These restrictions, considering the timing following closely after the two accidents, with a history of progression of physical deterioration, suggest as a matter of common sense, that they result from the injuries. No other potential cause is there or has been suggested. The first accident occurred on November 21, 1997. She was wrapping, packing, and moving 20 + pound turkeys and fresh hams. This is a  repetitive activity which would require abrupt movements. While engaged in this activity she felt something snap and could not move. She was seen at Raritan Bay Medical Center Emergency Room.  Her cervical spine was x/rayed and she was referred to an orthopedic surgeon, doctor Bernard Rineberg, of New Brunswick, who was the respondent’s designated treating physician. Anti-inflammatory medication, 2 weeks of physical therapy involving heat and exercises and an MRI were prescribed. . The MRI taken on January 6, 1998 revealed herniated discs at C5-C6 and C6-C7 with extruded disc fragments. An EMG has been stated to be negative. She also presented evidence of degenerative arthritis with osteophytic spurring. The latter was preexisting, but the herniated discs are traceable to the new trauma.  She received a series of three epidural steroid injections which gave some relief for a limited duration..  Respondent’s surgeons did not recommend surgery at that time.  Ms. Borkowski remained out of work for only 2 1/7 weeks following the accident but continued her work schedule while undergoing the prescribed treatment. The respondent paid temporary total disability at $257.18 per week. Despite suffering from the serious consequence of 2 herniated cervical discs she did return to work performing all of the duties required of a meat wrapper and deli clerk for a few less hours per week than before.  She was experiencing intermittent left sided radicular symptoms but was still able to work with pain.  Her ability to work ended when she sustained the next accident. 

                On August 13, 1998, Ms. Borkowski tripped over a defective u-boat. One handle was missing or damaged so she as she lost her balance, she could not catch herself. She fell sustaining direct trauma to her right knee and head. This incident aggravated her prior damaged cervical spine, she now had more severe bilateral upper extremity radicular pain. The store manager sent  her to the nearby emergency department of Raritan Medical Center in Perth Amboy. She had complaints of pain to her right shin, right knee, right elbow, and neck. Examination revealed an abrasion and swelling and tenderness of the right knee. An x/ray of the right knee was negative for fracture, the x/ray of the cervical spine showed spondylosis. A week latter she was seen at the Occupational Health Center of JFK Hospital, Edison,  for neck and pain and headaches. The examining physician reported “cervicothorasicl dysfunction”  returned her to work but limited to sedentary duties. No such work was available. Respondent returned Ms. Borkowski to doctor Rineberg who prescribed a return to work with slowly increasing weight limits. She continued with difficulties and was then referred to the care of doctor Gallick, an orthopedic surgeon. Dr. Gallick prescribed a period of physical therapy 3 times per week for petitioner’s right knee and cervical spine.  Steroid injections were given for her knee injury.  At this point the record is a bit confused as to whether petitioner had returned to work with limitations or continued on temporary total disability. I have searched the record created by both parties and find a bit of confusion on this fact. None the less, she received wages or temporary disability until October 13, 1999 at $237.93 per week This rate was based on her reduced wage at the time of the last accident. 

                Doctor Gallick and members of his group saw her from time to time to monitor her condition monitor medication and check out her physical status. In January 1999, her lawyers referred her to Dr. Myers of the Sall/Myers group who diagnosed significant physical changes caused by the cervical and right knee trauma. Petitioner continued to have significant problems with her right knee and cervical spine. On June 23, 1999 she presented to the Raritan Bay Emergency department with right knee swelling and pain. The physician’s impression was a possible ligament injury. He prescribed a right knee immobilizer brace and an x/ray which was negative for bony pathology but did show some patella effusion.  The next week, she returned to doctor Gallick for evaluation. He ordered additional physical therapy of approximately 2 weeks duration.  She continued wearing the knee brace, and was in continuing distress.

                On October 5, 1999, respondent referred her to doctor Jack Knightly, a  neurosurgeon for neck pain radiating into the left upper extremity to her fingers. He reported that Ms. Borkowski had diffuse tenderness of the cervical spine with multiple trigger points. His diagnosis was chronic  neck pain, probable myofascial in a patient with a C5-6 central disc herniation, asymptomatic. Unfortunately the full content of his examination was not placed in evidence. The only reference to his findings was in the reports of respondent’s forensic physicians. Petitioner did have an MRI which reported two levels of disc herniations with disc fragments at C6-7. This is not something I would expect to disappear, especially since there were no other MRI studies of the cervical spine except the one made in January 1998. There is an indication that doctor Knightly recommended a referral for psychiatric or pain management treatment.  No further referral, testing or evaluation occurred until well after the filing of this motion.

                On October 13, 1999, respondent terminated her temporary disability and discontinued all treatment and temporary disability because Dr. Gallick had reported that she had reached the maximum benefit of treatment from conservative therapy. He prescribed Naprosyn and discharged her.  He, as did doctor Peacock, opined that arthritis in the right knee was not related to the trauma. As noted earlier, a few weeks latter, the respondent informed petitioner that her employment with it was terminated because the physical restrictions imposed by its physician, Dr. Gallick, showed she could no longer perform the duties of her job.  She has never returned to work for respondent or anyone else.

                Her physical condition has deteriorated. In addition to the impairment of ability to work, she has deteriorated in all other facets of life. Her knee gives way and she falls. She complains she can not climb stairs except by pulling her self up on the bannister. She can not get down on her knees for ordinary household cleaning duties. She can not lift, bend, or turn her head because of her neck complaints.  She has problems with grooming because of pain on motion of her neck. She needs help to accomplish cooking, laundry, and grocery shopping.  She experiences continuous radicular pain in her arms and pain in her right leg.

                Following the loss of her job, respondent refused to provide additional treatment. She had no medical insurance and she had no income. All of this led to an inability to seek out medical care except for emergent or charity care. In February 2000, on two occasions, she saw a local general practitioner, doctor Zuber for her knee and cervical problems. In January 2001, petitioner again returned to the Raritan Bay Medical Center emergency department because her knee gave out again. She was given prescriptions including one for a knee brace. She did not fill it because of a lack of money.  As time went on she became overwhelmed by the pain and her inability to sit for any appreciable time and limitation on her ability to walk or climb stairs.

                Following the filing of this motion, respondent at the request of another judge, returned petitioner to doctor Gallick for an evaluation and an MRI of her right knee. The MRI scan made in May 2001 confirmed substantial pathology in petitioner’s right knee, chondromalacia of the patella. He still opined that she also had arthritis    

                Here one must consider the impact that the pain and the loss of physical ability to do her job duties on a person with prior alcohol addiction and depression. Her description of how she decided to try suicide in July 2001 is quite compelling.  Doctor Head attributed Ms. Borkowski’s depression and suicide attempt to other pre-existing stressors because of the time gap when it manifested in July 2001 as compared to the time of the physical injury and onset of pain. He opined that she was depressed before the accidents and continued to be so after the trauma. He opined she would have required psychiatric attention almost immediately after the accidents if that was the cause. He did admit on cross-examination that constant pain, loss of ability to work, loss of income, and disability  can aggravate preexisting anxiety and depression. His response that it did not do so in this case because of the time gap ignores the very volume of material he reviewed which showed a steady increase in these debilitating factors and the evidence here that her despair progressed with time and was due to valid physical factors. This conclusion is further undermined by his suggestion that her depression might be a consequence of menopause is also without any factual support that she had entered that stage of her life. He was unaware of any psychiatric manifestation, complaints or treatment between 1989 and the first accident in 1997. He neither reviewed or considered the MRI reports or examined the films. He further opined that she only suffered from a mild depression and could return to the same type of work that she performed before these accidents.  But on questioning by the court he admitted he had little knowledge of what she actually did. He offered the opinion that petitioner had “a mild depression” and could work. He offered no credible  neurological evaluation. All in all, I find his testimony on the lack of a causal relation unconvincing and unrealistic. I find he appears to be reaching for reasons to minimize this woman’s situation and to give a negative opinion by ignoring salient facts. His opinion of minimal impairment is inconsistent with the treating record and some of his own observations.

                On the other hand, I find the testimony of doctor Johnson to be more convincing.  He had the opportunity to examine petitioner on 2 occasions. The first time was April 7, 2000, when he documented objective medical findings to reach a finding of left cervical radiculopathy due to a new herniated disc at C6-7 with flattening of the ventral aspect of the cord at C7 superimposed on prior pathology causing a neurological impairment of 35% of partial total. He did not have the history of the prior psychiatric treatment for depression some ten years earlier. He did detail objective signs of the presence of a depressive state. He opined the presence of a dysthymic disorder, DSM 4 300.4, which resulted in a permanent disability of 22 ½ %. At this time he did not speak to suggest there was a need for psychiatric therapy or treatment from a  neurological point of view.

                Dr. Johnson next examined petitioner on September 28, 2001, he noted the recent hospitalization and observed significantly increased objective indicia of an increased major depression due to her being overwhelmed loss of her job and physical pain. This was an acceleration of her prior severe depressive disorder. At this time he was made aware of her episode of depression and treatment some ten years earlier. After reviewing her treatment he opined that she would benefit from psychiatric treatment consisting of therapy and medication. He examined the treating records, described her depressed appearance, tearfulness, considered the detailed hypothetical question which I find does accurately portray the facts of this case, and gave his opinion on causal relation on her being overwhelmed by the consequences of this injury that this had progressed till she attempted suicide. Both he and Dr. Head recommend psychiatric treatment. Dr. Johnson recommended a referral to the Community Medical Hospital unit of Robert Wood Johnson Medical School in Piscataway. 

                Respondent after conferring with petitioner and her counsel shall provide for continuing psychiatric therapy and medication for petitioner’s depression, this treatment shall continue until the treating physician can state with a degree of medical certainty that the depression and anxiety secondary to dealing with the consequences of the last injury have been ameliorated and no longer require treatment. Respondent shall pay for and reimburse Medicaid and such other agencies to the extent that they have paid for her psychiatric therapy and psychiatric medication since July 2001 and for reasonable and necessary treatment for her physical injuries.

                On the orthopedic treatment issue it is clear that this lady has substantial pathology as a consequence of the cervical and knee injury.  Dr. Peacock advances an opinion of causal relation of the cervical disc herniations as does petitioner’s forensic physicians.  Dr. Peacock does not address the question of additional treatment. Petitioner’s forensic physicians recommended pain management so she could better deal with her physical pain.  Dr. Peacock agreed with the diagnosis of chondromalaica of the right knee which causes continuing impairment, but he advanced no opinion on the need for further medical care and no opinion on causal relation. On the other hand petitioner’s experts do opine causal relation and a need for treatment. Part of the recommendation for medical attention has been addressed by the return to Dr. Gallick in April and May 2001 for an MRI study of her right knee.

                After the conclusion of the trial, petitioner’s counsel advised the court and counsel that petitioner under the auspices of Medicaid is now under the care of Dr. Christine M. Korradino of Premiere Orthopedic and Sports Medicine in Union City with surgery for the cervical discs to be scheduled with followed by consideration of surgery to petitioner’s knee to be scheduled there after.  The pathology and situation in per cervical spine is one that does warrant medical intervention. Surgery or pain management is a likely option. Considering the repeated buckling of her right knee and the finding of chondramalacia does warrant further medical study for consideration of surgery or at the very minimum teaching this lady how to deal with the pain and impairment. Medical treatment is warranted. But I can not find with any degree of certainty what should be done at this time. Respondent shall select a new orthopedic surgeon or firm of surgeons to undertake care for her cervical and knee injuries. As a condition of this order petitioner must cooperate with the physicians. If petitioner does not agree with the physician selected, then she may file a motion on two days notice for a hearing on the identity of the physician. As stated above respondent shall reimburse Medicaid and other providers who have provided and or paid for the emergency care and reasonable and necessary treatment to date.

                Temporary disability presents a slightly different issue. While petitioner was substantially disabled when responded terminated her disability and treatment in October 1999, I have no proofs that at that time her disability impacted on anything but job duties.  There was no proofs of a treatment which could improve her condition until she saw Dr. Turner and Myers on October 27, 2000. Respondent failed to provide pain management or any other curative treatment. I find it medically necessary at that point and could have lead to an improvement in her condition. It would be wrong to deny temporary disability when there is a clear indication for medical treatment which the respondent does not provide. Therefore, temporary disability shall commence retroactive to October 27, 2000 at $225.76 per week and continuing until such time as petitioner is no longer temporarily totally disabled, her disability is not likely to improve, she returns to work which the respondent does not provide. Therefore, temporary disability shall commence retroactive to October 27, 2000 at $225.76 per week and continuing until such time as petitioner is no longer temporarily totally disabled, her disability is not likely to improve, she returns to work or on further order which either party may seek on two days notice. or on further order which either party may seek on two days notice.

                Petitioner has applied for Social Security Disability, to date no information on the status of that application has been provided. As a practical matter such information may have a significant impact on the parties as they chart the future progress of this case. Within the next 30 days, She is ordered to inform respondent’s counsel and this court of the status of her Social Security Application.  If it has been granted, the effective date, the amount, auxiliary benefits, and the 80% A.C.E.

                Allowances and fees are:

                Bruce Johnson, M.D. of Sall/Myers for his April 7, 2000 examination and report and testimony $600 payable by respondent.

                Bruce Johnson, M.D. of Sall/Myers for September 28, 2001 examination, Respondent shall reimburse Petitioner’s counsel $150.

                Edwin A. Turner, M.D. of Sall/Myers for his examination and report, $200 payable by respondent.

                Galex, Tortoreti, & Tomes, Esquires reimburse for medical record costs, payable by petitioner $108.

                Trial transcript purchases by petitioner from John F. Trainor, Inc., payable by petitioner $242.50.

                Petitioner’s Attorney fee, subject to adjustment when the full benefits recovered by this motion are known, payable by respondent: $5,160.

                Stenographic fee to John F. Trainor, Inc, payable by respondent $450. 

Dated:  January 6, 2003                                    Lawrence G. Moncher                                                                          Lawrence G. Moncher, J.W.C.