CP# 97-11718 Gardner v. 21 Plus, Inc.
DEPARTMENT OF LABOR
DIVISION OF WORKERS’ COMPENSATION
MARY LOU GARDNER
21 PLUS, INCORPORATED
HONORABLE EMILLE R. COX
Judge of Compensation
SILVI & FEDELE, ESQ.
By SILVIO M. SILVI, ESQ.
For the Petitioner
SHERMAN & VISCOMI, ESQS.
By: ROBERT McGRATH, ESQ.
For the Respondent
The above referenced Claim Petition was initially filed on March 26, 1997 for work related injuries which Petitioner suffered to her neck, back and right shoulder. On March 12, 1997, Petitioner, while employed as an Assistant Manager by Twenty One Plus, was injured when the company vehicle which she was driving was involved in a motor vehicle accident. The parties agreed to a gross settlement of thirty-three and one-third percent permanent partial disability for cervical sprain with radiculopathy, rotator cuff tear to the right shoulder, status post chronic rotator cuff right shoulder with built in decompression and lumbosacral sprain with radiculopathy. This Court entered an order approving that settlement on March 3, 1999.
On March 7, 2002, pursuant to N.J.S.A. 34:15-27, Petitioner filed a timely application with the Division of Workers’ Compensation seeking review and modification of the formal award. Petitioner complained of increased pain, loss of strength and mobility in her injured right shoulder and numbness in her right arm. Following evaluations by their respective physician experts, the parties were unable to reach agreement regarding any increase in disability and submitted the dispute to the Court for determination. The parties agreed to limit the testimony to that of the petitioner and to submit for the Court’s consideration, the reports of the treating and evaluating physicians.
For purposes of this trial, the parties stipulated that, although the original Order Approving Settlement did not reflect the apportionment of disability as to the various injuries, the prior award was deemed to have incorporated a twenty-two and one half per cent partial total disability as to Petitioner’s right shoulder. Having considered the testimony and all of the evidence, I find that Petitioner has failed to prove any increase in disability. Her application for review and modification is denied and the re-opened claim petition is hereby dismissed.
A Petitioner who is seeking to prove an increase in disability must do so by way of comparative medical examinations. Moccia vs Eclipse Pioneer Division of Bendix Aviation, 57 N.J. Super 470 (App. Div. 1959). The Petitioner and Respondent jointly submitted into evidence the medical reports of Dr. Clint C. Ferenz, MD, the treating physician and surgeon who performed the surgery to repair Petitioner’s torn rotator cuff to her right shoulder. Included in Dr. Ferenz’ reports were the results of a series of Motor Nerve Conduction Studies, Sensory Conduction Studies and Electromyography (EMG) tests. In support of her claim, Petitioner submitted into evidence three reports of Dr. Martin Riss, D.O. In response, Respondent offered the report of its expert, Dr. Vijay K. Paharia, MD.
Petitioner’s expert, Dr. Riss’ first report was prepared on November 30, 1998 in support of Petitioner’s prior award. It presents an immediate dilemma for the Petitioner. In his initial report, Dr. Riss determined that Petitioner was totally, permanently disabled as a result of her cervical sprain with radiculopathy, full thickness rotator cuff tear of the right shoulder, right supraspinated tendonitis, impingement syndrome, status post chronic rotator cuff, right shoulder with built-in decompression shoulder and lumbosacral sprain with radiculopathy. Dr. Riss’ follow-up reports, dated June 29, 2000 and January 9, 2003, were, consequently, mere recitations of his first evaluation. The accompanying objective examinations attempt to reflect some diminution of function in Petitioner’s right shoulder, but they show only minimal functional loss, if any. I find that Dr. Riss’ evaluations do not support Petitioner’s contention that she is entitled to a review and modification of her prior award due to increased pain and deterioration in the condition of her right shoulder.
Petitioner’s own testimony offers little support for her application for review and modification. This Court does not question the sincerity of Petitioner’s subjective conviction that she is experiencing pain and her belief that there is some deterioration in the condition of her right shoulder. However, I find, based upon my comparison of her earlier testimony with her testimony on the re-opener that there is little in support of Petitioner’s contention that she has suffered an increase in disability to her right shoulder and therefore merits a modification.
On March 3, 1999, when asked to describe the discomfort that she was experiencing in her right shoulder, Petitioner testified:
I can’t lay on that side at nighttime because of pain, and then sometimes its more severe at times than others, and I think it’s due to the change of climate, the weather. I have pain going from my shoulder down into my arm, and sometimes I even feel it in my fingers.
When asked the same question on July 24, 2003 Petitioner stated:
But the pain is there constantly. It interrupts my sleep at night. Inclement weather does – plays a big part in it ……. Dampness, cold, extreme cold. I can’t lay on …. I used to lay on my right side when I went to bed at night . I have to switch now to my left side.
As a further example of what this Court considers to be Petitioner’s failure to prove any increase in disability, she testified in 1999 that she was unable then to lift groceries with her right hand. When asked about her ability to perform certain household chores she testified:
I have no strength (in the right arm). I don’t have no way of knowing when it’s going to go. Even trying to lift a glass out of a cabinet or something like that. Even vacuuming I have to do it with my left hand.
On the re-opener Petitioner was asked once more to describe the difficulties that she currently experiences when performing her household duties as compared to 1999. She testified as follows:
(T)he vacuuming I could move back and forth a little bit with the help of my left hand………To mop a floor, try to mop a floor, you know, a wet mop, something like that I was able to do that which now I find I’m limited to……(T)rying to do windows, clean windows,……if I spray the windows, something like that now it’s cleaning with my left hand……I used to ……be able to move a little bit with my right hand……but now I try to do it with my left hand.
Petitioner’s testimony is replete with similar unsuccessful attempts to show increased loss of function in her right shoulder. Her testimony as to her inability to accomplish her personal grooming, of numbness and tingling sensations in her right arm or her inability to reach and/or carry certain items, merely reflect a continuation of the same discomfort which Petitioner outlined to the Court at the time of her initial settlement.
Petitioner attempted to demonstrate to the Court a reduction in flexibility in her right arm. That demonstration was equally unconvincing. While giving a similar demonstration during her initial hearing, Petitioner indicated that she was experiencing significant difficulty and discomfort when she tried to use her right arm. Her demonstration on this occasion was similar to that of her initial hearing and did not prove any significant decrease in flexibility. If there was any decrease, it was de minimis, at best.
Respondent offered into evidence the report of its evaluating medical expert, Dr. Vijay Paharia, M.D. Dr. Paharia’s eight-page report is clearly indicative of a more thorough examination of the Petitioner and assessment of her complaints. He provided a thorough review and analysis of Petitioner’s medical history, including the injuries suffered by Petitioner in the accident of March 12, 1997. This physician’s examination of Petitioner’s shoulders was more complete than that of Petitioner’s expert.
After examining Petitioner’s surgical scar, which he described as faint and well healed, with no hyperemia, hyperesthesia or tenderness, Dr. Paharia conducted a series of flexibility tests of her shoulders and arms. He noted:
The patient abducts and forward flexes to one hundred degrees (100°) on the right and one hundred and fifty degrees (150°) on the left. She abducts to fifty degrees (50°) bilaterally. She externally rotates to sixty degrees (60°) on the right and sixty-five degrees on the left. She internally rotates to sixty-five degrees (65°) on the right and seventy-five degrees (75°) on the left. Drop arm test and laxity test are negative bilaterally. There is no joint effusion, swelling, tenderness or muscle atrophy about the shoulders.
Dr. Paharia concluded that Petitioner has accomplished maximum benefit from the surgical repair of the rotator cuff tear to Petitioner’s right shoulder. As stated previously, this Court finds Dr. Paharia’s report to be more believable than that of Dr. Riss because Dr. Paharia evidently conducted a more thorough physical examination of the Petitioner than did Dr. Riss. In support of his conclusions Dr. Paharia also made specific references to findings contained in the reports of Dr. Fischer and Dr. Ferenz, physicians who had earlier treated Petitioner following the accident of March 12, 1997. A Workers’ Compensation Judge must evaluate a doctor’s testimony based upon the quality of the underlying examination. Perez v Capitol Ornamental, Concrete Specialties, Inc., 288 N.J. Super. 359, 367-368 (App. Div. 1996). I find that Dr. Paharia’s examination and report are more thorough and more reliable than those of Petitioner’s medical expert and I have given them greater consideration.
Dr. Paharia’s conclusions parallel, in many aspects, this Court’s observations of the Petitioner in the courtroom and on the witness stand. For example, he described Petitioner’s subjective complaints as, in his opinion, somewhat exaggerated. I have drawn a similar conclusion in evaluating Petitioner’s attempts to describe and demonstrate in court her diminished range of motion and increasing pain.
I consider Dr. Paharia’s finding that there was no sign of muscle atrophy in Petitioner’s right shoulder to be significant in my assessment of Petitioner’s credibility. At the initial hearing on this matter, when asked whether she can lift anything at all, Petitioner testified that she could not even lift a glass out of a cabinet because she had no strength. In her testimony on the re-opener, Petitioner similarly stated that she could only lift or carry objects with her right hand if she supports those objects with the left hand. I am convinced that, had Petitioner truly been unable to use her right arm following surgery and physical therapy in 1998 through November 18, 2002, the date that Dr. Paharia’s examined Petitioner, there would have been obvious signs of muscle atrophy. Petitioner’s movements of the hand during her testimony, particularly in the process of her demonstrations to the Court, give little indications of such atrophy.
Dr. Paharia’s medical findings and conclusions are supported by the medical findings and conclusions of one of Petitioner’s treating physicians, Dr. Clint C. Ferenz. This Court must give appropriate deference to the opinion of a treating physician. See Williams v Western Electric Company, 178 N.J. Super. 571 (App. Div. 1981). Dr. Ferenz examined Petitioner on or about April 9, 2002. He concluded that the condition of Petitioner’s right shoulder has been static and has essentially not changed. In his opinion Petitioner remained at the point of maximal medical improvement and needed no further care. As a precautionary measure he recommended a follow-up test to ensure that there was no peripheral nerve compression disorder. He opined that if the EMG proved to be normal, Petitioner was to remain at maximum medical improvement. An EMG and nerve conduction tests were performed on July 22, 2002 and the results were within normal limits. On July 29, 2002 Dr. Ferenz concluded that he was unable to relate any of Petitioner’s complaints to her work related injury and discharged her from further care.
Having considered Petitioner’s testimony and all of the evidence before me, I find that Petitioner has failed to establish that there has been an increase in her disability. N.J.S.A. 34:15-27. The re-opened Claim Petition 97-011718 is hereby dismissed for Petitioner’s failure to satisfy the burden of proof as required by N.J.S.A. 34:15-27.
Judgment will be entered in accordance with this Decision and will include a stenographic service fee of $150.00 payable, by the Respondent, to State Shorthand Services.
EMILLE R. COX Judge of Compensation
November 17, 2003