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            GERTRUDE HARRIS, 

                                             Petitioner,

                                   -v- 

            STATE OF NEW JERSEY, 

                                             Respondent.

             ---------------------------------------------

THE HONORABLE RENEE C. RICCIARDELLI
            ADMINISTRATIVE SUPERVISORY JUDGE OF COMPENSATION                             

            A  P  P  E  A  R  A  N  C  E  S:

                                    PELLETTIERI, RABSTEIN AND ALTMAN, ESQS.
                                                BY:     BRUCE P. MILLER, ESQ.
                                                ON BEHALF OF THE PETITIONER

                                    ZULIMA V. FARBER, ATTORNEY GENERAL
                                                BY:     MICHAEL PUSHKO, ESQ.
                                                ON BEHALF OF THE RESPONDENT

                                    ZULIMA V. FARBER, ATTORNEY GENERAL
                                                BY:     CHERYL KLINE, D.A.G.
                                                ON BEHALF OF THE SECOND INJURY FUND   

This is the matter of Gertrude Harris vs. State of New Jersey claim petition number 1990-12805.  Ms. Harris was injured in a compensable accident on February 22, 1990 and received awards in this case in 1994 for 60% of partial total, then the case was reopened and in 2002 there was an award of 80% of partial total.  That award was based upon the orthopedic, neurologic and psychiatric residuals of herniated disc L-5 - S-1 with two discectomies right sided radiculitis and sacroiliac joint dysfunction 60% of partial total and depressive reaction 20% of partial total. The two surgeries involved a discectomy in 1990 followed by a lumbar fusion L-4 through the sacrum and that took place 1991. 

Subsequent to the 2000 award in 2001 petitioner had recurrent low back pain and was treated by Dr. Jeffrey Miller.  Dr. Miller opined that she now has a lateral disc herniation at L3- 4 and a left disc herniation at L2- 3, the levels immediately above the prior fusion.  It is well accepted in the medical community and admitted by Doctors Miller, the treating doctor, Weiss, petitioner’s independent medical examiner, as well as Harold Herman, respondent’s independent medical examiners, that it is not uncommon for discs above and below a fusion to subsequently herniate which obviously is the situation in Ms. Harris’ case.

Ms. Harris is currently receiving social security disability and there was an extended period of treatment paid for by Medicare. Petitioner’s attorney has contacted Medicare for information in that regard for repayment.

Petitioner testified that subsequent to her 2000 award she had had continual problems that she requested treatment from the respondent on three occasions but received no answer and finally went to her own doctor for some relief.  She indicated that her condition is worse now, that the pain is more intense, that the pain is higher on her back than it had been previously which is anatomical to the fact that she has a two new herniations above the previous.  The pain now goes into her left side down into her groin.  On the right side the pain goes all the way to her ankle when in the past it only went to her calf.  She can only sit for approximately half an hour and stand for ten minutes before she has unbearable pain.  She cannot walk a full block and the pain is so intense that she feels that she will pass out.  She uses a cane when she is outside the house.  The court examined the tip of the cane which was quite worn, which is indicative of extensive use.  She indicates now that she only drives within the city limits due to muscle spasm in her right leg, that she is more depressed now, and can’t be out “like normal people”, she cries more often, is lonely, she has no one to talk to.  In the past she had been taking Paxil an anti-anxiety anti-depressive medication but has subsequently stopped using that medication due to the development of glaucoma.  She limits her activities to going to church, visiting friends or her children, she is very depressed and she did start to cry when she reached this point in her testimony.

On cross examination petitioner indicated that she could no longer carry her grocery bags, that prior to 2000 she was able to do her own shopping, she can no longer do that, and that her daughter has to clean her house at the present time.

All of the doctors who examined Ms. Harris, those being Doctors Weiss and Rubin for the petitioner as well as Doctors Herman and Courtney for the respondent find that petitioner has an increase in her disability based upon the two new herniated discs in her low back as well as more ridiculer symptoms. 

In order for a petitioner to be successful in receiving an increase of disability, the petitioner must show by objective medical evidence that there is a significant increase in the conditions as well as it’s affect on her daily and working life.  Dr. Weiss’s exam in 2000 when compared to the same exam that he performed in 1999, shows a significant increase in her loss of range of motion of her back, that there is a sensory deficit over L-3, 4, 5 and S-1 dermatomes on the right, that in 2005 there was a decrease in the deep tendon reflexes bilaterally over the achilles and the patella where in the past they were plus two and symmetrical.  Muscle strength testing indicated four over five on the right and five over five on the left.  There was a decrease in the gastrocnemius circumference with 41 centimeters on the right versus 43 centimeters on the left which is an indication of atrophy on the right.  This coupled with the new diagnostic testing which indicated disc herniation L-2, 3, L-3, 4, as well as a recurrent disc herniation with fragmentation at L-5, S-1  as well as Dr. Herman’s findings shows petitioner has suffered a significant increase in her orthopedic condition and that she has met the burden of proof of such increase.  Should be noted that Dr. Herman opined that the original herniated disc was not related to her work, however, since this matter has been adjudicated on at least two prior occasions regarding the causal relationship between the herniation and her work related accident, his opinion in that regard is not credible.  He did admit however, as stated previously, that it is not uncommon for a disc immediately above a previously fused area to become herniated.  Based upon his findings, he increased his opinion of Ms. Harris’ disability from 25 % of total in 1999, to 27.5 % of partial total in 2002 and 2005.  Should be noted that Dr. Weiss had indicated that petitioner is totally and permanently disabled from an orthopedic standpoint.

From a neurologic standpoint, petitioner was examined by Dr. Richard Rubin on her own cause and Dr. Jon Courtney for the respondent.  Both doctors felt that there was an increase in the neurologic condition based upon their findings, as well as the new MRI indicating new herniated discs.

Dr. Rubin found that the right patella reflex was barely obtainable and the left was not obtainable whatsoever, that the right Achilles reflex was extremely depressed and that the left Achilles reflex was totally absent.  There was hypoesthesia over both thighs in lateral aspect.  Based upon his findings, Dr. Rubin increased petitioner’s neurologic disability from 50 % of total to 60 % of total.

In his examination of May 2006, Dr. Courtney also found that the knee and ankle jerks could not be elicited, that she had diminished pin prick sensation and diminished light touch sensation in the right lateral foreleg and the lateral two toes.  He increased his disability for petitioner 3 % of total to 7 % of partial total.

I find that based upon the objective evidence set forth previously as well as the petitioner’s testimony, the petitioner has sustained the burden of proof that she is totally and permanently disabled from her 1990 accident alone.

A second injury fund application was filed in this matter.  For one to be entitled to second injury fund benefits or for the respondent to receive contribution from the second injury fund, there must be an indication that the petitioner was totally and permanently disabled as a combination between the last compensable incident and preexisting conditions.  If in fact the last compensable incident in and of itself caused the person to be totally and permanently disabled, the second injury fund is not responsible.  I find that there is nothing that has been presented by any of the parties involved to indicate that the petitioner was or is disabled for any other reason than the February 1990 incident, therefore the second injury fund is dismissed.

 Petitioner’s attorney will prepare an order in conformity with this ruling. There will be an allowance for Dr. Weiss’s two exams as well as his testimony of $1,050.00 payable $300.00 by the petitioner, $750.00 by the respondent.  There will be an allowance for Dr. Richard Rubin for his exam in 2002 of $200.00 payable by the respondent.  It should be noted that petitioner’s attorney expended moneys in excess of the $200.00 in fees to Dr. Rubin.  .  There will be an attorney’ fee of $12,700 payable $3200 by petitioner and $9500 by the respondent.  There will be an allowance of $639.59 for costs of medical records reimbursable to petitioner’s attorney payable by petitioner.

Petitioner’s attorney, as stated previously, has contacted Medicare to make a determination as to any monies Medicare may have paid as regard Ms. Harris’s compensable accident.  To date no information has been received, therefore, this court retains jurisdiction should the parties not be able to amicably resolve the responsibility for benefits.  However, since petitioner did on three separate occasions request treatment from the respondent and fail to receive an answer for same and then was required to go to her own physician, absent some indication from the respondent in the future that the treatment was unnecessary, unreasonable or unrelated, the respondent should be liable to Medicare for the entire extent of treatment for petitioner’s low back.  It should be understood that this court has no jurisdiction to determine how much CMS is entitled to in reimbursement, but its jurisdiction extends solely to the extent of the respondent’s liability in said matter.  

                                                                        ________________________________

                                                                        Renee C. Ricciardelli
                                                                        Administrative Supervisory Judge

Date: August 25, 2006