CP# 96-4441; 99-10099 Johnson v. Borough of Bradley Beach
DEPARTMENT OF LABOR
DIVISION OF WORKERS' COMPENSATION
MONMOUTH COUNTY DISTRICT
C.P. # 1996-4441, 1999-10099
vs. INTERIM DECISION
BOROUGH OF BRADLEY BEACH,
THE SECOND INJURY FUND
For the Petitioner: ROBERT A. OLKOWITZ, Esquire
For the Respondent as insured by the Monmouth County Joint Insurance Fund administrated by Scibal, C.P. # 1996-4441
CARTON, ARVANITAS, McGREEVY, ZAGER & AIKINS Esquires
by: JAMES D. CARTON, IV , Esquire
For the Respondent as insured by the Middlesex County Municipal Joint Insurance Fund, C.P. # 1999-10099
CONVERY, CONVERY & SHIHAR, Esquires
by CLARK W, CONVERY, Esquire
LAWRENCE G. MONCHER, J.W.C.:
Mr. Johnson, a 41 year old, disabled, retired police officer, claims he is permanently totally disabled as a result of a series of compensable injuries which occurred over several years during and as a direct result of his performance of police duties for Bradley Beach. There is a dispute which in arises from the Borough’s change in workers compensation coverage from the Monmouth Joint Insurance Fund (MONJIF) to the Middlesex County Municipal Joint Insurance Fund (MCMJIF). The last two compensable injuries were in 1995 and 1998. The first during the coverage of MONJIF and the second during the coverage of MCMJIF. This dispute between insurance entities concerns which must pay life time medical expenses for the consequences of the final body insult which cut short the career of this veteran police officer and who must pay disability to bring him to the point where the Second Injury Fund would take over total permanent disability. Mr. Johnson earlier voluntarily dismissed occupational exposure cases against his employer because the injuries and weekly benefits claimed were the same as those included in these accident claims. The Second Injury Fund weekly benefit rate and date of commencement of benefits is dependent on which insurer of Bradley Beach is held liable .
Mr. Johnson had preexisting spondylolysis and spondylolothesis at L5 on S1. This was asymptomatic for much of his life. He is also an insulin dependent diabetic. Earlier, in his career as a police officer, he did suffer a series of accidents to his head, neck and back. On March 16, 1990, while subduing a violent person, Mr. Johnson sustained injury to his left eye, head, neck and back. This injury resulted in a compensation award of 27 ½ % permanent partial total less a credit for a prior 1986 injury. The time to reopen has expired..
On July 13, 1995, he was lifting a heavy individual and sustained injuries. This was the subject of C.P. 1996-4441. An August 1995 MRI showed degenerative disc disease at L4-L5, and L5-S1 with grade 1 spondylolothesis at L5 on S1. Over the next several years he received conservative treatment, nevertheless, his pain and body restrictions progressed. In June 1997 the borough’s insurer authorized Dr. Rosenbloom to perform back surgery, a Gill decompressive laminectomy at L5-S1. Post surgery he did have significant residual impairment in restriction of movement of his back, spasm on movement, and right sided lumbosacral radiculopathy from L5-S1 and post traumatic headaches. While impairment was present, it was not sufficient to prevent him from returning to full duty as a police officer. Obviously there were limitations on his interaction with the public and law breakers. Still, he was capable of performing all his duties.. The respondent’s forensic and treating physicians cleared him to return to full duty..
The forensic examinations for that case were performed by Dr. Tobias on March 2, 1998, Dr. Kiel in February 1998 and by Dr. Warren in June 1998. The reports of these physicians were presented to Judge Hooley when he approved the settlement of the 1995 injury on February 9, 1999. I heard the testimony of these physicians in the instant trial. Petitioner’s testimony before Judge Hooley described his impairments before the November 2, 1998 accident. The judicially approved award was based on Mr. Johnson’s condition before the November 1998 accident. Mr. Johnson’s testimony before Judge Hooley and now before me, make it quite clear that his symptoms of pain and impairment had significantly increased after the November 1998 accident. The award was for 60% permanent partial disability less credit for the earlier award of 27½%, the permanent disability was described as
increased residuals of lumbosacral sprain and myosistis, Gill Decompressive Laminectomy L5-S1, cervicodorsal myositis & sprain, Lumbosacral radiculopathy, post concussion syndrome, post traumatic tension headaches.
The net award was for 295 1/7 weeks at $375 weeks, $110,655 less petitioner’s share of allowances. The subsequent 1998 accidental injury was known to the parties and the judgment was based on Mr. Johnson’s physical condition prior to the November 1998 accident. The transcript of the testimony and the medical records of that proceeding were part of our court file. I reviewed this material. I have an adequate picture of the degree of the pathology and his impairment before the 1998 accident. Comparing that to this record, I have no doubt he is now medically totally disabled. He had returned to work for a year when the 1998 incident occurred. Medical care had ceased and he functioned as a patrol officer and firearms instructor. He was working with some pain and some body movement restriction. He could perform all of his duties. The issue is what if any contribution arises from the 1998 incident or whether this was merely a progression of the 1995 accident.
The last compensable incident occurred on November 2, 1998. Mr. Johnson was in attendance at the Monmouth County Police Academy as a firearms instructor. He was in the bathroom, when he slipped on a wet floor. He did not fall to the ground. His testimony was he lost his balance and moved his back in a “swift jerking motion, my back went completely out at that point.” Before this he had “some discomfort, some pain. Immediately following the accident, the pain was much more severe. And I was just about incapacitated at that point. . . “ He experienced chronic right sided pain down the right leg with numbness and tingling. He described this as much more intense and persistent than previously. He eventually developed left side radicular pain, although to a lesser degree than the right sided pain. His testimony was corroborated by the office records of the physicians who treated him following the incident.
He immediately reported the accident to his employer who provided medical treatment. After emergency attention, he eventually saw Dr. Freeman and Dr. Arthur Vasen. A course of conservative therapy was administered including physical therapy and steroid blocks. All to no avail. At some point Dr. Vasen who had been retained by MCMJIF changed his opinion that the November 1998 injury was the cause of Mr. Johnson’s chronic back impairment and inability to work. He offered the opinion that Mr. Johnson’s problems were all due to progression of the prior medical pathology. When he testified before me he gave his reasons for this opinion, explaining his reasoning why the pathology present in Mr. Johnson’s back could not be the result of what he caused a minor sprain and strain of lumbosacral spine.
Mr. Johnson continued to exhibit debilitating symptoms and was unable to work On March 3, 1999, Mr. Johnson was given a repeat MRI which the radiologist reported showed no disc herniation or stenosis. MCMJIF ceased temporary disability and ceased authorization for medical treatment. Michael Lospinoso, M.D., a board certified orthopedic surgeon examined Mr. Johnson on March 19, 1999. He reported that Mr. Johnson now had chronic low back pain on the right with right sided radicular pain and weakness accompanying spasm. Dr. Lospinoso’s office records reflect that the symptoms would appear on coughing, sneezing and other movement. There was night pain. Petitioner had not worked since the accident. An EMG administered in his office was positive. There was diminishment of sensation along L5. Dr. Lospinoso’s interpretation of MRI scans was that there was significant disc space narrowing, secondary disc space bulge and herniation with degeneration at the L4-5 space. Flexion studies showed bilateral spondylolysis at L5-S1 with slippage at L5 on S1. He recommended diskography and surgery. Dr. Lospinoso offered the unequivocal opinion based on medical probability that the preexisting spinal condition had been accelerated and exacerbated by November 1998 slip and fall and recommended invasive diagnostic studies.
Petitioner reopened the old award and filed a motion for medical and temporary disability benefits in both cases. On July 6, 1999, Judge Hooley entered an Order directing MCMJIF to provide medical benefits including surgery and temporary disability without prejudice to its right to seek reimbursement or refund at the conclusion of the case. A July 13, 1999 EMG was reported as showing peripheral neuropathy, activity in the right lower limb which might be due to post laminectomy or irritation of L5-S1 nerve root irritation. The subsequent diskogram and follow up scan was positive for L4-5 and L5-S1 disc herniations. On August 23, 1999 Dr. Lospinoso operated on Mr. Johnson at Jersey Shore Medical Center. He performed a 2 level diskectomy and anterior fusion from L4 to S1 using a bone cage and implanted a bone stimulator. On February 22, 2000, Dr. Goldstein of Dr. Lospinosa’s firm removed the stimulator.
Other than supportive pain control, muscle relaxants, and anti-inflammatory medication and the usual post surgery care, maximum medical recovery has been achieved. The chronic unremitting pain was alleviated to a degree. Post surgery he could attend to his personal needs. There is unanimous agreement that he can never work as a police officer. For that matter considering the persistent pain and concomitant need for narcotic pain relief, and the degree of limitation of movement of his body, employment at any occupation is highly unlikely. I find he could not be expected to be present for a full day on a regular basis. He can not sit or stand for more than 15 minutes. He has frequent tension headaches and sleep disturbance. When he testified before me, he was unable to sit or stand in one position for very long. His persistent discomfort and distress was obvious. No medical witness said anything to suggest that his complaints are not valid.
I compared the reported symptoms before the November 1998 accident to those which existed before. Prior to the 1998 accident he had been medically cleared for full duty. Immediately following the 1998 accident he never returned to duty and the doctors have been unanimous that he can never return to police work. On July 1, 1999, he applied for and was granted an ordinary disability at 40% of his salary. 1 There may well have been hope that the spinal fusion performed by Dr. Lospinosa might stabilize Mr. Johnson where he could perform a sedentary job. That did not happen. By September 14, 2001, MCMJIF was advised that maximum medical improvement had been achieved and temporary disability was terminated. His present income consists of his Police and Firemen’s Retirement System Ordinary Disability Pension of $1,985.17, part of which is based on his contributions. His employer did not participate in the Social Security System so he can not receive Social Security Disability.
The case was tried under the Second Injury Fund bifurcation procedure. N.J.S.A. 12:235-3-7.2, et seq. The issues were:
1) Is the petitioner totally permanently disabled? For the reasons given in this decision, I find he is totally permanently disabled.
2) Is MONJIF entitled to be reimbursed by either petitioner or MCMJIF for an overpayment of $7500. in permanent disability benefits? The payment history does not add up to a $7,500 overpayment. This claim is deferred until the calculations are clarified. I reviewed MONJIF’s submission and it appears it may owe Mr. Johnson an approximately $2,500.
3) Is MCMJIF entitled to reimbursement from either MONJIF or petitioner for medical expenditures? For the reasons stated in this decision, the answer is no.
4) Is MCMJIF entitled to reimbursement for all or part of the temporary total disability payments made by it? No, I found that the November 2, 1998 accident aggravated the underlying back pathology and pushed this man’s condition to a point that destabilized his back. MCMJIF is responsible for the temporary disability until Mr. Johnson reached maximum medical improvement which is determined to be.
5)The final issue is whether the receipt of an Ordinary Disability Pension bars or reduces the payment of periodic disability to petitioner.
The primary focus of this litigation was an inquiry as to which of his several job injuries as a police officer was responsible for pushing him over the total disability mark. The procedural recap of this case shows that Mr. Johnson filed a timely application for review and modification of the February 9, 1999 Order Approving Settlement of C.P. #1996-4441. Its insurer denied there was an increase due to the injury. On March 26, 1999, he filed C.P. # 1999-10099, against Bradley Beach seeking compensation benefits for injury to Mr. Johnson’s back, neck and shoulders as a result of an accident which occurred at the Monmouth County Police Academy on November 2, 1998. MCMJIF’s answer admitted the happening of the compensable injury. While it did provide immediate medical attention at the Jersey Shore Medical Center and treatment by Dr. Vasen, its response to Mr. Johnson’s motion for medical treatment and temporary disability as well as its defense in this trial was to deny that the November 2 incident caused any new medical pathology or aggravated what was there. It bottomed its defense on a contention that the prior medical pathology progressed with out any input from its incident.
Testimony was presented on 7 days with the case being carried for additional days so that the parties could gather and present further factual data.. The witnesses at trial were petitioner and 6 expert physicians. Petitioner presented Paul J. Kiel, M.D. A board certified neurologist and psychiatrist who had examined petitioner on 2 occasions and Sidney Tobias, a board certified surgeon who is an experience orthopedic evaluator and who examined petitioner on 2 occasions. Both physicians examined Mr. Johnson before and after the 1998 accident and offered opinion testimony that the 1998 incident caused additional impairment which pushed the disability to permanent total ending for practical purposes this man’s employment prospects. They explained how the movement of petitioner’s body caused the new pathology to develop.
MONJIF presented Robert F. Warren, M.D., a board certified orthopedic surgeon who examined petitioner on June 24, 1998. His report and testimony firmly established that Mr. Johnson’s back injury was stable and neurologically intact. He opined that Mr. Johnson did have a measure of permanent impairment and restriction, still, he had been able to return to full duty as a police officer. He had been working and was expected to continue. His condition was stable and was not progressing. There was no need for further medical care. Following the November 2, 1998 accident, doctor Warren reviewed medical records and the transcript of Mr. Johnson’s testimony and offered the opinion that the increase in his symptoms were due to the dynamics of the November accident. He observed that following the new accident, the office records of the treating physician described new symptoms of left sided radicular pain and pathology not present at the time of June 1998 examination. He noted that the new diskogram produced symptoms at L4-5 and additional disc disruption at L5-S1. These were new objective findings not present in June 1998 including subjective complaints of sexual dysfunction. Surgery following the 1995 injury involved decompression of nerves at L5-S1 and left him fairly stable. While Mr. Johnson did have a longstanding spondylolothesis, slippage of L5 on S1, doctor Warren opined that this was stable until the November 1998 accident. The surgery following the 1998 accident was of an entirely different nature. This time the L5-S1 inter space was unroofed, and L4-5 and L5-S1 were fused to give stability. Cross-examination did not weaken these opinions.
MCMJIF presented three expert physicians. Arthur P. Vasen, M.D., a board certified orthopedic surgeon, who provided authorized care for the November 2, 1998 accident until Dr. Lospinoso was authorized by court order, Francis De Luca, M.D., a board certified orthopedic surgeon who performed an examination for purposes of this trial, and Ivan Dressner, M.D., who is board certified in neurology and psychiatry, who examined Mr. Johnson for purposes of this trial. These physicians opined that the need for the surgery was not due to the 1998 incident but was the inevitable result of previous pathology, a congenital spondylolothesis and the impairment following the 1995 back injury and 1997 surgery. Each physician gave reasons for their conclusions, but all were based on the thesis that the 1998 trauma was insignificant and that there was no new physical damage. In essence their theory was that the fusion performed after the 1998 incident was the inevitable consequence of the earlier pathology and was a preordained consequence which would have happened no matter what the future had held for petitioner. They reviewed the same medical records as the other physicians and Dr. Dressner viewed the MRI films and differed with the opinion of the radiologist..
In addition to the testimony, there were 34 trial exhibits plus post trial submissions from respondents on their payments and data from the Division of Pensions. Effective July 1, 1999, Mr. Johnson was awarded an Ordinary Disability Pension by the Police and Firemen’s Pension Board in the amount of $1,985.17 per month of which $360.71 represented an annuity based on his contributions and $1,624.46 was a pension payable by the state. This award is subject to Federal and New Jersey State Income Tax. While Workers’ Compensation and Accidental Disability Pensions are not. He application for an Accidental Disability Pension at 66 2/3% of his wage, which would have been free of income tax was denied, no appeal was taken.
PERMANENT DISABILITY ISSUES
To this record I have applied the following legal principles. The burden of proof here, as 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 of the existence of each element of the claim. Lindquist v. City of Jersey City, 175 N.J. 244, 258-259 (1973); Perez v. Pantasote, Inc., 95 N.J. 105, 118 (1984). The same evidentiary standard applies to the elements of the case on which respondent has the burden of proof. Fiore v. Consolidated Freightways, 140 N.J. 452, 479 (1995).
Petitioner has the burden to prove . . . causal relation [and disability] by a preponderance of the evidence. 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, ere 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).
Petitioner’s case includes alternative theories for recovery. First there is the claim for the 1998 injury and secondly there is the application for review and modification of the judgment for his 1995 injury. The 1995 injury claim would yield a life time total disability benefit rate of $469 per week, while the 1998 claim would yield a $516 per week benefit. The burden of proof is no different when the employee seeks an increase in awarded disability for progression of compensable injuries than on the initial claim for a compensable injury. When petitioner proceeds under N.J.S.A. 34:15-27, he must show that his disability increased and that the increase is causally related to the original compensable injury. Schiffres v. Kittatinny Lodge, Inc., 39 N.J. 139 (1963); Lightner v. Cohn, 76 N.J. Super. 461(App. Div. 1962) certif. denied 38 N.J. 611 (1962).
Simply put the judicial approach to these cases is we lay the initial medical impairment on one side and the current causally related impairment on the other side, in the absence of intervening causes, if there is an increase in loss of function, an award follows, if not, the claim for increase falls. Once the worker has met this burden of proof, the burden of proof on alternative factual propositions and legal conclusions which will exonerate or mitigate the employer’s liability shifts to the employer. Lindquist v. City of Jersey City, supra. 175 N.J. 264-265; Gulick v. H.M. Enoch, Inc., 280 N.J. Super. 96, 109 (App. Div. 1995).
The respondents must carry that same burden of production of evidence and persuasion as to their factual contentions including issues of prior loss of function for a credit or shift of liability to the Second Injury Fund. Katz v. Township of Howell, 68 N.J. 125, 132 (1975); Gulick v. H.M. Enoch, Inc., 280 N.J. Super. 96, 109 (App. Div. 1995); Abdullah v. S.B. Thomas, Inc., 190 N.J. Super. 26, 29-30 (App. Div. 1983); and N.J.S.A. 34:15-12(d). The obvious intent of this reduction of an employer’s liability is to encourage the employment of the handicapped. See Abdullah v. S.B. Thomas, Inc., supra.; Fiore v. Consolidated Freightways, supra., 140 N.J. at 478-479; Lewicki v. New Jersey Art Foundry, 88 N.J. 75 (1981).
Petitioner and MONJIF have carried their burden of proving that November 1998 incident was the aggravating factor in pushing this man to the point of total and needing additional surgery. Here there is no question that Mr. Johnson is worse off today than when he obtained the award for his 1995 injury. MONJIF’s witness as well as petitioner’s experts state the increase in impairment and monetary responsibility for medical expenses rests with the insurer for the latter incident. MCMJIF’s expert witnesses opine the 1998 injury was relatively minor, a mild back strain or sprain. It claims its injury was not the cause of the subsequent impairment, but rather it was the result of progression of prior impairment, the 1995 accident and/or the congenital spondololithesis. MCMJIF’s case ignores the substantial impact the 1998 incident had on this man and seeks to create a new doctrine in Workers’ Compensation to the effect that if a person is susceptible to injury or could have the same result at an other time, the employer has no liability. That may be true if the accident was coincidental. See Peterson v. Hermann Forwarding Co., 267 N.J. Super. 493, 503-508 (App. Div. 1993), certif. den. 135 N.J. 304; (1994). However in this case there was also proofs that new pathology and spinal damage occurred after the November incident. This was a material cause of the need for surgery and the eventual total disability.
It could well be said that this is most likely a dispute between insurers. Although MCMJIF asserts that the progress of the spondylolothesis was not caused by a trauma, one can not ignore the sequence of events which followed the accidents and the reasoned explanation of Dr. Tobias, Dr. Kiel and most importantly Dr. Warren who saw the petitioner just a few months before the 1998 accident. The medical records immediately following the 1998 injury lead to the conclusion that the new 1998 trauma was a material cause of the deterioration of this man’s impaired spine. I found Dr. Warren’s review of the medical records and his explanation of the change in this man’s spine to be more realistic than that offered by MCMJIF’s experts. He had the distinct advantage of examining Mr. Johnson a few months before the November 1998 accident. If he was not able to perform all of the duties of a police officer, the doctor was under an obligation to report same to the municipality. His hands on examination and appraisal of petitioner’s capability at that point in time is entitled to more weight.
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 reiterated recently that the Workers' Compensation Act is to be liberally construed in order that its beneficent purposes may be accomplished. This directive for liberal construction of the Act continues. Lindquist v. City of Jersey City, supra.,175 N.J. at 257-258; Fiore v. Consolidated Freightways, 140 N.J. 452, 479 (1995); On the other hand, this directive to construe the act liberally does not extend to ignoring the burden of proof. It does not release petitioner from the burden to persuade the trier of fact that his factual contentions are valid. .Lindquist v. City of Jersey City, supra.,175 N.J. at 258.
The cases have required that when it is claimed that a subsequent event or in the case of alleged occupational aggravation increased prior impairment, it must be proven that the increase or acceleration of the disease or injury was “due in a material degree” to the subsequent event. Peterson v. Hermann Forwarding Co., supra.; Kozinsky v. Edison Products Co., 222 N.J. Super. 530 (App. Div. 1988). Resolution of the issue of whether the employment event or risk was the material cause depends on whether the proofs establish the increase would not have occurred to the extent it did in the absence of the described employment event. If the condition would have occurred at or about that time to the same extent without the event, it is not compensable, it is essentially idiopathic or coincidental with the employment. See Peterson v. Hermann Forwarding Co., supra. Facially MCMJIF’s expert witnesses espouse a opinions which proffer such a conclusion. But the evidence just not support such a conclusion. What happened here was a dramatic increase and worsening of the pathology as direct and immediate consequence of the event. The new more severe symptoms occurred immediately and contemporaneously with the unexpected dramatic movement of petitioner’s body when he slipped on a wet floor. MCMJIF’s experts agreed that merely bending can cause a herniated disc.
In Prettyman v. State, 298 N.J. Super. 580, 591 (App. Div. 1997), an occurrence would be considered an accident for the compensation act "if either the circumstance causing the injury or the result on the employee's person was unlooked for...." The court instructed
We have recognized that there are "three categories of risk used in determining the connection between employment and injury." Id. at 126 (citing Howard v. Harwood's Restaurant Co., 25 N.J. 72, 83 (1957)). These categories are used to decide whether an injury arose out of the employment as required by N.J.S.A. 34:15-7. Verge, supra, 272 N.J. Super. at 126-28. The first category, described as a "`but for' test," questions whether it is more likely than not that the injury would have occurred in the workplace rather than somewhere else. Id. at 126. The second category of risks are classified as "neutral risks" and are those risks that occur due to "`uncontrollable circumstances which do not originate in the employment environment but which happen to befall the employee during the course of his employment." Id. at 127 (quoting Howard, supra, 25 N.J. at 84). The third category of risks are those which "do not bear a sufficient causative relationship to the employment" and are considered "personal to the claimant" or "`idiopathic.'" Ibid. (citations omitted).
Of equal import in Dietrich v. Toms River Bd. of Education, 294 N.J. Super. 252 (App. Div. 1996) the court instructed that the compensation law did not allow compensability when an underlying idiopathic cardiomyopathy condition became evident during stressful employment occurrences unless there was a material causal nexus between the employment happenings and the worsening of the underlying heart disease. The happening of acute symptoms while Dietrich was at work was merely an idiopathic occurrence. There was no credible medical evidence that the work conditions caused the heart condition. In Dietrich, the court observed there was a lack of
“suitable medical evidence that the job stress substantially contributed to the condition or disease that developed, and that without the exposure, it would not have developed to the extent that it caused the disability manifested.”
Here, unlike Dietrich, the moving event was where Mr. Johnson should be as a part of his assignment to the firearms training situs. He was on the clock. I am unaware of any respectable legal authority who say that presence in a bathroom at the work site was not in the course of employment. It was the condition of the premise, the wet floor which set in motion the trauma. Harwood’s 3rd class, the personal or none work relation risk, just does not apply. The new increased medical pathology occurred in close proximity to the new incident and was a consequence of a specific activity. He was on the clock and present at the Police Academy as part of his job as a police officer.
He slipped on the wet floor and twisted his back in a sudden motion causing immediate pain in his already compromised low back. He reported the injury promptly to his employer and sought immediate medical assistance. The slip on the wet floor was an unanticipated sudden event which precipitated the unnatural body movement causing aggravation of the preexisting back pathology. Even Dr. DaLuca conceded on cross-examination that the described event was the last thing Mr. Johnson’s spine needed. Dr. DaLuca’s opinion of no causal relation is belied by the immediate medical attention and new imaging and diskogram results. He could not convince me that this test was useless and unnecessary. Nor could he convince me that the 1998 incident was a mere sprain which caused no pathology. He seemed more concerned with what he called a poor choice of surgical procedure in 1997 as a cause, neglecting to observe that an employer takes the worker at his existing physical makeup. The fact that Mr. Johnson was more susceptible to injury because of the earlier condition and surgery does not prevent compensability, all that happens is that the amount of liability charged to the employer is reduced for that prior impairment. N.J.S.A. 34:15-12 (d).
Dr. Dressner’s opinion that the surgery in 1997, the diskogram and 1999 surgery was unnecessary is a bit hollow and inconsistent with the other evidence in this case. He seems to selectively pick out those pieces of medical evidence which meets the needs of the respondent. He testified that 98 % of all back surgery is unnecessary and that Mr. Johnson’s surgery only happened because the incident at work got him into an orthopedic surgeon, office. Interesting, this opinion is inconsistent and is in clear disagreement with Dr. DaLuca who said the fusion should have been done in 1997. He opined the 1999 surgery was not the result of the 1998 incident because it did not alter Mr. Johnson’s spine. He told me that the incident did get him into the orthopedic surgeon’s office. He concluded by attacking the credibility of Mr. Johnson. He speculated that Officer Johnson molded his history to treating physicians for financial gain. There is not the slightest scintilla of believable evidence to support this. All in all Dr. Dressner’s testimony can not be given any weight.
Now comes the question of weight to be given the treating physician. Normally we say the treating physician is afforded more weight than a forensic consultant. See Bober v. Independent Plating Corp., 28 N.J. 160, 167 (1958); Bird v. Somerset Hills Country Club, 309 N.J. Super. 517, 522-523 ( App. Div. 1998) certif. denied 154 N.J. 609 (1998); DeVito v. Mullen's Roofing Co., 72 N.J. Super. 233, 236 (App. Div. 1962); & Celeste v. Progressive Silk Finishing Co., 72 N.J. Super. 125, 143 (App. Div. 1972). Here there are 2 treating physicians with conflicting opinions. I find doctor Lospinoso’s findings and opinion more believable.
Dr. Vasen, did treat Mr. Johnson for few months following the November accident. Dr. Vasen, while board certified in orthopedic surgery has his sub-specialty in hand surgery. About the same time he offered the opinion that the worsening of the back symptoms were not caused by the described accident, he recommended to MCMJIF that Mr. Johnson be seen by Dr. Marsicano, a spine specialist for a surgical consult. Dr. Vasen and MCMJIF never completed the referral to Dr. Marsicano because MCMJIF decided to follow the opinion of Dr. Vasen of no causal relation. I find this opinion questionable. After all Dr. Vasen did admit on cross examination by Mr. Carton that the 1997 surgery performed by Dr. Rosenbloom removed the fibrotic and exuberant granular tissue which had been compressing and binding the S1 nerve root resulting in no further compression of the thecal sac. He admitted there was no left sided radicular signs before the 1998 accident. There was no evidence of sexual issues before 1998. If as the doctor testified the November 2, 1998 twisting and turning of Mr. Johnson’s back caused a tearing of ligament and muscle tissue in the low back, how then does one avoid the obvious conclusion that there was damage to supporting structures of this previously compromised spine and new compression on the thecal sac..
Shortly after the cut off of authorized treatment, Mr. Johnson was examined by Dr. Lospinoso, a well known board certified orthopedic surgeon with a sub-specialty in spinal surgery saw Mr. Johnson at about the same time that Dr. Vasen cut off treatment. Dr. Lospinosa ordered additional testing and did offer the unequivocal opinion that within a reasonable degree of medical probability the November incident was the aggravating factor which caused new pathology and the need for a spinal fusion. He eventually did have the opportunity to look at this man’s spine and see its reaction to stimulation. I find that Dr. Lospinosa’s opinion is credible, based on solid medical facts and entitled to more weight. The respondent’s physicians seem to opining as if this case was being approached pre spinal fusion rather than after.
. I have decided that the last injury during MCMJIF’s coverage is responsible for pushing over the limit to total permanent disability. MCMJIF is the responsible entity for treatment and temporary disability. The claims against MONJIF shall be dismissed with prejudice. The total disability rate pursuant to N.J.S.A. 34:15-12 (a) & (b) shall be at the 1998 maximum rate of $516 per week instead of the 1995 rate of $469 per week. The Second Injury Fund will most likely be responsible for total disability benefits at $516 per week following payment of MCMJIF’s share of total disability. The Second Injury Fund is a necessary party in any proceeding which seeks to impose liability on it, so it must be afforded the opportunity to present its case on the ultimate outcome. N.J.S.A. 34:15-95.1. So, I will enter an interim order for payment of total disability by MCMJIF to Mr. Johnson and withhold until the conclusion of the final hearing final judgment on the amount of benefits which have accrued to date. N.J.A.C. 12:235-3.7.2, et seq. If MCMJIF should make payments which should be made by the Second Injury Fund or the other respondent, it will be reimbursed.
ORDINARY DISABILITY PENSION AND N.J.S.A. 34:15-43.
If Mr. Johnson had not been disabled as a consequence of a series of injuries while protecting his community, he would have been able to serve a few more years, retire at full pension and then pursue other activities. If MCMJIF’s argument to ban this ban from Workers Compensation disability benefits were accepted, it would mean we were stating it was a legislative intent to place this worker at a severe burden for having been a police officer. Instead he was left with a lesser ordinary disability pension at 40% of his wage. Respondent bases its claim to deny Mr. Johnson disability award on the language N.J.S.A. 34:15-43. Factually the medical impairments which are the basis for this award is the same as the basis for his ordinary disability pension. This argument misses the point that a portion of the pension this man receives is based on deductions from his paycheck over the course of his employment. On September 22, 2002, I previously denied claims similar to the one advanced by MCMJIF.. Rosales v. State of New Jersey, C.P.99-7099 & 95-34296 the written decision is reported at 2002 LEXSIS NJ WRK COMP 20 (Sept. 23, 2002) and is published on the web site of the Division of Workers’ Compensation, http://lwd.state.nj.us/labor/wc/legal/cases/rosales_remand.html under the subdivision Miscellaneous topics. For the reasons set forth in that 22 page written decision, MCMJIF’s defense to bar the disability award or to reduce, or refund of its disability payments by reason of the pension is denied. The judgment in Rosales is presently awaiting an argument date in the Appellate Division, docket # A- 002110-02T3. There are other cases decided by other judges and myself pending on appeal or awaiting the final decision of the Appellate Division.00
The claim of respondent for a refund of disability benefits it paid without raising this issue until for years after the award of his pension has no legal or moral basis. See Ifka vs. International Smelting and Refining Co., 188 N.J. Super. 586 ( App. Div. 1983). The Borough can point to no contract between the parties or any language in the retirement statute which allows such a credit or offset. Young v. Western Electric Co. Inc. 96 N.J. 220 (1984). Respondent was aware of the award of the ordinary disability pension, after all it certified his service and impairment to the Division of Pensions.. It did not raise this issue as a defense to the motion for medical and temporary disability. It never moved for a stay nor did it make any other timely application to amend the Order for Medical and Temporary Benefits. There is no fraud or false statement by petitioner. Cf. Hajanas v. Englehardt Mineral & Chemical Co. 231 N.J. Super. 353 (App. Div. 1989). Respondent took no action and has no excuse. It clearly believed as did all government employers that there was no right to reduce or end workers compensation periodic payments by reason of a simultaneous payment of ordinary disability pensions.
As I noted in Rosales v. State of New Jersey, the public pension laws of this State do provide that when an employee receives an Accidental Disability Pension at 66 2/3 %, now 72..67 % of the wage, it is reduced by the amount of the periodic Workers Compensation benefit. There is no reduction of an Ordinary Disability or Service Pension. If he had received an Accidental Disability Pension he would have received a net of $794.7 per week from a combination of the pension and Workers Compensation, all of which would have been free and clear of State and Federal Income Tax. Now the weekly Ordinary Disability Pension totals $458.12 , $83.11 of which is attributable to his pension contributions. His net pension is $375.01, all of which is taxable by both levels of government. If one adds the compensation disability to the net pension paid by the State, the end result after considering income tax is approximately the same as an Accidental Pension.
This MCMJIF defense, if correct, would punish this man for obtaining an Ordinary Disability Pension by assuring he received lesser level of income. Generally pension benefits both time service and disability for police officers are more generous than others because they are more susceptible to injury by reason of the nature of there job exposure. Here, MCMJIF is arguing this man should receive less per week than he could recover in Workers’ Compensation and return to it $58,824 of the temporary disability it paid him after the award of the pension. This was never contemplated by the Legislature, there is nothing to suggest it intended suggest a result. Mr. Johnson suffered a physical catastrophe as a result of his injury while serving as a firearms instructor for other police officers. Now, it is suggested he should also suffer a financial catastrophe.
The defense which seeks to bar payment of disability and the request for a refund is denied.
For the reasons set forth above an order will be entered for commencement of Permanent Total Disability Benefits by respondent, payable by MCMJIF at $516 per week until further proceedings required by N,J,A,C, 12:235-3.7.2, et seq. The claim of MCMJIF for reimbursement of medical and temporary disability benefits paid by it is denied.
Dated: June 28, 2004 Lawrence G. Moncher
Lawrence G. Moncher, J.W.C.