CP# 89-49198; 99-31891; 00-8087 Ezell v. B.J. McGlone
AND WORKFORCE DEVELOPMENT
WORKERS’ COMPENSATION COURT
OCEAN COUNTY DISTRICT
TOMS RIVER, NJ 08753
Claim Petition Numbers
1989-049198, 1999-31891, 2000-8087
By: Andrew M. Smith, JR. SJWC
|Par Wall Finishing
John West, Esq.
30 Columbia TurnpikeFlorham
Park, NJ 07932
Second Injury Fund
On Oct 5, 1995, Judge J. William Boyle approved an order of settlement in CP# 89-49198 which provided that Petitioner James Ezell had a permanent disability of 60 % partial total. The disability resulted from an admitted accident on June 29, 1989 while he was working as a laborer building an addition to Jersey Shore Medical Center, Neptune NJ. While installing insulation at the worksite, he lost his balance and slipped on a sticky chemical substance that had spilled on the surface beneath him. He turned his ankle inward, fell, and suffered a severe injury to his right foot.
Dr. Armand Swaroop was the first treating physician. He apparently gave Petitioner some conservative treatment and then sent him back to work. On December 8, 1989, Dr. Harry Bade, an orthopedic surgeon, took over as Petitioner’s treating doctor. During the next four and a half years, his treatment included orthotics, anti-inflammatory medication, injections, physical therapy and surgeries in June 1990 and January 1992 to fuse bones within the foot and ankle joint. The last time that Dr. Bade saw Petitioner before Judge Boyle approved his settlement was July 18, 1994. The doctor stated in a letter to his then attorney, that Petitioner’s foot had stabilized to the point that he could continue with oral anti inflammatory medication and exercises, and return in six months for a check up. Thereafter, Doctors Tobias and Finnessy, both of whom evaluate disability in workers’ compensation cases, examined Petitioner and estimated that he had significant fixed and measurable disability in his right foot.
Petitioner also developed a reactive depression and post traumatic stress disorder as a result of the lengthy incapacitation resulting from his 1989 foot injury. Dr. Lawrence Eisenstein, a psychiatrist, treated him for two years. He continued to be on two anti-depressant medicines thereafter. Dr. Paul Keill, a psychiatrist who evaluated him, submitted a report (P-2 EV) at the settlement hearing opining that he would require anti-depressant medicines for the rest of his life.
The order of settlement approved by Judge Boyle does not break up percentages of disability allocable to his right statutory foot, to his left leg (subpatellar inflammation that Dr. Bade attributes to overuse syndrome) and to his psychiatric condition. But, I think the approximate disability valuation of each condition can be inferred from a review of the evidence presented to the judge.
Both examining doctors found significant disability in the foot: Dr. Tobias 75%, and Dr. Finnessy 331/3%. Considering the seriousness of the foot injury, along with factors such as the length and type of treatment, and impact of the condition on Petitioner’s working ability and life off the job, I’m almost certain that the figure of 60% of the statutory right foot was agreed upon by the parties as the disability in that member. Considering the fact that Dr. Tobias, examining doctor, found a considerably smaller amount of disability (but nonetheless permanent disability) in the statutory left leg, I believe that the agreed permanency in the left knee would be approximately 12 ½ % of the statutory leg. Under the statutory schedule of weeks allocated to particular percentages of disability for bodily members under our state workers’ compensation law, 60 % of the statutory foot entitles a worker to 138 weeks of permanency benefits, 12 ½ % of the statutory leg entitles a worker to 42 weeks of benefits. Those two amounts when added total180 weeks of benefits. In the order of settlement, Petitioner received 60 % partial total which equals 360 weeks of permanency benefits. The 180 weeks which equals 30% of partial total must then be accounted for. Dr. Paul Keill, Petitioner’s examining psychiatrist whose report was submitted into evidence before Judge Boyle, found Mr. Ezell’s psychiatric disability to be 60% partial total; respondent’s psychiatrist, Dr. Sidney Hodes found 5%. On the back claim, Dr. Tobias (Petitioner’s expert) found 30% and Dr. Finnessy (Respondent’s expert) found 5%. So, I think it reasonable to infer from the context of this award that it encompassed:
60% right foot; 12 ½ % left leg; 20% partial total, psychiatric and
10% partial total low back
Petitioner also recovered money in a third party negligence suit against another contractor responsible for the chemical spill on the Jersey Shore job. Ms. Teague, Respondent McGlone’s attorney, advises me that if additional benefits are due to him in this application for review and modification of Judge Boyle’s award, Respondent would still be entitled to a third party lien credit of 78% because of that recovery. The settlement sheet for the third party case states that the lien on the workers’ compensation case was compromised at $110, 000.00. The meaning of that statement in the settlement sheet was that Petitioner paid $110, 000.00 from the proceeds of his third party case as reimbursement to McGlone for what they had paid him up to that point in benefits. It does not appear to apply to future benefits.
Dr. Bade’s April 11, 1994 treating notes indicate that he recommended that petitioner go back to him in six months for a check up on his foot, but he never did. His next visit to Dr. Bade was nearly two years later on March 22, 1996. At that time, Dr. Bade noted that Petitioner’s surgical fusions were holding up pretty well, but that he’d developed early arthritis in the foot which the doctor found he’d aggravated by excessive overuse. The doctor prescribed an anti-inflammatory medicine, continuation of a weight loss program and a follow up visit in two months.
Petitioner’s next office visit to Dr. Bade was on January 19, 1998. Then, the doctor found that his right foot was swollen and tender upon palpation of the calcaneal cuboid and tavonavicular joints; x-rays demonstrated arthritic changes in these joints. He prescribed a supportive figure eight ankle brace, an arch support, four to six weeks of physical therapy and more anti-inflammatory medication and a pain killer. Petitioner returned for a follow up visit on February 23, 1998. Then, the doctor noted that there was improvement in his symptoms and reduction in his pain after physical therapy. He prescribed a continuation of the physical therapy, and medications. He also recommended additional physical therapy treatments for back pain (without specifying what caused the back problem.)
Petitioner did not return to Dr. Bade for any more treatment until November 2, 1998. Meanwhile, he attempted to re-enter the job market. He testified that he got an OK to return to work from Dr. Bade in May 1998. He then went to his union hall and requested a job where he could work without putting too much strain on his foot. They sent him to work for Par Wall as a painter. His job started on May 21, 1998. As a painter, he did lighter work than he’d done as a laborer. But, he still had to stand all day and he had to climb ladders. One day, he had to work 20 hours and stated: “my foot was killing me afterwards.” On July 31, 1998, he stopped working at Par Wall. He testified that, the more he worked there, the worse his foot pain and discomfort became. But, he also stated in response to a question on cross-examination that he stopped working on that date to go on vacation. He stated that, when his vacation was over, his foot bothered him too much to return to work.
Petitioner further stated that when he left Par Wall, he wanted more treatment from Dr. Bade, but had difficulty obtaining authorization for it from an insurance company. I heard a motion for medical and temporary on this issue. On March 12, 2003 I decided that motion. He had commenced treatment with Dr. Bade on November 2, 1998. I found that Par Wall was responsible for treatment to his foot from that date until May 13, 1999, the day of his release from treatment. My reasons are stated on the stenographic record of the court proceeding of March 12, 2003.
I note that Petitioner’s attorney requests a 25% penalty for unpaid temporary disability benefits against Par Wall under NJSA 34:15-28.1. I reserved decision on that point after the medical and temporary motion. Reviewing the record and having considered the subsequent evidence and legal argument, I am not satisfied that this is the kind of case where it would serve the interests of justice to award that penalty. Firstly, this is an occupational claim for medical and temporary on a case where the exposure occurred in 1998, but the case wasn’t filed until 2000; and then, only after a case for a subsequent accident had been filed. Secondly, I find no evidence of factors such as bad faith or undue diligence in Respondent Par Wall’s denial of this claim, and in requiring Petitioner to litigate it. There wasn’t any specific accident here, and it’s not clear when Par Wall had notice of Petitioner’s occupational claim. The penalty is denied.
There were no evaluations by examining doctors (as opposed to treating doctors) between the time Petitioner finished treatment and he began working for the Trenton Board of Education on June 28, 1999. Nor is there really any other kind proof that would allow me to fix permanent disability as a result of this occupational exposure. There were no such exams until after he suffered his new accident at the Trenton Board. He had been released from treatment for the same; therefore, it is impossible for me to fix such disability. Thus, I award no permanent disability against Par Wall.
Regarding the reopener of CP# 1989-49198, the only evidence of further liability for treatment by McGlone after the settlement before Judge Boyle is the reference, in Dr.Bade’s July 11, 1999 report, to treatment visits on March 22, 1996, January 19, 1998, and February 23, 1998. Dr. Bade testified that Petitioner’s foot and ankle didn’t get appreciably worse until after he started with Par Wall. He explained the effect that the excessive walking, ladder climbing, etc. there had on him.
Respondent McGlone is directed to pay 22% (because of the sec. 40 lien) of the cost of medical benefits and any other treatment which may have arisen therefrom, and/or any other treatment that may have been rendered to Petitioner’s foot and ankle prior to May 15, 1998 for the condition resulting from his June 28,1989 injury. McGlone must also pay for 22% of any psychiatric medications that Petitioner may need. Petitioner’s attorney will provide proof of the amount and status of such bills. I make no award of any further temporary or permanent benefits against McGlone.
McGlone also made a voluntary offer of $3,500.00 in temporary benefits to Petitioner. Because McGlone does not owe him any further temporary or permanent benefits it is entitled to reimbursement for that amount minus 22% of any medical bills for which it might be responsible. I direct that this reimbursement be accomplished by Trenton Board of Education deducting $3,500.00 from any permanency award which might be owed to Petitioner, and paying the same to McGlone before sending the balance to Petitioner.
CP# 1999-31891 alleges that on June 28, 1999, Petitioner began working for Trenton Board of Education as a painter. On that same day, while attempting to load a scaffold on, he stepped upon the tailgate of a pick up truck. His foot buckled and he fell off and injured the right foot again. He notified his boss, but he continued working. He may have gotten some initial treatment at a clinic or at an emergency room. The record just isn’t clear on this point. About July 7, 1999, his foot hurt him so much and he had so much trouble walking that he stopped working and sought medical treatment. Respondent at first appears to have denied the accident. Petitioner sought treatment for his foot from Dr. Bade. The Board of Education wouldn’t OK the treatment. At first, they denied that there was any accident. Then, a motion for Medical and Temporary was filed. Respondent answered it by saying that, if there was a minor event on June 28, 1999, it wasn’t enough to have materially changed the condition of the foot.
Petitioner made a motion for medical and temporary against the Trenton Board of Education. A conference was held before Judge Shteir. Some treatment was begun as a result of that conference. Trenton Board sent Petitioner to Dr. Ronald Glick of Lawrence Orthopedics in Lawrenceville, NJ. Dr. Glick gave him some treatment and sent Respondent a report on October 1, 1999 which said that there was really nothing more wrong with his right foot than existed previous to June 28, 1999. He discharged Petitioner from treatment as of October 1, 1999.
Petitioner got another lawyer and filed a new motion for medical and temporary. Judge Hooley took his testimony on October 28, 1999. During the pendency of that motion, Judge Hooley heard the testimony of Doctor Glick and Dr. Bade. In February 2000, Judge Hooley entered an order providing that Dr. Glick would continue as the treating doctor, but Dr. Bade would provide a plan of treatment to guide Dr. Glick in his treatment. Dr. Glick recommended a third fusion surgery on Petitioner’s foot. Respondent designated Dr. Stuart Levine of University Orthopedics, New Brunswick as the surgeon. Petitioner was quite hesitant about whether he wanted to have Dr. Levine do it. He preferred Dr. Bade. The Board made a motion to terminate temporary benefits. Judge Shteir heard that motion on December 20, 2000 and terminated temporary as of that date. His order further provided that temporary would resume once treatment (e.g. surgery) started again. Dr. Levine performed the surgery on January 22, 2001.
Petitioner filed a new motion for medical and temporary against Respondents Par Wall and Trenton Board of Education. That case came before me. As a result of that hearing, I entered two interim orders. The first directed Par Wall to pay $14,531.00 in temporary benefits, with the balance to abide final hearing. The second one provided that Trenton Board of Education pay temporary benefits until June 20, 2002.
The remaining question for decision is the nature and extent of any additional permanent disability that Petitioner may now have which would be attributable to his original injury at McGlone and/or his June 1999 accident at the Trenton Board of Education and/or a combination of either these two with non-work related factors.
I have already stated that there isn’t enough evidence in the record to allow me to fix permanent disability against Par Wall. Similarly, the evidence against McGlone on the re-opener is rather scanty. Petitioner’s foot seemed to have been reasonably stable between 1995 when he received his compensation award from McGlone and May 1998 when he began working at Par Wall. Dr. Bade, who had treated him for eight years, thought that Mr. Ezell needed a lot more frequent and more intensive treatment for his foot after his two months at Par Wall. That fact persuades me that all the walking, climbing and standing that he did there stirred up his problem. I’m satisfied that he wouldn’t have needed this treatment, but for his job activity there at that time. Therefore, responsibility for treatment and temporary disability as a result of the 1998 Par Wall exposure should rest with Par Wall alone and not with McGlone.
But should McGlone be responsible for any increase in permanent disability in Mr. Ezell’s case? To answer that question, I think we would have to look at how the concept of causation is understood and applied in Workers’ Compensation Law. It is well settled that if a workplace injury to a material degree (i.e.; is to a degree significantly greater than de minimis) aggravates or exacerbates an underlying condition, then responsibility for such fact lies with the employer where the event or accident which aggravated the condition occurred. It should be remembered that the concept of fault is not applicable in Workers’ Compensation Law. Nor are most other tort concepts such as proximate cause, forseeability, etc.
The right to benefits is strictly contractual, arising out of the contract of employment. The issue that we really deal with in the Workers’ Compensation system is not whether the employer is responsible for a worker’s injury because of a breach of some duty. Rather the key test is whether the injury or illness occurred in circumstances where the worker would be deemed eligible for workers compensation benefits. The threshold question for that determination is whether the worker’s accident or illness “arose out of” or “occurred during the course of employment.” See: NJSA 34:15-7
It is well settled in our law that if a worker suffers an injury which might be inconsequential to a healthy person, but such injury aggravates and worsens an existing, underlying condition that was produced by an earlier accident, that worker is as much eligible for worker’s compensation benefits as if the entire condition had been caused solely by the last, aggravating accident. The only qualification to that proposition is the employer’s right under NJSA 34: 15-12 d. to a credit on permanent disability when the extent of previous functional loss can be proven.
Respondent Trenton Board of Education argues in its trial brief that it would be inequitable to burden it with the cost of additional permanent disability for Mr. Ezell in a situation such as this one, where the clear source of his foot problem was the injury that he suffered with McGlone and the injury on its jobsite merely aggravated that injury.
Dr. McClure testified that the June 1999 accident amounted to little more than an innocent aggravation of Petitioner’s foot condition. That testimony initially seemed persuasive. It is certainly true that the prime sources of the pathology in Mr. Ezell’s right foot were his genetic structural predisposition to it and the 1989 injury at McGlone. But, if there is increased disability here, does our worker’s compensation act impose responsibility for it upon McGlone or upon the Trenton Board?
Wexler v. Lambrecht Foods 64 NJ Super 489 (App. Div., 1960) states at p.500:
“An employer takes his employees with their physical defects or disabilities, and where a pre-existing disease or condition is caused to become active or flare up and injury results therefrom, the same is compensable, and it is not necessary that the accident be shown to be the sole contributing cause of the resulting disability of the employee…..
The act nowhere either in terms or purpose, embodies the common law concept of proximate causation; on the contrary, it is enough that employment is a contributory cause”….
Arthur Larson in Workers Compensation Law, sec 5-90 discusses a concept which he calls “the full responsibility rule” where successive accidents cause injury to the same part of the body. The gist of that rule is that, in the absence of specific legislation to the contrary, the entire disability flowing from the last accident rests with the last employer, even if the disability is produced by a combination of the disability from last accident with disability from earlier accidents. Larson notes that this rule applies not only to temporary disability, but also to permanent partial disability.
Applying the “full responsibility rule” to this case, it would appear that any responsibility for permanent disability that Petitioner might have after the June 28, 1999 accident would lie with the Trenton Board, provided that he can show that the accident on that date contributed to a material degree to any additional permanent disability which Petitioner Ezell might have at the present time. Let us look at the evidence on this point.
Doctor’s McClure’s testimony indicates that Petitioner’s June 28, 1999 injury was merely a minor flare up, an innocent aggravation that left him with no further permanent disability. But, Dr. Ronald Glick of Lawrence Orthopedics whom Respondent Trenton Board had assigned as his treating doctor took a different view in the conclusion of his report of September 27, 1999 :
“therefore I feel he may have aggravated the ankle and subtalar region as a result of the traumatic episode of June 28, 1999.”
On July 12, 1999, Petitioner also went back to see Dr. Harry Bade who had treated him over the course of ten years. Albeit, Trenton Board never authorized this treatment by Dr. Bade. Nevertheless, it is hard to argue Dr. Bade didn’t know him better than any other orthopedic physician. Dr. Bade testified before Judge Hooley on February 9, 2000. He stated that when he examined Petitioner on July 12, 1999 he found pain over the lateral ankle (where there previously wasn’t such pain), problems with weight bearing, plantar pain, swelling, and decreased ankle motion. Petitioner’s counsel posed the following question to him:
Q. By the way, did you feel that the problem that you found him to be suffering from at the time was related to this fall from the loading dock?
A. There’s a direct relation to his fall from the loading dock.
Dr. Stuart Levine an orthopedic surgeon with University Orthopedics, New Brunswick, NJ examined Petitioner on March 30, 2000. He eventually performed a third fusion surgery on Petitioner in January 2001 and also a fourth surgery in July 2001 to remove the hardware that he had inserted to stabilize the fusion. Dr. Levine’s initial examination report of March 30, 2000 notes that he had “specific pain in the right lateral ankle region, specifically the sinus tarsi” and “the increased swelling that progressed during the course of time of the exam.” He also noted that pain in Petitioner’s foot made it impossible for him to engage in much activity and he recommended the surgery to relieve this pain.
Petitioner did eventually undergo two surgical procedures by Dr. Levine in 2001. The first was for the triple fusion and the second to remove metal hardware that had been implanted to hold the fusion in place. It is well settled in our law that a surgical change, almost anywhere in the body, constitutes something like a disability per se because it alters or compromises the natural structure of the body in order to compensate for a physical condition.
So, I am satisfied that Petitioner has additional permanent disability from the June 28, 1999 accident. Applying the “but for” test to the facts of this case, I’m satisfied that
Mr. Ezell’s right foot would not be as bad as it is today if it weren’t for the fact that he fell on it on that date and further injured it. I find that this fall was to a material degree a factor which aggravated Petitioner’s right foot condition to the point that the permanent disability therein has increased. Therefore, I am satisfied that Trenton Board, as the employer where this accident occurred, bears legal responsibility for this additional permanent disability.
I am satisfied from the evidence before me that Petitioner’s right foot has gotten worse since he had the June 28, 1999 injury at the Trenton Board. I conclude that Petitioner now has an even more severe disability in his right foot. He can’t bear much weight on it. His ability to move it is even further restricted because more articular surfaces therein have been altered surgically. Despite four surgeries, he continues to suffer pain. It is doubtful he will ever be able to work again as a painter, or a spackler or do any kind of labor that requires him to stand very long, climb, lift or bear much weight on his right foot.
I’ve considered the testimony and reports of the evaluating doctors who testified. There is agreement among them that Petitioner’s disability has gotten worse since the last permanency hearing before Judge Boyle in 1995. The experts have rendered different estimates of the extent to which they believe that the disability in Petitioner’s right foot has increased. I realize that all these estimates are merely guidelines for me and that I have to make my own independent determination of the Petitioner, based on my impression of the testimony and other evidence, and my experience in evaluating disabilities as they impact upon the Petitioner as a total occupational unit. Considering all the evidence, I find that the disability in his statutory right foot has increased from 60% to 90% as a result of his June 28, 1999 accident at the Trenton Board.
Petitioner further claims that he has additional psychiatric disability as well as more disability in his leg and back resulting from this accident. I find the evidence of further disability in these areas is conflicting at best. I note that in 1995 his examining psychiatrist, Dr. Paul Kiell, found a psychiatric disability of 60% partial total. Nine years later Dr. Lawrence Eisenstein came to court and testified, on the Petitioner’s behalf, that he now finds a psychiatric disability of 37 1/2% partial total. Regarding the right leg, Dr. Tobias found atrophy there in 1994, based upon the fact that the circumference of the left calf was 16 inches and that of the right calf was only 15 ¼ inches. Dr. Krengel testified in 2004 that in his most recent exam, he found the circumference of both calves to be 16 inches. Regarding the back, the Petitioner told Dr. Finnessy, who examined for the Respondent in 1994, that he had injured his back in a 1992 non-work related car accident. Dr. Finnessy found disability there of 5 % of total in the low back, but his report appears to attribute it to the 1992 car accident and not the 1989 injury at McGlone. From what I can discern about the McGlone settlement, the back disability mentioned therein must have been based upon a compromise by counsel estimating what probably existed there prior to Petitioner’s 1992 injury. No evidence in this proceeding convinces me that Petitioner has any additional back disability than was agreed upon by counsel in the McGlone settlement.
Petitioner argues that he is now totally and permanently disabled within the meaning of NJSA 34:15-36 under the odd lot doctrine.
The elements of odd lot are set forth in the cases of Germain v. Cool Rite Corp, 70 NJ 1 (1976) and Barbato v. Alsan Masonry, 64 NJ 514 (1974). The doctrine can be summarized as follows:
If a worker would not ordinarily be totally disabled as the result of an injury, but a
pre-existing non-medical factor combines with permanent partial disability to render the worker incapable of return to gainful employment, then the worker can be considered in the position of an “odd lot” in the labor market, and on that basis can be granted total disability benefits.
NJSA 34:15-36 limits the application of odd lot to cases where permanent partial impairment is at least 75% of partial total. The relevant section thereof provides:
“Factors other than physical or neuropsychiatric impairments may be considered in the determination of permanent total disability, where such physical and neuropsychiatric impairments constitute at least 75% or higher of total disability”
Larson in Workers’ Compensation Law; secs. 83.04 & 83.05 notes that the most common situations that constitute odd lot are: mental incapacity, illiteracy or inadequate education, and inability to understand English.
While Dr. Krengel did testify that he thought that Petitioner was totally disabled, his testimony didn’t convince me that he was. That statement was really only a net opinion. From testimony that I heard and other evidence which I considered, I ‘m not satisfied that he presently has physical disability in any other place besides his statutory right foot. Mr. Provder, the vocational expert, was the only other witness who found Petitioner totally disabled; but his conclusion was really predicated on a combination of his foot injury with a non medical factor.
Petitioner starts with prior disability of 60% partial total against McGlone. Now, under this award, he has 90% disability of the right foot (with a prior credit of 60% of the right foot) against Trenton Board. He certainly isn’t total on a medical basis alone. Nor does he appear totally disabled. He is a healthy looking gentleman who appears to be in his late thirties or early forties. He looks quite robust, except for his limping and favoring his right foot. Although he presently lives in Cedar Grove, Alabama (more than 1000 miles from New Jersey), he was able to travel here to be present at court hearings on approximately a dozen occasions in the past year.
Mr. Provder testified that Mr. Ezell’s departure from high school in the ninth grade was evidence of mental handicap that prevented his obtaining the kinds of sedentary employment that he would be able to perform if he had better mental skills. I am just not satisfied from observing Mr. Ezell in the Courtroom on the numerous times that hearings were scheduled that his analysis is accurate. I heard him testify on two or three occasions. He did not comport himself or behave like a person of inferior intellectual ability. To the contrary, he seemed to understand exactly what was going on at all times. He came across as knowledgeable. He was articulate. He also appeared quite confident and self- assured. He impressed me as anything but a person who was slow or dim witted. He didn’t seem to have any difficulty with abstract thinking. Indeed, he impressed me as a person who was quite intelligent. The following excerpt of his testimony from the trial transcript illustrates this point:
Q. What did you think this meant, this settlement? What did it mean to you?
A. It was agreed upon—that is the reason why I settled that case. And specifically I said that I needed to make sure that there was no future liens in the future because my other lawyer was Ken Chamlin. And Ken Chamlin said if you settle this case, make sure the other party doesn’t have a lien against you because you may need another surgery later.
The Court: Okay. What did Mr. Curnow tell you about – (the settlement)
The Witness: Mr. Curnow didn’t have anything to do with it, your Honor, because me and the Judge went in and had the conference. No one else was present. He took me into the chambers. We called PMA directly. He went out in the courtroom got their number from one of the people who was out there representing them. He came back in, he called their office. He -- and he made it clear to them, Mr. Ezell is willing—if I can get them to settle this case, will you be willing to take a cut? I’m going to get Mr. Drazin to take a cut. Mr. Ezell doesn’t want any further liens because he may need a future surgery.
PMA agreed to take $110,000 for their settlement and we weren’t on the record. And he said it on the record that PMA, do you agree to take $110,000 for settlement of lien, very clearly. If he wouldn’t have said that, I wouldn’t have signed off on anything. It says in the transcript. And he didn’t say would you take the settlement.
The Court: Okay. I got the picture
The Witness: It states it on the thing.
The Court: Okay.
Q. Mr. Ezell, also, I understand that PMA had made a voluntary offer—voluntary tender to you at some point; is that correct?
Q. And how much was that, do you know? when they made that offer?
A. Yeah, they got the credit back already because PMA after they made an offer, we went back into court. That is when Par Wall was brought in and Judge Hooley said to me PMA has already made an offer.
Ms. Teague: Objection.
The Court: All right.
The Witness: He made the offer and what he said was that PMA is not responsible for all of your time you have been out of work. When you went to work for Par Wall, PMA only has to pay you for these six or eight weeks that you were out which comes to the balance of money they have already given you, so that you already got your payment from them. And that’s when they brought Mr. West in. I know clearly what he told me.
Mr. Provder, the vocational expert, testified that he administered what he called the “wide range achievement test” to Mr. Ezell and that he scored a reading level of a third or fourth grader. Donna Kolsky, a vocational expert, who testified for the Second Injury Fund administered the same tests to him and found that the results were in the normal range. Based upon my personal observations and impressions of Mr. Ezell, I give greater weight to what I heard from Ms. Kolsky. I accept and adopt her findings and her conclusions.
Petitioner James Ezell does not fall into the odd lot category.
STATEMENT OF AWARD
CP# 89-49198: (McGlone):
- The claim for additional permanent disability is dismissed
- The claim for additional temporary disability is dismissed
- If there are any outstanding bills for anti-depressant medications which Respondent has not paid, or for which Petitioner has not been reimbursed, it shall pay 22% of said amount due.
- Respondent shall be reimbursed by co-respondent Trenton Board of Education for the $3500 voluntary payment that it made to Petitioner. The Trenton Board of Education shall deduct this amount from any permanent disability that it owes Petitioner.
- Temporary disability as paid is deemed adequate.
- There is no award of permanent disability
- Respondent shall pay all unpaid medicals up until June 28, 1999
- Motion for penalty under NJSA 34:15-28.1 is denied.
CP# 1999-31891 (Trenton Board of Education)
- Temporary disability as paid is deemed adequate.
- Respondent is responsible for all authorized medical treatment after June 28, 1999.
- Petitioner is awarded a disability of 90% of the statutory right foot equaling 207 weeks x $252.00/week = $ 52,164.00 - $ 22,044.00(representing 60% of statutory right foot at 138 weeks x $159.73/week) = $30,120.00
- Respondent shall deduct $3,500 from this permanent disability award and pay to Co-Respondent as reimbursement on the voluntary payment to which it is entitled to be repaid by the Petitioner.
- Petitioner’s attorney is awarded a counsel fee of $6,024, payable $2,400 by Petitioner and $3,624 by Respondent.
- Petitioner’s attorney shall be reimbursed for all expert witnesses and transcripts one half by Petitioner and one half by Respondent.
- Petitioner shall reimburse his attorney for all other costs.
Petitioner’s attorney has advised me by letter that she is contacting Medicare/ Medicaid to determine what bills, if any, it may have paid. If there is any bill for any treatment that has been either authorized or directed to be paid by this Court, which was instead paid by Medicare/Medicaid, the respondent responsible for this cost will reimburse Medicare.
The steno fee to State Shorthand Reporting service for 14 hearing dates is $2,100 to be divided equally among the three Respondents. Petitioner’s Attorney will please submit an order on CP# 1999-31891 and Respondent’s Attorneys for Par Wall and McGlone will please submit an order for CP# 2000-8087 and 1989-49198.
ANDREW M. SMITH, JR. SJWC
August 27, 2004
 There is reference in the record to a lawsuit against Dr.Swaroop for some sort of malpractice. I am unfamiliar with the details of that litigation; nor am I sure that he ever recovered anything for it.
 Letter dated July 11, 1999 from Dr. Bade to Richard Marcolus, Esq synopsizing his treatment notes.
 But, Dr Bade did testify that Petitioner had scheduled appointments with his office for March and April 1998, but didn’t keep them. The doctor also testified that Petitioner did, in the meantime, get treatment from associates of Dr. Bade at Monmouth Medical Center Orthopedic Clinic.
 Larson in his treatise-Workers Compensation Law, sec 3.01 to 3.06 notes that this statutory language, used in the laws of 47 states means that, if the employment, even in a very remote or unlikely way exposes the worker to the risk of an injury, that the worker is eligible to recover benefits as a result thereof
 This rule in New Jersey would, of course, be subject to NJSA 34:15-12 d.
 It is clear from the context that they mean the tail of the pickup truck
 I’m not sure who sent him to Dr. Levine. Most likely either Dr. Glick or someone at the Trenton Board had referred him.
 While Respondent McGlone did not address the issue at trial, it could have moved under NJSA 34:15-27 for a reduction in the amount of his permanent partial disability on the prior award. While no motion was made or proofs offered in this regard, I suspect that McGlone could have met some success if it had moved to reduce the amount of the prior award.