This is the court’s decision in the matters  of  Mark V. Ippolito v. County of Bergen Road Dept., CP No. 2007-25823 and Hackensack University Medical Center v. County of Bergen Road Dept. , CP No. 2010 – 17376.

Introduction  

            In the matter of  Mark V. Ippolito v. County of Bergen Road Dept. ,CP No. 2007-25823,  the issues before the court are whether  the injury sustained by  petitioner, Mark V. Ippolito, (hereinafter “petitioner”) to his low back during the course of his employment by respondent, County of Bergen Road Dept. (hereinafter “respondent”)  on July 12, 2005, is permanent in quality and partial in character pursuant to N.J.S.A. 34:15-36, and if so, the percentage of partial disability to which petitioner is entitled;  and further, whether or not a non-work related  injury to petitioner’s low back sustained in August,  2007 was a natural consequence of the original injury of July 12, 2005 or was it an unrelated, intervening event breaking the chain of causation attributable to the work related accident of July 12, 2005.

            In the matter of  Hackensack University Medical Center v. County of Bergen Road Dept.,  CP No. 2010 – 17376,  the issue before the court  is the amount due the applicant, Hackensack University Medical Center (hereinafter “Hackensack”),  from the respondent,  by way of payment or reimbursement, for medical services provided to petitioner.

            Both these matters have been consolidated for the purpose of trial by consent of the parties and approval of the court.

Procedural History and Statement of Facts

            Petitioner filed a claim petition on September 19, 2007 alleging that on July 12, 2005 he sustained an injury to his back by an accident arising out of and in the course of his  employment with the respondent.  Respondent filed an answer  to the claim petition on October 16, 2007 neither admitting or denying any of the allegations set forth in the claim petition and leaving petitioner to his proofs.

            On July 12, 2010, Hackensack  filed a Medical Provider Application for Payment or Reimbursement of Medical Payment. On July 16, 2010, Hackensack filed an amended Medical Provider Application for Payment or Reimbursement of Medical Payment. Respondent filed an answer on October 29, 2010.

            A Pre-Trial Memorandum was entered into by petitioner and respondent on December 18, 2009. The trial commenced on April 23, 2010 and continued on September 30, 2010, November 29, 2010, December 16, 2010, March 24, 2011, March 25, 2011 and June 2, 2011.

            The parties stipulated that the petitioner was in the employment of the respondent on July 12, 2005 and the accident occurring on that date  arose out of and in the course of petitioner’s employment with respondent.  Petitioner’s gross weekly wage at the time of the accident was $ 410.90, giving rise to a total temporary disability rate of $287.63  per week. All related medical bills were paid and petitioner was paid wages either pursuant to contract or statute.  It was further stipulated by the parties that if this court finds that the need for the second surgery of petitioner’s back  is  causally related to the accident of July 12, 2005,  petitioner will be entitled to six weeks of total temporary disability benefits and any payments due Hackensack for medical services provided to petitioner will be paid by respondent at the rates set forth in the contractual agreement between Hackensack and respondent.

            On July 12, 2005, while employed by the respondent as a laborer,  petitioner injured his back while lifting a jackhammer. Petitioner was then referred for treatment by respondent to Drs. Bernard Newman and Thomas Peterson. Petitioner underwent authorized back surgery which involved a left  L5 – S1 discectomy on October 18, 2005 performed by Drs. Newman and Peterson.  Thereafter, petitioner followed a course of physical therapy and underwent a work hardening program and ultimately returned to work with the respondent.

              In August, 2006, petitioner left his employment with respondent and moved to Rhode Island. While in Rhode  Island, he was employed  part time as a bartender. He did not take part in any recreational activities other then playing video games. He did not suffer any accidents or injuries involving his back while working as a bartender and did not seek any medical treatment for his back during this time. In  May 2007, petitioner returned to New Jersey and became employed part time by Northvale Self Storage, where his duties were limited to office work. He was not required to do any lifting, carrying or moving of items. He did not suffer any accidents or injuries involving his back while working  for Northvale Self Storage.  During this time, he did not take part in any recreational activities for fear that he may re-injure his back. From June 2007 until the end of August, 2007, petitioner did not seek any medical treatment for  his back.

             In August, 2007, while petitioner was turning in his bed to shut off an alarm clock, he twisted his back and felt pain, which radiated  from his back down to his left leg. After initially being unsuccessful in his attempts to contact  respondent to authorize medical treatment,  a family member eventually was able to contact respondent and made the request for him.  By letter dated September 17, 2007, respondent advised petitioner that it would not authorize medical treatment. (P-1 Evid.)  Subsequently, respondent scheduled a need for medical treatment examination for petitioner with   Barry Halejian M.D. on October 1, 2007.(P-2 Evid.)  However, on September 25, 2007, prior to the appointment with Dr. Halejian, petitioner started experiencing excruciating pain in his back which radiated into his left leg along with numbness. Petitioner presented to the emergency room of Hackensack University Medical Center where an MRI of his back was performed. Petitioner was then admitted to the hospital and was seen by Drs. Newman and Peterson. Dr. Peterson recommended that petitioner have surgery of his back, however, respondent would not authorize the surgery. On September 27, 2007, petitioner underwent a lumbar laminotomy and discectomy at the left L5-S1 level performed by Drs. Newman and Peterson (P-17 Evid.) and pre-certified by petitioner’s private health insurance carrier. By letter dated September 26, 2007 to petitioner’s counsel, respondent notified petitioner that the surgery of September 27, 2007 would not be covered by Workers’ Compensation. (P-3 Evid) .

              Subsequent to the second surgery, petitioner continued to work for Northvale Storage . Thereafter, in June, 2008, he became employed by Marathon Enterprises in the Bronx, New York working on a loading dock checking orders. After approximately a year and a half, he left Marathon Enterprises and became employed on December 8, 2009 by the Borough of Tenafly, New Jersey, Department of Public Works as a laborer.

              Petitioner’s present complaints are tightness in his back and behind his knee. Bending and lifting are painful. He feels tightness in the left ankle and numbness on the inside of the left foot. He has difficulty walking on certain surfaces such as wet grass or snow and his foot drags. Sleeping is difficult and his average level of discomfort in his back on a scale of 0-10 is 3 to 4. Since the two surgeries, petitioner needs to be aware of his lifting limits. He needs assistance at work if he is required to lift anything which weighs over 50 pounds and must now wear a back brace. Driving trucks at work causes him to feel pain in his lower back and tightness in the upper back. He must stop driving and stretch due to this discomfort. Recreationally he does not participate in any sports since he must save his strength for work.

              Thomas R. Peterson, M.D., a neurosurgeon,  testified on behalf of respondent.  He was petitioner’s authorized treating physician for petitioner’s first back surgery on October 18, 2005. He again saw petitioner at  Hackensack University Medical Center emergency room on September 26, 2007 and learned that two weeks prior petitioner rolled over in bed, twisted his back and had an acute onset of severe left leg pain.  Dr. Peterson ordered an MRI , which revealed a reoccurring herniated disc at the left L5-S1 level. As a result of this finding, Dr. Peterson performed a lumbar laminotomy and discectomy at the left  L5-S1 level (P-17 Evid.) on September 27, 2007. This surgery was not authorized by respondent.  

               Dr. Peterson initially testified on direct examination that based upon the time interval between the first and second surgery it was his opinion that the second surgery was not the result of petitioner’s back injury of July 12, 2005. However, upon further questioning by respondent’s counsel, Dr. Peterson testified that it was possible that the second surgery was the result of the injury occurring on July 12, 2005.

              On cross-examination, Dr. Peterson acknowledged that   turning in bed to shut off an alarm clock is a benign, everyday activity and that by virtue of the first back surgery, petitioner was at a greater risk of a re-herniation because the mechanics of his disc were changed, there were different pressures on petitioner’s back, the stretcher of his spine was altered and the spine was less stable.

             Arthur Tiger, M.D. testified on behalf of petitioner. Dr. Tiger is  board certified in orthopedic surgery. He  first examined petitioner on June 4,  2008. He had taken a history from petitioner and learned that petitioner injured his low back while lifting a jackhammer resulting in back surgery on October 18, 2005. After the surgery, petitioner returned to work  and did various jobs. In the summer of 2007, petitioner while turning in bed felt   back pain, which led to another surgical procedure of the back on September 27, 2007. Dr. Tiger reviewed the treating records of Drs. Newman and Peterson, operative reports, hospital records and MRI and EMG test results.  Based upon his examination of  petitioner, Dr. Tiger found scarification over the lower back and a loss of the usual lumbar lordotic curvature. There was tenderness over multiple vertebral spinous processes. Upon pressing the left sacroiliac joint, petitioner had pain radiating into the left buttock, left hamstring and left calf. Motion was limited in extension, flexion, lateral bend, and lateral rotation, when tested actively and passively. He found a positive straight leg raising on the left of 70 degrees and found no ankle reflex on the left. There was sensory loss in the S1 distribution on the left. He found atrophy of the left thigh and left calf. There was trigger point tenderness on both sides  of the lower lumbar spine and tenderness to palpation over the L3, L4 and L5 vertebral spinous process.  Dr. Tiger was  of the opinion that the mechanics and architecture of petitioner’s back changed after the first surgery and gave rise to a genuine risk of a reoccurring disc herniation. He further opined that the L5-S1 disc was more susceptible to re-herniation because it is the lowest disc and therefore subject to the most pressure.

              Dr. Tiger conducted a second examination of petitioner on June 28, 2010 and his findings were essentially the same as those found during the first examination.

              Dr. Tiger’s diagnosis was that petitioner had the residuals of a herniated L5-S1 disc, status post two surgeries, with scarification, post traumatic arthritis, chronic lumbosacral strain syndrome, chronic myofascitis and left sided S1 radiculopathy. Dr. Tiger estimated that petitioner  sustained a partial permanent disability of 65% and  opined that  his diagnosis and estimate of disability are  causally related to the accident of July 12, 2005.  

              Dr. Tiger was presented with a hypothetical question prepared by petitioner’s counsel (P-20 Evid.). After reviewing the question, it was Dr. Tiger’s opinion,  based upon  his physical examination of the petitioner, his review of the medical records and the histories contained  therein, his knowledge of the medical literature and his questioning of the petitioner, that all the medical treatment rendered to petitioner in 2005 and 2007 and the reoccurring herniation were causally related to the accident of July 12, 2005.

              Angela Adams, M.D. ,  who is board certified in neurology and  psychiatry, also testified on behalf of petitioner.  Dr. Adams conducted examinations of petitioner on June 4, 2008 and  July 13, 2010.  She had taken a history from petitioner and learned that petitioner had initially injured his back while lifting a jackhammer, which resulted in a L5-S1 discectomy surgery of the back on October 18, 2005 and that  in September, 2007, petitioner experienced increased back pain after twisting in bed, which resulted  in a re-do  of the previous lumbar laminotomy and discectomy surgery at L5-S1.    

                 Dr. Adams reviewed an MRI report of the lumbar spine dated July 15, 2005, an  electro diagnostic study dated August 5, 2005, treating records of Drs. Newman and Peterson,  a report of Dr. Michelsen, a report of Dr. Hale, operative reports and hospital records.   

                 Dr. Adams’ examination of  petitioner revealed a well healed surgical scar and tenderness to palpation in the lumbosacral area. Straight leg raising was positive on the right at 45 degrees and on the left at 30 degrees. Mental status testing in 2008 revealed his affect as flat and in 2010, his affect was flat with poverty of speech. In 2008, petitioner scored 12 on the Beck Depression Inventory and   3 on the Beck Anxiety Inventory. In 2010, petitioner scored 1 on Beck Depression Inventory and a 0 on the Beck Anxiety Inventory. A motor exam revealed strength in the S1 innervated muscles of the left leg  5-/5. Deep tendon reflexes were symmetrical, except that at the first exam left ankle jerk was absent. On the second exam,  left ankle jerk was still absent, but the right ankle jerk was trace. Diminished light touch and pin prick in the left leg was present at both exams. Dr. Adams’ diagnosis was lumbosacral radiculopathy, status post two surgeries, and adjustment disorder. Dr. Adams estimated a partial permanent neurologic disability of 45%   and a partial permanent neuropsychiatric disability of 25%.

               Based upon her examinations of petitioner, her review of  medical records, diagnostic studies,  her clinical expertise  and her review of the hypothetical question (P-20 Evid.),  Dr. Adams opined that her diagnosis, all the medical treatment rendered to petitioner and her estimates of disability are causally related to the accident of July 12, 2005. Dr. Adams further opined that after his first surgery, petitioner was left with a permanent problem at the L5-S1 disc, which was more susceptible to a future herniation.

                Barry Halejian, M.D. testified on behalf of respondent. Dr. Halejian is board certified in occupational medicine. Dr. Halejian conducted two examinations of petitioner. He  had taken a history and learned that petitioner injured his back on July 12, 2005 at work, while lifting a jackhammer, which resulted in surgery. He also learned that in August 2007,  petitioner rolled over in bed to shut off an alarm clock and felt sudden pain in his back and left leg. This incident resulted in a second back surgery. Dr. Halejian reviewed medical records, including the records of both surgeries. Upon examination, he found tenderness in the lower lumbar spine and upper sacrum, but no spasm. There was full extension in lateral bending and rotation. Straight leg raising on the right was 90 degrees and the left 80 degrees. Bragard’s sign was negative. Based upon his examinations of the petitioner and  his review of medical records, Dr. Halejian estimated that petitioner had an overall partial permanent disability of 12 ½ %, inclusive of both back surgeries.

               Charles F. Effron, M.D. testified on behalf of respondent. Dr. Effron  is  board certified in psychiatry and neurology. Dr. Effron conducted two examinations of petitioner. He elicited a history from petitioner and learned that petitioner felt a strong pain in the leg while lifting a jackhammer on July 12, 2005. Due to persistent pain in the low back and left calf, petitioner underwent low back surgery in October, 2005. Dr. Effron reviewed a  July 15, 2005 lumbar MRI report and an EMG report of August 5, 2006, medical records of Drs. Newman and Peterson and  an operative report of October 18, 2005. Upon examination, Dr. Effron  noted an operative scar at the lumbosacral junction. He found no spasm of the spine. Straight leg raising on left was 45 degrees and on the right 70 degrees. Neurological examinations of the upper and lower limbs were normal. Squats and rises were normal and there were no atrophic changes of the muscles. Left ankle reflex decreased compared to the right. Sensation was intact in the lower limbs, except equivocally slightly less at the distal medial of the left foot to pin and light touch. Petitioner sat, stood and walked with normal posture. Dr. Effron was of the opinion that petitioner has a partial permanent neurologic disability of 2%, but found no psychiatric disability.  

Legal Analysis

              It is  undisputed that in a Worker’s Compensation case, the burden of proof  rests upon the petitioner, who must persuade the trier of fact by a preponderance of the credible evidence on each and every element of his claim. Perez v. Pantasote, Inc., 95 N.J. 105 (1984). It is also undisputed that respondent is subject to the same evidentiary standard on those elements of the case where it bears the burden of proof. Fiore v. Consolidated Freightways, 140 N.J. 452 (1995). 

              N.J.S.A. 34:15-36 defines the elements required to prove a compensable injury as follows:

            “ Disability permanent in quality and partial in character means a permanent impairment caused by a compensable accident…based upon demonstrable objective medical evidence, which restricts the function of the body or its members or organs; included in the criteria which shall be considered shall be whether there has been a lessening to a material degree of an employee’s working ability. Subject to the above provisions, nothing in this definition shall be construed to preclude benefits to a worker who returns to work following a compensable accident even if there be no reduction in earnings. Injuries such as minor lacerations, minor contusions, minor sprains…shall not constitute permanent disability within the meaning of this definition.”

            In order for a petitioner to receive a judgment of compensation, he must establish by a fair preponderance of the evidence that the industrial accident arises out of  and in the course of his employment. The petitioner must also prove by demonstrable objective medical evidence a functional restriction of the body or its member organs and that his disability otherwise is significant and not simply the result of a minor injury. This showing may not rest upon the petitioner’s subjective complaints alone. Second, the petitioner must further establish that he either has suffered a lessening to a material degree of his working ability or that his ordinary life pursuits have been significantly impacted.  Perez, supra  105; Perez v. Monmouth Cable Vision, 278 N.J. Super. 275 (App. Div. 1994).

            There is no dispute that the accident  of July 12, 2005 arose out of and in the course of petitioner’s employment with respondent and resulted in an injury to petitioner’s back.  However, there is disagreement among the parties as to whether or not the act of petitioner  of turning in his bed to shut off an alarm clock, subsequent to the original  work related injury, was the type of intervening, superseding event that would insulate respondent from liability for the second back surgery of September 27, 2007.

               The leading worker’s compensation law treatise, Larson’s Workmen’s Compensation Law, provides the guidelines to be followed when analyzing the so-called second injury. In introducing his discussion on the range of compensable consequences, Larson states, “ When the injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury likewise arises out of the employment, unless it is the result of an independent intervening cause attributable to claimant’s own intentional conduct.”  Arthur Larson, Larson’s Workmen’s Compensation Law, Chapter 10 Scope (2009).  Regarding compensable injuries increasing vulnerability, Larson says:

                  [ E ]ven if the employment – weakened  member does

             does not actually cause the subsequent accident, it

             may render the results of that accident compensable if the

             weakness made the limb more susceptible to refracture. The

             same principle has been applied to hearts, backs and knees made

             more vulnerable by the compensable injury, to burn scars        

             increasing the risk of cancer and to recurrence of hernia.

                   In these and various related cases [,] the second injury

              appears to have been purely accidental, and no substantial

              question of independent intervening cause based on the

              claimant’s conduct figured in the decision.

              [ Id. at Sec. 10.06(2)  (footnotes omitted). ]

                In deciding issues of subsequent injuries, our courts have adopted the following principles. When the primary injury is shown  to have arisen out of and in the course of employment, every natural consequence that flows from the injury likewise arises out of the employment, unless it is the result of an independent intervening cause attributable to claimant’s own intentional conduct. The employer will remain liable for the consequence of the later event if it appears to have been purely accidental, and no substantial question of independent intervening cause based on the petitioner’s conduct has figured in the causing of the second injury.  See McDonough v. Sears, Roebuck & Co., 130 N.J.L. 530 (E.&A. 1943), aff’g., 127  N. J. L.  158 (Sup. Ct. 1941); Selak v. Murray Rubber Co.,108 N. J. L. 548 (E. & A.  1932), aff’g o.b., 8 N.J. Misc. 838 ( Sup. Ct. 1930); Kelly v. Federal Shipbuilding & Dry Dock Co., 1 N.J. Super. 245, 248 ( App. Div. 1949); Randolph v. E. I. du Pont de Nemours & Co., 130 N.J.L. 353, 356 (Sup. Ct. 1943).

                In Amey v. Friendly Ice Cream Shop, 231 N.J. Super. 278 (App. Div. 1989), the court stated:

               Compensability can be defeated by a certain degree of employee misconduct and . . .  that degree is something beyond simple negligence, and can best be described as an intentional violation of an express or implied prohibition in the matter  of performing the act.  

[ Id. At 284 ]

                  In the present case, I find as credible and unrefuted petitioner’s testimony that subsequent to his back injury of July 12, 2005, he did not suffer any injury involving his back until August, 2007, when he turned in his bed to shut off an alarm clock and twisted his back.  There was not a scintilla of evidence to refute the fact that petitioner’s turning in bed was nothing more than an innocent, unintentional act , which no doctor had restricted him from doing.

              I also find  that as a result of the accident of July 12, 2005, he  has suffered a lessening to a material degree of his working ability and that his ordinary life pursuits have been significantly impacted. I make this finding based upon his credible and unrefuted  testimony that  he suffers  from tightness in his back and behind his knee. Bending and lifting are painful. He feels tightness in the left ankle and numbness on the inside of the left foot. He has difficulty walking on certain surfaces such as wet grass or snow and his foot drags. Sleeping is difficult and his average level of discomfort in his back on a scale of 0-10 is 3 to 4. Since the two surgeries, he needs to be aware of his lifting limits. He needs assistance at work if he is required to lift anything which weighs over 50 pounds and must now where a back brace. Driving trucks at work causes him to feel pain in his lower back and tightness in the upper back. He must driving and stretch due to this discomfort. Recreationally he does not participate in any sports since he must save his strength for work.

                I also find as credible and logical, both medically and factually, the findings of Dr. Tiger and Dr. Adams that as a result of the accident of July 12, 2005 and the resulting back surgery on October 18, 2005,  the mechanics and architecture of petitioner’s back changed  and gave rise to a genuine risk of a reoccurring disc herniation. The L5-S1 disc became more susceptible to re-herniation and petitioner was left with a permanent problem at the L5-S1 disc, which was more susceptible to the  herniation, which in fact petitioner endured in September, 2007.

                  Furthermore,   I find it significant that  on direct examination, Dr. Peterson, petitioner’s treating physician, testified that  it was possible that the need for the second surgery resulted from the injury of July 12, 2005. Equally significant was Dr. Peterson’s testimony on   cross-examination, when he testified  that  turning in bed to shut off an alarm clock is a benign, everyday activity and that by virtue of the first back surgery, petitioner was at a greater risk of a re-herniation because the mechanics of his disc were changed, there were different pressures on petitioner’s back, the stretcher of his spine was altered and the spine was less stable. The testimony of Dr. Peterson on both direct examination and cross examination tends   to support the opinions of  both Dr. Tiger and Dr. Adams.

Conclusion

                   For all of the foregoing reasons, I find and conclude that petitioner has established,  by a preponderance of the credible evidence, that  the act of  turning in bed to shut off an alarm clock did not constitute an intervening, superseding event which would free respondent of the liability for petitioner’s second back surgery of September 27, 2007 and I further find that the need for that surgery is causally related to the work accident of July 12, 2005.

               Although the various medical evaluators all have estimates of orthopedic and neurological disabilities, there is a disparity in their estimates.  In  Lightner v. Cohn, 76 N.J. Super., 461, 465 (App. Div. 1962), certif.denied 38 N.J. 611 (1962) ,  the court indicated that “ the judiciary is not bound by the medical estimates by one or all of the physicians.” Therefore, I have used the estimates of disability offered by the examining physicians as guides in formulating my own conclusion  as to the degree  of  disability in this matter.

                 Having considered   how the  petitioner’s disability has affected his working ability and his ordinary life pursuits and the testimony of the  medical witnesses, I fix petitioner’s disability at  45%  of partial permanent disability for residuals of a herniated L5-S1 disc, status post two surgeries, with scarification, post traumatic arthritis, chronic lumbosacral strain syndrome, chronic myofascitis and  lumbosacral radiculopathy. I specifically find no neuro-psychiatric disability. This will entitle petitioner to 270 weeks of benefits  at  a rate of $287.63 per week, which equates to   $77,660.10.

                   Petitioner is also entitled to 6 weeks of  total temporary disability benefits at $255.65  per week for a total of $1,533.90, as previously stipulated by petitioner and respondent.  

                   I will allow the following fees and costs.

                   Dr. Tiger for his two examinations, two reports and one day of testimony, $1,200.00, payable  $600.00 by petitioner and $600.000 by respondent.

                    Dr. Adams  for her two examinations, two reports and one day of testimony $1,200.00,  $600.00 payable by petitioner and $600.00 payable by respondent.

                    Parisi & Gerlanc, P.A., attorney for petitioner, will be allowed a legal fee of   $ 15,532.00  payable $6,212.00 by petitioner and $9,320.00  by respondent.

                     Petitioner shall reimburse his attorney for reasonable and necessary trial costs, if any, and such costs shall be identified in the Order of Judgment. 

                     I will allow the following stenographic fees, which are to be paid by respondent.

                     $ 900.00   to the Second Injury Fund.  Respondent shall forward this payment to Peter Calderone, Director/Chief Judge, New Jersey Division of Workers’ Compensation, P. O. Box 381, Trenton, New Jersey 08625-0381.

                      $150.00 to   Jersey Shore Reporting, LLC.

                      Petitioner’s attorney shall   submit to the court an Order of Judgment which conforms with this decision.

                     As to   CP No. 2010 – 17376,   respondent shall pay Hackensack University Medical Center  for medical services provided to petitioner at the rates set forth in the contractual agreement between Hackensack University Medical Center and respondent, as stipulated.  The attorney for Hackensack University Medical Center shall   submit to the court an order which conforms  with this decision.

Dated: August 1, 2011                         

_______________________________
Philip A. Tornetta 
Judge of Compensation