CP# 2001-457 and 2001-25955 (2003). ROBERT W. SMITH, Petitioner vs. WASTE MANAGEMENT, NJ Respondent.

• Court: New Jersey

New Jersey Workers Compensation 2003. CP# 2001-457 and 2001-25955 (2003). ROBERT W. SMITH, Petitioner vs. WASTE MANAGEMENT, NJ Respondent CP# 01-457 Smith v. Waste Management, NJSTATE OF NEW JERSEY DEPARTMENT OF LABOR DIVISION OF WORKERS' COMPENSATION MONMOUTH COUNTY DISTRICT C.P. # 2001-457 and 2001-25955 ROBERT W. SMITH, Petitioner vs.WASTE MANAGEMENT, NJ RespondentDECISION ON MOTION FOR MEDICAL and TEMPORARY DISABILITY BENEFITS APPEARANCES: For the Petitioner: ROBERT A. OLKOWITZ, Esquire For the Respondent: WORTHINGTON and WORTHINGTON, Esquires by: DAVID L. WORTHINGTON, EsquireLAWRENCE G. MONCHER, J.W.C.: Mr. Smith's career for the past 25 years has been as a truck driver and laborer in the waste industry. His formal education ended in the fifth grade, he is 52 years of age. He sustained 2 compensable injuries to his shoulders and can no longer perform this type of work. Initially, the respondent provided treatment and temporary disability for both shoulders. It latter discontinued treatment authorization and temporary disability for petitioner's right shoulder. Respondent's defense to this motion for medical and temporary benefits was the assertion that petitioner had reached the maximum benefit of medical intervention and the right shoulder injury was due to a prior condition rather than the last compensable accident. For the reasons set forth in this decision, I have decided that Mr. Smith shall be paid temporary total disability and be provided with reasonable and necessary medical treatment by Evan Flatow, M.D. Mr. Smith testified and the medical witness testified via telephone conference call. Petitioner presented the testimony of Christopher Johnson, M.D. of Tinton Falls, who is a board certified orthopedic surgeon and the authorized treating physician until the fall of 2001. The respondent presented the testimony of Joseph Leddy, M.D., of New Brunswick, a board certified orthopedic surgeon. The documentary evidence included the office records of Dr. Johnson, two reports prepared by Evan Flatow, M.D., two reports prepared by Dr. Leddy's, 2 reports of Clint Ferentz, M.D. concerning preexisting pathology and his prior treatment to Mr. Smith's shoulders, a report prepared by Jeffrey Bechler, M.D., a board certified orthopedic surgeon affiliated with Dr. Leddy's group, University Orthopedics, and a report of the Tinton Falls Police Department concerning the July 12, 2001 accident where petitioner injured his right shoulder. Respondent was granted the opportunity to present further evidence, but did not do so.

The burden of proof here, as in all Workers Compensation contested cases, is on the petitioner who must produce the evidence and persuade the trier of fact by a preponderance of the credible evidence of the existence of each element of the claim. Perez v. Pantasote, Inc., 95 N.J. 105, 118 (1984). The same evidential standard applies to the elements of the case on which respondent has the burden of proof. Fiore v. Consolidated Freightways, 140 N.J. 452, 479 (1995).For petitioner to prevail he must establish a link between ... [the] disease and occupational conditions. Petitioner has the burden to prove this causal relation by a preponderance of the evidence. All that is required is that the claimed conclusion from the offered facts must be a probable or a more probable hypothesis. . . The test is probability rather than a certainty. . . . However, the evidence must be such as to lead a reasonably cautious mind to the given conclusion. 'The standard is one of reasonable probability; i.e., whether or not the evidence is of sufficient quality to generate a belief that the tendered hypothesis is in all likelihood the truth. It need not have the attribute of certainty, but it must be well founded in reason and logic, mere guess or conjecture is not a substitute for legal proof.' [Citations omitted.] Laffey v. City of Jersey City, 289 N.J. Super. 292, 303(App. Div. 1996).

Once the worker has met his burden of proof, the burden of proof on alternative factual propositions and legal conclusions which will exonerate or mitigate the employers liability shifts to the employer. Cf.Gulick v. H.M. Enoch, Inc., 280 N.J. Super. 96, 109 (App. Div. 1995) and N.J.S.A. 34:15-12(d). Fiore v. Consolidated Freightways, supra., 140 N.J. @ 478-479: Lewicki v. New Jersey Art Foundry, 88 N.J. 75 (1981).

The pertinent provision of the Workers' Compensation statute which speaks to theprovision of medical treatment requires that an

employer shall furnish to the injured worker such medical, surgical, and other treatment, and hospital service as shall be necessary to cure and relieve the worker of the effects of the injury and to restore the functions of the injured member or organ where such restoration is possible... [The] Division of Workers' Compensation, after... giving the employer an opportunity to be heard, shall determine ... [whether] such ... treatment is necessary. [Emphasis added.] N.J.S.A. 34: 15-15.

The employer's statutory duty to provide adequate and proper medical treatment is absolute. Benson v. Coca Cola Co., 120 N.J. Super. 60, 66 (App. Div. 1972). Under the New Jersey Workers' Compensation...