THE HONORABLE PETER F. WOMACK
Administrative Supervisory Judge of Compensation

APPEARANCES:

Ginarte, O'Dwyer & Winograd, L.L.P.
BY: JORGE L. HERNANDEZ, ESQ.
400 Market Street
Newark, New Jersey 07105
Attorney for the Petitioner.

FRANK R. ALANSKY, ESQ.
1599 Littleton Road
Parsippany, New Jersey 07054
Attorney for the Respondent.

In the matter of Lilia Jimenez v. MDM Technologies Incorporated, claim petition 2001-26867. It was stipulated that petitioner was an employee of the respondent through June 29th 2001. She apparently did not have the wages but the claim petition indicates a weekly wage of $318.75 per week. Respondent indicated that this claim petition alleged occupational injuries and left petitioner to her proofs. The claim petition alleged eye, ear, nose, throat, back, neck, pulmonary nervous system and cardiovascular injuries. In the beginning of this trial the petitioner’s attorney stipulated they are proceeding only on the orthopedic claims. Therefore, all other claims are dismissed.

Petitioner started working in 1989 and continued until June of 2001. She was a machine operator/sorter. Sometimes she would operate the machine and sometimes she would sort the material from the machines. As a sorter, she would put rubber bands on 150 pieces of envelopes or cards and in an (8) eight hour shift would ship out approximately 40 to 50,000 pieces. As a machine operator she would pick up boxes from pallets and place the material in the machine. This material would be envelopes or cards basically although sometimes she would work with newspapers. The envelopes and cards amounted to about 2,000 or 3,000 pieces. The boxes weighed anywhere from 8 to 9 pounds. When working with newspapers there were about 5,000 to 6,000 newspapers. When she sorted newspapers she would only work with newspapers that day. Petitioner would perform a lot of bending when she worked as a machine operator.

Her basic complaints with work were problems with her lower back, her shoulder, and numbness in her hands. She has problems closing hands. When petitioner bends down she feels pain in her lower back. The pain is continuous and she does not feel she can mop or sweep. The pain radiates down her legs. She can lift, but it causes pain. She can sit for 15-20 minutes and then she has to stand. She can walk 20-25 minutes when she starts getting pain in her legs. The left shoulder pain is always there. She has difficulty lifting her upper arm and she can only lift 5-6 pounds with her left shoulder. Her hands get numb when she utilizes them. Cold, such as cold water, hurts her hands.

Since working for respondent she has worked for two other companies. She worked approximately six months doing envelopes for these subsequent employers. Petitioner had an accident in 1997 to her back. This was a motor vehicle accident that occurred outside of work. Apparently she had a law suit since she was sent to a doctor from her lawyer’s office. She had six months of physical therapy for her back. She also had an accident at MDM involving her right hand wherein she received $5,000. It was also brought out on cross examination that petitioner had no treatment to any part of her body for these occupational allegations during her work at MDM Technologies. When she left MDM Technologies, she sought no treatment for any part of her body. She did not leave MDM Technologies because of any medical problems. MDM Technologies just went out of business during that time. I found petitioners testimony to be very interesting. She complained about her hand at the time she testified although the hands were never mentioned in the original claim petition. She has problems with her hands but did not mention that she ever had an injury to her right hand where she received permanent disability in workers compensation court. Her complaints to her hands were very minimal. If petitioner had these complaints to her lower back and her shoulder, I don’t understand why she didn’t seek treatment. It’s not as though she hadn’t sought treatment for her back in the past from the motor vehicle accident or treatment for her hand from an accident at work. She had absolutely no treatment to these parts of her body and she did not leave work because of any injury to her body but only because the plant closed. The claim petition was filed August 22nd 2001 which was a little over a month after she left her employment but still did not seek any treatment. The claim petition itself alleged the “shot gun” initial claim dealing with all parts of her body but at the time of trial just restricted it orthopedically. I’m not very impressed with petitioner’s complaints dealing with her shoulder and her back.

Petitioner was examined on her behalf by Dr. Morris Horowitz, her orthopedic expert. Dr. Horowitz examined her on September 28, 2001 approximately two months after she left work. Dr. Horowitz examined both petitioners’ hands and had very minor findings. There was slightly less flexion in the right hand as opposed to the left hand. However in both hands none of the findings seem very severe. Dr. Horowitz claimed a lessened range of motion findings in the hands which was basically his only findings. These findings don’t seem objective. I think this examination required a subjective response from the petitioner. Dr. Horowitz also examined the petitioners left shoulder and her cervical and lumbar spine. In the cervical spine he found some spasm and some restriction of motion. I note that spasm would be an objective finding. At any rate, petitioner did not complain about her neck or cervical spine when she came into court. Dr. Horowitz also found some restriction of movement in the shoulder and muscle spasm and restriction of motion in the lower back. I do note that Dr. Horowitz did find swelling in both hands but he didn’t even describe what the swelling is or how it differentiates or how he measured the swelling. This examination does not show much in the way of objective findings. Dr. Horowitz made a diagnosis of repetitive strains to the cervical dorsal and lumbar regions of the spine and left shoulder with residual and repetitive stresses and strains to the right and left hands. I specifically note that he did not find carpal tunnel syndrome in either hand. He only diagnosed repetitive stresses and strains. None the less, Dr. Horowitz found 30% of partial total. During cross examination, Dr. Horowitz was asked to break down the disability between the various parts of the body. He could not break down the disability but merely gave 30% of partial total overall. I have no idea why Dr. Horowitz could not break down the disability. Each part of the body was described separately. Findings were made separately in each part of the body. He absolutely refused to estimate disability in each part of the body. I think his refusal is based on the 30% of partial total for the entire body. If he broke down the disabilities it would show how minor each condition was. He examined five body parts and if one divides by five the total would be 6% of partial total for each area. This would border on the ridiculous. According to Dr. Horowitz no one part of the body would cause disability. When all the five parts of the body were considered, he would give 305 of partial total. Dr. Horowitz felt her motor vehicle accident would not have any impact since she could return to work. She returned to work, after leaving the company, respondent, for six months with another company. Therefore, his logic does not follow. He was not aware at the time of his examination that the petitioner had a motor vehicle accident in which she had hurt her back nor was he aware that she had injured her right hand for which she had a workers’ compensation case. I do not think his examination was very strong in supporting petitioner’s claim for permanent disability. He did not find many objective findings. I do not see that his ranges of motion findings are objective. He found spasm around the cervical area and the lumbar area. But petitioner did not even complain about the cervical area at the time of trial. The disability that he found for all the body parts combined shows very minor findings.

Doctor Thrower examined petitioner on December 9, 2002 as respondent’s orthopedic expert. He examined both hands and the cervical and lumbar areas of the spine. He noted no objective findings in any of the areas. I’m not at all surprised because Dr. Horowitz’s findings were at the very best minimal. He noted that petitioner had complaints so he couldn’t find any objective findings to support the complaints. He also pointed out that the petitioner complained of pain but has never seen a doctor for these complaints except for the motor vehicle accident in 1997. Considering petitioner’s testimony, Doctor Horowitz’s findings and Doctor Thrower’s complete lack of findings, I feel that petitioner has failed to sustain the burden of proof showing permanent disability under the workers compensation act. I, therefore, dismiss this case for the failure to sustain the burden of proof of showing permanent disability

There will be a $75.00 stenographic fee to William C. O’Brien by respondent. I also note that Robert Montcayo is the interpreter for the petitioner. Normally I would give $100.00 to the interpreter payable one half by petitioner and one half by respondent. Petitioner has no reservoir to pay her portion. However, the interpreter was equally valuable to the respondent in this case and I order the respondent to pay their portion of the interpreter fee of $50.00 to Robert Montcayo.

Respondent’s attorney will prepare an order in conformance with my findings for my signature.

                                                            ____________________________________

                                                            Peter F. Womack
                                                            Administrative Supervisory Judge

Dated: