CP# 04-19362 Horowitz v. DZS Software Solutions
DEPARTMENT OF LABOR
DIVISION OF WORKERS' COMPENSATION
MONMOUTH COUNTY DISTRICT
C.P. # 2004-19362
DAVID HOROWITZ ,
DZS SOFTWARE SOLUTIONS,
For the Petitioner: MURRAY WEINGARTNER, Esquire
For the Respondent: RANDOLPH BRAUSE, Esquire
LAWRENCE G. .MONCHER, J.W.C.,
On October 9, 1992, Mr. Horowitz, DSL Software Solutions’, vice president for marketing and sale was on a business trip in Atlanta, Georgia. Unfortunately, he was the victim of a tragic automobile accident which left him a totally disabled paraplegic. Both his legs and his right arm are essentially useless. He is wheel chair bound with limited upper body strength and only one usable arm. He will never walk. This 58 year old man is unlikely to ever work again. While no medical testimony was presented, there is no doubt expressed by either party on that ultimate result. Both petitioner and respondent Hartford Insurance Company recognize that Mr. Horowitz’s condition is such that his home should be retrofitted to meet his permanent disability. No medical testimony was presented because there is no medical dispute that he requires a handicap accessible home.
Respondent has been paying total disability benefits based on his $900+ per week earnings. There is no reason to question the adequacy or appropriateness of the medical and physical therapy care it has furnished. on the question of impairment. Respondent recognizes that this 58 year old man is not likely to ever move without a wheel chair or similar assistance. His pre-accident household consisted of himself and his wife. Their children are all adults with their own households.
Hartford Insurance Company, the compensation insurer for his employer has provided for and continues to provide the medical care and necessary rehabilitation and physical therapy which is necessary to prevent further deterioration in his physical and mental well being. Mr. Horowitz’s home can not accommodate him as a wheelchair bound person. The only issue presented to me was the extent of alterations which Hartford should make to his home to accommodate his status as a wheelchair bound person with these injuries. With the consent of both counsel I met informally with the petitioner, his wife, representatives of the Hartford, and their respective attorneys in an attempt to resolve the dispute. Unfortunately the parties could not be brought to an agreement. In the interim Hartford has spent in excess of $3,000 per week for appropriate housing for Mr. Horowitz and his wife. Logic tells us that a more permanent arrangement is in the best interests of both parties. Each expressed reasonable grounds for holding to their position on what should be done. There is no reconciling them. The relevant statute governing this case is N.J.S.A. 34:15-15 as interpreted by Squeo v. Comfort Control Corp., 99 N.J. 588 (1985).
The pertinent provision of the Workers' Compensation statute which speaks to the provision of medical treatment requires that an employer shall furnish to the injured worker such medical, surgical, and other treatment, and hospital service as shall be necessary to cure and relieve the worker of the effects of the injury and to restore the functions of the injured member or organ where such restoration is possible ... [The] Division of Workers' Compensation, after ... giving the employer an opportunity to be heard, shall determine ... [whether] such ... treatment is necessary.
When an injured employee may be partially or wholly relieved of the effects a permanent injury, by use of . . . other appliance . . . The Division of Workers Compensation acting under competent medical advice is empowered to determine the character and nature of such . . . appliance, and to require the employer or the employer’s insurer to furnish the same. N.J.S.A. 34: 15-15.
The employer’s statutory duty to provide adequate and proper medical treatment is absolute. Benson v. Coca Cola Co., 120 N.J. Super. 60, 66 (App. Div. 1972). Under the New Jersey Workers’ Compensation law the respondent ordinarily has the power to control treatment and select the medical providers. Benson, supra. This is essentially a managed care system, except the patient is not left to dispute resolution by a system controlled by the insurer. N.J.S.A. 34:15-15.
In Squeo v. Comfort Control, supra. the petitioner was a paraplegic, confined to a wheelchair. The compensation insurer contended that the nursing home care it was providing was the proper way to meet his medical needs. The insurer refused to make alterations or construct an addition to the home of Mr. Squeo’s parents to accommodate him. The proofs showed that in addition to the obvious orthopedic and neurologic injuries, the lack of socialization and absence of family was causing severe depression and suicidal ideation which would be relieved if he was provided with a facility for independent living with his family. The Court ordered the insurer to pay the cost of building an apartment wing on to his parent’s home. The Court directed the insurer would be granted a lien for its costs to be repaid on sale of the premises. Importantly, the Court cautioned only the unusual case that may warrant such extraordinary relief as constructing a home as treatment or appliance. I am convinced after seeing and hearing Mr. Horowitz, that this man with only one usable limb presents an unusual case requiring extraordinary relief customizing his home even if it is now a better home with more facilities than before his injury. Without this he would be unable to be anything more than a breathing unit with no ability to pursue a life.
After hearing all of the proofs, I am convinced that the only solution which would meet the needs of all the parties over the long haul would be for the petitioner and his wife to sell their home and purchase a modern handicap accessible home with the respondent granting petitioner a sufficient sum to complete the transaction. The respondent expressed a willingness to enter into negotiations on what would be a sufficient grant without a lien. Petitioner declined. A settlement of this type would have given the Horowitz’s a home which allowed them to live a life style which meets their needs without the Hartford having a lien against the eventual sale price. Based on the real estate appraisal provided to me and the fact that the house sits in a neighborhood of homes of substantially valued homes, I believe merely upgrading the existing house is likely in the long range to be a money losing proposition for Mr. and Mrs. Horowitz. When the inevitable occurs and the house is sold, the lien of Hartford for the cost of the modifications must be satisfied from the proceeds. See Squeo., supra It is unlikely that the alterations will add much in real value to the eventual value of the house. If I had the authority to force such a resolution, I would do so. But I do not, so the proofs offered here must be evaluated within the parameters of existing law.
The Workers’ Compensation Act “is remedial social legislation designed to place the costs of accidental injuries which are work-connected upon employers who may readily provide for them as operating expenses.” Secor v. Penn Service Garage, 19 N.J. 315, 319 (1955). Judges are directed to “liberally appl[y] [its provisions] . . . to protect employees in the event of work-related injuries ...” Ibid. The Supreme Court has continually reiterated that the Workers' Compensation Act is to be liberally construed in order that its beneficent purposes may be accomplished.
[O]ur courts have not hesitated in the past to construe the workmen's compensation act so as to comport with its presumptive beneficent and remedial objectives favorable to injured workmen rather than to be bound by its coldly literal import." Paul v. Baltimore Upholstering Co., 66 N.J. 111, 136 (1974).
This directive for liberal construction of the Act continues. Lindquist v. City of Jersey City, supra.,175 N.J. at 257-258. On the other hand, this directive to construe the act liberally does not extend to ignoring the burden of proof.
Ordinarily the burden of proof in all Workers Compensation contested cases, is on the petitioner who must produce the evidence and persuade the trier of fact by a preponderance of the credible evidence. Lindquist v. City of Jersey City, 175 N.J. at 258-259 (1973); Perez v. Pantasote, Inc., 95 N.J. 105, 118 (1984).
All that is required is that the claimed conclusion from the offered facts must be a probable or a more probable hypothesis. . . The test is probability rather than a certainty. . . . However, the evidence must be such as to lead a reasonably cautious mind to the given conclusion. ‘The standard is one of reasonable probability; i.e., whether or not the evidence is of sufficient quality to generate a belief that the tendered hypothesis is in all likelihood the truth. It need not have the attribute of certainty, but it must be well founded in reason and logic, mere guess or conjecture is not a substitute for legal proof.’ [Citations omitted.] Laffey v. City of Jersey City, 289 N.J. Super. 292, 303(App. Div. 1996).
The employer has the burden of proof on factual propositions and legal conclusions which will exonerate or mitigate the employers liability. Lindquist v. City of Jersey City, supra. 175 N.J. 264-265; Fiore v. Consolidated Freightways, 140 N.J. 452, 479 (1995); Gulick v. H.M. Enoch, Inc., 280 N.J. Super. 96, 109 (App. Div. 1995). Katz v. Township of Howell, 68 N.J. 125, 132 (1975); Lewicki v. New Jersey Art Foundry, 88 N.J. 75 (1981).
Usually the petitioner is seeking specifically defined relief from a reluctant insurer or employer. That is not what happened here, this is not any sense an ordinary case. Both parties agree that significant alterations must be made to the Horowitz residence or he can not live there. Both parties recognize that Hartford will have a recordable lien. No one wants the alternative of a nursing home environment. One does not need to be a psychiatrist to recognize that his long range mental health will be enhanced by having the ability to live with a loving spouse. Cf. Squeo v. Comfort Control, supra. Here the insurer, Hartford recognized its legal obligation and has been attempting to discharge that duty. The Hartford hired an expert in evaluating and providing housing which is accessible to handicapped persons. It as well as petitioner approached me to rule on what must be provided. The hearing was not the conventional adversary trial. The evidence including the testimony of Mr. Horowitz was no more than an evaluation of Hartford’s plan.
Patrick A. Sherwood, a Certified Environmental Accessibility Consultant/Contractor testified.. Mr. Sherwood has extensive practical experience in the construction business building for and planning for the needs of those who have special accessibility problems, i.e. wheelchair, elevator design, lift installations, building modifications and reasonable barrier free facilities. He has inspected Mr. Horowitz’s home on more than one occasion, discussed his physical limitations and reviewed the local building regulations. He prepared a plan which Hartford believes represents a fair and reasonable approach to Mr. Horowitz’s disability within its responsibility under the Workers’ Compensation Law. Mr. Horowitz testified about his limitations and his view of his needs. Mr. Sherwood’s plan to retrofit the house on its face appears to be reasonable but cross examination did reveal short comings which I find require revision. The failure to make these revisions will leave Mr. Horowitz with a home in which he can not maneuver around in a wheel chair. There must be modifications so that this paralyzed man’s home can accommodate the appliances and equipment he requires. The only legal authority in New Jersey on this subject is Squeo. where the Court engaged in an exhaustive review of the legal precedents in other states. I followed the directions given by the Court in Squeo and reached the findings expressed below..
One concern I observed was the lack of provision for space for physical therapy equipment. Respondent’s claim adjuster, Ms. Lilian Bonser, testified that Hartford would now provide physical therapy evaluation and therapy at a gym at JFK Medical Center in Edison, New Jersey. The advantage of this facility is that it is closer to petitioner’s home than other options and he would have access to the hospital and its extensive rehabilitation facilities when needed. During her testimony, I reminded the Hartford that it would be responsible for transportation to that out patient facility. They agreed. As a consequence there is no present need for an exercise facility at the Horowitz home. If such a facility does become a reasonable approach to his exercise needs. Hartford, through its attorney, has advised that it would build a fully insulated, heated and air conditioned Florida room to the rear of the house to house the equipment it would be required to provide. Based on this undertaking, I have not ordered the construction of an exercise facility for this paralyzed person.
The documentary evidence consisted of: R-1 a report of a certified appraiser dated May 11, 2005 which valued the Horowitz homestead at $490,000. The house sits on a .26 irregular lot, it is a 1.5 story cape cod style home containing 1,798 square feet with 4 bed rooms, 2 on each floor, a bath room on each floor, a small kitchen, a dinning area, living room, laundry area and foyer, plus a one story family room addition. R-2 is a collection of color photographs of the exterior and certain rooms. They leave me with the distinct impression the rooms are quite small. R-3 is Mr. Sherwood’s proposal to remodel the home. R-4 is the existing floor plan of the home. R-5 Is the floor plan of the renovation of the first floor. R-6 is Mr. Sherwood’s personal qualifications which do demonstrate his expertise and experience in this field. Two other exhibits R-7 an alternative floor plan and P-1 a second floor plan were marked for identification, referred to in witness questioning but never offered into evidence. No one disputes the fact that the house as it presently stands can not accommodate Mr. Horowitz in a wheel chair. I have my doubts that even with all the improvements recommended by Mr. Sherwood, that the house will be adequate.
The first floor of the house has a master bed room with bath and a second smaller bed room on the left side. The Hartford plan would eliminate the small bed room, extend the exterior wall on that side 5 feet 2 inches giving Mr. Horowitz a new roll in bedroom closet, a new accessible bath room with a roll in shower and accessible commode and sink. On cross examination Mr. Sherwood conceded that there was not sufficient space to turn around in a wheel chair in the new bedroom. Further the roll in closet does not appear to be sufficient to meet his storage needs for clothing and all of his equipment. Common sense would tell you it would not be sufficient to hold his wife’s clothing as well as his. The renovated bedroom would be approximately 9 x 14 feet and appears to be a bit too small for the existing bed room furniture nor would it allow for a lift to permit movement from the wheel chair to the bed and back let alone turning around while in the wheel chair.
The lack of storage area for his wheelchairs, portable commode, and other equipment is troubling. Mr. Sherwood suggested storing these in the family room addition. This is quite surprising since he described this room as structurally unsafe because the roof is sagging and the room was never tied into the rest of the structure. He described the room as not meeting building codes and Hartford refuses to absorb the expense of a tear down and reconstruction. Another serious issue is the fact that the family room is the only flat area under the retrofit plan where he could lay flat and do his stretching exercises. This room seems to fit into the necessary use of the remodeled house but is unsafe. The square footage it represents is an integral part of the use of the house by this paralyzed man.
Hartford’s plan for the kitchen and deck appears reasonable and meets the legal needs of petitioner provided some allowance is made for a mud room or similar area for cleaning the wheels of the wheel chair before he enters the house. The small kitchen is to be enlarged by extending the exterior wall into the present deck and breaking through to the dinning room. Essentially this would give a country kitchen instead of the existing galley type kitchen and modest sized dinning room. The plan proposes to reconstruct the deck with an electric lift to allow access from the driveway into the kitchen through sliding doors. The kitchen cabinets and appliances would be replaced at a level so they can be reached from a wheel chair bound person. Except as noted this part of the plan is adequate.
Mr. Sherwood conceded that persons with serious spinal injuries require air conditioning as well as heat to maintain proper body temperature. His proposal is to install window units in every room. The adequacy of this has not been researched. I would approve this only if the air conditioning plan was approved by an appropriate expert who could evaluate the HVAC needs of the house and the adequacy of the electric lines, outlets and electric service to the house. The lack of a mud room or space for cleaning the wheels of the wheel chair on entrance the house will lead to further damage of the interior. Constant soiling of floors is not proper. The deficiencies cited above are real and substantial. They will cost money, especially reconstructing the den. These are not merely beneficial to petitioner but are reasonable common sense adjustments required to make independent living feasible. Cf. Squeo v. Comfort Control Corp., supra. 99 N.J. 606. Here the relief is of a physical nature, in Squeo it was severe mental depression generated by institutionalization away from his family. This can be avoided if Mr. Horowitz is provided with a proper facility.
I realize there was no other expert witness. But the cross examination of Mr. Sherwood showed that if the second floor of the house were made accessible with an appropriate elevator device, the rooms expanded, and the bathroom for Mr. Horowitz’s needs placed there, the space issues of storage and work out space could be solved without much of the planned renovations planned for bed rooms and bath on the first floor. The other and third alternative would be to reconstruct the den so it complied with local codes. This modification of the basic Hartford proposal would yield sufficient space for Mr. Horowitz to live in the house as opposed to a nursing home or assisted living facility. I am cognizant that this will cost more, but it is necessary so this young man can live out his days in reasonable home with a companion to provide for his needs.
Once again I urge the parties to come to an agreement on acquiring a new home that does not require the massive reconstruction necessary to accommodate this gentlemen. In the absence of that Hartford is directed to return to the drawing board to either make the second floor handicap accessible with an elevator in lieu of the proposals for the first floor bed rooms and bath or to add to the first floor plan an adequate reconstruction of the family room for integration into the retrofitting of the first floor. Air conditioning in all parts of the house used by Mr. Horowitz is a must. Under all circumstances, the new revised plan should include a mud room at one of the wheel chair entrances. As a condition of this renovation, both Mr. And Mrs. Horowitz must sign the appropriate document to give the Hartford a recordable lien.
The petitioner is instructed to prepare a form of order for review by respondent’s counsel and consent as to form. The parties will appear before me at a date to be scheduled in early January to advise of progress on the redesign.
Dated: November 4, 2005 Lawrence G. Moncher, J.W.C.