CP# 98-7113 Borkowski v. Stores, Inc.
|STATE OF NEW JERSEY
DEPARTMENT OF LABOR
DIVISION OF WORKERS' COMPENSATION
MONMOUTH COUNTY DISTRICT
C.P. # 1998-7113 & 1999- 21035
|LORRAINE BORKOWSKI ,
PATHMARK STORES, INC.
DECISION ON MOTION FOR
For the Petitioner: GALEX, TORTORETI, & TOMES, Esquires
by: SUSAN CALLAHAN, Esquire
For the Respondent: MICHALS, WAHL, SILVER, LEITNER, TORT & DE FAZIO, Esquires
by: , BENJAMIN SMITH & STEPHEN LEITNER, Esquires
LAWRENCE G. MONCHER, J.W.C.,
This is a claim for orthopedic and psychiatric treatment and temporary disability as a consequence of two admitted compensable accidents. Petitioner seeks temporary total disability benefits commencing October 13, 1999 and payment of past and future orthopedic and psychiatric care including surgery for neck and knee injuries. Respondent contended that alcohol addiction and non-related emotional issues rather than the accidents were responsible for her psychiatric illness, that prior arthritis rather than the compensable injuries were the debilitating cause of impairment, and that it had furnished all the treatment and disability payments which were reasonable and necessary for her injuries. Unfortunately, orthopedic treatment issues and progress of this case has been delayed and complicated by petitioner’s psychiatric illness, unavailability of witnesses and by respondent’s refusal to provide treatment.
There is no question that Ms. Borkowski has significant physical impairment all of which has been described by the forensic examiners. Without doubt, she does have significant permanent disability, much of which will not be ameliorated by treatment. There is good reason to expect some degree of improvement in her physical function. I found quite credible and essentially uncontradicted the opinion expressed by her orthopedic expert that these conditions are amenable to treatment. She has significant psychiatric illness which continues to be treated and is likely to require continued therapy. The issue here is causal relation of the various physical and psychiatric conditions. For the reasons set forth in this decision, I have decided that petitioner has been unable to work and in need of medical treatment.
The witnesses in this trial were petitioner and a forensic witness for each party. Petitioner presented the testimony of Bruce Johnson, M. D. and respondent presented William Head, M.D. Both physicians are board certified in psychiatry and neurology and are experienced within their specialty. Documentary evidence included the reports of these physicians and their respective CV’s. There were several misadventures in scheduling the testimony of orthopedic experts. The parties in lieu of presenting the testimony of the orthopedic physicians stipulated that the reports of their respective orthopedic experts would be marked into evidence, waiving cross- examination. The reports of doctors David Myers, a board certified orthopedic surgeon and Edwin A. Turner, M.D. board certified in preventive medicine forensic experts for petitioner and Kenneth C. Peacock, M.D., a board certified orthopedic surgeon for the respondent were marked into evidence. While the report of doctors Myers and Turner had occurred more than 2 years ago, the parties agreed the findings would not have improved. After all this is not a soft tissue case. Dr. Myers and another physician from the Sall/Myers association had examined Ms. Borkowski, a year earlier and had findings related to the accident, but did not opine on the treatment issue. There are x/ray report of petioners knees which preceded the MRI. There are MRI reports documenting two level herniated cervical discs and one reporting chondromalaia in petitioner’s right patella. The physicians reviewed extensive treating records and positive MRI reports. Raritan Bay Medical Center treatment records were entered into evidence as was respondent’s notice terminating petitioner because she could not perform her job responsibilities. Despite the presence of prior personal behavior issues, such as a persistent imbibing of beer, and a pre-employment episode of depression, none of this was shown to have any impact on her ability to work or meet her responsibilities before these two work injuries. I have no reason to believe she was unable to engage in hard physical labor or that she had a poor attendance record. This type of evidence if it existed would have been present in respondent’s personal or payroll records. No supervisors or co-workers were presented. I draw the inference from this lack of management evidence that this employee of 9 years service was physically capable before these accidents.
The burden of proof, here as in all Workers Compensation contested cases, rests on the petitioner who must produce the evidence and persuade the trier of fact by a preponderance of the credible evidence on each and every element of his claim. Pollack v. Pino's Formal Wear & Tailoring, 253 N.J. Super. 397, 410-412 (App. Div. 1992), certif. den. 130 N.J. 6 (1992); Perez v. Pantasote, Inc., 95 N.J. 105, 118 (1984). The “petitioner must provide sufficient credible evidence to support a claim for compensation.” Fiore v. Consolidated Freightways, 140 N.J. 452, 476 (1995).
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 the truth. It need not have the attribute of certainty, but it must be well founded in reason and logic, mere guess or conjecture is not a substitute for legal proof.’ Perez v. Monmouth Cable Vision, 278
N.J. Super. 275, 282 (App. Div. 1994).
Where respondent urges an alternative factual proposition or legal conclusion which will exonerate or mitigate its liability, it, and not the petitioner, bears the burden of proof and persuasion on that proposition. Cf. Gulick v. H.M. Enoch, Inc., 280 N.J. Super. 96, 109 (App. Div. 1995).
The pertinent provision of the Workers' Compensation statute which speaks to the provision of medical treatment requires that an
employer shall furnish to the injured worker such medical, surgical, and other treatment, and hospital service 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 ... giving the employer an opportunity to be heard, shall determine ... [whether] such ... treatment is necessary. [Emphasis added.] N.J.S.A. 34: 15-15.
The employer’s statutory duty to provide adequate and proper medical treatment is absolute. Benson v. Coca Cola Co., 120 N.J. Super. 60, 66 (App. Div. 1972). Under the New Jersey Workers’ Compensation law the respondent ordinarily has the power to control treatment and select the medical providers. Benson and similar cases interpreting N.J.S.A. 34:15-15 teach that when respondent after request, erroneously fails to provide treatment, it is responsible for all reasonable and necessary treatment received for the injury. Once a respondent denies treatment, there is no requirement that the petitioner continue to make continuing fruitless requests. Here there was no mistaking respondents refusal to provide continuing medical treatment.
Compensation for temporary disability must be paid by the employer when an employee is unable to work, where her condition is capable of improving with treatment or time, and she has no wages because of incapacity due to a compensable injury. The payments continue until such time as the employee resumes work, is capable of resuming work or has been as restored to the maximum physical function permitted by the permanent character of the injury. N.J.S.A. 34:15-38; Harbatuk v. S & S Furniture Systems Insulation, 211 N.J. Super. 614 at 623-628 (App. Div.); Monaco v. Albert Mound Inc., 17 N.J. Super. 425 (App. Div. 1952).
Here the respondent initially did furnish medical treatment until it was evident petitioner could not then perform her work responsibilities or be restored to her former physical condition.. From the posture of its defense to this case, that it decided that these accidents caused soft tissue injuries which merely temporarily aggravated an underlying degenerative disease processes. It relied upon the conclusion of Dr. Gallick that petitioner’s problem was a result of pre-existing arthritis rather than a consequence of the work traumas and terminated treatment and temporary disability. One is right to wonder why respondent when it made its treatment decisions failed to consider the MRI findings cited latter by the forensic physicians.
There is no doubt that psychiatric illness secondary to injuries is compensable under New Jersey Worker's Compensation Law providing that the essential elements of the psychiatric impairment are established by competent medical criteria. Margaritondo vs. Stauffer Chemical Co., 217 N.J. Super. 560 (App. Div. 1985) remanded 104 N.J. 388 (1986) after rehearing 217 N.J. Super. 565 (App. Div. 1986). Mental illness which is a result of a person's reaction to significant physical injury does not come within the bar against compensability for conditions which result from an individual’s personal subjective reaction to ordinary stresses of interaction with others or employment insecurity. See Goyden, supra..
Her recent depressive state including at least one apparent suicide attempt by cutting her arm is a consequence of her inability to handle the persistent worsening chronic pain and the real physical impairments accompanying her cervical and knee injuries with a consequent causally related loss of economic opportunity. There is no question that before these accidents, Ms. Barkowski was an emotionally fragile person. A decade earlier she had made some bad choices in her life, including use of drugs and self defeating behavior. Still, no matter what had gone wrong in her personal life before the double barreled impact of these two compensable accidents, she was functioning, working for the respondent for more than 9 years. She was a competent, reliable employee in respondent’s meat and delicatessen department. No evidence to the contrary was presented. The failure of respondent to present evidence or witnesses to present a contrary inference, coupled with the longevity of her employment leads to that conclusion. She met her family responsibilities to feed, cloth, house and raise her two young daughters until the physical consequences of these physical injuries ended her employment and income. After all the respondent through its personnel officers have pronounced her physically unfit and incapable of working.
It was only after she sustained 2 herniated cervical discs at work, underwent epidural steroid injections to her cervical spine and to her right knee, and still had pain that she could no longer put up with her dire circumstance. Her complaints of pain and impairment emanating from her spine is corroborated by a MRI showing the herniated discs with fragmentation. A May 11, 2001 MRI which showed significant chondromalacia of the patella gave truth to her continuing complaints of knee instability. Earlier xrays showing effusion were clear precursors to the continuing problems. There is a clear correlation with her mental illness of depression which manifested itself with abuse of alcohol and self destructive conduct such as carving her arms with a box cutter or razor. She was in such despair that she abandoned her home and went on drunken binges with homeless persons in a desolate wooded hangout near respondent’s store. Her family arranged for emergent mental care. Still, Ms. Borkowski bears the scars of her self inflicted wounds. One is left with the distinct impression that this was a call for help rather an attempt to end her life. The scars, which I saw at trial and described on the record, appear to be deep enough to leave permanent scars, but not deep enough to cause a rupture of a major blood vessel or other body tissue. This is not likely to have happened without her loss of confidence and despair over her physical inability to work. None of this would have occurred absent the work related injuries. This is not a case of a person who has become despondent or stressed because of economic changes consequent to an economic layoff. Cf.. Cairns v. City of East Orange, 267 N.J. Super. 395 (App. Div. 1993). The psychiatric care given at the Raritan Bay Medical Center on an inpatient and continuing on an outpatient basis document the seriousness of this issue. Both doctor Johnson and doctor Head recommend that psychiatric care continue for the indefinite future.
Ms. Borkowski is 50 years of age, five foot 3 inches tall weighing 176 pounds. She is obese, but does not appear to be handicapped by the higher than ideal weight. Put simply she carries her weight well. The father of her children has recently moved in to assist in keeping petitioner’s home operational, this boy friend does don’t provide any financial support. She is a single parent with two children at home, a fourteen year old daughter plus a 21 year old daughter who provides the monetary support of her mother and sister. There was mention during the trial of an older daughter who has an addictive substance problem.
Ms. Borkowski has a history of drug abuse in her younger years plus a history of alcoholic beverage use and abuse. The record presented here is that these had abated. There is no indication that drug abuse continued while she worked for Pathmark. Her alcoholic use had been reduced and had not been shown to interfere with her work or personal life in the years immediately preceding these accidents. Earlier during the 1980's, before she worked for Pathmark, she did experience a significant episode of depression including a suicide attempt via a medication overdose. She was hospitalized, treated with counseling and anti-depressant medication. She recovered to the point that treatment ended and the medication was discontinued. That episode of depression was keyed off as a reaction to the death of both parents within a short period of time or perhaps because she had legal problems as a result of welfare fraud charge. The specific event does not matter, except to note either event could be traumatic for an emotionally weak person.
Following her recovery, she did function quite well and was capable of supporting her family. There was no psychiatric treatment between 1989 and the time of these accidents. Both Dr. Head and Dr. Johnson agreed that Ms. Borkowski was a fragile person before accidents. She suffered from depression and anxiety. Dr. Head referred to a history of agoraphobia. Obviously this would be consistent with anxiety. Her only prior injury of a physical nature was that she suffered a fractured jaw and nose injury some ten years earlier. While there was no history or record of continuing pain, there is clear evidence in x/ray and MRI studies that she had significant arthritis which also made her prime candidate for additional impairment following trauma.
Her employment history consists of semi-skilled jobs which required a good deal of physical labor. Her earlier employment was as a housekeeper in a nursing home and undefined duties in a clothing factory, all of which are unskilled labor intensive work. All of her job responsibilities during her nine year employment with Pathmark were labor intensive. She had to be on her feet for a full work day. She had to use her arms and spine for all activities during the full work day while she operated a meat wrapping machine, moved meat products about, and earlier operated a slicing machine in the deli department. At the risk of repetition, the respondent terminated her. In a writing, it cited physical restrictions imposed by doctor Gallick which show that she was not capable of performing her employment duties. I doubt she is capable of regularly performing any job on a full time basis for any employer in any capacity with these restrictions. Nonetheless, Ms. Borkowski, wanted to return to work, she asked respondent to take her back. In December 1999 respondent candidly pointed out that she could not. The specific physical restrictions enumerated by respondent in its December 27, 1999 letter are:
The restrictions mandated by Dr. Gallick include:
Standing/Walking up to 4 hours in a day
Lifting/Carrying/Pushing/Pulling, up to 5 lbs.
Bending/Leaning/Twisting/Stooping - - occasionally
Reaching Overhead - - occasionally
Squatting/Crouching/Kneeling, - -never
Left hand - - fine manipulation; pushing/pulling; palmar/dorsi flexion–occasionally
These restrictions on your work related activities are such that any reasonable accommodations which Pathmark might provide are insufficient to enable you to function as a deli clerk. Furthermore, your restrictions are such that you are not capable of performing the essential functions of any other available position. Consequently, the Committee determined that no reasonable accommodation could be made so as to continue your employment with Pathmark.
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.