B E F O R E:

HONORABLE PHILIP TORNETTA

Judge of Compensation

A P P E A R A N C E S:

STEVEN GREENE, ESQ.

BY:  HARRIS GOULD, ESQ.

Attorney for the Petitioner.

WILLIAM BARRETT, ESQ.

BY:  WILLIAM DALZELL, ESQ.

Attorney for the Respondent.

     ___________________________________________________________

              This is the matter of Geraldine Andalaro v. JR Cigar, Claim  Petition 2006-023263.  The petitioner has filed a Notice of  Motion for Temporary Benefits and/or Medical Benefits in which she seeks further medical treatment for her right knee.

   The petitioner was injured on February 16, 2006 when she exited an automobile and slipped on ice which had accumulated in front of her place of employment,  causing her to fall on her left side and  twist her right knee. Petitioner  remained at work and reported the accident to respondent and within one half hour of the accident, she started having pain in her right knee and was only able to walk with a limp. Petitioner testified that she did not have any  physical complaints regarding her right knee prior to this incident. Respondent has stipulated that this accident did arise out of and in the course of petitioner’s employment with respondent.

Approximately two weeks after the accident, petitioner was seen by her primary physician, Dr. Ianetta who examined the petitioner and ordered an x-ray and an MRI of her right knee. Petitioner was then treated by Immediate Medical Care Center and given a neoprene brace. Petitioner then was treated by Dr. Silverman  who performed surgery on petitioner’s right knee on April 21, 2006 for a torn lateral meniscus.  Subsequent to the surgery, petitioner continued to treat with Dr. Silverman  and received physical therapy from HealthSouth three times per week for four weeks. Petitioner returned to work with respondent on June 1, 2006. From  August to October, 2006, Dr. Silverman treated petitioner with a series of three synvisc injections. Respondent then had petitioner evaluated by Dr. Schab. Petitioner was then examined by Dr. Jaffe.  On April 13, 2007, the court ordered the respondent to have an MRI performed of petitioner’s right knee and the results submitted to Dr. Oppenheim for review.  

            Petitioner’s present complaints regarding her right knee are that she has a limp when she walks, difficulty going up and down stairs and the knee hurts all the time. At work, her duties have changed so that she is able to remain at her desk and  does not have to walk to different parts of her office. At home, she has difficulty cleaning the house and her life has become more sedentary.  Petitioner has had prior back injuries, not related to the present accident, which have resulted in three back surgeries. She is currently undergoing treatment by way of   pain management for her back with Dr. Solomoniv and takes oxycodone and methadone. She  previously treated with Dr. Ianetta for varicose veins.

Dr. Arthur Tiger testified on behalf of petitioner. Dr. Tiger is Board - Certified in orthopedic surgery, but  he no longer performs surgery.  Dr. Tiger examined petitioner on December 4, 2006 and May 14, 2006. He obtained a history from petitioner and reviewed  an x-ray,  an MRI , which was performed prior to the surgery by Dr. Silverman, the operative report of Dr. Silverman and an  MRI  performed on April 21, 2007. Dr. Tiger concluded that  the  surgery performed by  Dr. Silverman on petitioner’s right knee for a torn lateral meniscus, in his words, “didn’t work”, because petitioner is still symptomatic and has arthritic conditions on the inside of the knee. However, Dr. Tiger does not recommend  any further treatment for the lateral meniscus, even though on re-direct examination he testified that based upon his review of the reports of the first MRI of petitioner’s right knee and the second MRI performed on April 21, 2007 (P-9 Evid)  there was a worsening of the lateral meniscus tear.  Instead, Dr. Tiger recommends a high tibial osteotomy, which he describes as a realignment of petitioner’s  right knee or a chondral transplant, which he describes as  a type of procedure where cartilage is removed and returned to the knee and the area of the knee which is eroded and has bone on bone contact is resurfaced. Dr. Tiger, however, did  not testify nor did he state in his reports of December 4, 2006 (P-11 Evid) and May 14, 2007 ( P-12 Evid)  that the need for either one of these two procedures  is causally related to the accident of  February 16, 2006 or that the accident of February 16, 2006 or the lateral meniscus surgery performed on April 21, 2006  aggravated or accelerated any condition of the right knee necessitating  a high tibial osteotomy or a chondral transplant .

Respondent had petitioner evaluated by Dr. William Oppenheim who is  Board – Certified in orthopedics. Dr. Oppenheim examined petitioner on  December 12, 2006 and authored a report  dated December 15, 2006. (R-2 Evid)  He took a history from petitioner, reviewed x-rays he had taken of  petitioner’s both legs, reviewed  petitioner’s medical records, past medical conditions and treatment and the films and reports of the MRI  performed on petitioner’s right knee on March 24, 2006 and  April 21, 2007.  

While Dr. Oppenheim concluded that the lateral meniscus tear of the right knee had been repaired, he did find that the entire medial joint surface of the right knee was worn down, partially due to petitioner’s height of 5 ft., 2in. and weight of  240 pounds, the accumulation of  fluid within petitioner’s lower leg and the mechanical access of petitioner’s legs and the way that she bears her weight.  He testified that  a chondral transplant is necessary when there is a defect in the articular surface of the knee. The transplant  will allow for the growing of  cells known as chondrocytes on  the articular surface. However, he found that there is no defect in petitioner’s right knee which would be susceptible to repair using a chondral transplant, because the entire medial joint surface was worn down and therefore the entire portion of the knee joint cannot be resurfaced. He also  found  that due to  a misalignment  of  petitioner’s right leg,  all her weight  would be placed on the transplant, thereby causing the transplant to fail. He opined that the process by which  the entire medial joint surface of the right knee was worn down and right leg became misaligned started long before the accident of February 16, 2006, and could not be caused by trauma to the knee and is not related to the accident.

Dr. Oppenheim further concluded that there is a misalignment of both the right knee and left knee and that a high tibial osteotomy would be the  procedure to correct such misalignments.  However, Dr. Oppenheim opined that the misalignment of petitioner’s right knee is not the result of the accident of February 16, 2006, but  is due to the wearing down of the cartilage in the right knee , which has been occurring over a period of years prior to the accident of February 16, 2006, due to petitioner’s body size. He further stated that  such misalignments cannot be caused by trauma unless a bone had been broken and had been set in the wrong alignment.

LEGAL ANALYSIS AND CONCLUSION

N.J.S.A. 34:15-15 provides in part:

                        “ The employer shall furnish 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 restoration

                        is possible…”

            The issue in this Motion for Temporary and/or Medical Benefits is whether the petitioner’s need for further medical treatment for her right knee is causally related to the fall she suffered on February 16, 2006.

               The employer’s statutory duty to provide adequate and proper medical treatment is absolute. Benson v. Coca Cola Company, 120 NJ Super. 60, 66 (App. Div. 1972). It is undisputed that in a Worker’s Compensation case, the burden of proof  rests upon the petitioner, who must persuade the trier of fact by a preponderance of the credible evidence on each and every element of his or her claim. Perez v. Pantasote, Inc., 95 NJ 105 (1984). It is also undisputed that respondent is subject to the same evidentiary standard on those elements of the case where it bears the burden of proof. Fiore v. Consolidated Freightways, 140 NJ 452 (1995). Where there is a question of causal relationship between a diagnosed  condition and an alleged injury, the petitioner has the burden to prove this causal relationship  by a preponderance of the evidence. All that is required is that the claimed conclusion from the offered facts must be a probable, or more probable hypothesis. The test is probability rather than 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 true. It need not have the attribute of certainty, but must be founded in reason and logic; mere guesswork or conjecture is not a substitute for legal proof.”  Laffey v. City of Jersey City, 289 NJ Super. 292 (App. Div. 1996).   

            There is no dispute that the accident on February 16, 2006 arose out of and in the course of petitioner’s employment with respondent and the resulting lateral meniscus tear of  petitioner’s right knee is causally related to the accident. However, there is a serious question as to the causal relationship between the further medical treatment now being sought by petitioner and the accident of February 16, 2006.

              I have carefully considered the testimony of both doctors. I accept the opinions of Dr. Oppenheim that the need for treatment of petitioner’s right knee in the form of  either a chondral transplant or a  high tibial osteotomy is not causally related to the accident of February 16, 2006,  as more credible, more logical and more consistent both medically and factually. As to the need for a chondral transplant, Dr. Oppenheim reached his conclusion based upon the fact that due to  petitioner’s  body size, the accumulation of  fluid within petitioner’s lower leg and the mechanical access of petitioner’s legs and the way that she bears her weight, a process started long before the accident of February 16, 2006   by which  the entire medial joint surface of  petitioner’s  right knee was worn down and the right leg became misaligned. I also accept Dr. Oppenheim’s opinion that that there is no defect in petitioner’s right knee which would be susceptible to repair using a chondral transplant.  

As to the need for a high tibial osteotomy,  Dr. Oppenheim concluded  that  the misalignment of petitioner’s right knee is not the result of the accident of February 16, 2006, but  is due to the wearing down of the cartilage in the right knee , which has been occurring for over a period of years prior to the accident of February 16, 2006, due to petitioner’s body size.

            In accepting the opinions of Dr. Oppenheim, I reject the opinions of Dr. Tiger as not being credible for the following reasons.

            It was Dr. Tiger’s opinion that the torn lateral meniscus surgery performed by Dr. Silverman failed. The only  basis he gives  for his  opinion is that the petitioner remains symptomatic, her subjective complaints of pain and discomfort and what he described as arthritic conditions on the inside of the knee, without further elaboration. Dr. Tiger’s opinion that the surgery failed,  is inconsistent with the fact that  he  does not recommend  any further treatment for the lateral meniscus, even though on re-direct examination he testified that based upon his review of  the reports of the first MRI of petitioner’s right knee and the second MRI performed on April 21, 2007,  there was a worsening of the lateral meniscus tear.  Instead, Dr. Tiger recommends either a high tibial osteotomy or a chondral transplant , however, he neither testified nor did he state in his reports  that the need for either one of these two procedures  is causally related to the accident of  February 16, 2006 or that the accident of February 16, 2006 or the lateral meniscus surgery performed on April 21, 2006  aggravated or accelerated any condition of the right knee necessitating either procedure.  

            For all of the foregoing reasons, I find that  petitioner has not sustained her burden of proving by a  preponderance of the evidence that the need for medical treatment of her right knee in the form of either a  high tibial osteotomy or a chondral transplant  is causally related to petitioner’s accident of February 16, 2006 and accordingly the Motion for Temporary and/or Medical Benefits is denied.

            Respondent is ordered to pay to O’Brien Court Reporting a stenographic fee of $150.00 and Global Court Reporting Services a stenographic fee of $300.00.

            Respondent is to submit an Order consistent with this decision.

                                                                                    _____________________________
Philip A. Tornetta
Judge of Compensation

Dated: September 27, 2007