CP# 01-39058 Handschuh v. New York Daily News
DIVISION OF WORKERS’ COMPENSATION
HACKENSACK DISTRICT OFFICE
vs. Claim Petition: 2001-39058
February 8, 2007
NEW YORK DAILY NEWS,
BEFORE: DIANA FERRIERO, J.C.
RONALD S. KAPLAN, ESQ.
Attorney for Petitioner
REILLY, SUPPLE, ET AL
BY: WILLIAM WATSON, ESQ.
Attorneys for Respondent
This is the court’s decision in the matter of David Handschuh vs. New York Daily News, Claim Petition 2001-39058. Respondent stipulated that petitioner met with a compensable accident on September 11, 2001. At the time of the accident, petitioner earned $1398.15 per week giving rise to a temporary rate of $591. All authorized medical care has been provided and paid. Temporary disability benefits were paid and deemed adequate. There were two issues before the court: 1) the nature and extent of any permanent disability sustained by petitioner as a result of the September 11, 2001 accident; and 2) reimbursement to petitioner for the cost of unauthorized medical treatment with Dr. Kind and for the cost of the unauthorized prescription medication.
NATURE & EXTENT OF PERMANENT DISABILITY
Petitioner alleges orthopedic, neurological, pulmonary and neuropsychiatric injuries as a result of the accident. The parties agreed to a trial on reports with respect to the orthopedic injuries only and waived their respective rights to cross-examine the orthopedic experts.
On September 11, 2001, petitioner worked as a photojournalist for the New York Daily News assigned to photograph the terrorist attack of the World Trade Center. Petitioner arrived at the scene at approximately 8:53 a.m. and began photographing the second plane colliding with the South Tower.
Handschuh described the scene upon his arrival as follows:
It was flames and smoke coming from the North
Tower. There was broken glass and debris on the
streets. There were body parts, actual pieces of
human beings laying [sic] in the street. There were
all of a sudden people jumping out of windows
and landing with the most horrible noise out on
West Street maybe fifty yards from where I was
standing, probably less.
DHT 5, L. 23-25; DHT 6, L. 1-4.
Approximately one hour later, petitioner heard a “loud rumbling noise and looked up and the [South] Tower was starting to collapse…” DHT 6, L. 21-22. Petitioner began to run “but then…was picked up almost by a wave at the beach except the wave was gravel and cement and building parts and …[I] just got picked up and tossed approximately half a city block.” DHT 7, L. 1-4. After the collapse, petitioner found himself conscious under a pile of debris with his mouth, nose, ears and eyes covered with dust such that every breath he took caused him to suck the debris deeper and deeper into his mouth. DHT 7, L. 14-19. Handschuh cleared his nose and mouth as best he could and began screaming for help.
A group of firefighters heard petitioner’s pleas for help and dug him out. However, because petitioner was not as seriously injured as others, the firefighters left him on the ground. A second group of firefighters came, carried Handschuh to a delicatessen in Battery Park and placed him on the floor. Soon thereafter, the North Tower fell causing the façade of the delicatessen to be blown in, trapping petitioner and approximately 12 people.
Eventually, Handschuh was carried to a boat and brought to a triage unit on Liberty Island and then to Bayonne Hospital where his right leg was set twice that day. Incredibly, Bayonne Hospital discharged petitioner the same day.
Several days later, petitioner was admitted to The Valley Hospital where a he underwent an intramedullary rodding of the tibia using a titanium rod and screws. Handschuh remained covered with the debris dust that initially enveloped him because he was not able to shower for approximately two weeks post accident. He testified that that his wife cleaned his “face as best as she could but basically I sat in that stuff for a couple of weeks.” DHT 10, L. 21-23.
In March 2002, petitioner underwent a second surgery. Specifically, he underwent arthroscopy of the left knee with a lateral retinacular release and hardware removal of the interlocking screws of the right leg.
Let me begin by stating that petitioner is an exceedingly credible witness. He stated his complaints in a very direct manner and without exaggeration or embellishment. The complaints the petitioner gave are of the type one would expect given the nature and extent of the injury, and the complaints he gave at trial are consistent with the complaints he gave to the treating and evaluating doctors. Accordingly, I adopt petitioner’s complaints as part of my findings of fact.
Shortly after the accident, petitioner began to experience problems with his sinuses and his breathing. He suffers from shortness of breath, coughing and wheezing. Specifically, Handschuh gets winded walking up a flight of stairs or a half block uphill. He testified that he is getting cold and sinus infections fairly often. He must sleep with four or five pillows under his upper body. He takes the prescription medicine Singular once per day and uses an inhaler twice per day to alleviate his breathing difficulties. Petitioner never smoked and had no prior pulmonary conditions.
Petitioner also received treatment for post traumatic stress disorder, depression and anxiety. He initially treated with Dr. David Gallina, psychiatrist and Dr. Nancy Gallina, psychologist. Dr. Gallina prescribed several medications for petitioner including, but not limited to, Ambien, Zoloft and Viagra. After being released from treatment with Drs. Gallina, petitioner began unauthorized treatment with Dr. Jacob Kind, psychologist, and he continues to treat with Dr. Kind. Handschuh also treats with Dr. Laurie Melkof of Mount Sinai every two months who monitors and prescribes his anti-depressants and other psychotropic medications.
With regard to his right leg, petitioner continues to have regular pain around the break point. Regarding both legs, he has increased pain with weather changes, discomfort after a day of work, especially if he carries more equipment than usual. He takes Tromadol at least every other day to alleviate his pain. He describes the pain in the right leg as an electric shock. He testified the left knee cracks on movement and he feels tenseness and pulling within the left knee.
Prior to the accident, petitioner worked as a spot news photojournalist for the New York Daily News covering accidents, fires, homicides and the 2000 presidential campaign. It was not uncommon for him to work carrying 25 to 50 pounds of equipment while walking backwards or running to cover a breaking a news event. Prior to September 11, 2001, petitioner received awards from the New York Press Club, New York Press Photographers and the International Press Photographers. Handschuh has been nominated three times for a Pulitzer Prize. The last award Handschuh was nominated for and received was for photographs he took on September 11, 2001. However, now because of the injuries to his legs, petitioner is not able to run and as he testified: “…if I can’t run, I can’t remain competitive up against really good photographers from other news organizations.” DHT 21, L. 23-25.
As a result, petitioner now photographs food, chefs and their work in restaurants or “scrap assignments that are left over at the end of the afternoon.” DHT 55, L. 13-14. Handschuh does not find this work rewarding. He admits to not wanting to cover breaking news (fires, homicides, accidents) because he “can’t stomach the thought of seeing anybody dead or dying again. Forget about photographing them, actually paying witness to that just [sic] not anything I believe I could deal with emotionally.” DHT 50, L. 21-25. However, he would like to cover events such as political conventions. He testified that he spoke to his supervisors about this but he stated the request was not well received. DHT 55, L. 22.
Since the accident, petitioner has only worked 6 hours of overtime and that was during the 2005 Transit Workers strike. Prior to the accident, petitioner received a considerable amount of overtime. DHT 57, L. 3-4.
Handschuh continues to suffer psychologically since the accident. He tries to avoid lower Manhattan. He testified that when traveling on the West Side Highway he “can almost look up and still see the towers there on fire.” DHT 22, L. 6-8. When stopped at the light at Liberty and West Streets Handschuh testified “it is the worst minute in the world waiting for that light to change” because that is where he was when the first tower came down. DHT 22, L. 13. He cannot look where the World Trade Center used to be because it is “very, very upsetting.” DHT 22, L. 15.
Petitioner continues to have sleep disturbances and difficulty falling asleep. He regularly takes Ambien and drinks two to four alcoholic cocktails a night to help him fall asleep. DHT 22, L. 22-25. Handschuh wakes up in the middle of night screaming with nightmares and he suffers night sweats. DHT 23, L. 1-3
Since September 11, Handschuh’s marital relationship has suffered. He and his wife have attended counseling. He testified that he argues more.
Petitioner’s recreational life has changed significantly as a result of the injuries he sustained. He no longer skis or scuba dives or plays ice hockey. Bike riding is limited to short distances as is walking/hiking.
Stacie Handschuh, petitioner’s wife, corroborated her husband’s testimony. To begin, she testified that Handschuh was covered in a “grey crust” that had “to be chiseled… off of him…Off his skin, off his scalp, off of his whole body.” SHT 6, L. 25; 7, L. 8-11.
Stacie confirmed Handschuh no longer runs, plays ice hockey with his friends, carries laundry baskets up the stairs for her, bicycles long distances, hikes in the woods, walks for hours with her exploring cities. Nor does Handschuh continue to ski or scuba dive as he did pre-9/11.
Stacie testified that her husband is not as easy going or spontaneous as he was pre-9/11. Now Handschuh is more cautious, short-tempered, impatient, unwilling to try new things or to go new places, nitpicky about the house being kept orderly. If a plane flies overhead, Handschuh will duck down and look around for it. If that happens more than twice in a day Handschuh becomes angry that he reacted like that.
Stacie confirmed that her husband screams out at night and that sometimes he just whimpers.
According to Stacie, their intimate relationship has suffered because Handschuh is much more distant emotionally.
Stacie also confirmed that Handschuh was her handyman. He cleaned the gutters, landscaped, painted, hung wallpaper. Now he does none, or very few, of these chores, and has actually hired contractors to do work around his home.
When asked to use three adjectives to describe her husband before 9/11, Stacie said “spontaneous, active and funny.” SHT 33, L. 17. Post-9/11, she described him as “cautious, jumpy and apprehensive.” SHT 33, L. 19.
Numerous physicians evaluated Handschuh to determine the nature and extent of his permanent disability. All evaluating physicians- for both petitioner and respondent-found objective medical evidence of permanent disability, and I adopt their findings as my own. It should be noted that this case has the usual disparity in the estimates of permanent disability offered by the doctors. However, our appellate division has held that “the judiciary is not bound by the medical estimates offered by one or all of the physicians.” Lightner vs. Cohen, 76 N.J. 461, 465 (App. Div. 1962), certif. denied 38 N.J. 611 (1962). Thus, I have used the estimates of the disability offered by the various doctors as a guide in reaching my own independent conclusion regarding petitioner’s degree of disability.
It is the court’s opinion that petitioner has sustained a 60% partial total disability, orthopedic, pulmonary, neurological and neuropsychiatric in nature for residuals of a left leg torn meniscus status post arthroscopic surgery with resulting scarification, chronic synovitis, fluid accumulation, post-traumatic arthritis and arthrofibrosis, for residuals of a fracture of the right tibia and fibula status post intramedullary rodding of the right tibia with screws with resulting patellar crepitation, scarification, chronic synovitis and painful exostosis, for residuals of post-traumatic stress disorder, chronic and for residuals of chronic obstructive pulmonary disease.
While all evaluating doctors found objective medical evidence of permanent disability, I find that the petitioner’s evaluating doctors to be more persuasive and credible.
To begin, the findings of Dr. Arthur H. Tiger more aptly explain why petitioner continues to suffer the complaints he does.
Dr. Peter Crain, petitioner’s evaluating psychiatrist, is more credible to the court because Dr. Crain is board certified in psychiatry. Dr. Erin Elmore is board certified in neurology. Thus, while there is some overlap between the two specialties, clearly Dr. Crain has had more training in the area of psychiatry than Dr. Elmore and more experience in the actual treatment of patients suffering from post-traumatic stress disorder. Moreover, the court found Dr. Elmore to be quite glib in her testimony, especially as it related to the medications taken by petitioner.
Finally, respondent’s own evaluating pulmonologist Dr. Samuel D. Kahnowitz admitted that he made a critical mistake when calculating the nature and extent of petitioner’s pulmonary disability. Specifically, Dr. Kahnowitz assumed that the petitioner was an African-American male and therefore, used different predicted values when performing the pulmonary function tests. The problem for the respondent is that petitioner is Caucasian and therefore, the values obtained by Dr. Kahnowitz are irrelevant to this case. Dr. Kahnowitz admitted that the predicted values set forth in the report of Dr. Malcolm Hermele, petitioner’s pulmonary evaluator, are correct. Based upon the foregoing, Dr. Hermele’s findings are controlling for the court.
UNAUTHORIZED TREATMENT & PRESCRIPTIONS
The final issue before the court is whether respondent should reimburse petitioner the cost of the unauthorized treatment with Dr. Kind and for the cost of the unauthorized prescription medication. It is the court’s opinion that petitioner is not entitled to be reimbursed for these costs.
Petitioner filed this claim petition on December 13, 2001. Therefore, at the time respondent deemed petitioner to have reached maximum medical improvement psychiatrically petitioner was represented by counsel. At no time did petitioner file a notice of motion for medical and temporary benefits relating to his alleged need for continued psychiatric treatment. Rather, petitioner found a therapist and proceeded to undergo unauthorized treatment. No proofs were presented that petitioner requested additional psychiatric treatment from respondent and that respondent refused to provide same.
Likewise, petitioner presented no proofs that he requested respondent to pay for prescription medication and that respondent refused to pay for same.
Under N.J.S.A. 34:15-15, the respondent “shall not be liable for any amount expended by the employee…for any…physicians’ treatment and hospital services, unless such employee…shall have requested the employer to furnish the same and the employer shall have refused or neglected so to do…” (Emphasis added.) Petitioner not having requested treatment cannot now seek to be reimbursed.
Furthermore, the proofs presented by petitioner were insufficient. Petitioner presented four handwritten pages on plain lined paper with no letterhead. At the end of the four pages is a signature, presumably of Dr. Kind, but that signature is not notarized. These pages presumably reflect the dates Dr. Kind treated petitioner. However, neither diagnostic codes nor a description of the type of services rendered were provided. Finally, there was no testimony that the services rendered by Dr. Kind were reasonable, necessary and related.
With respect to the prescription medication, no bills were submitted and no testimony was presented that the medication was reasonable, necessary and related.
Fees are as assessed in the attached Order for Judgment.
February 8, 2007 _________________________
Diana Ferriero, J.C.