CP# 1993-32163 Kiessling v. Prudential Insurance Company
ESSEX COUNTY DISTRICT
124 Halsey Street, 2nd Floor
Newark, New Jersey 07101
Telephone: 973-648-2785; Fax 973-648-7780
Claim Petition No. 1993-32163
Lisa Marie Kiessling, Petitioner
vs.
Prudential Insurance Company, Respondent
BEFORE:
Stephen Tuber, JWC
Appearances:
Irwin R. Rein, Esq.
59 Main Street, Suite 203
West Orange, NJ 07052
Attorneys for Petitioner
Freeman, Barton, Huber & Sacks, Esqs.
By: William T. Freeman, Esq.
PO Box 10
20 Tanner Street
Haddonfield, NJ 08033
Attorneys for Respondent
DECISION
This is a written decision on respondent’s motion filed with the “Department of Labor & Industry (sic) Division of Workers’ Compensation” … “to terminate petitioner’s benefits.” Although respondent did not specify the part of our statute seeking such relief, NJSA 34:15-27, provides in pertinent part, “An award, determination and rule for judgment or order approving settlement may be reviewed at any time on the ground that the disability has diminished.” Rodriquez v. Michael A. Scatuorchio, Inc., 42 N.J. Super. 341 (A.D. 1956), certification denied 23 N.J.140.
In support of its motion “to terminate petitioner’s benefits,” respondent’s attorney submitted a Certification, a report from Dr. Effron dated June 10, 2007, and two reports from Dr. Gallina dated May 13, 2007 and July 7, 2007.
At trial, respondent produced two lay witnesses, Ms. Ruth Lee Beam and Ms. Catherine A. Reilly [Ms. Beam and Ms. Reilly are sisters], and Drs. Gallina and Effron. Petitioner’s case consisted of her testimony and the testimony of Dr. Crain.
The issue in this matter is whether the petitioner is employable. That is, has her physical and mental condition has changed since an Order for Judgment was entered on April 23, 2003, so that she is now capable of selling her services in a reasonably stable employment market.[1] Everhart v. Newark Cleaning & Dyeing Co., 120 N.J.L. 474) Sup. Ct. 1938), Barbato v. Alsan Masonry & Concrete, Inc., 64 N.J. 514 (1974).
Of course, as it was stated Kalson v. Star Electric Motor Co. 15 N.J. 565 (Cty. Ct. 1951), affirmed 21 N.J.Super.15 (App.Div 1952), “A workman does not have to be bedridden to be totally and permanently disabled (Jersey City Printing Co. v. Klochansky, 8 N.J. Super. 186 (App. Div. 1950); he need not be absolutely disabled or totally paralyzed (Cleland v. Verona Radio Co., 130 N.J.L. 588 (Sup. Ct. 1943) or completely unable to get about (Hayes v. First Baptist Church of Bloomfield, 18 N.J. Misc. 139 (N.J. Dept. of Labor 1940)). Nor is ability for light or intermittent or sedentary work inconsistent with total disability. Jersey City Printing Co. v. Klochansky, supra; Clark v. American Can Co., 4 N.J. 527, 534 (1950).”
Applying these precepts, I find that the petitioner remains totally and permanently disabled. My decision is based on the testimony of the petitioner, respondent’s two lay witnesses, and the testimony of Dr. Crain. I reject the testimony of Drs. Gallina and Effron. I do this because for me to accept their testimony that the petitioner is capable of work, I would have to not only reject petitioner’s testimony and the objective medical evidence of her multiple surgeries and the current authorized psychiatric treatment she is currently receiving, but the testimony of respondent’s two fact witnesses, and the testimony of Dr. Crain, who explains with reasons based upon sound medical rationale why the petitioner remains totally and permanently disabled. This of course I cannot do.
To me, a trial is a search for the truth. That is why I asked the petitioner to take me through a “typical day,” and I asked respondent’s witnesses to describe every activity that they observed the petitioner doing. Simply put, I wanted to ascertain whether the petitioner was engaged in activities that would indicate that she was capable of gainful employment.
Interestingly, notwithstanding some apparent hostility between petitioner and respondent’s fact witnesses, the testimony of respondent’s fact witnesses corroborates petitioner’s testimony. Indeed, with few exceptions all three witnesses’ testimony is consistent. Thus, for reasons which I will go into at length, even if the petitioner engaged in every activity the respondent’s witnesses indicated they observed her doing this would not indicate that she is capable of employment. Once again, I quote Kalson, “A workman does not have to be bedridden to be totally and permanently disabled (Jersey City Printing Co. v. Klochansky, 8 N.J. Super. 186 (App. Div. 1950); he need not be absolutely disabled or totally paralyzed (Cleland v. Verona Radio Co., 130 N.J.L. 588 (Sup. Ct. 1943) or completely unable to get about (Hayes v. First Baptist Church of Bloomfield, 18 N.J. Misc. 139 (N.J. Dept. of Labor 1940)). Nor is ability for light or intermittent or sedentary work inconsistent with total disability. Jersey City Printing Co. v. Klochansky, supra; Clark v. American Can Co., 4 N.J. 527, 534 (1950).”
Ruth Lee Beam was the first fact witness called by the respondent. Ms. Beam testified “over the last six years” she has “had an opportunity to observe Miss Kiessling?” Ms. Beam testified that over the last six years she has observed the petitioner “shovel snow from the alley as well as out front”… “Carrying groceries up from the Royal Farm store that she gets down there, such as milk produce; see her going and coming in the car frequently.” … “seen her give the puppies a bath through the bamboo fence -- her neighbor’s back yard, you can see it from the neighbor next – Mrs. Little’s house…” Walk her Great Danes, one to three at a time at least twice a day … Breed and sell her Great Danes three times… observed petitioner’s tattoos… take a taxi to and from Annapolis… erect a bamboo fence… Drive her car “Every day.” … Wash down feces “down the alley” … walk up and down the block and talk to people… lift potting soil, carry two gallons of milk, one in each hand, and lift a forty pound bag of dog food.
Cross-examination revealed that the fence that Mrs. Beam testified that petitioner erected was not in fact constructed by the petitioner, but “This fence was only reeds, like bamboo that was being—that was being attached to a fence that was already there; isn’t that correct?” To which the witness answered “Yes.”
Continuing,
Q So the Court can get the idea, this was hanging, this bamboo or reed material, on an existing fence; is that correct?”
A Yes
Cross-examination also revealed that Mrs. Beam contacted the municipal authorities about the need for a permit to construct, as the witness indicated petitioner did on direct examination, or as the witness testified on cross-examination, to alter the fence by putting reeds on the existing fence. I quote.
Q Let me see if I can make it broader: Did anyone ever come to your house from the city and advise you to stop making all these complaints on 311?
A No. I had a man come out and say something about her fence and she didn’t need – she didn’t need a permit for a bamboo fence.
Mrs. Beam also testified that petitioner’s garage was so dirty that it appeared to be a nesting ground for rats. Indeed, on various occasions she called the local authorities to complain about rats coming out of petitioner’s garage. Of course, this would corroborate petitioner’s testimony that she is unable to upkeep her house. It also calls into question the accuracy of the report that the respondent attempted to enter into evidence from the municipal authority investigator that found her house orderly. Of course, the report may have been accurate because the petitioner may have cleaned her house knowing that an investigator was to conduct a visit to determine whether a multiple pet license should be issued. Perhaps I should have admitted the report into evidence as an exception to the hearsay rule – it was a government document, but since the respondent did not make a proffer of proof that the government official that wrote the report was unavailable, I thought that the right of cross-examination should not have been abrogated especially considering the respondent did not ask for the official’s testimony to be taken telephonically, or that the official was not available. Of course, if the respondent requested that the official’s testimony be taken telephonically I would have granted his request.
Mrs. Beam also corroborated petitioner’s testimony that she was unable to make repairs or otherwise take care of her house. In this regard, Mrs. Beam testified on several occasions she saw workers come into her house wearing tool-belts. As to the petitioner’s testimony that she was unable to take care of her house, Mrs. Beam testified the petitioner had a Bill Bruchey haul trash from her house, notwithstanding the fact that twice a week the city would pick up trash left at the curb. I quote:
Q Is there something wrong with Bill Bruchey hauling away the trash?
A No, but was something wrong that a lady would – that’s not – you know, that’s just not being heard of to have a garage full of trash bags until the truck is halfway up from the garage; nothing but trash; she wouldn’t put it out for the sanction (sanitation) workers to take twice a week.
Perhaps what was “wrong” with the petitioner was as she testified, unable to make repairs, or otherwise tend to her house.
To be sure that Ms. Beam told me everything she saw the petitioner doing, after direct and cross-examination were completed, I asked Mrs. Beam several questions about each activity she that she observed petitioner doing.
For example, I asked Mrs. Beam how many times and how long it took to wash the dogs. I did this because the length of time could indicate what petitioner was capable of doing. Mrs. Beam indicated that she saw the petitioner wash her dogs twice and it took her ten minutes to do so.
Concerning the fence, in response to my question of how long did it take the petitioner to do what she did to the fence, the witness indicated “probably about two hours to tie all that bamboo, two and a half to tie that up, from what I saw. What it took her, I do not know.
Continuing,
THE WITNESS: A couple of hours a night, I would say. She did it slow, I guess. I don’t –
THE JUDGE: How many nights was this?
THE WITNESS: I’d say two nights she had it up, sir. I really didn’t keep track of the nights. But I know two nights she was out there and you could see her doing this with the light and the bamboo.
As to petitioner washing down her property, Mrs. Beam testified that it took the petitioner twenty to thirty minutes and she observed petitioner doing this activity many times.
As to the petitioner shoveling snow, Mrs. Beam testified that she observed the petitioner doing it two times and it took ten minutes to clear the front of her house and thirty minutes to do the “back alley.”
As to the petitioner carrying grocery bags, Mrs. Beam testified that she saw petitioner carrying one to four grocery bags at a time, but she did not know the weight of each bag, or what was in them. According to the witness, the petitioner carried them from her car to her house, which was a distance of “Less than five feet.” Finally, Mrs. Beam testified that the petitioner did this once a week.
As to petitioner’s gardening, Mrs. Beam testified that she observed petitioner “Potting out in her backyard with her flowers.” According to Mrs. Beam, the petitioner picked up a bag of potting soil and put the soil into two pots. She observed this while she was talking to a neighbor, and it took approximately fifteen minutes. Finally, Mrs. Beam testified that the petitioner does this activity from the spring into the fall.
As to the petitioner walking her three large dogs, Ms. Beam and Ms. Reilly testified that the petitioner walked two or three at a time. At no time did they testify that the dogs were unruly – that they pulled or otherwise misbehaved - while being walked. In short, they were obedient and well-trained animals. This, of course, would tend to corroborate petitioner’s testimony that they were retired “service” dogs.
The final activity that Ms. Beam testified that she saw petitioner doing was talking a ladder out of her garage, climbing it and caulking part of the garage. According to Ms. Beam, this took “Maybe a few minutes.”
After recounting these activities, I asked Mrs. Beam whether there was anything else that she could remember petitioner doing that she had not already testified to. For example, I asked her, “Does she exercise? Does she jog, perhaps, or does she play all with any of the kids in the area?” To this question, Mrs. Beam answered, “No. No. I have never seen her do anything like that.” (Emphasis added.) I have emphasized this statement because it indicates that in spite of the apparent animosity between the respondent’s fact witnesses and the petitioner, their observations of the petitioner over several years revealed that they never saw the petitioner engage in any activity that was inconsistent with petitioner’s testimony or employable.
As I have indicated, Ms. Reilly, the sister of Ms. Beam testified on behalf of the respondent. Most of Ms. Reilly’s testimony mirrored not only Ms. Beam’s testimony, but the petitioner’s testimony. For example, Ms. Reilly corroborated the fact that the petitioner had tattoos, and that the petitioner did “Caulking some of the wood around her garage.” That took “approximately five minutes…”
Ms. Reilly also corroborated the fact that the petitioner did shovel snow in the front and back of her house, and that this took a total of fifty minutes. Ms. Reilly also corroborated Ms. Beam’s testimony that the petitioner picked up a forty pound bag of dog food from her steps and brought in into her house. I quote.
THE JUDGE: And she’d put the – her purchase on her steps, so I guess she wouldn’t have to walk that distance with them. Is that Correct?
THE WITNESS: Yes, sir.
Ms. Reilly’s testimony about the petitioner’s dog walking activities was similar to Ms. Beam’s testimony: Petitioner would walk two to three of her dogs at one time, apparently without difficulty. That is, Ms. Reilly, as Ms. Beam did not indicate that the dogs were anything but obedient and well-behaved. The only apparent difference between Ms. Beam’s testimony and Ms. Reilly’s testimony concerning the petitioner walking her dogs was the frequency. Ms. Beam testified that the petitioner walked the dogs everyday, whereas Ms. Reilly testified “Sometimes it’s on a daily basis, and then she’ll go for a week or two and not bother with them at all.”
Ms. Reilly also testified that the petitioner erected an erected “an eight foot bamboo fence on both sides of her property line, in between her garage and the house.”
Finally, Ms. Reilly testified that the petitioner had “a habit of locking herself out; so she’ll put the ladder up against the back of the house and climb up in through the second floor window in back.” According to Ms. Reilly this occurred “About every other month.”
Apparently, Ms. Reilly considered that the activities that she observed petitioner doing did not prevent her from performing her ordinary life pursuits. I quote.
Q What type restrictions does she have in terms of her ability to carry on activities of daily living that you can observe?
A I haven’t seen any restrictions, sir.
She can pull on those dogs two and three at a time walking them; she can pick up and carry 40-pound bags of dog food; repeatedly go up and down steps with groceries.
I haven’t seen any restrictions at all.
If we compare and contrast the petitioner’s testimony with that of Ms. Beam and Ms. Reilly it becomes clear why I said in the beginning of this opinion, “Indeed, even if the petitioner engaged in every activity the respondent’s witnesses indicated they observed her doing this would not indicate that she is capable of employment.”
The gist of the testimony of Ms. Beam and Ms. Reilly was that petitioner’s activities led them to conclude that the petitioner was capable of performing her ordinary life pursuits. They both gave petitioner’s dog walking activities as an example. But the reverse is true. Petitioner’s testimony about her dog walking activity does not indicate that she is capable of performing her ordinary life pursuits. Rather, it is just one example of her physical limitations. I quote.
THE JUDGE: Now, you bring all three at once?
THE WITNESS: Yes.
THE JUDGE: And they are on a leash, I presume?
THE WITNESS: Yes.
THE JUDGE: All right. Go ahead.
THE WITNESS: They heal. They don’t pull straight. They heal straight, walk on either side of me. And close, tight. And then I go two blocks to the dog park. I go two blocks to the dog park and I’m there anywhere from twenty minutes to, I think the longest I’ve been there is two hours. Depending on how many people there are to talk to.
Although respondent’s fact witnesses indicated that petitioner’s dog walking was an example of her ability to perform her ordinary life pursuits, I disagree. Indeed, if we consider the nature of petitioner’s dog walking, it becomes clear that her dog walking is an example of her limitations, not of her ability to perform her ordinary life pursuits. Of course, if the petitioner ran with her dogs, threw objects and them to fetch, or in any way played with them, any of those acts could be evidence that she is able to perform her ordinary life pursuits. However, the only testimony before me is that the petitioner takes her “service” dogs for limited walks.
I only add, the other examples of petitioner’s activities - climbing a ladder once every two months, carrying groceries, potting plants and shoveling snow on two or three occasions does not support the respondent’s argument that the petitioner is capable of gainful employment. Indeed, if we compare and contrast petitioner’s employment record and social activities before and at the time she was declared totally and permanently disabled with what she was capable of performing at the time of her testimony before me on November 20, 2008, it becomes clear that the petitioner remains totally and permanently disabled.
The conclusion that the petitioner is not employable is not only supported by respondent’s own fact witnesses, but petitioner’s testimony. In this regard, she agreed, with minor differences, perhaps as a result of the apparent hostility between the parties with the description of her activities that she was capable of doing outside the house. For example, while she admitted to walking her “service” dogs, two and three at a time, she did not agree with the length of time on occasion the respondent’s fact witnesses indicated. Although the petitioner did agree she did put bamboo reeds on her fence “over a span of a month”… “Fifteen minutes, twenty minutes at night when it was cool” she disagreed with the respondent’s fact witnesses’ testimony that she installed an eight foot bamboo fence. Moreover, after the petitioner introduced into evidence the reeds that she installed, the respondent offered no rebuttal.
Once again, in order to determine whether the petitioner was employable I asked her to, “Give me a typical day, if you will.” The petitioner’s answer indicated that her physical and psychiatric condition has deteriorated since she last testified before me in 1997.
Her answer indicated that she remains totally disabled. In many ways, it also corroborated the fact witnesses’ testimony. I relate just several examples of the many I could give. Both fact witnesses produced by the respondent indicated that the three dogs that petitioner walked well-behaved. Petitioner’s testimony explained the reason for their observation. I quote.
A What do you mean by a service dog?
A They are responsible to helping me carry things, making sure that I walk upright and stable under bad pavement in Baltimore. They are there mostly to help keep the pain and the stress down since I’ve been pushed up to described as chronic suicidal ideation. I’m having episodes of psychotic behavior where I don’t remember where I am or doing what I’m doing.
Petitioner also testified that she starts and ends her day by taking her ten medications.[2] Medications which are new or have increased since I declared her totally and permanently disabled in 2003, and are prescribed by her authorized treating doctors. Moreover, not only did petitioner’s medical evaluator agree that all of these medications, but both of respondent’s medical evaluators also agreed that these medications were medically necessary. I only add, the nature and extent of these medications indicate that Dr. Crain’s opinion that not only is the petitioner unemployable, but her psychiatric condition has deteriorated over the passage of time is correct.
As to the petitioner’s activities that respondent’s witnesses testified to, once again, petitioner did not disagree with respondent’s witnesses that she did food shopping, but she disagreed somewhat what this involved. Petitioner testified that she does her food shopping once or twice a month during “non-busy hours, you know, during, you know, short time when no one is there,” and the amount of purchases depends of “whether I’m traveling with friends or not (,)” and that she makes sure that the packages are “packed light” (five pounds of less.)
Petitioner also agreed with the respondent’s fact witnesses that she does drive, but testified and introduced to evidence records that she only drives approximately one hundred and twenty-five mileages per month.
Petitioner also agreed with respondent’s fact witnesses that she has shoveled snow, but once again she disagreed as the nature and extent of this activity. Respondent’s witnesses indicated on one occasion it took petitioner a total of fifty minutes to shovel the front and back of her house. Petitioner estimated the amount of time it took her was fifteen minutes. Whether the petitioner shoveled snow for fifteen or fifty minutes on one or two occasions does not mean that she is employable, if we consider the totality of petitioner’s, and extent of her six surgical interventions and the medications currently prescribed by her treating psychiatrist. As Dr. Crain explained, although the petitioner does have “spurts” of activity, because of her physical and psychiatric limitations, she is incapable of working.
Petitioner also agreed with the testimony of respondent’s fact witnesses that she does in fact climb ladders, but once again, disagreed with the nature and extent of this activity. Petitioner disagreed with respondent’s fact witnesses’ testimony that she used the ladders outdoors to gain entry into her house, but rather she used ladders to open the top of her windows inside the house to let air in during the summer months.
Considering all of petitioner’s limited activities that she and respondent’s witnesses testified to, petitioner’s admitted physical and psychiatric disabilities, and the medications that her authorized treating physician and medical providers are currently prescribing and monitoring, it becomes clear that Dr. Crain’s opinion that petitioner is not employable, but only capable of “spurts” of activity is correct.
Put another way, for me accept respondent’s medical evaluators, Drs. Gallina and Effron’s opinion that petitioner is capable of gainful employment I would have to not only disregard the testimony of the petitioner and respondents fact witnesses, but the objective medical evidence of petitioner’s physical and psychiatric disabilities adduced at trial. This, of course, I cannot do.[3]
As to the appropriateness and necessity of petitioner’s current psychiatric treatment since the Order for Judgment was entered on April 27, 2003, although Dr. Gallina’s net opinion is that the petitioner is capable of working, he does not disagree with Dr. Crain’s opinion that the present psychiatric treatment and medication that the petitioner is receiving is medically necessary. I quote from page 20 of Dr. Gallina’s May 13, 2007 report marked into evidence as R2.
“Based on this evaluation, it is my medical opinion with reasonable medical certainty, that approximately 10% of Ms. Kiessling’s current psychiatric treatment is related to her work injuries and the remainder to personal difficulties that she has experienced, many of which have been lifelong personality problems in nature.
In terms of psychopharmacology, assuming that her medication dosages have been stable for a period of time, medication management on a one time per three month basis is reasonable.” [4]
Of course, the fact that petitioner’s psychiatric treatment and medication may not “cure” the underlying pathology does not abrogate the respondent’s responsibility to provide continuing treatment. For as Judge Shebell stated in Hanrahan v. Township of Sparta, 284 N. J. Super 327 (App. Div. 1995), “We hold that even in non-total disability cases N.J.S.A. 34:15-15 provides for continued treatment, whether or not labeled as "palliative," as long as there is a showing by competent medical testimony that [***15] the treatment is reasonably necessary to cure or relieve the effects of the injury. See Squeo, Supra, 99 N.J. at 606, 494 A.2d 313; see also Howard, Supra, 25 N.J. at 93, 135 A.2d 161.”
I only add, Dr. Gallina’s opinion that the petitioner is employable is “from a purely psychiatric point of view on the evaluation in 2007, she was employable. She still has some symptoms of anxiety and depression, but we have to keep in mind that there are many – most people I treat with anxiety and depression continue to work and especially with psychotherapy and with the help of some medication she is functional, and she is able to work at some type of job.”
Dr. Gallina did not, as we must, look at the petitioner as a whole person to see whether all of her disabilities renders her totally disabled. Indeed when asked about the medication the petitioner is taking for her chronic pain – a significant part of her disability – Dr. Gallina testified, “Most of the medication she’s taking is pain medication, which is really out of my area of expertise. So I normally wouldn’t make those recommendations.” However, he did agree that “The psychiatric medications are essentially dosed to augment the pain medication that she’s taking and although they have may have some tranquilizing effect of at these levels, these levels are not aggressive psychiatric dosages is that would be utilized to treat a significant depression or even a patient with significant anxiety? (sic)
Dr. Crain’s opinion that petitioner is capable of limited employment by a “benevolent employer” and not gainful employment because she is only capable of “spurts” of activity is based upon the evidence produced at trial and sound medical reasoning.
Dr. Crain indicated that the petitioner could not “sell her services” to an employer because the medications she is taking for pain and depression, “They make you feel tired so that I believe her stamina would be affected by these medications. So although she may have some pain relief, true, her stamina because of being sedated would be limited because of the medications also. So that’s one factor.”
Continuing, “My experience with these kind of medications has been as long as a person is not too active they’re fine. The person that goes beyond usual baseline functional activities, they don’t work as well. They lose their effect.”
Dr. Crain’s testimony indicates that the petitioner is caught in a catch twenty-two dilemma – if she takes her pain and depression medications that are necessary to relieve her pain and depression she cannot work because of their sedative effect. If she does not take them her pain and depression will prevent her from working.
As to petitioner’s neurological disability, once again, I accept Dr. Crain’s findings and conclusions because they are consistent with the objective medical evidence of petitioner’s neurological disability – the diagnostic tests and the six progressively pervasive surgical interventions she underwent in her good-faith attempt to return to work.
Of course, the six operations the petitioner underwent in an attempt to return to work are not only objective evidence of the nature and extent of her neurological impairment, but is clear and convincing evidence that Dr. Effron’s opinion that the petitioner is a malingerer is incorrect.
This analysis comports with Dr. Crain’s opinion that not only is the petitioner not a malingerer, but a person who did everything her authorized treating doctors recommended to “cure and relieve” her work-related injuries because work was the glue that kept her ”together.” I quote.
“I’ve seen many people, who have personal problems, but work was separate, that despite having personal problems in their lives they still -- work was their haven and their escape and work kept them together. And I’ve seen that co-existent with people with person problems.”
Dr. Crain further opined that only a “benevolent” employer would hire the petitioner. His reasoning is convincing. I quote.
“First of all, it would not be something that’s reliable from day to day. Some days good, some days bad. On a good day – now, when I met her in 2007, she said to me that although she could work on the computer, the problem was she’s making lots of mistakes, hitting the wrong keys and that would slow her down. How long could she persist at a computer like that I’m not sure, but I know she would be inefficient, make a lot of mistakes and not be good at it.
THE JUDGE: Would her medication contribute to that?
THE WITNESS: I think medicine affects focus and alertness.
THE JUDGE: Concentration also?
THE WITNESS: It does affect that too and also depression does as well. When a person is very depressed, they can’t focus as well either.
THE JUDGE: And how would you label her depression, mild, moderate, severe? You tell me.
THE WITNESS: This is major depression, which is severe. My report indicates severe.
Dr. Crain’s opinion that the petitioner suffers from severe depression is based not only on his professional expertise, but on the nature and extent of the treatment she is currently receiving from her authorized treating medical providers. I quote.
“Well, this person when I observe her first. I observe a person very sullen, a person who’s irritable, a person who looks depressed in my presence. She has the appearance.
I’ve read about her hopelessness. I’ve read all the therapy notes by Ms. Cohen, her therapist, who indicates she’s saying many time she feels hopeless and helpless. She is frequently suicidal. She has, in fact, made suicide attempts. So that goes with people who are severely depressed.”
I also accept Dr. Crain’s opinion that petitioner’s complaints of pain are magnified by her emotional state and are physiologically consistent with her physical disabilities. According to Dr. Crain, magnification of pain occurs, “when you have two co-existing conditions, major depression and pain condition from neurologic problems…”
As to the physical basis for petitioner’s pain, I reject Dr. Effron’s opinion that the petitioner could not be experiencing the amount of pain she claims because she tattooed herself and her complaints of pain are not anatomical consistent, and accept Dr. Crain’s opinion that there is a psychological and physical basis for the amount of pain the petitioner is experiencing. I quote.
“…if she were a malingerer, I would not get an examination where she shows strength. Malingerers don’t know when to stop malingering. And when I examined her, the weakness was very focal. It doesn’t look to me like malingering.”
Dr. Crain also explains why petitioner’s explanation for tattooing herself – controlling her body - is paradoxically psychologically and physically medically consistent, and Dr. Effron’s opinion that petitioner’s tattooing herself is inconsistent with the amount of claims she claims to have is incorrect. I quote. “Well, they’re two thoughts o this. First, sometimes people have paradoxical benefit by inducing pain to counter pain. That happens like some pain clinics, for example, have like the TENS devices, electrical stimulation for pain relief. Well that’s really a form of pain applied to the body, but it’s competing for the pain from the pathology at the spinal cord level and sometimes seems to relieve pain. So that’s one aspect of it.
The second aspect is psychological control. She’s feeling like she’s out of control of her body, helplessness. So by doing something to her body, it’s like in her mind she’s taking control of her body. That’s psychological. Two things.”
Finally, as I have said, I reject Dr. Effron’s opinion that the petitioner is malingering because her claim of pain was anatomically inconsistent. Indeed, when one considers the site and the nature and extent of petitioner’s surgeries it becomes abundantly clear, as Dr. Crain testified, that petitioner’s complaints of pain are anatomically consistent. I quote, “… in (his) examination, and my report indicates, the hypothenar eminence pin prick is reduced. Now, that’s the territory of the ulnar nerve and that’s on the left side which pertains to that pathology of the operation.”
Although, for all of the aforementioned reasons I dismiss respondent’s “Motion to Terminate Petitioner’s Benefits” for failure to sustain burden of proof, I suggest the respondent follow the sage advice of Judge Goldman in Rodriquez v. Michael A. Scatuorchio, Inc., 42 N.J. Super. 341 (A.D. 1956), certification denied 23 N.J.140. In Rodriquez, in order to rehabilitate Mr. Rodriquez, Judge Goldman suggested that the “respondent might well undertake, through the Division, to supply petitioner with an effective prosthesis, seeing to it that he gets thorough instruction in its [***22] use through a Spanish speaking instructor and, if possible, get Rodriquez to accept instruction in English.” Applying these principals, perhaps the respondent in this matter could offer a rehabilitation program with the view of “making petitioner an efficient economic unit…” i.e. restoring her function so that she may return to the that which held her together – the work-force.
I award Dr. Crain for his examination, report and testimony $850.00 payable by the respondent.
For the multiple hearings, I assess a stenographic fee of $1,000.00, payable by respondent to William C. O’Brien Associates.
Petitioner and respondent’s attorney are to agree on a mutually convenient time no later than December 24th to appear before me to discuss petitioner’s counsel fee and to execute an Order which conforms to this opinion, which petitioner’s attorney shall prepare. If the attorneys are unable to agree on a mutually convenient time, I am instructing both attorneys to appear before me on December 24th at 11:30 AM.
Footnote 1. The petitioner, Lisa Kiessling, was employed by the respondent from December 4, 1989 to the time she "went out on disability" January 3, 1993 as an Assistant Director of Marketing. Her function was to support the Director of Marketing, "doing presentations and marketing materials on desk top publishing for our sales force." Approximately, eighty to ninety percent of petitioner's time was spent of a computer doing "computer production." Specifically, she was required to take notes during meetings, get information off CD Roms, draft letters, write "bios" and reports.
Petitioner would "take direction from the Director of Marketing. If the Director would hand write text, the petitioner would "type it into the computer, style it in our format. The same with the numbers." Petitioner would then generate the original work and then make copies and collate it and distribute the product to the persons for whom the work was produced.
The petitioner worked on a three by six conference table. On the table was a computer, scanner, printer and a variety of other computer devices that she used to perform her function as an Assistant Director of Marketing.
Petitioner indicated what the physical requirements were for each of her job functions. For example, collating was done on top of a filing cabinet. Petitioner indicated that she used "accordion collators" because she had to collate from originals. An accordion collator, according to petitioner, is a metal device that "literally accordions out that you place on top." This was done by hand because the copy machines could not generate the quality necessary. Therefore, originals needed to be made and hand collated. The petitioner than described the hand collating process. The petitioner would, "Literally pinch pick one by one, stack them and do anywhere from six to forty copies. And then we would hand bind them using a thermal process, which is a heating process."
Petitioner was also required to obtain information in filing cabinets and described the physical requirements of this job. Petitioner would pickup the files the sales people needed, gather information and statistics on prospective. These files were above her shoulder height and "usually (she) couldn't get some stuff." This is because the file weighed from one to ten pounds.
Petitioner then described the relationship of the pieces of equipment she was required to use. Petitioner indicated that her chair was too low in relationship to the table where her computer was located. The computer that the petitioner used to type on occasion "upwards of three or four drafts of forty pages a piece with corrections and, and new type...A lot was sort of piecemeal, new writings and draft work." The petitioner did ninety percent of all the typing for the sales presentations and requests for proposals.
When the petitioner started working for the respondent she worked a "minimum" of forty hours per week. Often, even in the beginning of her employment she worked overtime. However, the first five hours of overtime were free, meaning that she was not paid for them. The overtime was dependent on projects that were given to her. Indeed, during the first year of her employment with the respondent she worked "every third weekend" and worked "five or more hours a week" overtime. Petitioner in addition to all of her other duties was responsible for the "computer setup."
Petitioner indicated that she was paid for overtime, "If I submitted for them, yes." Petitioner indicated that she did not submit most of her overtime because, "I was up for a promotion. I was instructed that that's what management did. You worked the hours regardless. That's how you got into the next level in management, which was my goal." That level would bring her into the "financial investment pool" and as such she would be entitled to a bonus of from twenty-five to one hundred percent of her salary.
During the last year the petitioner worked for the respondent before going out on disability she was working twelve to fourteen hours per day and every weekend. Petitioner further testified that when she worked twelve to fourteen hours per day she did not even take a luncheon or dinner break, but had food brought in so she could eat at her desk. Lastly, petitioner testified that she did submit her overtime vouchers for the second half of 1992, but before then it depended, "If I worked more then ten hours a week sometimes I would put in, you know, five plus hours, but if it was under ten I would not submit it." Petitioner testified that she minimized the amount of overtime because she "was trying to, to do what it took to get ahead and to get a promotion." Lastly, petitioner testified that she received a $2000.00 bonus for her wok at the end of 1992.
Petitioner testified that prior to working for the respondent she never had any complaints to the parts of the body for which she filed a claim petitioner alleging occupational disability, except for a sleep disorder that she had on and off through her college career, especially during final exams. The physical symptoms of her sleep disorder would be "a feeling like hitting your funny bone. I would have a discomfort. Occasionally it would fluctuate where it was, be it my elbow, my wrist, my knee. Either side." Apparently, the petitioner was not treated for her sleep disorder until 1992.
It appears from petitioner's testimony that her physical problems to the parts of her upper body manifested themselves during 1992. Petitioner testified, "during the period between June and December of '92 is when I worked the most overtime that I ever had before. After long bouts of sitting at the computer, just typing endlessly, I started noticing a burning sensation in my fingers, which I've never had. Numbness in my fingers which I've never had." The tingling sensation radiated up both arms and would vary depending on what she was doing. Furthermore, the petitioner experienced coldness. a loss of color or her hands would turn blue "like a dead person.” She also experienced a loss of strength in her hands.
As a result of petitioner's pain in January of 1993, petitioner went to Prism, the respondent's authorized physicians. There she was put out on disability for one week and injected with cortisone which made her hands "considerably worse." She explained, "It made my hands worse. I couldn't use them. I couldn't undo a blouse. I couldn't bathe myself. I was discouraged by that experience. I called up my primary care physician, Dr. Nancy Simpkins. She gave me Dr. Tellis."
Dr. Tellis, apparently was authorized by a Troy Tice. He gave the petitioner a month long regimen of physical therapy and conducted an EMG study. The physical therapy consisted of electrical stimulation with a TEN's unit. The treatment, once again, made petitioner's condition "a lot worse." Indeed, her condition deteriorated to such an extent that Dr. Tellis indicated that surgery was necessary. The operation was authorized by the respondent and she had a median nerve release of her left hand. Since the surgery did not improve her condition, and she was to have the same procedure on her right hand, it was never done. Petitioner testified that after the surgery the pain started "traveling up my arm." According to the petitioner, since the surgery her left hand has gotten worse. She explained, "It proceeded to get worse. My -- I can't open up a top of a pop bottle. I can't use a had can opener. I can't pick up a gallon of milk. I try not to drive. I lost control of my car. It went off the road, so I don't do that much anymore.”
Apparently, as a result of the petitioner's deteriorating condition she was assigned a Conservo nurse and was told to go to yet another authorized physician, Dr. Vigman. Petitioner described Dr. Vigman's demeanor as "chagrined." Petitioner discussed Dr. Tellis's recommendation of a repeat EMG. According to petitioner, Dr. Vigman said , "might as well do that" and also suggested an MRI. Petitioner went back to Dr. Vigman to discuss the findings of the EMG. Dr. Vigman advised the petitioner that "there was never carpal tunnel."
For the next four to five weeks petitioner kept on calling the respondent, "because I was concerned like what was next. I was given a lot of stories as to what, where I was suppose to go. According to petitioner, respondent was waiting for Dr. Tellis to get the name of a neurologist at Columbia Presbyterian Medical School. Instead, petitioner was sent by the respondent to Dr. Ivan Dressner. However, before going to Dr. Dressner she went to the Philadelphia Hand Clinic and saw Drs. Reed and Taras. Petitioner was given "a full, complete... upper, from the neck down to the fingertip EMG and nerve conduction tests and was told that she had severe bilateral brachial plexopathy. Approximately one week later petitioner kept the scheduled appointment with Dr. Dressner. During this time, petitioner was notified that she would be terminated on July 4 if she was not able to return to work. Petitioner testified, "Since no one was releasing me to go back to work I knew I didn't have a job, so I moved" to Oregon to be with her family. Finally, on or about July 14th, petitioner received a letter from the respondent that they "were no longer taking responsibility or denying my claim, is the way they described it."
While in Oregon petitioner, apparently at the recommendation of Dr. Taras went to see Dr. Wakeling at the Cascade Internal Medical group in "some hope to avoid surgery.” Petitioner also saw Dr. Otakar Hubschmann at the suggestion of Dr. Simkins, her primary care physician.
Next, petitioner in October of 1993 saw Dr. Hunter at the Philadelphia Hand Center and Dr. Schwartzman, the Chairman of Neurology at Thomas Jefferson University Hospital. According to the petitioner's testimony Dr. Schwartzman gave the same diagnosis as Dr. Hunter “without seeing” Dr. Hunter's report.
Finally on February 15, 1994, petitioner was seen at the Thoracic Outlet Clinic. Petitioner was scheduled for surgery "to open up my neck and get rid of any scar tissue that's around the nerves and the vessels in the neck" in May but had to postpone it because she had "no funds to do it."
Petitioner's complaints at this point in time were, "I have, as I said, difficulty opening things. I don't iron. I very rarely drive. I don't lift anything over my head. I don't lift anything out to my side. I try not to sit for a long time. I try to recline so my arms are supported. I lie down a lot, just so that they're supported. I don't write letters...Because my handwriting, one is illegible now and, two, just physically I can't hold a pen and control it...It's my hands, my wrists and my arms. I have no physical strength to pick up something, up into my, you know, my shoulders...I get very lightheaded if I do...I have shooting pains now up here in my neck...I have a lot of pressure here (indicating collarbone). I start getting very lightheaded...It's easy very easy for me to get light-headed. My hands turn blue...I try not to lift or do anything that will bring on the symptoms.”
Respondent offered no testimony to contradict any of petitioner's testimony concerning the extent or nature of petitioner's work effort. Indeed, a rigorous and competent cross-examination by respondent simply corroborated petitioner's entire direct testimony.
Three doctors testified in this matter. Drs. Schwartz and Whitenack for the petitioner and Dr. Dressner for the respondent. After a careful reading of the transcripts, I find the medical opinion of petitioner’s medical doctors, that petitioner’s thoracic outlet syndrome is the result of repetitive trauma on two asymptomatic congenital abnormalities of the petitioner, far more convincing than the opinion of Dr. Dressner that the petitioner does not suffer from the sequela of that disorder. My reasons follow.
Dr. Whitenack is a physician whose specialty is chest and vascular surgery. He has been performing thoracic outlet surgery since he started practice in 1980. His medical credentials are impeccable. He is on staff at Thomas Jefferson University Hospital where he works with Dr. Hunter on patients with thoracic outlet syndrome and he is the Chief of Surgery at Chestnutville Hospital. During the year 1996, he performed approximately one hundred and fifty thoracic outlet syndrome surgeries. His patients, in part, are people who are referred to the hand center because of undiagnosed arm pain, resulting from failed carpal tunnel surgeries, and failed elbow surgeries. He is also retained by insurance carriers for independent medical evaluations and workers’ compensation carriers. In short, his patients come from “every imaginable way.”
Dr. Whitenack testified that the petitioner had carpal tunnel surgery which did not improve with surgery. The doctor was then asked if the condition deteriorated after surgery? In a forthright and careful manner, the doctor stated , “She was relatively the same. However, other symptoms began to become apparent.”The doctor then explained petitioner’s symptoms after her left hand surgery and their significance to him.
“In particular, I noted more proximal pain in the shoulder about the neck, headache, eye symptoms -- all of those things which directed Dr. Hunter to undertake an evaluation with a diagnosis of thoracic outlet syndrome.”
Dr. Whitenack indicated that Dr. Hunter’s evaluation included an EMG study by Dr. Reed, a doctor at the Philadelphia Hand Center. According to Dr. Whitenack the EMG study “documented the brachial plexus neuropathy or thoracic outlet syndrome.”
Dr. Whitenack than explained that the EMG was performed on different parts of the body other than solely for carpal tunnel syndrome because, “Most EMGs that are done for carpal tunnel don’t evaluate the brachial plexus at all.” Unlike, Dr. Dressner, who appeared to be an advocate rather than a medical evaluator, Dr. Whitenack was candid and admitted that there are “some controversies in the evaluation of the brachial plexus on EMG.” He added, however, that “when done with the sophistication that is done at the hand center, the studies are extremely reliable and repetitively reliable.” The doctor then indicated that the EMG conducted at the Hand Center was done in such a manner, “So an evaluation of the conduction velocity as well as the level of amplitude of conduction in the brachial plexus was done in a very sophisticated manner, which is not performed as part of a routine EMG.” Dr. Whitenack concluded that a review of the EMG studies he confirmed Dr. Hunter’s diagnosis of thoracic outlet syndrome.
Dr. Whitenack then explained a “series of processes” that he went through that eventually let him to the diagnosis of thoracic outlet syndrome. First, it was important to him that petitioner’s symptoms began during a period of heavy computer use and excessive amounts of overtime. According to the doctor, the petitioner had “appropriate therapy” and this was important because a “series of processes must be gone through and if there is not an initial response to therapy then one must consider surgery.” Dr. Whitenack went on to explain that since therapy failed, the next thing to be done was a somatosensory evoked potential test. The transcript indicates that this test was done on January 31st, 1990(4?). Apparently, the petitioner did not return to Dr. Whitenack until October 1995. The return was prompted because of her continuing symptoms that did not respond to therapy.
Doctor Whitenack then continued with the medical history of the treatment of the petitioner because, as I have said, he thought it was important in eventually arriving at his diagnosis of thoracic outlet syndrome. According to Doctor Whitenack petitioner’s symptoms included “numbness and tingling in the hand and a feeling of clumsiness, which ultimately led to the work-up for a possible carpal tunnel problem. That surgery was ultimately undertaken, and no significant change occurred in the hand symptoms. However, as time went by, progressive pains in the shoulder, headaches, migraine type things, began to progressively become apparent.”
As a result of the lack of improvement in petitioner’s condition, she was referred to Dr. Hunter at the Hand rehabilitation Center. Apparently, Dr. Hunter arrived at a diagnosis of thoracic outlet syndrome and sent the petitioner to Dr. Schwartzman, the Chairman of Neurology at Jefferson, for confirmation of his diagnosis.
At the time Dr. Whitenack saw the petitioner she had a “reasonable course of therapy, and the surgery was a reasonable alternative.” The petitioner was given the option of surgery as a potential for improvement of her symptoms, but at that time was not “ready to make a decision yet.” Unfortunately, petitioner’s symptoms “got bad enough” and in October of 1995, and she agreed to the recommended surgery. Dr. Whitenack diagnosis was repetitive stress, neurogenic, thoracic outlet syndrome, upper and lower plexus. The doctor in a well-reasoned analysis, describes what is meant by repetitive stress and the effect it had on petitioner’s two asymptomatic congenital defects. His testimony shows his thorough understanding of the human anatomy and is accepted by me.
I begin a discussion of Dr. Whitenack’s well-reasoned and medically sound analysis: “it is a well-recognized entity which includes carpal tunnel syndrome and, not as well-recognized, also includes thoracic outlet syndrome. Any of these can occur to people who have an underlying anatomic predisposition, (as, according to Dr. Whitenack, the petitioner has) who are then placed into a situation of doing more than their body should be able to tolerate.” I compare this well-reasoned analysis of the petitioner’s disability with that of Dr. Dressner’s explanation of petitioner’s disability. An explanation, in my considered opinion, that is contrary to the universally medically accepted theory that physical disabilities can be caused by repetitive stress. I quote Dr. Dressner’s testimony at length because it clearly indicates that the doctor is not cognizant of the abundant medical literature that clearly and unequivocally indicates that stress does cause permanent and significant physical disability. Furthermore, Dr. Dressner’s testimony clearly indicates that he is on a crusade to correct the “sociological phenomena” that he considers to be the cause of what he considers our society’s problems. I quote.
“We are in an era -- in 1952 this woman would not have claimed that her work as a secretary made her hands bad, but it is a sociological phenomena in 1990, ‘91, 92, ‘93, everybody knows, articles in all the women’s magazines, repetitive stress syndrome, lawsuits galore, you learn it. It’s the same way that stress, you know, emotional stress is being emphasized in the last 15 years. In 1940 people were not saying that they had stress. There were no stress clinics. Didn’t we have stress? We had a world war, but people were not claiming these symptoms (Indeed, our troops did suffer from stress. In World War I and World War II, it was known as “Shell Shock and Battle Fatigue. And in the Vietnam War our troops did indeed suffer from stress. The name of the diagnosis was changed to Post Concussion Stress Disorder, but the cause was the same -- stress.) because they were taught in my estimate so that’s why I think she’s so involved in this proof herself. That’s all I --
THE JUDGE: Are you -- are you taking the position that stress doesn’t exist --
THE WITNESS: No. What I’m saying--
THE JUDGE: -- as a disability?
THE WITNESS: Yeah. What I’m saying is that certainly people are under stress. I’m in the practice 27 years. The first 13 years, from 1968 to 1981 nobody was asking me when -- this is not a legal case, patients, sick patients, strokes, heart disease, dizziness, migraines, nobody was asking me do you think stress has anything to do with this. Since 1981 a patient, a new patient of mine coming to see me referred by a physician for a neurological problem does not leave my office without saying, do you think stress could have anything to do with this, and I say, why do you ask, and they say, I’ve been under a lot of stress lately which leads me to believe that if near 100 percent of my patients whether they are Lou Gehrig’s disease, Parkinson disease, multiple sclerosis, migraine or vertigo, all think, perceive themselves as being under a great deal of stress, it’s ridiculous to believe that stress began in 1981. (Stress did not start in 1981. The treatise used by psychiatrists for generations to diagnosis and treat psychiatric disorders, the DSM, has unequivocally set forth the universally accepted medical proposition that stress is a cause of both physical and mental disorders. Indeed, we are using the fourth edition of the DSM -- DSM IV.) What I think what was done is that the media emphasized it since 1981 and put it into the total psyche of the United States. I believe that it is a United States problem, that there are other countries in which it is not emphasized so much in which the patients don’t complain about it because it’s too silly to believe that stress began so recently. I think it’s fashionable to think of stress as being adverse to your health based upon media recognition. That’s what I mean.”
I reject this preacher-like testimony. I find that Dr. Dressner’s opinion, “that’s it’s fashionable to think as stress as being adverse to your health (is) based on media recognition” is based on prejudice and bias that the doctor has acquired over the 27 years of practicing medicine. It clearly has affected his ability to render an objective opinion based upon sound and generally accepted medical standards. For these reasons and others, which I will go into at length in this opinion, I disregard Dr. Dressner’s opinion that there is no causal relationship between the petitioner’s employment and her present disability and accept the well-reasoned opinion of Dr. Whitenack. I choose not to discuss Dr. Schwartz’s testimony not because I do not accept it, but I believe Dr. Schwartz’s analysis offers does not rise to the level of Dr. Whitenack’s testimony and because it would be somewhat cumulative. I now continue to explain the reasons I accept Dr. Whitenack’s opinion that petitioner’s work, within a reasonable degree of medical probability, cause her present physical disability.
According to Dr. Whitenack, in order to understand what thoracic outlet syndrome is you had to understand the anatomy of the whole brachia plexus area, and the effect of trauma or repetitive stress on asymptomatic congenital abnormalities. Iquote, "When people have structures that are not perfectly placed, which include such entities as cervical ribs, extra scalene muscle, and abnormally placed scalene muscle, they are at risk for developing a problem. It can occur from falling off a horse, or it can occur from working hours in front of a computer in an improper position." Continuing, "Both (trauma and repetitive trauma) are mechanisms of developing the problem."
Dr. Whitenack then explained that the thoracic outlet surgery that he performed on the petitioner revealed several abnormalities that helped him come to his conclusion that petitioner did in fact have thoracic outlet syndrome. The first abnormality was presence of "a band (named the C7 two pleura Roos band) of tissue which compresse(d) the lower truck of the brachial plexus against the first rib." The second abnormality was that the anterior scalene muscle was upward." The abnormality, according to the doctor was that the "anterior scalene is supposed to be entirely contained in from of all the nerves." Doctor Whitenack admitted in response to Judge Hare's question, that the petitioner’s two abnormalities were congenital. Judge Hare followed up that question with a question that went to the heart of the matter. He asked, whether the petitioner's repetitive trauma caused her thoracic outlet syndrome. Doctor Whitenack answered Judge Hare's question forthrightly. I quote, "No. But it sets you up to have the potential to have a repetitive stress disorder develop." Thus, according to the doctor both of these abnormal conditions predisposed the petitioner to develop thoracic outlet syndrome.
Dr. Whitenack then went on to indicate the significance of these findings: "as a result of these structures which are pressing on the nerves, the nerves develop a thickened tissue around them, which is similar to the development of a callus from chronic pressure on any other portion of your body. The structures around the nerve become quite thick. You have to remove that tissue from the nerves to allow the nerves to be able to move freely." Finally, the doctor indicated that although these structures were abnormal, "They weren't causing any problem until something occurred which caused them to become a problem." Of course, our Workers' Compensation Act provides that a petitioner's impairment must be measured by functional loss. A petitioner is not entitled to a judgement of compensation unless there is functional loss. Obviously, a respondent is not entitled to a credit for prior functional loss unless there is a the functional loss and the functional loss can be fixed by competent medical evidence. In this matter, we have the credible medical testimony of Dr. Whitenack that petitioner had a congenital abnormality in her anatomy that was asymptomatic prior to her employment with the respondent. We also have the petitioner's testimony that she did not have any functional loss to any body part of the body for which she has filed this motion for medical and temporary benefits. Thus, since the respondent has failed to prove that the petitioner had a prior functional loss as a result of her congenital abnormality, the respondent is not entitled to any functional credit.
Dr. Whitenack concluded that petitioner's disability is related to her employment with the respondent. I quote, "Anatomically, people who develop repetitive stress disorders, almost always, have an underlying problem. Most -- not most, but somewhere between three out of five and four out of five with carpal tunnel, for example, are women. The reason this occurs is -- we're not allowed to really talk about this now in our new socially correct era, but women in the workplace are trying to do more heavy labor jobs. As a result, they have a much more significant incidence of carpal tunnel syndrome. The reason that occurs is partially because the area through which the nerves travel up the wrist is not as big as it is in a 200-pound man as compared to a 110-pound woman. The nerves are almost the same size, whereas the space is not as big. These are the reasons why people problems. It's not that you always have to have a structural defect. You have a predisposing factor that set you to have a problem. The other structures that occur in thoracic outlet syndrome are innumerable, but they're not causing a problem until either an injury or event occurs in somebody's life. Then that's considered to be the etiology, not the underlying congental problem." I have quoted from Doctor Whitenack's testimony at length because it is a clear and rational explanation of the cause of petitioner's thoracic outlet syndrome. He explains physiologically, why a woman is more prone to get carpal tunnel syndrome then men. I compare this to Dr. Dressner's opinion that, "I've seen a lot of reports from Jefferson, and what's quite striking is the patient will be elsewhere. As soon as they get to Jefferson, they're said to have thoracic outlet syndrome in the thoracic outlet clinic and the thoracic outlet service. The chairman of the department and professor of neurology at Thomas Jefferson, a Dr. Schwartzman, has written 200 articles on thoracic outlet. And it looks like he has a great c.v., 30 pages long, but there are people who say they can't confirm any of these findings and other people can't reproduce the findings, and they don't believe it...and I think it will come to that, nobody will do these thoracic outlet syndromes in a while." I reject Dr. Dressner's testimony that, "it will come to that, nobody will do these thoracic outlet syndromes in a while." Once again, I find that Dr. Dressner is on a personal mission to debunk, what he considers to be the myth of thoracic outlet syndrome. I reject Dr. Dressner’s testimony because it offers little or no scientific evidence for his position. Indeed, he admits there are many studies conducted by the petitioner's own treating doctors that are accepted by the general medical community, that state that thoracic outlet syndrome is an insidious syndrome. He further admits that there has been many medical publications which indicate that not only is there a thoracic outlet syndrome but that the procedures outlined by Dr. Whitenack to treat the petitioner have achieved good results. Of course, Dr. Dressner, for whatever personal reason does not agree with these medically recognized treatises.
Dr. Whitenack indicated that the petitioner has improved since her left sided thoracic outlet surgery but cautioned, "the initial gains are more significant that the subsequent gains." He further indicated that, "Therapy is mandatory." His reasoning, once again, is based upon sound medical knowledge. "Scar tissue is the enemy of nerve surgery results, and therapy is mandatory to prevent re-scarring about the nerves." Continuing, "It should be done with enough supervision to make sure that the exercises needed daily are done, and then they do them at home."
Doctor Whitenack also explained the significance that petitioner had thoracic outlet syndrome bilaterally. I quote, "Quite obviously, if you have the potential of having these problems on one side, you can have the same potential on the other. The computer worked she was doing involves the use of both hands. It's actually more common on the right because of the mouse that we use with the right hand now. That's why it could be on both sides." I accept this reasoning. It is medically sound and logical.
Finally, Dr. Whitenack was asked whether a board certified neurologist, such as Dr. Dressner, who does not do thoracic outlet syndrome surgery is qualified to give an opinion on brachial plexopathy. Dr. Whitenack's answer that, "Certainly, a neurologist is capable of having an appropriate opinion about what thoracic outlet syndrome is. What must be understood is that the neurological literature is replete with articles and misconceptions about what thoracic outlet syndrome is and is not, which is precisely why we wrote this chapter the way we wrote it. The difficulties are that neurologists think of nerve conduction studies, EMGs, strictly in a very narrow-minded view. That causes a significant problem in terms of dealing with these issues, because there are more things that happen to nerves than are exhibited by simple compression. There are neurologists who understand the importance of scarring and traction around a nerve, rather than simple compression...It leads to a great deal of misconception about what nerve studies even represent" is a well-reasoned explanation for the difference in opinion of the concept of thoracic outlet syndrome. It is not the testimony of a doctor who is on a personal crusade to destroy what he thinks is a misconception in the medical field. It is a well-reasoned attempt to get the medical profession to acquire more knowledge about thoracic outlet syndrome and having that knowledge form an opinion on thoracic outlet syndrome.
For all of the aforementioned reasons, I find that the petitioner's disability, thoracic outlet syndrome, and her complaints, were within a reasonable degree of medical probability, caused by her employment with the respondent and she is in need of medical treatment.
I, therefore, order that the petitioner commence treatment with Dr. Whitenack and that the respondent pay for that treatment. The respondent shall also pay the petitioner temporary disability from January 5, 1993 until discharged from treatment by Dr. Whitenack or until further order of this court. Respondent will give be given a dollar credit for all money it paid to petitioner for temporary disability from January 5, 1993 until they ceased paying her temporary disability. The respondent is also ordered to reimburse the New Jersey Temporary Disability Fund for the amount paid by that Fund to the petitioner and deduct that amount from the temporary disability amount due to petitioner. Respondent is to pay all past reasonable, necessary, and related medical bills that the petitioner has incurred due to this compensable occupational exposure that it has not already paid. If petitioner expended any money for related medical treatment she is to give the respondent, through her attorney an itemized bill together with proof of payment and the respondent shall reimburse petitioner for the amounts expended.
I award Dr. Schwartz $450.00 for his examination, report and testimony, payable by the respondent.
I award Dr. Whitenack $1500.00 for his examination, report and testimony, payable by the respondent.
Petitioner's attorney is to advise me of his out of pocket trial expenses. I award a counsel fee of $19,500.00, assessed against the respondent.
Stenographic fee of $1000.00 payable to North Jersey Reporting Service is assessed against the respondent.
Petitioner's attorney is to prepare an Order which conforms to this opinion and serve it upon the respondent under the Five Day Rule.
[1] Rather than reiterating in detail the nature and extent of petitioner’s physical and psychiatric disabilities and my rationale for rendering the petitioner totally and permanently disabled, I attach a copy of my decision granting petitioner medical treatment. That decision was the basis an Order for Judgment entered on April 27, 2003. I only add, neither decision was appealed by the respondent.
[2] Petitioner is currently taking: Nortriptyline, (three times a day) which is an anti-depressant and pain: Oxycontin, four times a day for pain: Topomaz, is a anti-seizure medication which is now used for pain: Percocet, an analgesic: Methadone, an analgesic: Bupropion, an antidepressant: Bethanechol, for “dry mouth”: Prevacid for stomach aliments: finally, Hydrocort, for hemorrhoids.
[3][3] Curiously, notwithstanding the fact that a treating doctor’s opinion is given more deference that a mere evaluator, the respondent did not produce as an expert witness any authorized treating medical doctor, nurse, or other medical provider to testify that the petitioner was capable of working. Rather as they are permitted to do they relied on the opinion of evaluating doctors. I only add, not only did I not draw any negative inference from this, I did not consider this fact in deciding this Motion to Terminate Benefits. Succinctly put, my decision was based on the testimony and evidence produced at trial.
[4] Curiously, the respondent never made a motion to join the Second Injury Fund even though they knew of petitioner’s alleged preexisting psychiatric disability as early as when petitioner’s motion for medical and temporary benefits was decided by me on after a fully litigated trial.
