MARY GRACE LAWSON VS. NEW JERSEY SPORTS & EXPOSITION AUTHORITY (DIVISION OF WORKERS' COMPENSATION) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-4058-17T1
MARY GRACE LAWSON,
Petitioner-Appellant,
v.
NEW JERSEY SPORTS &
EXPOSITION AUTHORITY,
Respondent-Respondent.
___________________________
Argued June 5, 2019 – Decided June 26, 2019
Before Judges Alvarez and Reisner.
On appeal from the Department of Labor, Division of
Workers' Compensation, Claim Petition No. 2009-
32887.
John Burke argued the cause for appellant (Burke &
Potenza, attorneys; John Burke, of counsel and on the
briefs).
Keith E. Nagy argued the cause for respondent
(Capehart & Scatchard, PA, attorneys; John H. Geaney,
of counsel; Keith E. Nagy, on the brief).
PER CURIAM
Petitioner Mary Grace Lawson appeals from an interlocutory order dated
March 27, 2015, denying her application for reconstruction of wages pursuant
to Katsoris v. South Jersey Publishing Co., 131 N.J. 535 (1993). The
interlocutory order was rendered ripe for appeal when the workers'
compensation court entered a final order dated April 2, 2018, approving a
settlement of petitioner's compensation claim. We affirm.
As of August 2009, petitioner, then age fifty-eight, was employed part-
time by the New Jersey Sports and Exposition Authority as a stadium usher. She
also worked full-time stocking shelves at a Walmart store. On August 14, 2009,
petitioner suffered a compensable accident at her part-time job with the stadium.
In the accident, petitioner was struck by the closing doors of a freight elevator ,
breaking her left femur and bruising her right knee. After surgery to repair the
left leg, she was on medical leave from Walmart until April 2010 due to physical
restrictions. In April, she returned to work at Walmart with medical restrictions
limiting her to part-time work. The company was unwilling to continue holding
her full-time slot open for her, but offered her a permanent part-time slot.
Petitioner refused that offer, leading to her termination. Petitioner later
reapplied to Walmart for a full-time job. However, the company did not rehire
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her in a full-time position. 1 In May 2010, petitioner returned to her part-time
job at the stadium, but lost the job for reasons unrelated to this case in November
2011.
At the time of the compensation hearing on February 20, 2013, petitioner
had not obtained another full-time job. According to petitioner, she applied for
retail sales jobs at big-box stores, but she did not get any of those jobs. She
testified that those jobs also required stocking shelves, and she was physically
unable to perform that aspect of the job. Petitioner admitted that from July 2010
to December 2012, she collected unemployment benefits, for which she certified
that she was ready, willing, and able to work. She also confirmed at the hearing
that she could work full-time at a job that did not require her to climb ladders.
At the time of the hearing, petitioner was working part-time demonstrating
products at supermarkets. In her testimony, she admitted doing a lot of physical
work around her family's rural home, including mowing the grass and cutting
wood with what she described as a small electric chainsaw. She also indicated
that she daily walked a mile and swam for exercise.
1
There is no evidence in the record documenting the company's reason for
declining to rehire petitioner.
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When petitioner's treating physician, Dr. Mehling, testified on December
11, 2013, he stated that he was planning to remove metal rods placed in
petitioner's left leg during the original surgery to repair the leg. Dr. Tiger,
petitioner's medical expert, testified on June 18, 2014, opining that petitioner
could not return to full-time work due to limitations caused by her injuries. By
that time, petitioner had undergone the surgery to remove the rods. However,
Dr. Tiger did not testify about that surgery or its effects on petitioner, because
he had only examined her once, in 2012. Dr. Tiger was not aware that after her
injury, petitioner had returned to work part-time as an usher, where she had to
walk up and down the stadium steps. Nor was he aware that petitioner had gone
back to daily walking a mile and swimming, as well as performing strenuous
household duties at home.
The employer's expert, Dr. Mercurio, testified on September 10, 2014. He
had examined petitioner in November 2011 and January 2013. Dr. Mercurio
testified that petitioner had relatively little residual disability from the broken
left femur. He also opined that petitioner's alleged reduced sensation in her right
leg was "idiopathic," meaning that there was no obvious medical cause, and it
was not caused by the 2009 accident. He opined that as of the January 2013
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examination, petitioner was capable of working on a full-time basis without
restrictions.
Dr. Mercurio testified that he had reviewed the operative report of the
January 10, 2014 surgery to remove the hardware from petitioner's left leg. He
found no evidence connecting the 2009 injury to the soft tissue infection that
precipitated the surgery. Based on his review of petitioner's medical records
after the second surgery, Dr. Mercurio also testified that there was no medical
evidence that her left leg had gotten worse since the surgery. In fact, he noted
petitioner told her doctors she was "better than she was before." She told her
physiotherapists that she was raking leaves, "shoveling," and riding her lawn
mower. He also noted that the surgeon, Dr. Mehling, had discharged petitioner
with no restrictions. Dr. Mercurio opined that petitioner could return to full-
time work after the second surgery.
In an oral opinion issued on March 27, 2015, the compensation judge
found Dr. Mercurio to be a more credible expert than Dr. Tiger, for reasons the
judge explained in detail. Among other things, she considered that Dr. Tiger
was unaware of important information about petitioner's life activities at the
time he rendered his opinion, and he only examined her once, in 2012. The
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judge also noted that Dr. Mercurio did a "more thorough" and "much more
recent" examination of petitioner.
The judge further considered that, starting in July 2010, petitioner
received unemployment benefits for two and a half years based on her
certification that she was "ready, willing, and able to return to the work force on
a full-time basis." The judge found as fact that petitioner was "a very sturdy
woman with a high level of physical strength and endurance and energy." The
judge noted all of petitioner's admitted physical activities including swimming,
exercise walking, lawn care, and shoveling snow. The judge concluded that
petitioner failed to prove that "she lacked potential for full-time employment
under the Katsoris decision."
On this appeal, we do not decide the case ab initio. Rather, we must defer
to the compensation judge's factual findings so long as they are supported by
sufficient credible evidence. Hersh v. Cty. of Morris, 217 N.J. 236, 242 (2014).
However, the judge's legal interpretations are not binding on us. Id. at 243.
After reviewing the record with those standards in mind, we find no basis to
disturb the judge's decision.
As the judge recognized, where an employee suffers a permanent injury
while working at a part-time job, but the injury will also permanently affect the
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employee's ability to perform full-time work, the employee is entitled to benefits
calculated as though she was employed full-time. "[T]he goal of the [Workers'
Compensation] Act to compensate more-fully the most-seriously injured
workers (who, we must add, have suffered diminished future earning capacity[)],
. . . is met by permitting the awards of permanently-injured, part-time
employees to be calculated on the basis of a reconstructed work week."
Katsoris, 131 N.J. at 544. The Court noted that the enhanced award is intended
to compensate the injured employee "for his loss of earning capacity, i.e.,
diminution of future earning power." Id. at 546 (quoting Torres v. Trenton
Times Newspaper, 64 N.J. 458, 460-61 (1974)). That diminution includes the
employee's capacity to work full time either now or in the future. Id. at 548.
On this appeal, petitioner argues that the judge misapplied Katsoris to the
facts of this case. We cannot agree. Petitioner's argument is based on her
version of the facts, which the judge rejected. The record supports the judge's
factual findings, including her evaluation of witness credibility. In light of the
facts, as the judge found them, her decision is legally correct under the standard
set forth in Katsoris. Based on the facts the judge found, petitioner did not prove
that her injuries from the 2009 accident diminished her capacity to perform full-
time work. Petitioner's attempted reliance on the 2018 settlement of her case is
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without merit. The hearing to approve the settlement was not an adversarial
proceeding, and a settlement is not evidence of liability. See N.J.R.E. 408.
Affirmed.
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