DEPARTMENT OF LABOR
DIVISION OF WORKERS' COMPENSATION
Docket No.  1995-30284

Appearances:

                    Freeman & Bass, P.C. by Samuel E. Bass, Esq.,for petitioner.

                    Goodman & Lustgarten, Esqs., by Alex Casale, Esq. for respondent.

                    This is the court's decision in Claim Petition 1995-30284, Buitrago v. U.S. Fuji Electric Inc.  Arnulfo Buitrago suffered a work related accident on December 1, 1994 when he slipped on some oil, fell, was hit in the back of the head by a robotic arm, and shoved into a metal saddle of a lathe striking his chest.  He was paid temporary disability benefits from December 2, 1994 to July 25, 1995, a period of 30 1/7 weeks at $357.70 per week or $10,786.00.  The issues presented to the court are the extent of temporary disability beyond that paid and the nature and extent of permanent disability.  Respondent denies that the cardiac condition from which Buitrago suffers is related to this accident.

                    Buitrago suffered a cut on the back of his head that required 13 stitches, a laceration to his forehead that required four stitches and a cut on the left side of his face.  These injuries apparently resulted in little or no disability.  Although the pretrial memorandum lists Dr. Ahmad as petitioner's orthopedic expert, (he estimated disability of 20% of partial total) and Dr. DeLuca as respondent's expert (he found no disability) no testimony was presented on this issue. 

                    The petitioner testified that the pain he suffered from striking his chest was so severe that he "couldn't see clear.  I see like darkness."  He was alone when this accident happened.  He tried to follow an aisle to a telephone to call for help but he couldn't read the numbers on the phone.  He went outside of his department and yelled for help.  A co-worker called a supervisor.  Buitrago explained that he felt pressure and palpitation in his chest like when one does exercise.  He had never felt this kind of pain before even though he played soccer, ran in competition and bicycled for athletic activity.  He was suffering so much pain that he didn't realize he was bleeding.  He felt dizzy and after a few minutes his head began to ache.  His back and neck felt numb.  He was taken to the Hailey Medical Center.  They took x-rays and an EKG and treated his lacerations with seventeen sutures.  He was prescribed aspirin for pain and sent home.  The next day he returned to the Medical Center and a CAT Scan of his head was preformed.  He continued to treat at the Medical Center every three days and came under the care of Dr. Molk for his heart.  In February 1995 he was hospitalized at JFK Medical Center and received a pacemaker and he was prescribed Coumadin, Digoxin and Cardizem as well as extra strength Tylenol for his headaches.  He returned to work on July 25, 1995 to the same job but was assigned to a steady afternoon shift instead of the rotating shifts he worked prior to the accident.  His duty at U.S. Fiji was to place drums on a conveyer.  These drums weighed one half to three quarters of a pound.  A robotic hand would pick up each drum and place it in a machine.  He was told by Dr. Molk to"pace himself."  Sometimes he would get tired and have to rest. 

                    On Saturday night, June 17, 1996, his wife took him to Muhlenberg Hospital because he was suffering chest pain and heart palpitations.  He remained in the hospital until Monday morning.  He then returned to Dr. Molk who increased his medication.  He lost three weeks from work but was only paid for six days.  He returned to the hospital again on September 26, 1997 where he remained for four days.  On September 9, 1998 he was hospitalized again at JFK Medical Center and his pacemaker was replaced.  He lost additional time from work.  Apparently this medical treatment was paid through the company's health plan insurance and not workers compensation.  He was on disability until November 29, 1998 and then he was laid off along with a number of co-workers.  He has not worked since September 1998.  At the time of his testimony he was receiving unemployment benefits. 

                    Prior to the accident the petitioner frequently worked overtime but was unable to do that after the accident because of fatigue.  He also experienced difficulty handling heavy wrenches and when he bent over he suffered chest pressure and palpitations.  He also suffered headaches and dizziness.  Soon after the accident he would have headaches and dizziness three or four times a day.  At the time of his testimony these problems were occurring about every two or three days.  He never suffered these problems prior to the accident.  He sometimes feels fatigues for no reason even when he isn't doing anything.  He no longer participates in any sports.  Now all he does is walk and sometimes even that makes him dizzy.  He suffers heart palpitations daily and chest pains once or twice a week.  Buitrago stated that Dr. Molk doesn't understand why these problems occur.  If he takes a deep breath he will suffer a sharp pain.  He testified that he becomes very emotional at times.  Prior to the accident he was very athletic.  He never smoked or drank because he wanted to be in good health.  He is no longer able to do things with his child and he is afraid when his wife tries to hug him because he is fearful that she will touch the left side of his chest where the pacemaker is located.  He is always careful where he walks because he is fearful that somebody will hurt him.  The petitioner did break down on the stand and begin to sob.  He testified that he tries not to let that happen but to "keep it to myself."  He feels bad that he is not able to do things like go out for a walk or go out for a run.  He used to train by himself or with some friends.  Now he avoids his friends because he is afraid.  His wife has to be with him because she understands him.  Buitrago is afraid that he will have a heart attack.

                    Buitrago testified that he has been looking for a job but is afraid that he can not do the kind of work he did prior to the accident because an employer who knows about his problems probably is "not going to be interested in me."  He has unsuccessfully sought jobs advertised in newspapers and by walking in to various businesses

                    Buitrago has back pain three or four times a week as well as headaches. 

                    On cross examination Buitrago testified that on the day of the accident the doctor at Hadley Medical Center told him that he had some problem with his heart.  He also testified that it was the workers compensation insurance company nurse who took him to see Dr. Molk.  He also stated that after the implantation of the second pacemaker he began to feel a little better.  Prior to this second implant he would suffer sharp chest pain and then fall asleep for a short period.

                    Sidney E. Friedman, M.D., testified as petitioner's expert in internal medicine with a sub-specialty in cardio-pulmonary diseases.  This doctor testified that upon examination he found Buitrago to be of average height, muscular, well developed, cooperative and friendly.  His pulse was irregular and averaged in the 70's.  His blood pressure was 120 over 70.  There was an old scar along the hairline at the back of his scalp.  There was some increased muscle tension in the cervical area.  The carotid arteries were normal.  Chest and lungs were clear.  He had an irregular heart beat compatible with atrial fibrillation.  A chest x-ray showed a normal sized heart with some minimal straightening of the left ventricular border.  The diaphragms were clear and the costophrenic angles were sharp.  There was no evidence of congestive hear failure.  There was a subcutaneous power pack (obviously a cardiac pacemaker). 

                    An electrocardiogram disclosed atrial fibrillation at varying rates between 70 and 80.  The voltage criteria was compatible with left ventricular hypertrophy.  There was a suggestion of old anterior wall myocardial infarction "not proven of course".  There were frequent ventricular ectopy, premature ventricular contractions, and a few beats that were paced.  Dr. Friedman reviewed an electrocardiogram, performed at the Hadley Medical Center on December 1, 1994 which he found to be abnormal.  It showed that Buitrago had an arrhythmia, atrial fibrillation.  Rates varied from a high of 120 to a low of 60.  There were ST segment junction elevation which could be due to epicardial injury.  Dr. Friedman reached a diagnosis of chronic atrial fibrillation, post chest wall trauma, the probability of a cardiac contusion and a demand for pacemaker insertion for cardiac arrhythmias, most likely a sick sinus syndrome with chronic atrial fibrillation.  He estimated disability at 75% of total.  The etiology of this condition, according to the doctor, was the direct chest wall trauma sustained on December 1, 1994.  Dr, Friedman went on to explain that atrial fibrillation is a serious cardiac condition.  It's due to some serious structural abnormality of the heart muscle itself, the valvular system as well as the myocardium.  It's an irregular uncontrolled rapid beating of the heart and if not addressed therapeutically can lead to serious morbidity and even death.  If uncontrolled for any length of time can cause many types of symptomatology such as those suffered by the petitioner, dizziness, palpitations, exertional fatigue, pressure in the chest, and ongoing pain.  The physiologic premise in this case, according to Dr. Friedman, is that the direct injury caused injury and death of some heart muscle fibers as well as irritability resulting in atrial fibrillation.  Direct trauma can cause injury to the sinus node or the atrial-ventricle node which is part of the electrical system of the heart and that can cause permanent atrial fibrillation which Buitrago has.  But in addition to the atrial fibrillation Buitrago suffers from sick sinus syndrome, a complicated cardiac condition.  With this condition there are period when the heart beats very rapidly and periods when the heart beats very slowly, 10 or 12 times per minute.  The pacemaker is inserted to treat the slow heart beat and without it the petitioner could suffer sudden death.  The symptoms of rapid heart beat are treated with drugs, in Buitrago's case, Lanoxin.  This, according to Dr. Friedman, is a permanent progressive condition.  As he ages his heart condition will get worse.  The condition is now controlled but if we didn't have pacemakers today Buitrago would not survive.  Dr. Friedman stated that the petitioner should refrain from stressful  or exertional activities.  Such activities increase the heart rate and if that were to occur the petitioner would experience increased dizziness, palpitations, and fatigue.  The doctor noted that Buitrago's prognosis is guarded.

                    William M. Burke, M.D., testified as respondent expert in internal medicine and cardio-pulmonary disease.  At the time of Dr. Burke's examination the petitioner complained of chest pain, pain in the head, neck, and dizziness.  Rest relieved his chest pain.  On physical examination this doctor found no abnormalities.  An electrocardiogram showed atrial fibrillation and non-specific ST-T wave changes and poor R wave in the leads V1 through V2.  A chest x-ray revealed a pacemaker in the left hemithorax.  A treadmill exercise cardiogram showed no signs of myocardial dysfunction or myocardial ischemia.  His blood pressure was normal and this test showed that petitioner had a normal exercise tolerance.  At the time of his testimony this expert reviewed electrocardiogram records of December 1, 1994 for the first time.  The doctor reached a diagnosis of cardiac conduction tissue disease, atrial fibrillation.  The doctor then went on to testify that:

"There is no question that on the day that he (Buitrago) was seen in the Hadley Medical Center (December 1, 1994) he had atrial fibrillation.  The question is did the trauma that he sustained to his chest cause the atrial fibrillation or did the atrial fibrillation preexist the trauma.  Based upon the echocardiogram that was taken 6 days later, based upon his EKG which shows no acute injury pattern, based upon the lack of enzyme studies that would demonstrate there was an injury pattern, the chest x-ray was normal, the rib x-rays were normal, therefore, one has to assume that the trauma to the chest was minimal if at all.  I would recognize the fact that this arrhythmia could be caused by a cardiac contusion.  There is no evidence for a cardiac contusion even on the basis of the fact that his arrhythmia was noted on the same day.  So therefore I would have to say the probabilities are that the arrhythmia existed prior to the incident in question due to the underlying cardiac conduction tissue disease for which he eventually had a pacemaker put in subsequently."

Then in answer to whether, in the doctor's opinion, there is a causal relations between Buitrago's condition and his accident of December 1, 1994 Dr. Burke responded:

"I think if one takes symptoms of palpitations which this person apparently complained of as of the day of his injury, that certainly suggests that he did not have this arrhythmia prior to the injury and that the symptoms which were associated with this arrhythmia first became evident on that day so if one goes by the symptoms, one would say that there was a causal relationship.  If one goes by how could trauma give rise to an arrhythmia such as this, one would need to see evidence for cardiac trauma which we don't have in this case so I'm doing the best I can.  You know there's evidence for and against and I can't answer any better than that,  I'm sorry."

On cross examination petitioner's attorney asked,"Doctor, your report of March 12, 1998 was based on mistaken assumptions.  Is that correct?"

The doctor answered,  "It was based upon incomplete information that was unavailable.  Yes that is correct."

Although respondent's attorney did not ask Dr. Burke during direct examination if he had an opinion of the extent of disability, petitioner's attorney asked:  “Now doctor, he has substantial cardiac disability as he presents himself today does he not?"

The doctor answered:  "No.  Well, he has, even when he had the acute trauma his heart rate was 80.  When I tested him, he was able to run on a treadmill machine the same as anybody else his age would be able to without symptoms, with normal blood pressure, with normal heart rate progression and regression.  I mean, he has obviously a small disability because he has a fibrillator,(sic) but functionally he's functioning normally, normally functional person."

This doctor also testified that the petitioner could play soccer.

                    Robert T. Latimer, M.D., testified as petitioner's forensic psychiatrist.  He found the petitioner to be one of four siblings with a 12th grade education who was able to give a good history.  On physical examination Dr. Latimer found Buitrago to be physically well developed, well nourished, intelligent, neatly groomed, sad and worried.  He looked scared.  His expression was an expression of anxiety.  He was conventional, polite and cooperative.  Buitrago told Dr. Latimer that he had always been healthy, an active soccer player and runner but that he could no longer do that.  The doctor found that he was coherent but spoke with some pressure as if he had a lot to tell about his life, his accident and the changes his life had taken.  He looked depressed and anxious and complained of fears, anxiety and depression.  He had good memory and judgment.  He was very restless and mildly agitated and depressed.  He had a low energy level and looked tired.  The doctor described his affect as depressed, mourning the loss of his physical capacity, his continuing pain, the problems with his pacemaker, and the loss of his life style and inability to work.  "He was substantially depressed mourning the loss of his physical prowess." 

                    This expert explained that psychiatrist are taught to make observations and these observations are objective.  Classically the mental examination is divided into several categories.  The first is the general behavior, attitude, and appearance of the person.  Then the examiner focuses on what the person is thinking.  Next the examiner consider how the patient tells what he is thinking about, the associations, is he coherent or logical.  Then the examiner concentrates on the affect, is the patient  depressed or happy or unhappy.  Finally the examiner concentrates on cognition, his memory, orientation, judgement.  Is the patient aware of what is happening to him?  Does he have the ability to make calculations?  Dr. Friedman observed that the petitioner looked anxious.  He is scared and depressed.  This depression colors all his communications and activities.  His cognitive thought is the fact that he almost died in his eyes.  He is afraid his heart is going to fail and he must take certain medications.  All this is pressure in his mind.  On top of all this he can't work.  He was an athlete.  He comes from a purely blue collar background. He has limited education and sophistication.  He has always been a hard worker.  To have lost all this is to him a severe loss.  A severe loss causes sadness.  He looked depressed.  He spoke depressed.    The history of the accident is that Buitrago was injured by a hard metal object unexpectedly.  He was startled.  He was practically knocked unconscious and suffered sever pain and anxiety.  This happened in one or two seconds.  The total change in his life occurred from one moment to the next.  One day the petitioner is happy, healthy, and working.  The next he is knocked for a loop and loses his equilibrium.  He is financially dependent on his wife and that is tough for him to accept.  The prognosis psychiatrically is going to be dependent on the status of his physical condition.  Since that physical condition is permanent this expert thinks the prognosis is poor and that the petitioner is unemployable and therefore "should be considered disabled."

                    On cross examination the doctor admitted that petitioner had never had psychiatric treatment and that doctor had not recommended such treatment.  He also agreed that there is nothing in the records of the treating physicians that indicates that Buitrago ever gave these treating doctors the same complaints that he gave to Dr. Friedman.

                    Mario Finkelstein, M.D., was presented as respondent's expert in psychiatry.  Dr. Finkelstein was educated in Argentina and board certified in nuclear medicine there.  He came to the United States in 1985, moved into the field of psychiatry where he received his residency at Saint Lukes-Roosevelt Hospital and the Hospital of Columbia University.  He did an additional year at Cornell University Medical School.  He is not board certified by the American Board of Forensic Psychiatry and apparently this was his first opportunity to testify in court.  He received a history from Buitrago that he was hurt in the head and chest and required sutures to the back of his head and forehead.  He did not lose consciousness but saw darkness, a flash and a headache.  Since the accident Buitrago has developed multiple cardiac problems.  Four days after the accident Buitrago had a CAT Scan of the head which was within normal limits.  Buitrago suffers from headaches.  The petitioner explained that his problems for himself were in the area of cardiology.  At no time did he report any psychological difficulties or in his cognitive thinking.  Beside some sporadic headaches, the petitioner did not report any difficulties with concentration or his ability to memorize.  The examiner did not notice any changes in the petitioner's personality or mood during the interview.  According to this examiner it was obvious that the patient's cognitive abilities were intact.  He was able to recall exact dates of past and present events.  When asked about his mood Buitrago stated he has some days where he felt bad about his difficulties.  However, these periods are short and do not interfere with the activities of daily living.  His appetite and sleep have not been affected.  There are times when he feels bad about his difficulties in making a living.  However, he is very optimistic that things are going to improve in the future.  He adamantly denied any thoughts of suicide.  His self esteem is adequate and he denied periods of depression.  Dr. Finkelstein performed an unsophisticated mini-mental status study examination, apparently consisting of 30 questions or tasks.  The doctor explained that this examination tests for attention, concentration, long term and short term memory, orientation, ability to follow simple commands, and the ability to copy certain simple designs.  As a result of this examination the expert found that Buitrago was alert and oriented, calm, very cooperative and pleasant.  There was no evidence of psychotic symptom's and no hallucinations.  His affect was full range.  His mood was euthymic.  There was no suicidal or homicidal ideation.  His judgment and pulse control were good.  His cognitive function with long and short term memory was preserved.  The patient was able to do a series of 7's as well as abstraction, proverbs and similarities.  The doctor found the petitioner to be normal with no neuropsychiatric deficits. This result is the combination of the report of the patient and the objective assessment of the doctor.  Dr. Finkelstein was of the impression,

"There were no psychiatric disabilities at the time and that his main problems were in the area of cardiology.  He has some social difficulties because of unemployment since he was not making a salary, but there were no evidence of any psychiatric syndromes that I could diagnose."

Therefore this expert found "no disability in the field of psychiatric or neuropsychiatric."

          On cross examination it became apparent that the doctor opinion's was based only on his observations of the petitioner during the administration of the mini-mental examination and that he probed no further.

                    I find that petitioner's cardiac disability is casually related to the accident of December 1, 1994.  The respondent provided medical treatment for this condition at least until petitioner returned to work on July 25, 1995.  Respondent's expert was not presented with the electrocardiogram taken on the day of the accident until he appeared in court to testify.  Then he admitted that if he were to assume that the petitioner had the symptoms he demonstrated on the day of the accident "one would say there was a causal relationship."  In addition to this admission however, the knowledgeable and thorough testimony of Sidney E. Friedman, M.D. sustains the burden of proof of causal relationship.

                    I find that petitioner suffers a psychiatric disability associated with this cardiac condition.  Robert T. Latimer, M.D. outlines the classical examination one follows in a psychiatric examination.  He makes informed, professional observations of Buitrago during his examination.  He arrives at a logical conclusion considering those observations.  Mario Finkelstein, M.D.,on the other hand, administered what even he admits is an unsophisticated mini-mental examination and reaches his conclusions based upon this examination without consideration for the actual fears and concerns of the petitioner that followed his accident and serious cardiac condition.  Therefore I must disregard his opinion.  I note that the petitioner broke down on the stand when he began to testify about the accident and his problems resulting from that accident.  My observation of the petitioner during all of his testimony leads me to the conclusion that he was completely truthful and that the incident of sobbing was genuine.  I make that determination based upon the demeanor of the petitioner during the several hours that he testified.  He did not have the sophistication to fake the breaking down on the stand.  He was emotionally distraught to the extent that I recessed the proceeding so that he could regain his composure.  I am cognizant that the Workers' Compensation Act requires objective evidence to support a finding of disability.  Object evidence in the field of psychiatry is somewhat more difficult to recognize than in other fields of medicine.  However, I am satisfied that the trained observations of a qualified psychiatrist satisfy that test.  In fact, respondent's expert referred to his own observations as objective and not subjective.

                    The extent of petitioner's disability is somewhat difficult to quantify and allocate but that is the responsibility of the Workers Compensation Judge.  First I must consider whether he is permanently and totally disabled.  I recognize that he returned to work at respondent and although he was laid off in a reduction of force and was collecting unemployment insurance at the time of his testimony I find that he is permanently and totally disabled.  I make that determination based upon my observations of the petitioner, his serious cardiac condition, and his psychological fears that prevent him doing anything that requires exertion, and the necessity he feels to protect himself from contact with people and places to prevent an accident that could result in his death.  Although he went back to work for the respondent he was working in a known and protected environment.  Even with that protection he received warnings concerning his inability to do what was asked of him and his absences from work.  In fact, he was on disability prior to being laid off.

                    Concerning the allocation of disability between his cardiac condition and his psychiatric disability I am satisfied that cardiac disability is significant.  Petitioner's expert estimates it at 75%.  Respondent's expert finds very little disability and relates it only to the implant of a pacemaker.  He suffers chronic atrial fibrillation and sick sinus syndrome.  He continues to suffer chest pain, dizziness, and chest pain.  Even though his physical examinations by both cardiac experts demonstrated an individual who was muscular and well developed and even though his two minute treadmill examination by Dr. Burke showed no abnormality the electrocardiograms demonstrates significant impairment of heart function.  Based upon these criteria and my expertise I find the cardiac disability to contribute 65% of petitioner's total disability.  I am satisfied that the anxiety and depression from which petitioner suffers equals 35%.  Dr. Latimer testified that petitioner was totally disabled.  He did not allocate between psychiatric disability and cardiac disability.  Therefore I must rely on my expertise and Dr. Latimer's description of the psychiatric problems faced by the petitioner.  I can not accept the opinion of Dr. Finkelstein because he completed ignored those problems of petitioner related to his cardiac condition.     

                    There are two other determinations I am required to make.  The first is the question of additional temporary disability.  Certainly petitioner is entitled to temporary disability for the time he was away from work at U.S. Fuji.  There are no proofs concerning those period and I direct counsel to confer as to those periods.  During some of that time petitioner was paid sick leave and vacation time.  I will note that contained in the personnel records, made a part of the evidence in this case, severance pay at the time of layoff included pay for accumulated vacation.  Since petitioner was forced to use vacation time when he was absent from work as the result of his cardiac condition his severance pay in all probability was less than it would have been if he had been paid temporary disability benefits.  While I do not have jurisdiction to correct this inequity I bring it to the attention of counsel.  I also require counsel to consider the provisions of N.J.S.A. 34:15-28.1 concerning the penalty for failure to pay temporary disability in a timely fashion.  The remaining issue that must be determined is the date of totality.  I fix that as the day after the last day upon which petitioner worked for U.S. Fuji.  However, I note that petitioner collected unemployment benefits following that date.  While I do not have jurisdiction to order the repayment of Unemployment Insurance Benefits that payment must be taken into consideration. 

                    All outstanding bills for treatment of the cardiac condition is the responsibility of the respondent as is the responsibility for continuing medical treatment.

                    While the question of rehabilitation was not presented to me, I observe that based upon my experience Buitrago could be a very good candidate for rehabilitation.  I would urge the respondent to consider rehabilitation which if successful could result in an application to this court to consider a reduction in the disability awarded in this decision.

                    Petitioner is entitled to 450 weeks of compensation at the rate of $357.70 or $160,965.00 and then continuing benefits under N.J.S.A. 34:15-12b.

                    I allow petitioner's attorney the maximum fee without submission of an affidavit of services of $22,000.00.  However I will consider an application for additional counsel fee based upon affidavit of services.  Respondent's share will be $17,600.00, petitioner's share will be $4,400.  This allocation takes into consideration that respondent continued to deny causal relationship of the cardiac condition and failed to provide his expert with pertinent treating records until the day of his testimony.  If those records had been provided before then there is a strong probability that this claim would not have required a trial.

                    There is a fee allowed to Stanley E. Friedman, M.D. and Robert Latimer, M.D.,of $700.00 each, allocated $200.00 by petitioner and $500.00 by respondent.  This allocation also takes into consideration the failure to provide records to Dr. Burke until the day he testified.

                    There is a stenographic fee of $700.00 payable by respondent to John F. Trainor, Inc.

June 14, 2001

                                                __________________________________

                                                Joan L. Mott
                                                Administrative Supervising Judge
                                                Workers Compensation.