CP# 1993-32163 (2009). Lisa Marie Kiessling , Petitioner vs. Prudential Insurance Company, Respondent.

• Court: New Jersey

New Jersey Worker's Compensation 2009. CP# 1993-32163 (2009). Lisa Marie Kiessling , Petitioner vs. Prudential Insurance Company, Respondent CP# 1993-32163 Kiessling v. Prudential Insurance CompanyDIVISION OFWORKERS' COMPENSATION ESSEX COUNTY DISTRICT 124 HalseyStreet,2nd Floor Newark, New Jersey 07101 Telephone: 973-648-2785; Fax 973-648-7780Claim Petition No. 1993-32163 Lisa Marie Kiessling , Petitionervs.Prudential Insurance Company, RespondentBEFORE: Stephen Tuber, JWC Appearances: Irwin R. Rein, Esq. 59 Main Street, Suite 203West Orange, NJ 07052Attorneys for PetitionerFreeman, Barton, Huber and Sacks, Esqs.By: William T. Freeman, Esq.PO Box 1020 Tanner StreetHaddonfield, NJ 08033Attorneys for RespondentDECISION This is a written decision on respondent's motion filed with the "Department of Labor and Industry (sic) Division of Workers' Compensation" ... "to terminate petitioner's benefits." Although respondent did not specify the part of our statute seeking such relief, NJSA 34:15-27, provides in pertinent part, "An award, determination and rule for judgment or order approving settlement may be reviewed at any time on the ground that the disability has diminished." Rodriquez v. Michael A. Scatuorchio, Inc., 42 N.J. Super. 341 (A.D. 1956), certification denied 23 N.J.140. In support of its motion "to terminate petitioner's benefits," respondent's attorney submitted a Certification, a report from Dr. Effron dated June 10, 2007, and two reports from Dr. Gallina dated May 13, 2007 and July 7, 2007. At trial, respondent produced two lay witnesses, Ms. Ruth Lee Beam and Ms. Catherine A. Reilly [Ms. Beam and Ms. Reilly are sisters], and Drs. Gallina and Effron. Petitioner's case consisted of her testimony and the testimony of Dr. Crain. The issue in this matter is whether the petitioner is employable. That is, has her physical and mental condition has changed since an Order for Judgment was entered on April 23, 2003, so that she is now capable of selling her services in a reasonably stable employment market.(fn1)Everhart v. Newark Cleaning and Dyeing Co., 120 N.J.L. 474) Sup. Ct. 1938), Barbato v. Alsan Masonry and Concrete, Inc., 64 N.J. 514 (1974). Of course, as it was stated Kalson v. Star Electric Motor Co. 15 N.J. 565 (Cty. Ct. 1951), affirmed 21 N.J.Super.15 (App.Div 1952), "A workman does not have to be bedridden to be totally and permanently disabled (Jersey City Printing Co. v. Klochansky, 8 N.J. Super. 186 (App. Div. 1950); he need not be absolutely disabled or totally paralyzed (Cleland v. Verona Radio Co., 130 N.J.L. 588 (Sup. Ct. 1943) or completely unable to get about (Hayes v. First Baptist Church of Bloomfield, 18 N.J. Misc. 139 (N.J. Dept. of Labor 1940)). Nor is ability for light or intermittent or sedentary work inconsistent with total disability. Jersey City Printing Co. v. Klochansky, supra; Clark v. American Can Co., 4 N.J. 527, 534 (1950)." Applying these precepts, I find that the petitioner remains totally and permanently disabled. My decision is based on the testimony of the petitioner, respondent's two lay witnesses, and the testimony of Dr. Crain. I reject the testimony of Drs. Gallina and Effron. I do this because for me to accept their testimony that the petitioner is capable of work, I would have to not only reject petitioner's testimony and the objective medical evidence of her multiple surgeries and the current authorized psychiatric treatment she is currently receiving, but the testimony of respondent's two fact witnesses, and the testimony of Dr. Crain, who explains with reasons based upon sound medical rationale why the petitioner remains totally and permanently disabled. This of course I cannot do. To me, a trial is a search for the truth. That is why I asked the petitioner to take me through a "typical day," and I asked respondent's witnesses to describe every activity that they observed the petitioner doing. Simply put, I wanted to ascertain whether the petitioner was engaged in activities that would indicate that she was capable of gainful employment. Interestingly, notwithstanding some apparent hostility between petitioner and respondent's fact witnesses, the testimony of respondent's fact witnesses corroborates petitioner's testimony. Indeed, with few exceptions all three witnesses' testimony is consistent. Thus, for reasons which I will go into at length, even if the petitioner engaged in every activity the respondent's witnesses indicated they observed her doing this would not indicate that she is capable of employment. Once again, I quote Kalson, "A workman does not have to be bedridden to be totally and permanently disabled (Jersey City Printing Co. v. Klochansky, 8 N.J. Super. 186 (App. Div. 1950); he need not be absolutely disabled or totally paralyzed (Cleland v. Verona Radio Co., 130 N.J.L. 588 (Sup. Ct. 1943) or completely unable to get about (Hayes v. First Baptist Church of Bloomfield, 18 N.J. Misc. 139 (N.J. Dept. of Labor 1940)). Nor is ability for light or intermittent or sedentary work inconsistent with total disability. Jersey City Printing Co. v. Klochansky, supra; Clark v. American Can Co., 4 N.J. 527, 534 (1950)." Ruth Lee Beam was the first fact witness called by the respondent. Ms. Beam testified "over the last six years" she has "had an opportunity to observe Miss Kiessling?" Ms. Beam testified that over the last six years she has observed the petitioner "shovel snow from the alley as well as out front"... "Carrying groceries up from the Royal Farm store that she gets down there, such as milk produce; see her going and coming in the car frequently." ... "seen her give the puppies a bath through the bamboo fence -- her neighbor's back yard, you can see it from the neighbor next -" Mrs. Little's house..." Walk her Great Danes, one to three at a time at least twice a day ... Breed and sell her Great Danes three times... observed petitioner's tattoos... take a taxi to and from Annapolis... erect a bamboo fence... Drive her car "Every day." ... Wash down feces "down the alley" ... walk up and down the block and talk to people... lift potting soil, carry two gallons of milk, one in each hand, and lift a forty pound bag of dog food. Cross-examination revealed that the fence that Mrs. Beam testified that petitioner erected was not in fact constructed by the petitioner, but "This fence was only reeds, like bamboo that was being-"that was being attached to a fence that was already there; isn't that correct?" To which the witness answered "Yes." Continuing, Q So the Court can get the idea, this was hanging, this bamboo or reed material, on an existing fence; is that correct?" A Yes Cross-examination also revealed that Mrs. Beam contacted the municipal authorities about the need for a permit to construct, as the witness indicated petitioner did on direct examination, or as the witness testified on cross-examination, to alter the fence by putting reeds on the existing fence. I quote. Q Let me see if I can make it broader: Did anyone ever come to your house from the city and advise you to stop making all these complaints on 311? A No. I had a man come out and say something about her fence and she didn't need -" she didn't need a permit for a bamboo fence. Mrs. Beam also testified that petitioner's garage was so dirty that it appeared to be a nesting ground for rats. Indeed, on various occasions she called the local authorities to complain about rats coming out of petitioner's garage. Of course, this would corroborate petitioner's testimony that she is unable to upkeep her house. It also calls into question the accuracy of the report that the respondent attempted to enter into evidence from the municipal authority investigator that found her house orderly. Of course, the report may have been accurate because the petitioner may have cleaned her house knowing that an investigator was to conduct a visit to determine whether a multiple pet license should be issued. Perhaps I should have admitted the report into evidence as an exception to the hearsay rule -" it was a government document, but since the respondent did not make a proffer of proof that the government official that wrote the report was unavailable, I thought that the right of cross-examination should not have been abrogated especially considering the respondent did not ask for the official's testimony to be taken telephonically, or that the official was not available. Of course, if the respondent requested that the official's testimony be taken telephonically I would have granted his request. Mrs. Beam also corroborated petitioner's testimony that she was unable to make repairs or otherwise take care of her house. In this regard, Mrs. Beam testified on several occasions she saw workers come into her house wearing tool-belts. As to the petitioner's testimony that she was unable to take care of her house, Mrs. Beam testified the petitioner had a Bill Bruchey haul trash from her house, notwithstanding the fact that twice a week the city would pick up trash left at the curb. I quote: QIs there something wrong with Bill Bruchey hauling away the trash? ANo, but was something wrong that a lady would -" that's not -" you know, that's just not being heard of to have a garage full of trash bags until the truck is halfway up from the garage; nothing but trash; she wouldn't put it out for the sanction (sanitation) workers to take twice a week. Perhaps what was "wrong" with the...