Harold Naulty V. Township of Pemberton Public Works
Submitted by worker’s compensation attorney, Jeffrey Hark
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0
Respondent-Appellant.
___________________________________
September 26, 2014
Argued September 10, 2014 Decided
Before Judges Waugh, Maven, and Carroll.
On appeal from the Department of Labor and Workforce Development, Division of Workers’ Compensation, Claim Petition No. 2008-30426.
Joseph D. Coronato, Jr., argued the cause for appellant (Brady & Kunz, P.C., attorneys; Mr. Coronato and Thomas E. Kunz, on the briefs).
Scott D. Schulman argued the cause for respondent (Petrillo & Goldberg, P.C., attorneys; Mr. Schulman, on the brief).
PER CURIAM
Respondent Township of Pemberton Public Works (Pemberton) appeals from the final administrative agency decision of the Division of Workers’ Compensation (Division) in the Department of Workforce Development, in which the Division awarded temporary and partial-permanent disability benefits to petitioner Harold Naulty. We affirm.
I.
We discern the following facts and procedural history from the record on appeal.
Naulty was hired by Pemberton as a truck driver in September 2004. In addition to driving trucks, Naulty’s duties included leaf and brush collection, tree and road work, guardrail installation and repairs, and carpentry.
In January 2005, after Naulty slipped at home while carrying wood he had just chopped, he went to see his family physician, Michael Meltzer, M.D., complaining of back pain. Meltzer prescribed pain relievers, which Naulty used for a short time.
In May, Naulty returned to Meltzer, again complaining of back pain. Meltzer prescribed Percocet and referred Naulty to an orthopedist. When Naulty saw the orthopedist, he described a two-year history of lower back pain that had progressed from intermittent to daily. He also reported that increases in the back pain coincided with the beginning of his heavier work seasons.
Between July 2005 and March 2008, Naulty saw Meltzer six times for his back pain. Naulty testified that his visits to Meltzer coincided with leaf-collection season. He explained that he picked up leaf bags at curbsides, threw them onto a truck, and then emptied them at a collection yard. Depending on moisture conditions, a bag of leaves weighed anywhere between thirty-five and one hundred pounds.
Meltzer referred Naulty to another orthopedist and to a pain management specialist. Naulty complained of his lower back pain to both.
On October 15, Naulty saw Madhuri Dholakia, M.D. He reported that his lower back pain was preceded by repetitive heavy lifting at work. Following her evaluation, Dholakia wrote a letter to one of Naulty’s other physicians, David Lee, M.D., stating that Naulty’s “heavy repetitive lifting at his job” during the year before “led to the insidious onset of low back pain.”
Dholakia recommended that Naulty be restricted to light duty at work. According to Naulty, when he gave her note to his supervisors, he was told that there was no light duty and that he would not be getting any compensation from Pemberton. He stopped working on October 17. Naulty filed an employee claim petition with the Division on November 3. He alleged that he suffered an occupational injury from “repetitive lifting and strenuous activities” while he was working for Pemberton between September 2004 and October 2008.
Dholakia also recommended epidural steroid injections, which Naulty received in November 2008, January 2009, and March 2009. In January 2009, Naulty experienced a flare-up of back pain after assisting his wife with moving furniture.
In May, Dholokia wrote a note granting Naulty permission to return to full duty, even though his back was still bothering him. Naulty testified that he requested the note because he needed to take care of his family and he thought that he could resume work because the leaf-collection season was over.
Later in May, Naulty began seeing a new pain management doctor. He reported that the back pain had increased after his return to work. Naulty asked for an alternative to Percocet, and the doctor prescribed the non-opiate drug Suboxone. Naulty was still receiving treatment for lower back pain at the time of the compensation hearing.
The sixteen-day compensation hearing began in November 2011 and concluded on May 6, 2013. In addition to extensive documentary evidence, including Dholokia’s notes, testimony was presented by Naulty, his wife, John L. Gaffney, D.O., and Kenneth C. Peacock, M.D.
Naulty testified concerning his work and medical treatment histories. During the hearing, he was experiencing daily back pain that radiated into his left buttocks and leg. The leg pain was intermittent, and the back pain tended to increase throughout the day. In the afternoons, Naulty suffered from severe back spasms and shooting leg pain. In order to cope with his pain, Naulty regularly took medications during the workweek. Because his back pain interfered with his ability to sleep, Naulty sometimes needed to take the drug Lunesta.
In 2004, when he began working for Pemberton, Naulty had been visiting the gym approximately three days each week, where he would take one-mile runs on the treadmill and complete bench presses and arm curls. In mid-2007, Naulty stopped running on the treadmill and walked instead. He also scaled back his weight-lifting regimen. In April 2008, as a consequence of his worsening pain, Naulty stopped going to the gym and had not returned as of the time of the hearing.
When Naulty resumed working in 2009, his tasks took longer, and he needed more frequent breaks due to his back pain. He could no longer lift particularly heavy items. He was also restricted in his participation in personal outdoor activities, home repairs, landscaping, and marital relations due to his condition.
Dholakia’s notes reflected that she treated Naulty from October 2008 through May 2009. In a progress note dated November 4, 2008, Dholakia reported Naulty’s continued complaints of lower back pain. Naulty told her that sitting, standing, and walking exacerbated the pain. Dholakia prescribed Percocet and an epidural injection.
On December 10, Dholakia wrote that Naulty’s epidural injection resulted in a ten-to-twenty percent reduction in his pain. However, Naulty was still complaining of back pain. She referred him for another epidural injection and prescribed Roxicodone and physical therapy. When Naulty saw Dholakia on January 7, 2009, he continued to complain of the same symptoms of his lower back pain. Dholakia prescribed Avinza and Roxicodone.
On March 4, Dholakia noted that Naulty’s pain had increased since his last appointment. The epicenter of pain had migrated a bit higher in the back and radiated into the left buttocks and leg. Dholakia noted that Naulty’s pain had flared up in the past few weeks. She suggested that it was possible that Naulty’s “underlying pathology [wa]s worsening.” Dholakia continued Naulty on Avinza and Roxicodone.
On May 6, Dholakia reviewed a recent MRI and wrote that it showed improvement compared with the film from the previous year. Naulty asked for permission to return to work with no restrictions, and Dholakia obliged. Naulty reported continuing lower back pain, but he stated that he felt much better.
Gaffney, a specialist in family medicine, testified as Naulty’s medical expert. He examined Naulty once on June 23, 2010. According to Gaffney, Naulty related the same symptoms to him that he had described to Dholakia.
In preparing his report, Gaffney relied on his examination of Naulty, along with Naulty’s test films, medical records, and interrogatory answers. Gaffney diagnosed Naulty as suffering from seven injuries
Number 1 was orthopedic residuals for a right pedicle L5 stress reaction. Number 2 was a herniated disc, lumbar spine at L5-S1. Number 3 was bulging discs in the lumbar spine at L4-L5 and L3-L4. Number 4 was lumbar radiculopathy. Number 5 was lumbar fibromyositis syndrome. Number 6 was chronic pain lumbar spine, and then Number 7 was status post three epidural steroid injections of the lumbar spine.
Gaffney concluded that the cause of Naulty’s condition was his “occupational exposure/repetitive nature of his job.” Gaffney identified the time frame for the injuries as from September 2004 to October 2008. During cross-examination, Gaffney estimated that Naulty’s chronic back pain began in May or June 2005.
During his examination, Gaffney found “spasm and tenderness over the para lumbar muscle regions,” a “sensory deficit [] into the left leg over the L4-L5 and L5-S1 dermatomal regions after a pinprick test,” and restricted “range of motion.” Gaffney elaborated that the pinprick test “indicate[d] some form of nerve damage emanating from the low back region.” Naulty also tested positive during “a seated-root test,” which revealed “radiculopathy in the low back.” Further, Naulty tested positive during “[a] straight-leg raising test,” suggesting “some form of radiculopathy in the low back region.” According to Gaffney, all of the tests that he performed were “objective test[s].”
It was Gaffney’s understanding that Naulty was out of work between October 2008 and May 2009 due to his lower back pain. According to Gaffney, that was “to be expected.” Gaffney elaborated
I mean, at the time his back pain was quite significant. He was having significant neurologic symptoms. The simplest of activities were aggravating or further increasing his symptomatology; therefore, when you look at his work-related activities and duties, you would never expect that he could perform those types of duties when simple things were worsening his low back pain. And at that time he was on a boatload of medication, which, you know, obviously would be creating lethargy, fatigue, and other issues, too.
Gaffney also discussed his analyses of Naulty’s MRIs, beginning with an MRI taken on October 28, 2005. Gaffney determined that “[i]t showed a left-sided disc herniation [at] L5-S1, which abutted the traversing left S1 nerve root” and that there were “bulging discs at L3-L4 and L4-L5.” Although Gaffney found a “mild degenerative type of change,” he explained that one “wouldn’t expect to find [the aforementioned injuries] except [in] somebody who was hurt” because they exceeded those typical for a thirty-nine-year-old man.
Turning to Naulty’s second MRI, taken on April 8, 2008, Gaffney observed a “bulging disc at L4-L5” and “a bulging disc at L4-S1 with a posterior annular tear.” Gaffney also noted that “the marrow edema” that he found in the MRI indicated “a significant amount of inflammation . . . , which would go along with, again, [Naulty’s] work activities and duties.” When questioned about the cause of Naulty’s “marrow edema,” he responded: “common sense will tell you that if you continuously keep lifting heavy type[s] of objects . . . [it will] lead to back pain and back injury.” Gaffney opined that there were “numerous activities that [Naulty] did on a regular basis that could have led to all these findings.”
Gaffney noted that the annular tear from the second MRI “was something different,” which was a “further progression of [Naulty’s] condition or injury” and could have “[led] to back pain.” Gaffney also testified that “the MRI scans continually noted a left-sided herniated disc at L5-S1, which was causing those radicular symptoms, along with the bulging discs at the upper levels, which [] were leading to further back pain.”
Gaffney commented on Naulty’s prior employment and the extent to which his activities there might have contributed to his injuries.1 Gaffney acknowledged that Naulty “had one incident where he . . . strained his back moving bleachers.” However, Gaffney observed that Naulty “went to the doctor and was provided with virtually no treatment” and only “missed a day or two of work.”
Gaffney then focused on Naulty’s condition in 2004 when he began working for Pemberton
[Naulty] had no complaints upon starting at Pemberton. He knew the job was going to be harder, despite it he went for it.
. . . [H]e did go for a physical examination prior to that to determine . . . whether or not he c[ould] perform the job. And I do this very frequently with the various townships that I work for, and believe me if someone has a back problem they are not going to get that job.
So, again, he was feeling well prior to starting with Pemberton. . . . [I]t is clear that upon starting the job with Pemberton, and the activities related to that job, there is no question that that led to his back condition and problems.
Gaffney noted the temporal relationship between Naulty’s complaints of back pain, particularly to Meltzer, and the leaf-collection season. Leaf collection “was especially tough.” That Naulty often reported back pain in the spring and fall “further strenghten[ed] and support[ed Gaffney’s] opinion” because “[t]hose particular [times] . . . coincide[d] with the heavy lifting during the leaf season.”
Gaffney also relied on articles and studies concerning “repetitive activities in terms of back pain.” One article found an association between lumbar spine pain and repetitive occupational activities, specifically that cumulative lifting or carrying and extreme forward bending increased the risk for developing spinal injuries. Another article “note[d] a clear relationship between the lumbar disc herniation and the repetitive nature of one’s job, especially weightlifting or carrying.” A Mayo Clinic article “outline[d] repetitive low back injury and the ways [to] help try to prevent that [sort of injury],” such as lifting with the knees, holding objects close to the body, and lifting between the legs.”
Gaffney opined that the character and diversity of Naulty’s job-related activities made it impossible for him to lift with the proper technique at all times. All of the activities that Naulty performed “involved [repetitively] twisting the back [and] lifting and straining the back.”
Gaffney predicted that Naulty would continue to suffer from his back injuries. His lower back pain persisted, as did his need for strong medications, and his ability to engage in a wide variety of activities had become limited. Gaffney found that Naulty’s lumbar spine injury rendered him fifty-five percent permanently disabled, given the degree to which the injuries interfered with Naulty’s daily activities. Gaffney noted that Naulty’s condition would “not go away” and would vary in intensity depending on the strenuousness of his future level of physical activity.
Peacock, a specialist in orthopedic surgery, testified for Pemberton. Peacock examined Naulty on September 16, 2010. He performed a lumbar range-of-motion test, finding that Naulty’s range exceeded the normal measures, though in certain other areas Naulty’s range was below normal. Peacock’s muscle, reflex, and straight-leg raising tests resulted in normal or negative findings. Ultimately, relying on his physical examination of Naulty, review of Naulty’s MRI, and study of Naulty’s medical history, Peacock diagnosed Naulty with a “lumbar spine disc herniation” that caused a five percent permanent disability.
Peacock determined that Naulty’s back injury was not causally related to his work for Pemberton. Peacock discussed the study that he relied on in reaching his result
I don’t think there’s credible scientific evidence to support [causality in Naulty’s case] in the medical literature.
. . . .
I find upon review of medical literature that there is no[t] sufficient evidence to support a relationship between occupational exposure and lumbar spine degenerative arthritis, degenerative disc disease and disc herniation.
The best research we have right now by no means is definitive, but the best research we have available anywhere is . . . the Twin Spine Study.
. . . .
. . . What they f[ound] was that genetics is the primary determinant of lumbar spine pathology, that vibrational exposure did not make a difference, smoking makes a small difference, your body mass index makes a small difference, occupation had no significant effect . . . .
. . . .
So now we are at the point where . . . we know that the[re] are biochemical changes that occur . . . .
We think that in addition there’s problems with the blood supply. That disc is fed by blood vessels coming up and down through the endplates of the vertebrae . . . .
We are now finding also that . . . disruption of blood supply leads to disc degeneration and arthrosclerosis, . . . the things that give[] you hardening of your arteries also give[] you degeneration of your disc to some extent.
The point is that there is a multitude of factors that determine disc degeneration, disc herniation, annular tears and arthritis and we’re now unraveling all of that and coming to an understanding that is multifactorial. It is not one mechanical thing and . . . occupation doesn’t play a great role here.
According to Peacock, as of 2009, the study’s principals “concluded that genetics is the primary determinant of lumbar spine disc degeneration and herniation and arthritis.” During cross-examination, Peacock admitted that the study had found that “physical loading” could be “a contributing factor” to degenerative back conditions and could possibly worsen lower back problems.
During cross-examination, Peacock opined that Naulty’s back condition resulted from “degenerative changes in the lumbar spine,” which “were likely present before he began his employment” for Pemberton in 2004. According to Peacock, the back pain that Naulty experienced from 2004 to 2008 was coincidental.
Peacock discounted the studies and articles attached to Gaffney’s report, testifying that they were compromised by issues such as biased and inconsistent test subjects, improper control group selection, and variable modes of testing. Peacock also criticized Gaffney’s degree of reliance on personal anecdotal experience in making a causality determination. Peacock opined that, because every patient presents a complex, individual case, a doctor’s reliance on the experiences of past patients is usually too unscientific to be used in a causality analysis.
Gaffney discounted the study relied on by Peacock. According to Gaffney, it merely “discussed the correlation of repetitive type[s] of activit[ies] leading to back pain,” and, moreover, it “didn’t state that repetitive activity did not lead to back pain.” Rather, the study “look[ed] at repetitive back conditions and other causes that could lead to degenerative disc problems.”
On May 6, 2013, the judge of compensation delivered a lengthy oral decision. He characterized Naulty’s credibility as follows
[Naulty]’s credibility is very impressive. I know so because on eight days, I watched [Naulty]. On eight days, I listened to [Naulty]. On eight days, I learned from [Naulty]. On eight days, I sat next to an honest man. . . . On eight days I sat next to an honest man who defined good old-fashioned work ethic in [Pemberton].
His continuous show-and-tell testimony during those eight days featured bodily movements. His continuous show-and-tell testimony during those eight days featured pictorial support.
The judge found, based on the record, that Naulty’s job duties were extensive, diverse, and pain-inducing. Pemberton called no rebuttal fact witnesses to refute these findings. Further, the judge found Naulty’s wife credible. The judge incorporated a summary of the Naultys’ testimony into his decision.
With respect to the parties’ respective medical experts, the judge found Gaffney more persuasive. He observed that Gaffney thoroughly reviewed Naulty’s medical and occupational histories, saw Naulty and performed his own interview and tests, reviewed medical literature, and was emphatic that Naulty’s job activities resulted in his back condition. As for Peacock, the judge commented that he focused very little on Naulty’s actual experiences while working for Pemberton. He underscored that Peacock testified both that it was possible that physical activity could cause pain or injury and that Naulty’s condition was merely coincidental.
With respect to the study cited by Peacock, the judge noted that it opened with the following words: “Precise diagnosis is not available in the vast majority of people with back pain problems.” Despite Peacock’s representation that the study was the best available, the judge was dubious, in part because the study made almost no mention of test subjects in the United States.
The judge also highlighted the October 15, 2008 letter written by Dholakia, which noted that Naulty’s job activities “led to the insidious onset of low back pain.” The judge found that this language “establishe[d] an element of causation,” and he afforded it substantial weight because Dholakia was Naulty’s treating physician.
The judge then discussed the weight to be afforded to the parties’ respective expert witnesses, initially stating: “I give more weight to the opinion of [Naulty]’s doctor as opposed to [Pemberton]’s doctor.” Gaffney, according to the judge, was the “better” expert because he closely reviewed the particulars of Naulty’s case and included a report that found a “statistically significant positive association between extreme forward bending and lumbar disc herniation.” The judge stated: “Gaffney’s [] report . . . combined with [his] testimony . . . provides sufficient background, basis and support for [his] opinion that [Naulty]’s lumbar spine condition is causally related to [Naulty]’s occupational activities.”
The judge concluded that the burden of proof had “clearly been carried by [Naulty].” He went on to state
[Naulty]’s burden [is] to link his medical condition to his place of employment by a material degree, which means by an appreciable degree or a degree substantially greater than de minimis.
Here, there was more than a mere assertion of a reasonably probable contributory work connection by a medical witness.
[Naulty]’s compelling, credible testimony supported by his wife’s compelling, credible testimony is strong. In order to prove causation in the occupational disease claim, a Petitioner must produce evidence to establish both legal and medical causation. Legal causation means simply that the injury is work connected. This injury is work connected, clearly.
Medical causation means that the injury is a physical or emotional consequence of work exposure. [] Dholakia emphasized the nexus. . . .
[Naulty] is not required to prove that the nexus between the disease and the place of employment is certain. All that is required is that the claimed conclusion from the offered fact must be probable or a more probable hypothesis. [Naulty] has proven such. The claimed conclusion is favorable to [Naulty] this day.
The evidence is such as to lead a reasonable, cautious mind, me, to [reach a] conclusion. The medical records and other hearsay documents in evidence, which were admitted at trial without objection by [Pemberton], served to corroborate [] Gaffney’s findings.
[] Gaffney sufficiently explained the whys and wherefores of his opinion. He did not offer just a mere conclusion.
I believe the credible [Naulty]. I believe his credible wife. I believe the evidence submitted as amplified and clarified and explained by [Naulty]’s better expert is of the sufficient quality to generate my belief that the tendered hypothesis is in all likelihood the truth.
The judge made two findings regarding Naulty’s disability. First, that “Naulty [wa]s lessened in his material degree of his working ability.” Second, the judge found that Naulty’s “life ha[d] been dynamically impacted.” The judge assessed Naulty’s permanent disability at forty-five percent, between Peacock’s proposal of five percent and Gaffney’s proposal of fifty-five percent, in light of his sense that “[t]he scales [we]re tilted so favorably for [Naulty].” The judge also concluded that Pemberton should bear most of the medical and court costs.
With regard to temporary disability, the judge found that “the documentation establishe[d] the basis for the period of . . . benefits.” He awarded temporary benefits for the period of temporary disability from October 17, 2008, through May 6, 2009.
Pemberton filed a motion for reconsideration. In addition to arguing that the judge’s findings and conclusions were not supported by the evidence, Pemberton for the first time argued that Naulty’s temporary disability award should be offset by disability insurance payments that he had received from Hartford Insurance Company. In October 2008, Naulty had made a claim to Hartford for benefits under his personal temporary disability policy. The judge expressed his surprise that Pemberton had not brought up the issues of a lien, subrogation, or a collateral source prior to its motion for reconsideration. He denied the motion for reconsideration.
The judge entered a final judgment awarding Naulty $15,794 in temporary disability, $120,150 in permanent partial disability, counsel fees, and related costs. This appeal followed.
II.
On appeal, Pemberton challenges the judge’s finding that Naulty’s back problems were causally related to the work he performed as its employee, arguing that the finding is not supported in the record. It also challenges the percentage of disability determined by the judge, again arguing that it is not supported by the record. In addition, Pemberton contends that the judge should have offset the temporary disability award by the amount Naulty received from Hartford, and that the judge abused his discretion in requiring it to pay the majority of the costs.
Our standard of review is well-settled. We are bound by the judge’s factual findings that are supported by substantial credible evidence in the record. Sager v. O.A. Peterson Constr. Co., 182 N.J. 156, 163-64 (2004) (citing Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). We must give due regard to the judge’s expertise. Ibid. “[D]eference must be accorded 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) (citations and internal quotation marks omitted). A petitioner bears the burden of establishing the compensability of the claim being made. Id. at 279; Perez v. Monmouth Cable Vision, 278 N.J. Super. 275, 282 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995).
However, it is well-established that our review of a judge’s conclusions of law is de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) (“A trial court’s interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.”). The same standard applies to the legal rulings of a judge of compensation. Sexton v. Cnty. of Cumberland/Cumberland Manor, 404 N.J. Super. 542, 548 (App. Div. 2009).
According to N.J.S.A. 34:15-31(a), “the phrase ‘compensable occupational disease’ [] include[s] 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.” “‘Material degree’ means a degree [substantially] greater than de minimis.” Lindquist, supra, 175 N.J. at 256 (alteration in original) (internal quotation marks omitted).
“[A] successful petitioner in workers’ compensation generally must prove both legal and medical causation when those issues are contested.” Id. at 259. “Medical causation means the injury is a physical or emotional consequence of work exposure.” Ibid. The Supreme Court has explained that it is
sufficient in New Jersey to prove that the exposure to a risk or danger in the workplace was in fact a contributing cause of the injury. That means proof that the work related activities probably caused or contributed to the employee’s disabling injury as a matter of medical fact. Direct causation is not required; proof establishing that the exposure caused the activation, acceleration or exacerbation of disabling symptoms is sufficient.
[Ibid.]
“A petitioner is not required to prove his claim to a certainty. It is sufficient if the evidence establishes with reasonable probability that the employment caused or proximately contributed to the condition of disease of which he complains.” Bober v. Indep. Plating Corp., 28 N.J. 160, 168 (1958).
“Once a permanent disability is proven . . . the next issue is determining whether the injury is minor or is serious enough to merit compensation.” Perez v. Pantasote, Inc., 95 N.J. 105, 116 (1984). Under N.J.S.A. 34:15-36, “‘[d]isability permanent in quality and partial in character'” is defined to mean
[A] permanent impairment caused by a compensable accident or compensable occupational disease, based upon demonstrable objective medical evidence, which restricts the function of the body or of its members or organs; included in the criteria which shall be considered shall be whether there has been a lessening to a material degree of an employee’s working ability.
“A second criterion,” in addition to the impairment of a petitioner’s ability to work, “is whether there has been a disability in the broader sense of impairment in carrying on the ordinary pursuits of life.” Perez, supra, 95 N.J. at 117 (internal quotation marks omitted).
Having reviewed the record before us, we find no basis to conclude that the judge’s findings and conclusions were “‘manifestly unsupported by or inconsistent with competent relevant and reasonably credible evidence as to offend the interests of justice.'” Lindquist, supra, 175 N.J. at 262 (quoting Perez, supra, 278 N.J. Super. at 282). We reject Pemberton’s assertion that the judge “relied . . . solely” on Dholokia’s October 15, 2008 letter “in determining causation” (emphasis added). Although the judge certainly gave considerable weight to Dholakia’s notes, he relied on other evidence in the record, including Gaffney’s opinions, based on his credibility determinations and factual findings with respect to the testimony offered by Gaffney and Peacock.
We also reject the contention that Gaffney gave a “net opinion,” an issue that was not raised before the compensation judge. Pursuant to N.J.R.E. 703, an expert’s opinion must be based on “facts, data, or another expert’s opinion, either perceived or made known to the expert, at or before trial.” Rosenberg v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002). Gaffney formulated his theory of causality after taking account of Naulty’s personal and medical histories, the physical examination of Naulty, and relevant medical literature. He provided an adequate basis, or “demonstrable objective medical evidence,” see N.J.S.A. 34:15-36, for finding that Naulty’s back injuries were “a physical . . . consequence of work exposure,” see Lindquist, supra, 175 N.J. at 259. In short, Gaffney provided more than a net opinion. Further, Gaffney’s testimony, coupled with Naulty’s other proofs, tended to show that Naulty’s injuries were caused in a “[m]aterial degree,” or in more than a “de minimis” fashion, by his “occupation.” See N.J.S.A. 34:15-31(a); Lindquist, supra, 175 N.J. at 256 (internal quotation marks omitted).
The judge had the prerogative to accept Gaffney’s legally and factually sufficient medical causality analysis over Peacock’s alternate theory, a choice that necessarily involved credibility determinations and the expertise of a judge of compensation. See Earl v. Johnson & Johnson, 158 N.J. 155, 161 (1999). The judge’s conclusion that “Gaffney’s [] report . . . combined with [his] testimony . . . , provide[d] sufficient background, basis and support for [his] opinion that [Naulty]’s lumbar spine condition is causally related to [Naulty]’s occupational activities” is amply supported in the record.
Determination of the percentage of disability is particularly within the expertise of a compensation judge. Close, supra, 44 N.J. at 599. We find sufficient support in the record for the judge’s determination in this case.
Having reviewed Pemberton’s remaining arguments in light of the record and applicable law, we conclude they lack merit sufficient to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following.
With respect to the temporary disability payments received from Hartford, we note first that the issue was not raised in the Division until the motion for reconsideration, although it could have been raised earlier. A motion for reconsideration is not intended as a vehicle for raising issues for the first time. Fusco v. Bd. of Educ. of Newark, 349 N.J. Super. 455, 463 (App. Div.), certif. denied, 174 N.J. 544 (2002). Second, because a “private plan” made those temporary disability payments, it was Hartford, rather than Pemberton, that was “entitled to be subrogated to [Naulty]’s rights.” N.J.S.A. 43:21-30(b)(2); Janovsky v. Am. Motorists Ins. Co., 11 N.J. 1, 5-6 (1952). Hartford chose not to exercise that right.
“N.J.S.A. 34:15-64 reposes great fee allowance discretion in workers’ compensation judges.” Maskell v. Mid-State Filigree Sys., 322 N.J. Super. 68, 73 (App. Div. 1999). We “will modify or set aside such an award only if it is manifestly excessive or inadequate, thus demonstrating an abuse of discretion.” Akef v. BASF Corp., 305 N.J. Super. 333, 341 (App. Div. 1997). We see no abuse of the judge’s discretion in this case.
Affirmed.
1 Gaffney determined that Naulty’s at-home injuries from chopping and carrying wood and from lifting furniture, were not responsible for his condition. Regarding the former, Naulty had no follow-up appointment with Meltzer, and the strain of chopping wood and slipping paled in comparison with the daily, heavy lifting that Naulty was required to perform at work. As for the latter, Gaffney was unaware of a change in Naulty’s treatment plan with Dholakia following the furniture incident, and Gaffney did not find substantial changes between the April 2008 MRI and a subsequent MRI.
