________________________________
IN THE MATTER OF THE
VERIFIED PETITION OF IRA
FRIEDMAN FOR BENEFITS
FROM THE SECOND INJURY
FUND

SCOTT KESSLER, ESQ.
RAVICH,KOSTER, TOBIN & OLECKNA
Attorney for Petitioner

JOSEPH COBUZIO, ESQ.
TOMPKINS, MCGUIRE & WACHENFELD
Attorney for Respondent

No Appearance for the Fund.

The petitioner, Ira Friedman, filed three claim petitions seeking compensation from the respondent for the residual effects of two accidents together with an alleged occupational disease. He also filed a verified petition for benefits from the Second Injury Fund.

All of the matters were consolidated for trial before me.

The factual evidence consisted of the testimony of the petitioner and two witnesses for the respondent; Richard Luther and Christopher Zenaty, both of whom were employed by the respondent in supervisory positions during petitioner’s period of employment.

There were also voluminous medical treatment records submitted into evidence together with the testimony of Dr. Vincent Commissa, who performed surgery on petitioner’s thoracic spine, and testimony by medical expert witnesses for both petitioner and respondent.

The essential facts as adduced by the evidence presented were set forth in the hypothetical question propounded by the attorney for the petitioner, which I hereby adopt as follows.

Ira Friedman worked for the Automotive Diagnostic/Spx Corporation from approximately September of 1993 until January of 1995. Mr. Friedman had worked for the parent company of Automotive Diagnostics, SPX, for several years prior to that. Automotive Diagnostics manufactured and sold automotive diagnostic equipment to automotive repair shops, garages, and new car dealerships. Mr. Friedman's employment with Automotive Diagnostics included two different positions; first was as a District Sales Manager for Long Island, wherein Mr. Friedman was responsible for a sales force of approximately 4 to 6 people. Mr. Friedman's duties included managing sales people and territory managers in his Long Island area. He was responsible for meeting sales quotas, and for doing demonstrations with, and for, the sales people until they were prepared to do them on their own, and was required to do demonstrations in open territories, as if he was a salesman. Mr. Friedman worked as a District Sales Manager for approximately 1 year, and then became a Territory Manager, wherein he was required to give a minimum of 10 demonstrations per week. Mr. Friedman was expected to demonstrate approximately 8 to 10 pieces of equipment. He would take them in a van, which did not have a lift device, to do sales calls. Mr. Friedman would park the van in his drive-way, move a piece of equipment out of his garage, and lift it into his van, or tilt it against the rear of the van, and then lift it up and into the van. He would then drive the van to his sales call, and remove the piece of equipment out of his van. On some occasions an employee of the establishment where he was demonstrating the product would assist him; but often times he did it himself. Mr. Friedman would then demonstrate the product; after which he would put the product back in his van and drive to the next stop, where he would repeat the process of removing and putting the piece of equipment back into his van. Once home, he would again remove the product from his van and put it back in his garage, except when he was showing the same product again the next day, which would occasionally occur.

The products Mr. Friedman demonstrated were two different tire changers, a brake lathe, two different wheel balancers, and emission analyzer, a distributor machine, and an air conditioning tester and replacement machine. The wheel balancer weighed approximately 200 pounds, the air conditioning equipment was the lightest piece, at approximately 100 pounds. The brake lathes weighed from 150 to 200 pounds, and are made of cast iron. Mr. Friedman's method of lifting the brake lathe would be to roll it to the van on a cart, and then get up behind the brake lathe, and lift it with both arms, from underneath, up an into the van, and slide it back in. He had a piece of carpeting that he would slide it on, once it was in the van.

The most demonstrated item was the engine analyzer, which weighed approximately 450 pounds, and he demonstrated it as many as 6 to 8 times per week, as it was the number one seller in the line of products. Mr. Friedman would take a large board of the size of a refrigerator, cover it with carpeting, strap the engine analyzer to the board, and then tilt the top 1/3 onto the lip of the van, and then go around the back and lift and push it up and into the van. This was always done by Mr. Friedman alone when he was moving it from his garage at his home into the van, and was oftentimes repeated at the customer's premises. Although he sometimes had a co-employee to assist him, Mr. Friedman worked alone 75% of the time.

On January 17, 1994, Mr. Friedman, while in the course of his employment, on a snowy day, got out of his van on the side of a highway to check on a noise he heard, slipped and fell. He injured his left shoulder, his left wrist and hand, and his left ankle, and was seen at the St. Peters Medical Center in New Brunswick, New Jersey, where he underwent an x-ray of his left shoulder, left wrist, and left ankle, and was released. Mr. Friedman was seen by Dr. Butler in New Brunswick, New Jersey on January 27, 1994, and Dr. Butler x-rayed Mr. Friedman's left hand, checked his shoulder, put his hand in a sling and released him. There was no further treatment for this injury, and Mr. Friedman missed one day from work.

On April 19, 1994, Mr. Friedman was injured when he fell at a customer's premises in Long Island City, New York. He was in the customer's shop when his leg slid out and he fell, injuring his left side, left leg, lower-back and head. He missed one day from work, and never had any treatment for the injury.

Mr. Friedman continued to work for Automotive Diagnostics, when he began experiencing a tingling in his feet, more so in the left than in the right, sometime in May-June of 1994. He also suffered occasional pain in his buttocks. As a result, he went to see his family doctor, Dr. Toby Geller, in East Brunswick, New Jersey, in June of 1994. Dr Geller examined Mr. Friedman, advised him to rest as much as possible and to stay off his feet, take some Ibruprofen and told him he had a slight case of sciatica.

Mr. Friedman did not go back to Dr. Geller, and continued to work for Automotive Diagnostics, performing the same job duties as mentioned above. As the symptoms in his lower back and feet continued to worsen, in August of 1994 he went to see Dr. William Wasserstrom in East Brunswick, New Jersey, and advised the doctor that he was in pain, especially in his left leg. He advised Dr. Wasserstrom that his pain was more intense then it had been before. Dr. Wasserstrom examined Mr. Friedman and sent him to Rittenhouse Square Imaging in Philadelphia, Pennsylvania, where, in October of 1994, he underwent an MRI of the lumbar spine, thoracic spine, and shoulder and neck. He also had an MRI of his brain. Dr. Wasserstrom reviewed the MRI's, and recommended that Mr. Friedman pursue further medical treatment elsewhere.

As Mr. Friedman's condition was worsening in the fall of 1994, with weakness in his left leg, along with pins and needles in both legs, he continued to work full-time, although he began to give slightly fewer demonstrations as a concession to his pain.

Mr. Friedman next saw Dr. Louis Rivolo in Ranconcas, New Jersey, who was a vascular surgeon. Dr. Rivolo examined Mr. Friedman with regard to the circulation he had in his left leg and Dr. Rivolo recommended that Mr. Friedman see Dr. Donald Petroski in Ranconcas, New Jersey. Dr. Petroski, an internist, gave Mr. Friedman a medical examination, which included blood work, and recommended that he see a neurologist.

As a result, Mr. Friedman saw neurological physician, Dr. Scott Sharetts on November 30, 1994, at the Ranconcas Hospital. Dr. Sharetts examined Mr. Friedman and recommended that he have a EMG, Dr Sharetts reviewed the EMG results, and recommended a CT Scan and Myelogram, which took place on December 23, 1994, at the Rancocas Hospital in Willingboro, New Jersey and also recommended that Mr. Friedman stay off his feet as much as possible.

After the additional testing, Mr. Freidman discussed the results with Dr. Sharetts, but had no further treatment at the time. He did continue to work, although he was at this time walking on crutches and was attempting to try to sell the automotive equipment from brochures, as he was unable to load and unload the actual pieces themselves.

As his condition continued to worsen, Mr. Friedman in January of 1995 came under the care of Dr. Frank Cammisa at the Hospital for Special Surgery in New York City. Dr. Cammisa examined Mr. Friedman and recommended that he undergo surgery for his back, but wanted him to lose weight before doing so. The surgery was therefore postponed until Mr. Friedman, who weighed over 300 pounds, could lose weight.

Mr. Friedman, who was fired by his company for lack of productivity sales at the end of January 1995, continued working selling magazines over the telephone for Dial America Marketing. The job involved no lifting, and Mr. Friedman had to be driven back and forth as he could no longer drive by this point in time. This employment ended in March of 1995, when Mr. Friedman was no longer able even to perform the telephone marketing duties.

In March of 1995, Mr. Friedman's daughter was home for vacation from college, and he assisted her in moving a couple of boxes with some knick-knacks and other items which were on the floor. When he picked them up to put them on the table, he felt some additional discomfort in his back, and by the next morning had numbness and additional weakening in his left leg. After approximately one week that condition seemed to improve, but about three or four days after that, in early March of 1995, Mr. Friedman got out of bed in the middle of the night to go to the bathroom, and collapsed to the floor when his left leg went out from underneath him. He was unable to arise from the floor, and his wife contacted Dr. Cammisa, who advised Mr. Friedman to go see Dr. Sharetts, the neurologist in southern New Jersey, immediately.

Mr. Friedman went to see Dr. Sharetts, who did a CT Scan and wanted to admit Mr. Friedman to the hospital. However, insurance difficulties were an issue, so Mr. Friedman returned to his home, where he was essentially paralyzed, with no feeling at all in his left leg. He therefore went to see Dr. Cammisa in the Hospital for Special Surgery, and underwent a surgical procedure to his thoracic spine on March 17, 1995. He was released on April 4, 1995, and received follow-up treatment as an inpatient at the JFK Medical Center, at the Johnson Rehabilitation Institute, in Edison, New Jersey. There he was "taught how to walk again", as both of his legs had become essentially paralyzed after the surgery. He walked on parallel bars and eventually walked on crutches and then went to two tripod canes, then one tripod cane, and finally to a single cane, and then to a walker. He was released as an inpatient from the Johnson Rehabilitation Center, and followed-up as an out-patient for approximately five or six months.

Mr. Friedman also had an incident of June of 1995, when a bed in which he was laying while he was recuperating from surgery collapsed under him. He was paid $2,000 as a result of the incident by the bed company, and testified that he felt that his condition was not worsened as a result of that incident.

Mr. Friedman continued with Dr. Cammisa, and last saw him July of 1995, and Dr. Cammisa referred him for an examination with Dr. Peter Tasaris, also at the Hospital for Special Surgery, and both doctors agreed that Mr. Friedman still required surgery, on his lower back. However, both doctors felt that Mr. Friedman needed to lose additional weight before undergoing the surgery, and the surgery has never taken place, and Mr. Friedman has had no further medical treatment since July of 1995.

At the present time Mr. Friedman continues to have difficulty standing or sitting for long periods of time, and often loses feeling in his legs. He can not walk long distances, as the pain becomes excruciating, and shoots up his left leg and into his back, and to a lesser extent on his right side. He is unable to even walk in a mall, as he has difficulty walking on concrete or marble floors, and finds that wooden floors and blacktops are better and easier for him to walk on to. When he goes into the supermarket, he rides one of the automated, motorized carts. He has been unable to work and is collecting Social Security Total Disability benefits since March of 1995. He feels as he is a "loser", as he is unable to adequately provide for his 20 and 23 year old daughters. He has become impotent since the surgery, and has made some attempts at non- physical work, such as college financial aid advising, and did this from approximately October 1997 through October 1998. He would perform seminars in different hotels, where he would sit behind the desk and speak to the parents of prospective college students, with regard to financial aid. He worked only on Saturdays and Sundays, and did not even work on those days regularly as he just couldn't tolerate it, as he was unable to get around, and go to and from the job. While he can drive a car short distances, he is unable to do so for long distances, and therefore has to be driven. He also tried selling burglar alarms but was unable to do so, as he had to go from house to house, and was unable to climb stairs into the prospective customer's houses. As a result, the job with the alarm company lasted approximately 2 weeks.

Mr. Friedman has great difficulty sleeping, as he has pain with almost any movement. As a result, he only sleeps approximately one hour or an hour and one-half at a time. Upon awakening at approximately 7:30 a.m., he drives his daughter to the local bus station, where he returns home and spends approximately 13 or 14 hours a day in a special chair in his kitchen, where he reads the newspaper, and talks on the telephone. He will sometimes go out to the supermarket, where he will pick up a few items, and tries to take his wife, who suffers from Multiple Sclerosis, out for lunch on occasion. He may visit her mother who lives in North Bergen or, his mother who lives in Brooklyn.

In the past, Mr. Friedman had suffered an injury to his left knee when he was

approximately 14 or 15 years old, playing football in high school, and was told that he had a torn medial meniscus. He was seen at the hospital, but never had further treatment.

Mr. Friedman also injured his right knee when he leaned over in a restaurant after dropping something and twisted his right knee, heard a crack, and the knee became swollen Mr Friedman went to orthopaedic physician Dr. Klein in New Brunswick, New Jersey, who recommended surgery, after a arthrogram was performed on his right knee. However, Mr. Friedman never underwent the surgery.

The respondent presented two lay witnesses, Richard Luther and Christopher Zenaty.

Mr. Luther was the regional vice-president of Allen Test Products, which was purchased by SPX and merged with Baer Automotive to form Automotive Diagnostics. He then became a regional manager for Automotive Diagnostics.

He stated that the petitioner had been a territory manager for Baer and had become a district manager for them just prior to the merger. Petitioner then was a district manager for the merged company for the Long Island district.

He did not know how the petitioner performed his work while employed by Baer and did not know whether the petitioner had lifted the demo equipment during this time.

He described the petitioner as the "king of the brochure demo" who could sell the respondents machine products without physically demonstrating them.

He had noticed the petitioner walking with a cane but did not recall if he spoke to him about it.

He said that the petitioner was demoted to a district sales manager on May 1, 1994 because of his poor sales record.

Mr. Zenaty was a district sales manager for Automotive Diagnostics after the merger but of a different district than the petitioner. On May 1, 1994, petitioner became a territory sales manager under Mr. Zenaty.

In the fall or winter of 1994, he noted the petitioner walking with a cane but did not recall having any conversation with him about it. He did recall recommending a doctor to the petitioner because the doctor had operated on Mr. Zenaty’s back. He said this was out of concern for the petitioner. He did not, however, remember whether petitioner told him that he had injured his back lifting respondent’s machinery.

I find that the petitioner was a credible witness.

The respondent’s witnesses, on the other hand, were not believable. They attempted to discredit the petitioner by pointing out company demonstration regulations which petitioner did not appear to meet, but then testified that no one met them. Their explanation was that these were merely suggested goals and not requirements.

They could not explain how the petitioner could go from being the recipient of a certificate from the respondent for being an outstanding salesman for the second quarter of 1994 to being demoted for poor sales performance on May 1, 1994 and then to being discharged on January 1, 1995.

They answered many questions with " I don’t know" or " I can’t recall" when cross-examined on petitioner’s method of working or their knowledge of petitioner’s injury.

The one thing they were clear on was that they each had actual knowledge of petitioner walking with a cane, and Mr. Zenaty recommended that petitioner see a doctor because that doctor had operated on Mr. Zenaty’s lower back.

I find that the respondent either had actual knowledge that petitioner was suffering from an injury to his lower back which was due to the physical exertions of his employment, or they had knowledge of facts sufficient to put them on notice and require them to investigate into the cause of petitioner’s physical problems.

The medical evidence shows that the petitioner was initially seen by Dr. Geller on June 17, 1994 for left sciatica. He was referred to Dr. Wasserstrom and was seen by him on August 14, 1994. Dr. Wasserstrom felt that the petitioner’s symptoms suggested sciatica but that a mid-lower lumbar area disc herniation was also possible and he recommended an MRI or CT scan.

On October 4, 1994, an MRI of the lumbar spine by Rittenhouse Square Imaging was interpreted as showing degenerative disc disease with bulging from L1 to S1; narrowing of the central spinal canal L1-L4; left lateral disc herniations L1-2, L2-3; and disc herniation L5-S1 on the left.

An additional MRI of the thoracic spine was done by Rittenhouse Square Imaging on October 27, 1994. This was interpreted as showing the following:

T6-7- small disc herniation on right-minimal impression on epidural fat and intralateral aspect of the thecal sac;

T7-8- moderate disc herniation centrally causing impression on anterior aspects of the thecal sac and minimal impression on spinal cord which is flattened in its saggital diameter;

T9-10- disc herniation central and to right causing minimal impression on anterolateral aspect of the thecal sac and narrowing of the central spinal canal;

T10-11- moderately large disc herniation at T10-11 with extension of herniated disc material posterior to the superior end plate of T11 on the left with impression on anterolateral aspect of the thecal sac and spinal cord; and

T11-12-questionale small left lateral disc herniation.

Dr. Sharretts, a neurologist, examined petitioner on 11/30/94 and found a ½ -1 grade weakness of the left iliopsoas muscle and ½ grade weakness of the quadriceps group on the left, which he felt, was most likely due to femoral neuropathy or high lumbar radiculopathy. He requested an EMG, which was done on 12/7/94. This was interpreted as borderline with mild changes. Clinical correlation was recommended with regard to high lumbar radiculopathy.

Dr. Sharretts then recommended a myelogram/CT scan which were done at the Rancocas Hospital on 12/23/94. The myelogram showed large extradural defects at L2-3 and L3-4 with a slight ventral extradural defect at L1-2. The CT scan showed findings consistent with protruding discs causing compression of the thecal sac L1-2, L2-3, and L3-4.

The petitioner was seen by Dr. Vincent Commissa on January 17, 1995. He was sent for x-rays of his lumbar and lumbosacral spine. The x-rays were interpreted as showing degenerative disc disease at multiple levels of the lumbar spine, facet joint osteoarthritis and scoliosis as well as facet joint osteoarthritis and degenerative disease of the lumbosacral spine without evidence of malalignment.

Dr. Commissa felt petitioner was suffering from lumbar spinal stenosis with cauda equina compression and neurologic deficit. He felt petitioner was a candidate for surgery but wanted him to lose weight first. Surgery was postponed until the weight was lost, unless an acute neurological event occurred.

On 3/6/95, Mrs. Friedman called Dr. Commissa and reported to his nurse that petitioner had lifted some boxes on the previous day and that he had increased pain and numbness in his left leg. Dr. Commissa prescribed medication and requested that petitioner be seen by Dr. Sharretts.

On March 9, petitioner was seen by Dr. Sharretts who found objective evidence of left monoplegia. After telephonic consultation with Dr. Commissa, immediate hospitalization was suggested but petitioner wanted to wait to see if there would be an improvement in his condition.

By March 14, however, petitioner’s condition had worsened and he was admitted to the Hospital for Special Surgery in New York.

Diagnostic tests and studies showed the herniated discs at T9-10 to the right and T10-11 to the left with significant cord compression.

Petitioner underwent surgery on March 17,1995 consisting of a total laminectomy of T9, T10, and T11 and a partial laminectomy of T12 with excision of the disc on the right T9 and 10 and excision of the disc at T10 and 11 on the left.

Petitioner was last seen by Dr. Commissa on July 10,1995. Dr. Commissa felt that Mr. Friedman was totally disabled and still in need of lumbar spine surgery.

The petitioner has filed four claim petitions. Claim petition 96-010245 was dismissed for non-compliance with the Statute of Limitations.

Claim Petition 96-01174 alleges a traumatic injury on April 19, 1994 when he fell in Queens, NY. He received minimal medical treatment for the injuries he alleges in that claim and he did not miss any time from work following that accident.

Claim Petition 96-024841 alleges a traumatic injury on September 7, 1994 when petitioner fell while making a sales call. He did not seek or receive medical treatment for the injuries he claims to have suffered in this accident. At the time of this second accident, petitioner was under treatment for the conditions, which he alleges to be an occupational disease in Claim Petition 96-010234.

I find that the petitioner has failed to sustain the burden of proof that he has any permanent disability, which is causally related to either of the aforesaid traumatic injury claims. With regard to the occupational disease claim, the existence of a compensable occupational disease depends on whether petitioner has experienced an occupational exposure which fits within the parameters of the modern version of N.J.S.A. 34:15-31, as amended by the 1979 Workers' Compensation Reform Act. L. 1979 c. 283 sec. 10. The case law instructs that if there is an ongoing workplace exposure before and after 1980, it is the date of manifestation of permanent disability, which controls the selection of the liability provisions of the Workers' Compensation Act. Thus in this case, it is the stringent liability standards of the 1980 version of the occupational disease statute, which determines compensability of the occupational exposure and its monetary value. Falcon v. American Cyanamid, 221 N.J. Super. 252 (App. Div. 1987). The statute states:

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

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

Thus, to be compensable, the occupational exposure must be a material cause of the resultant disease. Formerly it was only necessary to show that the occupation was a contributing cause. Now the employee must also show that the cause was peculiar to the occupation or place of employment. Under the prior version of the occupational disease statute, the employee only needed to establish that the occupational disease arose out of and in the course of the employment.

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

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

I find that the proofs herein clearly establish that the nature of the work done by the

petitioner was characteristic of the nature of his employment which required him to lift, carry, or move heavy and, indeed, occasionally extremely heavy equipment which he was intending to and required to demonstrate to prospective customers. The machinery was peculiar to the automotive repair industry, in which the petitioner was employed.

I find, based upon the testimony of medical witnesses, that the petitioner is totally and permanently disabled. Dr. Commissa, a treating physician, as well as Dr. Turner and Dr. Johnson, petitioner’s experts, and Dr. Canario, expert witness for the respondent agreed on this point.

The main areas of dispute in this case are:

which the Second Injury Fund would be responsible.

The treating physician, Dr. Commissa, testified that any lifting or bending can increase the stresses on both the thoracic and the lumbar spine and increases degenerative changes in these areas.

Dr. Turner, petitioner’s orthopedic expert, agreed that the nature of the petitioner’s job, requiring heavy lifting on a regular basis, could aggravate and accelerated the degenerative process in petitioner’s thoracic and lumbar spine.

Dr. Canario, respondent’s orthopedic expert denied that heavy lifting can aggravate or accelerate the degenerative process, although Dr. Yaffe, respondent’s neurologist, testified that heavy physical exertion can aggravate degenerative spinal disease.

In compensation cases the courts are faced with a wealth of conflicting medical opinion, most of it offered in good faith and always with the assurance that each is the medically accepted one. This maze of conflicting medical proof must be appraised by judges, not medical experts, and in the final analysis the determination of which is the soundest is made by them on the particular facts of the case.

In the light of the difference in the medical testimony, the language of former Chief Justice Weintraub, in his concurring opinion in Dwyer v. Ford Motor Co. 36 N.J. 487 (1962) is appropos:

When the possibility of causal connection is accepted, we cannot deny relief in all cases simply because science is unable to dissipate the blur between possibility and probability. In such circumstances, judges must do the best they can, with the hope that their decisions square with the truth and with a willingness to consider in succeeding cases whatever contributions scientific advances may offer.

I find that the petitioner’s spinal stenosis and degenerative disc disease were aggravated and accelerated in a material degree by the conditions of his employment with the respondent and therefor constitute a compensable occupational disease in accordance with N.J.S.A. 34:15-31.

The answer to the second question is somewhat more difficult. The respondent places great emphasis on the opinion of Dr. Commissa that a new and acute event precipitated the petitioner’s surgery for the herniated thoracic disc.

Dr. Commissa’s opinion in this regard is critically affected by his lack of knowledge of the prior MRI of October 26, 1994, showing almost word for word the same findings as the CT scan done at the Hospital for Special Surgery immediately prior to the operation done by Dr. Commissa.

Although Dr. Commissa had put off the petitioner’s planned lumbar disc surgery until petitioner lost enough weight to make the surgery less risky, he also expressed the fact that the surgery would be done sooner if an "acute neurological event" occurred.

Such an event apparently occurred in late February or early March 1995. The petitioner admittedly was lifting something when he felt a sharp pain in his lower back and down his left leg. This gradually worsened until petitioner’s left leg collapsed under him on March 5.

Thereafter, petitioner was seen by Dr. Sharrets and was eventually admitted to the hospital for the thoracic surgery.

Dr. Commissa expressed no opinion on the cause of the thoracic surgery. His testimony on this issue was:

Q. So your feeling is that it’s possible or probable that lifting, whatever that incident was, caused the ultimate need for the surgery in the thoracic spine?

A. I wouldn’t say-I’m not going to give a cause. I’ll give you what the facts are. The fact is that that’s the history he gave and that’s what I’ve got in my notes and I thought that was different from the lumbar spine. T57L17-25.

Dr Commissa also did not render any opinion on the etiology of petitioner’s need for surgery when petitioner applied for Temporary Disability Benefits from the New Jersey Division of Temporary Disability Insurance. A copy of his medical certification, introduced into evidence as R10, shows that he did not check any of the three boxes which ask whether the diagnoses which required the surgery were either due to an accident at work, or due to a condition which developed because of the nature of the work, or not related to petitioner’s work.

Dr. Turner felt that the episode of March 5, whatever it was, did not cause any worsening of the physiological conditions in petitioner’s thoracic spine which were found at the surgery. They were the same as those originally diagnosed on the MRI of October 24, 1994.

He felt that the incident of March 5, 1995 merely caused the symptoms of the condition to become manifest or to become worse.

I find that the episode in late February or early March, 1995 was not an independent intervening event, which would insulate the respondent from liability. While it is clear that the petitioner suffered from an increase of pain in his lower back and down his left leg with increased weakness of the left leg, the findings made at the time of the surgery were exactly those findings described in the 10/26/94 MRI- disc herniation to the right at T9-10 and disc herniation to the left at T10-11.

This was simply the type of "acute neurological event" which Dr. Commissa had envisioned in his original office note except that it involved the thoracic and not the lumbar spine. Despite Dr. Canario’s insistence that one does not examine the lumbar spine without also examining the thoracic spine, there is nothing in Dr. Commissa’s records or testimony from which it can be concluded that he did, in fact, examine Mr. Friedman’s thoracic spine prior to the worsening of petitioner’s condition in March, 1995. Perhaps this explains why Dr. Commissa would not express any opinion on what caused the sudden increase in the petitioner’s complaints and symptomatology.

The third question requires the consideration of the purpose of the Second Injury Fund.

The legislative policy, with regard to the Fund, is twofold-a concern for the hiring of workers with pre-existing disabilities and the protection of the Fund from inroads unless all of the statutory criteria, both affirmative and negative, are satisfied. Katz v. Howell, 68 N.J. 125 (1978) (Katz II). To hold the Fund responsible, it must be shown that the petitioner had become totally and permanently disabled by the combination of pre-existing conditions together with the last compensable disability neither of which, by itself, would have resulted in the total disability. Wexler v. Lambrecht Foods, 64 N.J. Super. 189 (App. Div. 1961).

The burden of proving eligibility for benefits from the Fund is upon the party seeking to impose Fund liability. Lewicki v. New Jersey Art Foundry, 88 NJ 75 (1981). In this case, while the petitioner filed the application for benefits from the Fund, it is the respondent employer who is really seeking to be relieved of responsibility for a portion of the petitioner's disability and it is therefore the obligation of the respondent to demonstrate Fund liability. Ort v. Taylor-Wharton Co., 47 N.J. 198 (1966).

The respondent contends that the petitioner’s obesity constitutes a pre-existing disability for which the Fund should be responsible.

Katz v.Township of Howell, 67 N.J. 51 (1975) (Katz I) and Katz II, 68 N.J. at 125 are informative as to the nature of the specific findings which should be made by a judge of compensation in a Fund or bifurcated trial in order for the decision to withstand appellate review. Those findings are:

1. whether the prior conditions were permanent and disabling as of the time of the last compensable accident or occupational exposure, in terms of the criteria of partial permanent disability;

2. whether such conditions or any of them contribute causally to the ultimate total permanent disability; and

3. the apportionment of the respective disabilities.

The definition of permanent partial disability is found in N.J.S.A. 34:15-36. A petitioner is required to show that there is demonstrable objective evidence of injury or occupational disease which restricts the body or its members or organs and lessens to a material degree an employee's working ability or impairs the ability of the petitioner to carry on the ordinary pursuits of life. As stated in Perez v. Pantasote, Inc., 95 N.J. 105 (1984):

In summary, then, the employee must first prove by demonstrable objective medical evidence a disability that restricts the function of his body or its members or organs. Second, he must establish either that he has suffered a lessening to a material degree of his working ability or that his disability otherwise is significant and not simply the result of a minor injury. The burden of proving both rests with the petitioner, since he has the onus of establishing permanent partial disability.

Id. at 118.

Here, the respondent bears the burden of proof that the petitioner was partially permanently disabled by his obesity in accordance with the statutory requirements in order to hold the Second Injury Fund responsible for a portion of the petitioner’s total disability.

There is a clear distinction between a medical condition and a disability from that condition. See Earl v. Johnson & Johnson, 158 N.J. 155 (1999). One may have a condition but does not have a disability from that condition unless the statutory requirements are met.

Here, the petitioner was undoubtedly obese. Although he is 6’4" in height, he has always weighed in excess of 300 pounds. He has been described as obese in the many medical records in evidence in this case.

Those same records, however, do not show that the petitioner had any lessening of his working ability prior to the development of his compensable occupational disease.

He was given a pre-employment physical wherein the obesity is mentioned but there were no limitations placed upon his ability to perform all of the functions of his job.

He had no restrictions on his ability to lift or carry the equipment that he was to demonstrate and, for years prior to his becoming disabled, he was one of the leading salesmen for respondent or it’s predecessor companies.

Respondent has not introduced any objective evidence of functional impairment caused by petitioner’s obesity and appears to be relying upon definitions of morbid obesity in medical dictionaries to establish a pre-existing disability.

Not only has respondent not provided any evidence of functional impairment due to the obesity, it has also failed to provide any evidence of an impairment of working ability or ability to engage in the usual pursuits of petitioner’s daily life prior to his suffering the manifestation of the symptoms of his compensable occupational disease.

I find that the respondent alone is responsible for the petitioner’s total permanent disability.

In addition to his orthopedic and neurological disabilities, the petitioner alleges a psychiatric disability. In order to establish such disability, there must be demonstrable medical evidence. This standard can be met without physical manifestations provided the psychiatric expert uses clinical methods to insure an analysis which would yield demonstrative objective medical evidence. The Court cannot accept the mere statement of the patient to substantiate disability. The professional psychiatric judgment may be based upon:

1. an analysis of the subjective statements of the patient,

2. observations of physical manifestations of the symptom related in the subjective statement, and/or

3. observations of manifestations of physical symptoms and analysis of descriptions of states of mind beyond those related in the patient’s subjective statement. See Saunderlin v. E.I.DuPont Company, 102 N.J. 402 (1986).

I accept the opinion of Dr. Johnson with regard to the psychiatric disability as his diagnosis and opinion were in accordance with the requirements of Saunderlin and were not outweighed by Dr. Yaffe whose field of expertise, is neurology and his testimony dealt almost exclusively to that area of petitioner’s claim and I reject his conclusion that petitioner had no psychiatric disability. My own observations of the petitioner as he testified, including his becoming tearful when describing his limitations and his inability to provide for his children are consistent with the opinion of Dr. Johnson.

I find that petitioner’s disability is orthopedic, neurological and psychiatric in nature, being the residuals of spinal stenosis with multiple herniated discs, and the residuals of the surgical intervention for the herniated discs at T9-10 and T10-11, together with a post-traumatic anxiety and depression.

Should the respondent’s knowledge of petitioner’s physical disability based upon the supervisory witnesses observing petitioner using crutches and recommending a doctor to him not be sufficient to establish notice or knowledge of occupational disease, I find that the respondent had timely notice of the nature of the petitioner’s disability and it’s relationship to his employment by respondent by reason of the filing of the Claim Petition.

N.J.S.A. 34:15-33 requires that written notice or claim of compensable occupational disease be given "within a period of five months after the date when the employee shall have ceased to be subject to exposure to the occupational disease, or within ninety days after the employee knew or ought to have known the nature of his disability and its relation to his employment."

In this case, the petitioner did not initially know that his disability was work-related. In fact, although he filed an application for Temporary Disability benefits and claimed a work relationship, he subsequently requested the Division of Temporary Disability Insurance to amend the application to state that it was not work related.

There is no evidence that, prior to the filing of the Claim Petition on March 15, 1996, any of the treating doctors had related petitioner’s condition or disability to the nature of his work. The first medical examinations which concluded that the petitioner’s disabling lower back conditions and their sequellae were related to the exertions of his employment were done on February 13, 1998 by Doctors Turner and Johnson of the Sall-Myers Medical Group. See Earl v. Johnson & Johnson, 158 N.J. 155 (1999).

The petitioner’s wages were stipulated by the respondent as $698.94 based upon a W-2 for 1994, showing petitioner earned $36,304.19 in that year. The wage statement provided by the respondent shows an average weekly wage of $733.17 between July 16, 1993 and September 4, 1994. There was no stipulation of earnings for 1995 however, the earnings for that year are set forth in the TDB records previously referred to and show that petitioner was paid $3,140.56 on January 6, 1995, $187.23 on January 13, and $825.73 on January 20. Since the compensation rates for disability caused by an occupational disease are based upon the wage earned at the time of the last exposure, the petitioner is entitled to the stipulated maximum rate of $469 per week for both temporary and permanent compensation.

Petitioner is entitled to temporary compensation for the period of March 6, 1995 to July 31, 1995, amounting to 21 weeks. He was paid Temporary Disability benefits for this period of time and I take judicial notice of the regulations of the Division of Temporary Disability Insurance requiring medical certification of inability to work during this time.

The petitioner is entitled to temporary compensation at the rate of $469 per week amounting to $9,849

He was paid Temporary Disability Benefits of $187 per week totaling $3879.59 based upon his earnings record at his part-time job since he had been terminated from his full-time employment on January 31, 1995.

The Division of Temporary Disability Insurance has filed a lien seeking reimbursement from any workers’ compensation award entered in this case.

This requires a consideration of the recent cases of In re Scott, 321 N.J. Super. 60 (App. Div. 1999) and Sperling v. Board of Review, 301 N.J. Super. 1 (App.Div. 1997), aff’d o.b. 156 N.J. 466 (1998).

Scott held that a worker holding a full-time and a part-time job who was injured on his part-time job and was paid workers’ compensation benefits for that injury based upon his part-time salary, could also collect Temporary Disability benefits from his full-time job.

The court discussed the Sperling decisions but decided not to rule on the question of reimbursement to the Division of Temporary Disability Insurance of those payments out of the workers’ compensation award. as this issue had not been presented to the hearing officer below. The matter was remanded to the Board of Review for further proceedings in that regard.

The court, however, did hint at what their ultimate decision might be by referring to Justice O’Hern’s separate opinion in Sperling in which he stated that

It is quite obvious to even the most casual reader of its title that N.J.S.A. 43:21-30 intends to avoid double recovery, not full recovery. Although no specific offset provision exists, the purpose of the law demonstrates that recovery for temporary disability and workers' comp is not mutually exclusive. The title to N.J.S.A. 43:21-30 is "Nonduplication of benefits," not "Election of benefits".

Accepting this reference as an indication of what the philosophy should be, and considering the difference in the treatment of full-time work and part-time work in N.J.S.A. 34:15-12 (a) and (b) wherein the compensation rate for temporary compensation is limited to actual wages earned while the permanent compensation rate may be reconstructed for part-time workers to that to which full-time workers in the same character of work would be entitled, I find that the petitioner is not required to reimburse the Division of Temporary Disability Insurance out of the temporary compensation awarded herein on the basis of the wage for the full-time employment for the TDB lien based upon benefits paid for lost time at the part-time wage. The combination of both benefits is less than the salary earned at the full time employment alone.

Petitioner is in receipt of Social Security Disability benefits and, therefore, his permanent disability benefits are subject to offset pursuant to N.J.S.A. 34:15-95-5.

Petitioner is entitled to 450 weeks of compensation, from July 11, 1995 to February 23, 2004, inclusive, payable as follows:

From 7/11/95 to 10/14/95 inclusive, 13 4/7 weeks at $469 per week……………. $6,514.28

From 10/15/95 to 9/30/96 inclusive, 50 2/7 weeks at $312.23 per week………..$15,700.71

From 10/1/96 to 2/23/04 inclusive, 386 1/7 weeks at $432.69 per week……….$167,080.15

Totaling………………...$189,295.14

Thereafter, pursuant to N.J.S.A. 34:15-12(b) at $432.69 per week until 8/9/07, when the Petitioner shall become 62 years of age, and thereafter, during continuing eligibility, at

$469 per week.

Fees and allowances will be set in the judgment to be entered in accordance with this Decision.

Philip Bolstein, Judge of Compensation

October 23, 2000