DECISION

MAXINE GORRELL, Petitioner

vs

HULS AMERICA, INC.and
TOT SPOT @ RWJ HOSP., Respondent

In The MATTER OF MAXINE
GORRELL for BENEFITS FROM
THE SECOND INJURY FUND
 

PINCUS & GORDON, Esqs.
By: GERALD GORDON, ESQ.,
Attorney for Petitioner

McKORMICK, STIERLI, & McFADDEN, ESQS.,
By: PAUL F. GELENITIS, ESQ.,
Attorney for Respondent Huls America

HOWARD W. CRUSEY, JR., ESQ.,
By: ANN DEBELLIS, ESQ/\.,
Attorney for Respondent Tot Spot

No Appearance for the Second Injury Fund 

Philip Bolstein
Judge of Compensation

On July 8, 1992, petitioner Maxine Gorrell filed a Claim Petition for occupational disease against respondent Huls America, alleging multiple orthopedic, neurological, and psychiatric disabilities to be due to her employment with said respondent from February, 1989 to early 1992.

The respondent admitted that petitioner was employed as a data entry operator, using a Memorex telex machine, until March 18, 1992 at a wage of $372 per week and that it had due and timely notice and knowledge of causally-related occupational diseases of a multiple nature, for which it was providing necessary medical treatment and paying temporary compensation.

Petitioner next filed a Verified Petition for Benefits from the Second Injury Fund on July 18, 1997, alleging that she was totally and permanently disabled by reason of the effects of the permanent disability causally related to the occupational diseases due to her work for Huls America, together with permanent disabilities causally related to prior accidents and illnesses enumerated in said Verified Petition.

Lastly, petitioner filed a Claim Petition against Tot Spot on January 20, 1998, alleging that she suffered additional permanent disability by reason of her employment there between May, 1996 and January 6, 1997 as a part-time substitute teacher assistant. The respondent admitted this employment but denied that said employment caused or aggravated the pre-existing conditions, which were due to petitioner’s employment at Huls America.

The consolidated matters came on for hearing before me.

The petitioner testified that she had worked as a data entry operator for various temporary agencies as well as for Merrill Lynch prior to her employment with Huls America. At Huls America, she would sit at a keyboard and enter data during her entire daily shift of seven and one-half hours for five days per week, with two 15-minute breaks each day.

She developed symptoms of tingling in her fingers with occasional severe pain in her hands at night, beginning with her right hand and, later, also involving her left hand as well. She reported these problems to her employer and was sent to a series of authorized doctors. Eventually, she had surgery on her right hand, which was not totally successful in alleviating her symptoms.

She was referred to Dr. Robert Beasley, a professor and Director of the NYU Hand Service, who initially saw her on August 26, 1992 and continued to see her for her complaints to both hands. He eventually operated on her left hand on April 12, 1994, performing a decompression of her left median and anterior interosseous nerves through the pronator teres and the origin of the digital superficial flexor muscles in the left wrist area, and a decompression of the left median nerve though the distal forearm and carpal tunnel of the wrist.

Petitioner was subsequently referred to the pain management program at the JFK Rehabilitation Institute where she was treated from December 1, 1995 until January 26, 1996. She received physical and psychological therapy and was discharged on Elavil with a recommendation that she be seen as needed and continue follow-up with her vocational counselor.

Petitioner was awarded Social Security Disability as of March 13, 1992 and is currently receiving those benefits.

Petitioner, on the advice of her vocational counselor, obtained a job at Tot Spot on May 20, 1996. She was a teacher’s assistant and worked 2 to 4 days per week, except for 4 weeks in July, and worked from 2 to 5 hours per day. She worked with infant children, changing them, feeding them and playing with them until the end of December 1996 when she stopped because she was unable to perform the work due to the symptoms in both hands.

Petitioner testified on February 19, 1999. She complained that her symptoms were the same as she had when they first began. She has tingling in the fingers of both hands and pain in her hands, wrists, and shoulders. She has swelling in both wrists for which she uses icepacks. She has surgical scarring on the left forearm from the area of the elbow crease going down diagonally to the inner forearm, and on the right hand there is a vertical scar from the mid-palm extending about two inches above the wrist crease.

She is significantly limited in the activities that she can perform and, when describing these limitations, she became emotional and tearful. She is depressed as a result of her physical limitations.

The multiple reports of Dr. Robert W. Beasley (exhibit P-13) cover the period from August 26, 1992 until June 30, 1994. As far back as April 14, 1993, Dr. Beasley expressed the opinion that Mrs. Gorrell was not capable of any employment which she was physically able or prepared to do by way of training or education. He recommended referral to DVR for appropriate retraining consistent with her physical limitations.

On August 25, 1993, he found additional problems with petitioner’s left upper extremity which were causally related to her prior employment. He also described petitioner as having a "constitutional tendency " to develop multiple inflammatory disorders which would require her to adjust her activity levels to the tolerance of her connective tissues. He noted "I have again spent a long time today going over these distressing facts with Mrs. Gorrell as her understanding of them is obviously critical to the adjustments that she is going to have to make."

On April 12, 1994, Dr. Beasley operated on petitioner’s left forearm to decompress the left median and interosseous nerves

Finally, on June 30, 1994, Dr. Beasley discharged Mrs. Gorrell from active treatment, stating: "Clearly, Ms. Gorrell has an enormously strong constitutional tendency to connective tissue inflammation and probably this will show up in various ways from time to time. I have urged her to plan vocational training and adjustments to minimize this for the future as the problems aggravated by her last employment have been brought to the maximum benefit of treatment."

Petitioner became a client of the State Division of Vocational Rehabilitation Services in March, 1993. (Exhibit P12). Her case file shows that a psychological assessment by Dr. Alan Gordon in May, 1993 revealed that she was suffering from an adjustment disorder with mixed emotional features and on psychotropic medication in addition to the right carpal tunnel syndrome.

She was thereafter seen or telephonically interviewed on numerous occasions in an attempt to find some type of employment that she could perform within her physical limitations. These efforts were interrupted by petitioner’s second surgery and, after unsuccessful attempts to find work which petitioner could perform, DVR referred her to the pain clinic at JFK Hospital. Mrs. Gorrell later entered the outpatient pain program at the JFK Johnson Rehabilitation Institute.

Dr. Iqbal Jafri, a Diplomate of the American Board of Physical Medicine and Rehabilitation and the American Academy of Pain Management, testified for the petitioner. He treated Mrs. Gorrell at the Physical Medicine and Rehabilitation Institute of the John F. Kennedy Hospital between December 1, 1995 and January 20, 1996. She had been admitted into the multi-discipline outpatient pain program. This included physical therapy, medications, and psychological support and counseling. The latter area of treatment was necessary because petitioner was under stress and depressed due to the chronic nature of her pain.

Dr. Jafri diagnosed petitioner’s condition as a reflex sympathetic dystrophy, now called a complex regional pain syndrome. This essentially is a condition wherein the patient has pain and swelling of the affected areas with changes of skin temperature and extreme sensitivity to touching of the skin. There are also color changes and swelling. In petitioner’s case, the affected areas involved both hands. Petitioner was treated with physical therapy, exercises, and medication to control her pain and relieve her anxiety and depression.

Following her discharge from JFK, Mrs. Gorrell again saw the counselor at DVR on March 26, 1996. At that time, she expressed an interest in working in a day-care type of employment where she could take care of children. She felt that she could do this type of work. Petitioner was referred to respondent Tot Spot at RWJ Hospital where she began working on May 20, 1996 , working a limited number of hours per week as described in her testimony as hereinabove described.

Petitioner was seen by Dr. Jafri until September, 1997 with a consistent history of pain in both hands, exacerbated by activity, which interfered with her ability to perform the activities of daily living. It was the opinion of Dr. Jafri that the work which petitioner did for Tot Spot exacerbated the pains in her hands on a temporary basis, but petitioner was suffering from the chronic condition for which she had been initially treated prior to her employment there.

Dr. Richard Rubin performed neuropsychiatric evaluation examinations of the petitioner on four occasions.

The first took place on November 17, 1993, prior to the surgery on petitioner’s left hand. At that time, Dr. Rubin found petitioner to be suffering from significant neurological and psychiatric disabilities which he causally related to her work-related right upper extremity condition.

He next examined Mrs. Gorrell on March 29, 1995, noting the intervening left upper extremity surgery. After noting her considerable neurological and psychiatric impairments, he concluded that without retraining to deal with her physical restrictions, she was totally and permanently disabled.

His third examination of the petitioner took place on October 30, 1996. At this time, he noted the intervening treatment at JFK Rehabilitation Institute and her placement at Tot Spots and the work which she was performing there. He described this as a "sheltered" type of employment which did not cause him to change his prior opinion that Mrs. Gorrell was totally and permanently disabled by reason of her work-related injuries and the surgical procedures which she had undergone.

Dr. Rubin’s final reexamination was done on July 30, 1998. Although he felt that there was evidence of some worsening of the physical findings and individual disabilities due to the work at Tot Spot, he still felt that petitioner was totally disabled overall.

Dr. Armond Ruderman testified as petitioner’s orthopedic expert. He, too, had examined Mrs. Gorrell on multiple occasions. On May 30, 1995, He found permanent disability of 40 per cent of the right hand and 50 per cent of the left hand secondary to the two surgical procedures causally related to her employment at Huls America. He also expressed the opinion that petitioner required vocational retraining to return to gainful employment.

On December 17, 1996, he reexamined Mrs. Gorrell, who was working for Tot Spot at that time. He felt that she had developed problems in her left elbow area and evaluated her disability at 40 per cent of the right hand, 50 per cent of the left hand and 25 per cent of the left arm.

The final reexamination of Dr. Ruderman took place on July 30, 1998. He now found permanent disability of 50 per cent of the right hand, 50 per cent of the left hand, and 30 per cent of the left arm. He felt that the worsening of the disabilities was partially due to the work done by petitioner at Tot Spot, which he described as "heavy".

Respondent Huls America presented the testimony of Dr. William Head, an expert in the field of psychiatry. He had examined Mrs. Gorrell on April 26, 1995 and reexamined her on February 3, 1997.

On his first examination, he found her to be depressed and in need of further psychiatric treatment for what he diagnosed as a major depressive disorder. He felt that one-half of her depression was due to her work-related injuries and the other half was due to non-work related problems, including serious injuries suffered by her son in an automobile accident. He felt that her prognosis for psychiatric recovery after treatment was good and that, ultimately, she would have no permanent psychiatric disability.

When he reexamined petitioner on February 3, 1997, he found her to be only mildly depressed but he did not feel that it was a disabling condition. And, therefore, he concluded that the petitioner had no permanent psychiatric disability.

Respondent Huls also presented the testimony of Dr. Peter Blumenthal on the orthopedic aspects of petitioner’s claim. I find his testimony to be singularly unimpressive. In addition to minimizing the petitioner’s orthopedic disability, he initially charged a portion of it to petitioner’s employments prior to Huls, despite no evidence of complaints or treatment during the prior employments, and the balance to the Huls employment. He stated that the employment with Tot Spot was non-contributory but changed this opinion when asked to consider petitioner’s testimony of her physical condition when she began the Tot Spot employment.

Tot Spot presented Dr. David Gross as orthopedic expert. Dr. Gross submitted a detailed report reviewing details from the considerable material that he had read concerning the petitioner’s medical treatment. His examination was also thorough and his description of the petitioner was sympathetic. He felt that petitioner was depressed in addition to having orthopedic disability in both upper extremities. Although his estimate of those disabilities was modest, he also felt that petitioner was only capable of light work. He also felt that all of her disability was related to Huls and the Tot Spot work was non-contributory to her disability.

The last medical witness was Dr. Bender, neuropsychiatric expert for Tot Spot. He had examined Mrs. Gorrell on November 3, 1998. He found her to be suffering from a severe chronic pain syndrome consistent with fibromyalgia. He stated that the employment at Tot Spot neither caused nor aggravated these conditions, for which he estimated a permanent neuropsychiatric disability of 10 per cent of total

After considering the testimony of the petitioner and all of the other witnesses together with the documentary evidence, I find that the petitioner is totally and permanently disabled from the effects of her bilateral upper extremity surgeries and her depression. This disability is orthopedic, neurological and psychiatric in nature and results from the effects of her employment with the respondent Huls America.

I further find that the employment at Tot Spot did not medically or legally contribute to petitioner’s permanent disability, and, therefore, neither Tot Spot nor the Second Injury Fund is liable for any portion of petitioner’s condition.

I come to these conclusions for the following reasons:

I find petitioner to be an exceptionally credible witness. Her testimony was clear, forthright, and without hesitation. Her testimonial demeanor was one of a person in significant distress, both physically and mentally. She painted a clear picture of a woman who was formerly able to work and support herself and her family, to engage in outside activities and to socialize with others. Since the injury to both hands and the attempted corrective surgeries, she has been unable to return to work, despite treatment and a course of rehabilitative pain control. She has become reclusive and, to a large extent, homebound despite laudable efforts to return to some gainful employment or volunteer work at her church and a local hospital.

Even these efforts cause her pain and she is still depressed over what has become of her life. She is in constant pain in both hands, radiating up both arms to her shoulders. Both of her hands swell and she uses ice to control the swelling. She has significant scarring from the surgery on her left forearm with a less prominent scar as a result of the right carpal tunnel surgery. She feels numbness and tingling in both hands.

She feels limited in what she can do. She cannot lift heavy items. When she goes grocery shopping or to the laundry, she must use ice to reduce the resultant swelling in her hands and she takes pills for the pain. She has given up participation in sports and she does not cook as she did before the surgeries. She has difficulty in dressing herself and her interaction with family and friends is restricted by her pains and limitations. She is depressed and, when describing her limitations, she became tearful.

A judge of compensation, of course, is not bound by the conclusionary opinions of medical experts; however, he must give consideration to such testimony and evaluate it based upon the doctor's qualifications and demeanor, the inherent trustworthiness of the testimony, and the quality of the underlying examination upon which the opinions are based. Margaritondo v. Stauffer Chemical Co., 217 N.J. Super. 560 (App. Div. 1985).

The petitioner alleges a neuropsychiatric 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 patients subjective statement.

See Saunderlin v. E.I.DuPont Company, 102 N.J. 402 (1986).

I accept the testimony and opinion of Dr. Rubin over that of Dr. Head on the questions of the existence and extent of a psychiatric disability and it’s relationship to the compensable injuries. I was favorably impressed with the thoroughness of Dr. Rubin’s multiple examinations. I find that his opinions, diagnoses, and evaluations of disability are based upon objective psychiatric standards and not a "parroting" of the petitioner’s complaints.

Dr. Head, on the other hand, while certainly a qualified psychiatrist, exhibited a certain aloofness to the petitioner’s situation. In explaining why he charged 50 per cent of petitioner’s originally diagnosed severe depressed state to the work-related injuries and 50 percent to the motor vehicle accident in which her son was severely injured, Dr. Head became obviously annoyed when petitioner’s attorney suggested that this division was arbitrary, stating

"I could have given about 75 per cent of the depression to the fact that her son lost his eye. I gave half of the depression to the fact that she had something wrong with her wrist. I thought that was being pretty damn liberal, counselor. That wasn’t a matter of being arbitrary. It was a matter of trying to be fair." (T44)

Dr. Head’s opinion, as to the cause of petitioner’s psychiatric condition, and its effect on petitioner’s disability, is also detrimentally affected by his cavalier attitude towards her physical complaints. Illustrative of this is the following exchange:

Q. No matter how severe one’s pain is, it is of no consequence relative to you in formulating a diagnosis, a psychiatric diagnosis and prognosis?

A. I wouldn’t say that, counselor. The fact of the matter is, I didn’t see her wrapped in gauze and bandages when she came back the second time or extremely severe. I didn’t see her popping pills, and I didn’t see any notes that she was contemplating surgery or that she was involved in continuing ongoing pain treatment programs. None of those were occurring as far as I knew. So I concluded that the degree of her pain, however severe it was, it was not severe enough to warrant these other measures. If she were doing these other things, I would have taken that into consideration. (T57)

The fact of the matter is that the petitioner underwent two surgical procedures, completed a course of pain management, attempted to return to work but could not continue because of the pain and her life has been radically changed.

Finally, Dr. Head’s opinion that petitioner has no permanent psychiatric disability is further weakened by his admission that, if the petitioner had been diagnosed as suffering from a severe chronic pain syndrome by Dr. Bender in November, 1998 then "It’s something that would need to be taken into consideration and perhaps she should be reevaluated."(T60)

The petitioner alleges that she is totally disabled. Total disability is defined in N.J.S.A. 34:15-36 as follows:

"Disability permanent in quality and total in character" means a physical or neuropsychiatric total permanent impairment caused by a compensable accident or compensable occupational disease where no fundamental or marked improvement in such condition can be reasonably expected.

Factors other than physical and neuropsychiatric impairment may be considered in the determination of permanent total disability where such physical and neuropsychiatric impairment constitute at least 75% or higher of total disability.

Whether an individual is totally disabled is a mixed question of law and fact, and its determination rests within the sound discretion of the court, guided by established principles of law. Zanchi v. S. & K. Construction Co., 124 N.J. Super. 405 (Law Div. 1973) aff'd 63 N.J. 331 (1973). The established principle of law is that a person's ability to perform light or intermittent work is not inconsistent with the status of total disability. Cleland v. Verona Realty, 130 N.J.L. 588 (Sup. Ct. 1943); Jersey City Printing Co. v. Klochansky, 8 N.J. Super. 186 (App. Div. 1950); See also, Kalson v. Star Electric Motor Corp., 15 N.J. Super. 565 (Cty. Ct. 1951) aff'd 21 N.J. Super. 15 (App. Div. 1952); Zanchi, supra.

Mrs. Gorrell clearly meets either of these definitions. Her physical and neuropsychiatric impairments consist of: the residual effects of the right carpal tunnel syndrome with residuals of the surgery for that condition, the left median nerve compression in her distal forearm and wrist, with the decompressive surgery done for that condition, bilateral ulnar neuritis and cubital syndrome, and an adjustment disorder with mixed emotional features.

Dr. Beasley, a highly qualified orthopedic surgeon specializing in hand surgery, performed both of petitioner’s surgeries. From the outset of his treatment, he was consistently of the opinion that petitioner would never be able to return to her former type of employment. Indeed, he felt that she would be unable to perform work which put any strain on her hands or wrists. He recommended that she receive vocational rehabilitation if she was ever to return to gainful employment.

Mrs. Gorrell was a client of the New Jersey Division of Vocational Rehabilitation Services between 3/31/93 and 9/25/95. She was subjected to a wide variety of physical and intellectual testing, initially on April 23, 1993 and, later, on September 25, 1995.

It was obvious to her vocational counselors that she had serious intellectual, physical, and emotional problems which adversely impacted her ability to work. After considering and ruling out numerous possible types of employment, The DVR considered petitioner’s expression of interest in child care and attempted to find her employment in this area of work. Ultimately, Mrs. Gorrell was placed with Tot Spot where she worked from May 20, 1996 until January 2, 1997.

The payroll records from Tot Spot show that petitioner worked five days per week only four of those weeks with a maximum of 22 ¾ hours per week for the first week of her employment, and substantially less time worked in the succeeding weeks. In the eight weeks before she had to stop working because of increased pain in her hands, she worked from 6.5 to 12 hours per week. Clearly, from this payroll record, it appears that this may well have been a sheltered type of employment, catered to try to meet petitioner’s physical limitations, but was unsuccessful in this regard.

The petitioner has subjected herself to medical treatment, vocational rehabilitation, and pain remediation efforts, without the degree of success which she believed would result. She attempted to return to work at a job which she, and the Division of Vocational Rehabilitation Services believed she could physically handle. Unfortunately this did not prove to be the case.

N.J.S.A. 34:15-31 defines a compensable occupational disease as follows:

a. For the purpose of this article, the phrase "compensable occupational disease"

shall include all diseases arising out of 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.

I find that the work which she performed at Tot Spot did not cause or contribute in a material degree to her disabilities. The evidence clearly and convincingly establishes that petitioner was totally disabled prior to her employment at Tot Spot. Dr. Jafri, who was familiar with her condition testified that it was the same after her work for Tot Spot as it was before that employment began. Dr. Bender testified that this work merely caused the pain from the underlying and preexisting chronic pain syndrome to become worse.

Dr. Rubin, who examined the petitioner twice before she began working for Tot Spot and again while she was working there, felt that she was totally disabled before she started this job. He specifically felt that she was totally disabled while she was working there, which he felt was a "sheltered" type of employment.

Dr. Ruderman’s conclusion that the work for Tot Spot contributed to petitioner’s disability is flawed because he described her work there as "heavy". The petitioner testified that she expended the same degree of exertion and suffered the same result when lifting her grandchild at home.

Finally, the case of Peterson v. Hermann Forwarding Co., 267 N.J. Super. 493 (App. Div. 1993) is apropos. In that case, a petitioner who had sustained a traumatic injury at one employment and returned to work for several subsequent employers filed compensation claims for permanent disability against all of them.

In reversing an award against a subsequent employer, the court concluded that the residual effects of the petitioner’s initial traumatic injury were not aggravated by his subsequent employments. The court said:

However, we are persuaded that where the subsequent employment, without the intervention of additional trauma or physical insult, merely causes pain from pre-existent conditions to be manifest, that liability should not attach to the subsequent employer even where the result is that the employee realizes that continued employment is not feasible. Id at p.505.

See also, Kozinsky v. Edison Products Co., 222 N.J.Super. 530 (App. Div. 1988).

I fix the onset date of the permanent total disability to be March 29, 1995 the first date after the last payment of temporary compensation that petitioner was found to be totally disabled by Dr. Rubin. Despite treatment at JFK Pain Management and her attempt to return to gainful employment thereafter, these efforts proved to be fruitless.

Judgments will be entered in accordance with this Decision.