CP# 94-13115 & 97-12518 Brown v. Tingley Rubber Corp.
DEPARTMENT OF LABOR
DIVISION OF WORKERS’ COMPENSATION
TINGLEY RUBBER CORP.
NO. C.P. 97-012518
HONORABLE BARBARA VAN HORN COLSEY
Judge of Compensation
WYSOKER, GLASSNER, WEINGARTNER,
GONZALEZ & LOCKSPEISER, ESQS.
By: ALLAN LOCKSPEISER, ESQ.
Attorney for the Petitioner
HOWARD WILLIAM CRUSEY, JR., ESQ.
By: MARCIA MILLER, ESQ.
Attorney for the Respondent
The petitioner, Delores Brown, was employed by the respondent, Tingley Rubber Company, from 1977 until 1996. She has filed two claims against the respondent. Claim Petition 1994-013115 alleges that she slipped and fell on ice and snow on January 10, 1994 causing orthopedic and neurologic injury. Claim Petition 97-012518 alleges an occupational exposure to chemicals, pulmonary irritants and arduous labor from 1977 through July 31, 1996. The nature of the injury is described as being pulmonary, internal, lungs, eyes, back, neck, hands, head and nervous system.
An Order joining the Second Injury Fund was signed September 27, 1999.
The respondent stipulated that the petitioner sustained compensable injuries as a result of the January 1994 accident and left the petitioner to her proofs as to the occupational claim. Based on the testimony of its pulmonary expert and the report of its orthopedic expert the respondent concedes that the petitioner has established the existence of some permanent partial work-related pulmonary disability with reference to the occupational claim with and orthopedic disability involving the petitioner’s low back with reference to the traumatic event. Additionally, the respondent acknowledges that the petitioner did have carpal tunnel syndrome which might reasonably be related to the repetitive work described by the petitioner.
With reference to the 1994 accident the petitioner testified that she slipped on ice and fell on her back. She was dazed and indicated that she could hear voices asking if she were okay but she could not respond. She got to her car and sat for about 30 minutes to gather herself together. Immediately following the accident she had multiple complaints about pain in her back, right hand, finger, neck and shoulder. She returned to work the day after the accident. She was sent to Prizm Occupational Health where she was seen from January 14, 1994 to April 15, 1994 and received treatment for her neck and low back muscle strain, scalp contusion and headaches. Prizm’s records reveal that the petitioner was kept out of work only from January 28, 1994 to February 3, 1994. It was noted in the records that there was a contusion to the petitioner’s right third finger distal phalanx. There was a notation that carpal tunnel syndrome on the left was suspected by history and not related to the January 10, 1994 accident.
The petitioner continued to work for the respondent resuming the same job duties until respondent’s normal summertime shutdown in 1996. She did not return to the company after that. She testified that she continued working although she was feeling very sick and experiencing pain in her head, eyes, ears, neck, shoulder, back, legs, knees and foot because “the doctor wouldn’t give me any time off.” While still being seen at Prizm, the petitioner was seeing her own physicians with reference to her complaints and continued to do so after the last visit with Prizm in April or May 1994. She did not make any request of the respondent for treatment after that which was provided by Prizm and saw multiple physicians on her own with reference to all of her complaints which she consistently attributed to the January 1994 fall.
The petitioner saw her primary provider, Dr. Sarra, who gave her medication. She then was treated by Dr. Mian, a neurologist, who performed an EMG in May of 1994 which revealed root compression at C5 on the left with a right carpal tunnel syndrome. A July 31, 1994 CT Scan of the brain was normal. Dr. Mian sent petitioner for an MRI of the cervical spine in October of 1994. The MRI revealed degenerative disc disease from C2-3 through C5-6 with early ventral ridging and/or disc bulges at C4-5 and C5-6. He performed an EMG with regard to the petitioner’s low back which revealed root irritation or compression syndrome at L5 on the right. In March 1995 Dr. Mian performed another EMG which revealed right carpal tunnel syndrome. According to the petitioner the pain in her shoulder, neck, back, hands and her headaches intensified and she began to have anxiety and depression. She was referred to the Carrier Foundation in September 1995 and received treatment on an outpatient basis until March 13, 1996. According to Carrier’s records she was then seen sporadically between September 11, 1996 and June 10, 1997 for depression. EMGs were performed in August 1995 and August 1996 confirming bilateral carpal tunnel syndrome. In 1996 a lumbar MRI evidenced degenerative disc disease and osteoarthritis. Petitioner had carpal tunnel surgery for her right hand in October 1997 and for her left hand in January 1998. She continues to take various medications.
The petitioner was hospitalized for one day in June 1995 for excision of a breast tumor (admittedly unrelated to work) which proved to be benign.
The respondent manufactures footwear such as boots and rubbers. Petitioner worked 40 hours a week during the 19 years of her employment. She spent approximately 17 years working with the footwear as it traveled along a conveyor belt and into a large open tank filled with a bromine/ammonia solution. She would constantly grab the items with her hands and pull them apart getting them ready to travel from the conveyor belt into the acid tank. It was necessary to pull the rubbers, or boots, apart since they stuck together in the manufacturing process. At times she would pack the footwear into boxes. She would have to lift those boxes and she stated it was heavy work for her. Other duties included stacking and putting away the boots and rubbers, spraying waterproofing chemicals on them and cutting off the excess rubber from the footwear. Fumes would come from the bromine solution tank all day. The boots and rubbers she was working with were impregnated with the odor. When spraying the waterproofing chemicals, she described having to do it by reaching overhead which resulted in the spray dripping on her. The respondent did not dispute petitioner’s description of the physical nature of her work efforts.
Dr. Horwitz testified as petitioner’s orthopedic expert with regard to petitioner’s hands. The doctor stated that the carpal tunnel syndrome resulted from the work activity described by the petitioner of grabbing rubbers shoes, pulling them apart packaging, lifting and putting them wherever they had to go involving the constant use of her hands. The doctor also indicated that the slip and fall was an exacerbating factor when petitioner fell on her hands. However, the petitioner did not testify to falling on her hands. She may have sustained a contusion to the third finger of her right hand but gave no description as to how the overt mechanics of the fall involved either of her hands.
Dr. Komotar, petitioner’s neuropsychiatric expert, testified that the type of repetitive motion that the petitioner was doing with the boots can be the cause of the carpal tunnel syndrome all by itself, adding, that if the petitioner fell and “hyperextended her wrist” that may have contributed to the development. We do not know if there was any hyperextension of either wrist in the 1994 fall.
The evaluation report of Dr. Gordon, respondent’s orthopedic expert, was offered into evidence in lieu of his testimony without objection. Dr. Gordon stated in his report that:
“The multiple electro-diagnostic testing of Mrs. Brown’s median nerves are consistent with carpal tunnel syndrome. However, you will note that she started off with the right side and later developed findings on the left side as supported by the records. There was no history of any injury to the left hand or wrist in the alleged fall of January 11, 1994. This would make me believe that the carpal tunnel syndrome on the left side had nothing to do with the reported fall . . . It would also raise a serious question in my mind as to whether the fall had anything to do with the right carpal tunnel syndrome since I believe it would be most unusual for the same problem to develop in both hands with different etiologies.”
Dr. Gordon did not address the occupational aspect of petitioner’s carpal tunnel syndrome. He only had the history of the slip and fall as given to him by the petitioner at the time of his evaluation with no information about hand involvement in work activity. Dr. Gordon’s ruling out the relationship of the carpal tunnel syndrome to the January 1994 accident while acknowledging the existence of carpal tunnel syndrome, gives support to the plausibility of Dr. Horwitz’s and Dr. Komotar’s opinions that the nature of petitioner’s use of her hands at work was the primary causative factor of her bilateral carpal tunnel syndrome.
Admittedly the petitioner had surgery for carpal tunnel syndrome bilaterally. Dr. Horwitz had objective findings with reference to both hands that the scarring was hyperpigmented and adherent to the underlying tissue and there was flattening in the palmar region of each hand. Additionally, he had findings of decreased range of motion, weakness in grasp, pain and tenderness. Such latter findings, while subjective in nature, would not be totally unexpected in light of the surgeries. Dr. Gordon noted the scarring and found normal sensation in both hands and fingers. He offered an estimate of disability for the structural changes present after the carpal tunnel releases.
Dr. Komotar examining neurologically testified that she found minimally decreased sensory changes on both hands on the palm which overlaps and is rather consistent with Dr. Horwitz, who had found sensation to be intact and adds nothing to the overall findings with reference to the hands.
With reference to the petitioner’s neck Dr. Horwitz was asked to tell what he found to be objective with regards to the neck examination. He testified that he had objective findings of hardness of the posterior lateral cervical musculature. Even though he referred to reduced range of motion as being objective it is not considered as such by the court.
Dr. Gordon reported that he found no evidence of any permanent disability in the shoulder or cervical area. Upper extremity motion function was intact on each side and he found no spine tenderness in the cervical area. Both doctors were aware of an October 1994 MRI report of cervical spine showing degenerative disc disease at C4-5, C5-6, C3-4 (termed as moderate) and at C2-3 (termed as mild) with early ventral ridging and/or bulging discs at C4-5 and C5-6 with no evidence of spinal stenosis (narrowing) and the spinal cord and roots were not displaced. Dr. Horwitz testified that the bulging discs were attributable to the January 1994 traumatic event since there had not been any diagnostic test establishing their existence prior to the January 1994 event. For whatever reason he seems to be overlooking the fact that bulges can be degenerative in origin as well as traumatically induced. Dr. George, the radiologist, rendering the MRI report clearly interpreted the MRI as showing that there is bulging at the annulus and/or osteophytic ridging associated (emphasis added) with the degenerative discs at C4-5 and C5-6, giving no interpretation that the bulging was traumatic in nature. I do not accept Dr. Horwitz’s opinion with reference to the causation of the bulging discs. I note that Dr. Gordon referred to the MRI as showing some cervical degenerative disc disease at C2-3 through C5-6 thus including C4-5 and C5-6 in the degenerative disc disease category.
With reference to the lumbar spine Dr. Horwitz was asked to look at his report and indicate what he found to be objective findings. The doctor testified to observing loss of the normal lumbar lordotic curve with spasm and bilateral hamstring spasm. There he again referred to reduced range of motion as being objective. He noted a positive Lasegue’s test and Patrick’s test. He described Lasegue’s as being basically the straight-leg-raising test where the patient is supine. The doctor stated that you lift up each leg and normal should be 90N. If the patient is unable to raise it within 10 to 15 degrees it is considered abnormal and it is indicative of disc pathology. In the Lasegue’s maneuver if there is disc pathology pressure is put upon the sciatic nerve causing pain but in the doctor’s report I note that he also indicated that the sciatic tension test was negative. I find then some inconsistency between his reported results of the Lasegue’s and sciatic tension tests. The doctor described the Patrick’s test as being basically flexion, abduction, external rotation of the hips, saying that if the pain is elicited it certainly can indicate any type of hip pathology. That explanation certainly lacks any definition as to how that is related to the petitioner’s low back and the slip and fall.
Dr. Gordon noted spine tenderness at the lumbosacral junction, no evidence of spasm or lower extremity muscular atrophy, negative Lasegue’s sign, a normal reversal of the lumbar lordosis on full forward flexion and reduced range of motion on straight leg raising with complaints of pain on the right, active and symmetrical lower extremity reflexes, intact sensation and ability of the petitioner to walk on heels and toes without problems.
Both doctors were aware of a September 1996 MRI report of the lumbar spine showing degenerative changes at L5-S1 and L4-5 and mild L4-5 facets arthritis. Both found permanent disability with reference to the lumbar spine and both causally related the disability to the slip and fall in January 1994.
Dr. Komotar testified to having neurological findings with reference to the petitioner’s neck and low back consisting of spasm, tenderness and reduced range of motion because of pain, saying that the rest of the examination was normal. Her findings overlapped Dr. Horwitz’s findings. She diagnosed radiculopathy although she had no such clinical findings.
Although Dr. Horwitz found evidence of permanent disability in the cervical and lumbar areas he only offered an overall estimate as to the percentage of such disability. He stated that he could not allocate a percentage to one or the other of the body areas despite the fact that he testified that he found the majority of the disability to be attributable to the cervical area.
Dr. Hermele testified as petitioner’s pulmonary expert. He estimated disability for obstructive and probable restrictive pulmonary disease which he related to petitioner’s work exposure, particularly to the bromine and ammonia fumes to which the petitioner was exposed. He relied upon the MSDS sheets describing those substances as being severe lung irritants and his personal experience in making his determination as to causal relationship.
Dr. Schisano, testifying as respondent’s pulmonary expert, found his pulmonary test results to be consistent with mild restrictive lung disease and conceded that the petitioner’s work exposure as described could have been a contributing factor to her pulmonary condition.
Dr. Hermele took a chest x-ray of the petitioner and noted hyperlucent lung fields meaning, according to the doctor, that the lung field on the x-ray appears more black than it should be. The doctor stated that his x-ray was not an overexposed film so there may in fact be decreased density in the lungs themselves causing the film’s appearance. The doctor indicated that decreased density is seen in emphysema. Emphysema is a type of obstructive pulmonary disease. However, diagnosing obstructive pulmonary disease in the petitioner, the doctor did not specifically diagnose emphysema. On clinical examination Dr. Hermele found prolonged expiratory phase which means it takes longer to expire the air than inhale and the doctor indicated that that was usually an obstructive sign. He found decreased breath sounds at both lung bases which he indicated meant that the airflow is diminished at the bases. Doctor Hermele also did a pulmonary function study. He had findings including FVC (forced vital capacity) at 65% of predicted, FEV(1)(forced expiratory volume in the first second after a full breath) at 76% of predicted both of which he stated were abnormal findings. In fact with respect to FVC and FEV(1) the normal is 80% or greater. The doctor had a ratio figure (FVC/FEV(1)) of 114% in his test results which he did not testify to in his direct examination. He went on in his direct examination to refer to the FEV (3), the PEFR and FEV25-75 readings stating that they were normal. On cross-examination Dr. Hermele indicated that the ratio was apparently normal but the underlying numbers were abnormal. He referred to FVC as being the best indicator of restrictive pulmonary disease and to FEV(1) as the best indicator of pulmonary disease S usually obstructive.
Dr. Schisano, respondent’s pulmonary expert, also had taken a chest x-ray which he did not have in court but which he indicated was normal. On his clinical examination there was no wheezing and petitioner had clear lung fields. In his pulmonary function studies the doctor found that the petitioner had an FVC of 56% of predicted and FEV(1) of 67% of predicted. The FEV(1)/FVC ratio was 120% of predicted. With respect to the ratio normal is 75% of predicted or greater. It is clear that both doctors’ ratios were above normal. Dr. Schisano testified that that ratio determines any obstruction of airflow out of the lungs. He reiterated a few times that someone with a normal ratio could be extremely sick on a pulmonary basis and emphasized that such illness would be from restrictive lung disease not obstructive lung disease.
Dr. Schisano diagnosed mild restrictive lung disease with no evidence of obstructive lung disease.
Neither doctor detected wheezing at the time of their examinations of the petitioner. She testified to experiencing shortness of breath and wheezing sometimes. She was taking no pulmonary medications at the times she was evaluated and she testified that she still does not take any presumably because of other medications that she takes.
The petitioner’s complaints to Dr. Hermele were of having a productive cough for at least three months each year for several consecutive years. These are classic symptoms of chronic bronchitis to which Dr. Hermele has testified on many occasions. Chronic bronchitis is an obstructive pulmonary disease. Dr. Hermele’s report also indicates that the petitioner advised him that she needed two pillows in order to breathe properly when sleeping. Petitioner did not testify to having a productive cough nor did she testify to needing two pillows in order to breathe properly. When presented with those facts Dr. Hermele testified that though the petitioner may now not have chronic bronchitis he would still diagnose obstructive disease in this matter.
I am aware that the FEV(1)/FVC ratio is considered to be the most reliable indicator in pulmonary function testing of the existence of obstructive disease. That ratio was normal in both doctors’ tests. I accept Dr. Schisano’s opinion that the petitioner has mild restrictive pulmonary disease and insufficient proof of obstructive disease.
Both Dr. Komotar and Dr. Frankel, respondent’s neuropsychiatric expert, have diagnosed the petitioner with depression. Dr. Komotar related the depression to the January 1994 accident reasoning that there was no previous history of depression, the petitioner had worked for 17 years with a good work history and that following the fall and her injuries her working abilities and daily activities were affected and the petitioner became depressed. When asked to explain why there was a delay of approximately one and a half years after the injury before psychiatric treatment was sought the doctor explained
“(a)nybody that suffers an injury, any kind of injury a car accident, a fall, whatever and requires prolonged treatment it’s the same thing like with a chronic illness. Sooner or later they will become depressed because that particular problem that goes on for six months, a year or longer and affects your daily activities and ability to work is going to affect you emotionally period.”
Dr. Frankel diagnosed depression and somatization and found it to be unrelated to the petitioner’s employment. It was his opinion that petitioner’s physical complaints were manifestations of an underlying psychological disorder. He stated that there was no chance that all or even most of petitioner’s current complaints were the result of the January 1994 fall and suspected that her illness behavior was being encouraged by over-treatment and over-diagnosis.
The doctor’s opinion as to the excessiveness of petitioner’s complaints finds support in Dr. Modi’s August 7, 1995 report wherein the doctor commented that the petitioner’s symptoms are out of proportion to the signs on examination. The petitioner had been referred to Dr. Modi by her family care doctor for a neurological consultation. Petitioner complained of headaches, dizziness, blurred vision, some neck pain and particularly complained of experiencing double vision. The doctor’s cranial nerve examination, specifically with reference to the eyes, found no deficit. A bilateral carotid ultrasound, an electroencephalography and an MRI of the brain were reported as being normal. EMGs performed by the doctor revealed bilateral carpal tunnel syndrome. On followup by petitioner’s primary care doctor, a CT scan of the orbits (Eyes) was done at his behest. The scans were normal. At the time the petitioner was then complaining of pain and swelling in the left orbit. According to the report of the CT there was no soft-tissue swelling and no orbital mass. The orbital globes were symmetric, the occular muscles were symmetric and the ortibal nerves unremarkable. In an evaluative report prepared at the Carrier Foundation dated September 13, 1995, it is noted that “medical tests appear normal and do not offer explanations for the patient’s symptoms.” The last note in the Carrier records is dated June 10, 1997 and it states that the petitioner is much improved headaches gone, muscle spasms gone, still goes for physical therapy. Feels great, not crying, no mood swings. The petitioner testified that she did not recall telling that to Carrier but I believe that the report is a valid record of what the petitioner stated because of the specificity of its contents and there is no reason to believe that there was a basis for Carrier to make misrepresentations.
The petitioner was seen on June 26, 1997 by an orthopedist, Dr. Pine, of Orthopedic Associates, who ultimately performed the carpal tunnel surgeries, with complaints of back, neck and hand pain stating that she had improved with physical therapy. In August 1997 she presented to the doctor with low back, right hand and now right foot complaints. She reported that her back was getting progressively better although she had pain and discomfort. On October 21, 1997 she presented to the doctor again with complaints of significant low back pain with left leg radicular symptoms. Dr. Pine diagnosed chronic low back pain and left leg pain suggesting that the petitioner might be a candidate for epidurals. I make reference to Dr. Pine’s visits just as a way of indicating what seems to be a see-sawing of the petitioner’s complaints. In the face of this, Dr. Frankel did not explain what the underlying disorder might be or what brought such development about. There is nothing in the medical records showing that the petitioner had any manifestation of a psychiatric problem before January 1994 and the petitioner denied any preexisting problems. It is undeniable that the petitioner had psychiatric treatment after the fall and is still taking psychiatric medication and although she testified that Carrier’s treatment was not helpful she testified to still seeing them on a regular basis. At the very least if there was an underlying condition it has been exacerbated, or unleashed, by the occurrence of the fall in January 1994.
The petitioner argues that she is totally disabled and that all three of her evaluating doctors indicated that she is totally disabled. None of the three doctors found the petitioner to be totally disabled solely as the result of his/her individual findings on physical examination of the petitioner but offered the opinion of totality based on petitioner’s overall medical condition. I do not find the petitioner to be totally disabled. The petitioner claimed Second Injury Fund involvement alleging preexisting hypertension and the removal of a cyst from the petitioner’s breast in 1995. The petitioner testified that she did not have hypertension and although she testified that she experienced pain under her breasts there was no medical proof addressing that claim or the claim with reference to the existence of hypertension. Further, the petitioner did not testify to the benign breast cyst/tumor having any effect upon her activities. The Second Injury Fund, therefore, is dismissed.
Both the petitioner’s and the respondent’s evaluators offered estimates of permanent disability with reference to the petitioner’s low back causally related to the petitioner’s 1994 slip and fall and estimates of pulmonary disability causally related to the petitioner’s occupational exposure and estimates of disability of the hands which I have determined are also causally related to the occupational exposure.
With reference to the petitioner’s cervical area there is a dispute between the evaluators as to the existence of any permanency. Dr. Gordon reported no objective findings with reference to the cervical spine on his physical examination of the petitioner. Dr. Horwitz offered an estimate of disability although his physical findings were minimal. Admittedly there is underlying degenerative disease of the cervical spine as evidenced by an October 1994 MRI. There was a May 1994 EMG study of both arms performed by petitioner’s then treating neurologist and reported as showing root irritation or compression syndrome at C5 on the left. However, the 1994 MRI showed minimal indentation of the thecal sac and the spinal cord and nerve roots were not displaced, there was no evidence of spinal stenosis. Those findings are not supportive of the EMG study. The petitioner was examined by Dr. Modi in August 1995. In the course of that examination the doctor found no point tenderness over the cervical spine, no particular restriction of neck movements and the tone and strength were fairly symmetrical and normal in all four extremities. In July 1996 Dr. Wasserstrom, petitioner’s treating neurologist, reported from his physical examination “(n)eck supple. Minimal reduction in range of motion.” The doctor performed an EMG on August 7, 1996 of the petitioner’s arms which was normal, therefore, not evidencing any compression syndrome. Dr. Gordon’s cervical findings are consistent with the findings of those two doctors. Dr. Frankel, examining neurologically, reported that there was some collapsing weakness at the shoulders which he deemed to be a functional sign and the doctor found an absent left triceps jerk which he said may be a mild radicular sign due to degenerative disease of the cervical spine. According to the doctor the petitioner had no complaints specifically suggesting an active radiculopathy at the level implied by the finding. Dr. Komotar, who examined the petitioner, after Dr. Frankel had no finding of an absent left triceps jerk nor of any deficits with reference to the deep tendon reflexes. Therefore, the petitioner has failed to establish by objective medical evidence the existence of any permanent disability in the cervical area attributable to the January 1994 fall.
On the question of the extent of disability I lost confidence in the complete trustworthiness of the petitioner’s continuing multitudinous complaints when she testified that she could not go to church because she could not wear heels because of her back. That statement reeks of exaggeration. Wearing heels is not a prerequisite for attending church services.
Taking into consideration that the petitioner’s and the respondent’s evaluators found disability for the hands attributable to the bilateral carpal tunnel surgery and the fact that the petitioner testified to continuing to experience tingling in her hands and pain in the wrists which would wake her on occasion and those types of complaints are not unexpected, I find 12 1/2% permanent partial disability based on the residuals of the bilateral carpal tunnel syndrome status post surgery.
With reference to the petitioner’s pulmonary condition, while both doctors found disability, I considered Dr. Schisano’s opinion as to the nature of the pulmonary condition more persuasive than Dr. Hermele’s. The petitioner testified to experiencing shortness of breath and wheezing sometimes. Neither party’s doctor detected wheezing during their physical examination of the petitioner and the petitioner testified she was not receiving treatment or taking medication for her breathing. I find 10% permanent partial disability for restrictive pulmonary disease.
With reference to the petitioner’s low back, giving regard to the doctors’ physical findings and the petitioner’s complaints of difficulty vacuuming and an inability to stand too long or pick up anything heavy I find 10% permanent partial disability for chronic low back sprain with underlying mild degenerative changes.
With reference to the psychiatric portion of the claims, giving consideration to the fact that both the petitioner’s and respondent’s psychiatric evaluators found the petitioner to be suffering from depression and considering that the petitioner still takes medication for that condition the need for which first came about after the 1994 trauma whether there was an underlying condition or not, I find 27 1/2% permanent partial disability psychiatric in nature attributable to the 1994 slip and fall for depression with obsessive complaints of pain.
The overall disability arising from the 1994 incident is 37 1/2% permanent partial disability allocated 10% permanent partial for the low back, orthopedic in nature and 27 1/2% permanent partial psychiatric in nature. This results in benefits to the petitioner for a period of 225 weeks at $245 for a total of $55,125.
With reference to the occupational claim through 1996 the petitioner is entitled to benefits for the hands for a period of 75 weeks at the rate of $128 for a total of $9,600. For the pulmonary portion of the occupational claim the petitioner is entitled to benefits for a period of 60 weeks at the rate of $128 for a total of $7,680. These occupational disabilities arise out of separate exposures having different dates of manifestation and, therefore, are not stackable. The carpal tunnel manifested in 1994 and 1995. There were no pulmonary complaints until after the petitioner ceased working in 1996. See Kaneh v. Sunshine Biscuits 321 N.J. Super 507 (App Div - 1999).
There will be a fee allowance for Dr. Hermele’s, Dr. Horwitz’s and Dr. Komotar’s evaluations, preparation of report and testimony in the amount of $450 each shared equally by the parties. There will be an attorney’s fee allowance with reference to the 1994 claim in the amount of $11,000 with petitioner’s share being $4,400 and respondent’s share being $6,600. Additionally petitioner’s attorney is entitled to a fee with reference to the occupational claim of $3,555 with petitioner’s share being $1,420 and respondent’s share being $2,135. There will be a stenographic fee allowance in the amount of $900 payable by the respondent to John F. Trainor, Inc.
The petitioner’s attorney shall submit the appropriate forms of Orders and may seek an allowance for costs of medical records, if any.
Barbara Van Horn Colsey
Judge of Compensation
January 29, 2003