CP# 98-4083, 97-3373, 97-9513 Gavin v. Caesars Atlantic City
DEPARTMENT OF LABOR
DIVISION OF WORKERS' COMPENSATION
OCEAN COUNTY DISTRICT
C.P. # 98-004083, 98-009513, 97-03373
DECISION ON MOTION FOR MEDICAL AND TEMPORARY BENEFITS
SUSAN GAVIN, Petitioner
CEASARS ATLANTIC CITY, Respondent
For the Petitioner:
LEVINSON, AXELROD, WHEATON, GRAYZEL, CAUFIELD, MARCOLUS, DUNN & SCHWARZ, Esquires
by: RICHARD J. MARCOLUS, Esquire
For the Respondent:
PETRO COHEN, P.C.
BY STEPHEN M. MATARAZZO, Esquire
MONCHER, LAWRENCE G., J.W.C.,
Mrs. Susan Gavin has for all practical purposes been out of work for 2 years because she claims she can no longer perform the tasks of her job and is in need of medical treatment. She worked for Ceasars casino hotel for more than 13 years as a plumber. Her official job title was operating engineer. This is a difficult physically demanding job requiring a great deal of upper body stress including twisting and turning of the body as she would maneuver around tight spaces to access plumbing fixtures, pipes, drains, toilets, sewer lines, and water supply lines. She used pipe wrenches to tighten and open pipe joints and wires to clean out drains. All of these activities placed a great deal of stress on her back, shoulders and wrists. She engaged in significant repetitive motion of her wrists. Considering the activities she described, it is not unreasonable to believe she could sustain injuries to her back, neck, and wrists. But she also suffered from a plethora of underlying systemic disease processes which also could reasonably be said to contribute to or cause the type physical impairments she complains of here.
Mrs. Gavin is now 50 years of age, the divorced mother of 2 adult children and unemployed for almost 2 years. She has been a good, reliable, trusted, employee of Ceasars for 13 years, earning a living in a field where one does not traditionally find women. Before the admitted July 11, 1997 work accident, there is no evidence in this record to suspect that she was in any way unable to perform the duties of her job. Still, as noted above, Mrs. Gavin=s medical problems did not all begin with the compensable accident or initially stem from her employment with respondent. She had several significant preexisting medical problems and medical risk factors in her life. She was symptomatic and took prescription medication. There is no proofs before me on this motion that the pre-existing conditions hindered her work performance or every day life except that she experienced significant discomfort. This all changed when she was injured in a work accident on July 11, 1997.
In these claim petitions and on this motion for medical and temporary benefits she claims that as a result of this employment she injured her left knee requiring arthroscopic surgery for a torn medial meniscus and shaving of synovium, lumbar pathology requiring further conservative therapy and possibly surgery, cervical pathology requiring therapy, carpal tunnel syndrome (CTS) requiring surgery, and right knee damage including a torn medial meniscus with a torn anterior collateral ligament both of which requires surgery. The issues for decision are the nature of the injuries sustained, whether she needs treatment, whether the accident or the occupational activities aggravated pre-existing pathology necessitating treatment, and whether there is compensable temporary total disability due.
On July 11, 1997 Mrs. Gavin was in a restaurant kitchen cleaning a drain when she slipped on a wet greasy floor hitting her left knee on the ground. The twisting dynamics of her body at the time of the accident caused immediate painful injury to her left knee, left ankle, neck, left hip, and low back. It is likely she may have felt pain in her hands or wrist which logically had been used to break her fall. The accident was timely reported to respondent, who promptly provided medical treatment by its physicians and physical therapists. Petitioner did not respond well to the physical therapy. She had increased complaints and physical symptoms while participating in therapy.
On August 18, 1997, she was seen by respondent=s authorized orthopedic consulting surgeon, Dr. Zabinski. Because of her worsening complaints of low back symptoms he did order a modifications of petitioner=s physical therapy regimen. On September 3, 1997, following a period of conservative therapy, Dr. Zabinski examined her and discharged her from treatment to return to full duties. She tried working for a few days. Mrs. Gavin experienced such extreme pain especially in her left knee and back she could not go on. She returned to respondent=s infirmary and was given a prescription. She remained out of work for a few days.
During that time, petitioner was in such agony that she consulted Dr. Weinstein, a neurosurgeon who contacted Dr. Zabinski. Dr. Zabinski wrote to Dr. Weinstein stating that he had discharged Mrs. Gavin after Amild exacerbation of a chronic underlying spondylolisthesis at L4-L5 and degenerative disc disease@ which had resolved by September 2, 1997, she had reached maximum medical recovery and had been returned to full duty and would only be seen if necessary. From the tenor of the proofs, I believe this required a referral by the employer. Respondent did not return her to Dr. Zabinski until January 8, 1998 after she had obtained several MRI=s, an EMG of both hands, and knee surgery on her own and her attorney had sent a letter demanding medical treatment.
In early September 1997, petitioner returned to work again with no restrictions on activities. She attempted to perform her duties but experienced increased acute pain when she tried to do her normal duties. There was a suggestion that this constituted a separate traumatic event for N.J.S.A. 34:15-7. I think not. She tried to perform, but her injuries from the July 11 accident would not permit her to continue. Again, she sought aid from the employee health station (referred to as the employee infirmary). She was not returned to Dr. Zabinski. No practical help was provided. She was not placed on modified duty. She was not examined, she was not sent for further studies. she stayed out of work for a few days and tried to return once again.
On her last day, September 19, 1997, Mrs. Gavin was in extreme pain from many ailments, particularly her low back, left knee, and wrists. She was unable to work, her condition did not permit the normal twisting, bending, kneeling, lifting and use of pipe wrenches normally required by her job. She reported to the employee infirmary, the physician on duty modified her anti-inflammatory medication and told her to report to work the next day. That evening she was in extreme distress from her left knee, back, and wrists. She went to the emergency room at Community Medical Center in Toms River. She was seen by Dr. Weinstein, a neurosurgeon who prescribed wrist splints, a back brace and an MRI. She latter came under the care of Dr. Nasser Ani, an orthopedic surgeon who ordered additional testing and who eventually operated on Mrs. Gavin=s left knee. Dr. Ani testified that additional treatment and possibly further surgery for other parts of her anatomy may be indicated. In the interim, her counsel wrote to respondent demanding medical treatment. As noted above she was examined by Dr. Zabinski January 8, 1998. He found no need for further treatment and no work connected pathology.
Mrs. Gavin has never returned to work for respondent or any where else. On September 26, 1997, respondent terminated the employment relation. Up until the middle of this trial respondent denied that Mrs. Gavin needed the left knee surgery. At this point, it does not contest the medical need for the left knee surgery but contests causal connection to the work injury. It denies its employment was in any way the cause for any further medical care post employment and disputes the medical need for any other treatment after September 3, 1997, whatsoever. In essence its defense to this motion is that her employment activities and the accident were essentially benign and only caused a mild, temporary, non disabling sprain of her left knee and back. It asks me to accept that it is only a coincidence that this career plumber, suddenly gave up her well paying job to live in poverty with no income and no medical insurance following a work accident. It asks that I believe that some thing else happened to petitioner during the period from Dr. Zabinski=s September 2, 1997 examination and the time petitioner sought out Dr. Weinstein, Community Hospital Emergency Department, and Dr. Ani, all within a few days during September 1997. It asks that I ignore the persistent, non interrupted complaints of physical distress from the accident through her return to work and continuing to date. On the other hand petitioner asks me to authorize multiple surgeries and unlimited temporary compensation for all of Mrs. Gavin=s ailments.
There are any number of possible resolutions of this trial dependent on my finding of facts, so it is time to turn to the legal standards for determination of this case. The lay witnesses were petitioner and her supervisor, Mr. George Kleiner. Petitioner testified in detail including the occurrence, her medical history, the physically demanding requirements of her job including the twisting, turning and pressure placed on her spine and upper extremities, her course of treatment, the history given by her to physicians, and her past and current problems all of which had the ring of truth to it. There was nothing in this record which contradicted or rebutted her testimony. I find her credible. I believe her description of what happened to her and what transpired.
Mr. Kleiner authenticated the initial accident report and indicated he was not present at its execution and could add very little except that petitioner was a reliable employee and that he had no reason to doubt her report of injury. I do not believe that this woman who earned at approximately $750 per week would voluntarily give up her secure job for less than totally incapacitating physical impairments. Such conduct is totally inconsistent with human conduct. She has been unemployed for almost two years and with out any income except for some state temporary disability benefits for the 26 weeks following her termination by respondent.
Each party presented a physician witness to support their factual position. Because of time constraints and the difficulty in scheduling both of these busy orthopedic surgeons to appear in Toms River the parties took their testimony by deposition. The record also contained records and reports of NovaCare, employee infirmary records, hospital records, X/ray reports, reports of MRI examination of petitioner=s knees, cervical spine and lumbar spine, an EMG of petitioner=s arms, and a one page excerpt from a medical text book.
The burden of proof here, as in all Workers Compensation contested cases, is on the petitioner who must produce the evidence and persuade the trier of fact by a preponderance of the credible evidence of the existence of each element of the claim. Perez v. Pantasote, Inc., 95 N.J. 105, 118 (1984). The same evidential standard applies to the factual and legal claims on which respondent has the burden of proof. Fiore v. Consolidated Freightways, 140 N.J. 452, 479 (1995).
For petitioner to prevail, [s]he must establish a link between ... [the] disease and occupational conditions. Petitioner has the burden to prove this causal relation by a preponderance of the evidence. All that is required is that the claimed conclusion from the offered facts must be a probable or a more probable hypothesis. . . The test is probability rather than a certainty. . . . However, the evidence must be such as to lead a reasonably cautious mind to the given conclusion. >The standard is one of reasonable probability; i.e., whether or not the evidence is of sufficient quality to generate a belief that the tendered hypothesis is in all likelihood the truth. It need not have the attribute of certainty, but it must be well founded in reason and logic, mere guess or conjecture is not a substitute for legal proof.= [Citations omitted.] Laffey v. City of Jersey City, 289 N.J. Super. 292, 303 (App. Div. 1996).
Where respondent urges an alternative factual proposition or legal conclusion which will exonerate it or mitigate its liability, it, and not the petitioner, bears the burden of proof and persuasion on that proposition. Cf. Fiore v. Consolidated Freightways, supra.; Gulick v. H.M. Enoch, Inc., 280 N.J. Super. 96, 109 (App. Div. 1995). Here both parties rely on the testimony of treating physicians. Petitioner relied on the records and testimony of Nasser Ani, M.D. a board certified orthopedic surgeon, who operated on Mrs. Gavin=s left knee and who has been her treating physician and examined her on numerous occasions since September 24, 1997. Respondent relied on the testimony and records of Stephen J. Zabinski, M.D., a board certified orthopedic surgeon, who saw Mrs. Gavin as an orthopedic consulting physician twice, on August 18 & September 2, 1997 and twice thereafter as a forensic physician in January 1998 and again in April 1999. Both physicians are well qualified practicing orthopedic surgeons with extensive experience diagnosing and treating the medical problems presented by this case.
Our courts have consistently held that a treating physician in a Workers' Compensation case is in a better position to express an opinion as to cause and effect than one making an examination in order to give expert medical testimony. Bober v. Independent Plating Corp., 28 N.J. 160, 167 (1958); DeVito v. Mullen's Roofing Co., 72 N.J. Super. 233, 236 (App. Div. 1962); Celeste v. Progressive Silk Finishing Co., 72 N.J. Super. 125, 143 (App. Div. 1972). Still the factual basis of the treating physician must be presented and explained. The treating physician=s conclusions must be shown to be justified by the facts of the case. If the opinion of the treating physician were accepted without question, then there would be no need for the common practice of obtaining a second opinion or consultation with specialists.
Manifestly, these opposing medical opinions cannot be considered apart from the factual framework of the entire case. Their probative force must be evaluated by a number of factors. In the process of evaluation, a criterion of recognized significance is the greater opportunity of a treating physician, as compared with a doctor who conducts a single examination in order to become an expert medical witness, to know, understand, and decide upon the producing cause of the patient=s condition.
Bober, 28 N.J. at 167; see also Fusco v. Cambridge Piece Dyeing Corp., 135 N.J.L. 160, 162 (E. & A. 1947).
Here both physicians were treating physicians during critical points in the care of this patient so I have carefully scrutinized the evidence of the physicians, considered their respective interest in the outcome and the nature of their retention by the party who produced their evidence and looked to the objective non party generated evidence, such as hospital records and imaging reports. I placed more reliance on the medical history generated at time of crises such as the initial clinic and physical therapy records than the history contained in physician reports generated after litigation began.
I do not give much credence to Dr. Zabinski=s testimony and respondent=s argument that the absence of certain complaints on Dr. Zabinski=s intake forms means that there was no physical damage such as the torn medial meniscus in the left knee or herniated discs or impairment from the spondylolisthesis at the time he saw her in August and September 1997. The totality of the circumstances suggests to me that the purpose of Dr. Zabinski=s initial retention was to control and monitor treatment for the left knee and lower back. His reports of his subsequent examinations and his testimony have the ring of a litigation investigator rather than a physician seeing someone for treatment. His opinions that petitioner has been coached on how to present her self to a physician for an ulterior litigation purpose have no credible basis. While the January 8, 1998 examination was only scheduled because her lawyer brought the fact of her substantial medical straits to the company=s attention, that does not change the fact of her medical condition. As noted below there, there was a large amount of objective material which confirms the existence of substantial physical pathology. Petitioner is an unlettered individual who has a history of significant prior medical illnesses and medications. She did not hold back this history. She laid it out in some detail including a listing of her medications at the time of intake at the infirmary and for the physical therapy group.
Most of the multiple medical problems she complains of here showed up while she performed her job and caused significant distress. I find there was aggravation of underlying physical conditions and predisposition to injury. The distress arose when she performed her physical activities. She hid no such problem while working before. She did have a history of Lyme disease, arthritis, and carpal tunnel syndrome (CTS) plus other conditions and revealed them when asked on multiple history forms for other medical providers. I find that she clearly complained to Dr. Zabinski about the most significant bothersome problems on the two occasions she saw him for treatment and in more detail when she saw him after this litigation commenced in January 1998. The complaints of other medical problems were there in records created for the employer before Dr. Zabinski saw her on August 18, 1997. If the respondent failed to provide him with the full details that situation is not reason to fault petitioner=s credibility.
Petitioner=s claims are presented in three separate claim petitions, one for a July 11 accidental injury under N.J.S.A. 34:15-7, and two occupational disease claims for the period 1984 to September 19, 1997 under N.J.S.A. 34:15-31. One occupational disease petition was for carpal tunnel syndrome for repetitive use of both hands and the other occupational disease claim petition asserted injuries to the same body parts as the accident claim. The latter, on the record of this motion does not present a valid independent basis for recovery, that claim is now dismissed for failure of proof. The occupational claim for the upper extremities is considered below.
The Workers= Compensation law for accidents N.J.S.A. 34:15-7 allows for compensation benefits for the consequences of accidents which arise out of and in the course of the employment. The occupational disease statute contains stricter requirements for award of compensation benefits. That statute provides in pertinent part that
a.. [T]he 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.
This statute is a part of a legislative plan to contain compensation costs as a balance for increased disability benefits for serious injuries. Fiore v. Consolidated Freightways, 140 N.J. 452, 468 (1995). Previously it was only necessary to show the occupation was a contributing cause. Giambattista v. Thomas A. Edison, Inc., supra. 32 N.J. Super. 103 (App. Div. 1954). Now it must be shown the disease or the acceleration of the disease was Adue in a material degree@ to the exposure. Peterson v. Hermann Forwarding Co., 267 N.J. Super. 493, 503-508 (App. Div. 1993), certif. den. 135 N.J. 304 (1994); Kozinsky v. Edison Products Co., 222 N.J. Super. 530 (App. Div. 1988). Furthermore, the employee must also show the exposure or condition was characteristic of or peculiar to the occupation, process or place of employment and the material cause of the occupational disease. Fiore, supra. 140 N.J. at 468-70.
Resolution of the issue of whether the employment risk was the material cause of the disease depends on whether the proofs establish the compensable disease would not have occurred to the extent it did in the absence of the described employment exposure. See Fiore, supra., at 473-77. If the condition would have occurred to the same extent without the exposure, it is not compensable. If the occupational exposure was a real causative factor in bringing about the disease or its extent, the injury may be compensable. Id, at 477. If the occupational activity aggravated and made the medical condition worse, there is liability.
In Prettyman v. State 288 N.J. Super. 580 (App. Div. 1997), an accident case, the court had occasions to again discuss the how this tribunal must consider employment risks which have an impact on the employee. These principles have equal application in deciding occupational exposure claims. In both accidental injury claims under N.J.S.A. 34:15-7 and occupational disease claims under N.J.S.A. 34:15-31 (a) the risk factor which is claimed to be the cause of the injury must be shown to be employment related rather than something experienced by the general population. The court stated:
We have recognized that there are"three categories of risk used in determining the connection between employment and injury." Id. at 126 (citing Howard v. Harwood's Restaurant Co., 25 N.J. 72, 83 (1957). These categories are used to decide whether an injury arose out the employment as required by N.J.S.A. 34:15-7. The first category described a "but for test," questions whether it is more likely than not that the injury would have occurred in the workplace rather than somewhere else. Id. at 126. The second category of risks are classified as"neutral risks" and are those risks that occur due to"uncontrollable circumstances which do not originate in the employment environment but which happen to befall the employee during the course of his employment." Id. at 127 (quoting Howard, supra, 25 N.J. at 84). The third category of risks are those which"do not bear a sufficient causative relationship to the employment" and are considered" personal to the claimant" or "idiopathic." Ibid. (citations omitted).
In Dietrich v. Toms River Bd. of Education, 294 N.J. Super. 252 (App. Div. 1996), an occupational disease case, the court held that compensation law did not allow compensability when an underlying idiopathic cardiomyopathy condition became evident during stressful employment occurrences unless there was a material causal nexus between the employment happenings and the worsening of the underlying heart disease. The happening of acute symptoms while Dietrich was at work was merely an idiopathic occurrence. There was no credible medical evidence that the work conditions caused the heart condition. In Dietrich, the court observed there was a lack of
Asuitable medical evidence that the job stress substantially contributed to the condition or disease that developed, and that without the exposure, it would not have developed to the extent that it caused the disability manifested.@
The pertinent provision of the Workers' Compensation statute which speaks to the provision of medical treatment requires that an
employer shall furnish to the injured worker such medical, surgical, and other treatment, and hospital service as shall be necessary to cure and relieve the worker of the effects of the injury and to restore the functions of the injured member or organ where such restoration is possible... [The] Division of Workers' Compensation, after ... giving the employer an opportunity to be heard, shall determine ... [whether] such ... treatment is necessary. [Emphasis added.] N.J.S.A. 34: 15-15.
The employer=s statutory duty to provide adequate and proper medical treatment is absolute. Benson v. Coca Cola Co., 120 N.J. Super. 60, 66 (App. Div. 1972). Under the New Jersey Workers= Compensation law the respondent ordinarily has the power to control treatment and select the medical providers. Benson, supra. This is essentially a managed care system, except the patient is not left to dispute resolution by a system controlled by the insurer. The Division of Worker=s Compensation hears disputes to determine if the insurer or employer is wrong in its treatment decision or is acting arbitrary. N.J.S.A. 34:15-15. Here respondent recognized the compensability of the July 11, 1997 accident and provided medical treatment benefits from the date of the accident until September 19, 1997. Compensation for temporary disability must be paid by the employer when an employee is unable to work and has no wages because of incapacity due to a compensable injury. The payments continue until such time as the employee is able to regularly resume work or has been as restored to the maximum physical function permitted by the permanent character of the injury. N.J.S.A. 34:15-38; Harbatuk v. S & S Furniture Systems Insulation, 211 N.J. Super. 614 at 623-28 (App. Div. 1986); Monaco v. Albert Mound Inc., 17 N.J. Super. 425 (App. Div. 1952).
Both parties were represented by capable counsel who ably advocated for their respective clients. I have carefully reviewed the cogent written summations and the documentary evidence. I then reread the transcripts, including the deposition transcripts of the physicians. I am acutely aware of the importance of the case to the parties. Petitioner has not been employed since September 1997. She is seriously disabled. There is a state TDB lien of $6,913.41 for temporary disability benefits paid by the state from September 20, 1997 to February 28, 1998. If petitioner recovers here, all of that lien must be honored from the proceeds of any judgment. Obviously, the respondent has paid for the medical services it authorized.
The medical treatment obtained from other physicians subsequent to her discharge by Dr. Zabinski=s discharge on September 3, 1997 and definitely after his letter of September 10 will fall on respondent providing the injuries were compensable. Some of petitioner=s medical bills have been paid by employer provided medical insurance, some she has paid, still others may have been provided by charity care or Medicaid. Dr. Ani reports some unpaid amounts plus medicaid and insurance write offs. This may account for the current lack of bills for treatment expenses. Respondent denies causal connection and the need for all treatment obtained following Dr. Zabinski=s September 2 discharge to full work. So, to the extent liability is established in this trial, respondent must pay those who provided or paid for the care at the reasonable value of the care. N.J.S.A. 34:15-15.1. It would be outrageous to divert medical insurance funds, public or charity funds to pay the responsibility of an employer. See N.J.S.A. 34:15-57.4(a). It was agreed by counsel, that if there is liability, respondent=s liability for medical expenses would be subject to audit of the bills for compliance with the standards of N.J.S.A. 34:15-15.
The Supreme Court has frequently reiterated that the Workers' Compensation Act is to be liberally construed in order that its beneficent purposes may be accomplished. Fiore v. Consolidated Freightways, supra., 140 N.J. at 465. With all of these precepts in mind, I arrive at the following additional findings and conclusions.
Petitioner=s personal medical history is an integral part of sorting out the issues. She is 5 foot 2 inches tall and at all pertinent times obese, her weight is reported at 184 to 190 pounds. She is a diabetic maintained on oral medication and suffers from urinary leakage. She has hypertension for which she takes Cardura. She takes Lipitor to control her cholesterol and Claritin for allergy. She takes Naprosyn, a non-steroidal anti-inflammatory medication and a calcium supplement for degenerative arthritis and carpal tunnel syndrome as well as Cyotec to counteract stomach reactions. She has a history of migraine headaches. She also takes Serzone and Deprkote for a bipolar disorder, the first is an antidepressant, the latter for manic symptoms. Mrs Gavin had been diagnosed with Lyme Disease in the early 1990's. All of which were prescribed before the July 11, 1997 work accident. She carried a diagnosis of osteoarthritis and CTS for a few years prior to this compensable accident. The CTS was reported to effect her finger tips. She also reported a pre-existing constant numbness in her right shoulder.
This past history was provided on July 16, 1997, a few days after the accident, to NovaCare, the respondent=s rehabilitation facility. It has the indicia of being credible. The detail is such it could only be provided by petitioner. It covers far more detailed medical information than that reported by Dr. Zabinski. I infer that Dr. Zabinski was only interested in the two major problems which necessitated the referral to him, i.e., her left knee and low back and nothing else. Dr. Zabinski=s conclusions expressed here that he found nothing which would prevent petitioner from returning to her normal duties as of September 3, seem inconsistent with his findings just two weeks earlier on August 18 when he ordered an easing up on physical therapy to the low back because of petitioner=s increasing discomfort during exercise. His minimizing of the impact of this injury just does not square with the historical progress of Mrs. Gavin from the date of the injury, during physical therapy, and following her abortive attempt at return to work. While she had pre-existing spondylolisthesis in her low back and may have had the beginnings of degenerative disc disease, the dewatering of intervertebral discs in the low back, as well as fibromyalgia (chronic low back soft tissue pathology), none of this has been demonstrated to have caused any incapacity in her ability to work before the accident.
The immediate observation of the consequence of the low back injury and administration of physical therapy by the medical providers who saw her in the days following the accident corroborate the fact of an incapacitating low back injury. While Lyme disease does cause degenerative joint tissue disease, here, all that can be said is these were predisposing factors in her low back which just made her more susceptible to the impact of the low back injury. Dr. Zabinski was not impressed by petitioner=s low back or for that matter by her left knee symptoms. I find that the effusion in her left knee was present, but the pathology was not observed because her body fat hid it from clinical observation. His evaluation of Mrs. Gavin was proven to have been wrong by the subsequent objective imaging tests and surgery. Dr. Zabinski=s testimony is not to be accorded much probative weight. Dr. Ani=s immediate findings are more credible.
Dr. Ani=s suspicions of the seriousness of the low back pathology and her other complaints were proven correct by the imaging tests. I find it likely that her left leg radicular symptoms were masked by the left knee injury. It certainly became even more pronounced when she tried to work in September 1997. The MRI of the low back proved the presence of pathology which can be disabling, there was evidence of a disc protrusions which would cause the left leg radicular symptoms. This does give credence to Mrs. Gavin=s persistence complaints of incapacitating low back pain dating from the July 11, 1997 accident. This is not the time to determine how much of the low back pathology pre-existed, the important thing is that it did not interfere with her ability to do the twisting, bending, turning and weight bearing required by her job before the accident. It became more symptomatic and became an impairment precluding work following the accidental injury to this part of the anatomy. The quantum of prior impairment if any, should be determined at the time of measurement of permanent disability when respondent will bear the burden of proof. N.J.S.A. 34:15-12(d) and/or 34:15-95. Her underlying problems were made acute and required treatment. If there was not evidence of a recent damage to the left knee and low back there would not have been treatment by respondent. The initial records present no basis for finding it was absent but confirm its presence.
Mrs. Gavin could not accept the continued stress of physical therapy to her low back. She can not now engage in the heavy work she did before the accident. She continues to experience radicular pain as well as lower back pain. Substantial pathology in the form of slippage of L4 on L5, the disc bulges and degenerative disc process at L3-L4 to L5-S1 or as termed by Dr. Ani, herniated discs, exist and continue to cause substantial impairment. Dr. Ani=s analysis and diagnosis has been proven correct. He did not merely rely on the radiologist=s interpretation but viewed the films which correlated with his detailed clinical exam and observation of this woman from shortly after she was fired by respondent until quite recently. The injury was serious and requires ongoing treatment as recommended by him. Epidural injections by Dr. Handlin have not relieved her current symptoms. Unfortunately Mrs, Gavin has had little or no income and no medical insurance since shortly after she left Ceasars and was without the means to provide for treatment except that limited charity help available. I agree it is time to try medical treatment on her back. Despite the large gap in time between the original trauma and now, further treatment modalities should be attempted before deciding that there is no room for improvement or measuring permanent disability. At this point, the back pathology continues to preclude work. I find Dr. Ani=s ongoing appraisal to be more reliable than Dr. Zabinski=s minimalist approach.
As a consequence, respondent is directed to immediately select and pay for a physical therapist reasonably convenient to Mrs. Gavin=s home to provide physical therapy as directed by Dr. Ani. An EMG of the lumbar spine is necessary to determine the extent of petitioner=s lumbar radicular complaints. Respondent shall provide for an EMG as prescribed by Dr. Ani. Until further order of this tribunal, Dr. Ani shall remain the treating physician at the cost and expense of respondent pursuant to the standards contained in N.J.S.A. 34:15-15 until and unless changed by agreement of the parties or by order of this tribunal. Respondent shall provide for and pay the reasonable cost of medications ordered by Dr. Ani for her back problem and such additional tests as are required to alleviate the impact of the back injury. At this time surgery is not authorized. I am concerned that petitioner=s systemic medical problems specifically diabetes, hypertension, Lyme disease, and medication for her bipolar disease might make her a surgery risk. The parties shall review her course in 3 months, if Dr. Ani should then recommend back surgery and if petitioner wants it, respondent shall order a second opinion examination from one or more physicians of its choosing, if there remains disagreement on the need or advisability of surgery, either party can apply to me for appointment of independent physicians to examine and provide an opinion on the necessity of surgery. If respondent desires to change the authorized treating physician, it shall first consult with petitioner, if she declines the new physician, either party may make application to this tribunal.
Respondent shall pay petitioner temporary total disability until such time as petitioner=s condition reaches a point where her low back is not likely to improve or active curative medical care ceases. Treatment to petitioner=s back has been delayed because respondent has denied liability for it, as a consequence now there has been a substantial period of time during which she has been incapable of work and a substantial accrued temporary total disability liability. Respondent shall pay temporary total disability from the date she was last paid salary, September 19, 1997 to date.
Turning now to the left knee injury, respondent admitted petitioner injured her left knee and provided medical care and paid temporary total disability during therapy for 2 months. Mrs. Gavin suffers from systemic conditions which would make her more susceptible to damage. When Mrs. Gavin slipped on a wet kitchen floor, there was direct contact of her left knee with the floor. I find because of Mrs. Gavin=s obesity, it is likely that the effusion and damage to her left knee was missed during physical exams prior to her seeing Dr. Ani. There is no evidence of any intervening trauma or event which can be said to have caused the pathology discovered on the MRI examination of her left knee. Petitioner had consistently and continuously expressed complaints of pain and discomfort in her left knee from the date of the accident through respondent=s authorized treatment, examinations, her attempted return to work and to Dr. Ani. The time span to objective corroboration is short. The MRI of her left knee clearly revealed a tear of the medial meniscus which required the surgery.
Respondent shall pay all reasonable costs associated with the examinations, treatment including the surgery of petitioner=s left knee. If further physical therapy to the left knee is necessary, respondent shall provide for it at the same time it provides for medical care. Since I have awarded temporary total disability benefits as stated above for the low back injury, there is no need at this time to measure the period of temporary disability which would run for approximately 2 months post surgery.
Petitioner=s right knee presents a different factual background. There is no history of injury or complaints to the right knee until petitioner tells Dr. Ani about it almost a year after the initial trauma. There is no claim made on this motion that the damage is due to her favoring her left leg or to her treatment. The only indication of right knee problems early on is the fact that she marked both knees on a diagram as presenting symptoms for NovaCare on her second visit to that physical therapy facility. Dr. Ani=s opinion of causal connection was based on the fact that almost a year post accident, he received a history of injury to the right knee and no other cause was suggested to him. Her lack of complaints to all of the physicians, including Dr. Ani, until 11 months latter precludes my finding a causal connection to her work. There were no clinical signs of right knee damage until 11 months post accident. Initially Dr. Ani observed a left sided antalgic gait, but no such clinical evidence on the right leg. My expertise as a compensation judge teaches that physicians always make comparative examinations of both extremities. The large time gap of being symptom free makes it more likely her right knee was symptom free. Her right knee problem was caused by a systemic cause or subsequent unknown event. For all of the foregoing reasons, at this time, I must deny the claim for treatment of petitioner=s right knee.
Petitioner did present complaints of injury to her shoulder and cervical regions at the time of the initial treatments for the accident and did have a history of pre-existing complaints and treatment to that area of the body. While there was no history to Dr. Zabinski, he was not consulted for that problem. Again if the employer did not provide him with the records and he did not make specific inquiry, he would not be aware of the problem. Because of the severity of Mrs. Gavin=s complaints, the fact that she was a credible patient, and findings on clinical examination, I conclude that the cervical EMG and cervical MRI were prudent medically necessary evaluation measures at the time taken by Dr. Ani. They were made necessary by the accident. There is no evidence of new ongoing problems with the shoulder. Cervical symptoms continue. Cervical impairment and the pathology was present before the July 11, 1997 accident.
Respondent shall pay for the reasonable cost of these examinations and imaging including reimbursement of the insurers and funds who paid for these services. The MRI performed on petitioner=s cervical spine on October 2, 1997 reported degenerative changes at C5-C6 and C6-C7 levels with minimal ventral impression on the thecal sac, but no herniated discs. The EMG confirmed the presence of right sided C6 radicular pathology. The historical record requires a finding that these anatomical pathologies were present before the accident. The symptoms had required treatment for several years. Neither party presented proof of the extent of prior damage. The only basis for projecting respondent=s liability for treatment would be petitioner=s complaint that these conditions caused more pain and impairment following the accident. The symptoms became even more pronounced when she tried to return to work. Dr. Ani gave her exercises to do at home. He has recommended consideration of additional physical therapy and anti-inflammatory medication possibly followed by an epidural injection of the neck. After this much time and in the absence of any intense pathology, I do not believe further physical therapy would help. Anti-inflammatory medication is being prescribed for the other medical problems so there is no need for further medication. There does not appear to be any new or awakened pathology in the cervical spine causing acute symptoms at this time, so I decline to order epidural injections to the neck. There will be no order for additional treatment of the cervical spine at this time.
Petitioner=s carpal tunnel syndrome was diagnosed and treated for a few years prior to 1997. While she may have landed or used her hands to break the July 11, 1997 fall, the record contains no evidence of injury to her hands. The accident was not the cause of additional impairment. The question is was this condition attributable in any way to a compensable occupational disease. She possess several non-work related risk factors for developing carpal tunnel syndrome such as diabetes, her sex and Lyme disease, and her age of 50 years. I do not doubt that these factors have contributed to the development of her carpal tunnel syndrome, but I am impressed by the fact that she engaged in plumbing work using repetitive motions of her wrists and placing stress on her wrists while using pipe wrenches and equipment to clean drains on a daily basis for the 13 years of her employment. The question is was her work a material contributing factor to the development of the current status of her carpal tunnel disease. Dr. Ani the treating physician expressed in convincing words after reviewing the hypothetical question that the work was an aggravating cause.
The reasons I expressed for declining to accept the credibility of Dr. Zabinski=s opinions above contribute to my rejection of his opinion that her carpal tunnel was due entirely to systemic and personal causes and had no work causation of any nature. The one page from a medical text book cited by him as support for his conclusions is not convincing. Medical text books are collections of many papers. This page is merely a summation of some statistics and does not weigh or discuss the physical consequences of repetitive stress on the wrist at work but merely discusses the importance of other risk factors for older women and systemic diseases. Nor does it consider the consequences of long term physical stress such as what Mrs. Gavin performed at her job. It does not rule out a contributory input by physical stress into this condition. For these reasons I do not accept it as the final word of the issue of work relation.
Dr. Ani testified several times that the work effort aggravated her carpal tunnel condition. He was asked by counsel to explain how this happened. I find the time sequence and nature of her activities are of the type which frequently are found to be an aggravating factor in causing or accelerating CTS. But at this time I am not prepared to make the necessary finding of compliance with N.J.S.A. 34:15-31(a) as discussed above. Dr. Ani=s answer did not provide an explanation in that it did not present the physical mechanics of the development of this illness, how the work efforts over 13 years physically worked in conjunction with the other risk factors. Nor did he explain whether Abut for the work activity@ the condition would reach the extent it did at the time of his examinations. There must be further proofs on this issue. See Aladits v. Simmons Co., 47N.J. 115 (1966). Considering that this evidence was presented by deposition, justice demands that the record be supplemented so I can determine if petitioner has met her the burden of proof on this issue required for liability under N.J.S.A. 34:15-31(a).
Petitioner shall make arrangement to present testimony on this issue by testimony by Dr. Ani, if available or some other forensic physician within 70 days from today. Within 30 days from today, petitioner shall present to respondent the written report if any, and summary of any oral report and copies of any medical treatises relied upon. Respondent shall present to petitioner its experts written report, if any, and summary of any oral report of its expert together with copies of all medical treatises relied on within 30 days of receipt of petitioner=s submission. Respondent=s expert should be scheduled to testify on the same day as petitioner=s expert. All medical treatises to be used in direct or cross-examination must be exchanged in advance of the hearing.
A.) Petitioner is awarded temporary total disability from September 19, 1997 to date, 94 4/7 weeks at $496 per week a total of $ 46,907.43 and continuing thereafter at $496 per week until petitioner is no longer temporarily totally disabled. Respondent shall deduct $6,913.41 and pay the State TDB lien. Temporary total disability may be terminated and the terms of this order modified on the earlier of 1) the authorized treating physician reports to respondent insurer in writing stating petitioner is no longer temporarily disabled, her condition is not likely to improve or that she can return to full time work, 2) petitioner returns to work, or 3) further order of a judge of compensation, which may be sought for good cause on 2 days written notice to petitioner.
B.) Respondent shall, subject to audit for reasonableness, pay Dr. Ani and the other physicians, hospitals, radiologists, therapists and others who have provided or who shall provide for treatment for the injuries ruled compensable by this decision. I could not interpret Dr. Ani=s bills which were submitted at the close of this trial. The doctor must supply respondent with detailed statements which describe when he was treating for specific purposes so the respondent is not charged for the non compensable injury to the right leg. Respondent shall reimburse any other insurer or government agency which has paid for any part of petitioner=s compensable treatment. Respondent shall reimburse petitioner for any expenses she has incurred for anti-inflammatory medication prescribed by Dr. Ani and shall arrange for the dispensing and payment of anti-inflammatory medication which may be prescribed by him in the future. If there is a dispute on the reasonableness of any such charges, I will retain jurisdiction to determine same. The compensation insurer is in the business of determining reasonableness of medical expenses and subscribes to data banks which provide such information for all types of medical care. I assume they will competently discharge their obligation with dispatch.
C.) Dr. Ani shall remain the authorized treating physician for petitioner=s low back injury and if required for her left knee at reasonable rates prevailing in this community. No further surgery is authorized at this time. The doctor shall furnish periodic reports to respondent along with his periodic bill. Other than prescriptions and physical therapy, no other service shall be ordered without consultation and approval of respondent as to the provider, type of service, and cost in advance. No treatment to other parts of her anatomy are authorized at this time. The parties may agree on the designation of another treating physician or if respondent desires to change the treating physician it may apply to a judge of compensation for leave to do so. Respondent shall furnish to petitioner=s attorney copies of all reports received from the treating physician or other practitioners. Petitioner may move to modify this order to obtain relief for good cause shown on 2 days written notice to respondent.
D.) Respondent shall have the right to have periodic examinations of petitioner by physicians of its selection at its cost at reasonable times and places reasonably convenient to her home.
E.) The following allowances are made:
1.) Dr. Ani is allowed $750 for his appearance and testimony at a deposition and $250 for preparation of reports and records, all of which shall be payable by the respondent. Because his testimony was required to vindicate the need for treatment and the causal connection of the injury to the compensable injury, the stenographic charges for the deposition and the cost of the transcript shall be at the expense of respondent. If any part of these expenses has been advanced by counsel, the judgment order shall provide for reimbursement.
2.) Petitioner=s attorney shall be reimbursed by petitioner for the cost of any other transcripts needed for prosecution of this case. The cost of other medical treatment records shall be reimbursed to petitioner=s attorney by petitioner. If counsel seeks reimbursement for any other litigation expenses, documentation of the expenses shall be provided along with the proposed form of judgment prepared by counsel.
3.) Petitioner=s attorney is allowed a counsel fee of $9,000. payable by respondent. This fee may be increased at a latter point in this case to 20% of the then known total value of temporary total disability and medical treatment expenses obtained and paid as a consequences of this motion.
4.) Respondent shall pay a stenographic fee of $300 to John F. Trainor, Inc.
F.) There shall be further testimony on the carpal tunnel claim.
G.) The issue remains whether respondent insurer is liable for a 25% penalty for denial of temporary total disability for more than 30 days. N.J.S.A. 34:15-28.1. See Amorosa v. Jersey City Welding & Mach. Works, 214 N.J. Super. 130 (App. Div. 1986). I have carefully examined the record of this case and find the failure to pay temporary disability to this point was due to the insurers reliance on the opinions of Dr. Zabinski which appear to be bona fide. He is a competent reputable board certified orthopedic surgeon. Though I found contrary to his opinions and findings, still, I find his opinion letters to the insurer were based on disclosed facts. Cigna=s reliance on his opinion was in an objective sense in good faith. For all of the foregoing reasons, I conclude respondent has successfully rebutted the statutory presumption of unreasonableness and negligence. Respondent is cautioned that a new statutory 30 day period begins to accrue once a judgment is entered implementing this decision.
Dated: July 14, 1999
Lawrence G. Moncher, J.W.C.