Harbatuk v. S & S Furniture Systems Insulation

• Citation: 512 A.2d 537,211 N.J.Super. 614
• Parties: John R. HARBATUK, Petitioner-Appellant, v. S & S FURNITURE SYSTEMS INSULATION, Respondent-Respondent.
• Decision Date: 03 July 1986
• Court: New Jersey Superior Court – Appellate Division

Page 614

211 N.J.Super. 614

512 A.2d 537

John R. HARBATUK, Petitioner-Appellant, v. S & S FURNITURE SYSTEMS INSULATION, Respondent-Respondent.

Superior Court of New Jersey Appellate Division.

Argued June 11, 1986.

Decided July 3, 1986.

Edward Slaughter, Jr., Trenton, for petitioner-appellant (Pellettieri, Rabstein & Altman, Trenton, attorneys; Aleida Rivera, Trenton, on brief).

John R. Pidgeon, Newark, for respondent-respondent (Mattson, Madden & Polito, Newark, attorneys).

Before Judges KING and O'BRIEN.

The opinion of the court was delivered by

KING, P.J.A.D.

This appeal is taken from a judgment of the Division in favor of petitioner's employer denying temporary disability benefits totaling about $2,600. Petitioner also claims that he is entitled to the 25% penalty under N.J.S.A. 34:15-28.1 for unreasonable delay or refusal to pay benefits.

Petitioner, who was 64 years old at the time of his testimony, was injured on September 4, 1981 while moving furniture during the course of his employment with respondent. Petitioner had only been employed by respondent for several days when the accident happened. Petitioner had been a construction carpenter since 1960 and normally built concrete forms, scaffolds and plywood decking. His job duties with respondent required him to unload office furniture from trucks and place the furniture in different rooms throughout an office building.

On September 4, 1981 petitioner was attempting to lift a dolly loaded with furniture onto a platform when he felt a sharp pain or tear in his side. Petitioner immediately reported the incident to his foreman, Charley Smith, and told him that he thought he had sustained a hernia. Smith sent petitioner home for the day and told petitioner not to "bother" him. Petitioner returned to work the next day wearing a "jock strap." Although petitioner attempted to work, his side "bothered" him and he left after putting in only a half day.

Petitioner returned to work the following day and tried to discuss the problem with his foreman. However, Smith once again told petitioner not to bother or "push" him. Petitioner attempted to work on several more days, but continued to experience pain in his groin area. The pain was especially severe if he coughed, sneezed or tried to lift anything.

Petitioner was examined by Dr. Fessler on September 16, 1981. Fessler diagnosed petitioner's condition as a left inguinal hernia and advised surgical correction of this condition. Petitioner said that Fessler advised him not to perform construction work until his hernia was repaired. Petitioner did not return to work following Fessler's examination. Petitioner explained that respondent did not have any "light work" available. The only duties which respondent had available were moving furniture, loading dollies and bolting furniture to the ground. Following Fessler's examination, petitioner informed his foreman that he needed surgery. Smith once again told petitioner not to "push" him.

Petitioner contacted his union's business agent and obtained the telephone number and address of respondent's insurance company. Petitioner notified respondent's insurance company that he needed surgery approximately one or two weeks following Fessler's examination. According to petitioner, the insurance company told him to have the operation "as soon as possible." While petitioner was waiting for his operation, he "[h]ung around the house," got "drunk," went fishing, visited friends, and engaged in his hobby of painting trinkets and taking children's bicycles apart and repainting them. Petitioner did not look for employment during this period since the only type of work he knew was construction work.

Petitioner was re-examined by Dr. Fessler on December 11, 1981 and at this time, surgery was scheduled at the Helene Fuld Medical Center. Although petitioner maintained that respondent's insurance company did not authorize him to have surgery until January 1, 1982, he was admitted to the hospital on December 28, 1981 and Fessler performed a left inguinal herniorrhaphyon December 30, 1981.

Petitioner maintained that his condition worsened from the time he first saw Dr. Fessler on September 16, 1981 and the time of his entry into the hospital. The hospital records indicate that petitioner experienced "increasing amounts of distress" during this period. Petitioner's surgery was successful and he was discharged from the hospital on January 8, 1982 in "good condition," to be followed as an outpatient by Dr. Fessler. Petitioner returned to work on March 14, 1981. As of the time of his testimony, petitioner was performing construction work and maintained that he was in "[f]irst class" shape.

Dr. Ruderman, an orthopedist, testified as an expert witness on petitioner's behalf. He examined petitioner on April 25, 1983. Ruderman's examination disclosed that petitioner had a full range of motion of the left leg and hip area. His stance and gait were normal. A ten-centimeter scar in the left inguinal area was noted. Petitioner experienced discomfort on digital pressure and when asked to cough heavily.

As a result of his examination and a review of petitioner's hospital records, Ruderman diagnosed petitioner's condition as a postoperative left inguinal hernia. He felt that petitioner had a permanent partial disability of five percent of total based on the presence of a postoperative scar which caused burning and pain on effort and coughing. Ruderman explained that the scar irritated petitioner's soft tissue and nerve endings.

Ruderman opined that petitioner's ability to continue working between September 1981 and the time of his operation depended on the severity of his symptoms and the working policies of his employer. Ruderman explained that he would have advised petitioner not to return to his duties as a furniture mover or carpenter until his hernia was repaired because there was a danger that petitioner's hernia may have strangulated as a result of exertion. Moreover, Ruderman felt that it would not have been advisable for petitioner to have performed sedentary work which required him to sit at a desk or stand for eight hours a day, since even these activities might have aggravated his condition. Although Ruderman acknowledged that some people work with unrepaired hernias, he felt that this was inadvisable since stress and strain are involved even with sedentary jobs. He would not have advised petitioner to repair bicycles while awaiting surgery.

A letter written by Dr. Fessler, addressed to petitioner's attorney, was admitted into evidence on petitioner's behalf. In this letter, Dr. Fessler stated in pertinent part

I had no professional contact with the patient during the time interval from September 16, 1981 to December 11, 1981. I have no medical basis on which to determine the length or degree of his disability. His ability to continue working would depend on the severity of his symptoms and the working policies at his place of employment.

The only evidence admitted on behalf of respondent was a report of Dr. Flax. Flax examined petitioner on February 22, 1983. Petitioner did not present any complaints at the time of examination. Flax's examination disclosed a well-healed inguinal scar in the left groin area. He found no evidence of a reoccurrence of the herniation. Flax felt that petitioner was capable of working and that he did not need any further medical treatment. He opined that petitioner did not have any permanent disability. Flax's report did not treat the issue of temporary disability.

Based on this evidence, the judge of compensation rendered an oral decision in which he found that petitioner was not entitled to temporary disability benefits from September 16 to December 27, 1981. The judge found that petitioner was able to perform light duty work during this period while he was awaiting surgery as shown by his repairing children's bicycles. He also found the letter of petitioner's treating physician, Dr. Fessler, determinative on this issue. The judge noted that Fessler indicated in his letter that he had no medical basis on which to determine the degree of petitioner's disability during this period. The judge interpreted Fessler's letter as indicating that if respondent had suitable light work available, petitioner could have continued working while awaiting surgery. Thus, the judge found that petitioner had failed to sustain his burden of proof on the issue of entitlement to temporary disability benefits from September through December.

Petitioner contends that the judge of compensation's finding that he failed to sustain his burden of proof regarding his entitlement to temporary disability benefits for the period between September 16, 1981, the day he stopped work, and December 27, 1981, the day prior to his hospital admission, was not based on sufficient credible evidence in the record. We agree.

The scope of appellate review in workers' compensation cases is limited to a determination of whether the findings of the judge of compensation could reasonably have been reached on sufficient credible evidence present in the whole record, after giving due weight to his expertise in the field and his opportunity to hear and observe the witnesses. Close v. Kordulak Bros., 44 N.J. 589, 599, 210 A.2d 753 (1965); DeAngelo v. Alsan Masons Inc., 122 N.J.Super. 88, 89-90, 299 A.2d 90 (App.Div.), aff'd o.b. 62 N.J. 581, 303 A.2d 883 (1973). The burden of proof is on the petitioner to justify an award of compensation. In determining whether he has sustained that burden, the quality of evidence required is probability rather than certainty. The burden is sustained if the evidence preponderates in favor of the tendered hypothesis. Celeste v. Progressive Silk Finishing Co., 72 N.J.Super. 125, 142, 178 A.2d 74 (App.Div.1962); Pellegrino v. Monahan McCann Stone Co., 61 N.J.Super. 561, 571-572, 162 A.2d 97 (App.Div.1959), aff'd o.b. 33 N.J. 73, 162 A.2d 109 (1960).

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