CP# 97-24973 Drost v. General Motors Corporation
State of New Jersey
DEPARTMENT OF LABOR
CHRISTINE TODD WHITMAN, Governor
MEL GELADE , Commissioner
December 3, 1999
Kenneth E. Joel, Esq.
P. O. Box 53
Keyport, N. J. 07735
Anthony Famulari, Esq.
Carpenter, Bennett & Morrissey
100 Mulberry Street
Newark, N.J. 07102-4079
Re: Drost v. General Motors Corporation - C.P. 97-024973
Petitioner has been employed by respondent for over 15 years as an assembly worker in the manufacture of motor vehicles. During the time period that is critical to this claim, i.e.1993 - 1996, he worked as an "end of line" paint inspector in respondent's Linden (N.J.) plant. His weekly wage exceeded $708, entitling him to the maximum disability rates provided under Title 34, N.J.S.A.
The parties have agreed that respondent has paid petitioner the full amount of temporary disability benefits as well as all related and authorized medical bills incurred by petitioner for treatment of his cervical and left shoulder injuries/conditions during the period in question (1993-1997). Respondent however, has, for reasons later set forth, denied responsibility for permanent disability as regards petitioner's neck and left shoulder injuries.
During his period of employment prior to 1993 petitioner worked at various positions on respondent's vehicle assembly line(s). As a result of such employment he filed several claims for workers' compensation and received various permanent disability awards (see Exhibits R-3, -4 and -5) for work-related injuries suffered prior to May 24, 1993, to wit:
(I) 25 % of each hand for carpel tunnel syndrome with bilateral releases,
(ii) 5 % of the left arm for epicondylitis, and
(iii) 20 % partial/total for cervical sprain with a bulge at level C5-6. In each case the awards were based on the residual effects of repetitive assembly line activity
and can be classified as "occupational" rather than "trauma-type" injury(ies). There has been no "stacking" of the petitioner's claims to date.
Since prior to mid 1993 the petitioner has been employed in assembly line positions that do not require the lifting of materials or the physical activity associated with the actual building of vehicles.
Initially he was an "end of line" paint inspector. After he returned to work following left shoulder surgery (April 1997) he bid for and obtained a different position, that of inspection monitor. In this position he inspects parts being used on the line as well as monitoring the manner in which parts are being placed or inserted into the vehicles on the assembly line. However, as counsel noted during the trial, it is the petitioner's activity(ies) while a paint inspector that are the point of interest in this case since he underwent cervical fusion surgery and a left shoulder arthroscopy during the period October 1996 through April 1997.
Petitioner testified that while employed as a paint inspector he normally inspected as many as 400 vehicles per 8 hour shift. Thus the allocated time for each inspecting each vehicle was in the range of 1.2 minutes (72 seconds) per vehicle. His inspection routine for each vehicle called for him to visually inspect the exterior painted portions of the vehicle, which required the opening and closing of all doors, as well as the preparation of brief written notes concerning defects found which he placed inside the vehicle at the completion of the inspection. Petitioner testified that his inspection routine required him to move his neck and head in various directions in the performance of his duties.
Commencing July 1995 through September 1996 petitioner received treatment and physical therapy in response to his complaints of pain and a reduced lack of function with respect to his neck and head. Respondent paid for this treatment as well as for the surgery which followed. During October 1996, after diagnostic testing including an MRI and a myelogram, petitioner underwent a cervical fusion at levels C5, C6 and C7 using bank bone for grafting. The operation followed a series of consultations with Dr. Sweeney, who ultimately performed the cervical fusion procedure.
The medical records presented in evidence in this case reveal that the petitioner presented left shoulder complaints on a continuing basis to Dr. Sweeney throughout 1995 and 1996. Following the above noted cervical fusion, an MRI was taken (Jan. 1997) which indicated a small (left) shoulder effusion as well as findings consistent with a distal supraspinatus and either tendonopathy or a partial rotator cuff tear. Physical therapy was prescribed and petitioner was kept out of work. On April 10, 1997 Dr. Bercik, who had previously treated the petitioner at various times prior to 1993, performed arthroscopic surgery (subacromial decompression) on petitioner's left shoulder for reduction of an impingement syndrome at that joint.
Petitioner's current complaints relate to both his cervical area and his left shoulder as well as the use of his left arm. He testified to a burning sensation in his neck with constant irritation in the front of his neck and a noticeable limitation of head/neck movement. I found him to exhibit a "stiff-necked" posture and that he was unable to turn his head more than 15 degrees to either side (vs. a normal movement of 45 degrees or more). His ability to extend or flex his neck was similarly limited to
roughly one-third of normal. Petitioner also testified to having a constant burning sensation in his left shoulder and stated that he occasionally experienced a "popping" sensation in his left shoulder which caused additional discomfort. I found his ability to raise the upper (bicep) portion of his left arm to be limited to 90 degrees (one half of normal) in abduction and an a greater restriction to apply when he raised his left arm directly to the front. He can no longer shovel snow, is limited as to using a lawn mower and cannot perform tasks which would require him to work with the upper portion of his left arm extended above shoulder level.
Drs. Krengel (pet'r.) and Manowitz (resp.) testified as experts for the purpose of evaluating the extent of petitioner's orthopedic injuries. Dr. Krengel testified that petitioner's neck and left shoulder injuries were directly related to his employment activities as a paint inspector for respondent.
He found significant restriction (more than 25 %) in petitioner's range of motion of both his head and his left shoulder. He recommended a cumulative permanent disability of 75% partial/total, which amounted to a 25 % increase over his last prior examination (at which time he recommended a finding of 50 % partial/total for the cervical area alone).
Dr. Manowitz examined the petitioner during June 1998, roughly 2 months prior to the date of Dr. Krengel's examination. He also had examined the petitioner on a previous occasion at which time he had recommended a permanent disability of 7.5% for the cervical area. Following his 1998 examination he increased this amount to 12.5% and included both the neck and the left shoulder.
Of greater significance, however, is that Dr. Manowitz found no causal relationship between petitioner's cervical condition and/or his left shoulder injury and petitioner's employment with respondent. In his view the petitioner's cervical problem was caused by a single sneeze which occurred in June 1995. Dr. Manowitz termed this a "sudden violent episode" which created a whiplash-type injury. T-7/29/98, pp. 8, 9. He was of the further opinion that the petitioner's admitted left shoulder impingement condition/injury was unaffected by petitioner's use of his left arm and shoulder to open and close several thousand vehicle doors per working week during the period 1993 through 1996. He reasoned that such use of his left hand and arm would not produce the ridge or mass needed to create an impingement syndrome.
It is clear from the above testimony that the critical issue in this case is causal relationship. Both medical experts who testified, as well as the medical records of the operating surgeons, Drs. Bercik (Exh. R-7) and Dr. Sweeney (Exh. R-8), support the fact that petitioner's physical condition deteriorated post 1993 to a point where his treating physicians, including respondent's medical staff, recommended both a cervical fusion and arthroscopic surgery to his left shoulder. While petitioner claims that both conditions (neck and left shoulder), resulted from petitioner's physical activities in the performance of his employment duties for the respondent, the latter denies such causation on the basis that:
I) petitioner's cervical condition had stabilized prior to 1995, as witnessed by the fact that he sought no treatment for this body part during the four (4) year period ending June 1995;
ii) petitioner told Dr. Sweeney, among others, that his neck pain and left arm pain commenced shortly after he had sneezed, during off work hours, with sufficient force that he dropped the cigarette he had been smoking; and
iii) petitioner's left shoulder impingement syndrome symptoms originated after his November 1996 neck surgery.
Respondent's argument conveniently omits, however, the following facts which I find both to have been proven on the record and to be determinative of the issue:
A) the petitioner received two (2) separate permanent disability awards (totaling 20 % partial/total) for cervical injuries during the period 1989-1993. The medical reports and records offered as part of such proceedings indicate that the court accepted the fact that petitioner had a restricted range of motion both in his neck/head and in his left arm/shoulder and that he had a bulging cervical disc. I note in this regard that Dr. Krengel, who examined the petitioner's neck and left shoulder on three (3) different occasions during the period 1989-1999, diagnosed the petitioner as having a herniated disc at level C5-6 as well as a possible bilateral rotator cuff sprain as early as March 1990. Further, Dr. Sweeney's records record the fact that the petitioner complained about his left shoulder on a continuing basis throughout 1995 and 1996; and
B) Though it is true that petitioner's assembly line duties at respondent's Linden (N.J.) plant were significantly changed at some point prior to mid 1993, and that he was no longer required to lift, install or handle heavy parts after he commenced his job as a paint inspector, he nonetheless remained an assembly line worker and was engaged in the visual inspection of roughly 400 cars per 8 hour shift. As noted earlier, this required him to inspect a vehicle and provide written comments as to the exterior paint surface of same within a total period of 72 seconds. During that period he was required to open and shut each of the vehicle's doors and to walk around the vehicle looking for paint blemishes or defects. Petitioner testified that this task required him to twist and bend his head and neck frequently in the course of his inspection work and that he used his left arm (he is left handed) to open and shut each of the vehicle doors. T-2/11/99, p.6. There was no contrary or rebuttal testimony offered by respondent as to petitioner's explanation of the manner in which he carried out his paint inspection duties.
Given the above history, I cannot accept respondent's theory that petitioner's cervical and left shoulder problems as presented to his attending physicians and surgeons during 1995 and 1996 were the result of or otherwise causally related to the single sneeze episode that he related to Dr. Sweeney during an interview which occurred on June 29, 1995. Ciuba v. Irvington Varnish & Insul Co., 27 N.J. 127 (1958) stands for the proposition that to be successful on his claim the petitioner must introduce evidence sufficient in quality to generate belief that the tendered hypothesis (permanent physical disability resulting from orthopedic injury) is in all likelihood the fact. While the evidence presented by the petitioner need not have the attribute of "certainty", it must support or produce a presumption well-founded in reason and logic. The accepted standard of persuasion is that the conclusion sought is "probably based on truth." A bare quantitative preponderance is not enough. "The evidence must be such as to lead a reasonably cautious mind to the given conclusion." Id. p. 140. In the case at hand we have a petitioner who by mid 1993 had been adjudged as permanently disabled to the extent of 20 % partial/total by reason of his cervical injury. Further, as noted above, Dr. Krengel, whose expertise as a qualified evaluator of orthopedic disability has been accepted by the respondent and the court on four (4) separate occasions with respect to petitioner's current and past injuries, diagnosed petitioner as having a herniated cervical disc at level C5-6 as early as March 1990. In addition, the judgment entered by Judge Marinari during May 1993, which increased petitioner's permanent cervical disability to 20 % partial/total, lists a "bulge" at level C5-6 as one of the bases for such increase in permanent disability. The petitioner was thereafter (and prior to June 1995) continuously engaged in paint inspection work involving approximately 400 vehicles per eight (8) hour shift for an additional two (2) year period. He has testified in a credible manner and without contradiction as to his inspection duties and the need to bend and twist his head and neck in the course of such work effort. I reject respondent's argument that a single sneeze in mid June 1995 caused petitioner's cervical problems, which resulted in a fusion which included the very level at which he had been previously found to have at least a bulge and perhaps a herniation. I find that the petitioner has met his burden of proof in this case on the issue of cervical injury being causally related to his employment with the respondent. I am further satisfied that the petitioner has also met his burden of proof as to the compensability of both his cervical and his left shoulder injuries. See Perez v. Pantasote, Inc., 95 N.J. 105 (1984). I note in this regard the decreased range of neck motion that necessarily accompanies a fusion operation as well as the fact that petitioner testified not only to such physical restriction but also to the fact that he could no longer raise the upper (bicep portion) of his left arm above shoulder height. The combination of these physical limitations have restricted his ability out of work as well as on the job and he now hires people to perform home maintenance jobs, e.g. lawn mowing, snow shoveling, that he previously (post 1993) was able to perform. T-2/11/99, pp. 18, 21, 22.
I now want to address various questions raised by counsel after testimony was completed relative to the admission into evidence of various medical records presented by the respondent. To begin with I find the Appellate Division's ruling and reasoning in Gunter v. Fischer Scientific American, 193 N.J. Super. 688 (App. Div. 1984) to be both persuasive and applicable to the issue of whether the treating records of Drs. Bercik (Exh. R-7) and Sweeney (Exh. R-8) are admissible into evidence. Petitioner's counsel presented a series of references in Exhibit R-8 which he sought to have struck or expunged on the theory that they related to statements made by Dr. Sweeney to the effect that, based upon the medical history that he had been given, he found the petitioner's cervical problem(s) to be unrelated to his employment with respondent. I find that Dr. Sweeney's treating records are admissible in full without redaction. I do so on the basis that the Rules of Evidence do not apply to Compensation Court proceedings. N.J.S.A. 34:15-56. As noted in Gunter "hearsay evidence need not be excluded, although the ultimate award must be based upon legally competent evidence." Id. at p. 691. The Gunter court also addressed the admission of medical records such as those represented by Exhibits R-7 and R-8 and noted that the affidavit of an appropriate record keeper or custodian is sufficient for that purpose.
Dr. Sweeney's records, including his statements regarding causation, were presented as the medical records of a treating physician and will be considered as such. Petitioner's counsel had full opportunity to present the petitioner's testimony in rebuttal to any aspect of such physican's records that contained petitioner's statements if he had wished to do so.
I note further at this point that Dr. Sweeney categorized petitioner's 1995 cervical condition as a "new" injury and, based on the fact that petitioner had not sought medical treatment for roughly three (3) years, found it unrelated to petitioner's prior cervical problems. I reject such finding insofar as it negates the causal relationship I find between petitioner's work efforts for respondent and the cervical problems and injury he presented to Dr. Sweeney. It makes no difference whether one views petitioner's cervical injury as of July 1995, when he first visited Dr. Sweeney, as a new injury or as an aggravation of the cervical condition for which he received an award of 20 % partial/total during mid 1993. The fact is that; (I) I find that his cervical condition, both in 1993 and the subsequent change which had taken place by mid 1995, to be causally related to his physical activities as an assembly line worker for respondent, and (ii) any permanent disability award that he will receive for his cervical condition at this time will necessarily include a credit due respondent for the prior (1993) disability finding. I note at this point that, other than petitioner's statement to Dr. Sweeney that he felt cervical pain shortly after sneezing on June 8, 1995, the record in this case is devoid of a single suggestion that the petitioner's cervical problems stem from any other cause than several years of continuous employment as an assembly line worker for respondent.
I also find the left shoulder impingement syndrome suffered by petitioner to be causally related to his employment with respondent during the period in question (1993 through 1996). While I recognize that Dr. Sweeney did not focus on the left shoulder injury until after he had performed the cervical fusion noted earlier, the fact is that the petitioner was diagnosed with left shoulder problems, i.e. capsulitis and rotator cuff sprain, by Dr. Krengel as early as 1990 (see Exh. R-4)
though no award has ever been made for his left shoulder. I note also the following medical history presented by Dr. Bercik's records which are a part of Exhibits R-4 and R-7:
I) The petitioner's complaint (June 1990) as to left shoulder problems, as well as past
episode(s) of left shoulder bursitis are seen as causally related to his work with respondent.
ii) The diagnosis by Dr. Bercik on various dates during 1990 and 1991 of "mild" left shoulder bursitis. In mid 1991 petitioner underwent an MRI of his left shoulder in order "to rule out an impingement syndrome". The report of that test is described as showing no abnormalities. iii) During January 1997 petitioner underwent another MRI of his left shoulder at the direction of Dr. Sweeney following petitioner's cervical fusion operation. The results of such test were found to be consistent with an impingement syndrome and a possible partial tear of the left rotator cuff.
iv) Dr. Bercik performed arthroscopic surgery (subacromial decompression) on petitioner's
left shoulder during April 1997 to reduce the impact of such condition.
Factually, we have a petitioner, employed for more than three (3) continuous years prior to his cervical fusion, in a job in which by his uncontradicted testimony he used his left arm and hand to open and close at least 800 vehicle doors per 8 hour shift (the total number of doors opened and closed per shift corresponds directly to the type of vehicles inspected and could range up to 1,600 if all the latter were 4 door models). Further, as noted above the petitioner complained to Dr. Sweeney in July 1995 (see Exh. R-8) of "aching to his left shoulder and numbness in the left arm". These complaints are included in each of Dr. Sweeney's office visit records for the remainder of 1995 and throughout 1996 to the date of petitioner's cervical fusion procedure in October 1996. It is clear, however, from reviewing such records that Dr. Sweeney's attention was focused on the cervical area and that the petitioner's left shoulder complaints were not directly addressed until they were found to persist after the successful completion of a cervical fusion operation. The surgeon's office note for December 16, 1996 notes his impression of "Possible impingement, left shoulder". The latter dysfunction is then noted on a continuing basis on later visit reports and the petitioner was seen by Dr. Bercik for treatment of his left shoulder problem in January 1997.
Considering the above medical records, as well as the fact that the petitioner neither sought nor received medical treatment for his left shoulder during the two (2) year period (if not more) prior
to July 1995, I find that petitioner's left shoulder impingement syndrome manifested itself during
mid 1995, essentially at the same time as his cervical problem. See T-2/11/99, p. 12. For that reason I find that petitioner's cervical and left shoulder injuries should be stacked for the purpose of determining his permanent disability from the same. In this area I am following the principles and teaching of Poswiatowski v. Standard Chlorine Chem. Co., 96 N.J. 321 (1984) and Kaneh v. Sunshine Biscuts, 321 N. J. Super. 507 (App. Div. 1999). The first of these cases held that multiple injuries arising from the same accident should be "stacked" or added together in determining the applicable award for permanent injury; the second, decided earlier this year, held that given the factual pattern presented in the case before me, stacking should similarly apply to occupational claims. Indeed, the facts before the court in Kaneh closely resemble those in the instant case. Both cases involve injuries to both the cervical and shoulder areas as a result of a worker's repetitive physical activity over an extended period of production or assembly line work. In the course of reaching its decision in Kaneh the Appellate Division (Judge Keefe) found:
I) that, following Poswiatowski, p.323, injuries resulting from the same incident or activity should be treated as they affect the worker, i.e. in a cumulative manner resulting from a single compensable disability within the meaning of N.J.S.A. 34:15-36; and
ii) that a petitioner whose employment activity results in multiple occupational injuries which arise at the same time and are related to each other by the nature of the activity which produced them should be compensated "in the same way that a petitioner is compensated in a single traumatic injury case even though, as in Poswiatowski, the disabilities stemming from the traumatic event may be diagnosed at different times and may be capable of separate assessment." Kaneh, p. 515.
Based upon the foregoing findings of fact and law it is clear that the petitioner has a compensable claim against the respondent. I find his permanent orthopedic disability from the cervical and left shoulder injuries and surgeries which I have addressed in this case to be 45 % partial/total. Thus, his award is: 270 wks. x $ 282 = $ 76,140 less $ 16,104 (credit for prior award) = $ 60,036. This award will be paid at the weekly rate of $ 282 over a period of 212.89 weeks.
In arriving at the foregoing award I have applied the principle set forth in Ventre v. CPC International, Inc., 285 N.J. Super. 567, 572 (App. Div. 1995) that where disability awards are stacked the judge should consider the cumulative effect of the injuries/disabilities considered rather than simply adding up fractional parts.
The following expenses and fees are also approved:
|Provider||Total||Petitioner Share||Respondent Share|
|Dr. Krengel||$ 450||$ 225||$ 225|
|Kenneth Joel, Esq.:|
|$ 411||$ 411||-0-|
|$ 12,000||$ 4,800||$ 7,200|
|J. Trainor, Inc.||$ 300||-0-||$ 300|
I will enter an order incorporating the above stated award, fees and expenses.
Neale F. Hooley
Judge of Compensation