CP# 87-15748 and 88-28055 (2002). GERALD PINO, Petitioner v. COUNTY OF OCEAN, Respondent and APPLICATION FOR BENEFITS FROM THE SECOND INJURY FUND and LIBERTY MUTUAL INSURANCE COMPANY- ON CLAIM FOR REIMBURSEMENT OF PIP MEDICAL TREATMENT EXPENDITURES.

• Case Date: July 22, 2002
• Court: New Jersey

New Jersey Workers Compensation 2002. CP# 87-15748 and 88-28055 (2002). GERALD PINO, Petitioner v. COUNTY OF OCEAN, Respondent and APPLICATION FOR BENEFITS FROM THE SECOND INJURY FUND and LIBERTY MUTUAL INSURANCE COMPANY- ON CLAIM FOR REIMBURSEMENT OF PIP MEDICAL TREATMENT EXPENDITURES CP# 87-15748 and 88-28055 Pino v. County of OceanSTATE OF NEW JERSEY DEPARTMENT OF LABOR DIVISION OF WORKERS' COMPENSATION MONMOUTH COUNTY DISTRICTC.P. # 87-15748 and 88-28055GERALD PINO, Petitioner vs. COUNTY OF OCEAN, Respondent andAPPLICATION FOR BENEFITS FROM THE SECOND INJURY FUNDand LIBERTY MUTUAL INSURANCE COMPANY- ON CLAIM FOR REIMBURSEMENT OF PIP MEDICAL TREATMENT EXPENDITURESFINAL DECISIONAPPEARANCES: For the Petitioner:: ROTH and ROTH, a Professional Association by: JEFFREY S. ROTH, Esquire For the Respondent: County of Ocean: BERRY, KAGAN, SHRADNIK and KOTZAS, Esquires by: ROBERT D. BUDESA , EsquireFor Liberty Mutual Insurance Company: JOAN B. SHERMAN, Esquire by GILLEN M. GELDHAUSER, ESQUIRE For Second Injury Fund: DAVID SAMSON, Esquire, Attorney General of New Jersey by LOIS J. GREGORY, Esquire, Deputy Attorney GeneralLAWRENCE G. MONCHER, J.W.C.:Mr. Pino seeks disability benefits from the County of Ocean for injuries to his spine and for a carpal tunnel syndrome from March 17, 1987 and June 15, 1988 accidents. The claim petition for the March 1987 injury is an Application for Review and Modification of a March 24, 1988 Order Approving Settlement in which he was awarded 12 1/2 % of the right hand for residuals of a carpal tunnel syndrome and 7 1/2 % partial permanent disability for orthopedic residuals of a cervical sprain with C6-C7 radiculopathy. Mr. Pino now claims that he is totally disabled as a result of a combination disability from these accidents plus earlier physical impairments. Finally, Liberty Mutual which had been providing for treatment of petitioner's cervical and lumbar spine as petitioner's PIP carrier for a non work related January 27, 1989 automobile accident, declined to continue providing for treatment. Liberty claimed that the treatment and future treatment were due to the earlier compensation injury rather than the automobile accident. Petitioner's counsel filed a motion to join Liberty Mutual to this case. Liberty Mutual consented to joinder because this dispute would be referred here for hearing. I signed an order joining Liberty Mutual as a party. Liberty then sought reimbursement from Ocean County of all or part of the $358,104.02 medical and treatment and incidental expenses it paid out. See N.J.S.A. 39:6A-5 and 6, 34:15-15.1. Clearly Liberty would have been free to initiate its own application for reimbursement which would have been consolidated with this case. See generally: Hetherington v. Briarwood Coachlight, 253 N. J. Super. 484 (App. Div. 1992). The PIP carrier is not bound by the actions of the insured employee and must be afforded a fair opportunity to establish the parameters of its own claim that there was a causal relationship to the compensable accident and that the employer and not it should be held responsible for the treatment expense. During the pendency of this case, Liberty agreed to continue to fund medical treatment subject to its right to obtain reimbursement if it were successful. At an earlier stage of this litigation, I dismissed C.P. 93-34681 against the State of New Jersey for an April 20, 1992 incident to Mr. Pino's back because petitioner failed to sustain his burden of proving that he sustained compensable permanent disability from the incident described in that claim. No credible proofs were introduced in this case to cause me to reconsider that decision. For that matter, neither petitioner, Ocean County, nor Liberty Mutual introduced any proofs which would place any liability on the State for the 1992 incident. 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). By obvious extension, the same burden evidential burden of production and persuasion is placed on the PIP carrier to the extent it seeks to obtain reimbursement from an employer. Petitioner has the burden to prove . . . causal relation [and disability] 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 this 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). This allocation of the burden of proof to establish prior loss of function to the employer is pertinent when the employer seeks to reduce a worker's recovery in a permanent partial disability case or when it seeks to transfer liability in a permanent total disability to the Second Injury Fund. Fiore v. Consolidated Freightways, supra.; Katz v. Township of Howell, 68 N.J. 125, 132 (1975). The employer not only must prove a lessening of prior function, it has the burden of showing there is a causal nexus between the prior impairment and the eventual residual compensable permanent partial disability to cause total permanent disability. Katz v. Township of Howell, supra. Here there is no doubt that Mr. Pino had significant prior impairment to his back arising from earlier injuries with Foodtown and Old Time Tavern which resulted in a 30% permanent partial disability award . N.J.S.A. 34:15-95 (a). That claim is res judicata and can not be revisited here. A potential complicating factor is that this was reduced to judgment in 1996 before another judge. Nevertheless, it is still a documented measurable, substantial preexisting disability for purposes of consideration of calculating personal partial disability or Second Injury Fund benefits. When that case was resolved it was known by all concerned, including the forensic physicians that the subsequent back accidents involving the County and the State were still to be resolved and that the subsequent January 1989 auto accident was a significant factor impacting the disability. Petitioner's Second Injury Fund claim was dismissed by the judge who approved the total 30 % compensation award. Thereafter, a new Second Injury Fund petition was filed. That claim was dismissed by me on December 13, 1999 without prejudice to the dismissal being vacated if new evidence were obtained. I ruled that "Petitioner can not show total disability from prior impairment and the last compensable accident." At that time I considered both the claims against Ocean County and the State alternatively as the last compensable injury for purposes of N.J.S.A. 34:15-95. Petitioner presented expert testimony from Dr. Riss who after being presented with the fact that petitioner had returned to work for Ocean County and was functioning with impairment until the 1989 automobile accident, agreed that this was a contributing factor to his total disability. There was agreement among all parties that based on the available medical proofs that Mr. Pino's permanent total disability was a consequence of compensable injuries plus impairment increased by the consequences of the 1989 non-work connected automobile. I reached this a conclusion after reviewing all of the evidence in the record and offers of proof. Extensive medical records were introduced into evidence. Then petitioner's counsel learned for the first time of Liberty Mutual's changed position on its responsibility for continuing medical care and the newly expressed opinion from Dr. Ani that the extensive back surgery and therapy he provided was all due to the June 1988 compensable injury and not due to the 1989 auto accident. This opinion was in dramatic contradiction of his and other physicians stated opinions justifying the treatment as a consequence of the automobile accident. This followed his 9 years of treatment and receipt of payment from Liberty to him and other providers in excess of $350,000 from the PIP insurer. Because of the import of this newly expressed and surprise evidence, I placed the trial on hold until Liberty Mutual could be joined to the case. As a consequence, I granted petitioner's motion to vacate the earlier dismissal of his Second Injury Fund claim. Transcripts of the testimony were made available to the DAG representing the Second Injury Fund and to Liberty Mutual's counsel and the...