an occupational

claim, she need only prove that the working conditions contribute

to the condition. She contends Dr. DiVerniero's testimony was

sufficient to support a claim of an occupational injury. She

asserts that the judge should have amended the pleadings to conform

to the evidence and found that the conversion to a total knee

replacement was due to a work-related injury.


                                     16                              A-2859-16T1
     We are convinced, however, that the judge did not abuse his

discretion by refusing to treat petitioner's application as an

occupational claim. As noted in her petition and motion, petitioner

never indicated she was asserting such a claim. Furthermore,

respondent did not have notice that petitioner was pursuing an

occupational claim, and during the hearing, petitioner presented

no expert testimony to support such a claim. The judge properly

ruled that if petitioner wanted to assert an occupational claim,

she should file one.

     Moreover, Dr. DiVerniero's testimony was insufficient to

establish a compensable occupational claim. Under the Workers'

Compensation Act, a "compensable occupational disease" is defined

to include "all diseases arising out of and in the course of

employment, which are due in a material degree to causes and

conditions which are or were characteristic of or peculiar to a

particular trade, occupation, process or place of employment."

N.J.S.A. 34:15-31(a).

     "Material degree" is "an appreciable degree or a degree

substantially greater than de minimus." Singletary v. Wawa, 406

N.J. Super. 558, 565 (App. Div. 2009) (quoting Peterson v. Hermann

Forwarding Co., 267 N.J. Super. 493, 504 (App. Div. 1993)).

Therefore,   to   establish   a    compensable     occupational   claim,    a

petitioner   "must   show   that   the   alleged   occupational   exposure

                                    17                              A-2859-16T1
contributed to the resultant disability by an appreciable degree

or a degree substantially greater than de minimus." Ibid. (quoting

Peterson, 267 N.J. Super. at 504).

     Here, Dr. DiVerniero testified that the fact that petitioner

worked standing on a tile floor could have been a contributing

factor to the wear of her partial knee replacement. However, Dr.

DiVerniero stated that the wear also could have been attributable

to petitioner's weight, the age of her prosthesis, and her other

physical activities.

     Thus,   Dr.   DiVerniero's   testimony   did   not   establish   that

petitioner's working conditions contributed to her disability by

an appreciable degree or a degree substantially greater than de

minimus. We therefore reject petitioner's contention that she

established a compensable occupational claim in this proceeding.

     Affirmed.




                                  18                             A-2859-16T1
