This my Reserve Decision in the consolidated cases of Maritza Baez v. County of Atlantic and Maritza Baez v. Progressive Living Units & Systems.

PROCEDURAL HISTORY

Petitioner initially injured her left knee on March 21, 1999 while employed by the County of Atlantic and filed Claim Petition #2000-004204 in connection with that accident, which was admittedly compensable.  Petitioner suffered a second compensable accident while working for the County of Atlantic on February 18, 2000 and thereafter filed Claim Petition #2000-011421.  After leaving the County of Atlantic, petitioner became employed by Progressive Living Units & Systems (hereinafter PLUS of New Jersey) and suffered a third compensable injury to her left knee on March 22, 2002, C.P. #2002-013548.  This accident occurred while PLUS of New Jersey was insured by New Jersey Manufacturers Insurance Company (hereinafter NJM).  Petitioner allegedly sustained additional injuries to her left knee on October 23, 2002 and May 5, 2003 while working for PLUS of New Jersey during which time respondent PLUS was insured by Liberty Mutual Insurance Company (hereinafter Liberty Mutual).  Petitioner filed two additional claim petitions for these accidents, C.P. #2002-040092 and #2003-017099, both of which were denied by Liberty Mutual.  When Liberty refused to provide benefits, petitioner filed a Motion for Medical Treatment and Temporary Disability Benefits alleging that her need for medical treatment is primarily related to her last accident of May 5, 2003, since she was unable to work after that date.  As a result of Liberty Mutual’s position, however, petitioner contends that her need for medical treatment is causally related to one or more of the accidents in question and has left it to the court to determine whether more than one insurance carrier is obligated to provide medical treatment and temporary disability benefits. 

FINDINGS OF FACT

Petitioner, Maritza Baez sustained an injury to her left knee on March 21, 1999 while employed as a food service worker at Meadowview Nursing Home, which is owned and operated by respondent, County of Atlantic.  Petitioner was stationed at the dishwashing machine cleaning food trays when she slipped on a wet floor and struck her left knee directly on the floor.  Respondent, Atlantic County referred petitioner to Dr. Raymond Weiand of Pace Orthopedics who diagnosed a contusion of the anterior portion of the left knee and pre-patellar bursitis.  In order to rule out internal derangement, Dr. Weiand prescribed an MRI which was performed on March 27, 1999.  The MRI confirmed that petitioner did not have a bone contusion, and further confirmed that the menisci were normal in appearance.  The only abnormality was edema in the anterior, medial and lateral subcutaneous fat around the knee.  When petitioner’s knee did not respond to conservative treatment, Dr. Weiand performed a diagnostic arthroscopy on April 26, 1999.  His preoperative diagnosis was persistent pain and swelling of the left knee with left knee effusion and irritated contused pre-patellar bursa.  The diagnostic MRI revealed normal medial and lateral menisci, but also revealed a small fissure in the undersurface of the patella.  Intra-operative x-rays were negative as related to the left patella.  Dr. Weiand found, however, that the pre-patellar bursa was extremely thick, and therefore performed an open pre-patellar bursectomy.  His post-operative diagnosis was chronic pre-patellar bursitis with scarring of the patella bursa and normal interarticular aspects of the left knee except for a Grade A chondromalacia of the patella.  Subsequent to the arthroscopic surgery, petitioner developed an infection which was drained several times and which required three additional surgeries.

Petitioner suffered a second injury to her left knee on February 18, 2000, while still working as a food service worker, when her left knee was struck by a food cart being pushed by a fellow employee.  She developed a mild degree of swelling, and was returned to Pace Orthopedics where she was examined by Dr. Glenn Zuck.  Dr. Zuck noted that petitioner had a functional range of motion, with a small abrasion over the anterior aspect of the knee.  He found no instability of the ligamentous structures with provocative testing and did not feel that x-rays were indicated.  He diagnosed a contusion with associated synovitis of the left knee, and prescribed a knee brace.  Petitioner had minimal conservative treatment for this injury. 

As a result of recurring infections, swelling and pain in the pre-patellar region of her knee, petitioner saw Dr. Weiand and Dr. Zuck periodically through January 8, 2002.  On October 7, 1999, Dr. Zuck requested a functional capacity evaluation which determined that petitioner was unable to complete many of the tasks requested due to changes in her gait pattern and an inability to squat.  The evaluator found that petitioner had decreased left knee, quad and hamstring strength that limited her ability to perform normal duties of a food service worker for the County of Atlantic.  He recommended a progressive course of physical therapy to address her left lower extremity strength and muscular endurance deficits, and felt that she should be able to return to full duty after completion.  Thereafter, petitioner underwent physical therapy from October 19, 1999 through November 3, 1999, and from January 7, 2000 through January 26, 2000.  The Pace Orthopedic treatment records indicate that as of January 28, 2000, petitioner was returned to work full duty, on a modified schedule of four hours per day for one week, working up to eight hours over three weeks.

As noted above, petitioner sustained a new injury on February 18, 2000 when she was struck in the left knee by a food cart, but she was permitted to continue working full duty. The treatment records further indicate that as of April 3, 2000, approximately six weeks after this accident, petitioner was still working eight hours per day and Dr. Zuck felt that she could continue to participate in full duty, without restrictions, even though she had pain in the left knee.

As noted above, petitioner continued to treat periodically for infections and subsequently underwent plastic surgery on May 10, 2001 performed by Dr. Marc Feldman.  When she last saw Dr. Weiand on January 8, 2002, he noted that she had swelling of the left knee, but felt that it was unrelated to her initial injury.  At that time, he placed her on modified duty until January 11, 2002.

In discussing the injuries for which Pace Orthopedics treated the petitioner, Dr. Weiand described them as direct blows to the patella.  He did not find any subluxation problems, which could have occurred had petitioner suffered a twisting injury where the femur would rotate out from under the kneecap.  Dr. Weiand further found no evidence, either in the MRIs or in his arthroscopic surgery, of any subluxation or shifting of the patella.  It was Dr. Weiand’s opinion that, based upon the history of the accidents, and his own medical findings,  there was no subluxation of petitioner’s left patella while he treated her. 

Petitioner subsequently left the County of Atlantic and went to work for PLUS of New Jersey as a life-skills trainer.  Her duties required her to care for individuals, in their own homes, who suffered brain injury from trauma.  On March 22, 2002, petitioner bent down to put on a client’s shoes, and as she did so bent her knees.  Her left knee gave out and then locked.  Petitioner was sent to Dr. Roy Friedenthal at Central Orthopedics for treatment.  She was initially seen by Dr. Judi Tassone on March 28, 2002.  Dr. Tassone found that petitioner had an antalgic gait, decreased step length on the left, and further found that flexion of the left leg caused significant discomfort with palpable grinding and crepitus of the left patella.  She noted moderate effusion, with some laxity in the lateral ligament.  Her impression was left knee pain with possible patella subluxation by history.  Treatment included ice, anti-inflammatories,  rest and elevation of the left leg.  Petitioner was returned to full duty on April 25, 2002, approximately one month later, with instructions to avoid repetitive squatting.  When petitioner continued the swelling and discomfort about the medial and lateral joint spaces, with crepitus and discomfort at the end of the range of flexion, Dr. Friedenthal ordered an MRI in order to evaluate petitioner’s left knee for internal derangement.  The MRI findings noted that the meniscal signal was within normal limits, with no evidence of tear.  The anterior, posterior, medial and collateral ligaments were intact.  The only abnormal finding was minimal joint effusion.  Dr. Friedenthal continued to follow the petitioner.  In his progress note of June 5, 2002, he noted that petitioner had residual damage in the knee but nothing is further correctable.  He recommended that petitioner keep the knee strong with her quad exercises.  He essentially discharged the petitioner at that time and indicated that he would be happy to reevaluate her as needed.  Petitioner was subsequently seen in the emergency room on September 4, 2002 for an infection of the left knee without evidence of new injury.  By September 19, the infection had resolved and petitioner was taken off antibiotics.  At that time, she had good range of motion and good strength, although she continued to suffer moderate pain in the knee.

On October 23, 2002 petitioner attempted to pick up wet linen from the floor at a client’s home.  As she bent down to pick up the linen, her knee twisted and popped out, and thereafter became swollen, red and painful.  Although New Jersey Manufacturers was off the risk as of October 1, 2002, it apparently treated the petitioner’s condition as a continuation of the injury of March 22.  As a result, petitioner was referred back to Dr. Friedenthal who evaluated her on October 31, 2002.  He noted that the history given by the petitioner described a subluxation of the patella.  Clinically, he found the petitioner had effusion as well as marked patellar laxity.  In the note on the same day, Dr. Friedenthal reflected on the fact that the petitioner had been under his care up to that time for chronic left knee pain and recurrent cellulitis which appeared to be primarily a pre-patellar problem involving the bursa.  Her present problem, however, reflected a synovitis, and he felt that this might reflect an internal derangement of the left knee.  Thereafter, Dr. Friedenthal performed a diagnostic arthroscopic surgery on December 17, 2002 at which time he found post-traumatic arthritis and patello-femoral arthrosis as well as multiple loose bodies.  Dr. Friedenthal debrided the joint and removed loose bodies.  While inside the petitioner’s left knee, he viewed her patellar tracking and found it to be satisfactory.  After cleaning out the knee, Dr. Friedenthal made a second pass with the arthroscope and found no additional pathology.  Dr. Friedenthal’s treatment notes indicate that as of January 27, 2003, petitioner was walking better, had less pain, and no effusion, and a good stability.  He indicated that she should continue therapy for an additional two weeks, and then she would be allowed to return to work. 

Petitioner did in fact return to work in February of 2003 as a life-skills trainer, and continued working until May 5, 2003.  On that date, she went upstairs to the second floor of a building to assist a client who had already gotten dressed.  Her client’s right hand was weak, and he dropped money on the floor.  Petitioner attempted to bend straight down from the waist, but as she reached down for the money, she bent her knee and turned.  As she turned, her kneecap popped out again and she felt excruciating pain.  Petitioner could not move, and needed the assistance of a co-worker to pop her knee joint back into place.  Her knee swelled up immediately, with what she described as the worse incident that she had ever experienced with her left knee.  Petitioner reported this incident to her employer, and was subsequently referred to Dr. Joseph Harhay for an evaluation.  Dr. Harhay felt that petitioner needed a rentinacular release in order to correct the patellar tracking of the left kneecap.  However, in his opinion, petitioner’s need for treatment was not causally related to the accident of May 5, 2003, but was related to petitioner’s injury of March 22, 2002.  On the basis of Dr. Harhay’s opinion, PLUS of New Jersey, through Liberty Mutual, denied the accident and refused medical treatment.  Petitioner has been unable to work since May 5, 2003 because of left knee pain and swelling, and because of recurrent kneecap dislocations of the left knee.  Petitioner’s right knee grinds, emits a popping noise, and has become extremely painful.  Petitioner has had more pain since the incident of May 5, 2003 than she did prior to that accident, and her knee pain has actually become worse. 

I listened carefully to the petitioner when she testified, and observed her as she explained each of the accidents which she suffered.  With regard to the happening of each accident, I am convinced that petitioner was truthful and that she described each incident to the best of her ability.  I found the petitioner to be truthful in her testimony and I believe each of the incidents about which she testified occurred as she explained them.  With regard to the last two accidents, which have been denied by Liberty Mutual, I paid particular attention to the petitioner’s description of how she re-injured her knee on October 23, 2002 and May 5, 2003.  

LEGAL ANALYSIS AND DECISION

The doctors who have evaluated the petitioner in connection with this Motion for Medical Treatment and Temporary Disability Benefits have agreed that petitioner is in need of medical treatment in the form of a rentinacular release and tibial tuberoplasty.  The sole issue is which respondent is obligated to provide such treatment.  N.J.S.A. 34:15-15,  dealing with medical treatment, provides in pertinent part as follows:

“The employer shall furnish to the injured worker such medical, surgical and other treatment . . . 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 investigating the need of the same and giving the employer an opportunity to be heard, shall determine that such physicians’ and surgeons’ treatment and hospital services are or were necessary, and that the fees for the same are reasonable and shall make an Order requiring the employer to pay for or furnish the same.  The mere furnishing of medical treatment or the payment thereof by the employer shall not be construed to be an admission of liability.”

The employer’s statutory duty to provide adequate and proper medical treatment is absolute.  Benson v. Coca Cola Company, 120 N.J. Super. 60, 66 (App. Div. 1972).   The burden of proof in contested cases within the Division of Workers’ Compensation 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 the respondent has the burden of proof.  Fiore v. Consolidated Freightways, 140 N.J. 452, 479 (1995).  Where there is a question of causal relationship between a diagnosed condition and an occupational or accidental injury, the petitioner has the burden to prove this causal relationship by a preponderance of the evidence.  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 true.  It need not have the attribute of certainty, but it must be founded in reason and logic; mere guesswork or conjecture in not a substitute for legal proof.”  Laffey v. City of Jersey City, 289 N.J. Super. 292, 303 (App. Div. 1996).

In the instant case, respondent PLUS of New Jersey, during its period of coverage with Liberty Mutual, argues that petitioner’s recurrence of symptoms during its period of coverage were “innocent aggravations” of prior injuries dating back to 1999, and culminating in the subluxation injury on March 22, 2002.  In essence, Liberty Mutual contends that petitioner did not suffer new accidents on October 23, 2002 and May 5, 2003, but that her condition caused a chronic instability which resulted in multiple subluxations, regardless of work effort performed.  Our courts have defined an accident as an unlooked for mishap or untoward event which is not expected or designed.  The risk of an accident arises out of employment when it is incidental to that employment and is connected with what a person has to do in fulfilling his or her duties.  Klein v. New York Times, 317 N.J. Super. 41 (App. Div. 1998).

Where there is conflicting testimony of medical experts, it is undisputed that a Judge of Compensation is not bound by the conclusional opinions of any one or more, or all of the medical experts.  Perez v. Capital Ornamental Concrete Specialties, Inc., 288 N.J. Super. 359, 367 (App. Div. 1996).  It is also undisputed that where medical testimony is in conflict, greater weight ordinarily will be given to the testimony of the treating physician.  In Bober vs. Independent Plating Corporation, 28 N.J. 160, 167 (1958), the New Jersey Supreme Court explained that, in evaluating the probative force of opposing medical opinions, “A criterion of recognized significance is the greater opportunity of a treating physician, as compared with a doctor who conducts a single examination in order to become an expert medical witness, to know, understand and decide upon the producing cause of the patient’s condition.”

Applying the above principles to the instant case, I first turn to the issue of whether petitioner suffered compensable injuries on October 23, 2002 and May 5, 2003, or whether as argued by respondent, petitioner merely had a recurrence of symptoms as a result of “innocent aggravations” of the injury of March 22, 2002.

The treating records of Central Orthopedics are instructive.  NJM referred petitioner to Dr. Friedenthal after the accident of March 22, 2002, and she was initially seen by Dr. Friedenthal’s associate, Dr. Tassone on March 28.  After taking a history from the petitioner, Dr. Tassone conducted an examination in which she found that petitioner had an antalgic gait, decreased step length on the left, and significant discomfort with palpable grinding and crepitus of the left patella.  Dr. Tassone does not mention patella laxity as one of her findings, and diagnoses left knee pain with possible patella subluxation by history.  Thus, while Dr. Tassone suspected that petitioner had a subluxation of her left patella, that conclusion is based upon the history given by the petitioner.  Petitioner was treated conservatively and authorized to return to full duty approximately one month after this injury with avoidance of repetitive squatting.  Dr. Friedenthal’s note of June 5, 2002 notes residual damage in the knee, but no need for further treatment.  Effectively, petitioner was discharged from treatment for this injury on June 5, 2002.  Subsequent treatment in September of 2002 was for cellulitis and infection, conditions unrelated to the subluxation injury on March 22.  Petitioner returned to work after the infection episode in late September with a chronic symptom of moderate knee pain.  Thereafter, petitioner worked approximately one additional month before suffering the subluxation incident of October 23, 2002.  Thus, petitioner appears to have worked for a period of five months at full duty after the accident of March 22, 2002 without further subluxation of her left knee.

Petitioner testified that on October 23, she was attempting to pick up soiled sheets which had been deposited on the floor by one of her clients.  Petitioner flexed her knees as she bent to pick up the soiled laundry; as she did so, her left kneecap became dislocated, and she needed the assistance of a co-worker to put it back into place. 

Petitioner was thereafter evaluated by Dr. Roy Friedenthal on October 31, 2002 who found, for the first time, marked patellar laxity during his examination.  Thereafter, petitioner continued to have recurrent pain and effusion of the left knee which caused Dr. Friedenthal to perform diagnostic arthroscopy on December 17, 2002.  At that time, Dr. Friedenthal found post-traumatic arthritis with a patello-femoral arthrosis and multiple loose bodies.   Mindful of the subluxation injuries, Dr. Friedenthal examined petitioner’s patellar tracking which he found to be satisfactory.  According to his operative note, he made a second pass with the arthroscope and found no additional pathology.  After recovering from this surgery, petitioner returned to work on February 10, 2003 and worked full duty for almost three months before the incident of May 5, 2003.  On that date, petitioner stooped down to pick up money which had been dropped by a client.  As she did so, she again flexed her left knee and turned to pick up the money when the kneecap again became dislocated.  Petitioner immediately suffered excruciating pain and swelling of the kneecap, and required the assistance of a co-worker to put the kneecap back in place.  Petitioner described this incident as the most painful of all of her work accidents. 

It is clear from the evidence presented that on both October 23, 2002 and May 5, 2003, that petitioner had bent down on each occasion to pick something up from the floor.  This required her to flex her knee in each case, resulting in a twisting of the knee which caused subsequent subluxations of the kneecap.  I find that these two incidents were not idiopathic events caused by petitioner’s preexisting knee condition, as urged by respondent, but were new accidents in which petitioner suffered increasingly more severe subluxations of her left kneecap.  My findings in this regard are based upon petitioner’s testimony of how each accident occurred, as well as the medical findings of Dr. Friedenthal and Dr. Tassone.  It is quite apparent that after the accident of October 23, 2002, petitioner had such severe symptomatology that Dr. Friedenthal undertook the diagnostic arthroscopy on December 17, 2002.  Subsequent to the accident of May 5, 2003, petitioner was unable to return to work due to excruciating pain and swelling of her knee, and recurring subluxations.  A review of the report of Dr. Matthew Pepe, M.D. (J-1) dated December 30, 2003 indicates that petitioner’s patellar instability worsened after the May 5 incident, and since that time, she has had daily episodes of complete patellar dislocation necessitating self-reduction.  Clearly, petitioner’s condition worsened to the point where she has been unable to work and, without dispute, requires a patellar realignment to stabilize her kneecap. 

As a general rule, an employer takes the employee as the employer finds the employee.  Although petitioner may have had a prior subluxation of her left kneecap in March of 2002 which made her susceptible to subsequent, similar injures, it was the flexing and twisting of her knee, as she described which caused the subluxations which occurred on October 23, 2002 and May 5, 2003, so that her injury is compensable under the category of risk “distinctly associated” with employment.  See Verge v. County of Morris, 272 N.J. Super. 118 (App. Div. 1994).  In support of its contention that petitioner’s injuries are a progression of the admittedly compensable work accidents of March 1999, February 2000 and March 22, 2002, petitioner cites Kozinsky v. Edison Products Company, 22 N.J. Super. 530 (App. Div. 1988) and Peterson v. Hermann Forwarding Company, 267 N.J. Super. 493 (App. Div. 1993).  However, these cases are distinguishable from the instant case.  First, both Kozinsky and Peterson dealt with the issue of apportioning permanent disability to a subsequent employer, and did not involve the issues of medical treatment and temporary disability benefits.  Secondly, both cases dealt with alleged occupational injuries which the respective compensation Judges concluded resulted in increases in partial permanent disability over that attributable to prior, admittedly compensable accidents.  In the instant case, I have already determined that petitioner suffered new injuries on October 23, 2002 and May 5, 2003, so that the principles of the cited cases do not apply. 

The Appellate Division recognized the distinction between occupational and traumatic injuries in Baijnath v. Eagle Plywood, 261 N.J. Super. 309 (App. Div. 1993), in which it held that where two successive injuries combined to produce permanent injury, there should be an apportionment among the employers with regard to permanent disability.  In so holding, the court distinguished traumatic injury cases from occupational injury cases noting that when it comes to apportioning permanent disability, traumatic injury cases are quite different than occupational cases, because there are distinct harms and some reasonable bases in the facts for the allocation of permanent disability. 

I now turn to the issue of which employer or insurance carrier is responsible for medical treatment as the result of the incident of May 5, 2003.  In support of its contention that respondent PLUS of New Jersey, through Liberty Mutual Insurance Company is responsible to provide medical treatment for this last accident, petitioner produced Dr. John Cristini, M.D., a Board-Certified Orthopedic Surgeon and an assistant clinical professor of orthopedics at Hahnemann M.C.P., a part of Drexel University School of Medicine.  Dr. Cristini noted that where there has been a subluxation or dislocation of the knee in the past, the individual develops a propensity for such dislocations in the future.  Dr. Cristini examined the petitioner on August 31, 2003 and found a large effusion with chronic synovitis of the left knee.  He also found some mild limitation of flexion, as well as retro-patellar crepitus on the left greater than the right, along with a positive apprehension sign when pressure was applied to the knee in the extended position, forcing the patella into a lateral subluxed position.  He concluded that while petitioner had done fairly well in overcoming her past history of infection, there was patello-femoral incongruity and a disruption of the tracking mechanism.  This leads to a situation in which any twisting maneuver in a flexed position can and does result in subluxation and dislocation of the patella on the lateral side.  He recommended a lateral retinacular release to correct the problem. 

While Dr. Cristini acknowledged that petitioner would have a propensity to further sublux her left knee after an initial subluxation, he was of the opinion that the condition which he found was directly and causally related to the work-related incident when she squatted on May 5, 2003.  He described this incident as “the straw that broke the camel’s back,” concluding that this incident is the one that is basically causing her recurrent chronic dislocations, and which aggravated the previous two twisting injuries that set her up for the chronic lateral subluxation.  He noted that at the time of the first subluxation in March of 2002, the kneecap spontaneously popped back into place, and petitioner was treated conservatively.  Subsequent to the second subluxation, for which petitioner needed assistance from a co-worker to reduce the subluxed kneecap, petitioner underwent arthroscopic surgery in December of 2002.  Dr. Friedenthal found that the tracking in the kneecap was adequate, and that no further treatment was indicated.  Thus, on the basis of the medical history which he reviewed, and his own evaluation after the incident of May 5, 2003, Dr. Cristini attributed petitioner’s need for surgical intervention to the May 5, 2003 incident.  New Jersey PLUS, through NJM also relied upon the opinions expressed by Dr. Cristini. 

New Jersey PLUS, through Liberty Mutual Insurance Company, produced Dr. Joseph Harhay who is also a Board-Certified Orthopedic Surgeon.  Dr. Harhay agreed that petitioner needs a patellar realignment, in the form of a tibial tuberoplasty to correct the persistent instability of her left kneecap.  However, in his report of May 20, 2003, Dr. Harhay opined that the event which precipitated her current problem was the injury which occurred on March 22, 2002.  However, in his deposition testimony of March 5, 2004, Dr. Harhay stated that, in his opinion, petitioner’s kneecap instability goes back to the very first incident in 1999.  He explained that when petitioner initially injured her knee, and then had subsequent surgeries to the knee, she had an inflamed joint which weakened her knee and caused internal derangement.  Subsequently, there was a series of events which led to the actual progression of her problem and subluxation of the kneecap.  Dr. Harhay then went on to explain how petitioner has an elevated Q Angle of the knee.  This leads to a tendency for the kneecap to drift.  Thereafter, once subluxation occurred and the muscle was injured, that precipitated the chronic problem of the kneecap slipping out.  He then described the dislocation of March 2002 as an inevitability.

Having reviewed the testimony of both Dr. Cristini as well as Dr. Harhay in detail, and having carefully reviewed the treatment records of Dr. Weiand, who treated petitioner after the first two work injuries, and Dr. Friedenthal, who treated petitioner after the third and fourth injuries, I accept the opinion of Dr. Cristini and conclude that petitioner’s need for treatment is causally related to her work accident of May 5, 2003.  I accept Dr. Cristini’s opinion because I believe that it is consistent with the treating records and opinion of Dr. Weiand, as well as the treating records and opinion of Dr. Friedenthal.  Dr. Weiand noted that when he was treating the petitioner over a period of approximately two and one-half years, both injuries were actually contusions to the front of the knee.  Neither injury involved a twisting of the knee.  Dr. Weiand found no damage consistent with twisting or torquing of the knee, and no evidence of instability in the kneecap.  Similarly, Dr. Friedenthal, who treated the petitioner over a period of almost one year, did not find a subluxed kneecap after the third injury of March 22, 2002.  His associate, Dr. Tassone, could appreciate no kneecap instability at the time of her examination of March 28, 2002.  Rather, her diagnosis was left knee pain with possible patella subluxation by history.  It was not until after the accident of October 23, 2002 that Dr. Friedenthal found patellar laxity.  As noted above, although petitioner underwent arthroscopic surgery in December of 2002 at which time loose bodies were removed from the knee, Dr. Friedenthal felt that the patellar tracking was adequate at that time.  He actually discharged petitioner who returned to work in February of 2003 and worked on a regular and continued basis, without further subluxation of the kneecap, until the incident of May 5, 2003. 

I reject the opinion of Dr. Harhay for a number of reasons.  First, his opinion, as expressed in his report of May 20, 2003 is based on an inaccurate medical history.  For example, he states that petitioner first injured her knee in April of 1999, “when she knelt down and felt a pain in her knee.”  In fact, petitioner slipped on a wet floor and fell onto her knee suffering a contusion of the pre-patellar bursa.  Dr. Harhay also incorrectly states that the arthroscopic surgery performed by Dr. Weiand in 1999 revealed a medial meniscus tear.  This is incorrect.  Neither the MRI nor the arthroscopic surgery showed any damage to any of the petitioner’s menisci.  In fact, Dr. Weiand specifically noted in his operative report that the interarticular aspect of the left knee are normal except for a Grade A chondromalacia. 

Dr. Harhay also stated in his report that petitioner apparently had a patellar dislocation in March of 2000.  This is inaccurate.  Petitioner’s second injury in February of 2000 was a contusion when petitioner was struck in the left knee by a food cart.  This injury was treated conservatively by Dr. Zuck who found no evidence of left knee derangement or subluxation of the kneecap.  Dr. Harhay also states that petitioner was treated conservatively but failed to recover adequately.  I find this to be incorrect after reviewing the medical records. While petitioner did have a history of infection, and subsequent cosmetic surgery in May of 2001, petitioner was able to return to work full time without restriction and was able to regenerate strength in her left leg.  By the time petitioner began working for PLUS of New Jersey, there is no indication  that she had any internal derangement of the left knee or any subluxation of the kneecap. 

Secondly, Dr. Harhay gave inconsistent opinions.  In his report of May 20, 2003, Dr. Harhay stated that the event which precipitated petitioner’s patellar instability was the injury which occurred on March 22, 2002.  However, in his testimony, Dr. Harhay opined that petitioner’s current problems date back to her first accident in 1999, which she identified as “the first time that she ever bent her knee and felt that pain.”  As indicated above, there is no medical basis to conclude that petitioner’s subluxation problems, for which she now needs an operation, are related to her initial injuries with Atlantic County, which were contusions of the pre-patellar bursa of her left knee. 

Third, when Dr. Harhay was asked about the fact that Dr. Weiand had testified that he did not feel the direct blows to petitioner’s knee would have contributed to the subluxation problems which she was experiencing in 2003, Dr. Harhay explained his opinion by stating that petitioner was at risk of her knee subluxating just based upon her anatomy.  He then went on to describe her elevated Q Angle which he concluded put her at risk for knee subluxation.  As indicated above, PLUS of New Jersey, as insured by Liberty Mutual, took petitioner as it found her.  The petitioner had an elevated Q Angle which put her at greater risk for subluxation.  This does not place the risk of subluxation on a previous employer nor excuse respondent from providing medical treatment when a subluxation occurs upon stressing of the knee in the course of employment.  Additionally, Dr. Harhay was of the opinion that Ms. Baez was capable of working when he saw her in May of 2003.  However this opinion is inconsistent with the findings outlined in the report of Dr. Pepe (J-1) or with a previous statement of Dr. Harhay when he explained why she needed a tuberoplasty.  He indicated that petitioner had no choice at that point but to undergo surgery, stating “I mean her knee was pretty useless.”  It is hard to understand how someone who is undergoing daily subluxations could continue performing the job duties of a life-skills trainer, who is required to go up and down steps in the homes of brain-injured individuals, and who must bend and flex her knees on a regular basis in order to assist the patients in her charge. 

Finally, Dr. Harhay’s opinion regarding causal relationship dating back to either the 1999 incident or the March 22, 2002 incident is speculative.  In assessing the medical opinion of Dr. Friedenthal as set forth in his operative report of December 17, 2002, Dr. Harhay expresses doubt as to whether Dr. Friedenthal made proper observations of the tracking mechanisms of the knee.  Yet, Dr. Harhay performed only one evaluation of petitioner’s knee and did not independently look at the interior of her knee as did Dr. Friedenthal.  Inasmuch as Dr. Friedenthal is a competent orthopedic surgeon who concluded during the arthroscopic surgery that petitioner’s tracking mechanism was adequate at that time, I cannot give credence to Dr. Harhay’s speculation that it was not.  In any event, by the October 23, 2002 incident in which petitioner subluxed her knee while bending down to pick up soiled laundry from the floor of a patient, PLUS of New Jersey as insured by Liberty Mutual was already on the risk.  The fact that NJM continued to treat the petitioner after this incident as an extension of the March 22, 2002 accident does not relieve Liberty Mutual Insurance Company of its responsibility at that time.  N.J.S.A. 34:15-15 specifically provides that the mere furnishing of medical treatment or the payment thereof by an employer shall not be construed as an admission of liability. 

Under the circumstances, I order PLUS of New Jersey, through Liberty Mutual Insurance Company to provide medical treatment to the petitioner and to pay temporary disability benefits commencing May 6, 2003 until such time as the petitioner’s authorized treating doctor, Dr. Matthew Pepe finds the petitioner has reached maximum medical improvement.  Since NJM has been providing medical treatment to petitioner pursuant to the interim Order of November 17, 2003, I order Liberty Mutual Insurance Company to reimburse NJM for all medical treatment provided to date, and to continue providing treatment with Dr. Pepe and the Rothman Institute until treatment has been completed.  I further order Liberty Mutual to continue providing temporary disability benefits as set forth in the interim Order. 

I will allow petitioner’s attorneys, Goldenberg, Mackler, Sayegh, Mintz, Pfeffer, Bonchi and Gill interim attorney’s fees equal to 20% of the temporary disability benefits paid at the rate of $238 per week for the period of May 6, 2003 through the date of the Order implementing this decision.

I request petitioner’s attorney to submit an Order consistent with this decision. 

                                                                        __________________________________

                                                                        Cosmo A. Giovinazzi, III
                                                                        Judge of Compensation

June  16, 2004