CP# 95-24363, 95-40788, 95-4112, 96-36603 Harry v. John C. Dolph Company
JOHN C. DOLPH COMPANY
STATE OF NEW JERSEY
WYSOKER,GLASSNER & WEINGARTNER ESQS.
Attorney for Petitioner
HOWARD W. CRUSEY, JR.
By: WILLIAM J. BROWN, ESQ.,
Attorney for Respondent
Maston Harry was employed by the John C. Dolph Company from August 8, 1989 until April 30, 1995.
He suffered a work-related injury to his left foot on June 14, 1994 for which Claim Petition 95-024383 was filed.
He also filed three additional Claim Petitions for orthopedic, pulmonary, and psychiatric disability, which he contended, were caused by compensable occupational disease.
Petitioner also alleged that he was totally disabled by reason of the multiple occupationally related disabilities together with certain pre-existing disabilities and also filed a Verified Petition for benefits from the Second Injury Fund.
All of the matters were consolidated for trial.
The respondent admitted the traumatic injury and denied all of the occupational disease claims.
For the purposes of this Decision, I will consider the admitted traumatic injury claim first.
The injury occurred on June 14, 1994 when petitioner jumped up and caught his left foot between two pallets. . His wage was $367.60 per week resulting in compensation rates of $257.32 for temporary compensation and $125 per week for permanent disability.
He received authorized medical treatment and was out of work and paid temporary compensation for a period of 7 5/7 weeks, which is deemed adequate.
Petitioner testified on November 12, 1999. Since all of the claims were consolidated for trial, his testimony encompassed not only his alleged work-related disabilities, but also numerous pre-existing conditions and disabilities that were relevant to the Second Injury Fund claim.
A review of his testimony reveals that the only mention of his left foot injury was when he said that his ankles " kill me" and "…and my left ankle is also getting bad." T33l16-19.
Dr. Mark Friedman, petitioner’s evaluating orthopedic expert, examined Mr. Harry on July 24, 1996 and found little objective evidence of injury and disability to the left foot. He found tenderness over the ankle and stated that the petitioner walked with a limp.
Despite the paucity of objective findings, he nonetheless estimated permanent disability of 35 per cent of the left foot.
The respondent presented the testimony of Dr. David E. Gross who evaluated the petitioner on November 12, 1998.
He also noted a limp but stated that it was on the right leg and resulted from a serious pre-existing injury to the right ankle, which was unrelated to the injury to petitioner’s left ankle. Although his examination was essentially negative for objective evidence of injury or disability, he nonetheless estimated a permanent disability of 2 per cent of the left foot.
The law now requires that permanent partial disability must be shown by demonstrable objective medical evidence and the injury must be significant enough to merit compensation. The petitioner must first show objective medical evidence of the injury and that this results in a restriction of the function of the body, its members or organs. Objective medical evidence means evidence exceeding the subjective complaints of the petitioner and, therefore, compensation can no longer be awarded where the condition is manifested only by subjective complaints. Furthermore, even if the petitioner meets these requirements, permanent disability can not be found where the injury is minor in nature or where it does not impair the employee's working ability or interfere substantially with other aspects of life. Perez v. Pantasote, Inc., 95 N.J. 105, 115-117 (1984)
Although medical expert opinions are a necessary component of the case, the court is bound to apply the law and, where the opinions and the law are in conflict, the opinion must fall.
Here, while the experts have opined that petitioner has permanent disability involving his left ankle, their opinions are not based upon any objective evidence of such disability and cannot sustain an award.
I find that the petitioner has not sustained the burden of proof of permanent disability resulting from the injury to his left foot and ankle and Claim Petition 95-024383 is hereby dismissed.
Insofar as the claims for occupational disease and Second Injury Fund liability are concerned, the petitioner’s testimony began with a recitation of his pre-existing injuries and conditions. He described childhood dyslexia, which he claimed made his childhood life difficult although he was never treated for this condition.
He described prior work-related injuries. In 1991 he was driving an electric hand truck which struck a hole in the floor and caused him to injure his "neck and all the way down to my back." He also suffered a crush type injury to his right index finger in 1992, which left him with a loss of sensation in that finger. In 1990, he suffered a non-work related fracture of his right ankle, which required open reduction.
With specific relationship to his claim for orthopedic occupational disease, petitioner testified that the nature of his work required him to package material and load trucks. He would pack gallon cans and load heavy drums. He described this activity as heavy physical labor.
He stated that the nature of this work caused the pain from the prior injury to get worse so that he required medical treatment.
He received chiropractic treatment to his neck and lower back at the Kahn Chiropractic Center between August 21, 1993 and October 2, 1994.
He presented the testimony of Dr. Mark Friedman who had examined the petitioner on July 24, 1996.
Dr. Friedman stated that he could not touch the petitioner during this examination because the petitioner screamed in distress when the doctor approached him. He was, therefore, unable to objectively confirm the presence of muscle spasm or limitation of motion, or any other objective confirmation of permanent disability.
When asked by petitioner’s attorney whether he could determine the presence of muscle spasm by observation alone, Dr. Friedman stated that it was necessary to touch the patient in order to make this finding.
Despite this inability to touch the petitioner, Dr. Friedman nonetheless estimated that he had a permanent disability of 40 per cent of total.
The respondent did not present any expert witness on the orthopedic claim.
The definition of permanent partial disability is found in N.J.S.A.34:15-36. A petitioner is required to show that there is demonstrable objective evidence of injury or occupational disease which restricts the body or its members or organs and lessens to a material degree an employee's working ability or impairs the ability of the petitioner to carry on the ordinary pursuits of life. As stated in Perez v. Pantasote, Inc., 95 NJ 105 (1984):
"In summary, then, the employee must first prove by demonstrable objective medical evidence a disability that restricts the function of his body or its members or organs. Second, he must establish either that he has suffered a lessening to a material degree of his working ability or that his disability otherwise is significant and not simply the result of a minor injury. The burden of proving both rests with the petitioner, since he has the onus of establishing permanent partial disability." p 118.
In this case, I find that the petitioner has failed to sustain this burden of proof. The opinion of Dr. Friedman is unsupported by any objective findings and, despite the doctor’s belief in the veracity of the petitioner’s complaints, the lack of the necessary objective confirmation of disability requires that this claim be dismissed for failure of the petitioner to sustain the burden of proof as required by Perez.
The failure of the respondent to present any medical expert on this aspect of the case does not relieve the petitioner of his required burden of proof. See Bradley v. Henry Townsend Moving & Storage Company, 78 N.J. 532 (1979).
With regard to his pulmonary claim, the petitioner testified that he was exposed to dust and silicone that was "flying in the air" where he worked. He said that the conditions were "unsafe" because there were containers of material that were uncovered.
He described one substance that he called "peanut butter" which caused him to become "higher than a Georgia pine" when he worked with it. He would transfer this material from the large drum in which it was stored into smaller two-gallon cans.
He testified that there were other materials that also affected his lungs although he was unable to identify them with any particularity.
He also was exposed to fumes from hi-lo vehicles being operated in the plant.
He stated that his breathing became affected after one year of working for the respondent and progressed as he continued to work there.
At the time of his testimony before me he had no specific complaints referable to his lungs or his breathing.
Petitioner presented the testimony of Dr. Malcolm Hermele, a pulmonary specialist who had examined him on October 7, 1996.
Dr. Hermele had a history of exposures to numerous pulmonary noxious agents, which he set forth in his testimony. These are also in his report marked as exhibit P-1.
He also reviewed reports of prior x-rays and CAT scan, which showed right pleural thickening.
His own examination showed petitioner to have right pleural thickening with increased bilateral brochovascular and hilar markings. He also noted increased interstitial markings. He considered this to be an abnormal chest x-ray.
On a spirometry test, he found a Forced Vital Capacity of 75 per cent where 80 per cent is considered normal. The only other abnormal finding was a reduction of FEV3 from 97 per cent to 77 per cent.
Dr. Hermele concluded that the petitioner had a permanent pulmonary disability of 30 per cent of total for chronic bronchitis and restrictive pulmonary disease in the form of pleural asbestosis. He felt that these conditions were caused or exacerbated by petitioner’s noxious exposures during his employment with the respondent.
Respondent presented the testimony of Dr. Dennis Schisano who is also a specialist in pulmonary disease.
Dr. Schisano examined the petitioner on two occasions, July 16, 1997 and again on November 18, 1998.
On both of those examinations, pulmonary function tests were taken, however, on cross-examination, Dr. Schisano conceded that the findings of the July tests were unreliable since there had been an apparent error in the data used to calibrated the tester. The November PFT showed a Forced Vital Capacity of 79 per cent- similar to that of Dr. Hermele.
Dr. Schisano felt that there was no pulmonary disability.
I find that, from the proofs presented to me, that the petitioner has failed to sustain the burden of proof that he has a pulmonary disability that is medically and legally causally related to his employment by the respondent.
Dr. Hermele has opined a permanent disability of 30 per cent of total for chronic bronchitis and restrictive pulmonary related to pleural asbestosis.
There is no evidence that the petitioner was exposed to asbestos during his employment with the respondent. Although Dr. Hermele testified to a history of numerous substances, neither the testimony of the petitioner nor the data safety sheets introduced into evidence show asbestos as a product to which the petitioner was exposed during his employment with the respondent.
Furthermore, chronic bronchitis is defined as a chronic productive cough for at least three months in each of two successive years for which other causes have been excluded. See The Merck Manual, 17th Ed., p.568. Petitioner gave no complaints of a cough in his testimony. Therefore, the opinion of Dr. Hermele cannot be accepted.
Additionally, even if the evidence were to support the opinion of Dr. Hermele, the pulmonary claim would fall because the proofs show that the pulmonary disability, regardless of cause, is mild. The petitioner’s complaints in this area were minimal at best, as were the reductions in his forced vital capacity.
Petitioner’s claim would be barred by that portion of N.J.S.A. 34:15-36, which proscribes permanent disability under these circumstances.
Petitioner’s final claim was for occupational psychiatric disability. This was based upon what he perceived to be verbal abuse from his supervisor, Joe Murphy.
Petitioner testified that he and Mr. Murphy became friends at the commencement of petitioner’s employment with the respondent on August 8, 1989. At that time, Mr. Murphy was a group leader of a gang of four employees in the shipping department. He was not considered petitioner’s supervisor in that capacity.
Between 1989 and 1994, when petitioner began dating a woman who would later become his wife, he testified that he and Murphy were both "loners". He would take Murphy to bars after work.
Prior to 1995, he stated that Murphy would call him a "dumb dummy" because he knew that the petitioner has dyslexia and could not read.
After petitioner became involved with his future wife, his social interaction with Murphy became less, causing Murphy to abuse him more than before.
When Murphy became petitioner’s supervisor in 1995, petitioner testified that the verbal abuse became worse. Murphy would call him a "horses ass" and would hang pictures of one on the wall with petitioner’s name under it. He would also make the petitioner the butt of jokes, which the petitioner felt, could not be told in the company of women.
He named several co-workers who, he claimed, were aware of this verbal abuse.
He also testified that he reported this abuse to the general manager of the respondent and asked to get fired but the manager told him to "just blow it off" since he and Murphy were friends. He told petitioner to go to the break room and sit down.
Petitioner testified that the next day, Murphy told him that if petitioner again went to the manager to complain, he would "kick his butt".
The petitioner felt particularly bad about the treatment by Mr. Murphy because he believed that Murphy was his best friend.
On or about April 30, 1995, the petitioner got up to go to work. He dressed and then started thinking about that day and began crying and shaking. His wife took him to a doctor and he eventually was referred to a psychiatrist.
The medical records of the University of Medicine and Dentistry of New Jersey, Community Mental Health Center at Piscataway shows that the petitioner was first evaluated on May 18, 1995. He gave a history of two years of harassment at work by his supervisor with two to three months of "intense harassment and abuse" immediately prior to stopping work.
Petitioner was seen on five occasions to July 12, 1995 for psychotherapy. On that date, he was deemed to be doing well with most symptoms in full remission.
The final diagnosis of this facility was adjustment disorder with mixed anxiety and depressed mood. (P15)
Petitioner was next seen at the University Behavioral HealthCare facility of the UMDNJ on June 10, 1996 because he became upset when he was placed on permanent disability. The history again was of the harassment at work. (P16)
He was seen on four occasions to 7/22/96 and, when he did not appear for a later session, his file was closed on September 16, 1996.
The diagnosis was again of an adjustment disorder with mixed disturbance of emotions and conduct.
Lastly, he was seen by Dr. Donald Oh at the Discovery Behavioral Health CMHC on August 25, 1997. The history again was that his "supervisor drove me crazy". He was seen on three occasions to October 7, 1997 at which time he was still depressed but less obsessive. The diagnosis was dysthymia. (P19).
He presented the testimony of Dr. Richard Rubin as his psychiatric expert. Dr. Rubin examined the petitioner on March 4, 1998. He found Mr. Harry to have multiple psychiatric conditions, which rendered him permanently disabled to the extent of 80 per cent of total. He estimated the disability due to the perceived abuse at work, which he diagnosed as an adjustment disorder with mixed emotional features, to be 30 per cent of total.
The respondent presented no factual testimony regarding the claim of verbal abuse.
The expert psychiatrist presented by the respondent was Dr. Richard Logue. He had a long and impressive curriculum vitae. He examined the petitioner on two occasions and submitted long and detailed reports of these examinations.
His testimony, however, was as short as any which I have heard in the nearly fourteen years that I have been a judge. He simply refused to give any opinion on whether the petitioner had any psychiatric condition or disability.
The requirement for proving a compensable psychiatric occupational disease is set forth in Goyden v. State Judiciary, 256 N.J. Super. 438 (App. Div. 1991) aff’d o.b. 128 N.J. 54 (1992) where the Court adopted the following test:
For a worker’s mental condition to be compensable, the
working conditions must be stressful, viewed objectively,
and the believable evidence must support a finding that
the worker reacted to them as stressful. In addition, for a
present-day claimant to succeed, the objectively stressful
working conditions must be "peculiar" to the particular
work place, and there must be objective evidence
supporting a medical opinion of the resulting psychiatric
disability, in addition to "the bare statement of the patient."
In this case, I am satisfied that the petitioner has satisfied the defined burden. He has presented evidence of verbal abuse, which is uncontradicted by the respondent.
While rude or insensitive superiors might not be peculiar to any particular place of employment, in this case we have a superior who was also a former personal friend of the petitioner. There was an apparent relationship between them which was upset when the petitioner decided to marry. The previous verbal abuse, which might not have qualified as peculiar to any particular working place, then became more vicious and cruel, particularly in view of this petitioner’s educational deficiencies. I cannot conceive that this degree of abuse would be tolerated as "usual" in any place of employment.
Although the petitioner’s description of the working conditions is unsupported by any other testimonial evidence, it is supported by and consistent with the numerous treatment records submitted into evidence and, is uncontradicted by any factual evidence presented by the respondent.
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).
In order to establish psychiatric 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 patient’s subjective statement. See Saunderlin v. E.I.DuPont Company, 102 N.J. 402 (1986).
I find that the testimony of Dr. Rubin satisfies the above test. He made observations of the petitioner during the examination and supported his diagnoses with reference to particular sections of the DSM4, the accepted psychiatric diagnostic manual.
With regard to the permanent disability related to the verbal abuse, Dr. Rubin diagnosed the condition as an adjustment disorder with mixed emotional features and evaluated the disability at 30 per cent of partial total. I see no reason not to accept, not only the diagnosis, but also the extent of the disability.
There was no contrary acceptable medical evidence on behalf of the respondent. Dr. Logue’s testimony was not credible. He essentially said that he was unable to arrive at any opinion.
I find that the petitioner has a permanent disability of 30 per cent partial total.
I find that this disability manifested itself in 1995 and, therefore, the compensation rates applicable are those for that year.
Inasmuch as the petitioner has been found to be less than totally disabled, his Verified Petition for Benefits from the Second Injury Fund will be dismissed.
Judgment will be entered in accordance with this Decision.
March 26, 2001