AMIRA B. BATOUR, ESQ.,
Attorney for Petitioner

PITMAN, PITMAN, MINDAS & LEE,ESQS.
By: PATRICK MINDAS, ESQ.,
Attorney for Respondent

Petitioner, Georgia Carter, has filed two Claim Petitions against the respondent Robert Wood Johnson Hospital.

In Claim Petition 97-026410 she alleges a traumatic injury, which occurred on May 23, 1997 when, she was bending over to make a bed and injured her neck.

In Claim Petition 98-037480, she alleges an occupational disease in the nature of an aggravation of a lower back disability due to repetitive bending and lifting during the course of her employment with the respondent to May 23, 1997.

The respondent denied both of these claims and the matters were consolidated for trial.

With regard to the traumatic injury, the petitioner testified that she was bending over to put a sheet on a patient’s bed, when she felt a pain, "like somebody hit me in the back of the head with a fist."

She stated the pain was in her neck.

She was crying and sat down in the pantry. After a short time, she reported to her supervisor and stated that she had "bad pain." She did not tell the supervisor that she had injured herself while bending over to put a sheet on a bed. She did not tell the supervisor that the injury was related to her work-only that she had "bad pain."

She was given a note to go to the employee health department and immediately went there.

She put the note on the nurse’s desk and, when the nurse asked if it was her back again, she told the nurse it was her neck that was in pain.

She testified that she then sat down and was later seen by a doctor who wanted to examine her. She said that she told the doctor that she hurt her neck while making a bed, but the doctor did not have her make out an accident report.

She denied that the nurse had her fill out an accident report.

She was given a slip to stay out of work for three days. She gave the note to her supervisor and went home.

When she got home, the pain was still bad so she went to her family doctor but, when she told them that her injury occurred at work, they sent her back to the employee health department.

Petitioner immediately went back to the employee health department and told the nurse that her doctor would not treat her because the injury was due to her work.

She was given medication and sent home to await referral to a doctor for treatment.

She was later referred to Dr. Bernard Rineberg, who had treated her previously for lower back injuries and neck pain complaints. She did not tell Dr. Rineberg the specifics of her injury, just that it happened at work.

Dr. Rineberg authorized her to lose time from work and sent her for physical therapy. He prescribed a cervical collar, which she wore.

Approximately six weeks later, when she did not receive a workers’ compensation payment for her lost time, she contacted the hospital and spoke to the director of personnel who told her that Dr. Rineberg denied that she was injured at work.

She returned to Dr. Rineberg and complained about his denial of her injury being work-related and testified that the doctor said "he would take care of it, don’t worry."

Despite this assurance, petitioner was not paid temporary compensation.

She was sent for an MRI by Dr. Rineberg and then was referred to Dr. Michael Nosko, a neurosurgeon at the Robert Wood Johnson Hospital. He advised her that she needed surgery for a herniated disc in her neck.

The surgery was done on September 18, 1997 when petitioner had a laminectomy and discectomy at C5-6 with a fusion using bone taken from her left hip.

She later had physical therapy and was told that she could return to light duty in March 1998 but the respondent would not take her back unless she could perform regular duty.

She was discharged from treatment in July 1998.

She has never returned to work.

Petitioner produced the testimony of Dr. Nosko. He is the Chief of the Division of Neurosurgery at Robert Wood Johnson Hospital.

He testified that Dr. Rineberg referred the petitioner to him. He examined her on July 28, 1997. He obtained a history from her that she injured her neck on May 23, 1997 while bending over to make a bed. She had immediate complaints of pain in the neck and right shoulder. She had a past history of lower back complaints but no other history of prior neck complaints. Her MRI showed a sizeable disc herniation at C5-6 to the right, impinging upon the spinal cord and the exiting nerve root.

He recommended an anterior discectomy and fusion, which he performed on September 18, 1997.

He said that she could return to light work in March 1998 when her complaints were only of occasional discomfort in her right arm.

He felt that the herniated disc was related to the history of a work episode of bending over to make a bed as described by the petitioner.

He stated that the petitioner had not given him a history of prior problems with her neck.

The respondent presented the testimony of Carol Williams. She was petitioner’s supervisor in the housekeeping department.

She testified that the petitioner called her and stated that she was in pain. She asked petitioner to come to her office and, when petitioner arrived, she asked her if the pain was related to the work she was doing. She stated that the petitioner denied that her problem had anything to do with her work.

Ms. Williams then gave the petitioner a blue slip used to refer non-work related medical problems to the employee health department and told her to go there.

Ms. Williams later received a call from employee health indicating that the petitioner was, in fact, complaining of a work-related injury.

She thereupon went to the employee health department, read the incident report, and inserted a denial that the petitioner had reported a work-related injury to her.

Respondent also produced Aleda Sadowski, a nurse practitioner, who was on duty when petitioner came to the employee health department on May 23, 1997.

She testified that her job requires her to examine and evaluate employees of the hospital who are injured on the job or become ill while working from conditions unrelated to their work.

She stated that the petitioner was very upset and complained of hurting all over. She was nonspecific. When asked whether her pain was caused by something, which happened at work, she simply complained of pain all over. Because the petitioner had a past history of physical problems, the nurse was unable to define exactly what was wrong but when petitioner decided to claim it was work related, she was given a form to complete.

The form marked as R-1 in evidence consists of several parts on one page. The top part identifies the person making the report. Next is the area for describing the claim. There is then an area for witness names and, finally an area for the physical examination findings.

The top part was filled out by the petitioner, listing her name, address, her position at work, the date and location of the incident. Petitioner indicated that she was injured at 9 a.m. on May 23, 1997 at 6 Tower.

The description of the claim sets forth: "Back Lower pulling trash on 6 Tower (bending), trash cans in rooms." This is signed by the petitioner.

Her complaints were noted and then there is a notation by Ms. Williams "When I spoke to Ms. Carter in regard to this injury I asked her several times was it a work related injury & she replied clearly that it was not."

Later, there is a substantial notation, made by Nurse Sadowski in the progress notes section of petitioner’s medical records of the employee health department on May 23, 1997, marked into evidence as R-2. This notation concerns petitioner’s complaints, history and treatment plan. Suffice it to say that there is no mention of the incident as described by petitioner in her testimony, although there is referral to "chronic pain in R. side of neck, R. shoulder, R upper arm, R lower back, R hip" which "was hurting so much she needed to ‘call in sick’ earlier in the week."

The petitioner had been a patient of Dr. Bernard Rineberg for many years prior to May 23, 1997. Although primarily being seen for lower back problems since 1988, she also had complaints of lower back and neck pain following a compensable injury of June 19, 1991. She had neck and lower back pain in 1992 with right shoulder complaints in 1996 as well. On January 15, 1997, she had pain in the neck and lower back and sat with her neck tilted to the left. On February 3, 1997, she had marked limitation of motion of her neck. On March 18, 1997, she continued to complain of neck pain and lumbar pain.

On April 29, 1997, she still held her neck quite stiffly, although she was able to move it appropriately. At that point, she was discharged from treatment.

On May 27,1997, four days after her alleged accident, she was seen by Dr. Rineberg. He described her neck motions as limited to direct examination although, to indirect examination, he stated they were "as usual", as lot better. There was no history of new injury or accident. The patient stated that "her pain got worse again a few days after she went back to work. She did well for a couple of days and then she has had increased pain."

On June 18, 1997, Doctor Rineberg reported that he inquired of petitioner how she injured her neck. She recalled an injury to her neck in 1992 or 1993 but was unable to identify an inciting incident to her neck problem.

On July 3, 1997, Dr. Rineberg reported to the Employee Health Service that petitioner’s neck problems were not related to her work.

Finally, On July 7, 1997, Dr. Rineberg saw the petitioner again and concluded that another doctor should see her.

He testified that he did not directly refer the petitioner to Dr. Nosko but probably suggested to the Employee Health Department that they refer her for neurological consultation.

Although there were four medical experts who testified in this matter as to the petitioner’s permanent disability (an orthopedic and neuropsychiatric for each side), I do not believe it necessary to review their divergent testimony as it is clear that the determination of this case is totally dependent upon the credibility to be assessed to the factual testimony.

In that regard, I note that it is more often than not that the facts of the case are, as here, in dispute.

In deciding the compensability issue herein, it is recognized that the burden of proof is on the petitioner to justify an award of compensation. In determining whether she has sustained that burden, the quality of evidence required is probability rather than certainty. The burden is sustained if the evidence preponderates in favor of the tendered hypothesis. Harbatuk v. S. & S. Furniture Systems Insulation, 211 N.J. Super. 614 (App. Div. 1986). As was stated in Ciuba v. Irvington Varnish & Insulator Company, 27 N.J. 127 (1958) at p. 139:

The determinative inquiry is whether the evidence demonstrates the offered hypothesis as a rational inference, that is to say, a presumption grounded in a preponderance of the probabilities according to the common experience of mankind. The accepted standard of persuasion is that the determination be probably based on truth. A bare quantitative preponderance is not enough. The evidence must be such in quality as to lead a reasonably cautious mind to the given conclusion. The measure of the weight of evidence is the "feeling of probability which it engenders".

The "preponderance of probabilities" is not a substantive doctrine. It is the result of a combination of the factual evidence and the medical theory placed within the context of the applicable law. The role of the judge then becomes one of analyzing the conflicting theories and accepting one as being the more plausible and probable, based upon all of the available credible evidence.

I cannot accept the petitioner’s testimonial version of the events of May 23, 1997. There are too many discrepancies between that description and those that were documented on that date, in her own handwriting, as well as by the testimony of respondent’s witnesses.

There is no documented history or evidence of any episode of bending over and feeling a sharp pain in the cervical area on May 23, 1997.

Although the petitioner denied that she had any neck problems prior to that date, the evidence is overwhelming that she had a long history of both lower back and neck pain prior to May 23, for which Dr. Rineberg treated her.

The opinion of Dr. Nosko that the cervical herniated disc was related to the work-related bending is critically undermined by the failure of the evidence to sustain that history.

I find that the petitioner has failed to sustain the burden of proof of a compensable injury and Claim Petition 97-026410 is hereby dismissed.

In Claim Petition 98-037480, the petitioner alleged that she was suffering from a permanent disability due to a compensable occupational disease involving her lower back.

N.J.S.A. 34:15-31 defines a compensable occupational disease as follows:

a. For the purpose of this article, the phrase "compensable occupational disease" all include all diseases arising out of and in the course of employment, which are due in a material degree to causes and conditions which are or were characteristic of or peculiar to a particular trade, occupation, process or place of employment.

 

b. Deterioration of a tissue, organ or part of the body in which the function of such tissue, organ or part of the body is diminished due to the natural aging process thereof is not compensable.

 

The standard to prove causation between work performed and an occupational disease was set forth in Peraino v Forstmann Woolen Co., 57 N.J. Super. 1 (App. Div. 1959) wherein the court stated:

It is fundamental that the employee has the affirmative burden of establishing by a preponderance of the credible evidence that his disease was work connected, was caused or contributed to by causes and conditions arising out of and in the course of employment. Green v. Simpson and Brown Const. Co., 14 N.J. 66 (1953); Mergel v. N. J. Conveyors Corp, 14 N.J. 609, 614 (1954). The proof may be direct, circumstantial or presumptive, Green v,. Simpson and Brown Const. Co., 14 N.J. at p.69. The accepted standard of proof is merely that the evidence establishes causal connection with probability, not certainty. Reynolds v. General Motors Corp., 40 N.J. Super. 484 (App. Div. 1956).

The petitioner testified that, from November 3, 1986 until May 23, 1997, she worked as a housekeeper for the respondent. Her job required her to clean patient rooms and bathrooms in the hospital. She stated that she was responsible for cleaning 20 bedrooms and 20 bathrooms on a daily basis.

This required her to dust, mop, clean the rooms and empty the wastebaskets by dumping the contents into a barrel and then take the barrel to the utility room and empty the barrel onto the floor.

She would mop the floors, dust the room clean the sink, and clean the toilet and shower in each room on a daily basis.

This required bending and lifting, putting a strain upon her lower back, neck, arm, and shoulder. She would also have to remove the mattress after each patient was discharged and prepare the beds for the next patient. She would also deliver the food trays to the patients. This required her to set up the tray and prepare the patient to eat. She did this twice each day for 18 patients. This activity also involved bending and lifting.

She testified that she first injured her back in 1987 when she bent down to pick up some trash on the floor and felt a "cracking" sound in the right side of her lower back.

She reported the accident and received medical treatment. She was paid temporary compensation for her lost time from work but did not file a formal claim for workers’ compensation.

She continued to work but had back pain and took medication daily for this pain.

In June 1991, she suffered another injury to her lower back while making a bed. She reported this injury and received treatment. She lost two months from work. Dr. Rineberg treated her until January 20, 1992. She filed a claim for workers’ compensation and, on March 20, 1995, she received a settlement award of 10 per cent of partial total for the residuals of post-traumatic myositis and fibromyositis of the lumbosacral spine. This was subject to a credit of 2½ per cent for prior functional loss.

She continued to work at her regular job but had pain in her back and right shoulder. She took medication prescribed by Dr. Rineberg.

She next saw Dr. Rineberg on November 12, 1996. She had reinjured her back when she bent down at work on October 30, 1996. He sent her for therapy for a lumbar strain. She was thereafter seen on December 2, 16, 23, 1996 and January 13, February 3, 27, March 18, April 29, May 27, June 4, 18, and, finally on July7, 1997.

During these visits, she complained variously, of problems with her lower and upper back, her neck, her right shoulder, and her right side.

There is no indication in any of the records of Dr. Rineberg that his treatments were for conditions other that those resulting from the separate accidents in which the petitioner was involved.

I find that the petitioner has failed to sustain the burden of proof that she has any permanent disability, which is causally related to a compensable occupational disease.

I find that any disability which she has to her lower back is related to distinct and separate accidents as described in the reports of Dr. Rineberg and as previously determined by the entry of the Order Approving Settlement in 1995.

This Order fixed the disability as of the date it was entered and would, of necessity, include any disability which preexisted that date. In fact, it included a credit for that pre-existing disability.

For the petitioner to prevail on this claim of occupational disease, she would have to show that the occupational exertions between September 1995 and her last employment on May 23, 1997, were the material cause of her lower back disability which was in excess of that which she had previously been awarded.

The record is clear, however, that she suffered a traumatic injury to her lower back on October 30, 1996, for which she was treated up to and beyond the date of her last employment. No claim petition was filed for this accident.

The petitioner’s medical expert, Dr. Morris Horwitz, opined that his estimate of permanent disability of 16 2/3 per cent of total for the lower back was due to the stress and strain of petitioner’s occupation.

Dr. Lawrence Zazzo, respondent’s expert evaluated her disability at 5 per cent of total regardless of cause.

Even assuming that the petitioner could establish that her occupational exertions did contribute to her current lower back condition, I find that she has not established that she has any permanent disability which is greater than that which she was previously awarded in that, on the evidence presented, it does not exceed 10 per cent of partial permanent total disability.

For the reasons stated above, I find that the petitioner has failed to sustain the burden of proof of permanent disability to her lower back which is causally related to a compensable occupational disease.

Claim Petition 98-037480 is hereby dismissed.

February 7, 2001