CP# 94-037447,97-013935 Bubenheimer v. General Motors
DEPARTMENT OF LABOR
DIVISION OF WORKERS’ COMPENSATION
HONORABLE BARBARA VAN HORN COLSEY
Judge of Compensation
PAUL CANTILINA, ESQ.
Attorney for the Petitioner
CARPENTER, BENNETT & MORRISSEY, ESQS.
By: ROBERT GHELLI, ESQ.
Attorney for the Respondent
C.P. 94-037447 is before the court on an Application for Review and Modification of a prior award in which the petitioner, Marjory Bubenheimer, received 35% permanent partial total disability, orthopedic and neurological in nature for residuals of a posterior bilateral laminectomy and foraminectomy at L4-L5 and L5-S1 with segmental fixation and bone grafting of facet joints, trauma to the left hip and lumbar radiculopathy resulting from a July 26, 1994 work incident while the petitioner was in the employ of the respondent, General Motors Corporation. The Application for Review and Modification alleges a worsening of the petitioner’s condition requiring medical treatment and seeks an increase in permanent partial disability.
In C.P. 97-013935 the petitioner alleges sustaining injury to her right ankle and left knee, orthopedic in nature, as the result of falling from a ramp on May 23, 1996 in the course of her employment. The respondent stipulated that the occurrence was a compensable event.
In considering an Application for Review and Modification the only issue before the court is how a disability may have increased or decreased. Maier vs. Union Township 155, N.J. Super. 467 (App. Div. 1977). A petitioner seeking to prove increased disability should do so by way of comparative medical examinations. Moccia vs. Eclipse Pioneer Div. of Bendix Aviation 57, N.J. Super. 470 (App. Div. 1959).
Following the entry of the award on January 21, 1997 for the petitioner’s back, she returned on August 5, 1997 with complaints of left hip and groin pain and of pins and needles in her left leg to Dr. Ralph Sweeney, the surgeon who had treated her following the 1994 injury. The petitioner also complained of pins and needles in her left leg. The petitioner was next seen by Dr. Sweeney on October 13, 1997 with complaints of bleeding from her stomach and a worsening of pain in her left groin with a burning sensation. No x-rays were taken at that time, but Dr. Sweeney did have x-rays from August 5, 1997, showing a central alignment with laminectomy at L4-L5 with the fixation being in place.
On clinical examination, Dr. Sweeney found no localizing neurological deficits. The petitioner had an apparent weakness in the left hip flexor which corresponded with her left groin pain. At the time petitioner had negative tension signs. The doctor indicated that she had a fair range of trunk motion given the fact of her two level fusion. The doctor also noted that the petitioner had no change in her pain with trunk motion and weight bearing on the left leg did increase the petitioner’s left groin pain. The doctor recommended additional diagnostic testing.
After the filing of a Motion for Medical and Temporary Benefits the petitioner did undergo a CT scan of the pelvis. The radiologist’s report set forth his impression that (1) internal fixation of L4-L5 and L5-S1 with extensive associated streak artifact was present, (2) small sclerotic foci were noted adjacent to the right symphysis and left acetabulum consistent with bone island, and (3) no CT evidence of a discreet pelvic fracture or joint degenerative change.
A bone scan was performed on June 4, 1998. The radiologist’s report indicated that there was no definite evidence of abnormal signal to suggest disc space infection or gross inflammatory process, however, minimal activity was questioned overlying the region of L5.
The petitioner returned to Dr. Sweeney on June 6, 1998. He noted that a September 16, 1994 MRI demonstrated degenerative changes and disc changes at L4-5 and L5-S1. The doctor stated that further testing could be done to include an EMG and a myelogram/CT scan to rule out pathology involving the epidural space, dural tube and nerve roots. However, it was his opinion, as there were no such findings on the prior MRI, that any new findings would be unrelated to the accident of July 26, 1994.
Upon physical examination of the petitioner, Dr. Sweeney’s findings were that the petitioner had negative tension signs, her sitting Lasegue’s testing was negative and the supine straight leg raising was accomplished up to 80 degrees before the petitioner complained of back pain and calf pain on the left. The doctor observed the petitioner had no significant atrophy in comparing her legs and that the petitioner’s left thigh actually measured larger than the right. The petitioner had a full range of trunk motion with no increase in her complaints of pain. The petitioner did not have an increased complaint of pain in the groin with hip flexion and rotation. External rotation of the left hip produced calf pain. It was Dr. Sweeney’s opinion that he had no diagnosis and was unable to identify an organic cause for the petitioner’s ongoing subjective complaints.
Basically, Dr. Sweeney found that the petitioner had good function of the back and left hip and diagnostic testing did not reveal any physical changes from those which had existed at the time of the January 1997 award.
The petitioner testified that she went to a pain center on her own receiving physical therapy on her back and groin. She saw another doctor who recommended the pain center at JFK Hospital. However, she indicated that she had not gone due to insurance problems. There were no records or reports in evidence with reference to the actual occurrence or nature of any pain center treatment.
Dr. Morris Horwitz, the petitioner’s orthopedic expert, evaluated the petitioner in 1996 for the initial back claim and in 1999 for the re-opener. The doctor reported identical findings in both of those evaluations of scars with adherence, pain and tenderness on palpation of the scar areas, marked curve flattening, loss of lumbar lordosis, spasm and tenderness with marked tenderness at L4-5, L5-S1, bilateral hamstring spasm with sciatic notch tenderness with dorsal thigh radiation bilaterally, positive Patrick’s, Lasegue’s and straight leg raising tests. In 1996 the doctor found tenderness and hardness of a fibrotic nature in the lumbar paraspinals, iliolumbars and sacroiliac with radiation to the flanks, gluteal and posterior thigh areas bilaterally. In 1999 the latter finding of radiation was limited to the petitioner’s left thigh and groin area. In both evaluations the doctor noted a reduction in range of motion of the trunk on flexion, left lateral rotation, right and left lateral bending and on left straight leg raising, commenting that there was rigidity through the lower lumbar segments on all trunk motion. In 1996 Dr. Horwitz had findings of radiation through the infrascapular area. There was no such finding in his 1999 evaluation. In 1996 the doctor reported reduced range of motion of the left hip and in 1999 he indicated there was a further reduction with the exception of an improvement in extension. The doctor noted swelling and spasm in the left hip in 1999. He increased his estimate of orthopedic disability from 55% of permanent partial in 1996 to 66 2/3% in 1999. His diagnosis on both evaluations was:
HNP at the L4-L5 level
Disc disruption L5-S1
Status post discography L3-S1
Status post posterior bilateral laminectomy and foraminotomy, L4-L5 and L5-S1 with segmental fixation and bone grafting of the facet joints.
Residual of contusions and strain of the lumbosacral region
Permanent zone of scarification.
Interestingly, the doctor had also examined the petitioner’s back in 1997 when he was examining the petitioner with reference to the claim filed for the May 23, 1996 accident which alleged injury to the left knee and the right ankle. The doctor reported objective findings at that time with reference to the back, namely, marked curve flattening involving the lumbodorsal and lumbar curves extending through the sacrum, loss of the lumbar lordosis, tenderness and hardness of a fibrotic nature through the lumbar paraspinals, iliolumbars and sacroiliacs with radiation to the flanks, gluteal and posterior thigh areas bilaterally, radiation through the infrascapular area. On palpation, percussion spasm and tenderness was elicited over the paravertebrals with marked tenderness at L4-L5 and S1. Trunk motion was productive of lumbar and sacroiliac pain. There was bilateral hamstring spasm with sciatic notch tenderness with dorsal thigh radiation bilaterally. The straight leg raising test, Patrick’s and Lasegue’s tests were positive. The Achilles tendon reflex was normal. With the exception of the reference to the Achilles tendon reflexes being normal, these findings were the same as those contained in his 1996 and 1999 evaluations. For some reason the doctor failed to note petitioner’s scarring when he examined her in 1997. In comparing the doctor’s 1997 range of motion figures to his 1996 findings it is indicated that flexion was reduced by 5 degrees, extension improved by 5 degrees, right lateral rotation remained the same, left lateral rotation was reduced by 10 degrees, bending to the right was the same and bending to the left was reduced by 15 degrees . The doctor phrased his numbers with reference to the hip range of motion differently in the two evaluations and since it is not known what standard of measurement for normalcy he was using as a guide it does not lend itself to comparison.
As the result of the 1997 evaluation the doctor diagnosed lumbar myositis and estimated orthopedic disability at only 20% permanent partial with reference to the petitioner’s low back. He used general language in his report that the overall disability was greater due to prior impairment. However, the doctor testified that with reference to the May 23, 1996 incident his “objective medical findings noted have resulted in orthopedic disability of 20% of total.” His objective findings were basically the same as in his 1996 evaluation for which he gave a much higher estimate of permanent disability involving the back and gave a different diagnosis. Although the doctor testified that his range of motion testing is an objective finding, range of motion is generally considered to be subjective in nature. While saying that the petitioner’s disability overall was greater because of prior impairment, he made no distinction in his physical findings and allowed them to be the basis of two significantly different diagnoses and estimates of disability. This casts a pall upon the overall credibility of the doctor’s physical findings and opinions with reference to these two claims as to the extent of increase, or existence, of any orthopedic disability. The doctor testified that in addition to his objective findings he based his conclusions that petitioner’s disability had increased on his review of medical records and the petitioner’s complaints. According to the doctor’s evaluative report in 1999 the records he had were the reports of Dr. Sweeney and of various diagnostic tests performed up to and including the operative report from the petitioner’s bilateral laminectomy predating the prior award for the petitioner’s back together with Dr. Sweeney’s October 20, 1997 and June 6, 1998 reports together with the reports of the CT scan and bone scan performed in 1998. Their content has been referred to earlier in this opinion with Dr. Sweeney ultimately indicating that there is no objective finding by way of diagnostic testing or the doctor’s physical examination to explain the petitioner’s ongoing subjective complaints.
In comparing the petitioner’s complaints at the time of the January 1997 award with her current complaints, in 1997 the petitioner testified that she experienced pain 24 hours a day. Currently she indicated that she has some degree of pain all of the time. In 1997 the petitioner testified that she could not run or bike, that she used to play racquetball, that she had been a marathon runner and a triathlete. In the current matter she indicated that she used to be an athlete. In 1997 the petitioner indicated that she could swim. Currently she stated that she gave up swimming due to other problems. In 1997 she testified that cold and damp weather was “real bad” and that she could hardly walk in the cold and currently she has indicated that she hurts a lot in cold damp weather. In 1997 the petitioner testified that she had pain in her groin, and the front, side and back of her left hip. Currently, she stated that she had pain in the left groin, hip and buttock area. In 1997 she testified that sitting in different positions hurt and sexual relations were difficult. In 1997 she indicated that she tried biking but it hurts her back “real bad.” Presently she indicated that she went to a gym and could not get on the equipment. In 1997 the petitioner testified that she experienced pain radiating down her left leg to a point between the knee and the ankle and that she had pins and needles in her foot and ankle, currently she testified that the pain in her left leg now went to the ankle and she experienced that every day. In 1997 the petitioner indicated that she wore a brace but not everyday since the doctor did not want her to do that, presently she testified that she was wearing a brace everyday at work. There was no indication that a doctor had recommended that. In 1997 the petitioner indicated that she could not straighten up. Currently she testified that she has difficulty standing straight. In 1997 the petitioner indicated that she could not bend, twist or lift over 15 to 20 pounds, currently she testified that she could not hold two bottles of soda and cannot get a five-gallon bottle of water out of a shopping card without pain. In 1997 the petitioner indicated that she could not wear anything with a waistband that her stomach was big and bloated. Presently she testified that she has to wear stretch clothes or elastic waistbands because she has gained a lot of weight. In 1997 the petitioner testified that she could not put weight on her left leg because that caused severe pain in the hip, presently she testified that her left leg tires going up stairs, that it has given out on her. She complained to Dr. Horwitz at the time of his 1996 evaluation that she had difficulty going up and down stairs. The petitioner has testified in this Application that she does not sleep well because of bad pain. She cannot seem to find a comfortable position and uses a heating pad which shuts off every two hours. She states that she used to be able to sleep in two positions and that she “got a full night‘s sleep in 1997.” The itemization of complaints that Dr. Brazin, who was the petitioner’s neuropsychiatric expert in 1997, had received from the petitioner at the time of his evaluation included that the petitioner had difficulty sleeping, awakening several hours earlier than usual but remaining in bed on most days. The petitioner also has now testified that she limps more and is slower. I note that Dr. Horwitz evaluated her on three separate occasions, in 1996, 1997 and 1999 and made no observation of the petitioner’s limping nor did he record any complaints that she limped. There was no indication in Dr. Sweeney’s records that limping was noted. Dr. Brazin evaluating the petitioner in 1996 noted a moderately antalgic gait and Dr. Angela Adams evaluating on behalf of the petitioner in August 2001 noted that the petitioner had an antalgic gait. None of the other evaluators in this matter had any findings of such a deficit. I did not note any limping at the time of her testimony. The petitioner stated that she now experiences shooting pain from left to right at waist level.
The petitioner testified that she considered the major differences between her condition in January 1997 and currently was that now she had more pain, more pins and needles and loss of sleep. Considering the complaints contained in Dr. Brazin’s report referring to loss of sleep prior to the previous award I do not find that there is a significant change in that area. With reference to experiencing a pins and needles sensation, the petitioner clearly testified to pins and needles in the ankle and foot in 1997 and testified similarly in the present Application. With reference to having more pain, that is a subjective matter and the court said in Schiffres vs. Kittatinny Lodge, Inc., 39 N.J. 139 (1963) “at the time of an award it must be assumed that disabling symptoms, that is pain and limited capacity for exertion, were present and they will continue in the future.”
With reference to petitioner’s left knee, Dr. Horwitz found tenderness and reduced range of motion, no instability of the ligaments and physiologic hamstring reflexes. With reference to petitioner’s right ankle, the doctor noted pain and tenderness and reduced range of motion and a physiologic Achilles tendon reflex. Similarly, objective findings were normal, namely, ligament stability with reference to the petitioner’s left knee and physiologic Achilles tendon reflex with reference to the petitioner’s right ankle. The doctor offered estimates of permanent disability for the left knee and the right ankle. The petitioner testified that she was not sure if the pain in the knee came from her back or resulted from her fall in May 1996. She stated that the knee sometimes clicks and sometimes when she straightens it out it jams and then releases back. Dr, Horwitz did not make note of any clicking in the course of his evaluation. The petitioner testified that she did not feel any instability in the ankle and that it hurts only when she tries to move it too far in one direction. There was no testimony that the mild complaints the petitioner had with reference to her left knee and right ankle had any effect upon her working, or non-working, activities.
Dr. Malcolm Coblentz, who is Board-certified in surgery, testified as the respondent’s orthopedic expert. The doctor examined the petitioner on three separate occasions, February 13, 1996, May 19, 1999 and January 4, 2002. The doctor initially opined that the petitioner suffered from a disability of the low back. Following each of his subsequent examinations he found no increase in disability. The doctor also found no permanent disability with regard to the petitioner’s left knee or right ankle.
The doctor testified that his examinations produced no physical finding to support the petitioner’s subjective complaints of pain and that those findings had no significant change over the course of his examinations. Dr. Coblentz also testified that the June 6, 1998 report of petitioner’s treating physician, Dr. Sweeney, was consistent with his examination as Dr. Sweeney was unable to identify an organic cause for the petitioner’s subjective complaints.
The petitioner testified that since the entry of the prior award she had been to a pain center for treatment. According to Dr. Coblentz’s 2002 evaluation report the history given to him by the petitioner was that she had treated at a pain management center mainly for her upper back and had received chiropractic treatment for the upper back and exercises to relieve left groin pain. Additionally, it was indicated that the petitioner was under the care of an orthopedist and receiving treatment for her upper back. It is to be noted that the upper back is distinguishable from the lower back and has not been a subject of the prior award nor has it been alleged to be attributable to the 1994 accident.
Considering the facts that petitioner’s evaluator, Dr. Horwitz, had no objective findings with reference to the left knee and right ankle and had no significant changes in his findings upon evaluation before and after the original award for the petitioner’s low back and left hip in this matter, that I am not comfortable with the credibility of the doctor’s findings and estimates of disability, that I find Dr. Coblentz’s evaluations of the petitioner to be extensive and detailed in their content, that the petitioner had very minimal complaints about the left knee and right ankle, that the treating orthopedic surgeon could not find an objective basis to support the petitioner’s complaints about the low back and hip, together with having considered and compared petitioner’s testimony I find that the petitioner has failed to establish the existence of any permanent disability with reference to the left knee and the right ankle and has failed to establish any increase in orthopedic disability with reference to her low back.
Dr. Angela Adams, Board-certified in neurology, testified as petitioner’s neurologic and neuropsychiatric expert. The doctor had not evaluated the petitioner with reference to the original claim but rather Dr. Myron Brazin had. Dr. Adams offered estimates of disability differing from Dr. Brazin’s. Dr. Adams candidly stated that she thought there was subjectivity by each doctor in attributing percentages of disability to a condition. With reference to the neuropsychiatric evaluation of the petitioner the doctor testified on direct examination that she found 30% permanent partial disability which percentage included any neuropsychiatric disabilities the petitioner had suffered prior to coming into court and receiving her award in 1997 and the disability percentage given was reflective of petitioner’s neuropsychiatric disability “as the petitioner stands today.” Clearly that statement indicates a percentage of disability for an overall condition. The doctor later in the course of her testimony took the position that her estimate of 30% of permanent partial disability was attributable solely to the July 1994 work accident.
Dr. Brazin had estimated 45% permanent partial disability allocated 20% preexisting and 25% attributable to the July 1994 accident. Even if one were to give credence to Dr. Adams’ testimony that her percentage of disability was solely attributable to the July 1994 accident, on comparison of the disability numbers that might indicate that Dr. Adams had found an increase in related neuropsychiatric disability of 5%. Dr. Adams’ objective psychiatric findings were that the petitioner had a downcast face, spoke in a soft voice, appeared anxious and tense and was restless and fidgeting throughout the examination. While it is ordinarily difficult to compare findings made by different evaluations, in this matter Dr. Adams’ findings are greatly diminished from Dr. Brazin’s. His observations were that the petitioner appeared somewhat disheveled and exhibited a profoundly depressed mood, a marked psychiatric retardation, a blunted affect, limited eye contact, dulled mental processing and limited responsiveness to questioning that required prompting and cuing to stay focused. There was no award given in 1997 for psychiatric disability. Dr. Adams’ findings do not support the existence of any increase in psychiatric disability since 1997 which would warrant an award at this time.
Dr. Erin Elmore, respondent’s neurologic and neuropsychiatric expert, found no psychiatric disability. The doctor noted that the petitioner smiled easily, her speech was clear and fluent, she was alert and oriented in all spheres and petitioner’s affect was appropriate to mood. The doctor found no psychiatric disability.
Dr. Adams and Dr. Elmore testified to having objective findings in their neurologic evaluations of the petitioner. Dr. Adams found diminished sensation to light touch and pinprick perception in the left lower extremity in an L-5 distribution and deep tendon reflexes were symmetrical except for the left ankle jerk which was trace.
Dr. Elmore stated that she had three findings in her examination - a Babinski sign which the doctor did not believe was related to the injury, decreased pinprick over the medial aspect in the left lower extremity and very mild weakness on plantar flexion in the left lower extremity. The doctor found symmetrical ankle jerks. She testified that within a reasonable degree of medical probability the symptoms existed from the time of the injury or subsequent to the surgery. However, Dr. David Flicker who examined on behalf of the respondent for the original claim had no such findings. He indicated in his report that sensation, tested for light touch, vibration and pain was within normal range. There was no finding of any left leg distal weakness. Dr. Brazin who examined neurologically on behalf of the petitioner for the original claim, had no such findings either. He had no record of any sensory testing and indicated that muscle strength, tone and reflexes seemed to be normal.
The differences in sensory findings may be more a function of different doctors’ appreciation of what is a normal range. The petitioner did not testify to experiencing any loss of sensation. She had experienced a pins and needles sensation in the left lower extremity before and after the 1997 award. The finding of left leg distal weakness is new and is even consistent with Dr. Adams’ finding of reduced left ankle reflex. I find the petitioner’s recent testimony that “(y)ou just don’t know that the leg is not moving all the way up and you trip over the tip of the stair” consistent with the neurologic finding.
In view of the findings of a current neurologic deficit by both neurological evaluators, I am satisfied that the petitioner has established the existence of some increased disability which I determine to be 5% of permanent partial neurologic in nature for mild weakness in left plantar flexion. This will result in an award of 40% permanent partial disability with a credit of 35% to the respondent, for the prior award. Therefore, petitioner shall be entitled to benefits for a period of 240 weeks at the rate of $245 for a total of $58,800 less $45,150 leaving a balance of $13,650. Fee allowances incorporating an allowance for petitioner’s attorney’s efforts in filing and appearing on a Motion for Medical and Temporary Benefits shall be as set forth in the form of Judgment.
Barbara Van Horn Colsey
Judge of Compensation
April 29, 2003