CP# 94-38805 Freuler v. Macy’s
DEPARTMENT OF LABOR
DIVISION OF WORKERS' COMPENSATION
SOMERSET COUNTY/ESSEX COUNTY DISTRICT
DECISION OF THE COURT
HONORABLE FRED H. KUMPF
Judge of Compensation
GOLDEN, ROTHSCHILD, SPAGNOLA
LUNDELL & LEVITT, ESQS.
By: ROBERT N. GOLDEN, ESQ.
Attorney for the Petitioner
MICHALS, WAHL, SILVER & LEITNER, ESQS.
By: STEPHEN FIRSICHBAUM, ESQ.
Attorney for the Respondent
COOPER, PERSKIE, APRIL, NIEDELMAN,WAGENHEIM & LEVENSON, ESQS.
By: KENNETH J. SYLVESTER, ESQ.
Attorney for the Respondent
ROTELLA & SORIANO, ESQS.
By: JOSEPH SORIANO, ESQ.
Attorney for the Respondent
This decision is in the matter of Frances Freuler v. Macy's, Claim Petition number 94-038805. This is a claim for Workers' Compensation benefits arising out of an admitted accident of April 25, 1994. Petitioner was paid his full salary for lost time from work until November 1994. Medical bills were paid until October or November of 1994. This matter was then the subject matter of a Motion for Medical and Temporary Disability Benefits. In that Motion the petitioner sought psychiatric, neurological, psychological and orthopedic treatments. The court decided the Motion on February 5, 1997. I incorporate by reference the previous opinion of the court on the Motion for Medical and Temporary Disability Benefits. An Order was entered pursuant to the courts decision on February 26, 1997 requiring the respondent to provide all necessary and related orthopedic treatment including, but not limited to, physical therapy and potential epidural injections recommended by Dr. Stephen Schneider. The Order provided further that "Respondent shall immediately provide a complete multidisciplinary workup at the Neurological Institute at Columbia Presbyterian Medical Center or the University of Pennsylvania Medical Center to ascertain whether petitioner's symptoms referred to on page 12 of the written decision and which include hematuria, fecal incontinence, giving way of petitioner's legs, have a physiological or psychiatric basis which is related to the accident in question." Respondent was also directed to immediately provide both "psychotherapy and psychiatric treatment as recommended by both Dr. Gordon and Dr. Rubin." The Order further directed the authorized treating physician to be Dr. Thomas Nordstrom for the orthopedic treatment and Dr. Sorvino for the psychiatric treatment. No appeal was taken of this decision on the Motion For Medical and Temporary Disability Benefits. I make the following findings of fact.
The petitioner has a tenth-grade education. He began his working life as a dishwasher at age 17, when his father became disabled and could no longer work. He worked at a gas station for 21 years as a mechanic. When petitioner worked at the gas station he was sent to school to learn how to do mechanic work. When the gas station was sold, he worked for ten years at Somerset Tire. During the ten years at Somerset Tire the petitioner taught students at Somerset Vocational Technical School how to do front-end work and how to tune up cars. The students worked one-half day with the petitioner and then would go to school the other half of the day. Petitioner then went to work at Bonnie Brae School as a mechanic working on school buses and repairing and maintaining grass-cutting equipment. The petitioner worked on vans, buses and tractors as a mechanic at Bonnie Brae.
The petitioner then worked for the respondent Macys for a period of eight years as a back-of-the-house manager at the Macys store at Bridgewater Commons. In the back of the house the petitioner was in charge of the stockrooms for the store. At the time of the injury petitioner had 26 people working under him. He had no problem interacting with these people. He was in charge of Macys on the weekends. Every day he had to make decisions concerning his back-of-the-house manager position. Petitioner was earning $17 an hour at the time of his injury working up to 80 hours a week.
On April 25, 1994 the petitioner bent over to pick up a garment bag. As he was standing up, he was struck in the back of the neck by a bar approximately three or four feet long filled with clothes weighing 45 to 50 pounds, which fell about eight feet. The petitioner fell to his knees. Other people ran over and helped him up after the incident. Petitioner was given ice by a co-employee to place on his neck and was taken to Priority Medical Care. The petitioner was treated by Dr. Miller, an orthopedist, who diagnosed a severe cervical contusion and strain. The doctor provided the petitioner with anti-inflammatory medication. Petitioner began an aggressive physical therapy at the Spine Center in Raritan to try to increase the range of motion of the neck. X-rays were taken which were normal. Petitioner improved somewhat with the aggressive physical therapy and was given a tentative return-to-work date of July 18, 1994.
On July 15, 1994 the petitioner was reevaluated by Dr. Miller. The doctor's history indicated that petitioner had a setback with a return of throbbing pain in the back of the neck which occurred with an increase in activity. The doctor's diagnostic impression was chronic cervical strain and sprain with annular tear. The doctor recommended an M.R.I. of the cervical spine which was obtained in July or August and which revealed no evidence of any focal disc herniation or significant stenosis. There was mild degenerative disc disease at C4-C5 and C5-C6 with mild neural foraminal narrowing bilaterally at C5-C6. The clinical impression was cervical spondylosis.
On August 2, 1994 Dr. Miller felt petitioner had plateaued in terms of recovery from the injury. He recommended a series of cervical epidural injections, which were to be performed at Somerset Medical Center. Following completion of these injections, petitioner was to be given a work-conditioning program. The cervical epidural injections did not relieve the petitioner's symptoms in the neck. Following the attempt at the injections, Dr. Miller felt petitioner had plateaued by September 19, 1994. A short period of three weeks of chiropractic treatment was attempted to try and deal with petitioner's pain. Petitioner was also started on a medication called Taren. By October 17, 1994 Dr. Miller felt petitioner reached the maximum benefit of medical treatment. He recommended that petitioner return to work with strict restriction of no lifting and limited walking. Petitioner was discharged to return on an as-needed basis.
When petitioner returned to work at Macys in October 1994, he had lost his junior management job and benefits, which he had prior to the injury. Macys created a new job for him looking for safety violations. The petitioner would work and be paid for only two to three hours a day. While he was working he was feeling nauseous. His hand would lock up and he would have pain in the neck shooting up to his head. He wore a neck brace while he was working.
Petitioner returned to see Dr. Miller on November 29, 1994 because of intolerable pain in the neck while walking. Dr. Miller found decreased rotation of the neck to the right and limitation of side bending of the neck to the right. Dr. Miller indicated the petitioner had reached the maximum benefit of conservative care and recommended the petitioner apply for long-term disability as it appeared to the doctor that petitioner was only able to do sedentary work. Dr. Miller also suggested an evaluation by Dr. James Dwyer, his associate. Dr. Dwyer examined the petitioner on December 6, 1994 but did not provide any treatment.
Petitioner continued to work in light-duty capacity for Macys for approximately four to five months. He was experiencing pain shooting up his head which felt like he had a great weight on his shoulders. He continued to wear a neck brace at work. Eventually he was called into the office and was told his job performance was poor and he was taking too much time off from work. Petitioner was then laid off because he was unable to do the job. The petitioner was terminated at Macys because he was unable to do the job due to physical limitations from the injury. Every job at Macys included some lifting which the petitioner was unable to do. Petitioner then received unemployment benefits.
Petitioner sought more treatment after being laid off by calling Erica at Macy’s Human Services Department. She indicated to him that she would get back to him but apparently this never happened. When no one called petitioner, he went to see his own doctor, Dr. Cohen. Unemployment also referred the petitioner for rehabilitation. Petitioner went to New Jersey Rehabilitation where he was sent for psychotherapy with Dr. Allen Stewart Gordon, a clinical psychologist, with a doctorate in education and counseling.
Dr. Gordon saw the petitioner first on May 10, 1995. The history taken was that petitioner had a tenth-grade education and went to work when his father was injured. The history continued that petitioner was out of work for six months after being struck by a bar from a clothes rack on the back of the neck. Petitioner was in the process of standing up when the bar fell approximately eight feet striking him on the back of the neck. He then worked until March 1995 when the employer determined that he could no longer perform his responsibilities. Dr. Gordon's psychological assessment of the petitioner on May 10, 1995 was that petitioner had an I.Q. of 81. He was reading on a third-grade level, spelling on a fourth-grade level and performing arithmetic on a fifth-grade level. In manual dexterity he was functioning at a seven percentile with the right hand and ten percentile with the left hand, which the doctor indicated was 13% considering both hands. The petitioner’s dexterity was poor. The clinical evaluation determined that petitioner had underlying emotional problems with depression with loss of concentration, weakness and feeling of frustration and irritability. He had concern of the future with difficulty planning and difficulty making decisions. The doctor recommended petitioner receive individual psychotherapy for his depression and feelings of worthlessness and low esteem. Petitioner had ten sessions with Dr. Gordon. By the end of these sessions the petitioner was worse. He was very tearful and appeared to be full of frustration. Dr. Gordon's diagnosis was major depression. He felt petitioner was severely depressed and needed more psychotherapy.
As a result, a Motion for Medical and Temporary was filed by petitioner and heard by the court. The court ordered psychiatric treatment in the form of psychotherapy and medication to deal with petitioner's depression. The court also ordered additional therapy and epidural injections if the physical therapy was unsuccessful. The court further determined that petitioner was in need of treatment for a thoracic outlet syndrome which was found to be causally related to the compensable accident. In addition the court determined that petitioner was in need of a thorough workup, which the court ordered be performed at Neurological Institute at Columbia Presbyterian Medical Center or the University of Pennsylvania Medical Center in order to determine whether the petitioner's symptoms of hematuria, fecal incontinence, and giving way of his legs were related to the injury to the head. An Order was entered on February 26, 1997 directing this medical treatment.
At the trial of this matter, which began on April 1, 1998, the parties stipulated that the only issues were some outstanding medical bills and the permanent disability causally related to the accident. At the April 1, 1998 hearing, the court first learned that the petitioner had only been seen by Dr. Ronald Sorvino the psychiatrist, for examination on two occasions on May 13, 1997 and October 13, 1997 essentially for evaluation for permanent disability. Petitioner was seen by Dr. Ronald Brisman, a neurosurgeon at the Neurological Institute in New York City on June 11, 1997 on one occasion since the Order for medical treatment of February 26, 1997. The petitioner did receive physical therapy prescribed by Dr. Nordstrom and epidural injections when the physical therapy was unsuccessful. Petitioner did not receive treatment for a thoracic outlet syndrome, which the court found to be causally related to the accident. The petitioner did not receive individual psychotherapy for his depression as recommended by the psychologist who treated the petitioner and which was ordered by the court. The petitioner also did not receive the multidisciplinary workup at the Columbia Presbyterian Hospital or University of Pennsylvania Hospital in order to determine whether other symptoms that petitioner sustained were caused by the accident.
Petitioner saw Dr. Thomas J. Nordstrom on April 29, 1997. The records provided to Dr. Nordstrom included information that petitioner had seen Dr. Kasoff the neurosurgeon in February 1997 who thought that there was nothing to treat and that petitioner had reached the maximum benefit of medical treatment. Dr. Nordstrom concluded that petitioner had developed a dystrophic syndrome or disuse atrophy syndrome. There was limited motion of the neck of about 10º to the left and 10º to the right. There was forward flexion of only 10º and extension of 10º which reproduced stiffness in the neck. Dr. Nordstrom felt petitioner had developed a chronic cervical strain/sprain syndrome. The doctor also felt petitioner had underlying spondylosis with degenerative arthritis in the neck documented by the M.R.I. He felt there was a very strong psychological component. Dr. Nordstrom was unable to explain the petitioner's leg pain, right knee instability or the hand stiffness and locking. Dr. Nordstrom felt petitioner was in need of further treatment. He thought petitioner needed psychological support and a good home exercise program. The doctor indicated petitioner needed a myelogram, for the cervical through lumbar spine and a cervical CT Scan post-myelogram. The doctor also felt it may be worth a short term, two to three weeks, of physical therapy at the Spine and Orthopedic Center to try to mobilize the neck.
Petitioner underwent a cervical myelogram and a post-myelogram CT Scan on May 20, 1997, which were essentially normal in the cervical area. Petitioner was last seen by Dr. Nordstrom on May 28, 1997. The doctor felt there was not much else that could be done by him. He agreed with the petitioner's attempt to get psychological support and a consult at Columbia. He did not feel that petitioner was a candidate for surgery. The doctor also cannot find any objective reason for petitioner's persistent pain.
The bill for the myelogram and post-myelogram CT Scan ordered by Dr. Nordstrom was not paid by the workers’ compensation carrier. The court was informed eventually on May 8, 2000 that these bills were paid by the workers’ compensation insurance carrier (hereinafter carrier).
Dr. Sorvino's report dated May 16, 1997 indicated that he saw the petitioner for a reexamination on May 13, 1997. Dr. Sorvino took a history from petitioner and reviewed medical reports including a report of Dr. Ira Kasoff dated March 4, 1997 who diagnosed chronic cervical sprain. That report was not placed into evidence and it is not clear when Dr. Kasoff actually saw the petitioner. Dr. Sorvino's excerpts from Dr. Kasoff's report indicated that Dr. Kasoff made a diagnosis of chronic cervical sprain with a presentation by the petitioner that the doctor felt was hugely out of proportion to the injuries sustained. It is not clear exactly what Dr. Kasoff viewed as the injury that was sustained. Dr. Kasoff felt petitioner was at maximum medical status and no further treatment or diagnostic tests would be productive. He felt petitioner should be gainfully employed without restrictions. Dr. Kasoff also believed that petitioner was having some sort form of emotional overlay in response to his injury.
The history taken by Dr. Sorvino on May 13, 1997 also indicated that petitioner was under the care of Dr. Nordstrom who recommended further workup because of ongoing symptoms including clutching up with both hands, left neck pains like a toothache and restricted range of motion of the neck. Petitioner was scheduled to have a CT Scan and myelogram at Somerset Hospital. He was also to go to Columbia Presbyterian Hospital for another neurological consultation. Petitioner was taking Motrin and Tylenol.
Dr. Sorvino's impression in May 1997 was that no psychiatric treatment was needed at that time. This differed from his opinion in May 1996 that petitioner was desperately in need of ongoing neurological and psychiatric help. If the coming workup in 1997 was within normal limits then the doctor felt further diagnostic testing could be considered such as an intravenous Amytal interview to evaluate any emotional overlay. If that failed, the use of Tegretol or Baclofen could be tried. The doctor felt because of petitioner's chronic pain the medications might be of some help. He felt the petitioner did not need psychiatric treatment as he was getting on with his life. The report by Dr. Sorvino indicates that he was intended only to do an evaluation of the petitioner and not treat the petitioner. Medications, which Dr. Sorvino had recommended to relieve the petitioner’s pain, were never provided to the petitioner.
On June 11, 1997 petitioner was seen by Dr. Ronald Brisman, a neurosurgeon at the Neurological Institute in New York City. The petitioner's head was tilted a little to the right and the chin turned a little to the left. There was marked limitation of motion of the neck in all directions. Petitioner was able to move his head slightly which seemed to increase the discomfort in the cervical region on the right side. The doctor described the post-myelogram CT Scan as showing the tilt of the head to the right side. Dr. Brisman felt the petitioner's discomfort in the neck represented a torticollis. He felt the entire syndrome might possibly reflect some dystonic problem. He felt the fecal incontinence and urinary system problems would best be directed under the supervision of a urologist. The doctor referred the petitioner to a neurologist in the movement disorders group led by Dr. Stanley Fahn for the diagnosis of the torticollis and dystonia. The doctor felt physical therapy was an option for treatment although this had been done for a few months with questionable results. The two neurosurgical options were spinal cord stimulation or intraspinal infusion with either morphine or Baclofen. These were not curative but might provide significant relief of the petitioner's symptoms according to Dr. Brisman.
No additional treatment was arranged for petitioner pursuant to Dr. Brisman's recommendations. Dr. Brisman's report was received by the Workers' Compensation carrier on June 19, 1997. It was not provided to the court until April 1, 1998 when the hearing began for permanent disability.
The court was confronted on April 1, 1998 with the apparent failure of respondent to comply with the Order of February 26, 1997 for the multidisciplinary work-up at Neurological Institute of Columbia Presbyterian Medical Center or the University of Pennsylvania Medical Center. Dr. Brisman saw petitioner on June 11, 1997 and his report was dated the same date. It was received by the carrier on June 19, 1997. The doctor recommended that petitioner see a neurologist in their movement disorders group led by Dr. Stanley Fahn. Dr. Brisman also referred the petitioner to a urologist for some of the symptoms, for which the court had ordered an evaluation to find their cause. By the time of the hearing on April 1, 1998 there had been no referrals to a urologist or to a neurologist with Dr. Fahn. Dr. Brisman’s report was not provided to petitioner's counsel until the date of the hearing on April 1, 1998. The respondent also failed to provide the petitioner with actual neuropsychiatric treatment pursuant to the Order of February 26, 1997.
Due to the failure of the employer to provide the treatment pursuant to the Order of February 26, 1997 and their failure to follow up with the appropriate treatment recommended by the physicians which petitioner did see since the time of that Order, the court entered an Order dated April 8, 1998 providing that the respondent immediately comply with the Order of February 26, 1997 to provide psychiatric treatment and the ongoing multidisciplinary evaluation to try to determine the cause for the petitioner's symptoms specifically providing the referral to the movement disorders group led by Dr. Stanley Fahn at Columbia Presbyterian Hospital.
On May 20, 1998 the respondent changed attorneys. The substitution of attorney for the respondent was filed on May 22, 1998. The response of the Workers' Compensation carrier to the Order of the court was to dismiss their attorney. The respondent changed attorneys on a second occasion during the trial of this matter. The substitution was filed on April 1, 1999.
The petitioner saw Dr. Elan Louis from the Movement Disorders group at Columbia Presbyterian Hospital on June 29, 1998. The report of Dr. Louis dated June 29, 1998 was placed into evidence in this matter. The physical examination of the petitioner revealed five/five strength in all extremities although he had prominent give-way weakness in both the right arm and the left leg. The petitioner had severe limitation of range of motion of the neck due to pain. He was unable to flex his neck and touch his chin only being able to move his neck 10º or 15º. He was unable to move his neck in the rightward direction or tilt it to the right. However, he was able to turn it leftward about 30º. He had diminished shoulder shrug on the right due to pain. There was no hypertrophy or tightening of any of the neck muscles including the sternocleidomastoid muscles, the trapezius muscles or the scalene muscles. There was no shoulder elevation and no dystonia visible.
The doctor reviewed a one-minute video tape segment taken on June 24, 1998 showing petitioner leaving his house with his wife and driving his car. The doctor felt it was remarkable that during the segment he was able, on several occasions, to turn his head to the right as well as to the left with what seemed a complete range of motion.
The doctor's impression based upon his physical examination was that there was no evidence of dystonia clinically either in the form of muscle tightening or hypertrophy. The doctor indicated that the video taped segment revealed that petitioner had excellent range of motion at times. There was no finding of any neurological abnormalities with the exception of a few beats of clonus bilaterally at both ankles. The doctor did not see any neurological abnormalities that could explain his complaints and difficulties using his right hand or his left leg giving way or his fecal incontinence. The doctor did see evidence that petitioner could have a psychological problem either a conversion disorder or malingering. What led the doctor to this conclusion was the give-way weakness on examination, the seemingly normal videotape and the prominent pain without any physical abnormalities.
The doctor indicated there was an entity of acute onset posttraumatic dystonia. He did not think that the petitioner had this because the patients with that condition have shoulder elevation, which the petitioner did not have, and they have dystonia, which the petitioner did not have. Dr. Elan Louis recommended that the petitioner see a psychiatrist who had expertise in the evaluation of diagnoses of psychiatrically induced movement disorders. He indicated that Dr. Daniel Williams who works with the movement disorder group frequently at Columbia had extensive experience in this area and would be very helpful in terms of further elucidating the psychiatric issues. Secondly, the doctor felt an E.M.G. of the neck muscle would definitively rule out the possibility that there were any subclinical dystonic muscular contractions that the doctor did not see on the physical examination. Following that evaluation a report dated the day of the exam was sent to the carrier on June 29, 1998. There was no referral by the carrier to Dr. Williams.
By August 1998 the respondent's carrier had still not complied with the Orders of the court for treatment. The respondent scheduled the petitioner for two E.M.G. tests following his examination with Dr. Louis. The petitioner failed to appear for those E.M.G.’s scheduled in New York City because it would have meant that he had to miss work. The petitioner requested that the examinations be scheduled on weekends when he was not scheduled to work and the carrier did not do this. The petitioner was concerned about losing the only job he felt capable of performing. He, therefore, opted to continue with the trial of the matter on the issues originally presented to the court on April 1, 1998.
Following the injury, petitioner was out of work for approximately 2½ years. The petitioner began working again around 1996 for approximately six months as a security guard at Rickels earning $7.50 per hour. At Rickels the petitioner had difficulty looking up at the mirrors for long periods of time to try to catch people stealing. Petitioner also had difficulty standing for long periods of time and walking around the store to look for shoplifters. When petitioner was on his feet all day, he would feel pressure on the back of his neck and become nauseous. He was told he was not catching enough thieves so they could not use him.
On July 12, 1996 he began working for Wells Fargo as a security guard working out of Ortho earning $7.50 an hour initially. He now is receiving $8.25 per hour with raises. When the petitioner first went to the Ortho building he was required to walk around the building to reach the various locations where he was required to activate a key as a security guard. The building was on three levels and required climbing stairs in order to complete a tour that took about an hour. After an incident when petitioner fell down three stairs when his leg gave out while walking down the stairs, he was moved to a smaller building at Ortho Pharmaceutical where he sits at a desk and inspects people coming in and out of the building. The petitioner also logs in visitors to the building. He works eight hours a day, five days a week. The petitioner indicated there were some days when he could not make it into work because he feels pressure which is like a weight on both of his shoulders and in the middle of the neck.
At the time of petitioner's testimony on April 1, 1998, he was holding his head tilted to the right due to pain in the middle of his neck. The petitioner indicated his head was tilted to the right because, "that's the way its always been" since the injury. If he tries to straighten his head he gets terrific pains that go down his neck and extend to his shoulder blades. At times he becomes nauseous from the pain. At the end of the day he sometimes has to put a soft brace on his neck in order to relieve the pain in his neck. He wears the brace for his neck occasionally at home to relieve the pressure on the neck. He was unable to straighten up his head or move it to the right or the left. At times he has to stop activities in order to lay down and rest his neck because of the pain. He can not sit for long periods of time. He has less power in the right hand. He cannot lift a five-pound bag of sugar in his right hand. He has to lift it with his left hand. He was unable to throw a ball around with his right arm. He was unable to do the physical job he was doing at Macys such as lifting TVs and heavy rugs. Petitioner also complained that the fingers of his right hand at the distal interphalangeal joints lock at times when he is using a computer. This happens with both hands, but mostly on the right. The petitioner at times has to open his fingers manually.
The injuries affected petitioner mentally. He feels "real bad" about his condition. The petitioner has had emotional reactions to his physical limitations and to not being able to do the activities he was able to do before. He is worrying about keeping his job. This has caused him to have difficulty sleeping. He tosses and turns worrying about his next day and worrying about his ability to keep his job.
On May 8, 2000 the petitioner testified that his condition was basically unchanged, however, he normally was holding his head less tilted to the right. He continued to have difficulty turning his head both to the left and to the right. The second and third fingers of the right hand also continued to lock up when he used a computer.
The petitioner presented the testimony of Dr. Armand Ruderman, an expert in the area of family practice and industrial medicine who performed an orthopedic evaluation of petitioner on April 4, 1995 and August 26, 1997. Examination of the petitioner in 1995 indicated the vertebral column to be vertical, and the shoulders horizontal. There was a partial obliteration of the cervical curvature. There was a decrease in active motion of the cervical spine of 50% in all directions caused by pain and tightness of the back of the neck. Percussion caused severe pain and withdrawal in the area of the right trapezius. Palpation and digital pressure revealed pain at C6, C7, and T1 and into the root of the right trapezius muscle. Based upon his evaluation, Dr. Ruderman diagnosed severe contusion and fibroligamentous sprain and strain of the cervical spine and right trapezius muscle. The doctor estimated a permanent partial disability of 35% of the partial total.
The doctor again examined the petitioner on August 26, 1997. In the interim history petitioner indicated that in April 1996 he saw Dr. Stephen Schneider, an orthopedic physician. Dr. Schneider reviewed x-rays and felt that petitioner might have some sympathetic dystrophy in the cervical spine. He recommended intensive physical therapy and anti-inflammatory medications. The intensive physical therapy was performed at Hillsborough Physical Therapy and petitioner was then released. Petitioner was then working what the doctor described as a secretarial-type job approximately. Dr. Ruderman had reports from Dr. Schneider, Dr. Gordon and Dr. Nordstrom. During the examination petitioner was sitting with his head tilted to the right 20º which petitioner could not correct at the time. Petitioner’s body was also tilted to the right. Inspection of the cervical spine revealed the vertebral column to be vertical. The shoulders were not horizontal. The patient revealed aching and pain from C6 to T1, deep into the right trapezius muscle and across the crest of the right shoulder. Percussion of this area caused pain and withdrawal. Active motion of the cervical spine showed the head remained tilted to the right 20º. The doctor was unable to correct this with any additional lateral flexion to the left. Lateral flexion to the right increased the angle another 5º. Anterior and posterior flexion were limited to approximately 10º. All these motions caused severe pain throughout the neck. Petitioner had a great deal of difficulty performing simultaneous flexion and extension of the shoulders with marked pain. Abduction of the right shoulder was limited to only 100º and the other motions were relatively full but painful.
Dr. Ruderman arrived at a diagnosis of fibroligamentous and muscular sprain and strain of the cervical spine, right trapezius muscle and the crest of the right shoulder. There was also fixation of the right trapezius muscle resulting in marked immobility of the head. The doctor estimated a permanent disability of 45% of partial total. The doctor indicated that petitioner had preexisting degenerative disease at C4-C5 and C5-C6 with narrowing of the foramen at C5-C6. The doctor opined that petitioner sustained a sprain or strain of the cervical spine and the right trapezius muscle due to the accident. He felt that the trauma aggravated the preexisting degenerative problem in the neck making it symptomatic. The doctor indicated that there was no disability associated with the degenerative changes of the neck, as they were asymptomatic until the time of the injury. At the time of his testimony the doctor increased his estimate of disability to 55% of partial total due to the compensable accident. The doctor’s increased estimate of disability from 45% to 55% of partial total was because of the increasing presence of torticollis of the neck. The objective findings in the neck were the spasm of the neck on palpation and obliteration of the cervical curvature. The doctor indicated that the tilting of the petitioner's head was an objective finding because he was able to push on the head to attempt to make it erect and was not resisted by the petitioner. The doctor broke down his estimate of disability at 12½% for the right shoulder and the remainder of the disability for the neck.
The petitioner also presented the testimony of Dr. Richard Rubin, an expert in the area of neurology and psychiatry who examined the petitioner on three occasions on January 25, 1995, June 26, 1996 and July 24, 1997. The evaluation of the petitioner on January 25, 1995 revealed that petitioner was obviously stiff in the cervical area. He looked rather tense and depressed stating that he was very worried about being able to work or being able to keep his job at Macys which required heavy exertion that he was no longer able to perform adequately. He complained of stiffness in the neck and paresthesias in the hands when he raised his arms or hands such as to wash his hair or take something off a shelf. So he restricted these activities to avoid further discomfort. He was fearful of lifting or pulling because this caused more occipital pain radiating around the head above the ears bilaterally. Sleep was impaired due to cervical discomfort and at times he had to sleep in a chair in order to relieve the pain.
From the psychological standpoint petitioner’s main concern was fear of exertion that could cause him to have more pain and lose his job. Consequently, these thoughts reinforced his pattern of avoidance of exertion. There was marked tenderness over the occipital area with radiating pain. The neck was rather stiff but even within that restricted motion the doctor found the petitioner had bilateral thoracic outlet syndrome with reduction of the radial pulse and onset of paresthesias in each hand on the contralateral rotation of the head with inspiration. The petitioner indicated that no one else had put him through the maneuvers that Dr. Rubin had to elicit the paresthesias of the hands. Based upon this evaluation, Dr. Rubin concluded that the petitioner had cervical radiculitis, brachial plexopathy, thoracic outlet syndrome, occipital neuralgia and an adjustment disorder with phobic features. The doctor concluded that the petitioner had subjective complaints of occipital neuralgia following a blow to the occiput, which was reproducible on pressure during examination, which made the subjective complaints objective evidence of an occipital neuralgia. He estimated a permanent partial disability of 12½% of partial total neurologically. The doctor felt that the petitioner's headaches were due to a combination of occipital neuralgia and cervical spasm. The doctor noted petitioner had a bilateral positive Adson's test. For the cervical radiculitis, the doctor estimated a neurological permanent partial disability of 22½% of partial total. The doctor also indicated based upon his professional analysis of the overall picture the petitioner had painful injuries leading to significant neuropsychiatric reaction. The phobia he indicated was anticipatory avoidance behavior. He noted that petitioner had objective evidence of a painful injury aggravated by exertion, which reinforced his fears of exertion and consequently restricted his working ability and conduct of the normal pursuits of life. Dr. Rubin estimated a permanent partial disability of 25% of the partial total neuropsychiatrically, which he felt was not overlapping any neurological or orthopedic disabilities.
The June 26, 1996 neuropsychiatric evaluation of the petitioner revealed the petitioner to be extremely uncomfortable and stiff. He turned his whole body rather than turning his neck. He was not wearing a cervical collar, which he tried to avoid wearing when he goes out in public because he felt he was making a spectacle of himself. He indicated it looks like, "I want to people to pity me or do me a favor and I don't want that. I don't wear it because it attracts attention." He still wore the collar around the house because it relieved some of the tension in his neck. Dr. Rubin indicated that petitioner still had the problem of paresthesias in his hands when he raised his arms over his head which was virtually identical to what was present when he last examined the petitioner in 1995. The doctor indicated that petitioner was fearful about raising his hands such as to wash hair or pull on a T-shirt because this causes an acute onset of paresthesias in the hands, which was very frightening to him. These same symptoms appeared when he was driving a car as well.
The content of consciousness seemed to indicate morbid depressive preoccupation with his loss of ability to function and work as well as the objective behavior deficits in the conduct of life due to phobic avoidance behavior. The Adson's sign of thoracic outlet syndrome was still markedly positive on the right causing the petitioner to wince and gasp when he was put through the movement. When the doctor tried to raise petitioner's left arm there was a loud pop, which was quite audible, which came either from his shoulder or cervical area and which literally took the petitioner's breath away. Petitioner had to pause to regain his composure. There was atrophy in the medial and lateral aspect of the right hand, which conformed to the ulnar distribution, which arises from the posterior branch of the brachial plexus.
The doctor diagnosed cervical radiculitis-radiculopathy, thoracic outlet syndrome or brachioplexy, occipital neuralgia, adjustment disorder with mixed emotional features and depressed mood. The doctor indicated that petitioner presented objective findings that led the doctor to conclude that only surgery would be the appropriate therapeutic intervention for the petitioner. Progressive atrophy was certainly an indication for surgery. Muscle spasm was part of the process of denervation leading to the atrophy. The doctor suggested petitioner go to treatment at a hand rehabilitation center for the thoracic outlet syndrome surgery and suggested that petitioner see Dr. Jerome Bednar. The doctor indicated the surgery was not going to reduce his permanent disability but hopefully would stop the problem from getting any worse. The doctor increased his estimate of neurological disability by an additional 10% of the partial total for the cervical radiculopathy and brachioplexy. The doctor apportioned the disability for the bilateral radiculitis at the time of his 1996 evaluation as 21¼% on the right and 11¼% on the left.
The doctor further indicated that the progressive deterioration was not making petitioner very happy nor increasing his aptitude for exerting himself. In fact petitioner experienced further typical denervation from the injury, which made the petitioner more apprehensive and more depressed. So the doctor increased his estimate of the neuropsychiatric impairment by an additional 10% to 35% of partial total.
At the time of the July 24, 1997 evaluation of the petitioner, Dr. Rubin was aware of the history of treatment by Dr. Nordstrom of Somerset Orthopedics although he did not have the cervical myelogram results. He was also aware of the evaluation by Dr. Briscoe. The petitioner indicated to Dr. Rubin that there was some discussion of surgery, but petitioner was afraid of stopping work to have surgery fearing that would cause him to lose his job. The petitioner, therefore, did not want to have surgery because of risk of losing his present job as a security guard. The neuropsychiatric evaluation revealed the petitioner to be alert and cooperative but very depressed looking. He spoke in a low monotone voice with immobilized faces. There was little or no eye contact with petitioner’s head in a position of right torticollis. He looked stiff and leaned his entire body to the right. During the interview the doctor attempted to gently put him back in a vertical position and correct the torticollis, but his head went back to the right again. Petitioner kept his arms close to his body. He indicated he had difficulty putting on his clothing because this exacerbated his stiffness and pain and electrical feelings in the arms and hands. He indicated he felt less uncomfortable when he kept his arms close to his body. Sleep was impaired due to stiffness and pain in the neck, which radiated into the hands and he felt better if he was propped up with pillows. He indicated it was impossible for him to lie flat. He continued to have muscle spasm and admitted to feeling more and more depressed. He could hardly force himself to keep working, but he had a family to support. He feels that as long as he can put on his clothing and get to work he is going to force himself to do so. He indicated that he had reduced his activity, which was kept to a minimum. His pace had also been reduced. His ability to complete tasks in a timely manner had been substantially reduced as well. He became dependent on his wife and adult daughter who lives in the household with petitioner. His daughter is doing the chores around the house, which embarrasses him and causes him to feel even more depressed. He noted that he was being deprived of up-to-date anti-arthritis medications and merely took over-the-counter medication for pain such as Tylenol. The Adson's sign of thoracic outlet syndrome could not be obtained because of much resistance, tremor and apparently muscle spasm. Petitioner's range of motion was limited by his resistance to examination and complaints causing the doctor to desist with no conclusion. There was clearly observable atrophy at the medial and lateral aspect of the right hand compared with the left conforming to the C8 dermatome. There was hypesthesia over the entire right side of the face, neck, shoulder and arm, chest, right arm and hand in a glove hypesthesia compared to the left, which was normal.
The doctor felt it was quite clear from speaking to him that petitioner had fear of spine surgery. He was afraid that he might become paralyzed or die from the surgery. Consequently, he is avoiding considering surgery.
Dr. Rubin arrived at a diagnosis of cervical radiculitis and radiculopathy, thoracic outlet syndrome with brachial plexopathy, occipital neuralgia, and adjustment disorder with mixed emotional features. Based on this examination the doctor felt petitioner had basically the same orthopedic, neurological and neuropsychiatric impairments due to the accident of April 24, 1994. The doctor indicated that the pop he had heard was an adhesion from petitioner's not raising his arm due to disuse and splinting to protect himself from additional pain. The doctor noted that the tilt of the petitioner's head was first noticed at the time of his second examination of petitioner. The doctor indicated that the atrophy in the hand was the result of the denervation due to the thoracic outlet syndrome.
The doctor felt petitioner had an overall neuropsychiatric impairment of 50% of total. From a psychiatric standpoint, petitioner was worse and had developed a conversion reaction where emotional distress is converted into physical findings known as a somatoform disorder. This is simply defined in the glossary of American Psychiatric Association as psychiatric impairment, which mimics a neurological impairment. The first time the doctor examined petitioner he was wearing a cervical collar. At the time of the second examination the petitioner indicated it was embarrassing to wear the collar. This, the doctor felt, was probably the beginning of petitioner's conversion reaction.
Videotapes were taken of the petitioner prior to the testimony of the petitioner's two doctors, Dr. Rubin and Dr. Ruderman. The respondent, however, never informed petitioner’s attorney or the court about the existence of the videotapes even after the petitioner completed his testimony. Petitioner was observed over six days, a total of 25½ hours. Over that period of time approximately 20 minutes of videotape were taken. One minute and ten seconds was taken on June 24, 1998. Eight minutes of tape were taken on July 30, 1998, which mostly showed petitioner walking and driving his vehicle. On July 9, some 10 or 11 minutes of videotape were taken, in much of which it was difficult to see the petitioner's actual movements. These were taken over 11 hours of viewing of the petitioner and mostly consisted of petitioner on the job doing his work as a security guard. These tapes show the petitioner driving in his car by himself. He is turning his head in both the right and left directions. It is difficult; however, to tell the degree to which he is moving his upper body when he turns his head. There is certainly more movement of the neck, however, than petitioner demonstrated when he testified.
Once the existence of the videotape was revealed, these tapes were reviewed by Dr. Rubin and Dr. Ruderman who issued supplemental reports which were submitted into evidence. Dr. Ruderman reviewed the 20-minute surveillance tape, which was taken about ten months after the doctor's examination of the petitioner. The doctor indicated the petitioner was able to hold his head somewhat straighter than when petitioner was examined by the doctor. Dr. Ruderman did not believe the tape contradicted his findings and observations at the time of his evaluations, including the pain in the neck and the shoulder or the marked loss of motion of the right shoulder. Dr. Ruderman felt that the petitioner's head was tilted slightly to the right when he came out of work on June 24, 1998. Petitioner never elevated his arm above 45º. On July 9 petitioner sat with his head tilted slightly to the right. There was no flexure of the head to the left although the petitioner was able to rotate the head to the left. The videotape did show somewhat of an improvement in turning of the petitioner’s head to the left. Petitioner had complained about having difficulty driving, but seemed to be able to drive moderately well in the film. On July 9 the petitioner was able to move his head slightly better and his head seemed relatively straight. The doctor concluded that petitioner from the video tapes at least on most occasions could hold his head somewhat straighter. The film did nothing to contradict the doctor's findings of the pain in the neck and in the shoulder. The tapes also did not contraindicate the marked loss of range of motion in the right shoulder. The tape did indicate that there was some better movement on the left. Dr. Ruderman did not believe that the videotape changed in any way the opinions that he had expressed earlier concerning the petitioner's disability.
Following Dr. Rubin's testimony he was able to observe the videotape of petitioner taken before the doctor's testimony. Dr. Rubin noted that the videotapes did not show the petitioner raise his arms over his head. Dr. Rubin felt that petitioner was guarding his right upper extremity and keeping it close to his body. He noted further that the atrophy of the right hand compared to the left is not something within the petitioner's complaints and the absence of the pulse when he raised his hands was not something that petitioner could fake. He noted petitioner had a strong Adson's sign on the right in July 1997 indicating a vascular thoracic outlet syndrome. The doctor concluded that this videotape, therefore, did not change his opinion.
Additional records were supplied to Dr. Rubin who indicated that these were compatible with his own diagnostic categories of impairment or opinion of causality of the disabilities. The doctor continued to estimate a permanent partial disability of 32½% partial total for the cervical radiculitis and radiculopathy and thoracic outlet syndrome and of 12½% partial total for the occipital neuralgia. The doctor also continued his estimate of the permanent partial psychiatric disability at 50% partial total. The doctor concluded these neurological and neuropsychiatric residuals were caused by the accident when he was struck in the back of the neck and head by the bar of clothing.
Respondent presented the testimony of Dr. Arthur Canario, an expert in the area of orthopedic surgery, who saw the petitioner on two occasions on September 6, 1996 and October 20, 1997. The physical examination by Dr. Canario revealed that petitioner had a marked restrictive range of motion of the neck. Petitioner hardly moved the neck in any plane of flexion, extension, lateral bending or rotation saying it was stiff. There were no reflex changes of the biceps, triceps or brachial radialis. There was neither atrophy nor any sensory loss. On the right side there was somewhat decreased grip strength when compared to the opposite side. The patient was also tested for a thoracic outlet syndrome. The patient had no signs of thoracic outlet syndrome nor were there any changes in skin texture, increased sweating, discoloration or stiffness of either the shoulder, elbow, wrist or any joint to the four fingers and the thumb. The doctor looked for a thoracic outlet syndrome but he could find no symptoms of that diagnosis which does not usually cause stiffness in the cervical spine. The doctor was aware of a normal E.M.G., a normal M.R.I. and x-rays showing mild spondylosis of the neck. The doctor also performed an x-ray due to the rigidity of the neck. There were no significant findings except some mild changes between C4-C5 and C5-C6. The doctor reviewed a report from Dr. Schneider who felt petitioner had some type of sympathetic dystrophy concerning the cervical spine. Dr. Canario objected strongly to the use of this catchall phrase "reflex sympathetic dystrophy" to an undiagnosed loss of motion in petitioner's cervical spine. Dr. Canario felt that the reflex sympathetic dystrophy was a very specific entity with specific complaints and findings none of which petitioner exhibited.
Dr. Canario was at a complete loss in an orthopedic sense to explain petitioner's symptoms. His only suggestion was to refer petitioner to a rheumatologist to see if he had some underlying systemic disease such as ankylosing spondylitis that had not yet manifested itself. The doctor indicated that such a diagnosis could not be related to petitioner's work injury. The doctor believed that there was a psychologic component to the petitioner's symptoms, which he deferred to a psychiatrist. He suggested a permanent partial disability of 2% of partial total.
The 1997 examination of the petitioner by Dr. Canario showed the petitioner walking and holding his head in a tilted position as if he had torticollis toward the right side. Petitioner was asked to perform range of motion of the cervical spine. He did not move his neck in any plane. There were no reflex changes of the biceps, triceps or brachial radialis. Petitioner complained of numbness on the entire right side of his body in a non-anatomical pattern including the upper and lower extremities. He had generalized tenderness. There was no spasm. He could elevate both arms above his head, which did not produce thoracic outlet-type symptoms. He had tenderness to palpation of the shoulder in a circumferential manner and not in a specific anatomic site. Petitioner refused to perform range of motion testing of the lumbosacral spine complaining it was painful. Yet when distracted, his motion improved dramatically as did the torticollis in the cervical spine. Straight leg raising was painful though when distracted sitting over the examining table, the knees could be fully extended to 90º of straight leg raising and it was painless. There were no reflex changes and no motor changes in the lower extremities.
The doctor concluded that the examination in 1997 was as inconsistent as the examination in 1996. Petitioner had many complaints but little in the way of objective findings. He was unaware of the opinion of the doctor at the Columbia Presbyterian Hospital. The doctor was aware of the CT Scan of the lumbosacral and cervical spine, which he understood to be unremarkable. The myelogram was done which was also unremarkable. Again, the doctor estimated a permanent partial disability of 2% of the partial total for soft-tissue injury to the neck. His diagnosis was a chronic cervical strain and sprain. The two percent (2%) the doctor indicated was based on subjective complaints of the petitioner. The doctor felt that petitioner was voluntarily holding the neck in a tilted position in 1997.
The doctor was able to see the video taken of petitioner. He noted that in the video the petitioner was not tilting his head to the right as he presented himself in 1997. So the doctor did not think the 2% disability was appropriate because of the stark contrast between what appeared on the videotape and how petitioner presented himself at the time of the 1997 examination. Yet he continued his diagnosis and estimate of 2% of partial total for soft-tissue injury to the neck. The petitioner did not complain of the lower back to Dr. Canario. The doctor, therefore, found no permanent disability to the lower back. The doctor indicated that the numbness on the right side of petitioner's body was not anatomical in nature. The doctor did not test the petitioner's grip strength in 1997 although he was aware that the petitioner stated his grip strength was worse. Dr. Canario again felt that petitioner should be evaluated by a psychiatrist.
The respondent also presented the testimony of Dr. Melvin Vigman, who is Board-Certified in the area of Neurology and Psychiatry as a neurologist and who examined the petitioner on November 19, 1998. Dr. Vigman reviewed the reports of Dr. Ronald Brisman, at the Neurological Institute in June 1997, of Dr. Arthur Canario, of Dr. Elan Louis, of Dr. Richard Rubin, of Dr. Armand Ruderman and of Dr. Ronald Sorvino. Dr. Vigman's evaluation of the petitioner revealed he appeared to be tense although there was no overt emotional distress. Examination showed him to be alert, oriented and coherent. Petitioner's neck was held tilted to the right on a constant basis. Any attempt to move his neck caused pain, which was felt in the lower part of the neck. There was normal upper extremity strength, coordination, sensation and reflexes. There was full eye movements and full facial movement. Petitioner had normal lower extremity strength, coordination, senses and reflexes. His gait was normal.
The doctor’s impression was that there was no neurological disease. Dr. Vigman indicated that he could not see a basis for any neurological diagnosis. There was no evidence of occipital neuralgia, brachial-plexus dysfunction, cervical radiculopathy or thoracic outlet syndrome. Dr. Vigman indicated that petitioner's neck pain would have to be considered a mystery at this point but there was no objective neurological abnormality. Dr. Vigman felt there was no diagnosis of dystonia because Dr. Louis' conclusion was that petitioner did not have dystonia. Dr. Vigman further testified that he had never heard of a person having both cervical radiculitis and a brachial plexopathy. The symptoms and findings for both these diagnoses the doctor had never seen together in a patient. Radiculopathy would be a posttraumatic nerve root injury. The doctor indicated concerning the cervical radiculitis or radiculopathy that this would involve an inflammation of the cervical nerve root with pain and numbness in a specific pattern of that root. One would see loss of sensation, motor and reflex changes, which were present in the petitioner. The doctor felt there must be a traction injury to cause plexopathy, which was not present here. The doctor felt that petitioner did not have a neurological thoracic outlet syndrome, but he did not test for a vascular thoracic outlet syndrome. A torticollis involves both the tilting and a twisting of the neck or dystonia in the neck. This diagnosis will cause a persistent positioning of the neck but petitioner did not have a twisting of the neck so his symptoms would not be a torticollis.
The videotapes had been taken prior to Dr. Vigman's evaluation of the petitioner. The doctor was supplied with the videotapes after his initial evaluation by Dr. Vigman. In February 1999 the doctor issued a supplemental report indicating that he had reviewed the videotapes. The petitioner's neck was not held in a tilted position. He noted that on June 24 the petitioner held his head normally. On July 9 he was sitting behind the glass in an office building and held his head up straight. The head was not tilted. He rotated the neck with ease when he was talking to people or talking on the phone. On July 29, 1998 he noted that petitioner turned his head easily while driving a car. The doctor indicated that when he saw petitioner the head was tilted to the right on a constant basis and any attempt to move the neck caused pain which was felt in the lower part of the neck. The doctor indicated that the videotapes clearly contradicted the petitioner's statements concerning his inability to move the neck. Dr. Vigman concluded that petitioner was malingering or consciously faking his symptoms. Dr. Vigman indicated that there was no evidence of any reflex sympathetic dystrophy. The doctor concluded there was no radiculitis, thoracic outlet syndrome, neurologically, occipital neuralgia or brachial plexopathy. The doctor assumed that petitioner's complaint of tilting his head was not physiological and was not true. After seeing the videotapes, the doctor felt petitioner was malingering or consciously faking and did not know the reason for the faking.
The respondent also presented the testimony of Dr. Ronald Sorvino, an expert in the area of neuropsychiatry who examined the petitioner on May 15, 1996, May 13, 1997, October 13, 1997 and March 25, 1999. The mental status examination in 1996 indicated that petitioner was tense and interviewed in a somewhat guarded fashion. Flickers of anger appeared when questioned too carefully. There were no abnormal movements, peculiar mannerisms or abnormal gait. There was no evidence of a thought disorder. Petitioner was not spontaneous at any time. His affect was constricted and appropriate to his mildly sad mood. The overwhelming mood was one of barely concealed hostility. The petitioner indicated that he felt no good for awhile. He wanted to kill himself. He had always been very self-reliant and was very proud of that. He was angry that people did not believe he was in pain. He had an air of forgetfulness. At times he froze because he forgot what he was doing. He had average intelligence with a tenth-grade education. He made mistakes in orientation and memory. He indicated that he was going backwards in life. At age 54 he has nothing. He was currently not suicidal. He had a marked lowered self-esteem with feelings of despair and he made a number of errors with calculations and counting backwards. He was able to spell forward and backward and had geographic sense. The petitioner's wife indicated to Dr. Sorvino that he was increasingly forgetful. Insight and judgment were impaired.
Dr. Sorvino arrived at the impression that petitioner had a pain disorder associated with both psychological factors and a general medical condition, which was chronic. Petitioner also had dysthymia secondary to chronic pain disability and financial hardship. The doctor noted that petitioner had a two-year disability at the time of his evaluation from a relatively minor injury. The doctor felt it was unlikely that petitioner would ever return to work. The doctor felt that petitioner's symptoms were subjective in the extreme. He had now added other subjective symptoms or signs not related to the injury. These included gross hematuria, fecal and urinary incontinence, forgetfulness, locking of the hands and arms, an inability to do things with his hands, dropping things, and his right leg giving out and buckling. All these symptoms the doctor felt were in the absence of any positive neurological signs, with a normal M.R.I. The doctor felt that the gross hematuria was not related to petitioner's neck injury. The doctor also felt that petitioner's development of new neurological symptoms was not related to the injury as petitioner had a normal neurological examination all along. The doctor noted a marked anger and hostility in the petitioner to the doctors who did not believe that he was in pain. There was also hostility toward his former manager who did not rush to his aide or was not sympathetic enough to him after his injury. Petitioner felt that he gave Macys 60 to 70 hours per week and when he was no longer able to function they no longer wanted to have anything to do with him. The doctor noted the parallel between petitioner's life story and that of his father who was gored by a bull at work and was never able to return again. The father pushed the petitioner out to work in order to support the family.
The doctor noted that Dr. Gordon pointed out petitioner was clearly depressed. It was also apparent that without medication the petitioner's depression would probably go nowhere. Regardless of cause, Dr. Sorvino felt petitioner should seek out a psychiatrist who could prescribe specific medication for him so that he could at least have his depression abated. The doctor noted that persons who develop marked preoccupation with physical symptoms or develop a plethora of physical symptoms have personality problems, which the doctor felt pre-existed the accident. These people, the doctor explained, have a propensity to develop physical symptoms for reasons unknown. However, these are personality based and not related to any accident. The doctor felt petitioner was desperately in need of ongoing neurological and psychiatric help regardless of cause. Dr. Sorvino estimated a disability of 2% of partial total on a psychiatric basis associated with a chronic pain and 12% permanent partial on a personal psychological basis regardless of cause.
Dr. Sorvino reexamined the petitioner on May 13, 1997. The purpose of this visit appears to have been an attempt to comply with the Order dated February 26, 1997 for psychiatric treatment, yet Dr. Sorvino just performed a psychiatric reexamination of the petitioner. At the time of Dr. Sorvino's March 15, 1996 evaluation of the petitioner, he was aware that in January of 1996 petitioner had finished 20 sessions with the Division of Vocational Rehabilitation for psychotherapy for a diagnosis of major depression with Dr. Allen Gordon. He was also aware through the history in Dr. Sidney Bender's reports, which were provided to Dr. Sorvino prior to his evaluation on May 13, 1997, that Dr. Gordon did not feel that petitioner had finished his need for psychotherapy. In his evaluation of petitioner on June 11, 1995 and April 17, 1996, Dr. Bender felt that petitioner had a permanent neuropsychiatric disability for an adjustment reaction with depression for which he had estimated first 5% of partial total and then 7½% of partial total. Dr. Sorvino also received additional treating physicians' and examining physicians' reports including Dr. Sidney Bender a neurologist, Dr. Stephen Schneider, an orthopedic surgeon, Dr. Arthur Canario, an orthopedist, and Dr. Kasoff, a neurosurgeon. Dr. Kasoff believed that petitioner was having an emotional overlay in response to his injury. Dr. Sorvino was also aware that despite his opinion from his first examination that petitioner would never return to work, the petitioner was then working as a full-time security guard.
The mental status examination by Dr. Sorvino of the petitioner showed petitioner's affect to be appropriate to his "up mood". The doctor related that petitioner thought that he was much better since he was working full time and was doing more chores at home. He enjoyed listening to music, collecting baseball cards and some vegetable gardening when his daughter helped him. The doctor also related that petitioner did not feel he had a need for psychiatric treatment. Dr. Sorvino's impression was that petitioner had no psychiatric illness. The doctor opined that following the myelogram and CT Scan, which were to be performed in June 1997, petitioner could have further diagnostic tests involving intravenous Amytol and an interview to evaluate any emotional overlay. If that failed, the use of Tegretol and Baclofen could be tried. The doctor indicated that petitioner stated he was getting on with his life and at the present time no psychiatric treatment was needed.
Dr. Sorvino again reexamined the petitioner on October 13, 1997. Dr. Sorvino was provided with a report from Dr. Nordstrom who had seen the petitioner about the same time as Dr. Sorvino's last exam in May 1997. At that time, Dr. Nordstrom felt the petitioner had a cervical strain and sprain syndrome with underlying spondylosis and degenerative arthritis in the neck. Dr. Nordstrom noted a strong psychological component to petitioner’s condition. Dr. Nordstrom in May 1997 felt that petitioner needed psychological support and a good home exercise program. Dr. Nordstrom further noted that because of the chronic nature of the problem, recovery was guarded and perhaps a comprehensive pain management program at Robert Wood Johnson Hospital, would be appropriate. Petitioner was never sent to such a pain-management program and did not receive the psychological support Dr. Nordstrom felt was necessary.
Dr. Sorvino also had the results of the myelogram which were within normal limits and the CT Scan of the lumbar and cervical spines, which were within normal limits except for some mild degenerative changes in the lumbar spine.
As a result of the November 3, 1997 exam, Dr. Sorvino reached an impression that petitioner had a pain disorder associated with psychological medical factors and dysthymia which was chronic. He still felt that psychotherapy was not indicated for the petitioner. He felt the petitioner did deserve a trial of antidepressants and neurotropic pain medication such as Baclofen, Tegretol, Valium, Elavil or perhaps Prozac or Zoloft. The doctor noted that a psychiatrist seeing petitioner every four to six weeks over a course of 12 months should find it to be enough time for medical a management trial. No medical management trial was begun as petitioner was never sent to see a psychiatrist for treatment. Dr. Sorvino again seemed to be under the impression that petitioner did not want any form of psychiatric care but felt that he would accept psychiatric management in terms of medications. Dr. Sorvino felt that petitioner was fully capable of working on a full-time basis at any job that he would choose. He estimated a permanent disability of 2% partial total on a psychiatric basis.
Dr. Sorvino was provided with the videotapes taken of the petitioner in June and July 1998. Dr. Sorvino's assessment of the tapes was that petitioner was able to walk without impediment, he was able to move his right hand and arm without impediment and he was able to drive his car easily turning his head both ways without impediment. There was no restriction of movement or torticollis seen. Movements at his desk to the left and right were done without problems and standing up was done without problems.
Petitioner was also reexamined by Dr. Sorvino on March 25, 1999. He indicated that petitioner had a long course of complex, confusing and contradictory medical symptoms all of which arrive at no neurological or orthopedic disease. An original cervical strain and/or contusion had now become a severe right-sided host of symptoms with no organic basis. The onset of these right-sided symptoms several years after the original trauma indicated to the doctor, a new illness or superimposition of symptoms by the patient for his own personal need. Since the symptoms did not follow a neurological or orthopedic syndrome the doctor felt that the petitioner, for his own reasons, had chosen to tell various doctors that he had these symptoms. The surveillance tapes did not support his symptoms. The doctor felt we were left with a gentleman who chose to state symptoms, which are not intrinsically coherent and do not comport with the objective tapes. The doctor continued in his report:
"Therefore, such persons should be considered to have a malingering component to their presentation. Zero percent (0%) partial total on a psychiatric basis is indicated. No medical treatment is indicated and no psychiatric treatment is advised. Such persons have their own agenda and psychiatric treatment has nothing to offer them. These opinions are rendered within reasonable medical certainty".
Dr. Sorvino indicated in his testimony that there was marked improvement in the petitioner's condition over the times that he saw him. Petitioner was working full time and had no problems so there was no psychiatric disability. The doctor felt there was a variance between the videotape and the physical symptoms that petitioner gave the doctor. He felt that petitioner had a somatoform disorder and malingering. The doctor did indicate that based upon the timing of the development of the somatoform disorder it appeared to be due to the injury at work. Based upon all of this evidence I make the following conclusions.
This court has already concluded, as a result of the Motion For Medical and Temporary which was litigated in this matter, that the petitioner sustained an injury which arose out of and in the course of his employment when he was struck in back of the neck and head by a bar containing a rack of clothes as he was attempting to stand. The bar fell approximately eight feet and struck him on the back of the head in the occipital area and in the neck. The court further found that petitioner had developed a vascular thoracic outlet syndrome which was caused by the accident of April 25, 1994. The court concluded it was more probable that the clavicular area was traumatized at the time of the accident resulting in the thoracic outlet syndrome. The petitioner's problems with the neck were also found to be as a result of the accident. The court also found that petitioner had developed depression as a result of the accident. I incorporate by reference the court's findings in the prior decision in this matter dated February 5, 1997.
I conclude the petitioner had a cervical contusion and sprain superimposed upon degenerative disc disease at C4-C5 and C5-C6 with mild neural foraminal narrowing bilaterally at C5-C6 and spondylosis. I also conclude he has a thoracic outlet syndrome on the right, which has resulted in weakness of the right arm and atrophy of the right hand as found by Dr. Rubin. I find that the testimony of Dr. Rubin of the presence of this condition is more reliable than other witnesses. He clearly did the clinical test, which showed the positive Adson's sign indicating the presence of vascular thoracic outlet syndrome. Petitioner testified that Dr. Rubin was the only doctor to put him through the maneuvers, which recreated his symptoms in the right arm. As stated in my original decision this appears to be more likely due to the accident than any other cause. Indeed, no other explanation for it exists in this case other than the accident.
I further conclude that petitioner has developed an adjustment disorder with phobic features or a dysthymic disorder which is causally related to the accident of April 25, 1994. Dr. Rubin who examined on behalf of the petitioner, Dr. Gordon the treating psychologist, Dr. Bender who examined on behalf of the respondent and Dr. Sorvino, who also examined on behalf of the respondent all concluded the petitioner had developed neuropsychiatric sequelae after the accident. Dr. Rubin, Dr. Bender and Dr. Sorvino all estimated permanent psychiatric disability. Even when Dr. Sorvino said petitioner did not need psychotherapy, he felt petitioner needed medications for his depression.
Dr. Sorvino changed his estimate of psychiatric disability concluding the petitioner was a malingerer based upon his review of videotapes. The videotapes were taken over a period of over 25 hours of observations and consisted of approximately 20 minutes of tape. While the tape shows periods when the petitioner had less tilting of his head or no tilting of his head and the ability to rotate the neck, this short period of time does not overcome the overwhelming evidence indicating that petitioner has a recurring and chronic problem of difficulty turning his neck and at times tilting of his head to the right. There were times when petitioner saw the examining physicians when his head was not tilted such as when he was first examined by Dr. Rubin. The petitioner's head was also not tilted when he saw Dr. Ruderman in April 1995. On May 3, 1999, the petitioner indicated that his head was not tilted as much as it had been in the past. Much was made by respondent's examining physicians about a little over twenty minutes of video tape that were taken of the petitioner over 25½ hours of surveillance in June and July 1998. Indeed, some of the physicians changed their opinion based upon that videotape. The court, however, concludes that the videotape does not indicate anything inconsistent with the petitioner's previous testimony or appearance before the court. There were times when the petitioner appeared before the court when his neck was straight. There were times when he appeared before the court when it was tilted to the right as it was with some of the physicians. The petitioner indicated that there were periods of time when he could not straighten up his neck because of pain in the neck. The presence of relatively short periods of time when he had near normal movement of the neck and was able to hold his neck straight for periods of time in the video does not negate the testimony by both the petitioner and his son of the overall impact upon his life due to the pain in the neck and loss of motion of the neck resulting from the accident. The court finds that both the petitioner and his son were very trustworthy and reliable witnesses. The employer released the petitioner because he was unable to do the heavy work that he had been doing prior to this injury because of the impact of the injury on the petitioner. The petitioner is working in a job, which pays much less than what he was making at the time of the injury. The petitioner's son indicated that petitioner's active life prior to this injury was changed significantly. Petitioner no longer works around the house or does maintenance on the house. He no longer engages in sports or plays with grandchildren. He no longer does work on his car. He was outgoing and happy before the accident. He is no longer outgoing and happy. There was a dramatic change in his lifestyle at home. He had moved in with his children. He was using his son's vehicle to drive. He was no longer maintaining a house. He was not engaging in sports activity or playing with his children. He could not even do mechanical work on his car. He would come home from work and just sit home and watch TV. The observations made by the respondent's physicians on the video tapes should change their view of the petitioner’s disability only if the tapes were a representation of what petitioner was like all of time when he was outside a Workers’ Compensation setting. This inference cannot logically be made in the circumstances of this case because the condition of the petitioner's neck varied depending on circumstances and his use of the neck. He indicated that he only periodically used the neck brace at home. While there were periods of time where his neck was stiff all the time, the petitioner did not maintain that tilted position of his neck throughout this entire hearing. When he first testified on the Motion for Medical and Temporary his head was not tilted. On the second occasion he testified on the Motion for Medical and Temporary his head was stiffer than the first occasion of his testimony. Thus, throughout this case the degree of stiffness and tilting of the head has been variable, which is consistent with his testimony. Therefore, the presence of a few minutes of showing his neck appearing to be within normal range of motion and not as tilted or straight does not substantiate that petitioner is a malingerer or that he is faking his symptoms. His lifestyle changed substantially as verified by reliable witnesses, which indicate the reverse. Although the medical testing has not been able to find a reason or diagnosis for this stiffness and tilting of the neck beyond the cervical sprain diagnosis, this does not mean that petitioner's life has not been irrevocably altered by this accident.
The court finds that petitioner has developed a dysthymic reaction or adjustment disorder with depression as the result of this accident. Dr. Rubin, who examined on behalf of the petitioner, Dr. Bender who examined on behalf of the respondent and Dr. Sorvino who examined on behalf of the respondent as well as the treating psychologist, Dr. Gordon all concluded that petitioner had developed a neuropsychiatric condition known as dysthymia with depression or an adjustment disorder. Initially, Dr. Sorvino felt that a large portion of this was due to personality disorder. The doctor felt that the petitioner would not return to work based upon that personality disorder. The petitioner actually did return to work although in a less physically active type of job as a security guard. Therefore, the conclusion of Dr. Sorvino concerning the petitioner‘s personality disorder seems unsupported by the facts in this case. Dr. Sorvino's ultimate conclusion indicating petitioner was a malingerer is also unsubstantiated by the facts of this case as explained earlier. One of the comments made by Dr. Sorvino, in his initial report was that petitioner desperately needed psychiatric treatment. Dr. Gordon, who had treated the petitioner, indicated that petitioner had not reached the maximum benefit of medical treatment; his treatment ended only because authorization ended through the program which paid the doctor. When the petitioner was actually sent to Dr. Sorvino for evaluation following that, he concluded that petitioner did not need any psychiatric treatment even though he felt petitioner needed medication for his depression. Dr. Nordstrom was providing the petitioner with orthopedic treatment and had the opportunity to observe the petitioner on a regular basis. At the time Dr. Sorvino opined that petitioner did not need psychotherapy, Dr. Nordstrom’s observations of the petitioner led the doctor to conclude that petitioner needed psychotherapy. Dr. Sorvino’s conclusion, that petitioner did not need psychiatric treatment, seemed to rest largely on petitioner’s alleged statement that he did not feel as if he needed psychiatric treatment. This opinion of Dr. Sorvino seems to rest on a mistake of fact that petitioner did not want psychiatric treatment. The petitioner filed and fully litigated a motion to obtain this treatment. It is absurd to suggest that after convincing the court that he needed this treatment when he was sent to a psychiatrist he would state he did not need the very treatment he was urging the court to order the employer to provide. Therefore, with regard to Dr. Sorvino’s conclusion that petitioner did not need psychotherapy, this seems more to be an example of a physician who is an advocate rather than a physician who is seeking the best interest of the patient.
The court is also convinced in the circumstances of this case that there was gross mismanagement of petitioner's medical treatment by the respondent. Petitioner was originally ordered to receive psychiatric treatment or psychotherapy and medication, physical therapy, epidural injections, if these physical therapies were unsuccessful and treatment for a thoracic outlet syndrome. The court further directed that petitioner have a multidisciplinary workup to determine whether any of his other symptoms were due to this accident. The respondent failed to send the petitioner for psychiatric treatment as ordered by the court but merely set the petitioner up for an examination with Dr. Sorvino. The court relied primarily on the opinions of Dr. Rubin and Dr. Gordon to conclude that petitioner was in need of psychiatric treatment and psychotherapy. The carrier did not have the authority to rely on the conclusion in the report of Dr. Sorvino dated May 16, 1997 that petitioner did not need psychiatric treatment. Faced with the Order of the court the carrier could not substitute the opinion of one doctor as a basis not to comply with the order of the court to provide the court-ordered treatment. The carrier was well aware that it was not in compliance with the order of the court, by its failure to provide Dr. Sorvino's report to the court or petitioner's counsel within any reasonable time to ensure that timely and necessary treatment was furnished to petitioner. The carrier also did not provide the medications for petitioner’s depression that Dr. Sorvino stated were necessary. Respondent had the responsibility of providing the treatment ordered by the court notwithstanding the opinion of Dr. Sorvino that petitioner did not need psychotherapy. The carrier could have sent petitioner to Dr. Sorvino for treatment rather than an examination. There is nothing in the record to suggest that Dr. Sorvino was aware there was a court order to provide petitioner with psychiatric treatment. The carrier by Motion could have requested this court to direct another psychiatrist who could have provided the treatment or merely sent the petitioner to another psychiatrist for treatment as ordered by the court. The respondent did not provide the medications for petitioner’s depression with management by a psychiatrist that Dr. Sorvino recommended in his report of April 11, 1996, which was the same report in which he said petitioner did not need psychotherapy. Dr. Sorvino indicated that psychiatric treatment had nothing to offer petitioner who he felt was a malingerer and yet he had stated previously that petitioner's condition improved with the psychotherapy by Dr. Gordon. These actions show clearly a failure by the carrier to comply with the Order of the court for psychotherapy and psychiatric treatment.
In terms of helping injured workers overcome the effects of injury at work, treatment delayed is the equivalent of treatment denied. The respondent failed to provide treatment when Dr. Sorvino first indicated in his April 1996 report based upon the March 15, 1996 evaluation of the petitioner that he was "desperately in need of ongoing neurological and psychiatric help." It failed to provide psychiatric treatment ordered by this court in its Order of February 26, 1997. The carrier failed to provide the pain-management program recommended by Dr. Nordstrom, the treating orthopedist. The carrier failed to provide the multidisciplinary evaluation ordered by the court until over a year had passed and the court issued a second Order that the respondent comply with the original court Order. Petitioner had been sent to Dr. Brisman but was not provided with the referral to the movement disorders group recommended by Dr. Brisman until after the second Order of the court dated April 8, 1998. The exam with the movement disorders group was finally scheduled on June 29, 1998 almost one year after Dr. Brisman recommended the referral and over four years after the injury.
I find that petitioner has a permanent partial disability of 45% of the partial total for the orthopedic and neuropsychiatric residuals of the cervical sprain with adjustment disorder, dysthymia and depression. There can be little doubt as to the impact upon the petitioner's ability to function at work in the circumstances of this case. He is no longer able to do the heavy work that he was doing prior to the injury. He was told by medical physicians not to do this type of work. Macys concurred that petitioner could not do that kind of heavy work when they moved him to a lighter job on a temporary basis. Petitioner could not even do a security officer's job, which required him to look up into mirrors or even stand on his feet for long periods of time because of pain in neck and nauseousness.
In addition, I conclude the petitioner has a vascular thoracic outlet syndrome, which was found by Dr. Rubin for which he has a disability of 7 1/2% of partial total. Petitioner has weakness and atrophy of the right hand and a lack of use of the arm. I find Dr. Rubin's testimony and observations and positive findings to be more consistent with the petitioner's condition than the findings of Dr. Canario who disputed the presence of a vascular thoracic outlet syndrome. That syndrome certainly affects the ability to use the hand as petitioner has described in his testimony. Therefore, I conclude petitioner has an overall disability of 52½% of partial total. Petitioner would, therefore, be entitled to 315 weeks of compensation at the $338 per week rate totaling $106,470.
I will allow the following fees. I will allow Dr. Rubin for his one examination, three reports and testimony $750 payable by the respondent. I will allow Dr. Ruderman for his one examination, two reports and testimony $750 payable by the respondent. The assessments for Dr. Ruderman and Dr. Rubin are to be reimbursed to petitioner's attorney who paid in excess of that sum to the doctors. I will also allow a reimbursement to petitioner's attorney in the amount of $1,149.37 for transcripts and medical records payable by the respondent. I will allow a counsel fee in the amount of $21,000 on the trial of this matter and an additional $6,000 on the Motion for Medical and Temporary. The court had postponed the allowance of fees for the Motion for Medical and Temporary. The counsel fees are assessed entirely against the respondent. I will allow a stenographic fee of $1,625 payable by the respondent.
In assessing the fees against the respondent in this case I have considered their failure to comply with the Orders of the court and their failure to provide adequate and necessary medical treatment to petitioner. I have also considered the respondent's changing of attorneys during the trial of this matter on two occasions resulting in the significant confusion and problems in the trial of this matter.
Fred H. Kumpf
Judge of Compensation
July 18, 2000