BEFORE: THE HONORABLE J. WILLIAM BOYLE
JUDGE OF COMPENSATION

APPEARANCES: DRAZIN & WARSHAW, ESQS.
By: SCOTT SCHNEIDER, ESQ.
For The Petitioner

INGRAM & KELLEY, ESQS.
By: JOSEPH E. KELLEY, III, ESQ.
For The Respondent

Petitioner filed a Claim Petition alleging an accident at work occurring on May 21, 1993. Initially, respondent filed an Answer admitting compensability, but subsequently filed an Amended Answer denying compensability. In the interim, between the time of the Claim Petition and the filing of the Amended Answer, Respondent did provide the petitioner, compensation benefits consisting of 27 weeks of temporary compensation and medical treatment. Petitioner filed a Motion to join the Second Injury Fund and a bifurcated fund trial began before me on March 10, 1997.

Petitioner testified that she was a secretary in the Road Department (Public Works) for Respondent. Prior to the alleged accident at work, petitioner sustained serious injuries in a 1989 motor vehicle accident, a 1990 motor vehicle accident, and a "fall" which occurred in November of 1990. She testified with respect to the second motor vehicle accident that she was injured, "very bad", and resulted in at least two hospitalizations for her back and neck. The fall in 1990 caused injuries to Petitioner’s ankle.

Petitioner testified that on May 21, 1993, she was in the kitchen and the phone rang in her office which was down the hall. She went to get the phone and she fell, stating, "... I literally bounced off the floor two and a half times." There were no witnesses to the fall or to petitioner’s being on the floor. Petitioner suggests in her testimony that she fell because she the floor was "full of debris." Petitioner then testified that she called a Dr. Eng, but was unable to see the doctor until a few days later. Following an examination, petitioner testified that she was referred to Dr. Amos Katz, a neurologist. Dr. Katz was familiar with petitioner having treated her in the past. At some point in time following the alleged accident, petitioner stopped working. When petitioner was asked about her problems resulting from the within "accident" at work, she testified as follows:

A. I have no reflexes or very little minute reflexes in my left leg. I have burning in my right thigh constantly. My neck is ---. I have herniated discs and nerve damage because the nerves are not feeding my muscles now because they are bad and the only way I can describe the pain, I have it like 20 hours a day because I only can sleep four hours so it feels like somebody hitting me with a rubber mallet or almost like to explode in my neck, my hands, which you saw were all blue because there’s no signals going into them all the time and I fall down if I’m not paying attention to what I’m doing. Like if I stand up quick and I’m not paying attention I can fall down. I fell quite a few times in the house. It’s like I don’t know what it’s like to be without this. I don’t know. I have a frozen shoulder from it. (T1- 27, 2-17)

When petitioner was asked by her attorney to describe the accident, she did not mention "running", but on cross-examination, when asked to describe how she fell, petitioner said she, "was running toward the phone" and "was maybe in a run." Petitioner was shown the original Accident Report, dated the same day she allegedly fell and admitted she filled it out and signed it. The original Accident Report read, in response to the questions, "What was employee doing when injured, be specific?" Answer, "Walking down hall to answer phone in office." In an Employee Accident Report, when asked for the employee’s description of the accident, it read, "walking down hall and leg went out before reaching office for phone." Petitioner also admitted on cross-examination that the first doctor she saw following the accident was not Dr. Eng, but Dr. Katz who had treated her since 1989. Dr. Katz’s note for the visit of June 15, 1993 read, "Patient’s left leg had suddenly given way and she fell with worsening neck pain and back pain." Dr. Eng’s first visit on June 23, 1993, recorded, "Patient was at work in the hallway of Marlboro Township when the left medial thigh went numb and the left leg went dead, patient fell when left leg went out from under her." It was also developed on cross-examination that petitioner had filed suit for injuries in the 1990 motor vehicle accident and at trial, stated that both legs were "very bad" with a burning in the right leg all day and the outside of that leg would become very numb. Petitioner also stated that the left leg, if it was moved wrong, would become numb and burn inside. Petitioner testified that these conditions always existed since the September, 1990 motor vehicle accident. Petitioner also testified in Superior Court that when her leg is numb, it goes under and she falls. She attributed all of these complaints to the September, 1990 motor vehicle accident during her testimony in Superior Court on September 17, 1996, with respect to that claim. When confronted with all her complaints regarding the 1990 motor vehicle accident, at the Superior Court trial, petitioner testified, "I was briefed before that so I know what I am talking about." She was then asked:

Q. What do you mean you were briefed, you were told what to say?

A. Sort of, yes.

Petitioner was then asked if what she testified to in Superior Court was true and her answer was. "It’s true I guess...". Petitioner specifically testified in the Superior Court trial that following the September, 1990 motor vehicle accident, she fell "many times" as a result of problems with her left leg. Petitioner was specifically asked in the Superior Court case the following:

Q. What caused you to fall down in the hallway?

A. My leg went under.

Q. Which leg?

A. My left leg.

Q. And was this happening often?

A. Yup. (T2,7 11-17)

Prior to the "accident at work", petitioner was hospitalized at least twice in 1992 by Dr. Katz for worsening symptoms, specifically increasing pain in her back and neck. The first hospitalization in April was for two days and interrupted due to petitioner’s father’s death. Thereafter, she was rehospitalized on June 4, 1992, because of continuing complaints related to falling.

Petitioner produced a lay witness, Stanley Patterson, who did not see petitioner fall nor did he see petitioner on the floor. He testified that he saw petitioner leaning up against the wall and offered her assistance beck to her office. Once there, he asked if there was anything else he could do and she indicated, "no."

Petitioner produced as her medical witness, Sidney Tobias, M.D., and evaluating physician well known to this court. Dr. Tobias testified that petitioner did not give him any history of previous injuries and, when at trial, he was presented with prior MRI’s of petitioner showing disc herniations at C4-5 with degenerative changes at C3-4 and C5-6 with central disc herniations at L2-3 and L4-5 with degenerative disc disease at L1 thru S1, he admitted petitioner had "significant injuries and disability prior to this accident." It was Dr. Tobias’s opinion that petitioner was totally disabled as a result of the injuries sustained on March 21, 1993, which aggravated and exacerbated significant underlying and significant preexisting disease. He was unable to quantify the preexisting disability. Dr. Tobias admitted that petitioner’s preexisting lumbar radiculopathy was consistent with petitioner’s left medial thigh going numb and her leg going dead and giving way to falls.

Respondent produced Fredric Brustein, M.D., who is also well known to this court. Dr. Brustein performed a physical examination upon petitioner and concluded that petitioner was either consciously or unconsciously trying to fool him since his findings were not organic findings. Dr. Brustein did have available to him and, in fact, reviewed detailed medical records of this petitioner prior to the alleged fall. He testified as follows:

A. I was fortunate enough to have Dr. Katz’s detailed records from ‘89 through December ‘93, during which time he had treated him and the summary of Dr. Katz in ‘94. I had the benefit of discharge summaries from ‘90 through ‘92 at CentralState Medical Center. I had the benefit of MRI’s of 1990 and in ‘94. Dr. Horowitz’s chiropractor summary. It appears to have been written sometime in 1990. Dr. Eng’s evaluation 6-23-93. That was following the accident in question in May of ‘93. An independent exam by Gordon Donald and Joel Goldstein, podiatrist report, Dr. Rosenthal August of ‘94.

Q. Now Doctor, with respect to all of those medical records for this petitioner before the alleged accident she had with the Township of Marlboro, did she have any problems with all the same body areas she alleged to hurt in this accident?

A. Absolutely.

Q. Would it be fair to state with respect to these medical records and the doctors who had previously treated her they indicated that all of those problems were chronic and permanent in nature.

A. Absolutely, sir. (T5,9 2-24)

When asked to express an opinion as to what would cause petitioner’s left leg to suddenly give way for a left medial thigh to become numb and the leg to go dead, Dr. Brustein respondent, "certainly nerve irritation in the lumbar spine could cause those symptoms to occur." Thus, both doctors Brustein and Tobias agree that petitioner’s preexisting lumbar radiculopathy was consistent with and could bring about what this petitioner indicated occurred both in the initial accident reports and to the treating physicians. Dr. Brustein further testified that if it, in fact, happened the way petitioner initially indicate, it would be an idiopathic fall. Dr. Brustein testified as follows:

Q. Now Doctor, did you have occasion to give a psychiatric assessment?

A. Yes, sir.

Q. And would you give the court the benefit of that assessment?

A. It was my opinion that her present subjective symptoms and objective physical findings are secondary to the previous motor vehicle accident for which surgery, disability, housekeeping services were offered by her treating physicians which she had undergone extensive hospitalization and outpatient treatment. In my opinion, there was no medical impairment disability rating indicated for the residual of the episode of 5-21-93. It was my opinion that based on the extensive records reviewed, history and physical examination that causally related to the fall she had sustained a transient exacerbation preexisting cervical and lumbosacral strain, disc herniations and disc radiculopathies. (T5, 11 4-22)

The doctor further went on to comment with respect to MRI’s of the cervical and lumbosacral spine taken both before and after the alleged industrial accident. The doctor noted that the findings in each were essentially the same, "with the exception of perhaps a little advancement of some of the arthritic changes over a four year period which would certainly be normal."

At the outset, this court observes that petitioner was not a credible witness. Her testimony was inconsistent and, clearly, her testimony was not consistent with what she had initially indicated with respect to the "accident" or with what she had indicated initially to the treating physicians. Furthermore, this court was most impressed with the testimony of Dr. Brustein who had available to him most of the treating records arising out of petitioner’s treatment for orthopedic and neurological injuries and conditions going back to a motor vehicle accident in 1989. It would certainly seem to this court that when petitioner testified in a matter in Superior Court for injuries arising out of her motor vehicle accident of 1990, she attempted to relate all of her conditions, including her leg giving out and/or buckling to injuries sustained therein. It would appear that petitioner was ‘no caused’ with respect to that accident and now attempts a "second bite of the apple" on the Division of Workers’ Compensation.

The law in this state is clear that and "idiopathic fall" is one which is caused by "a purely personal condition having no work connection whatever." George v. Great Easter Food Products, Inc., 44 N.J. 44, 45 (1965). If, in fact, the record substantiates such a fall, compensation benefits will be denied. This court finds, based on all the credible evidence, that this fall did, in fact, result from an infirmity peculiar to this petitioner and not as a condition of the employment. I am satisfied that the respondent has established through medical records, the accident reports previously referred to, and in the opinions of both Drs. Tobias and Brustein, that as a result of a preexisting condition, this petitioner’s leg would buckle and/or give out causing her to fall. It was not only their opinion but, in fact, this petitioner had previously testified that as a result of a condition sustained in a prior accident, she would fall down. Petitioner’s initial reporting of the accident not only signed by her, but written by herm are consistent with an idiopathic event. The mere fact that petitioner happened to be at work at the time her leg gave out does not give rise to a finding of compensability. The burden of proof to establish an idiopathic cause is clearly upon the respondent. In that regard, this respondent has met its burden and the Claim Petition is hereby dismissed. Respondent should prepare the appropriate Order and an Order Dismissing the Second Injury Fund and petitioner’s Claim Petition based upon the court’s finding that petitioner has not carried her burden with respect to a compensable accident as noted above. Respondent should provide in the Order for a stenographic fee to John Trainor in the amount of $500.00 for (5) hearings.

J. William Boyle, J.C.

Dated: April 17, 2000