BEFORE: 

                                                HONORABLE PETER F. WOMACK
                                                Supervising Judge of Compensation

APPEARANCES: 

                                                DONALD WERNER, ESQ.
                                                By:       IRVING SILVERMAN , ESQ.
                                                Attorney for the Petitioner

                                                ROBERT W. FRIELAND, ESQ.
                                                By:       CHARLES N. MARTEL, ESQ.
                                                Attorney for the Respondent

In the matter of Felix Gonzalez v. Colar Americas, Inc., Claim Petition 00-001290, it was stipulated that petitioner was employed by respondent on December 1, 1999 wherein a compensable accident occurred.  Petitioner’s wages were $378 a week making his temporary rate $265 a week and his permanent rate as per schedule.  Respondent claimed that medical treatment was paid for and there was no lost time.  Placed into issue were outstanding medical treatment and bills, temporary disability, and permanent disability.  There is a TDB lien on this case for $6,912.61 that was paid from December 2, 1999 to May 4, 2000 for a severe lumbosacral sprain.  This equals 22 weeks of temporary disability benefits.

Petitioner, on December 1, 1999, was lifting boxes of material when a box began to fall.  He tried to hold it when he hurt his back.  Petitioner worked out the day.  That evening he had to call an ambulance and he was taken to Muhlenburg Hospital.  The next day he called up and reported the injury and the hospitalization to his boss, Joe.  At Muhlenburg Hospital they gave him a shot for pain, prescribed some pain pills, and told him to see his family doctor.  He went to Dr. Gamao who examined him and gave him more painkillers.  Human Resources called from work and sent him to a Workers’ Compensation doctor about four days after the accident.  He then went to Concentra Medical Group who in turn gave him physical therapy for about six visits.  Then the doctor told him he could not find anything wrong with him and cut off his treatment.   He stated that he told the doctors that he could not work because his back was hurting and that, except for going for treatment, he was in bed for approximately two weeks.  Concentra never even took x-rays of his lower back.  Petitioner specifically said he had never hurt his back nor had any back problems prior to this accident of December 1, 1999.  The pain occurs at his belt line and goes across his entire back.  When he tries to lift something the pain is very severe.  He continually takes pain pills.  In fact, he has been on hydrocodone for the last three weeks.  The pain goes down to the back of his knees.  The left side is worse than the right side.  He sees his company doctor for continued pain pills.  His wife works and has medical coverage.  He gets the medical paid under that coverage.  He states that now he cannot even lift a gallon of milk.  He cannot go up and down stairs.  He has to hold onto a banister.  He cannot even tie his shoes because of pain.  The pain gets so bad that he cannot even bend down.  The petitioner, in rendering his complaints, seemed to be overdoing it or exaggerating his condition.  I did not get the impression that his problems with his back are as severe as he complained about.  He is more intent on impressing me with the seriousness of his injury as opposed to giving a true account of his complaints.  That is not to say that petitioner is not having pain in his back and is not having pain.  It just seemed that in his testimony that he was consciously exaggerating his complaints.

Petitioner also mentioned on cross-examination that initially after the accident the pains did not go down his legs.  He had been under the care of a chiropractor for about a month and then suddenly pain began going down his legs.  While being treated by the chiropractor, his condition with his back actually worsened rather than improved.  Petitioner stated that after this initial increase in pain and onset of radicular pain, for the rest of the nine months of treatment, his back remained in the same condition.  At the end of all the treatment he may have felt a little better, but not very much. 

Jonathan Lester, who was board-certified in physical medicine, rehabilitation and pain management testified as petitioner’s initial treating doctor.  He stated he saw the petitioner on December 22, 1999 and rendered six physical therapy sessions.  Petitioner’s complaints were back pain but not radicular pain.  In his surgical exam there were no neurological findings in the leg.  Dr. Lester further felt that there were Waddel signs.  By that the doctor meant that certain findings in his exam did not correlate with the injury described.  This meant that the petitioner was not showing organic pathology.  He basically came down to the opinion that the petitioner was exaggerating his complaints.  He felt there was a significant element of conscious or unconscious malingering.  In describing the treatment by Dr. Fischgrund, petitioner’s chiropractor, Dr. Lester stated that an MRI was uncalled for because the petitioner did not give any radicular complaints at the time of his examination.  He felt that the amount of Dr. Fischgrund’s treatment was unnecessary.  The fact that findings on the MRI showing some herniated discs in the lower back did not alter his opinion.  He felt they were degenerative discs and could have easily been found in people without complaints.  Dr. Fischgrund showed no indication of any treating plan or any treating goals.  There was no evidence of any improvement in his lower spine or complaints.  He felt that the long type of treatment that was done to this person can put people in a position wherein they adopt illness behavior.  This long treatment is, therefore, counter-productive.  Dr. Lester stopped treatment because there was too much embellishment.  The doctor felt that he may very well have had some degree of lumbar pain but even under those circumstances, nine months of treatment was counter-productive. 

Dr. Eddy Fischgrund testified that he was a chiropractor. He stated that he first saw the petitioner on January 7, 2000.  He was sent to him by Dr. Friedman who examined petitioner at the Newark office.  Treatment was performed at the Union Office by both him and a Dr. Zipkin.  X-rays showed vertebral mal-positions in the cervical spine.  I found this to be somewhat interesting since the cervical spine was not injured in this accident at least according to the petitioner.  An MRI was performed which showed focal disc herniations at L3-L4, L4-L5 and L5-S1 with no indication of pressure on the nerve root or thecal sac in the MRI according to Dr. Fischgrund.  He treated the petitioner with chiropractic treatment and spinal manipulation.  There was also disc traction from some sort of machine.  There was moist heat therapy which was hot packs.  There was an electrical stimulation machine whose purpose was to break up muscle spasm.  There was trigger point therapy or palpation of trigger points on the body and massage to smooth out the trigger points.  There was also massage therapy from a machine.  The significance of all these types of treatments was they all add up to a hefty price.  The breakdown is the manipulation would be $75, the trigger point $45, the massage machine $34, the heat  $34, the vibration treatment was $33.  Something else I am not sure of which was $48.  At any rate, this bill for the entire single treatment was $236 and the entire session took a mere 20 minutes.  There is no way in my mind that 20 minutes should equal $236.  I accept he is a chiropractor and he is going to try manipulation.  I can even accept the trigger point message which I would expect to be part of the manipulation and movement of the spine.  I do not know why he needed nine months of a vibratory machine or heat packs.  A fair price for a chiropractic session for 20 minutes would be $150.  The $236 including  all the added material is just overcharging. 

I tried to find out why petitioner needed so many sessions and whether the doctor felt it was reasonable.  Of course, the doctor says everything he does is reasonable.  I asked him why he felt so many treatments were necessary.  It was suggested that 15 to 20 treatments would tell a physician that the treatment was working and whether it should continue.  Nevertheless, the doctor said he continued the treatments because petitioner complained.  So apparently as long as the petitioner complained of severe pain, the doctor will continue treating.  Asked whether he had muscle spasm for nine months, he said it would come and go.  He stated that on October 28, 2000 the petitioner reached an area of chiropractic stability though he still had stiffness, muscle guarding.  He discharged him with a recommendation was that he refrain from lifting.  This seemed to be what his complaints and problems were when he started with the doctor.  I note that Dr. Lester opined that such a length of treatment by Dr. Fischgrund was far too long and would do more harm to the petitioner.  He gave good reasons why petitioner would get into an illness behavior situation.  Based on Dr. Fischgrund’s testimony, I accept to some degree that Dr. Fischgrund really had no long range plan of treatment or goals.  In fact the petitioner did not in any way seem to get any better during the long period of treatment.  Petitioner himself said that he did not even get radicular complaints of pains down his leg until a month after the treatment by the chiropractor.  It sounds to me like the chiropractic treatment has something to do with pressure on already unstable discs.  Petitioner stated that even after that he received no real long-term benefits from the treatment and  continued to be the same for the entire nine months. 

Dr. Horwitz examined for petitioner as petitioner’s orthopedic expert and did not give any testimony to the reasonableness of Dr. Fischgrund’s treatment nor did Dr. Komotar  who examined as petitioner’s neurological specialist.  Dr. Harold Fischer, who is a general surgeon and testified as respondent’s orthopedic expert, noted at the time that he examined, that petitioner had some spasm.  He felt that he had difficulty from herniated discs on the MRI.  He also felt the treatment of Dr. Fischgrund was quite excessive and did not perform any benefit for the petitioner.  Dr. L. Scott Eisenberg, a neurologist who examined for respondent, testified.  He noted that petitioner was having some problems with one of his discs.  However, he also felt that the treatment of Dr. Fischgrund was excessive.  Dr. Eisenberg indicated that there is a place for this type of treatment but after a reasonable amount of treatment you find out the treatment is not working, the doctor is doing nothing but running up his bill.  The doctor felt that if the petitioner was not substantially better after four to six treatments, then there was indication that he is not going to improve.  This might be a little short from the time of treatment to give the petitioner a chance but it does indicate a limited amount of treatments would be necessary to see if the petitioner is responding to the treatment.  If the petitioner does not respond to the treatment, then apparently the treatment is doing no good.  Petitioner even testified that after a month of treatment his condition worsened.  He began having radicular symptoms rather than just back pain. He continued after that to have no relief and no real changes in his condition through eight months of treatment. I would think 15 to 20 treatments would give a sufficient amount of treatment area and to see if the petitioner was going to react to your treatment.  In this case he reacted and was at least in a worse condition at one point with no other help was shown during the entire time period.  According to almost all the medical specialists, this amount of treatment was excessive.  I note that Dr. Eisenberg, respondent’s neurologist, did not say that this treatment wasn’t necessary.   He indicated that  for a limited time this treatment could be effective but after a short amount of time you should see whether the petitioner was responding to the treatment.  If he was not, you should stop that type of treatment.  Dr. Fischgrund, did not. Dr. Lester said the MRI was unnecessary since there were no particular complaints.  Although the petitioner did not give Dr. Lester radicular complaints, apparently he began  having complaints down his legs about a month after he was treating with the chiropractor.  At that point an MRI even by Dr. Lester’s standards should have been necessary.  Dr. Lester did indicate that he felt the petitioner was exaggerating.  In fact, both Dr. Fischer and Dr. Eisenberg agreed with him.  Nevertheless, he admitted that did not mean that the petitioner did not have pain.  It just made it harder to evaluate how to treat this particular man.  In fact, both Dr. Eisenberg and Dr. Fischer found disability even though they felt the petitioner was exaggerating.  So it is clear that the petitioner could exaggerate and probably was exaggerating but still was having pain and problems.  Dr. Lester gave me the impression that once he felt that the petitioner was malingering, he just broke off treatment and sent the petitioner back to work.  I do not think this was a proper response.  Dr. Lester felt that six visits of physical therapy was enough.  Dr. Fischgrund did provide further treatment.  I just think that it should have been limited to 20 treatments when it was clear from the record that petitioner was not responding to the treatments.  Dr. Fischgrund was not authorized and the authorized doctor sent the petitioner back to work.  This gives respondent a defense in that it did not authorize the treatment of Dr. Fischgrund.  However, petitioner’s attorney did file a Motion for Medical and Temporary.  Even though petitioner’s attorney never came in to argue the Motion, it is clear that a Motion was filed. Respondent knew that petitioner was being treated, that he claimed he needed treatment.  Respondent, at that time, could very well have had an immediate exam to see if there was a further need of treatment, thereby controlling the treatment.  Instead, he more or less buried their heads in the sand and they just ignored it.  Therefore, I think respondent is responsible for the first 20 treatments of Dr. Fischgrund.  I do not think that $236 is the proper amount and as I have already said that a reasonable amount for the 20 minute session for chiropractic treatment would be $150.    So 20 visits at $150 each would equal $3,000.  This is what respondent would owe to Dr. Fischgrund for the reasonable and necessary amount of treatment. I do not find any treatment after that, clearly from petitioner’s own testimony as well as the doctor’s, to be necessary treatment.  I do not find that any further treatment to be the responsibility of the respondent.  I note that Dr. Fischgrund never told the petitioner that no one was paying his bill and did not tell him how much each treatment would cost and what his bill was running up to.  He just continued to treat and run up the bill.  This was outrageous behavior on behalf of the doctor.

The next issue is that of temporary disability.  Petitioner actually has never gone back to work and at the time he appeared in court, he still was not working.  Petitioner complained that he cannot lift, and he cannot bend.  He cannot walk up the stairs without holding onto a banister. He cannot lift a gallon of milk.  He cannot basically do anything.  Petitioner claims to be essentially, totally disabled.  There is a difference between permanent total disability and temporary total disability.  Temporary disability is a temporary period while he is being treated for him to reach at least a stabilization where permanent disability would take over.  Dr. Lester felt the petitioner was exaggerating his complaints and sent him back to work.  It is not clear when he released  him to go back to work, whether there was a small time period when petitioner should have but did not receive temporary disability during that time period.  But apparently he at least sent him back to work after six treatments.  He basically sent him back to work because he felt the petitioner was malingering.  He did admit that the petitioner might still have pain.  He apparently felt that he was exaggerating so much it was hard to determine his disability and he just sent him back to work.  Dr. Lester was not very helpful in determining the amount of temporary disability for the petitioner especially since I felt this petitioner needed more treatment than that given by Dr. Lester. I felt petitioner was at least entitled to 20 chiropractic treatments to see if this would help him.   The treating physician during the time while petitioner was out of work was Dr. Fischgrund.  Dr. Fischgrund initially said he kept petitioner out since he could not go back to a job lifting 100 to 125 pounds.  And that is quite a bit of weight for anyone with any kind of back problems and that is not the key for temporary disability.  He has to be temporarily totally disabled.  The question really came down to would the petitioner be able to go back to work restricted from heavy lifting.  When confronted with questions along these lines, doctor stated that petitioner had to lift 125 pounds.  He was not able to do that during his treatment.  Petitioner, however, could do light work. Dr. Fischgrund gave his opinion that he would be able to return to work April 10, 2000 with light duty.  The doctor actually never sent him back to work with light duty restrictions because apparently he never thought about it.  He apparently just assumed that if the petitioner could not lift 125 pounds, he could not go back to work.  Since Dr. Fischgrund is the treating doctor and was examining petitioner during treatment, I have to accept Dr. Fischgrund’s opinion that petitioner was temporarily totally disabled. Apparently as of April 10, petitioner would have been able to return to work doing light work or return to regular work with restrictions for light duty.  Petitioner never even attempted to go back to work.  The time period indicated by Dr. Fischgrund equals 15 and 6/7 weeks at $255 per week or $4,202.14.  However, petitioner received $6,912.21 from New Jersey State TDB and he owes that lien.  So the $4,202.14 of temporary disability will be applied to the TDB lien and petitioner still owes the State $2,710.07. 

The next issue is that of permanent disability.  Dr. Morris Horwitz in his physical exam noted that petitioner had marked curve flattening.  He found tenderness and hardness through the lumbar musculature.  The hardness indicates spasm.  He found certain restrictive ranges of motion, however, none of that was very serious, although the straight leg raising test did show fairly severe findings.  Dr. Horwitz found a herniated nucleus pulpous on the MRI to be L3-L4, L4-L5, L5-S1.  He felt the petitioner was suffering from the residuals of strains of the lumbosacral region either with or superimposed on the herniated discs.   It was Dr. Horwitz’s opinion that petitioner had disability of 47 ½% of partial total.  The petitioner testified of not being able to even lift a gallon of milk, not being able to walk upstairs without using a banister, of not doing any other work.  Dr. Horwitz’s exam and his opinion did not support the testimony of the petitioner.  It is clear from his own orthopedic expert that the petitioner was exaggerating.  Accepting the findings of Dr. Horwitz and his review of the MRI, Dr. Horwitz only found a disability of 47 ½% of partial total which is a far cry from total disability. 

Dr. Anna Miguel Komotar examined the petitioner as petitioner’s neurological expert.  She found the mental status exam to be normal.  She found deficiency in the sensory exam following a L4-L5 pattern. Although petitioner did have three focal disc herniations, it was only the L4-L5 that was manifesting itself with any problem.  The straight leg raising test was similar to the findings of Dr. Horwitz.  Sensory patches were consistent with a L4-L5 distribution.  The diagnosis was bilateral lumbosacral radiculopathy, herniated disc, and Dr. Komotar found 25% of partial total on a neurological basis.  This was a far cry from any claims of total disability by the petitioner.  Petitioner again is clearly exaggerating his complaints, however, it is a clear finding from his orthopedic and neurological experts that he does have disability.  arol

Harold Fischer, respondent’s orthopedic expert, found less range of motion problems than Dr. Horwitz though he did indicate that he did find spasm.  This was an objective finding and shows that his back was acting up.  Dr. Fischer found 60% on a straight leg raising test which was pretty close to the findings of Dr. Komotar and Dr. Horwitz.  Dr. Fischer noted the MRI.  He indicates some of these findings were degenerative and not caused by the accident.  He found 5% of total overall, 2 ½%  for lumbosacral sprain and 2 ½% for the underlying disc.  However, what Dr. Fischer does not mention was that although petitioner may have underlying degenerative disc, this was totally asymptomatic before this accident.  Even if he has lumbosacral sprain superimposed on a herniated disc and the disc then causes radicular complaints, then this accident would have caused the petitioner’s disability.  I accept the complete 5% of partial total to be related to petitioner’s accident.  

Dr. L. Scott Eisenberg examined the petitioner as respondent’s neurologic, neuropsychiatric expert.  In his mental exam he found the petitioner to be sullen.  When asked how he spent his time, the petitioner was evasive.  Dr. Eisenberg found a good deal of exaggeration present.  Petitioner’s exaggeration of his complaints was also found by me when the petitioner testified.  Petitioner’s complaints are also far out of line even with his own expert’s findings.  Dr. L. Scott Eisenberg did not find any disability as to the mental status portion of complaints, but the truth is Dr. Komotar did not find that petitioner was having any psychiatric disability either.  Based on his examination, his reading of the MRI, Dr. Eisenberg felt that petitioner did have significant disc disease at L4-L5 and found disability at 5% of partial total.  He felt the contusion at the L4-L5 disc was causing some spinal stenosis at that level.  His opinion is overlapping, but not completely overlapping with Dr. Fischer.  Dr. Komotar was also somewhat overlapping with Dr. Horwitz, but not completely.  Considering that petitioner does have a herniated disc at L4-L5, that he has clear evidence of radiculitis and clearly a lumbosacral strain and considering the doctor’s reports and findings, I find disability of 22 ½% of partial total.  I find that petitioner’s actual complaints were somewhat exaggerated though he does have true radicular complaints and true pain in his back.  Petitioner’s exaggeration is that he wants to prove to himself that he is totally disabled.  None of the doctors even come close to supporting petitioner’s proposition.  The disability equals 135 weeks at $158.82 a week or $21, 441.

Petitioner owes to TDB the rest of the lien or $2,710.07 to be paid by petitioner out of his permanent award.  I will allow to Dr. Horwitz for his examination, report, appearance and testimony $800, $400 petitioner, $400 respondent.  I will allow to Dr. Komotar for examination, report, appearance and testimony $800, $400 petitioner, $400 respondent.  I will allow to Dr. Fischgrund for his appearance and testimony $1,500, $750 petitioner,
$750 respondent.  I will allow an attorney’s fee of $3,700, $1,300 petitioner, $2,400 respondent.  I will allow a stenographic fee $1,100 payable by the respondent.

The MRI was necessary once the petitioner gave his radicular complaints. Dr. Horwitz, Dr. Fischer and Dr. Eisenberg all felt that the MRI was necessary and the price of the MRI reasonable.  Respondent owes $1,050 for the MRI. 

Petitioner will present a Judgment in accordance with my findings for my signature.

                                                _______________________________________

                                                Peter F. Womack
                                                Supervising Judge of Compensation

January   , 2005