DECISION

KATHY BRADY, Petitioner,

vs.

ROBERT WOOD JOHNSON HOSPITAL, Respondent.

IN THE MATTER OF THE
VERIFIED PETITION OF
KATHY BRADY FOR BENEFITS
FROM THE SECOND INJURY FUND

Appearances:

GALEX, TORTORETI & TOMES, ESQS.,

By: SUSAN CALLAHAN, ESQ.,

Attorneys for the Petitioner

PITMAN, PITMAN & MINDAS, ESQS.

By: PATRICK MINDAS, ESQ.,

Attorneys for the Respondent

No appearance for the Second Injury Fund

PHILIP BOLSTEIN
Judge of Compensation

Petitioner Kathy Brady is 44 years of age. She is married and has two children, ages 6 and 9. On March 10, 1986, while she was working as a registered nurse at the Robert Wood Johnson Hospital, a heart monitor fell from a stretcher and struck her on the right foot.

The respondent furnished her with the necessary medical treatment including multiple surgical procedures for tarsal tunnel release, deep peroneal nerve release, and ultimately, a fusion of her right calcaneal joint.

Due to the instability of her right ankle, she was required to use crutches and developed a tendinitis of the left shoulder and later a bilateral axillary pain.

In July 1989, she was diagnosed with reflex sympathetic dystrophy (RSD) of the right lower extremity.

By the end of 1989, she began using a wheelchair in addition to crutches.

She was paid temporary compensation from the date of the accident until approximately October 23, 1990 and has been paid permanent compensation based upon a voluntary offer and tender of 50 percent of the right foot and 12 2 percent of partial total.

On April 30, 1997, while at home, petitioner's right foot gave way and she fell down a flight of stairs. She fractured numerous bones in her left foot as well as her right tibia and fibula.

She was awarded Social Security Disability as of August, 1988.

Petitioner testified on June 8, 1998 and April 19, 1999. On each of these occasions, she testified from a wheelchair.

Her complaints were extensive, involving both lower extremities, both upper extremities, her lower back, and her mental outlook.

She had constant pain in her right foot, ankle and knee. There was swelling with temperature changes and skin changes in her right lower extremity.

She had pain in her left foot with deformity of the toes making it difficult to wear a shoe on that foot.

She uses a wheelchair most of the time but she can stand with the aid of crutches for up to 15 minutes. The pressure of the crutches, however, cause severe pain in both shoulders and axillary regions, She either creeps or uses other supports, such as a counter, when moving about the house when not in the wheelchair.

She is unable to care for her children and her husband does most of the work in getting them ready for school and in after-school activities. He also gets them ready for bed.

Petitioner does help them with their homework.

She does not cook and their meals are either fast food brought in from outside or heated in the microwave.

She is unable to sleep well.

She cannot raise her arms above 90 degrees when sitting in the wheelchair.

Emotionally, she is distraught that her life has gone from one of varied activity to one of sedentary and dependant existence.

The medical evidence consisted of some treatment records and the testimony of the evaluating experts for each party.

Dr. Mark Friedman, a specialist in Physical Medicine and Rehabilitation, testified for the petitioner. He had examined her on two occasions.

On December 5, 1995 and again on July 8, 1998, he found petitioner to be totally disabled from the effects of the injuries together with the surgeries related thereto and the RSD involving both of her lower extremities. He felt that these disabling conditions were all causally related to the accident of March 10, 1986.

Dr. Peter Crain also examined the petitioner on two occasions, March 15, 1996 and August 10, 1998. He is a specialist in the fields of neurology and psychiatry. He too concluded that Mrs. Brady was totally disabled from the neurological and psychiatric residuals of the accident of March 10, 1996.

The respondent presented the testimony of Dr. Marc A. Maitaico, a specialist in rehabilitation medicine. He had examined Mrs. Brady on October 25, 1995 and September 18, 1998.

In 1995, he concluded that the petitioner was permanently disabled to the extent of 25% of her right foot and 5% of the right leg for the injuries of March 10, 1986 and surgeries related thereto. He did not believe that she had RSD involving her right lower extremity.

In 1998, he increased the disability to 35% of the right foot, 72% of the right leg and 122% of the left foot for the residuals of the initial injury and subsequent surgeries together with the injuries suffered in the fall on April 30, 1997. He now conceded that the petitioner presented certain physiological changes which were consistent with RSD of the right lower extremity.

Respondent also presented the testimony of Dr. Ivan R. Dressner of Essex Neurological Associates. He had examined the petitioner on April 20, 1996 and September 26, 1998. Based upon his findings at that time, he concluded that Mrs. Brady probably had RSD of the right lower extremity with a permanent neurological disability of 15% of partial total. He did not find any psychiatric disability at that time.

He reexamined Mrs. Brady on September 26, 1998. Although he found no increase in the neurological disability, he now found a psychiatric disability of 5% of partial total causally related to the accidents of March 10, 1986 and April 30, 1997.

At all of the respondent doctors examinations, the petitioner was using crutches to ambulate.

At the outset, I find that the petitioner is totally and permanently disabled. She suffered significant traumatic injury to her right foot on March 10, 1986 which, unfortunately, became significantly complicated resulting in multiple surgical procedures. She developed Reflex Sympathetic Dystrophy, initially involving her right lower extremity and, later, spreading to her left lower extremity as well.

She has used crutches since 1988 and, more recently, she uses a wheelchair if she knows that she will be required to cover long distances or when outside her house.

The more important issue, at least to the respondent who filed the Verified Petition for Benefits From the Second Injury Fund in the name of the petitioner, is whether the evidence shows that the petitioner was suffering from any conditions prior to the accident of March 19, 1986 which were permanently disabling and combined with the permanent disabilities resulting from that accident to render the petitioner totally disabled.

The legislative policy, with regard to the Fund, is twofold; a concern for the hiring of workers with pre-existing disabilities and the protection of the Fund from inroads unless all of the statutory criteria, both affirmative and negative are satisfied. See Katz v. Howell, 68 N.J. 125 (1978). To hold the Fund responsible it must be shown that the petitioner had become totally and permanently disabled by the combination of pre-existing conditions together with the last compensable disability neither of which, by itself, would have resulted in the total disability. See Wexler v. Lambrecht Foods, 64 N.J. Super. 189 (App. Div. 1961).

The burden of proving eligibility for benefits from the Fund is upon the party seeking to impose Fund liability. See Lewicki v. New Jersey Art Foundry, 88 N.J. 75 (1981). In this case, it is the respondent employer who is seeking to be relieved of responsibility for a portion of the petitioner's disability and it is therefore the obligation of the respondent to demonstrate Fun d liability. See Ort v. Taylor-Wharton Co., 47 N.J. 198 (1966).

The thrust of the respondent's argument in this regard is the uncontradicted evidence that the petitioner suffered from diabetes for many years prior to the accident of March 10, 1986.

The medical records submitted as R4 in evidence confirm that Mrs. Brady developed diabetes in 1973 while in Nursing School. She was placed on Insulin and been on a flexible dosage regimen since that time. Her control of this condition was somewhat difficult and she was regularly seen by her physician. On October 28, 1983, she indicated to her doctor that she has a, Apersisting pervading sense of tiredness and fatigue without relationship to activities, time of day, or other events.@ She was advised to increase he bedtime regular insulin dosage.

This is the only evidence of petitioner's diabetic condition prior to the date of the last compensable injury. There was no follow up as to the result of any increased medication.

The other evidence with regard to the diabetes shows that this condition was considered before each surgery and was not considered a contraindication to said surgery. The diabetes was also found not to be a contraindication to pregnancy.

At the time of the accident of March 10, 1986, the petitioner was a registered nurse on the intensive care staff of the respondent and had been working for the respondent for nine years prior to the accident. No evidence has been presented to show that the petitioner's work was affected by her diabetes, or that she was losing time from her work because of it. No evidence was presented to show that the complaints of tiredness and fatigue were persistent or did not respond to the recommended treatment.

The petitioner's uncontradicted testimony is that prior to this accident, AI was a normal person. I skied. I traveled myself. I worked. I went to school, earning nine credits a semester. I went out with friends.@ Tr. April 19, 1999 p. 35-5.

The respondent in this case must establish that the petitioner had a disability prior to the accident of March 10, 1986. The statutory definition of disability includes not only a showing of objective evidence of an injury or condition which restricts the function of the affected bodily part or system, but also a requirement that the court take into consideration whether there has been a lessening, to a material degree, of the employees working ability.

In this case, I find no evidence of any restriction of the petitioner's working ability, or her ability to engage in ordinary pursuits of her daily life as a result of the diabetic condition prior to the occurrence of the last compensable injury. One may have a condition without having a disability from that condition. See Earl v. Johnson & Johnson, 158 N.J. 155 (1999).

Furthermore, even if petitioner was found to have a disability as a result of her pre-existing diabetes, I find that the disability resulting from the last compensable accident alone and irrespective of the diabetic condition resulted in the total permanent disability.

It is clear that, prior to the accident of March 10, 1986, the petitioner was a complete working unit, able to satisfactorily perform the functions of her job and enjoy all of the non-work activities in which she participated.

Subsequent to the accident, she has undergone multiple surgical procedures and has developed a significant medical condition resulting in her requiring the use of crutches and/or a wheelchair in order to get through the day. She is getting worse and has developed psychiatric sequellae in addition to her other problems.

A judge of compensation, of course, is not bound by the conclusionary opinions of medical experts; however, he must give consideration to such testimony and evaluate it based upon the doctor's qualifications and demeanor, the inherent trustworthiness of the testimony, and the quality of the underlying examination upon which the opinions are based. See Margaritondo v. Stauffer Chemical Co., 217 N.J. Super. 560 (App. Div. 1985).

The judge of compensation, as trier of the facts, may adopt as much of the expert testimony as appears sound, reject all of it, or adopt all of it. See Amaru v. Stratton, 209 N.J. Super. 1 (App. Div. 1985).

I accept the opinions of Dr. Friedman and Dr. Crain with regard to the nature and extent of the petitioner's disability and its relationship to her compensable accident. I find that their conclusions are more in line with the factual and medical evidence than those of the respondent's experts, who could not even agree on whether the petitioner does, in fact, suffer from RSD.

I find that respondent alone is responsible for petitioner's total permanent disability.

I find that the accident of April 30, 1997 was not a new and separate injury but was an innocent aggravation due to the original injuries of March 10, 1986. Claim Petition 97-023462 will be dismissed.

The Verified Petition for Benefits From the Second Injury Fund will be dismissed upon the grounds that the petitioner's total permanent disability is due to the accident of March 10, 1986 alone.

I fix the onset date of total disability as December 5, 1995, the date upon which Dr. Friedman first examined petitioner and evaluated her as totally disabled.

Judgment will be entered in accordance with this Decision. I reserve my right to supplement this Decision on any and all issues should an appeal be taken by respondent.

Dated: February 7, 2000