THOMAS VAN ARTSDALEN VS. FRED M. SCHIAVONE CONSTRUCTION(DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT, DIVISIONOF WORKERS' COMPENSATION)
A-3392-15T1
| N.J. Super. Ct. App. Div. | Oct 5, 2017Background
- Petitioner Thomas Van Artsdalen (carpenter, 34 years' experience) sustained a compensable work-related fall on January 26, 2012, while carrying plywood and thereafter treated for lumbar spine injuries with MRIs, physical therapy, pain management and an epidural injection.
- He attempted to return to work multiple times, worked from July 2012 to September 2013, then retired due to pain; treatment continued intermittently through September 2014 and then stopped.
- Two medical experts produced reports: Dr. Gaffney (petitioner's expert) rated 52.5% permanent partial disability; Dr. Maletsky (employer's expert) rated 2% permanent partial disability.
- The judge of compensation credited Van Artsdalen’s testimony and Gaffney’s findings (in part), rejected Maletsky’s opinion, and assessed a 47.5% permanent partial disability based on multi-level disc pathology and the judge’s view that the condition was inoperable.
- Employer Schiavone appealed, arguing the judge’s findings (operative status, work attendance history, and 47.5% rating) were unsupported by substantial evidence because neither party’s physicians found surgery indicated and petitioner had ceased treatment and remained able to perform daily activities.
- The Appellate Division vacated and remanded, holding there was no evidentiary support for the judge’s findings that the injury was inoperable or that petitioner had taken few days off during his career—facts central to the disability assessment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether judge's credibility determinations and disability rating (47.5%) were supported by substantial evidence | Van Artsdalen: testimony, objective imaging, expert (Gaffney) support a high permanency rating | Schiavone: experts disagree; petitioner functions in daily life, stopped treatment, no physician found surgery indicated, so rating unsupported | Court: Overall disability decision must be reconsidered because two key factual findings (inoperability and limited prior absences) lacked evidentiary support; judgment vacated and remanded |
| Whether the judge permissibly preferred one expert over the other | Van Artsdalen: Gaffney's exam and diagnostics support his conclusions | Schiavone: Maletsky’s low rating and observations undermine high rating | Court: Deference to judge's weighing of experts is appropriate, but here the judge relied on findings (inoperability, attendance history) not supported in record, requiring remand |
| Whether inoperability of petitioner’s condition was supported | Van Artsdalen: multiple-level disc pathology and failed injections justify finding inoperable | Schiavone: No treating or expert physician concluded surgery was indicated or impossible | Court: No evidence that any physician concluded condition was inoperable; judge’s inoperability finding unsupported |
| Whether factual errors (attendance history) can be the basis for permanency finding | Van Artsdalen: long work history with few absences supports credibility and severity | Schiavone: Record does not show few absences over career; contention unsupported | Court: Finding that petitioner took few days off during career not supported by record; cannot underpin permanency conclusion |
Key Cases Cited
- Hersh v. Cty. of Morris, 217 N.J. 236 (explaining appellate review limits for workers' compensation factual findings)
- Sager v. O.A. Peterson Constr., Co., 182 N.J. 156 (standards for appellate review of agency findings)
- Renner v. AT&T, 218 N.J. 435 (deference to agency expertise in compensation cases)
- Lindquist v. City of Jersey City Fire Dep't, 175 N.J. 244 (credibility determinations and appellate review)
- Reinhart v. E.I. Dupont De Nemours, 147 N.J. 156 (weight given to witnesses' demeanor and credibility)
- Bellino v. Verizon Wireless, 435 N.J. Super. 85 (judge not bound by any single medical expert)
- Ramos v. M & F Fashions, Inc., 154 N.J. 583 (compensation judges' expertise in weighing medical testimony)
- Lombardo v. Revlon, Inc., 328 N.J. Super. 484 (limits on appellate substitution of factfinding)
- Sexton v. Cty. of Cumberland/Cumberland Manor, 404 N.J. Super. 542 (deference to agency's legal interpretations limited when reviewing legal consequences)
- Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366 (review standards for legal issues arising from agency facts)
- Kaneh v. Sunshine Biscuits, 321 N.J. Super. 507 (court may reject conclusory expert opinions)
- Smith v. John L. Montgomery Nursing Home, 327 N.J. Super. 575 (appellate court will not reverse simply because judge credited one physician over another)