SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1324-15T1

KEVIN ROY,

Petitioner-Respondent,

v.

MARSDEN & SONS ELECTRIC,

Respondent-Appellant.

_______________________________

Submitted December 19, 2016 – Decided

Before Judges Nugent and Currier.

On appeal from Department of Labor and 

Workforce Development, Division of Workers' 

Compensation, Claim Petition No. 2011-32131.

Carpenter, McCadden & Lane, LLP, attorneys for 

appellant (Christopher R. Bridgman, on the 

brief).

Petro Cohen Petro Matarazzo, PC, attorneys for 

respondent (Janis A. Eisl, on the brief).

PER CURIAM 

This is a workers' compensation action. Respondent Marsden 

Electric appeals from an October 16, 2015 order for judgment on 

petitioner Kevin Roy's Application for Review or Modification of 

NOT FOR PUBLICATION WITHOUT THE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.

August 9, 2017
2 A-1324-15T1

Formal Award ("re-opener"). The order for judgment awarded 

petitioner forty-two and one-half percent of partial total 

permanent disability, an increase of twenty percent. 

On appeal, respondent argues petitioner presented 

insufficient credible medical evidence to prove his partial total 

disability increase from twenty-two and one-half percent to fortytwo and one-half percent. Having considered respondent's 

arguments in light of the record and applicable legal principles, 

we reject the argument and affirm the order for judgment.

These are the facts. On July 26, 2011, while working on a 

ladder during the course of his employment with respondent, 

petitioner fell eight to ten feet. Five months after his accident, 

petitioner filed a workers' compensation employee's claim petition 

in which he alleged he was partially disabled as a result of 

injuries to his lumbar spine. His workers' compensation claim was 

resolved when a Judge of Compensation ("JOC") entered an October 

2, 2012 order approving settlement. The settlement resulted in 

an award to petitioner of twenty-two and one-half percent of 

partial total permanent disability "for orthopedic and neurologic 
3 A-1324-15T1

residuals of the lumbar spine for a compression fracture at L1 and 

L2 and for a bulging disc at L5-S1."1

Slightly less than two years after the JOC entered the order 

approving settlement, petitioner filed the re-opener. He alleged 

he had "suffered an increase in disability since the entry of the 

prior Award." Following the exchange of discovery, petitioner's 

claim was scheduled for a hearing on October 16, 2015. 

Petitioner and respondent waived their right to present 

expert witnesses and agreed to have the JOC decide the case based 

on petitioner's testimony and twenty-one documentary exhibits the 

parties entered into evidence by agreement. The first thirteen 

exhibits consisted of medical records concerning petitioner's 

treatment from the date of his accident through the order approving 

settlement of the original claim. The next four exhibits included 

medical records concerning petitioner's resumption of treatment 

in 2014, the report of a December 17, 2014 MRI scan of petitioner's 

lumbar spine, and the reports of petitioner's evaluating physician 

concerning petitioner's increased disability. The final four 

exhibits consisted of four medical reports, two concerning 

respondent's doctor's medical evaluation following petitioner's 

 

1 The medical records and pleadings are not consistent in 

describing the fractures. Some describe the fractures at L1 and 

L2, others at L1 and L5. The parties do not appear to dispute the 

second compression fracture occurred at L5. 
4 A-1324-15T1

fall from the ladder, and two concerning respondent's medical 

expert's evaluation of petitioner for the re-opener. 

Following the 2012 order approving settlement, petitioner 

next consulted a doctor on November 13, 2014. Dr. Joseph R. 

Zerbo's report of the visit summarizes the relevant history: 

[Petitioner] is a 45 year old right[-]handed 

male who presents today for spinal re[-] 

evaluation regarding progressive worsening of 

low back pain stemming from an initial workrelated injury on 7/26/11. I initially saw 

[petitioner] on 7/27/11 at the Trauma Center 

at Atlanticare Regional Medical Center after 

he sustained a fall at work from approximately 

10 feet. [Petitioner] was diagnosed with 

compression fractures of the lumbar spine at 

L1 and L2. We initially treated [petitioner] 

with a lumbosacral orthosis which was worn for 

approximately three months. This was removed 

and [petitioner] was started in a formal 

physical therapy program. Physical therapy 

was performed three times a week at NovaCare 

in Rio Grande. This also included a work 

hardening program. Once the work hardening 

program completed, [petitioner] did undergo 

Functional Capacity Evaluation at Kinomatic 

Consultants on 3/14/12. This did allow 

[petitioner] to return to full[-]time full 

duty work. 

Unfortunately, [petitioner] states that he has 

continued to deal with progressively 

increasing low back pain associated with 

occasional numbness and paresthesias in the 

lower extremities bilaterally. He has 

physical restrictions with any type of 

prolonged sitting, standing, walking, 

bending, or lifting secondary to the pain. 

[Petitioner] describes no other injuries to 

his low back since the work accident of 

7/26/11. 
5 A-1324-15T1

Dr. Zerbo recommended petitioner obtain a new MRI study of 

the lumbar spine. The MRI scan was completed on December 17, 

2014. According to the report of the physician who evaluated the 

MRI scan, the scan revealed the following: mild scoliosis; old 

compression fractures of L1 and L5; disc bulge at L4-5, minimal 

disc bulges at L3-L4 and L5-S1, with no significant spinal stenosis 

or visible nerve root compression, and no focal disc herniation; 

and suspected cholelithiasis. 

On January 8, 2015, Dr. Zerbo met with petitioner after 

reviewing the MRI. Dr. Zerbo diagnosed petitioner's condition as 

"internal disc derangement at L4-5 and L5-S1 producing discogenic 

lumbar syndrome." According to Dr. Zerbo, the MRI also confirmed 

petitioner's previous fractures had "healed satisfactorily." Dr. 

Zerbo recommended petitioner consider surgery, which would involve 

posterior lumbar inter-body fusion at L4-5 and L5-S1, if 

petitioner's physical capacities "are of such a debilitating 

degree." Petitioner declined to undergo surgery. Dr. Zerbo 

discharged him from active care.

Dr. John L. Gaffney, board certified in family medicine, 

evaluated petitioner. Dr. Gaffney noted he had evaluated 

petitioner on April 17, 2012, in reference to the injuries 

petitioner had sustained in the July 26, 2011 work accident. 
6 A-1324-15T1

Dr. Gaffney's physical examination of petitioner revealed 

petitioner had "difficulty transferring positions from a supine 

to sitting to standing position due to his spinal pain." 

Petitioner also had spasm and tenderness over the paralumbar muscle 

regions of the lumbar spine. According to Dr. Gaffney's report, 

"[t]here is sensory deficit with pinprick into the bilateral 

extremities, over the L4-L5 and L5-S1 dermatomal region." Certain 

clinical tests Dr. Gaffney considered objective were positive for 

pain, and petitioner had limited range of motion of the lumbar 

spine. 

Based on Dr. Gaffney's review of relevant medical records and 

examination of petitioner, he rendered the following diagnosis: 

orthopedic residuals for a compression fracture of superior 

endplate of L1, and compression fracture of the superior endplate 

of L2; new progressive lumbar disc injury with bulging disc at L3-

L4 and L4-L5, and a disc osteophyte complex and L5-S1; persistent 

and progressive lumbar radiculopathy; lumbar fibromyositis 

syndrome; and chronic pain in the lumbar spine. 

Dr. Gaffney opined, within a reasonable degree of medical 

probability, that petitioner's injuries were directly and causally 

related to the work-related accident of July 26, 2011. According 

to Dr. Gaffney's report, the injuries "have produced demonstrable 

objective medical evidence of restriction of function and 
7 A-1324-15T1

lessening of a material degree of working ability, as well as 

interferences with ability to perform activities of daily 

living[.]" Dr. Gaffney concluded: "The objective medical findings 

. . . have resulted in an increase of 45 percent permanent/partial 

disability in reference to the lumbar spine, above the previously

noted award of compensation." 

Respondent's evaluating physician, Francis C. Meeteer,

examined petitioner on July 14, 2015. The doctor had not 

previously evaluated petitioner. Unlike Dr. Gaffney, Dr. Meeteer 

found no tenderness or spasm when he examined petitioner's lumbar 

spine. Clinical tests were generally negative. Dr. Meeteer 

concluded:

As a result of my findings as outlined above, 

it is my opinion that [petitioner] has a [five 

percent] permanent partial total disability 

due to his chronic lumbar or low back pain 

with compression fracture at L1 and L5 and 

disc bulging of the lumbar spine as outlined 

above that occurred as the result of the workrelated accident on July 26, 2011. My 

opinions are stated within a reasonable degree 

of medical certainty.

Petitioner testified at the hearing. He claimed his condition 

was considerably worse than when the settlement was approved in 

October 2012. In 2012, he experienced a severe, stabbing pain in 

his back that radiated down to both feet, but lasted maybe an hour 

and occurred only a few times each month. He rated the pain as a 
8 A-1324-15T1

three or four. According to petitioner's testimony during the reopener hearing in 2015, however, the sharp shooting pain radiating 

through the sides of his buttocks, throbbing down his legs, and 

causing his toes to tingle, was "there constantly." 

In 2012, the pain would waken him from a night's sleep 

occasionally. By the 2015 hearing, the pain woke him two or three 

times each night. He was unable to sleep through the night. He 

was also unable to lay on his side, and discomfort and a sharp 

shooting pain wakened him. 

In 2012, petitioner could walk three miles and lift objects 

weighing approximately thirty to forty pounds. Otherwise, he 

generally led a sedentary life. Now, petitioner no longer walks 

long distances due to fear that he may not be able to "walk back"; 

leaves his shoes tied and uses a long shoe horn to put his shoes 

on, because he can no longer bend down to do so; and seldom lifts 

objects that weigh more than a grocery bag. 

The parties agreed that from the documentary evidence and 

petitioner's testimony, the JOC had to determine whether 

petitioner sustained an increase in his permanent disability and,

if so, to what extent. As previously noted, the JOC found 

petitioner sustained a twenty-percent increase in his disability. 

In an oral opinion delivered from the bench at the conclusion 

of the hearing, as amplified in a January 15, 2016 written 
9 A-1324-15T1

decision, the JOC reiterated the sole issue before her was whether 

an increase in petitioner's previous award was justified and, if 

so, in what amount. The JOC found petitioner testified "candidly 

and credibly." She noted that during his testimony petitioner was 

in "obvious distress." The distinctions he made between his pain, 

disabilities, and functional losses between 2012 and 2015 were 

corroborated by the recent MRI findings. 

The JOC noted that only petitioner's evaluator, Dr. Gaffney, 

evaluated him in both 2012 and 2015. Different medical experts 

performed evaluations for respondent in 2012 and 2015. The JOC 

found Dr. Gaffney's evaluation more credible than that of Dr. 

Meeteer "as to the consistency of the findings . . . when compared 

to the diagnostic evidence[.]" The JOC noted "Dr. Gaffney is the 

only medical doctor who had the benefit of [completing a] full 

term . . . case evaluation – both pre-the first settlement in 2012 

and after that settlement for this re-opener in 2015[.]"

Significantly, the JOC determined that the treating records, 

diagnostic studies, and a functional capacity examination enabled 

her to note the diagnostic changes that had occurred during the 

intervening years. Based on petitioner's credible testimony, the 

explicit descriptive differences in his functionality between the 

first settlement and the hearing on his re-opener, as well as the 

medical records and diagnostic tests, the JOC determined there was 
10 A-1324-15T1

"a new progressive lumbar disc injury with MRI evidence of bulging 

disc at L3-4 and L4-5 and disc osteophyte complex at L5-S1 with

internal disc disruption/derangement at L5-S1 with bilateral 

radiculopathy superimposed upon prior compression fracture of two 

lumbar superior end plates." 

The JOC concluded the "award of an increase of twenty 

[percent] is consistent with all of the records, diagnostics, 

petitioner's testimony and his multiple evaluating doctor's 

reports which were taken in as testimony." 

On appeal, respondent argues there was insufficient credible 

medical evidence, and insufficient testimony from petitioner, to 

prove his partial total disability increased from twenty-two and 

one-half to forty-two and one-half percent. Respondent initially 

asserts petitioner "did not present credible medical evidence 

causally relating such an increase in disability to the original 

incident and resulting injury." Respondent acknowledges that Dr. 

Gaffney's report includes the statement, "the injuries noted are 

directly and causally related to the work-related accident, which 

occurred on July 26, 2011"; but asserts Dr. Gaffney "provided no 

basis or detail surrounding his opinion as to causation besides a 

mere conclusory statement." 

Respondent goes on, however, to acknowledge the new evidence 

of petitioner's L3-4 and L4-5 bulging lumbar discs is causally 
11 A-1324-15T1

related to the original accident, as admitted by respondent's 

evaluating physician. Respondent asserts these "are the only 

possible injuries for which [petitioner] has met his burden of 

proof for an increase in disability," but further asserts "[a]n 

increase from [twenty-two and one-half] to [forty-two and onehalf] percent permanent partial total is excessive for a disc 

bulge at L4-5 and minimal bulge at L3-4." 

Parsing the medical evidence rather than considering it as a 

whole, respondent asserts some of the JOC's findings are 

unsupported by the record. Respondent also argues petitioner's 

testimony was inadequate to support an increase in partial 

permanent disability of twenty percent "by a preponderance of the 

evidence." 

The scope of our review is well established.

In workers' compensation cases, . . . 

appellate review is limited to "whether the 

findings made could reasonably have been 

reached on sufficient credible evidence 

present in the record, considering the proofs 

as a whole, with due regard to the opportunity 

of the one who heard the witnesses to judge 

. . . their credibility."

[Lindquist v. City of Jersey City Fire Dep't, 

175 N.J. 244, 262 (2003) (quoting Close v. 

Kordulak Bros., 44 N.J. 589, 599 (1965)).]

"Deference must be accorded the factual findings and legal 

determinations made by the [JOC] unless they are 'manifestly 
12 A-1324-15T1

unsupported by or inconsistent with competent relevant and 

reasonably credible evidence as to offend the interests of 

justice.'" Ibid. (quoting Perez v. Monmouth Cable Vision, 278 

N.J. Super. 275, 282 (App. Div. 1994), certif. denied, 140 N.J.

277 (1995)).

Having considered petitioner's arguments in light of these 

principles and the hearing record, we affirm the JOC's 

decision. Her decision is supported by sufficient credible 

evidence on the record as a whole. Petitioner's arguments to the 

contrary are without sufficient merit to warrant extended 

discussion. R. 2:11-3(e)(1)(D) and (E). We add only these brief 

comments.

Respondent's argument is based largely on parsing out and 

isolating different parts of various medical records and reports, 

rather than construing them as a whole. In addition, respondent 

is critical of petitioner's expert's reports because the reports' 

explanations concerning the extent of petitioner's increased 

disability and the causal relation of that increase to the original 

accident does not contain sufficient elaboration. Yet, by agreeing 

to present the medical evidence in reports rather than by experts' 

testimony, respondent now criticizes the JOC for doing precisely 

what the parties tasked her with doing; namely, reviewing the 

documentary evidence as a whole and determining the credibility 
13 A-1324-15T1

of conflicting reports based on all the documentary evidence as 

well as petitioner's testimony. That is precisely what the JOC 

did, and her findings are amply supported by the documentary 

evidence and petitioner's testimony.

Although not entirely clear, it appears that respondent 

concedes petitioner suffered some increased disability. 

Respondent insists, however, that a newly diagnosed condition, 

documented on MRI, could not have possibly caused a twenty percent 

increase in petitioner's partial permanent disability. That 

determination, however, is well within the expertise of a JOC, 

with respect to whom our standard of review is deferential. 

Respondent has pointed to nothing in the record, and particularly 

nothing in the medical records and expert reports, that provide 

us with either a methodology or basis for questioning the JOC's 

quantification of petitioner's increased disability.

Affirmed.