CP# 95-44723 Hayes vs. New Jersey Sports and Exposition Authority
|Stafford W. Thompson, Esq.
P.O. Box 814
Red Bank, NJ 07701
|Kenneth J. Sylvester, Esq.
Cooper, Perskie, et al
1125 Atlantic Avenue
Atlantic City, NJ 08401
Re: Hayes v. New Jersey Sports & Expos. Auth. – C.P. 95-044723
This case is before me at this time for a ruling of petitioner’s motion seeking medical and temporary disability benefits with respect to left hand carpal tunnel syndrome with surgical release. The issue presented by the testimony and exhibits is that of causal relationship. The EMG report of February, 2002 (Exh. R-4) notes bilateral carpal tunnel syndrome, with the left being more pronounced than the right. Petitioner thereafter underwent left release surgery.
Petitioner, who is currently 67 years of age, testified that she has not been employed since 1995. Prior to that time she had worked for respondent as a parimutual clerk for approximately 20 years. On January13, 1999 petitioner received an award of 30% partial/total permanent orthopedic/psychiatric disability based on residual effects of various occupational injuries suffered during her employment with respondent. Three (3) months later she filed an application for review/modification of such award alleging that her condition had “worsened” and that she was entitled to additional treatment and benefits. During May 2000 petitioner filed a motion to join the Second Injury Fund on the basis that she was permanently and totally disabled as a result of her work-related injuries. Neither that motion nor respondent’s motion to dismiss the reopener claim have been heard or resolved to date.
Petitioner’s initial motion for medical and related benefits was filed during April, 2000. It sought treatment for cervical disc disease with radiculopathy involving petitioner’s left arm. Such motion was based upon a cervical MRI report dated January 21, 1999, less than 10 days after petitioner had received the above noted permanent disability award, and an office note issued by Dr. Ross dated February 15, 2000. The noted MRI report refers to a left paracentral epidural abnormality at level C7-T1 with left forminal narrowing. The reporting radiologist found this condition to be of limited significance since the petitioner presented right-sided symptoms. In response to petitioner’s motion the respondent denied causal relationship and presented a report by Dr. Fischer (June, 2000) in support of its position. Each of the parties thereafter retained fresh counsel and that motion appears to have been abandoned.
Mr. Thompson, petitioner’s current counsel, filed a fresh motion seeking medical and related benefits during January, 2001. In support of that motion he filed a medical report issued by Dr. Krengel dated April, 2000 in which the latter (i) recommended a permanent orthopedic disability figure for a variety of alleged injuries/disabilities, and (ii) suggested that petitioner undergo a neuropsychiatric evaluation. Such report does not mention a single complaint or finding attributable to petitioner’s left hand or wrist notwithstanding Dr. Krengel’s diagnosis of 14 separate injuries/disabilities. Of further interest is the fact that when Dr. Krengel reexamined the claimant during January, 2002, he (i) repeated the same diagnoses and disability findings, as well as a recommendation for a neuropsychiatric examination, found in his April, 2000 report, and (ii) again listed no complaint, finding or diagnosis which included or related to petitioner’s left hand or wrist. In fact, as noted below, petitioner’s complaints regarding her left hand/wrist were not presented to a physician until November, 2001.
In the course of testifying before Judge Boyle, at the time of the entry of an order approving settlement for her disability award (Jan. 1999) petitioner was asked to describe her work-related complaints. Consistent with the claim petition filed during 1995 the petitioner presented complaints regarding the use of her right hand but did not mention any complaint relating to her left hand. T-1/13/99, p.7. Further, neither the reopener application nor either of the motions for medical treatment filed in this matter sought treatment for or referenced a complaint relating to petitioner’s left hand/wrist. Notwithstanding that history, petitioner testified during March, 2002 that prior to her disability award of January, 1999 she had experienced problems with her left hand and had discussed that complaint with her attorney and was told to close her existing case and pursue the left hand claim at a later date. She further stated that the pain in her left hand did not become severe until November, 2001. Petitioner acknowledged on cross-examination that she did not seek treatment, nor was she being treated, for her left hand prior to the date of her award in January, 1999.
Dr. Ross, petitioner’s primary treating physician, testified in support of petitioner’s motion. His office has treated petitioner for over 20 years and he himself has treated petitioner since 1998. He stated that his files did not disclose any complaint by petitioner relating to problems with her left hand prior to November, 2001 when first presented such complaints to him. Petitioner thereafter consulted with an orthopedic surgeon and underwent a left carpal tunnel release a few months later. In his opinion condition and the subsequent surgery were causally related to petitioner’s work as a parimutual clerk. He explained that as a result of her lengthy period of employment in that capacity the size of her carpal tunnel had decreased due to inflammatory and fibrotic changes causally related to her work, thus requiring the median nerve to pass through a smaller opening. In his view her left carpal tunnel had decreased by as much as 98% by the time that she retired from her employment with respondent, and was therefore the material reason why petitioner developed a carpal tunnel syndrome. He further stated that the delay in symptom presentation was due to the fact that she had retired and was no longer using her left hand in a repetitive type task.
Dr. Fischer, respondent’s medical expert, examined the petitioner on three separate occasions during 1997, 2000 and July, 2002. The last of these examinations was required due to the change(s) made in petitioner’s claim and motion to include her left carpal tunnel condition. He stated that petitioner presented no complaints regarding her left hand/wrist at the time of either his 1997 or 2000 examinations. While petitioner did present such complaints to him during his most recent (2002) examination, he found her left carpal tunnel condition was not causally related to her past employment with the respondent. In his view the period of 5-6 years between the termination of her employment as a parimutual clerk and the onset of carpal tunnel symptoms makes it “unlikely” that the condition was causally related to her past employment with respondent. He noted that it was his experience that when repetitive hand work ceases the symptoms usually subside “to a major degree”, and that if there was causal relationship to such past activity the symptoms do not subside and surgical intervention is then necessary. He then described the mechanics of the condition itself and noted that if the petitioner’s left carpal tunnel condition was related to or caused by her past employment with respondent he would have expected her to present some sort of complaint regarding her left hand or wrist at the time of his prior examination. He also stated that the 1999 MRI did not suggest any problem that would relate to or cause a left carpal tunnel syndrome. It is Dr. Fischer’s opinion that progressing arthritic changes caused the left carpal tunnel pain/syndrome that petitioner experienced in late 2001 and that the 5-6 year interval between her employment with respondent and the onset of her pain support the conclusion that the latter condition is not causally related to such employment. Dr. Fischer noted that arthritis is one of the most common causes of carpal tunnel syndrome. He also opined that (i) if a carpal tunnel condition exists, regardless of cause, it would cause continuing and distressing symptoms that make it virtually impossible for a person to continue a job or function that requires repetitive movement/use of the injured member, and (ii) under normal circumstances a person who had such condition and the ensuing pain and loss of hand function would report the same in the course of a physical examination. Finally, Dr. Fischer strongly disagreed with Dr. Ross’ view that petitioner’s left carpal tunnel area could have been reduced by 98% without symptoms as the result of her employment and then further reduced over the next 5-6 years by normal activity not related to her employment.
I found Dr. Fischer’s opinion as to the basis and cause of petitioner’s left carpal tunnel condition to be more credible than that offered by Dr. Ross. The lapse of 5-6 years between petitioner’s departure from her employment with respondent and the onset of her initial left hand/wrist complaint(s) places serious doubt on the causal relationship between the latter problems and such employment. Other factors also influence my finding in this matter. To begin with, and notwithstanding her unsupported statement to the contrary, I question her allegation that she initially complained of any significant or compensable left hand problems to her counsel at the time of her disability award before Judge Boyle (Jan. 1999). My impression of the petitioner at the time of her testimony, which I believe is supported by the examination reports of both Dr. Fischer and petitioner'’ orthopedic evaluator, Dr. Krengel, is that she is not a person who, when questioned, would fail to present what she views to be work-related physical complaints/injuries. Yet this is exactly what she would have me believe occurred on at least four occasions, to wit: her appearance before Judge Boyle, and the three orthopedic examinations conducted by Drs. Krengel (2) and Fischer during calendar years 2000 and January, 2002. Indeed, Dr. Fischer noted in his June, 2000 examination report that she believed that all of her then current physical ailments were causally related to her former employment as a parimutual clerk, whereas Dr. Fischer found that her back complaints were the result of a severe spondylosis with ridging in her neck and that her right shoulder problems were caused at least in part by AC joint arthritis. (see Exh. R-2). I am also mindful of the provisions of N.J.S.A. 34:15-31, which defines a compensable occupational disease as a condition arising out of and in the course of employment which is “due in a material degree” to causes and conditions peculiar to or characteristic of such occupational or place of employment.
I find that petitioner has not met her burden of proof as to causal relationship between her former work as a parimutual clerk and her rather recent left carpal tunnel condition. In coming to such conclusion I rely on the Supreme Court’s teaching in Ciuba v. Irvington Varnish and Insul. Co., 27 N.J. 127 (1958). On the facts before me I find that the petitioner has failed to meet the required evidential standard.
I will enter an order denying petitioner’s motion for medical and temporary disability benefits. I note on this point that the petitioner did not produce any evidence or testimony seeking such benefits for any condition other than left carpal tunnel syndrome and that, in fact, both of Dr. Krengel’s opinions support a claim or claims for permanent disability rather than medical or temporary disability benefits. I will provide that respondent will pay J. Trainor, Inc. the appropriate fee for stenographic costs related to this motion.
This case will now be placed on the calendar for a determination of petitioner’s motion for Second Injury Fund benefits.
Neale F. Hooley
Judge of Compensation