BEFORE: 

                                                HONORABLE COSMO A. GIOVINAZZI, III
                                                Judge of Compensation

APPEARANCES:

                                                GOLDENBERG, MACKLER, SAYEGH, MINTZ,
                                                PFEFFER, BONCHI & GILL, ESQS.

                                                By:       LAWRENCE A. MINTZ, ESQ.
                                                            1030 Atlantic Avenue
                                                            Atlantic City, New Jersey 08401

                                                Attorney for the Petitioner

                                                PIETRAS SARACINO, L.L.P.
                                                By:       JAMES G. PIETRAS, ESQ.
                                                            The Atriums at Greentree
                                                            10000-11000 Lincoln Drive West
                                                            Route 73
                                                            Suite 11010
                                                            Marlton, New Jersey 08053
                                                Attorney for the Respondent

This is the case of Maryann Lamy vs. the City of Brigantine, Claim Petition 99-023263 and 91-038484.  This matter is before the court on a Motion for Medical Treatment and Temporary Disability Benefits in which the petitioner seeks an Order requiring the respondent to provide total knee replacement surgery to the petitioner’s right knee.  It is undisputed that the petitioner fell in the course of her employment on June 18, 1999.  The fall occurred as petitioner was attempting to reenter her place of employment at the City of Brigantine.  As she opened the door and stepped into the building, she tripped on the threshold with such force that she was propelled through the air and into the metal door jamb of a second entrance door which she struck with the left side of her head and left shoulder before falling to the ground onto both knees and rolling over onto her back.  Petitioner was apparently knocked unconscious, and was immediately taken to the Atlantic City Medical Center.  She was diagnosed with multiple trauma, including a cerebral concussion, a contusion of the face, hematoma of the scalp, periorbital hematoma, contusion with dislocation of the left shoulder, contusion of the left side of the neck, contusion of the left chest, abdomen and left hip, and contusion of the left knee.  Petitioner underwent x-rays of her chest, pelvis, cervical spine, left knee and left shoulder, together with a CT scan of the left shoulder and cervical spine.  Significantly, in addition to a dislocation of the left shoulder, petitioner was diagnosed with degenerative disc disease at the cervical spine with no evidence or fracture, mild degenerative changes of the left shoulder, and degenerative joint disease of the left knee. 

At the time of her hearing, petitioner testified that prior to this accident she did not have complaints of the right knee, and was not undergoing any treatment to her right knee or taking medication for her right knee.  After the accident, she testified that her right knee became swollen and began hurting her with pain which was similar to the work accident which she had in 1986 when she injured her right foot and right knee.  Although petitioner testified that after this accident, everything hurt, she further testified that it was a couple of weeks after the accident before she realized that her right knee was really bothering her due to the severity of her other injuries. 

After release from the Atlantic City Medical Center, petitioner came under the care of Dr. McCluskey and Dr. Zubinski at Shore Orthopedic University Associates.  She first saw Dr. McCluskey on June 25, 1999 and continued under the care of Shore Orthopedics through September 3, 1999.  She testified that she told Dr. McCluskey that both of her knees were bothering her, and that she told him on several different occasions about complaints of pain in her right knee. 

While petitioner was being treated by Shore Orthopedics primarily for her shoulder injury, petitioner continued under the care of Dr. Paul DeMarco, a podiatrist for treatment of a right foot condition for which she had had several prior operations.  She continued treatment with Dr. DeMarco throughout the summer and into the fall of 1999. 

Although petitioner testified that she hurt her right knee in the accident of June 18, 1999, the review of the hospital records indicates that she gave no complaints of right knee injury at the time of her treatment.  Subsequent to the accident, in an apparent effort to demonstrate the areas of her body which were injured, petitioner had photographs taken of various parts of her body (J-1 through J-5).  In J-1, petitioner has her left knee forward, in an obvious attempt to demonstrate the contusion to her left knee.  A review of Dr. MCluskey’s treating records indicates that petitioner complained of an injury to her left knee on July 16, 1999, about one month after the accident.  Dr. McCluskey noted that she complained of mild medial joint line tenderness of the left knee.  On August 2, 1999, petitioner told Dr. McCluskey that while doing physical therapy, she felt a severe pain in the right buttocks and medial thigh of the right leg.  There is no mention in this record, or any other of Dr. McCluskey’s treating notes, of complaints about the right knee. 

She told her podiatrist, Dr. DeMarco about the accident in question, but his note of      July 9, 1999 indicates that she did not have any trauma or injury to her lower extremities.  At a later date, Dr. DeMarco concluded that petitioner may have done some damage to the fusion site of her right foot at the time of her June 18, 1999 accident.  There is no indication in any of Dr. DeMarco’s treating records, however, that petitioner ever complained of pain to her right knee.  It is noteworthy, however, that on August 2, 1999 petitioner told Dr. DeMarco that she was back walking over one mile per day, an apparent indication that her right foot was improving.  That same record indicates that petitioner was starting to have spasm and numbness throughout her right thigh and leg, along with numbness in her right foot.  This appears to be consistent with the complaints that she made on the same day to Dr. McCluskey.  There is no indication that petitioner had complaints of pain of her right knee, however.

The first indication that petitioner sought treatment for her right knee occurs in the treating records of Dr. Glen Zuck, D.O. of Pace Orthopedics.  He apparently evaluated petitioner’s right knee on September 6, 2000, more than fourteen months after her work accident.  The history which petitioner gave to Dr. Zuck was that in the work accident of June 18, 1999, she had injured her left shoulder and right knee.  An MRI of the right knee performed on September 14, 2000 showed a tear in the posterior horn of the medial meniscus and a sprain of the anterior cruciate ligament with joint effusion and a Baker’s cyst.  In his report of September 27, 2000, Dr. Zuck noted that it was petitioner’s impression that “Her symptoms are related back to her work injury of June 29, 1999,”  although Dr. Zuck was not in possession of medical documentation to form an opinion regarding causal relationship.  He did give an opinion on causal relationship in his report of October 9, 2000, although it is unclear to the undersigned what “medical documentation” he reviewed in support of his opinion. 

Petitioner subsequently saw Dr. John Christini, M.D. on September 26, 2002 who concluded that petitioner’s work injury of June 18, 1999 caused a tear of the right medial meniscus which aggravated preexisting degenerative arthritis in the right knee.  He further concluded that when Dr. Zuck operated on the petitioner in January of 2002 to repair the meniscal tear, the operation itself further aggravated underlying degenerative arthritis.  He concluded that petitioner was in need of a replacement arthroplasty which was causally related to her work accident.

In explaining his opinion on causal relationship, Dr. Christini felt that petitioner had preexisting degenerative changes in her right knee and, as a result of the fall on June 18, 1999, sustained a traumatic injury to the lateral and medial cartilages which led to the arthroscopic surgery performed by Dr. Zuck.  He noted that Dr. Zuck had opined a causal relationship between the work injury and the arthroscopic surgery.  He concluded that the surgery itself further aggravated or accelerated the underlying degenerative condition, necessitating the need for cervical intervention in the form of a knee replacement. 

In explaining his position, Dr. Christini was of the opinion that the fact that petitioner did not complain of knee pain for some time after her accident of June 18, 1999 was not unusual, given the nature of other injuries to her shoulder and head.  In looking at the photographs which had been taken of petitioner’s knees (J-1) Dr. Christini was further of the opinion that the photographs showed a bruise around the medial ligament of Mrs. Lamy’s right knee which he identified as discoloration in the picture.  Further, in reviewing the operative report of Dr. Zuck, Dr. Christini felt that the description given to the meniscus by Dr. Zuck verified his opinion that the medial meniscus tear was caused by trauma as opposed to being caused by a degenerative process.  

Respondent had petitioner evaluated by Dr. Michael L. Sidor, M.D., a Board-Certified Orthopedic Surgeon with the New Jersey Knee and Shoulder Center.  Dr. Sidor saw petitioner on November 25, 2002 and authored a report on the same date in which he concluded that while petitioner was in need of a knee replacement to the right knee, this need for treatment is not causally related to her fall at work on June 18, 1999.  Rather, he related her right knee condition to longstanding severe osteoarthritis due to her age and obesity.  Dr. Sidor subsequently testified by deposition on July 24, 2003.  In his testimony, Dr. Sidor explained that he had reviewed medical records of petitioner dating back to a work injury in 1986 when she had injured her right knee as well as her right foot.  He noted that in 1989, Dr. Charles Wilkins had diagnosed diffuse osteoarthritis throughout petitioner’s body, and also found a Baker’s cyst  behind her right knee which are commonly found in meniscal tears and longstanding arthritis.  

Dr. Sidor also noted that in 1997, petitioner was treated at St. Agnes Medical Center for right knee pain, and had a diagnosis of popliteal cyst of the right knee.  He explained that such a cyst is generally caused by joint fluid leaking through a meniscal tear into the back of the knee.  He also noted that petitioner was diagnosed with degenerative joint disease of the right knee at that time.

Dr. Sidor reviewed the medical records of the Atlantic City Medical Center, Dr. McCluskey and Dr. DeMarco, and found that there was no indication that petitioner had complained of right knee pain in any of these treating records.  He thus concluded that petitioner did not injure her right knee in her work accident of June 18, 1999.  In arriving at this conclusion, Dr. Sidor relied upon a number of factors.  First, he noted the symmetric nature of bilateral valgus and tri-compartment arthritis which is consistent with longstanding osteoarthritis.  Secondly, he noted  that petitioner had a long history of osteoarthritis of the right knee, along with right knee pain, due to her age and obesity.  Third, he noted that petitioner did not complain of right knee pain, or of a right knee injury for months after the accident of June 18, 1999, even though she saw a variety of doctors for other medical conditions. 

With regard to the injury itself, Dr. Sidor concluded that the arthritis of the right knee is primarily between the tibia and the femur.  However, he noted that petitioner fell on her right kneecap, in the front of the right knee.  He explained that aggravation of preexisting arthritis is usually caused by a twisting event between the tibia and the femur.  In taking a history from the petitioner, he asked her several times whether she had twisted her right knee, and concluded that she did not.  He further testified that if the fall had aggravated the preexisting degenerative right knee, she would have immediately had pain, swelling and difficulty walking.  It was his opinion that she would have certainly mentioned these complaints to one of her practitioners, especially since she was seeing not only Dr.  McCluskey, but also Dr. DeMarco for a foot problem. 

Dr. Sidor further noted that petitioner had also landed upon her left knee, which also had osteoarthritis and for which she had a diagnosed contusion.  Notwithstanding this diagnosed injury, petitioner did not aggravate the underlying arthritic condition of the left knee and did not need a knee replacement of the left knee. 

Dr. Sidor also reviewed the pictures which identified injuries to various parts of her body taken shortly after her accident (J-1 through J-5).  Dr. Sidor did not see any injury to the medial part of the right knee in these pictures.  Dr. Sidor also examined the arthroscopic pictures which were taken during surgery of petitioner’s right knee and concluded that these pictures were consistent with a degenerative meniscus caused by arthritis.  He  further noted that the picture of the right knee showed a horizontal tear of the meniscus with irregular edges, and concluded that the picture was consistent with a degenerative meniscus (J-8, J-9).  He felt that the arthroscopic picture (J-9) showed a cleavage tear of the medial patellofemoral condyle which is common with degenerative arthritis.  He also noted fraying of both the patella in the trochlea.   

LEGAL ANAYLSIS AND CONCLUSIONS

 The primary issue in this Motion for Medical Treatment and Temporary Disability Benefits is whether petitioner’s need for a right knee replacement is causally related to her fall at work on June 18, 1999.  N.J.S.A. 34:15-15, dealing with medical treatment, requires the employer to furnish medical, surgical and other treatment to an injured worker as shall be necessary to cure and relieve the worker of the effects of the injury, and to restore the functions of the injured member or organ where such restoration is possible.  The employer’s statutory duty to provide adequate and proper medical treatment is absolute.  Benson vs. Coca Cola Company, 120 N.J. Super. 60, 66 (App. Div. 1972).  The burden of proof in contested cases, however, 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.  Perez v. Pantasote, Inc., 95 N.J. 105, 118 (1984).  The same evidential standard applies to the elements of the case on which respondent has the burden of proof. Fiore vs. Consolidated Freightways, 140 N.J. 452, 479 (1995).  Where there is a question of causal relationship between a diagnosed condition and an alleged injury, the petitioner has the burden to prove this causal relationship by a preponderance of the evidence.  All that is required is that the claimed conclusion from the offered facts must be a probable, or more probable hypothesis.  The test is probability rather than 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 true.  It need not have the attribute of certainty, but must be founded in reason and logic; mere guesswork or conjecture is not a substitute for legal proof.”  Laffey vs. City of Jersey City, 289 N.J. Super. 292, 303 (App. Div. 1996).   In the recent case of Brunell vs. Wildwood Crest Police Department, 176 N.J. 225 (2003), the New Jersey Supreme Court went to great lengths to explain the differences and similarities between “accidents” and “occupational diseases.”  In discussing the concept of accidental injury as set forth in N.J. S.A. 34:15-7  the court stated:

“ . . . the statute does not define ‘by accident;’ however, it has been held that an accident ‘ is an unlooked for mishap or an untoward event which is not expected or designed.”  (Citations omitted); see also Larson, supra. Section 42.02 at 42-4 (‘the basic and indispensable ingredient of ‘accident’ is unexpectedness’).  Obviously, it is not the mere mishap that triggers the compensation statute, but the mishap in combination with the statutory requirement of ‘personal injuries.’  N.J.S.A. 34:15-7.  To be an accident, what must be present is an ‘unintended or unexpected occurrence which produces hurt or loss.’   Spindler vs. Universal Chain Corp., 11 N.J. 34, 38 (1952) (Emphasis added) (Quoting Ismay vs. Williamson, (1908) A.C. (Eng.) 437 (P.C. 1908). 

It is undisputed that the petitioner fell at work in the course of her employment on       June 18, 1999 when she tripped over the threshold of a door and flew through the air into the metal door jamb of a second door, as described above.  However,  the burden is on the petitioner to prove, by a preponderance of the evidence, that she suffered an injury to her right knee as a result of this accident, and that such right knee injury aggravated, accelerated or exacerbated underlying degenerative arthritis, thereby causing or contributing to her current need of a right knee replacement. 

While the petitioner clearly testified that she injured her right knee in this accident, that she began experiencing substantial pain in her right knee within two weeks after the accident, and that she told Dr. McCluskey about her right knee pain on several occasions, a review of the medical records which are in evidence do not support petitioner’s testimony in this regard.  As noted above, there is no mention of a right knee injury in the emergency room records of the Atlantic City Medical Center where petitioner was taken after her accident on June 18, 1999.   

The treatment records of both Dr. McCluskey, who treated petitioner for her shoulder injury after this accident, and Dr. Paul DeMarco, who was treating petitioner for an unrelated right foot injury during the same time period contain absolutely no mention of any complaints of pain or pathology to petitioner’s right knee.  The photographs of the various parts of petitioner’s body which were injured in the accident, taken by petitioner’s son on June 20, 1999 (J-1 through J-5) do not depict an injury to the right knee, and were clearly not intended to do so. 

Additionally, petitioner filed a claim petition on July 20, 1999, over one month after the accident, that does not allege any injury to her right knee.  Finally, petitioner did not seek treatment for any right knee condition subsequent to this accident until September 6, 2000, more than fourteen months after the accident.  Under the circumstances, I conclude that petitioner’s testimony regarding injury to her right knee in the accident of June 18, 1999 is inconsistent with the aforementioned evidence, and therefore is historically inaccurate and unreliable.  During her testimony, I did not get the impression that the petitioner was testifying falsely.  However, it is clear to me that the petitioner’s memory with regard to the onset of substantial right knee pain is faulty. 

Having carefully considered the testimony of both doctors, I accept the opinions of Dr. Sidor that petitioner did not injure her right knee in the fall of June 18, 1999 as more logical, and as more consistent both medically and factually.  First, Dr. Sidor took petitioner’s medical history after the accident of June 18, 1999 into account in arriving at his conclusion that she did not injure her right knee in that accident.  Second, Dr. Sidor considered petitioner’s prior medical history, noting that she first began experiencing right knee pain after her 1986 work accident, and was diagnosed with degenerative arthritis of the right knee as early as 1989.  Dr. Sidor noted that petitioner was diagnosed with a Baker’s cyst of the right knee in 1989, which is commonly found in meniscal tears and longstanding arthritis.  This condition continued to exist in petitioner’s right knee in 1997 when she was seen at St. Agnes Medical Center for right knee pain.  As Dr. Sidor explained, a Baker’s or popliteal cyst is frequently created in the back of the knee in people with meniscal tears and arthritis because joint fluid leaks out of the meniscal tear and goes to the back of the knee.

Third, Dr. Sidor reviewed the arthroscopic pictures taken during the knee operation performed by Dr. Zuck and found them to be consistent with degenerative arthritis.  Finally, Dr. Sidor considered the manner in which petitioner fell on June 18, 1999 and noted that petitioner struck her right knee on the top of the patella as she fell forward, a fall which was unlikely to aggravate the underlying arthritic condition since it did not involve a twisting event between the tibia and femur where the arthritis is located.  In arriving at his conclusion, Dr. Sidor noted that if the fall had aggravated her existing osteoarthritis, petitioner should have had immediate pain, swelling and other symptomatology.  Even Dr. Christini conceded that a meniscal tear is commonly caused by a torquing of the knee and a twisting maneuver when the knee is fixed or bent. 

Thus, on the basis of Dr. Sidor’s testimony, I conclude that it is more probable than not that petitioner did not injure her right knee in the accident of June 18, 1999 and that her need for a total replacement of the right knee is due to severe arthritis with valgus  deformity.  I further conclude that her underlying arthritic condition was not aggravated by the fall of June 18, 1999. 

In accepting the opinions of Dr. Sidor, I reject the opinion of Dr. Christini for a couple of reasons.  First, Dr. Christini relied upon the faulty history given by the petitioner in arriving at his opinion that petitioner’s arthritis was aggravated by her fall of June 18, 1999.  Dr. Christini could not find that petitioner had pain or swelling of her right knee after the accident, as she testified, since she gave no such complaints to the medical providers, and since there is no evidence of injury in any of the treating records of medical providers who saw and treated the petitioner after the June 18, 1999 accident. 

Secondly, my rejection of Dr. Christini’s opinion is also based upon the fact that there was no torquing of petitioner’s right knee when she fell, and no weight-bearing on the knee at the time of the fall.  Since a traumatically torn meniscus usually occurs under such circumstances, it is more likely than not that the fall of June 18, 1999 was not responsible for the tears in the medial and lateral meniscus of petitioner’s right knee which were revealed by the MRI of September 18, 2000. 

Finally, Dr. Christini’s opinion does not account for, and is inconsistent with the fact that petitioner also landed on her left knee at the time of her accident of June 18, 1999.  In fact, the trauma to the left knee was more severe than to the right since petitioner suffered a bruised or contusion of the left knee as shown in the picture of her left knee, and as verified by the fact that an x-ray of the left knee was taken at the Atlantic City Medical Center right after her fall.  Notwithstanding the impact to the left knee, there was no aggravation of the arthritic condition of the left knee as to require a knee replacement. 

For the reasons above stated, I find that petitioner’s accident of June 18, 1999 did not result in an injury to petitioner’s right knee, and that her need for a right knee replacement is not causally related to her work accident.  Accordingly, the Motion for Medical Treatment and Temporary Disability Benefits is denied.  I request respondent to submit an Order consistent with this decision. 

                                                                        ___________________________________

                                                                        Cosmo A. Giovinazzi, III
                                                                        Judge of Compensation

January 27, 2004