CP# 92-032427 Ciro v. Landis Shop-Rite
DEPARTMENT OF LABOR
DIVISION OF WORKERS’ COMPENSATION
BRIDGETON, CUMBERLAND COUNTY DISTRICT
HONORABLE ROBERT F. BUTLER
Judge of Compensation
LIPMAN, ANTONELLI, BATT, DUNLAP, ET AL
By: ROBERT G. MALESTEIN, ESQ.
110 North Sixth Street
Vineland, New Jersey 08360
Attorney for the Petitioner
HOWARD W. CRUSEY, JR., ESQ.
By: THOMAS R. HLAWATSCH, ESQ.
301 Sullivan Way,
West Trenton, New Jersey 08628
Attorney for the Respondent
The only issue in dispute in this case is the nature and extent of the petitioner’s permanent disability resulting from her compensable accident.
At the outset of this trial it was stipulated between the parties that the petitioner, Giovanna Ciro was involved in a compensable accident while working for the respondent, Landis Shop Rite on March 17, 1992. Also stipulated was the petitioner’s weekly wage at the time of the accident as being $654.30 which gave rise to a temporary disability rate of $409 per week.
The respondent has indicated in its brief that the petitioner was paid temporary disability benefits at the stipulated rate for 155 and 4/7 weeks for a total of $63,628.71 and I will assume that these benefits are adequate. I also find that the respondent has provided a bona fide tender offer and payment of 25% permanent partial total disability or 150 weeks payable at $124 per week for a total of $18,600 to the petitioner.
Based upon the proofs presented this court makes the following findings of fact.
The petitioner was born in Sicily on December 27, 1937. There she attended school up to and including the fifth grade. She moved to the United States in 1967 at the age of 30 with her husband and two children, Angelo and Anthony. Her husband died three years later and she then became employed in a clothing factory in Vineland, New Jersey as a sleeve setter. She worked in that capacity on a full-time basis for 22 to 23 years. She speaks some English but converses primarily in the Italian language. She is able to read and write Italian but not English. At the time of the accident the petitioner was employed by the respondent as a baker. On March 17, 1992 she was removing a rack of donuts from an oven on her employer’s premises when she lost her balance, fell backwards and struck the left side of her head against the metal rack. She then fell to the floor striking her shoulders, right arm and back.
Following the accident the petitioner was taken to the Newcomb Medical Center by ambulance. At the emergency room an egg-sized lump was found on the left side of the petitioner’s head. Her chief complaints at the time were pain in her head, neck and low back. X-rays of the cervical and thoracic spine, left shoulder, skull and left scapula were taken at that time. A soft collar was applied to her neck. The petitioner reported no loss of consciousness following her fall. She was released from the hospital and came under the care of her family physician, Dr. Anthony Napoli, the same day.
Her complaints to Dr. Napoli were that of pain in her head, neck, left shoulder, upper and lower back and right hip. Dr. Napoli prescribed medications for her pain and diagnosed her condition as cervical and thoracic strain, contusion of right shoulder and right thigh. He also reported that she was unable to return to work for an indefinite period of time. Dr. Napoli treated the petitioner 13 times from the date of her accident until the date of his last office note of July 2, 1993.
X-rays of the cervical spine ordered by the doctor on March 17, 1992 reported disc-space narrowing and hypertrophic spurring anteriorly and posteriorly at the levels of C5-6 and C6-7. During the course of these 13 visits the petitioner’s complaints remained rather consistent and involved her neck, low back, both shoulders, right elbow, arm and right knee. The only variance from those complaints began on the visits of January 22, 1993. She then mentioned that she had seen Dr. Wisda, a local ophthalmologist because of poor vision in her right eye. She complained of right eye problems during at least two of her later visits to Dr. Napoli.
The respondent selected Dr. George P. Glenn, a local orthopedist as its authorized physician for the treatment of the petitioner’s injuries.
He first saw the petitioner on March 31, 1992. He described her as being " . . . a highly emotional, obviously distraught, crying individual . . . ." During his initial physical examination the doctor noted generalized tenderness in her neck area, redness and swelling of the right elbow, pain and swelling of the right wrist and minimal effusion or swelling of the right knee. He advised the petitioner to continue with the pain medications prescribed by Dr. Napoli. He noted the results of the earlier Newcomb Hospital x-rays as being "advanced degenerative osteoarthritis involving the cervical 5-6 level with other arthritic spur formations above and below." X-rays of the left humerus, left shoulder and thoracic spine reflected mild arthritic changes. His diagnosis was cervical and thoracic strain, contusion of the right shoulder and right thigh. The petitioner had either five or six office visits with Dr. Glenn between March 31, 1992 and May of 1992. During that time he prescribed and the petitioner received two weeks of physical therapy for her neck and back. He prescribed Indocin and he obtained a CT scan of the cervical spine. The results of the CT scan were degenerative changes from C5 to C7 of the cervical spine. The last document contained in Dr. Glenn’s office notes was one that bears a date of May 28, 1992 and states "Patient may return to work as of 5/1/92." This chronological discrepancy was without explanation.
Dr. Glenn’s final impression of the petitioner was that her complaints were diffuse, her findings were bizarre, and her general countenance was one of profound depression.
The respondent then arranged for a psychiatric evaluation with a Dr. Sidney Starrels, a psychiatrist, that took place on August 31, 1992.
The petitioner told Dr. Starrels that she felt confused all the time and that her sleep was of poor quality. She was depressed and felt frustrated because of her physical restrictions caused by her accident and she also indicated that she was unable to take care of her house. She had no prior psychiatric history nor was there any in her family. Since the accident she was subject to crying spells. She related that she had considered killing herself and that she did not wish to live with the way she felt. During her office visit with the doctor she cried frequently and the doctor found her memory was "spotty." She was emotionally reactive and labile.
Her diagnosis was that of a reactive depression caused by her work-related accident and her impairment at the time was indicated as being substantial. Psychiatric treatment including psychotherapy and antidepressant medications was suggested.
It was not until December of 1992 that the petitioner received her first psychiatric treatment. The respondent then referred her to Dr. Francisco J. Torres-Zayas, a psychiatrist. He saw her on December 30, 1992 and January 20, 1993. He prescribed an antidepressant medication. As of January 20, 1993 he found no improvement in her condition. The petitioner received no further psychiatric treatment thereafter until June 27, 1994 when the respondent referred her to Dr. Edward Tobe, a Board-Certified Psychiatrist for continued psychiatric treatment. This chronological gap in treatment is absent any explanation in the record. From June 27, 1994 to August 9, 1999, the date that he testified in this proceeding, Dr. Tobe has seen the petitioner for medical treatment more than 40 times in his capacity as the respondent’s authorized treating psychiatrist. His medical treatment consisted of psychotherapy, administration of various psychiatric medications and obtaining of diagnostic studies.
Dr. Tobe’s initial diagnosis was that of a Major Depressive Disorder. However, after his extensive course of treatment and additional diagnostic studies, the doctor’s current diagnosis represents that of a major depression and cognitive brain dysfunction caused by the head trauma of the compensable accident. It is his opinion that she is totally and permanently disabled.
The proofs presented with respect to the petitioner’s compensable permanent disability fell into four categories; orthopedic, ophthalmalogic, neurologic and psychiatric. The petitioner’s burden of proof as to each of these remains the same. She must first present proof of a permanent impairment based upon demonstrable objective medical evidence which secondly, restricts the function of the body or of its members or organs. (N.J.S.A. 34:15-36.)
As to the petitioner’s orthopedic disabilities, I find that the petitioner has sustained her burden of proving a permanent partial total disability of 25% representing the residuals of a cervical sprain and strain superimposed upon advanced degenerative osteoarthritis involving the C5, C6 levels of the cervical spine. I do so for the following reasons.
The petitioner had not been involved in any accidents or injuries prior to this work-related accident. There are no proofs presented that would even suggest that the petitioner had experienced or had been treated for any cervical complaints or problems previously. Consequently, I find that the degenerative arthritic condition of the petitioner’s cervical spine as reflected in the x-rays taken following this accident, were asymptomatic prior to this accident.
Immediately following her work-related accident, the petitioner developed significant complaints and symptoms in her cervical area that continued through to the date of her testimony in this trial. The treating records of Dr. Napoli are replete with cervical complaints beginning March 17, 1992 through his last recorded office visit of July 2, 1993. More importantly there is correlation between the petitioner’s complaints and the specific level of her spine that reflected abnormalities in both the x-ray and CT scan that she underwent.
According to the March 31, 1992 report of Dr. Glenn, the Newcomb Hospital x-ray that she underwent revealed advanced degenerative arthritis involving the C5-6 level of the petitioner’s cervical spine. Although Dr. Glenn states in his June 19, 1992 report that the May 26, 1992 CT scan he requested of the petitioner’s cervical spine was "normal," the actual CT report states that there were degenerative changes of the spine at C5 through C7. Almost one and a half years later, Dr. Gerald Packman, an orthopedic surgeon, indicates in his August 23, 1993 office note that the petitioner is still complaining of reduced sensation over the radial aspect of the dorsum of her hand and that this symptom is consistent with a C5 or C6 nerve distribution. I, therefore, find that the petitioner’s accident aggravated her previously asymptomatic underlying degenerative cervical spine condition and that the entirety of her present cervical disability is causally related to that accident. I also find that the above referenced x-ray and CT scan evidence of degenerative osteoarthritis, certainly constitutes demonstrable objective medical evidence of permanent impairment as required by section 36 of the Workers’ Compensation Act.
I also find that the petitioner’s testimony establishes a significant restriction of her bodily functions and activities. Having had the opportunity to observe the petitioner and her demeanor during her testimony, I found her to be a credible witness. She experiences constant pain in her neck and upper back that becomes severe two to three times per week. She still experiences the lack of sensation in her hand that she described to Dr. Packman, especially at night. The pain in her neck becomes severe on occasion to the point where she cannot turn in bed and she is unable to sleep. She is unable to return to the physical duties of her job as a baker primarily because of her cervical disability. This court notes that Dr. Costino, the respondent’s evaluating orthopedic doctor, was also of the opinion in November of 1992 that she would be unable to return to the job duties of a baker.
In determining the percentage of the petitioner’s cervical disability, I have also considered the opinions and estimates of disability of Dr. Perry I. Barr who evaluated the petitioner on her own behalf three times and that of Dr. John Costino who saw her several times both as a treating physician and as an evaluating physician. This record should reflect that Dr. Barr testifies before this court on a relatively regular basis solely on behalf of petitioners and Dr. Costino just as regularly testifies before this court solely on behalf of respondents. It has been this court’s observation over time that the estimates of Dr. Barr tend to be rather generous and those of Dr. Costino tend to be rather conservative. In this case both doctors agree that the petitioner suffers from a significant disability. They disagree as to the percentage that disability represents and they disagree as to certain findings.
Dr. Costino testified that when he last examined the petitioner on November 11, 1999 he found no evidence of muscle spasm in the cervical region and that there was no evidence of "significant restriction" in right and left rotation as well as forward flexion and backward extension. He estimated the petitioner’s disability at 5% permanent partial total. The doctor does not express in terms of degrees the extent of the petitioner’s range of motion. When Dr. Barr examined the petitioner on October 8, 1999 he found that the petitioner’s cervical spine was restricted in its range of motion and he expressed it in degrees. He found restrictions of 25% in flexion, 30% rotation to the right and 20% on the left and 25% on side bending bilaterally. He also noted the presence of muscle spasm and tenderness of the posterior cervical musculature and both trapezii muscles.
With respect to Dr. Barr’s finding of muscle spasm and Dr. Costino’s finding to the contrary, the respondent suggests in its brief that I should disregard Dr. Barr’s finding because the treating doctors, Levitsky, Napoli, Glenn and Barone, found no evidence of spasm and thus Dr. Barr’s finding is inconsistent with theirs. I do not find any such inconsistency.
The last dates of treatment by the doctors named were July 2, 1993 for Dr. Napoli, May 28, 1992 for Dr. Glenn, November 17, 1993 for Dr. Levitsky and December 7, 1995 for Dr. Barone. The fact that the petitioner experienced no muscle spasm four to seven years ago does not militate against the presence of muscle spasm when Dr. Barr evaluated the petitioner in 1999. Additionally, the fact that Dr. Costino did not find cervical muscle spasm on November 11, 1999 is not necessarily inconsistent with Dr. Barr’s finding to the contrary on October 8, 1999. Not all muscle spasms persist. Some wax and wane depending upon various circumstances. I find Dr. Barr’s measurements of the petitioner’s range of motion to be more reliable than Dr. Costino’s generalization that it is "reasonably well-maintained." I also find Dr. Barr’s finding of muscle spasm to be entitled to great weight because it is more in keeping with the x-ray findings of the petitioner’s cervical spine and a restricted ability to function and inability to return to work.
I find that the petitioner has sustained her burden of proving a compensable permanent disability of 10% permanent partial total representing the orthopedic residuals of a left thoracoscapular sprain and strain superimposed upon a mildly arthritic left shoulder and thoracic spine. I do so for the following reasons.
As a result of her fall, the petitioner struck both her shoulders and her back when she landed on the floor. Her complaints of pain resulted in x-rays being taken of those areas. When Dr. Glenn reviewed those x-rays he reported their findings in his March 31, 1992 report as mild arthritic changes in both areas. Based upon the proofs and the petitioner’s testimony I find that she had not experienced any prior injuries nor did she have any prior complaints regarding her thoracic spine and left shoulder. As such these preexisting arthritic changes had been asymptomatic. Following the accident and continuing through the time of her testimony, she has described continuous complaints about these two parts of her body.
Dr. Napoli noted tenderness in the thoracic spine and left shoulder on the date of accident. Dr. Glenn directed that the petitioner undergo physical therapy in both the cervical spine and thoracic spine in April of 1992. I, therefore, find that this compensable accident aggravated the petitioner’s underlying arthritic condition of her left shoulder and thoracic spine causing both to become symptomatic.
During her testimony she describes her areas of pain to include her shoulders and her back. The court finds it rather difficult to establish a definite line of demarcation between the left shoulder and neck condition and between the neck and upper back condition. Nevertheless, the x-ray findings clearly establish arthritic changes in all three areas and this certainly constitutes demonstrable objective medical evidence of impairment that supports the petitioner’s complaints and limitations. This court finds that her inability to lift heavy objects and inability to turn on occasions when she sleeps constitute functional impairment that is caused by a combination of her cervical and thoracic scapular disabilities.
I find that Dr. Barr’s findings in his most recent evaluation are more consistent with the petitioner’s x-ray findings and her testimony regarding her complaints and limitations than the examination of Dr. Costino that was totally devoid of abnormal findings. Dr. Barr found a 25 degree limitation of motion of the left shoulder, marked paravertebral muscle spasm in the dorsal area of the spine especially along the vertebral border of the left scapula.
I find no compensable permanent disability with respect to the petitioner’s right arm. I do find that the petitioner suffered an injury to the right arm as a result of her fall. Even Dr. Glenn noted redness and swelling of the right elbow and swelling of the right wrist. Subsequently, the condition of the elbow was diagnosed as a medial epicondylitis for which she received medical treatment. Dr. Barr found that the petitioner’s disability equated to 20% of the arm because of the same diagnosis. His estimate of disability was based solely upon a finding of tenderness over the medial epicondyle. Surprisingly enough, Dr. Costino also found that there was a permanent disability of the arm that he estimated at 5%. He, too, based his estimate of disability solely upon a finding of tenderness.
I find that the petitioner does have some degree of permanent disability with regard to her right arm and I do so based upon her testimony that I find credible. She testified that she has a great deal of pain in her arm and that she has weakness of the arm as well. However, without the presence of demonstrable objective medical evidence to support her complaints, section 36 precludes this court from awarding compensable disability. The case of Colon v. Coordinated Transport, Inc., 141 N.J. 1, 660 A.2d 1146, (1995) found that range of motion test results are purely subjective evidence and do not, standing alone, satisfy the statutory requirement of demonstrable objective medical evidence. The presence of tenderness to palpation falls into the same category of "subjective" findings. Absent objective findings such as x-ray abnormalities, the presence of muscle atrophy or spasm, an award of compensable permanent disability may not be based upon the finding of tenderness. I, therefore, find that although the petitioner does suffer from some degree of permanent disability, it is not significant enough nor objective enough to constitute a compensable permanent disability.
I find that the petitioner has failed to sustain her burden of proving a causal relationship between the compensable accident and any present ophthalmologic disability. That portion of the petitioner’s testimony that dealt with her visual disability was not extensive. The sum total of her complaints consisted of her statement that she sees a black spot in the vision of her right eye on a constant basis. She gave no additional description of this spot such as its size or its specific location with reference to her field of vision. She also made no mention as to what, if any, impact this condition has upon her daily activities.
During the trial the parties primarily relied upon the opinions and testimony of the respective ophthalmologic experts to establish their claims and defenses. Dr. Arthur M. Spiegelman testified on behalf of the petitioner. He was of the opinion that the petitioner’s disability in her right eye constituted an overall ocular disability of 25% and that it was causally related to her compensable accident. Dr. James C. Tassini evaluated the petitioner on behalf of the respondent. He was of the opinion that the petitioner suffered from no ophthalmologic disability and that she was a malingerer. Both physicians were Board-Certified in Ophthalmology.
I find that the testimony of Dr. Spiegelman is insufficient to establish a causal relationship between the compensable accident and any ophthalmologic disability that the petitioner may suffer. To that extent, I find that the testimony of Dr. Tassini entitled to greater weight than that of Dr. Spiegelman. I do so for the following reasons.
I find that Dr. Spiegelman never addressed what the court considers as the issue of the late onset of ophthalmologic symptomatology. Unlike the petitioner’s orthopedic, neurologic and psychiatric symptoms which developed either immediately or shortly following the compensable accident, I find that there were no proofs presented to indicate that the petitioner experienced any visual problems prior to January 1993, some ten months post accident. That is the date of her office visit with Dr. Wisda, a local ophthalmologist to whom she made her first visual complaint regarding her right eye. The petitioner’s testimony is devoid of the mention of any visual difficulties prior to that date. The doctor never discussed whether or not the late development of the petitioner’s symptoms was or was not consistent with the causally related head trauma. Nor did he explain why the petitioner’s visual problems would not occur until 10 months after the accident.
I find significant inconsistencies in the testimony and opinion of Dr. Spiegelman. Following his first examination of the petitioner in December of 1993, it was his opinion that the petitioner suffered from damage to the optic nerve of the right eye that was causing her visual difficulties and that this damage was causally related to the compensable accident. His opinion was based upon four physical findings. He found a major loss of visual acuity in the petitioner’s right eye that was sufficient to quality her as being "legally blind" in that eye. Secondly, he found a complete loss of visual field in the right eye. He testified that this finding indicated the presence of damage to the optic nerve. Thirdly, his examination of the actual structure of the right eye revealed that there was pallor of the optic nerve head. He described "pallor" as being a paleness in color that means that there was a lack of vascularization or blood supply which in turn equates to optic nerve damage.
The fourth finding was that of an afferent pupillary reaction of the right eye. He explained that when a physician’s light is shown into a normal eye, the pupil will constrict. If the eye instead dilates in response to the light, the condition is referred to as an afferent pupillary reaction. The doctor testified that this reaction also indicates the presence of optic nerve damage. The doctor stated that the petitioner’s left eye was found to be slightly less than 20/20 as to visual acuity and that it was otherwise completely normal. When Dr. Spiegelman examined the petitioner the second time on November 1, 1999, three of the four findings upon which he had based his earlier opinion of optic nerve injury and its causal relation to the accident, were no longer present.
The petitioner’s visual acuity was found to be slightly better than in 1993 but she is still qualified as "legally blind." The doctor conceded, however, that this test was subjective in nature because it depended upon the verbal responses of the petitioner.
The petitioner’s visual field that had been totally absent in 1993 was now normal. Dr. Spiegelman gave no explanation for this change. The afferent pupillary reaction was absent and the petitioner’s right pupil was normal. Dr. Spiegelman testified that in his 35 years of practice he had never seen this condition abate.
He also found that the head of the optic nerve was now normal in color and that all pallor was gone. I find his explanation for the change in this condition to be very tenuous. He attempted to draw a distinction between pallor that represents "dead" optic nerve fibers from those that are "damaged." He concedes that fibers that are pale in color because they are dead can never regenerate and will remain dead. However, he said that fibers that are only "damaged" can get better.
I find the testimony and opinion of Dr. Tassini to be more credible and entitled to greater weight with respect to these findings. He agreed with Dr. Spiegelman in that both pallor of the optic nerve and an afferent pupillary reaction clearly indicate the presence of optic nerve damage. However, he also testified that neither condition is subject to improvement and both are permanent in nature. The results of his two examinations, one in December of 1994 and the other in March of 2000 are more consistent and credible than Dr. Spiegelman’s. He found no evidence of power of the optic nerve and a totally normal pupillary response on both occasions when he examined the petitioner’s right eye.
Following his second examination, Dr. Spiegelman was still of the opinion that the petitioner suffered from an ophthalmologic disability that was causally related to her compensable accident. However, his own testimony evidences the uncertainty of his opinion. When asked if his opinion regarding causal relationship would be the same following his second examination if he did not have the benefit of his findings from his 1993 examination, his response was:
"Well, I’m not sure I can explain it. I would suspect that it was due to the injury, but with a lack of objective symptoms and signs I couldn’t be sure."
This statement is especially poignant in light of the requirements of section 36 of the Workers’ Compensation Act which requires any award of compensable permanent disability by this court to be based upon demonstrable objective medical evidence.
I find that at the time of his testimony, Dr. Spiegelman was espousing inconsistent causes for what he found to be the petitioner’s ophthalmologic disability. At one point he apparently was maintaining his original opinion that it was optic nerve damage that caused the petitioner’s difficulties. He stated:
"It is definitely due to optic nerve damage because if the injury were posterior to the optic chiasm, you would have a different type of visual field and I could see no other reason for this damage than the injury previously indicated."
This comment by the doctor refers to the anatomy of the optic nerve. The optic nerve of each eye commences at the rear of the eye. At a point very near to the rear of the eye known as the optic chiasm, a portion of both the left and right optic nerves crisscross and the other portion continues to the rear of the brain. Consequently, any damage occurring posterior to the optic chiasm would cause visual defects in both eyes. Both Drs. Spiegelman and Tassani agree on this point.
At another point in his testimony, Dr. Spiegelman stated that the cause of the petitioner’s visual disability was due to damage to the optic nerve occurring posteriorly to the optic chiasm in the cortex of the brain, adjacent to the left occiput where the petitioner’s head was struck during her fall. When he was asked to explain how an injury at that location could cause vision problems in only the right eye as opposed to both, his response was as follows:
"I’m really not sure. I had a hard time with that part really because the fact is that the visual field is gone in one eye and the vision is poor and I’m just looking for an explanation and it’s difficult to come to the second."
I find that Dr. Spiegelman’s testimony clearly lacks sufficient consistency and credibility to sustain the petitioner’s burden of proving by the preponderance of credible evidence causal relationship between the compensable accident and any ophthalmologic disability from which the petitioner may suffer.
I find that the petitioner has sustained her burden of proving a compensable neurologic disability. I do so for the following reasons;
The happening of the accident involving a trauma to the head and the hospital emergency room record’s description of an egg-sized lump on the petitioner’s head the same day as her fall are clearly consistent with the type of injury that can cause brain injury or damage.
I find that the presence of a neurologic dysfunction was evidenced by August 31, 1992. On that date, the petitioner was examined by the respondent’s evaluating psychiatrist, Dr. Sidney Starrels to determine if she had suffered any psychiatric residuals because of her fall. Dr. Starrels’ report of September 1, 1992 concluded with his opinion that the petitioner was suffering from a substantial psychiatric disability. More importantly with respect to this neurologic issue, however, Dr. Starrels stated that he found the petitioner’s memory as being "spotty." He also recorded the petitioner’s complaint that she felt confused all the time.
I find that the petitioner did not suffer from any neuro-cognitive problems prior to this accident. No proofs were presented to the contrary and her son Angelo Ciro testified that her cognitive problems did not occur until after this accident.
I find that the petitioner’s functional limitations caused by the neuro-cognitive aspect of the petitioner’s accident are significant. She still feels confused and she is forgetful. Frequently she turns on the stove and forgets to turn it off. She forgets to remove her keys from the outside of her house and leaves them there overnight. When she drives her car she feels like she is never on the correct road. She has also driven through a traffic light without realizing it. These complaints were supplied by the testimony of the petitioner and most were verified by the testimony of her son, Angelo, who lived with her from the time of the accident until some time in 1997. He, too, testified that his mother never experienced these problems before this accident. I found him to be a credible witness.
The January 3, 2000 report of Dr. Kenneth A. Brait, the respondent’s evaluating neurologist states that during his evaluation of the petitioner occurring on that date, she did not remember her telephone number or her Social Security number and she had difficulty remembering her address.
I find that there is demonstrable objective medical evidence of a neurologic disability as required by N.J.S.A. 34:15-36 and that this disability is causally related to the work-related accident.
Following the petitioner’s accident there were several diagnostic studies performed over the next several years to determine if there was any brain injury sustained by her. An E.E.G. performed on August 14, 1995 was found to be normal. An M.R.I. performed on June 18, 1996 revealed some minimal abnormalities. However, none of the doctors who are here involved attributed any great significance to these findings so far as they may relate to this accident or its neurologic sequelae. Such is not the case with the two P.E.T. Scans of the petitioner’s brain. They were performed on May 19, 1995 and June 18, 1996. The results of both these tests reflect significant abnormalities. The respondent, however, suggests that the court should disregard the results of these tests because P.E.T. Scans are used for research purposes and are not generally accepted in the medical community for use in the clinical practice of treating patients. I find that the proofs do not support this argument. I do so for the following reasons:
First, respondent cites no authority for its position. Secondly, the only testimony produced that tends to support that argument is that of Dr. Fenichel. The P.E.T. Scan is a diagnostic tool that is utilized in the field of neurology. Dr. Fenichel concedes that point. However, Dr. Fenichel’s qualifications, training and practice are limited to the field of psychiatry. Her statement that the P.E.T. Scan is an experimental tool is one made outside the realm of her expertise and experience and hence can be given little weight.
Dr. Richard Rubin, however, is a qualified expert in both psychiatry and neurology. He testified that P.E.T. Scan testing is utilized and relied upon in the field of neurology. I find his testimony credible that the P.E.T. Scan is utilized to examine the metabolic activity in the brain and to determine if there is correlation between cognitive deficits in a patient and potential deficits in the brain.
I find that the records of the only other neurologist involved in this case, Dr. Kenneth Brait, the respondent’s evaluator, do not support the respondent’s position. Nowhere in his records does Dr. Brait suggest that a P.E.T. Scan is not an accepted diagnostic study in the field of neurology. The import of his records actually seem to be to the contrary. He states in his March 25, 1996 report:
"I feel rather strongly that to rely solely (emphasis supplied) on the P.E.T. Scan without any other confirmatory evidence is inappropriate."
That statement would seem to imply that if there were other corroborative findings or studies Dr. Brait would then rely on the findings of the P.E.T. Scan. This court also notes that Dr. Brait does not dispute the validity of the P.E.T. Scan results and the fact that they reflect brain injury. He merely questions the causal relationship between the P.E.T. Scan findings of abnormality and the compensable accident. He states:
"There can be many other causes for the abnormalities seen on the P.E.T. Scan besides head trauma."
I find that the brain abnormalities noted in the two P.E.T. Scan studies represent neurologic residuals of brain injury and are causally related to the compensable accident. I do so for the following reasons;
First, both P.E.T. Scan studies were performed at a reputable well-recognized medical facility — the Hospital of the University of Pennsylvania. Secondly, the impression of the physician who performed the two studies clearly indicates a causal relationship between the trauma and the findings. The May 9, 1995 P.E.T. Scan report states:
"The finding of decreased but not absent metabolism in the posterior parietal and occipital lobe on the right, are more consistent with brain trauma in the region. The localization of the pattern is more consistent with the direct effects of trauma than diffuse axonal shearing."
The August 12, 1997 P.E.T. Scan study impression states as follows:
"Both the hippocampus and the caudate participate in the mediation of language. The decreased metabolism in them may reflect the known language dysfunction. Other manifestations of similar findings usually include visual and spatial memory dysfunction."
Dr. Theodore Lidsky, who performs neuropsychological function testing, explained that the hippocampus is the area of the brain that involves memory and these findings correlate with the petitioner’s widespread memory and attention problems.
Thirdly, I find that the Motor Functioning Tests performed as a part of the neuropsychological battery of tests performed upon the petitioner confirm the P.E.T. Scan evidence of brain injury.
There were two sets of neuropsychological tests performed upon the petitioner for the purpose of assessing brain function. Dr. Lidsky performed the series during the course of his treatment of the petitioner and Dr. Sandra Koffler performed the same at the behest of the respondent. Both doctors acknowledged that the effectiveness of their testing procedures was somewhat impaired because of the petitioner’s language difficulties — she spoke primarily Italian and required the services of an interpreter. Dr. Lidsky reported the results of his testing as reflecting the presence of a severe depression, and severely impaired visual, memory and spatial location memory. He felt that there was no evidence of exaggeration or malingering.
Dr. Koffler reported the results of her testing as reflecting the presence of severe dementia. She also reported that the results of some tests showed the number of errors on some cognitive tests to exceed those that would be expected with pure guessing. Her conclusion was that the petitioner’s test results were unusually poor and would suggest a significant psychiatric overlay.
I find that there was one significant aspect of the testing performed by both doctors that was extremely similar. The motor tests that were administered by both clearly establish motor deficits bilaterally but more severely on the right.
Dr. Koffler notes that when the petitioner was directed to tap her fingers on a surface as rapidly as she could her fine motor speed was slow bilaterally although significantly more pronounced on the right. There were 18.6 taps in ten seconds on the right and 32 taps in ten seconds on the left. Strength of grip (right being 23 kilograms and left being 32.5 kilograms) and manual dexterity were within normal limits on the left and mildly impaired on the right.
Dr. Koffler offers no explanation for her findings described above. Dr. Lidsky explains that these findings evidence motor slowing and constitute evidence of an extra-pyramidal disorder. He defined that term as being a disorder involving the basal ganglia area of the brain. He further explained that the caudate is part of the basal ganglia and that was one area of the brain in which activity was indicated as being decreased in the August 12, 1997 P.E.T. Scan. Dr. Lidsky also explained that the tremors or shaking of the arm and leg that he noted during his treatment of the petitioner, that Dr. Tobe also noted during his treatment of her and that were also noted by Dr. Fenichel, can evidence a dysfunction of the same area of the brain — the basal ganglia. No other medical explanation was provided during the course of this trial for this finding.
This court notes that Dr. Fenichel was the only physician proffered by the respondent that commented upon the possible etiology for the petitioner’s arm and leg tremors. It was her opinion that this condition represented evidence of anxiety, agitation or a problem with the basal ganglia of the brain.
With respect to the petitioner’s neurologic disability I find the opinion of Drs. Lidsky and Barone regarding causal relationship to be entitled to greater weight than those of the doctors proffered by the respondent. Both Drs. Barone and Lidsky causally relate the petitioner’s neurologic disability to her compensable accident. These opinions are consistent with the reported abnormalities reflected in both P.E.T. Scans, and the court’s findings that the petitioner had no cognitive problems prior to the compensable accident but that they developed after the accident occurred. Dr. Lidsky’s opinion is the only one that provides a logical explanation for the development of the petitioner’s arm and leg tremors, tremors that unquestionably developed after the occurrence of the work-related accident.
On the other hand, Dr. Brait’s opinion that the petitioner’s fall and head trauma resulted in no neurologic or brain injury is based upon two factors. First, he seems to question how the extensive evidence of brain injury reflected in the P.E.T. Scan could occur as a result of the petitioner’s blow to the head when it was not severe enough to cause loss of consciousness. He fails to explain why he feels that significant brain injury cannot occur without loss of consciousness. Even Dr. Fenichel concedes that brain injury can occur without loss of consciousness. The court wonders whether Dr. Brait’s opinion is based upon medical studies or his personal experience. He describes the occurrence of this type of brain damage without loss of consciousness as being "unlikely." Does "unlikely" equate to "cannot occur?"
The second factor in Dr. Brait’s opinion is his statement that "There can be many other causes for the abnormalities seen on the P.E.T. Scan besides head trauma." Of concern to this court is the doctor’s failure to supply and explain even one other possible cause.
For all of the above reasons, I find that the petitioner has sustained her burden of proving a compensable neurologic disability.
Based upon a review of the all the credible evidence, I find that the most significant and substantial of the petitioner’s compensable disabilities resulting from this work-related accident is her psychiatric disability. I do for the following reasons.
The petitioner has no past personal history or family history of psychiatric problems or treatment prior to this accident. The first evidence of the petitioner’s psychiatric problems did not occur until after the accident and, in fact, it occurred almost immediately thereafter. The respondent’s first authorized physician, Dr. Glenn documents this in the report that he authored following his April 7, 1992 office visit with the petitioner. His comment was "Her general countenance is one of profound depression." Dr. Mark K. Levitsky, the orthopedic surgeon to whom this court referred the petitioner for an independent evaluation of her orthopedic problems in November of 1993, also found that the bulk of the petitioner’s work-related disability was psychiatric in nature. His November 23, 1993 report states:
"It is my opinion that she is suffering from a conversion type of reaction and that her persistent severe subjective complaints are due to this problem. I, therefore, feel that her major problem at this time is psychiatric in nature and not orthopedic."
The respondent referred the petitioner for a psychiatric evaluation to determine whether there was a need for psychiatric treatment caused by this accident. Dr. Sidney Starrels evaluated her on August 31, 1992, approximately five months after the accident. Dr. Starrels concluded that the petitioner was suffering from a reactive depression caused by the accident. He also felt that the impairment caused by the depression was substantial and that it necessitated treatment that would include psychotherapy and antidepressant medication.
Following Dr. Starrel’s diagnosis and recommendation for psychiatric treatment, the respondent authorized the petitioner to obtain such treatment from Dr. Edward Tobe. Dr. Tobe is a Board-Certified Psychiatrist. Following his first office visit on June 27, 1994 with the petitioner, Dr. Tobe diagnosed her condition as a major depressive disorder and prescribed antidepressants as part of his treatment.
I find that the severity of the petitioner’s causally related psychiatric disability is clearly illustrated when one compares her attitudes and activity level as they were before the accident with what they are thereafter and at present. Prior to this accident I find that she was a highly motivated and vigorous individual. Following the death of her husband in 1970 when she was 30 years of age, the petitioner began working as a sleeve setter in a clothing factory in order to support herself and her two children. She continued to work in the clothing factory for 22 years and during that time she funded college educations for both her sons. During that latter portion of her employment at the clothing factory, she also was employed on a part-time basis cooking meals for the mother of the owner of the respondent, Shop Rite. She left her job at the clothing factory and began her employment with the respondent on a full-time basis in approximately 1990. She continued to work as a cook for the family of the respondent’s owner. She enjoyed cooking and taking care of her house. In comparison with the above, the petitioner’s present activities are extremely limited. She no longer works and has never returned to work following this accident. She takes two antidepressant medications on a daily basis, Prozac and Amocatine. She exhibits the classic signs of depression. She cries for no apparent reason. She feels that she is worth nothing. She feels depressed most of the time and does not want to do anything. As recently as one week before her testimony the petitioner found herself not showering or getting dressed and instead remaining in her nightgown all day long. She cried most of the day and had no desire to eat. On occasion she still remains in her house in her nightgown for the duration of the day for a two to three-day period. She has indicated that she wished that God would take her.
The respondent does not dispute the fact that the petitioner suffers from a substantial psychiatric disability that is causally related to the compensable accident. All three psychiatrists who testified, Drs. Tobe, Rubin and Fenichel agree about the fact that the only aspect of the petitioner’s compensable psychiatric disability that is in dispute is the extent of that disability.
Dr. Gladys S. Fenichel evaluated the petitioner psychiatrically on behalf of the respondent. Dr. Fenichel is a Board-Certified Psychiatrist who evaluated the petitioner on two occasions, the last of which occurred on March 15, 2000. When she testified, it was her opinion that the petitioner was suffering from a 30% permanent partial total psychiatric disability. She felt that 15% of that disability was causally related to the work-related accident and the remaining 15% was related to what she described as the petitioner’s personality makeup. Dr. Fenichel described this as being an underlying personality trait that prevents petitioner from being able to figure out for herself how to get over the residuals of her injury and get on with her life. As a consequence her self-esteem diminished. She dwells on the negative and her depression worsens. Even if this court were to assume for the sake of argument that the doctor’s theory and opinion is correct, this respondent would be responsible for the entirety of the petitioner’s 30% psychiatric disability. The proofs at trial were devoid of any evidence that the petitioner suffered from any personality disorder prior to this accident. If her "personality makeup" eventually developed into a part of her psychiatric disability because of the sequelae of the work-related accident, the case law in this state clearly holds this respondent liable for the petitioner’s entire psychiatric disability. See Mewes v. Union Building and Construction Co., 45 N.J. Super. 88 (App. Div. 1957).
When questioned as to the method by which she determined the percentage of disability suffered by the petitioner as being 30%, Dr. Fenichel candidly admitted that she was unfamiliar with the factors that are to be considered in determining whether a worker is totally disabled within the meaning of the Workers’ Compensation Act. When asked how she arrived at her estimate of disability of 30%, the sum total of her explanation was a) that she realized that this woman had a significant disability, b) that she did not trivialize it to say that it was equal to 1%, c) that her disability is less than half but d) that it doe not rise to the level of total disability.
When asked why she felt the petitioner was less than totally disabled, Dr. Fenichel explained that when she last evaluated the petitioner, the petitioner had advised her that on occasion she was "spending time" in her brother-in-law’s store. The doctor opined that if the petitioner were to place herself in a structured environment and, for example, begin working in her brother-in-law’s delicatessen and generate an income, such would allow her to feel productive and improve her self-esteem. That was the sum total of the doctor’s explanation for a conclusion that the petitioner was not totally disabled. The doctor failed to explain the reasons behind her assumption that the petitioner would be able to work in light of her failure to do so during the eight years that had passed since the compensable accident. This court finds that very little weight can be given to the doctor’s opinion and conclusions without an explanation of the bases for them.
I find that greater weight should be given to the opinion of Dr. Tobe. I do so for several reasons. First of all unlike Dr. Fenichel who was retained by the respondent solely for the purpose of rendering an opinion regarding the nature and extent of the petitioner’s disability, Dr. Tobe’s testimony and opinion enjoys the status of a treating physician. The Workers’ Compensation case law indicates that the opinion of the treating physician is more reliable than that of evaluating physicians when attempting to assess the true nature and extent of a person’s disability. Additionally, I find that especially with regard to the assessment of the nature and extent of a psychiatric disability, the more frequent the evaluations and office visits, the more likely the diagnosis and opinion will be accurate. Dr. Fenichel saw the petitioner on two occasions and Dr. Rubin saw the petitioner on three occasions. Dr. Tobe saw and treated the petitioner on 47 occasions prior to the date of his testimony.
Dr. Tobe’s initial diagnosis following his first office visit with the petitioner on June 27, 1994 was that of a Major Depressive Disorder. He began a course of administration of antidepressant medications. When his course of medical treatment did not result in a significant improvement in her condition, Dr. Tobe thought it appropriate to conduct additional diagnostic testing to determine if there might be an organic element in addition to a psychiatric element responsible for her disability. Dr. Tobe then referred the petitioner to the University of Pennsylvania Hospital for the purpose of obtaining brain testing. Following the administration of two P.E.T. Scans of the petitioner’s brain, Dr. Tobe was of the opinion that the abnormalities reflected in both tests were causally related to the head trauma involved in the compensable accident. Dr. Tobe opined that the petitioner’s mental confusion, forgetfulness and cognitive dysfunction was caused by the blow to the head at the time of the accident and represented a neurologic dysfunction. This aspect of Dr. Tobe’s opinion was identical to that of Dr. Donald A. Barone, the petitioner’s treating neurologist. Dr. Tobe also was of the opinion that the neurologic disability of the petitioner when combined with her psychiatric disability resulting from the compensable accident, rendered the petitioner totally and permanently disabled. I find that the opinion of Dr. Tobe is supported by all the facts as captioned above.
I also find that the petitioner continues to suffer from a major depression as evidenced by the fact that she still suffers from bouts of crying and experiences occasions where she remains in her house for two to three days at a time while still receiving psychiatric care and medication. Although Dr. Fenichel is of the opinion that the petitioner’s inability to become productive may change at some time in the future, I find that not to be the case especially when one considers the consistent level of the petitioner’s neuropsychiatric status during the past eight years.
If there is one issue on which almost all of the physicians involved in this case agree, it is that it is very difficult to establish a definitive line of demarcation between the neurologic and psychiatric disabilities in this case. Dr. Lidsky testified that depression can have deleterious effects upon neuropsychological abilities. Dr. Fenichel states that there can be an overlap between residuals of organic brain injury and depression. Dr. Tobe also shares that opinion. This court agrees with those statements. For that reason I will not attempt to apportion the petitioner’s compensable neurologic disability from her compensable psychiatric disability. I do find for the reasons stated above that the combination of these two disabilities equates to at least 65% permanent partial total disability. Combining all of the petitioner’s compensable disabilities I find that she represents 100% total disability and that she is, in fact, totally and permanently disabled.
I find that the petitioner’s date of totality to be February 13, 1997, the date of Dr. Richard Rubin’s evaluation in which he opines that she is totally disabled.
This award would entitle the petitioner to 450 weeks of total disability benefits payable at $409 per week for a total of $184,050 less the respondent’s credit for its bona fide payment of permanent disability of $18,600 for a net payment of $165,450.
However, the Social Security Administration has determined that the petitioner was entitled to Social Security Disability benefits beginning November 1, 1994. The 80% A.C.E. was determined to be $2,137.60 and the initial entitlement was $750. Consequently, after applying the Social Security setoff, the respondent’s obligation is to pay 450 weeks of benefits at the rate of $319.36 per week for a total of $143,712 less the bona fide offer of $18,600 for a net payment of $143,712.
The respondent, however, shall pay the initial weekly benefits at the full rate of $409 per week for a sufficient period of time to satisfy the petitioner’s share of counsel fees that I am about to assess and costs that will be assessed upon receipt by the court of the petitioner’s certification of litigation costs.
I will allow a counsel fee payable to petitioner’s attorney of $21,500 of which $8,600 shall be paid by the petitioner and $12,900 shall be paid by the respondent. I assess a stenographic fee of $1,950 to be paid by the respondent.
I direct petitioner’s counsel to forward to the court a certification of trial costs and an original and three copies of a form of Judgment embodying the terms above along with self-addressed stamped envelopes within ten days of the receipt of this decision.
Robert F. Butler
Judge of Compensation
November 21 , 2000