CP# 98-22367; 01-27271 Ingram v. Bloomingdale Bd. of Education
DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT
DIVISION OF WORKERS’ COMPENSATION
NEWARK, ESSEX COUNTY
Bloomingdale Board of Education,
CLAIM PETITION NOS.
BEFORE: Stephen Tuber
Judge of Compensation
DATE: September 12, 2005
From the testimony and evidence produced at trial I find the following facts: On April 2, 1998, a colleague [a gym teacher] of the Petitioner asked her to demonstrate “a certain activity” to a class. While so doing she fell and injured her left wrist.
Petitioner went to the nurse’s office and was immediately taken to Chilton Memorial Hospital. At Chilton Hospital x-rays were taken. Petitioner testified that since “there was no orthopedic doctor on staff [I presume that Petitioner meant that there was no orthopedist present at the time she was examined] …they made several calls and they contacted a Dr. Sicheran in Wayne…” Her father who was waiting for her in the emergency room took Petitioner to Dr. Sicherman’s office. According to the Petitioner’s testimony, Dr. Sicherman took another x-ray of the Petitioner’s wrist and put a cast [to the elbow] on her left arm.
The next day the Petitioner went to work. However, according to the Petitioner because of continuing pain, without asking for authorization she went to her own doctor, a Dr. Casella of the Sparta Medical Group in Andover. Apparently, Dr. Casella’s altered her prescription for pain medication. Unfortunately, however, it did not relieve Petitioner’s pain. Thus, she called Dr. Sicherman to see if she could come in sooner than her next scheduled appointment. Dr. Sicherman accommodated the Petitioner. He again x-rayed the left wrist, and prescribed yet another pain medication. Dr. Sicherman also prescribed physical therapy.
Petitioner still received no relief. Indeed, according to her testimony not only didn’t the pain subside, but the hand “was a purple color and maroon color and the pain did not subside.”
On or about May 1st, the Petitioner was taken to the Newton Memorial Hospital because, “I had this sensation of having a heart attack…” After four days Petitioner was released. She stayed out of work until the end of the school year. Petitioner testified that although she did not have a full time job during the summer months that she was off, she did “tutor and do things like that. I didn’t have a full-time job during the summer, if that’s what you’re asking me.”
During the Summer of 1998, because of continuing pain the Petitioner saw Dr.Casella, her own physician and the Respondent’s authorized treating orthopedist’s, Dr. Sicherman.
In September 1998 Petitioner returned to work as a schoolteacher, although much to her dismay not as a fifth grade teacher. I quote from Petitioner’s testimony because it clearly reveals Petitioner’s preoccupation with her transfer was the genesis for the development of her present psychiatric disability.
Q Yes, ma’am. Okay, when September of 1998 came around, the beginning of the next school year, did you return to work?
A Yes, but I didn’t return to my normal fifth grade classroom as I thought I was going to be returned.
Q Yes, but you did return to work?
A Yes, but I didn’t return to the fifth grade classroom.
In September 1998 Petitioner over her objection – “I begged Dr. Sicherman not to send me back to work because I knew I wasn’t well enough to return, and so my Dr. Casella wrote a letter stating that I should return four out of the five days for light duty, and my superintendent at the time agreed and…” was authorized to return to work by Dr. Sicherman.
In pain, the Petitioner “persevered and went [to work] every day, and then the last day before Christmas vacation I was with the students and the teachers, and I was trying to take down the Christmas tree and I couldn’t breathe. I was having trouble breathing.” As a result of this episode, Petitioner was taken to the nurse’s office. Apparently, thereafter she summoned her strength and returned to help disassemble the Christmas tree, which took approximately two and one-half hours.
At the end of the work day Petitioner went home and “collapsed and I stayed on the couch for ten days with tremendous severe back pain and difficulty breathing, and pain radiating down the left arm, and I just wasn’t able to go back to work in January.”
According to Petitioner she requested psychiatric treatment from either the Bloomingdale Board of Education and/or their carrier, Inservco. Although the Respondent agreed to furnish a psychiatrist they never got back to her, as they agreed to do.
However, Dr. Casella sent Petitioner to Dr. Schneck, a psychiatrist. From the time Petitioner saw Drs. Casella and Schneck she has been on various psychiatric medications: Xanax, Effexor, Tenornin, and Paxil.
Petitioner indicated that was not able to return to work from January to September 1999 and during that time she was under the care of Drs. Casella, Schneck and Sicherman. When Petitioner returned to work in September of 1999, “They transferred me to a different grade level out of my certification.” Indeed Petitioner’s “workload went from 20 students to 125 students.” Notwithstanding the Petitioner’s transfer and the additional workload she, once again, persevered until the last week of school when she did not report to work.
Petitioner, however, did return to work in September 2000 teaching the seventh and eighth grades. Up until this time, although the Petitioner was in pain and unhappy with her transfer she “persevered.”
However, in September 2000 the administration of Bloomingdale’s Board of Education changed. And the change of administrations brought changes in policy and procedure, which according to Petitioner’s own testimony either caused or aggravated her preexisting, transient psychiatric disability. Once again, I quote at length because it reveals the emotional impact the new administration’s change in policy and procedure had on Petitioner.
Q Okay, and tell us please, during the semester returning from September to whenever it ended, what if anything, took place?
A The district changed supervisors at that point. Our previous superintendent retired and an interim was hired and all of a sudden for me everything just seemed to change. They were aware of my disability.
THE JUDGE: Just tell us what happened.
THE WITNESS: Okay, I started to get constant memos and phone calls and requests for—
THE JUDGE: From whom?
THE WITNESS: From my principal and our interim superintendent and from -
THE JUDGE: What was the gist of the memos that you received?
THE WITNESS: They were asking for verification of grades and asking for grade books, and they were asking for items from me to my knowledge that wasn’t being asked by anybody else.
According to the Petitioner, once again she “persevered” until February 2001 when she became “overwhelmed with what was going on with me, and that particular day I remember just having extreme headaches and becoming extremely upset over what was going on, and I wrote in my plan book that I was going to put in for a family medical leave, and I attached a note from my workers compensation doctor.”
Continuing… “I think Dr. Schneck, and he stated that I was suffering from post-traumatic stress and that I had overwhelming feelings of being harassed and discriminated against and it was becoming difficult for me to work.”
Q Who was harassing you?
A In my opinion, I felt the administrators and one parent.
Q What one, who?
Q When you say the administrators, could you identify who the administrators are?
A The interim superintendent. Could I amend my last statement. Board members, the interim superintendent [Anthony Gonnella], the principal [Dr. Steven Nacarra], and a parent [Mrs. Peira], and by that - -
Q What about the principal, Steven Nacarra, did he harass you?
A He harassed me in a way, yes.
THE JUDGE: The answer was, yes?
THE WITNESS: Yes.
Q How did he harass you?
A By constantly coming to my classroom, just constantly coming to my classroom and requesting items that I feel weren’t being requested by other teachers, and I would ask him as to why it was being asked of me, and I wouldn’t get responses.
Q What items were they?
A In particular, grade books, grades, and a plan book.
Q Now, at the time that he was asking you, was he your direct supervisor?
Q So there are two people that you’re able to identify, the interim superintendent and the principal, who you say were harassing you from the administration, correct?
Q Okay, and could you tell the Court at least, if you don’t know the dates, approximately how many times you felt that the principal harassed you?
A I’ll say two or three times a week, like notes and memos were coming all of a sudden on a steady stream, and that never occurred before.
Q And you said he asked for grade books and plan books. Did you supply them to the principal?
THE JUDGE: What was his reaction to them, did he say?
THE WITNESS: Yes, they were okay, when I met with him.
THE JUDGE: You met with him and you were doing a good job?
THE WITNESS: He said they were fine, and I had to meet with the interim superintendent.
THE JUDGE: And you met with the interim superintendent, and the conference ended up being a good conference?
THE WITNESS: The person was satisfied with my grades. I had three thousand grades. He said he couldn’t speak for the board member.
THE JUDGE: So the principal met with you about your things that you thought you were being supervised, and you furnished what he required, and he signed off on them and said they were fine?
THE WITNESS: Yes.
According to the Petitioner the harassment continued even after a new permanent superintendent, Dr. Joan Hall, was hired. I quote.
THE JUDGE: That’s what I don’t understand. Did she harass you, the new superintendent harass you?
THE WITNESS: Yes.
THE JUDGE: Tell us about it.
THE WITNESS: When the children come to my classroom - -
THE JUDGE: Just tell us how she harassed you.
THE WITNESS: She came to my classroom and observed me conducting teaching a seventh or eighth grade class, the way that the district instructed me to teach it, and she was not pleased with it.
THE JUDGE: What did she say?
THE WITNESS: She said she wanted to meet with me and this was my second observation, and the tenure teachers get observed once a year.
However, the meeting never took place apparently because Petitioner indicated that she needed to complete work on her grade books and because Petitioner went out on family leave. “I just got so upset with what was going on that – I’m just repeating myself – that two days later I went out on a family leave.”
Petitioner was then brought up on “tenure charges” and apparently after a hearing her employment with the school board was terminated. As I have previously indicated, Judge Hayden affirmed the decision of the school board. And although I am basing my decision solely on the testimony and evidence produced before me, to make the record complete the State Board of Education and the Appellate Division of the Superior Court affirmed Judge Hayden’s decision affirming the school board’s decision. Finally, as I understand it Ms. Ingram has filed a pro se appeal to the New Jersey Supreme Court.
As a result of the admitted accident, the objective medical evidence reveals that Petitioner presently suffers from the residuals of a impingement syndrome of the left shoulder and a nondisplaced distal radius and ulnar fracture of the left hand, with peri-articular osteopenia, which is decreased calcification or density of bone due to inadequate osteoid synthesis and/or osteolysis, which is a softening, absorption and destruction of bone tissue, and RSD (Resolved).
As to Petitioner’s complaints to her left wrist and left shoulder I accept the findings of Dr. Tiger because they are consistent with the objective medical evidence produced at trial and Petitioner’s credible orthopedic complaints.
Dr. Tiger examined the Petitioner on two occasions: April 16, 1999 and on April 18, 2003. Considering the fact that Petitioner’s disability to her left wrist and left shoulder deteriorated over the four-year interval between Dr. Tiger’s first and second examination and the fact that the RSD which manifested itself at the time of the accident resolved, the wisdom of the our Appellate Division decision requiring that an award of compensation for partial permanent disability must be based on the disability that exists at the time of the determination becomes obvious. Allen v. Ebron International, 237 N.J. Super 132 (App. Div. 1989).
I accept Dr. Tiger’s findings of Petitioner’s orthopedic disability to her left hand and left shoulder and reject Dr. Peacock’s conclusion that Petitioner has no orthopedic disability to her left shoulder and only a 5% orthopedic disability to her left hand because Dr. Tiger’s findings are based upon the objective medical evidence, which of course include his findings based upon his expertise as a board certified orthopedist produced at this trial, and are consistent with Petitioner’s credible orthopedic complaints. Put another way, for me to accept the findings of Dr. Peacock, I would have to disregard the objective medical evidence of Petitioner’s orthopedic left hand and left shoulder disability and find that Petitioner’s orthopedic complaints are not credible. This, of course, I will not do.
Having said that, I disagree with Dr. Tiger’s 60% estimate of Petitioner’s left hand disability because it includes carpal tunnel syndrome, which he admitted he could not said within a reasonable degree of medical probability flowed from the accident. I quote:
THE JUDGE: Keep in mind, Mr. Lewis, the doctor didn’t say the carpal tunnel flowed from the incident within a reasonable degree of medical probability, he said there was a possibility.
MR. LEWIS: Correct.
THE JUDGE: I think that was your testimony.
THE WITNESS: Exactly, your Honor.
As to Dr. Tiger’s April 18, 2003 examination, he found a more profound orthopedic disability than when he examined her on April 16, 1999. I quote from Doctor Tiger’s testimony because it not only reveals a thorough knowledge of orthopedics, but also explains in physiological terms why Petitioner’s orthopedic complaints are consistent with her work-related accident.
Q You did the same kind of examination on April 18, 2003?
A When I examined her on that date she noted that her complaints in both the left shoulder and left wrist had gotten worse…I did find atrophy of the deltoid muscle. There is point tenderness over the impingement area and the AC joint. There was crepitation in the shoulder on range of motion test. The cross a-d-duction test was quite positive. Active and passive a-b-duction of the left shoulder lacked 20 degrees. Active and passive external rotation of the left shoulder now lacked 25 degrees. Active and passive internal rotation of the left should lacked 20 degrees, and active and passive elevation through flexion of the left shoulder lacked 25 degrees. All range of motion of the left shoulder was accompanied by significant crepitation.”
As to the Petitioner’s left wrist pathology, as I have already stated, Dr. Tiger did increase Petitioner’s estimate of left hand disability to 60% due to the development of carpal tunnel syndrome. However, because Dr. Tiger could not relate the carpal tunnel syndrome within a reasonable degree of medical probability to Petitioner’s work-related accident I have disregarded his findings in my evaluation and estimate of Petitioner’s left hand orthopedic disability.
As to objective medical evidence of Petitioner’s orthopedic disability of the left hand, Dr. Tiger found the following orthopedic pathology: a twenty-degree deviation from the normal position: Active and passive dorsiflexion was fifteen degrees and active and passive plantar flexion was thirty degrees: A positive Phalen test was elicited on the left but not on the right hand: Circumduction motion of the left wrist elicited a moderate amount of crepitation: And finally Dr. Tiger found that Petitioner’s grip strength of the left hand was limited to twenty pounds, in contrast to eighty pounds of grip strength of the right hand.
Dr. Tiger, as Dr. Peacock found causal relationship between the Petitioner’s left hand orthopedic disability and her work-related accident. Once again, I quote from his testimony concerning Petitioner’s orthopedic disability to her left hand and left shoulder because as I have said it demonstrates in physiological terms the how the trauma of the accident caused Petitioner’s left wrist fracture, subsequent “secondary frozen shoulder,” and Reflex Sympathetic dystrophy, which according to Dr. Tiger “subsequently clear[ed].”
Q Would you give us your opinion and explain the reason for your opinion of the relationship?
A Well, she did fall heavily in the student yard, fractured her wrist. She was treated for this. She developed a secondary frozen shoulder, which was contributed to by the limited use of her left hand. I addition, she did developed at some point in time evidence of a reflex sympathetic dystrophy, which is subsequently clear, but the presence of that would have further limited use of the entire upper left extremity.
So if you look at the medical records, orthopedic, it’s clear there is a road map regarding an injury to the left wrist, left shoulder from the date of the accident.
Respondent attempted to indicate that the Petitioner’s complaints were in some way motivated by “secondary gain.” I reject this concept for several reasons: One, as I have said I found Petitioner to be truthful. She did not puff or exaggerate her complaints, indeed both evaluators found objective medical evidence of her left wrist pathology, which would explain her orthopedic complaints. As Doctor Tiger stated,
Q And did you consider that potential in this case?
A Yes because there were medical records that did indicate she was having these other problems, but she had a real injury. She had a real injury. She had been treated by real doctors who had real findings and on x-ray she had real findings. When she came to me she had number of doctors who treated her orthopedically. According to the treatment, she had orthopedic complaints, who treated her in a good manner.
So what I try to do is just alleviate orthopedically in terms of what I felt were real findings, real complaints and give a real estimate of disability.
Dr. Tiger exhibited the same expertise when he testified why he considered the Petitioner’s work related accident to be the competent producing cause of her left shoulder disability and not preexisting arthritis or a calcified ligament, as alleged by the Respondent. I quote.
Q Now, let’s say, hypothetically I her case the impingement syndrome that you diagnosed was a degenerative progression, the only way you could actually find that would be to take x-rays or an MRI, is there a way you can test in the doctor’s office to make the determination?
A No, the diagnostic test really wouldn’t tell you why the condition occurred it will tell you about the condition and diagnose that the condition is there. The way to tell why something such as impingement syndrome occurred would be to take a history from the individual and see the course of treatment that she had and what developed, and my feeling is from what to Ms. Ingram, the trauma, the limited use of the shoulder following the immobilization of the wrist, the occurrence of Reflex Sympathetic Dystrophy transient, which at times can be incredibly painful, this limits the use of the shoulder and can help develop impingement syndrome.
Not only was I impressed with Dr. Tiger’s explanation of causal relationship between Petitioner’s accident and the subsequent development of her left shoulder impingement syndrome, but apparently the Respondent was also convinced. I say this, because Respondent asked, “And there is no way to verify objectively that her impingement syndrome, as you diagnosed, was related to the fall or the lack of use of the hand? This question, in effect, concedes that it was either the Petitioner’s accident or the lack of use of her left hand, which of course was the result of the fall that caused her left shoulder pathology. Of course, under either scenario the Petitioner’s left shoulder disability clearly flowed from her admitted accident.
Dr. Tiger’s response indicates how he used his medical training and expertise to form his opinion that it was either the fall, the disuse of Petitioner’s left hand, or a combination of both that precipitated the development of her left shoulder syndrome. I quote.
A That’s where I call the art of medication comes into being. This is why I went to doctor school. You take a history of a patient, you look at medical records, you examine the patient and you try to put everything together, and this is what I’m trained to do. I agree there are other causes, by my feeling is I would have not the opinion if she had not had the injury to the wrist. (Emphasis added)
I only add, that Dr. Tiger’s description of the evolution of Petitioner’s left shoulder pathology, once again, demonstrates not only his thorough understanding of the anatomy, but how the trauma and/or the disuse of her hand developed into her left shoulder impingement syndrome. I quote.
THE JUDGE: Physiologically, what happened?
THE WITNESS: Because she didn’t have that impingement problem with the shoulder beforehand.
THE JUDGE: You specifically asked her that?
THE WITNESS: I believe I did. I don’t have it in my report, your Honor.
THE JUDGE: If she indicated to you she did have pre-existing problems you certainly would have noted it?
THE WITNESS: Yes.
THE JUDGE: What Happens?
THE WITNESS: You don’t use the shoulder and the muscles and tendons tend to get a little fibriotic (sic). When you start pushing again you can get inflammation, builds up more and more scar tissue. That scar tissue takes up the space underneath the chromium and because it takes up the space and is thickening of the ligament and tendons you have the impingement syndrome. There is not that much room under there.
As to the Petitioner’s orthopedic disability, based upon the credible orthopedic complaints that she testified to and related to the treating and evaluating physicians and the objective medical evidence that I have referred to at length in this written decision, I fix Ms. Ingram’s orthopedic disability at 20% of permanent partial disability. I break it down approximately 10% for the left shoulder impingement syndrome and approximately 25% of the left hand for the residuals of a nondisplaced distal radius and ulnar fracture of the left hand, with peri-articular osteopenia, and/or osteolysis. I only add, those complaints are not only consistent with the objective medical evidence but corroborate Ms. Ingram’s testimony that they have materially affected her working ability and ordinary life pursuits.
I now turn to Ms. Ingram’s claim for psychiatric disability. The seminal case defining what a Petitioner must prove to obtain a Judgment of Compensation for psychiatric disability is Saunderlin v. E.I. Dupont Company, 102 NJ 402 (1986). Justice Garibaldi writing for a unanimous Court held, “Accordingly, we hold that the statutory definition of permanent partial disability in N.J.S.A. 34:15-36 applies to claims of psychiatric disability as well as to those of physical disability, and hence that claims of both psychiatric and physical disability must be based upon “demonstrable objective medical evidence.” 102 N.J. at 410.
Justice Garibaldi went on to explain how a Petitioner’s medical evaluator can meet the burden of establishing objective medical evidence of a psychiatric disability. I quote. “Rather, the requirement is to interpose a professional medical judgment between the subjective statement of the petitioner and the award of disability benefits. Presumably, evidence exceeding the subjective statement does not mean evidence excluding that statement.” 102 N.J. at 412.
Further, the Court held, “we conclude that a professional psychiatric judgment might rest upon: (1) analysis of the subjective statement of the patient: (2) observations of physical manifestations of the symptoms related in the subjective statement; and/or (3) observations of manifestations of physical symptoms and analyses of descriptions of states of mind beyond those related in the patient’s subjective statement…” 102 N.J. 416.
Ms. Ingram alleges that as a result of “harassment” by her superiors she developed a compensable psychiatric disability. Succinctly put, according to Ms. Ingram’s testimony the harassment consisted of her supervisors observing her classroom more often than her colleagues, requests for her “grade books,” and an attempt to discharge her because of a “pattern of eliminating one or two teachers a year” for economic reasons.
As to Ms. Ingram’s claim that her classroom was monitored more than her colleagues I find that Respondent’s conduct did not constitute harassment. Rather, the evidence clearly indicates that the monitoring was done to rectify and ameliorate some of Petitioner’s teaching deficiencies in order to salvage the unblemished career of a teacher with thirty years experience. As to this issue, I only add Petitioner offered no corroboration to her allegation that she was being monitored more than her colleagues. To the contrary, when she asked her fellow teachers if they were being monitored as frequently as she was they did not answer. One would think if a fellow teacher with thirty years experience was being “harassed” by the administration to force that teacher out for “economic” reasons, they would come to the defense of their colleague.
In this matter Dr. Schneck testified on behalf of the Petitioner. Dr. Schneck was the Petitioner’s treating psychiatrist. Of course, because of the greater opportunity a treating doctor has to examine and treat a patient, a treating doctor’s opinion is to be given more weight than a mere evaluator. However, a treating doctor’s opinion, as all medical opinions is only valid if it is based upon accurate facts presented by a patient. This, of course, is especially true where a petitioner is alleging a psychiatric disability.
In this matter, Dr. Schneck based his opinion that Ms. Ingram’s psychiatric disability was, in part, caused by harassment by her superiors’ constant bombardment of memos to her requesting and then demanding that she follow School Board protocol and submit “grade books.” While the evidence is undisputed that the Ms. Ingram’s superiors did write her a series of memos requesting and then demanding that she submit her “grade books” in a timely fashion, it was not to harass. Simply put, the new administration changed the policy of permitting Ms. Ingram the right to use “dittos” as the basis of submitting grades for her students. Apparently, the School Board decided to have uniformity and established a policy that all teachers throughout the district use grade books, rather than permitting a teacher the right to submit grades in the way the teacher thought appropriate. There was no evidence produced at this trial, which would indicate that Ms. Ingram was signaled out. Indeed, what the escalating tenor of the memos makes clear is that the rules applied to all teachers of the District.
Further, as indicated by Dr. Gallina it was Ms. Ingram’s “rigidity” and inability to accept the new administration’s rules and regulations that led to her feelings of harassment based on her being “barraged” with memos. As to this point, I only add, perhaps if Dr. Schneck would have helped Ms. Ingram work through her “rigidity” and inability to accept the new administration’s new protocols than perhaps there would not have been a psychiatric claim.
As Ms. Ingram’s claim of harassment based upon being bombarded with memos is without merit, her claim that she was being harassed for “economic” reasons is equally unconvincing. Ms. Ingram’s claim that the “District” let go one or two teachers at the top of the pay scale a year to save money, and she was one of the teachers that the administration decided to “force out” is not based on competent evidence, but as Ms. Ingram indicated, it was just a “suspicion.” As to this point, as I have already indicated, I find it curious that Ms. Ingram did not produce one other teacher who was likewise forced out to corroborate her “suspicion.”
From these examples it becomes clear that the School Board’s conduct was not to harass Ms. Ingram, but to improve the quality of the District’s education by, among other things, establishing a uniform system of grading. It is equally clear that it was Ms. Ingram’s inability to accept “merited criticism” and the new protocols established by the new regime caused, or at the very least, was the precipitating factor that triggered her current psychiatric condition.
As Ms. Ingram misconceived the School Board’s intention, so did Dr. Schneck. And, of course, a physician’s opinion is undermined if the physician’s opinion is based upon incorrect facts. This is true whether the physician is a treating doctor or an evaluating physician. This misunderstanding of the facts by Dr. Schneck undermines his opinion. For as it was stated Goyden, at page 455,
A medical opinion relating a disability to the workplace must, however, be based on facts submitted in evidence. Black v. Mahoney Troast Const. Co., 65 N.J.Super. 397, 405, 168 A.2d 62 (App.Div.), certif. Denied, 34 N.J. 471, 169 A.2d 745 (1961). If a physician’s opinion is based on a fact not in evidence, its persuasiveness is greatly undermined. Ibid.
…The value of an expert’s testimony also depends upon the accuracy of the hypothetical questions upon which opinions were based. Williams, 178 N.J.Super. at 558, 429 A.2d 1063.
For all of the foregoing reasons, I find that the Petitioner has failed to prove not only that her working conditions were objectively stressful, but that her working conditions were “peculiar” to her work place. Thus, her claim for psychiatric disability is dismissed for failure to sustain burden of proof. Of course, having found that Petitioner has failed to sustain her burden of proof her claim for payment of Dr. Schneck’s bill, or the amount that was not paid by her health care provider and her claim for reimbursement for out of pocket medical expenses including prescription medications as it relates to her psychiatric disability is denied. The Respondent is likewise not responsible for Dr. Casella’s bill because the Petitioner admitted that she did not obtain permission from her employer or their workers’ compensation insurance carrier to go to him, and equally important, at the time she started treating with Dr. Casella, she was treating with the Respondent’s authorized orthopedist.
For Petitioner’s 20% orthopedic disability she will be entitled to 120 weeks of compensation at the rate of $148.30 for an amount equaling $17,796.00.
Of course, my Judgment does not end this matter. Petitioner will have two years from the date she receives her final payment of compensation to do two things: One, she may reopen her case and ask the Court for more money should her orthopedic disabilities become significantly worse. Two, she can receive medical treatment for her orthopedic disabilities and have her former employer or their Workers’ Compensation insurance carrier pay for the treatment. However, she must obtain authorization from either her former employer or their workers’ compensation insurance carrier or she will be responsible for all fees and costs associated with that treatment. Finally, I wish to advise the Petitioner that she does not have to wait two years to reopen her case and/or obtain medical treatment, but that is the longest she can wait.
I award the following fees:
For multi-appearances, $1,000.00 to O’Brien Court Reporting Service, payable by Respondent.
To Jack Mandell, Esq. $3,555.00, payable $2,155.00 by Respondent and $1,400.00 by Petitioner.
$850.00 each to Drs. Tiger and Schneck for their examinations, reports and testimony, payable each party one-half.
Petitioner’s attorney is to be reimbursed by Petitioner for any out of pocket trial expenses including by not limited to costs in obtaining transcripts and medical records.
Petitioner’s attorney is to prepare an Order, which conforms to this written Decision and serve it upon his adversary under the Five-Day Rule.
 Although the Respondent has urged me to consider the decision of Administrative Law Judge, Margaret Hayden I decline to do so. This, notwithstanding the fact that the Appellate Division has affirmed Judge Hayden’s decision. The Respondent does present very cogent arguments why I should consider the decision res judicata or collateral estoppel as to the relevant issues presented at the trial before me. Among other things they argue that the decision should be binding because the Petitioner was represented by counsel and the same issues were fully litigated. However, as I have said, I have decided to render a decision on the two matters before me solely on the testimony and evidence produced before me.
 Although the increase was due to the development of carpal tunnel syndrome, which Dr. Tiger candidly admitted he could not state within a reasonable a degree of medical certainty was caused by Petitioner’s work-related accident.
 Not only did Dr. Tiger’s testimony reveal a good understanding of the mechanism that caused Petitioner’s orthopedic left shoulder and left wrist disability, it was candid. For example, although Dr. Tiger indicated that Petitioner’s complaints to her right shoulder became worse he did not give an estimate of disability for the right shoulder, because he found no orthopedic pathology to that area.
 Range of motion tests are both objective and subjective – Objective when the test is performed with a gynomonitor and/or the physician uses his medical knowledge [passive range of motion tests to determine whether a patient is malingering, and subjective [active range of motion tests] when he relies on the efforts of a patient. Colon v. Coordinated Transport, Inc. 141 N.J. 1, (1995).
 A doctor’s expertise, of course, may be considered objective medical evidence of a disability. Colon v. Coordinated Transport, Inc. 141 N.J. 1, (1995) and Saunderline v. E.I.duPont deNemours & Co., 102 N.J.402 (1986).
 I, of course, may consider the complaints given to the treating and evaluating doctors because their reports were introduced in evidence.
 Of course, merited criticism cannot be considered to be a cause and condition of or peculiar to an occupation or place of employment. This is because merited criticism is common to all occupations and places of employment. Goyden v. State of New Jersey, 256 N.J. Super 438, (App. Div. 1991), Aff’d 128 N.J. 54 (1992). (1992).
 I also dismiss petitioner’s claim for psychiatric disability based upon her admitted accident albeit for different reasons. First, Dr. Schneck, petitioner’s own treating psychiatrist indicated that her psychiatric disability flowed from the respondent’s “harassment” and not from her admitted accident. This, of course, would corroborate Dr. Gallina’s testimony that when he examined her the first time on May 29, 1999, which was before the alleged harassment of the petitioner by the respondent that he found no psychiatric disability.