CP# 98-24694 Campana v. Evening Journal Assoc.
DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT
DIVISION OF WORKERS’ COMPENSATION
NEWARK , ESSEX COUNTY DISTRICT
BEFORE: HONORABLE STEPHEN TUBER
JUDGE OF COMPENSATION
DATE: MARCH 10, 2005
This is a written decision on CP No. 1998-24694 filed by Donald Campana, which alleges total disability as a result of an acute myocardial infarction Mr. Campana experienced at work on May 16, 1998 and his prior work related accident which resulted in Mr. Campana receiving an award on March 5, 1997 of 37 ½ percent for the residuals of a L4-L5 laminectomy and fusion, right iliac crest bone graft and right-sided radiculopathy.
The petitioner testified before me on September 11 and November 13, 2003. I carefully observed his demeanor on direct examination and during a rigorous cross-examination by the Respondent. He answered all the questions that were asked of him in a forthright and honest manner and for the reasons, which I will explain at length in this opinion, I find his entire testimony to be credible.
Mr. Campana’s shift on May 16th was from 2:00 AM until 9:30 AM. He began his shift by breaking down full bundles into bundles for each delivery site and loading them onto his delivery truck. According to the testimony of Mr. Campana – testimony which was not rebutted, whenever he worked the weekend “evening” shift because of the weight and amount of the bundles either Mr. Campana’s supervisor, Mr. Handley, or a person he would assign would help him prepare the bundles for delivery. But the morning of May 16th Mr. Campana had to prepare the papers for his route alone because Mr. Handley denied his repeated requests for help. Mr. Campana testified that he thought Mr. Handley denied his requests for help because of a work-related “heated argument” they had two days prior. I quote.
“I thought that he was doing it deliberately because we had that argument. This was his way of getting back, whether or not that’s true…”
Continuing, “Q. And on the night that you came in on May 16, 1998, you were feeling upset, aggravated because, at least, in you mind, you were sure that Mr. Handley was not giving you a helper that night to get back at you? A. Yes”
… Well, in my mind rehashing the same things, the words we had to each other and I you know, I couldn’t understand being all the workers – you can’t give me one guy. I just thought that he was like punishing me like that.”
There was also a dispute as to the weight of the bundles. Domingo Otero, Respondent’s circulation manager testified that the business records indicated that they weighed approximately twenty pounds. Mr. Campana and John F. Zakrzewski, the petitioner’s son-in-law and the individual who took over Mr. Campana’s route testified that they weighed between forty and fifty pounds.
As to this issue I accept the testimony of Messrs. Campana and Zakrzewski because they were the individuals that handled the bundles in question, while Mr. Otero’s opinion was based solely on the accuracy of the business records that were introduced into evidence. Of course, such evidence is competent evidence. However, as to this issue I find that the testimony of Mr. Campana and Mr. Zakrzewski’s compelling because it was not only honest and credible but had “the ring of truth.” I cite just one example.
If I told you the weight of the bundles would be a maximum of 24 pounds, would that sound accurate to you for the night of May 16, 1998.
No, not at all.
THE COURT: Why that is?
THE WITNESS: Because I just remember getting in his truck and after working all night, I was sort of aggravated that I had to do all this work and the bundles were heavy; his were big loads.
By accepting the testimony of Messrs. Campana and Zakrzewski I do not mean to imply that I found Mr. Otero’s testimony less forthright. To the contrary, I found Mr. Otero to be an honest witness. But as I have said, Mr. Otero candidly admitted that he had no personal knowledge of the weight of the bundles in question, rather his opinion that the bundles weighed twenty pounds was based solely upon the accuracy of the business records, for which he as circulation manager was ultimately responsible. And mistakes, as in this particular instance, no matter how conscientious an employee are made.
Of course, there are several ways the Respondent could have proved that Mr. Otero’s testimony was correct. First, they could have produced someone from their accounts receivable department who could have testified that for the papers delivered on May 16th the Respondent was not paid for the inserts Mr. Campana testified to, but only for those that Mr. Otero testified about. The Respondent also could have called witnesses from one or more of the companies that Mr. Campana named as a supplier of the May 16th inserts and asked whether their company provided inserts for May 16th.
For all of the foregoing reason, I find that on May 16th, Mr. Campana for the first time since being transferred to the night shift was not assigned a helper to help him prepare and load one hundred and forty-seven bundles weighing approximately forty pounds each for delivery. Based upon the unchallenged and credible testimony of Mr. Campana, I further find that not only was Mr. Campana not provided his customary helper, but his supervisor, Mr. Handley, denied his requests for a helper in retaliation for a heated work-related argument on May 14, 1998. And as a result he was required to prepare and load one hundred forty-seven, forty-pound bundles alone.
I now return to the events of May 16th. After bundling and loading the bundles Mr. Campana commenced the delivery process. Although some of the one hundred and forty-seven deliveries did not require Mr. Campana to get out of the truck, three-quarters of the deliveries that night required Mr. Campana to step out of the truck, lift the door open, carry and drop the bundles an average of fifteen feet from the truck.
As Mr. Campana was discharging his duties he became increasingly weak, began sweating profusely and felt sick to his stomach. These symptoms became so severe that after completing approximately one-third of his stops he called his home and spoke to his daughter and son-in-law, a police officer. Mr. Campana asked his son-in-law to help him finish his route. While driving home to pick up his son-in-law Mr. Campana’s condition grew worse. He developed abdominal cramping and dry heaves. Indeed, his physical symptoms became so severe that as he was driving home he had to stop five or six times. When Mr. Campana arrived his son-in-law was waiting for him on the front steps. Upon observing Mr. Campana’s condition he immediately called the Nutley Emergency Squad.
Shortly thereafter the Nutley Emergency and Rescue Squad arrived and checked Mr. Campana’s vital signs and gave him oxygen. He was then rushed to the Mountainside Hospital where tests revealed that his cardiac enzymes were elevated. Subsequent electrocardiograms confirmed an anterior and interior myocardial infarction. On May 21, 1998 Mr. Campana underwent a cardiac catheterization, which revealed the nature and extent of Mr. Campana’s cardiac pathology: severe occlusive disease in three arteries and a thrombus in the left anterior descending artery.
The cardiac catheterization results prompted Mr. Campana’s doctors to transfer him to the Cardio Vascular Thoracic Surgical Center at the General Hospital Center at Passaic for cardiac by-pass surgery. On May 22, 1998 Mr. Campana underwent quadruple vessel coronary by-pass surgery. The corrective surgery was successful and Mr. Campana was discharged from the hospital on May 30th with a prescription for Lopressor, Sublingual and Nitroglycerin prn. He was also instructed to take aspirin (81mg.) daily.
Mr. Campana’s recovery was uneventful until his doctors recommended another cardiac catheterization and angioplasty, which were performed on July 4, 2000 at Mountainside Hospital. The repeated tests revealed that Mr. Campana’s cardiac situation was stable. His medication was altered several times since his initial episode and at the present time he takes Zocar, Mentropen and Glucatrol.
The first issue in this contested trial I must decide is whether the myocardial infarction of Donald Campana, “was produced by the work effort or strain involving a substantial condition, event or happening in excess of the wear and tear of the claimant’s daily living and in reasonable medical probability caused in a material degree the cardiovascular injury… resulting therefrom.” Hellwig v. J.F. Rast & Company, Inc., 110 N.J.37 (1988), NJ.S.A. 34:15-7.2.
If one compares Mr. Campana’s work effort with his ordinary life pursuits it becomes clear that his work effort far exceeded the wear and tear of his daily living. Indeed, the Respondent produced no evidence to contradict Mr. Campana’s testimony that outside the work place he led what may be described as a sedentary life. Mr. Campana testified that since he was transferred to the night shift he would work, come home shower, eat, go shopping with his wife and on occasion tend to his garden and lawn. I quote:
Q Approximately when – your work shift was changed from the day hours to the night shift , up to the point of your heart attack of May 16, 1998, did you notice any affect on your body? Did you notice any change?
A It affected me more – mostly I wouldn’t say more – mostly on my ambition to do anything away from the job.
Q What do you mean by that, sir?
A To go to a ball game with my son. To socialize in any way with my wife, or I just didn’t have any ambition to get out and do things that I did previously did.
As I have stated I found Mr. Campana to be a truthful and forthright individual. Mr. Campana’s answer to Respondent’s attorney questions on this issue is but one example of many I could give of his candor. Instead of Mr. Campana repeating his direct testimony, namely, that he did not do any of the activities that he did prior to his transfer to the night shift, he clarified his testimony by testifying that he “cut down” on the activities that he did before being transferred to the night shift. I quote.
Q You had testified that when you were switched to the night shift you lost all your ambition and you stopped doing activities, do you remember telling us that?
A I remember saying that, yes.
Q What activities did you give up because of being switched to the night shift?
A I didn’t – well, I cut down on playing golf because there wasn’t time for me to do it. I cut down on bowling. I still do it on occasions, but I cut down.
Finally, as to this issue as I have already said, no evidence was produced by the Respondent to suggest that Mr. Campana’s activities outside of work were as “vigorous” as the work on May 16th the day he suffered a myocardial infarction.
Of course, having found Mr. Campana’s work effort far exceeded his normal daily activities and was of sufficient magnitude to cause his myocardial infarction does not end the analysis of compensability. There remains the issue, whether in reasonable medical probability Mr. Campana’s work effort caused in a material degree his myocardial infarction. Put another way, do the medical proofs overcome the presumption that Mr. Campana’s myocardial infarction was the result of natural physiological causes, and/or his personal risk factors, in this case his diabetes and his family history of cardiac dysfunction. Seiken v. Todd Dry Dock, Inc., 2 N.J. 127 (1949), Ciuba v. Irvington Varn. & Insul. Co., 27 N.J. 127 (1958), Fiore v. Consolidated Freightways, 140 N.J. 452 (1995).
I begin my analysis by contrasting the meaning of the phrase “caused in a material degree” in the case of Dwyer v. Ford Motor Co., 36 N.J. 487 (1962) with that phrase as used by the Hellwig Court. The difference, in the words of Justice Stein is:
In Dwyer, the Court described material degree as meaning “an appreciable degree; a degree greater than de minimis ***.” The legislature redefined material degree to mean “an appreciable degree or a degree substantially greater than de minimis.” N.J.S.A. 34:15-7.2 (Emphasis added).
Of course, the change by our legislature in the definition of the phrase “material degree” was not the only way our legislature intended to counter the far-reaching effects of the Dwyer decision. To be compensable under the 1979 Amendments, Section 7.2 of the Act now requires the work effort or strain to involve “a substantial condition, event or happening … (which) in reasonable medical probability caused in a material degree the cardiovascular…injury resulting therefrom.” Under Dwyer all that was necessary was that the work effort or strain “contributed in some material degree to the precipitation, aggravation or acceleration of the existing heart disease and the death therefrom.” 36 N.J. at 493.
Thus, if we contrast the proof requirements of Dwyer with those of Sec. 7.2 we see, in the words of Justice Stein, “Both the similarities and the differences in the Dwyer standard and the legislature’s standard for determining causation persuade us that the legislature plainly intended to change the quality of proof necessary to establish that a coronary incident is work-related.”
On the issue of medical causation, Dr. Friedman testified on behalf of petitioner and Dr. Karetzky testified on behalf of the respondent. For the reasons, which I will go into at length in this opinion, I accept the well-reasoned opinion of Dr. Friedman that Mr. Campana’s myocardial infarction was caused by his work activities, which were in excess of Mr. Campana’s daily living activities outside of work.
I accept Dr. Friedman’s conclusion because unlike Dr. Karetzky’s opinion that Mr. Campana’s work effort was not of sufficient intensity to either cause the myocardial infarction he suffered at work, or in reasonable probability contributed in a substantial and material way to the precipitation, or acceleration of his preexisting heart pathology, which led to his cardiac dysfunction on May 16, 1998, it is consistent with what I will call the Hellwig factors and is consistent with and supported by the medical evidence [hospital and treating doctors’ reports, treatises and medical journals] introduced into evidence. Hellwig, 110 N.J. at 54, Walck v. Johns-Manville Products Corp., 56 N.J. 533 (1970), Dwyer v. Ford Motor Co., 36 N.J. 487 (1962). The so-called Hellwig factors I refer to are:
1. Whether Mr. Campana’s myocardial infarction was caused in a material degree “in the context of both the statutory criteria and prevailing medical standards.”
2. Mr. Campana’s medical history.
3. The intensity and duration of Mr. Campana’s precipitating work effort.
4. The time interval between Mr. Campana’s myocardial infarction and the precipitating work effort. 110 N.J. at 54.
Dr. Friedman testified that the myocardial infarction that Mr. Campana suffered in the early morning hours of May 16th was the result of a combination of three work-related activities: changes in his work schedule from the day shift to the night shift. The physical strain of bundling, lifting and delivering 147 bundles each weighing approximately forty pounds over several hours, and the “psychological or mental strain” of a heated work-related argument two days before he suffered his myocardial infarction.
Interestingly, Dr. Karetzky agreed that either physical exertion or mental stress acting alone if of sufficient intensity and duration could either cause various cardiac symptoms and/or a myocardial infarction. I quote:
Q. You agree with that, Doctor; right? Do you agree with that statement? Here, I’ll show it to you again?
“Mental stress also has been shown to trigger [a] myocardial ischemia - - ”
I’ve agreed to it repeatedly.
Dr. Karetsky also agreed that he existence of a circadian variation, while not additive to other possible risk factors, such as mental or physical stress, does subject a person to an increase for cardiac dysfunction. I quote.
Q. We refer to this circadian variation, is that what you’re speaking to; is that correct?
A. That’s correct.
Q. Is that the existence of that circadian variation, while it may in itself present some kind of increase risk, in and of itself does not lower the METS threshold for triggering an event?
A. This is the point similar to what we were just talking about for anxiety and work or anger and work.
THE COURT: How about if you put all three factors together, additive effects to all three or no?
THE WITNESS: Well, certainly, they haven’t done that and the implication is that if there’s no additive with each one of these that are looked at separately. The presumption is you won’t have additive factors, if you do all three.
Dr. Karetzky argued that Mr. Campana’s myocardial infarction was caused by the improper use of intravenous nitroglycerin by the medical team at Mountainside Hospital on not one but on two occasions. In support of this theory Dr. Karetzky argues that since the first dose of intravenous nitroglycerin caused Mr. Campana to experience hypotension it was inappropriate to administer a second dose, especially when he blood pressure started rising after a period of time after he was given his first dose of intravenous nitroglycerin.
Although Dr. Friedman agreed that intravenous nitroglycerin can cause hypotension it was more probable, considering the facts of this case [chest pain and an abnormal EKG and blood enzyme level] that the hypotension Mr. Campana experienced was a consequence of a myocardial infarction. Indeed, Dr. Karetzky agreed that hypotension can be a consequence of a myocardial infarction.
Dr. Karetzky further argued that because Mr. Campana work activity did not meet a certain METS threshold his myocardial infarction was not work-related.
I reject Dr. Karetzky’s opinion because it is contrary to opinions expressed in medical records and journals introduced into evidence by both Petitioner and Respondent. Furthermore, the facts that he relied on to form his opinion are not supported by the facts contained in the hospital records introduced into evidence. And as our Appellate Courts have repeatedly stated, an opinion is only as good as the facts upon which it is based.
For example, Dr. Karetzky indicated that since Mr. Campana was not experiencing chest pain at the time he went to Mountainside Hospital he should not have been given intravenous nitroglycerin. Of course, the hospital records introduced into evidence not only did Mr. Campana have chest pain upon admission, but that the administration of intravenous nitroglycerin provided relief.
Furthermore, although I have a great deal of respect for Dr. Karetzky’s medical knowledge it appears that perhaps his zeal to prove that Mr. Campana’s myocardial infarction was caused by the inappropriate use of intravenous nitroglycerin on two occasions caused him to cross the line of objectivity.
For example, on occasion when he was confronted with a different position in a medical journal that he not only considered authoritative but in fact used to support one of his theories, he indicated that part that contradicted his position was either not part of the heart of the subject matter of the article, or it’s conclusion was not based upon generally accepted standards of research. I give but one example.
In regards to shift work, based in part upon the opinion of Dr. Karetzky, the Respondent introduced into evidence without objection from Petitioner, R-54, L. Afredsson, Myocardial Infarction Risk and Psychosocial Work Environment: An Analysis of The Male Swedish Working Force, Soc. Sci. Med. (Vol. 16, 462-467, 1982), Dr. Karetzky disagreed with the two of the articles propositions: That “shift work and monotony were associated with significant [cardiac] excess risk.” And, “In the present study, one occupational characteristic usually associated with high demands, frequent shift work was significantly associated with elevated MI....”
An example of Dr. Karetzky crossing the line of objectivity is when he testified that Mr. Campana’s physical exertion did not reach a sufficient level to cause his myocardial infarction. In this regard, Dr. Karetzky testified that he amended his June 20, 2000 report, which indicated that the bundles that Mr. Campana bundled, loaded onto his truck and delivered that night would weigh as much as 50 pounds by adding, “At the spread, the weight of the newspaper bundles, they were thrown off the truck were no more than 50 pounds, but, generally, 30 or less.” Apparently, Dr. Karetzky added the phrase “but, generally, 30 or less” because if the bundles that Mr. Campana was required to bundle, lift and deliver weighed 50 pounds as his initial report indicated it would have put Mr. Campana over the 6 METS threshold. Whereas if he changed the weight of the bundles to “generally, 30 or less” it would make Mr. Campana’s exertion level fall below 6 METS threshold: The amount necessary to cause the myocardial infarction Mr. Campana experienced while delivering the Respondent’s newspapers.
As I have said I have accepted Dr. Friedman’s opinion of causal relationship, in part, because his conclusion is based on the medical facts contained in the hospital records introduced into evidence, while Dr. Karetzky’s opinion is not consistent with either the hospital records or the opinion of the treating doctors at Mountainside Hospital.
Dr. Friedman opined that the amount of work-related physical and mental stress Mr. Campana experienced on May 14th through May 16th were of sufficient magnitude to cause his acute myocardial infarction. His testimony reveals a through understanding of the mechanism which caused Mr. Campana’s cardiac dysfunction. Dr. Friedman indicated that Mr. Campana’s work effort of the early morning hours of May 16th required Mr. Campana’s heart to beat rapidly. The result of which leads to an elevated blood pressure and the production of so-called “stress hormones” commonly known as adrenalin. This results in the constriction of the peripheral arteries that further increase blood pressure. Standing alone this would not present a problem. Unfortunately, however when this occurs the platelets become sticky and the blood coagulates. This combination - an increase in the blood pressure and the coagulation of blood causes plaque that lines the arteries to rupture. When this occurs the coronary artery is further blocked. If the artery becomes totally or almost totally occulted an acute myocardial infarction results. The same mechanism results when a person is under psychological tension. That is the so-called stress hormones [adrenaline] that are released “make the platelets sticky and they increase the coagulability of the blood.” Eventually, according to Dr. Friedman “The plaques will rupture and from the ruptured plaque, there is either blood coming out or there will be sticky cholesterol.
As a result, the lumen of the coronary artery is further blocked; and when the lumen of the coronary artery reaches a critical point, either almost completely blocked or completely blocked, there ensues an acute myocardial infarction.”
Dr. Karetzky, indeed no doctor who has appeared before me has disagreed with the correctness of this proposition. Where doctors disagree is the physical intensity that is necessary to raise the blood pressure enough to trigger the pathological responses described above. And indeed in this matter Dr. Karetzky testified that it was not the physical intensity of Mr. Campana that caused his myocardial infarction, rather it was the fact that Mr. Campana was inappropriately given two dosages of intravenous nitroglycerin.
Dr. Karetzky based his opinion that Mr. Campana was not in the midst of an acute myocardial infarction at the time of his admission on the fact that the he was not experiencing chest pain. This is, of course, is incorrect. For all of the medical records [EMT and hospital records] indicate that Mr. Campana not only had chest pain when he was first seen by the EMT team and latter by the doctors at Mountainside Hospital, but after Mr. Campana received the two doses of intravenous nitroglycerin his condition was “improved.”
Furthermore, an electrocardiogram performed in the Emergency Room at Mountainside Hospital revealed an “inferior ST elevation, consistent with inferior wall MI.” Adding to the evidence that supports the treating doctor’s diagnosis was the fact that Mr. Campana’s blood tests revealed that his cardiac enzymes were elevated. Finally, subsequent electrocardiograms revealed a global myocardial infarction and an evolution of an anterior and interior myocardial infarction. To all of this evidence that Mr. Campana was in the throws of an acute myocardial infarction when he was admitted into Mountainside Hospital, Dr. Karetzky responds by saying all that it shows is that Mr. Campana did have an MI, but it does not reveal when it occurred. That is, whether it was before or after Mr. Campana was inappropriately administered two doses of intravenous nitroglycerin.
However, on cross-examination though, Dr. Karetzky agreed that the cardiac biomarker tests have a delay of 3 to 6 hours from the onset of a myocardial infarction. As a result of this, Dr. Karetzky conceded that there was no clear-cut evidence that Mr. Campana’s myocardial infarction occurred at 6:00 AM when he was in the emergency room. Moreover, Dr. Karetzky conceded that based on the timing of the cardiac biomarkers, Mr. Campana’s myocardial infarction could have occurred from 2 AM to 4 AM, before the time he was administered intravenous nitroglycerin.
I only add, Dr. Karetzky also indicated that he based his conclusion that Mr. Campana did not have an acute MI until he was administered intravenous nitroglycerin, in part, upon the history of “chest pain of several months duration” he gave to the doctors at Mountainside Hospital. Mr. Campana indicated that if he did give this history it was incorrect. That his testimony that he did not have chest pain until he commenced his work in the early morning hours of May 16th is correct. Mr. Campana’s testimony has the “ring of truth” especially if we consider the fact that when he read it, which was well before he contacted an attorney about his workers’ compensation case, he immediately brought the mistake to the attention of his doctors. Furthermore, both Drs. Friedman and Karetzky indicated that it is not uncommon for a patient who is in the midst of acute cardiac dysfunction to give differing histories.
For all of the reasons stated herein I reject Dr. Karetzky’s opinion and I find that Mr. Campana’s myocardial infarction was acute in nature and occurred before he was given the two dosages of intravenous nitroglycerin.
From the above, it becomes clear that the effects of Mr. Campana’s work activity, including the change of his shift from day to evening, the May 14th “heated” work-related argument, and the bundling, loading, and delivering 147 bundles of paper each weighing approximately forty pounds was sufficient to either cause the myocardial infarction he suffered at work, or in reasonable probability contribute in a substantial and material way to the precipitation, or acceleration of his preexisting heart pathology, which led to his cardiac dysfunction on May 16, 1998.
I want to make it perfectly clear that I am not deciding the issue of whether the effect of these three variables is additive or synergistic. What I am deciding, as I have said, is that Mr. Campana work activity as I have described caused “the myocardial infarction he suffered at work, or in reasonable probability contributed in a substantial and material way to the precipitation, or acceleration of his preexisting heart pathology, which led to his cardiac dysfunction on May 16, 1998.”
I only add, if I were to accept Dr. Karetzky’s theory that Mr. Campana’s emergency transport to Mountainside Hospital was the result of his cardiac symptoms, which were caused by his work effort than, of course, the disability that flowed from alleged malpractice of the physicians at Mountainside Hospital is the responsibility of the Respondent. Of course, if the Petitioner [or the Respondent on behalf of the Petitioner] successful prosecutes a third-party medical malpractice action against the hospital and /or the doctors who administered the intravenous nitroglycerin than the Respondent would be entitled to a Section 40 credit. N.J.S.A. 35:15-40. Camp v. Lockheed Electronics, Inc., 178 N.J. Super. 535 (App. Div. 1981) certification denied 87 N.J. 415. Deltman v. Goldsmith, 11 N.J. Super. 57 (Co. 1951). I quote:
THE JUDGE: And it’s clear in your mind, certainly within a reasonable degree of medical certainty, that not the one dose, but the two doses of the nitroglycerin caused the heart attack.
THE WITNESS: There is no question in my mind.
As to this issue, Dr. Karetsky and I disagree with the statement made by Respondent in his Proposed Findings of Fact that “The symptoms experienced by Petitioner on May 16, 1998, that led him to seek emergent medical care were the result of the progression of the severe coronary artery disease from which he was suffering. Those symptoms were not work related.” I quote:
THE COURT: What can cause angina?
THE WITNESS: A sub-threshold below six.
THE COURT: It could cause symptoms?
THE WITNESS: Yes.
THE COURT: What symptoms can it cause, Doctor?
THE WITHNESS: It can cause symptoms of chest pain. It could cause symptoms of shortness of breath. It can cause signs and symptoms of decreased coronary or cardiac reserve.
THE COURT: How about symptoms Mr. Campana had of sweating, the vomiting, can it cause this?
THE WITNESS: Yes.
Finally, I agree with all the medical experts in this matter that Mr. Campana had significant preexisting cardiac pathology. Therefore, I intend to give the Respondent a fifty-percent functional credit towards Mr. Campana’s total cardiac disability for preexisting cardiac pathology. I am, of course, cognizant of the fact that in order for a Respondent to receive a credit they must prove that there was a prior functional loss. In this matter, Mr. Campana testified that prior to his May 16th myocardial infarction he did not have any cardiac symptoms. Thus, Petitioner argues that in spite of admitted cardiac pathology since there was no functional loss the respondent is not entitled to an Abdullah credit. Abdullah v. S.B. Thomas, Inc., 190 N.J. Super. 26 (App. Div. 1983).
Moreover, Petitioner argues that although the underlying condition “was obvious, [and] diagnosable” it was not “capable of measurement” thus under the Akef case the respondent is not entitled to a credit. Akef v. BASF Corp., 140 N.J. 408 (App. Div. 1995).
While the logic of Petitioner’s attorney is persuasive it is not controlling. I am going to give the Respondent a fifty-percent credit towards the cardiac award I have awarded the Petitioner. I base this decision on three factors: First, the nature and extent of Mr. Campana’s significant preexisting cardiac pathology as revealed in the various diagnostic tests. Second, the testimony of Drs. Friedman and Karetzky who agree that Mr. Campana had significant preexisting cardiac pathology at the time he suffered his acute myocardial infarction. Third, the fact Mr. Campana’s significant preexisting cardiac pathology was, at least, partially responsible for his May 16th 1998 myocardial infarction.
But perhaps the best reason to give the Respondent an Abdullah credit where the Respondent has failed to measure Mr. Campana’s preexisting cardiac pathology and prove a functional loss was expressed by Chief Justice Weintraub when he stated in his concurring opinion in Dwyer v. Ford Motor Co., 36 NJ 487, page 516. "When the possibility (in this case medical probability that Mr. Campana’s cardiac pathology was partially responsible for his myocardial infarction) of causal connection is accepted, we cannot deny relief in all cases simply because science is unable decisively to dissipate the blur between possibility and probability. In such circumstances judges must do the best they can, with the hope their decisions square with the truth, and with a willingness to consider in succeeding cases whatever contribution scientific advances may offer.”
I now turn to Mr. Campana’s claim for psychiatric disability. The seminal case defining what a claimant must prove to obtain a Judgment of Compensation for psychiatric disability is Saunderlin v. E.I. Dupont Company, 102 NJ 402 (1986). Justice Garibaldi writing for a unanimous Court held, “Accordingly, we hold that the statutory definition of permanent partial disability in N.J.S.A. 34:15-36 applies to claims of psychiatric disability as well as to those of physical disability, and hence that claims of both psychiatric and physical disability must be based upon “demonstrable objective medical evidence.” 102 N.J. at 410.
The Saunderlin Court in explaining what constitutes objection medical evidence indicated that “objective medical evidence of physical evidence is not coterminous with, and therefore need not be, objective medical evidence of physical disability.” This is because, “Requiring physical manifestations of psychiatric disability might blur if not obliterate this distinction, practically requiring that objective medical evidence of psychiatric disability itself be objective medical evidence of physical disability. The state does not require that psychiatrists recast mental disorders into physical disorders in order for mental disorders to be compensable.” 102 N.J. at 411.
Justice Garibaldi went on to explain what is necessary for a Petitioner’s medical evaluator to meet the burden of establishing objective medical evidence of a psychiatric disability. I quote. “Rather, the requirement is to interpose a professional medical judgment between the subjective statement of the petitioner and the award of disability benefits. Presumably, evidence exceeding the subjective statement does not mean evidence excluding that statement. 102 N.J. at 412.
The Saunderlin Court does offer guidelines on what is and what is not satisfactory proof of the threshold requirement of “objective medical evidence” of a psychiatric disability. According to the Court, the “professional medical judgment” cannot be based upon the mere “parroting” of a petitioner’s complaints. Rather it is an “analysis of the subjective statement of the patient" that is required. A psychiatrist’s use of the Diagnostic and Statistic Manual of Mental Disorders to analyze a petitioner’s subjective statements could satisfy the first prong of N.J.S.A. 34:15-36 i.e. that there be demonstrable objective medical evidence of a psychiatric disability. I quote, “Within this framework, we conclude that a psychiatrist’s testimony as to either or both sorts of diagnostic criteria – manifestations of physical symptoms or descriptions of states of mind – might constitute demonstrable objective medical evidence as the profession of psychiatry conceives it.” 102 N.J. 415-6.
Further, the Court held, “we conclude that a professional psychiatric judgment might rest upon: (1) analysis of the subjective statement of the patient: (2) observations of physical manifestations of the symptoms related in the subjective statement; and/or (3) observations of manifestations of physical symptoms and analyses of descriptions of states of mind beyond those related in the patient’s subjective statement…” 102 N.J. 416.
Using these criteria, the medical evaluators for both Mr. Campana and the Respondent found that as a result of Mr. Campana’s myocardial infarction he does have a psychiatric disability - depression and anxiety. However, Dr. Josephs found that Mr. Campana’s complaints “may be somewhat exaggerated in view of the fact that there is a pending court case. He was well aware that was the reason he was here coming to see me, and obviously could play a roll as well.” I disagree with Dr. Joseph’s conclusion, because it is inconsistent with the fact that when he examined Mr. Campana for his previous significant work-related back injury he found no psychiatric disability. Indeed, at the time Dr. Joseph’s examined Mr. Campana for that injury he not only found no psychiatric disability, but he also indicated that Mr. Campana told him that “I’m happy with my life.” Surely if Mr. Campana was the type of individual to exaggerate his complaints because of a “pending court case” he would have done so for that matter as well as this matter. The fact that he did not have any psychiatric complaints for such a significant injury and has complaints [anxiety and depression] which are consistent with the nature and extent of his profound cardiac pathology, indicate that Mr. Campana is a man who does not exaggerate his complaints, because of a “pending court case.”
As to this issue, I only add Dr. Joseph’s thought that Mr. Campana was exaggerating his complaints is inconsistent with his statement that “…some people need to work, and Mr. Campana maybe one of those people.” Having said that I agree with Drs. Crain and Joseph’s opinion that some of Mr. Campana’s complaints - loss of ambition and depression are partially attributable to the change in his shift from day to night. However, Dr. Crain indicated that his estimate of psychiatric disability is based on Mr. Campana’s complaints that arose as a result of his cardiac pathology. I quote.
Q. One of the reasons for your disability was the fact that, as you say in your report, Mr. Campana had been switched from the day shift to a night shift for about a year before this incident; correct?
A. I was aware of that, yes.
Q. Would it make a difference if this shift had actually been, more or less, than one year before the accident?
A. It makes no difference.
Q. Why is that, sir?
A. Because my disability is not based upon that at all. It’s based upon the sequelae of the heart attack.
Q. So the fact that you mentioned in your report that he was unable to adapt to the shift has nothing to do with the current disability; is that what you’re telling me?
A. That’s right. I’m saying if the shift were one year or six months, it makes no difference to me. The point is, as a result of his heart attach, he developed the sequelae.
Q. The sequelae are related and are solely due to the heart attack?
I disagree with Dr. Crain because it is clear from Mr. Campana’s testimony that while most of his psychiatric complaints flow from his myocardial infarction, a portion are attributable to his shift change. I also disagree with Dr. Crain’s opinion that any psychiatric complaints that are attributable to Mr. Campana’s shift change would disappear if he returned to the day shift. I say this because the fact is that Mr. Campana is working up to eighteen hours per week during the day, yet he still has some of the psychiatric complaints that were brought about by the shift change.
I also disagree with Dr. Joseph’s gratuitous statements that a psychiatrist “primary roll is pushing drugs, I’m sorry to say. Forty, fifty, sixty years ago where they didn’t have a large selection of drugs they sat down and spoke to their patients. Now, they’ve got drugs. It’s my experience they’re just writing scripts. It’s the psychologist that have taken over the field. The problem you find with psychologists is it becomes a crutch. They go for so long rather than saying, four visits, let’s get this guy going.” Surely there are some psychiatrists that do push drugs, but in my experience the vast majority appropriately treat their patients with psychotherapy and medicine.
I now turn to the nature and extent of Mr. Campana’s cardiac and psychiatric disability. In order for Mr. Campana to receive a Judgment of Compensation for a psychiatric and/or cardiac disability he must also establish either that there has been a lessening to a material degree of his working ability or that his ordinary life pursuits have been significantly impacted. Perez v. Pantasote, Inc., 95 N.J. 105 (1984), Perez v. Monmouth Cable Vision, 278 N.J. Super. 275 (App. Div. 1994).
In arriving at an estimate of a petitioner’s disability, over and over again, we have been instructed by the Appellate Division to look at each petitioner individually. We must consider the objective medical evidence of the claimant’s disability and how it has affected his or her working ability and/or ordinary life pursuits. We must never use ranges of disabilities as guides in determining a petitioner’s disability. For paraphrasing our Appellate Division, one would expect a blue-collar worker who has an orthopedic disability to have a greater disability than a white-collar worker. This is because the impact of an orthopedic disability on the blue-collar worker’s working ability is generally (emphasis added) greater than the impact of a white-collar’s working ability.
This matter clearly reveals the wisdom of that direction. I only add, this matter also demonstrates that we must never use ranges of disability even amongst the same type of workers. Whether they are white-collar workers or laborers.
I have been a judge for over twenty-three years and in my experience there have been only a few petitioners with the nature and extent of Mr. Campana’s significant orthopedic, neurologic, cardiac and to a lesser extent psychiatric disabilities that have returned to work. This is of course exactly why our Appellate Courts have instructed us never to have ranges of disabilities. Mr. Campana returned to the active work force because of who and what he is: a man who has the inner physical and mental strength to overcome his significant disabilities. The fact that Mr. Campana returned to the workforce, albeit for less than one-half the hours he worked for the Respondent and at a much less strenuous type job is a testament not only to his character, but to his admirable work ethic.
Petitioner’s attorney makes a very cogent argument that Mr. Campana is totally and permanently disabled. He argues that it is only because of the benevolence of Mr. Campana’s present employer, Hertz, that he is able to work when and the number of hours [18 per week] he wants to. Petitioner’s attorney argues that these facts clearly indicate that Mr. Campana’s employment with Hertz is nothing more than “sheltered employment.”
While I am cognizant of the law that “Total disability is not to be interpreted as utter and object helplessness…” Rodriquez V. Michael A. Scatriorchio, 42 N.J. Super. 341 (A.D. 1956). Riboletti v. United Engineers & Constructors, 18 N.J. Misc. 219, 12 A. 2d 251 (1940), and “A workman does not have to be bedridden to be totally and permanently disabled.” Kalonkiewicz v. W. Ames & Co., 23 N.J. Super. 265 (App. Div. 1953). Kalson v. Star Elec. Motor Co., 15 N.J. Super. 565 (Affirmed 21 N.J. Super. 15. Also, Jersey City Printing Co., v. Kochansky, 8 N.J. Super. (App. Div. 1950) it is clear from the length of time and the amount of hours  per week Mr. Campana has been steadily working for Hertz that he is not totally disabled. This as I have already said is not only a tribute to Mr. Campana’s character and work ethic, but it is exactly why our Appellate Courts have admonished us never to use ranges of disability when we estimate a claimant’s disability.
I do not mean to belabor the importance of this point, but I must add that in all of my years as a workers’ compensation judge the number of petitioners who have received a judgment of compensation for 37 ½% of disability for a L4-L5 laminectomy and fusion, right iliac crest bone graft and right-sided radiculopathy and did not receive an award for psychiatric disability have been in the distinct minority. Of course, it goes without saying, that this fact is consistent with the fact that Mr. Campana, who while in his sixties, unlike many others, returned without any limitations to the same type of heavy work.
Having said that, it is equally clear that Mr. Campana does have a significant cardiac and psychiatric disability. In that regard we must never forget that as a result of his work-related disabilities he has paid the highest price an industrial worker can pay – he cannot do the type of work the job he held most of his career requires. That is, he cannot now, nor will he ever be able to work at any job that requires repetitive lifting, bending, or for that matter anything that requires more than minimal exertion. And as both Drs. Crain and Joseph’s agree this can cause depression and anxiety especially for a man who like Mr. Campana has a good work ethic and who has been employed by the same employer for over thirty years.
I now turn to Mr. Campana’s cardiac and psychiatric complaints. As I have said, not only do all evaluators agree that there is abundant objective medical evidence of Mr. Campana’s cardiac and psychiatric disability, they agree that it is related to his traumatic work-related myocardial infarction, necessitating a quadruple bi-pass surgery.
In addition to the significant impact the myocardial infarction has had on Mr. Campana’s working ability, his ordinary life pursuits have also been severely impacted. In that regard, Mr. Campana testified that he no longer is able to do any activities that require any physical exertion. For example, he is no longer is capable of doing yard work, or take care of his pool, because the physical exertion required makes him feel fatigued and short of breath.
Mr. Campana is also no longer bowl or play golf, which he used to somewhat frequently before his myocardial infarction. And because Mr. Campana does not have the ambition to go to family functions as he did before his social life has been impaired.
Mr. Campana also has a constant continuing fear of having another heart attack. But perhaps the fact that causes most of Mr. Campana’s depression, other than his inability to return to the job he held for over thirty years, is the fact that he cannot play with his grandchildren the way that he did. He can’t coach baseball or basketball, and even feels restricted going to his grandchildren’s’ Little League games. He also has difficulty picking up his youngest grandchild, or in playing ball with them because the physical exertion of the activity brings on shortness of breath, which brings on his fear of another heart attack.
Finally, Mr. Campana testified that he has curtailed his social activities. For example, before his heart attack, Mr. Campana was very active in the Nutley Elks. Since the heart attack, he has not attended any meeting because of a lack of ambition and lethargy. This lack of ambition and lethargy has also impacted his relationship with his family, because he no longer goes with his wife to family functions such as birthday parties for his grandchildren or anniversary parties of his children.
In short, the impact that his myocardial infarction has had on his working ability and ordinary life pursuits has made Mr. Campana anxious and emotionally depressed. Indeed, Mr. Campana testified that the main activity that he does is to work up to eighteen hours per week and take walks in a park. Weather permitting he walks one to two miles three days a week. Finally, Mr. Campana testified that he has limited himself to activities that are not strenuous upon the advice of Dr. Ponzio, his treating cardiologist.
I now turn to the extent of Mr. Campana’s disability. In arriving at my estimate of Mr. Campana’s cardiac and psychiatric disability I want to make it crystal clear that I did not simply add up his disabilities. Rather I have looked at Mr. Campana as a whole person and considered how his disabilities have affected his working ability and his ordinary life pursuits. Then and only then did I break down my overall estimate of disability into separate disabilities.
Based upon the objective medical evidence of Mr. Campana’s cardiac pathology and psychiatric disability and his credible cardiac and psychiatric complaints described at length in this opinion I fix his disability at 60%. I break it down 50% cardiac and 10% psychiatric. For the reasons expressed in this opinion, Respondent will be given a 25% Abdullah credit for Mr. Campana’s preexisting cardiac pathology. Finally, having found that Mr. Campana is not totaled disabled his Verified Petition seeking Second Injury Fund benefits is dismissed.
Mr. Campana will be entitled to $125,094.00, which equals 360 weeks of compensation at $413.00 per week, or $148,680.00, less a 25% Abdullah credit equaling $23,586.00.
I award a $25,000.00 counsel fee to Petitioner’s attorney, payable $15,000.00 by Respondent and $10,000.00 by Petitioner.
For their reports and testimony I award Drs. Friedman and Crain $800.00 each, payable each party one-half.
Petitioner’s attorney is to be reimbursed for trial preparation costs including the amount he spent to obtain transcripts and medical reports. Of course, he will also be reimbursed for any money he paid either Drs. Crain or Friedman and the amount he paid to the doctor shall be deducted from the amount I have awarded. Petitioner’s attorney is to list the aforesaid amounts in his proposed Order.
Petitioner’s attorney is also instructed to contact Medicare’s “Past Payment” track to determine whether there have been any conditional payments made by Medicare on behalf of Mr. Campana for any cardiac and/or psychiatric disabilities resulting from his May 16, 1998 myocardial infarction. Petitioner’s attorney should first call the “MSP Claims Investigation Project” at 1-800-999-1118 with the file and case information. It is my understanding that CMS will take the necessary information, provide a bar code number, and send the necessary consent form. Further case information may be mailed to: “MSP Claims Investigations” at CMS/COBC, P.O. Box 5041, NY, NY 10274. Of course, if Medicare has made such payments the Respondent is directed to reimburse Medicare.
Petitioner’s attorney shall prepare an Order which conforms to this Decision and serve it upon his adversary under the Five-Day Rule.
A $1875.00 stenographic fee payable to William C. O’Brien for multiple appearances is assessed against the Respondent.