NEW JERSEY DEPARTMENT OF LABOR
DIVISION OF WORKERS’COMPENSATION
MIDDLESEX COUNTY
CLAIM PETITION
No.: CP. 95-008613

OPINION AFTER TRIAL

 J. K., Petitioner,
-v-
T. P. C. O. A., Respondent.

APPEARANCES:

GOLDBERGER, SELIGSOHN & SHINROD, P.A., ESQS.
By: EDWARD SHINROD, ESQ.
For Petitioner

MICHALS, WAHL, SILVER & LEITNER, ESQS.
By: JEFFREY MONAGHAN, ESQ.
For the Respondent

William L. Boyan
Judge of Compensation

Petitioner suffered a series of back injuries over the years. He received a combined award of 17.5% of total for the residuals of two accidents, December 6, 1982 and September 7, 1983, under C.P.’s 83-31667 and 83-5058. Those cases remain closed. On May 26, 1992, Petitioner suffered a third injury to his back. His disability was increased to 25% of total in an Order Approving Settlement entered August 8, 1994 under C.P. 92-054942. An application to review or modify that award has been filed pursuant to N.J.S.A. 34:15-27. The issue of additional permanent disability from the May 26, 1992 accident is unresolved, and has not been assigned to me. Petitioner also filed C.P. 95-008613 alleging still another injury to his low back on December 8, 1994. A limited aspect of that claim has been assigned to me, as is discussed below.

Petitioner has also filed a verified petition seeking second injury fund benefits, treating the December 8, 1994 accident as the last compensable injury, alleging that the pre-existing injuries were the consequences of the prior back accidents.

While the latter two C.P.’s and verified petition for fund benefits were pending, Petitioner filed a motion for medical and temporary disability benefits, contending that the December 8, 1994 accident brought on a psychiatric condition known as bipolar disorder. This motion is the only portion of Petitioner’s claims that has been assigned by the supervising judge of Middlesex County to me. Evidential hearings on that motion have been concluded, and the motion is now ripe for determination.

Petitioner’s expert, Dr. Richardson, defined a bipolar disorder as:

"a disorder of the emotions where a person goes up and down. They get high, they get low. They go beyond normal swings like the rest of us, that some days you may be a little depressed, other days you may be feeling good. But in the case of someone with this disorder at times they can become very high where they get out of control and in his case it’s not that he has a pleasant high, which is what people think of, he becomes irritated, pressured, has trouble controlling himself and is always a danger that he might get into a fight with people and he alternates between that and becoming very depressed, with thoughts of suicide * * *."

That seems to be consistent with the generally accepted definition. Respondent’s expert, Dr. Head, does not disagree with the diagnosis, or with the need for further treatment. The disagreement is whether the disorder is causally related to the work connected accident. For the reasons stated below, I conclude that Petitioner has failed to carry the burden of proof on the issue of causal relation.

Petitioner’s expert, Dr. Richardson, believes that there is a causal connection on the basis that Petitioner:

"did not have any diagnosable psychiatric symptoms before the * * * accident, and then as time went on after the accident, with the degree of pain that he had, and his inability to be able to get back to work, and indeed even his inability to do much around the home because of his severe pain, caused him to become demoralized and gradually became more and more depressed because of the persistence of the condition, his inability to function even at home and that the condition went from * * * dysthymia, which is really mild depression; then they diagnosed major depression and he basically was diagnosed with major depression until I first saw him in the hospital * * * his condition had worsened from straight forward depression to bipolar disorder with psychotic features."

However, on cross examination Dr. Richardson admitted that his view concerning the role of stressors in the chain of causation leading to bipolar disorder is not shared by the medical community generally, and is not supported by scientific studies, and that Dr. Richardson had himself put his views into practice solely in this one case involving the present Petitioner. The statements in the prior sentence are based on the following from Dr. Richardson’s testimony:

"Q. So, we * * * really don’t know within a * * * reasonable degree of medical probability that Mr. Kinley’s back problems are the cause of his bipolar disorder * * *?

* * * [W]e used to think * * * that major depressive disorders just happened in some people * * * We didn’t know why. We thought maybe because they had the wrong genes. But since then * * * we have taken a very careful history and we find that there is always a stressor, that it comes on at the beginning of the development of the major depressive disorder. I don’t believe this work has been extended to bipolar disorder, but I really think that it’s only a question of someone doing the right study that will show that as stressors caused major depressive disorders, it will be shown that stressors are the cause of a bipolar disorder.

But the medical community has not made that connection yet; is that correct?

That is correct.

And have you personally as a medical doctor made that connection?

In this case, yes. * * *

Have you ever known or treated individuals, doctor, in the course of your practice where a physical injury resulting in pain and limitation to a person has resulted in their developing a condition that you have diagnosed as bipolar disorder in anyone other than Mr. Kinley?

No."

I do not consider the medical hypotheses advanced by Dr. Richardson reach the level of probability required by law to support an inference of causal connection between an incident of employment and a disease process.

Petitioner takes some comfort from the testimony by Respondent’s expert, Dr. Head, that one in two hundred cases of severe back pain may be accompanied by bipolar disorder. However, Dr. Head did not concede causal relation between the pain and the bipolar disorder in those cases. He pointed out that the frequency of bipolar disorder among persons with severe pain is no greater then the frequency of bipolar disorder in the general population. The Merck Manual, published by Merck Research Laboratories, Whitehouse Station, N.J., at 1525 (17^th ed. 1999) states: "although the incidence of bipolar disorder in the general population was estimated at >2%, new estimates are closer to 4 to 5%." Although Petitioner’s expert, Dr. Richardson, was recalled for rebuttal, neither in his original appearance nor on rebuttal was Dr. Head’s testimony on the frequency of bipolar disorder in the general population controverted.

The two experts were poles apart on the question whether the occurrence of Petitioner’s bipolar disorder was caused by or was merely coincidental to his back pain. Dr. Head’s opinion that it was definitely coincidental seems to be more consistent with the scientific evidence concerning the disease and its frequency.

Case law requires deference be given to the opinion of a treating doctor, as opposed to an evaluator. Such deference is quite appropriate to the issue of diagnosis. The treating doctor usually sees the petitioner during a number of visits, in contrast to the one that is more typical in the case of an evaluator. Greater exposure aid diagnosis. However, on issues of causation of a diagnosed condition, and the extent of permanent disability, the more frequent addressing of similar issues in other cases by specialists in evaluation gives these experts the right to at least as much deference as a treating doctor, if not more. In the present case, there is no controversy over the diagnosis.

Prior use of alcohol and continuing use of marijuana by Petitioner were referred to as part of the history. I agree with the analysis in Petitioner’s trial brief that the bottom-line is that neither expert offered a substantial opinion that those factors contributed to Petitioner’s development of the bipolar disorder.

I also agree with Petitioner’s contention in the trial brief that a case of malingering has not been made out. Both experts agreed with the diagnosis with bipolar disorder. Any evidence that might be taken to be indicative of malingering seems to me to be more consistent with the psychiatric disorder.

I am not going to analyze the Petitioner’s complaints in the orthopedic and neurological spheres. Whether or not his complaints in those areas are consistent with the demonstrable objective medical evidence, including the clinical findings by the Respondent’s expert, Dr. Head, is unnecessary to decide on this motion for psychiatric treatment and temporary benefits incident to inability to be employed while the need for such treatment continues.

Respondent’s expert, Dr. Head, acknowledged that a person with a bipolar disorder might have an increased need for treatment as the result of physical injury and pain resulting from it. However, his opinion that such a need would be of short duration seems more plausible to me in the context of the discussion of bipolar disorder contained in this opinion. Petitioner is not seeking a one-time stabilization after the aggravation of an underlying psychiatric disorder. His bipolar disorder was not present until months after the original accident. His need for treatment is a continuing one. I consider this need is due to the underlying disorder that I find not caused nor aggravated by the compensable accident.

The prevailing party should submit a form of judgment consistent with this opinion. When the judgment is signed, that will constitute the final action of Division of Workers’ Compensation on the Motion for Medical and Temporary Disability benefits.

I presume the claims for permanent disability benefits resulting from the most recent two back accidents and for second injury fund benefits will be taken up by a judge assigned to hear second injury fund cases as determined by Supervising Judge Calderone.

There will be a $450.00 stenographic recording fee payable by the Respondent to John F. Trainor, Inc.

William L. Boyan
Judge of Compensation

Dated: May 25, 2000