CP# 00-4510 Livingston v. United Airlines
|STATE OF NEW JERSEY
DEPARTMENT OF LABOR
DIVISION OF WORKERS' COMPENSATION
MONMOUTH COUNTY DISTRICT
C.P. # 2000-4510
For the Petitioner: CHARLES J. FARLEY, JR.,
For the Respondent: PIETRAS, SARACINO SMITH, LLP
by: BENJAMIN F. SMITH, Esquire
Mrs. Livingston is a retired flight attendant , now 64 years old, who claims she is totally disabled as a result of a January 23, 1998 in flight tripping accident. She worked for the airline for most of her adult life years with a break for marriage and children. She returned to work in 1984 and worked up to the date of the accident. Other than a brief unsuccessful attempt to return to work, she has never worked again. Her employer recognized the compensability of her accident and provided for medical treatment and wage replacement under the compensation act and under company financed private plans. The employer has not claimed a right to reimbursement from the proceeds of this compensation case..
At pretrial it appeared this case was one for partial permanent disability. At the commencement of the trial, at least when Dr. Krengel testified, the case became one where Mrs. Livingston was seeking total permanent disability. The trial was delayed so the respondent could be afforded the opportunity to prepare to cross examine petitioner’s witnesses for such a claim and to obtain a functional capacity evaluation. There were several other factors which contributed to delay of the trial and completion of this decision.
Petitioner is admittedly disabled as a result of the compensable injuries, the question is how much. Petitioner’s proofs present a claim of permanently totally disability the respondent’s proofs and disability numbers present comparatively minimal impairment. If her permanent disability is less than total, disability would be calculated at a percentage of 600 weeks pursuant to the 1998 sliding scale disability schedule capped at no more than 70% of the pertinent wage. N.J.S.A. 34:15-12(c). If petitioner is permanently totally disabled as a result of this accident, his compensation award shall be what is essentially a life time disability pension payable at 70% of her wage, capped at the maximum rate for 1998, $516 for 450 weeks and continuing thereafter for the remainder of her life subject to N.J.S.A. 34:15-12(b). Total permanent disability benefits are subject to possible adjustment until age 62, on account of Social Security disability benefits. N.J.S.A. 34:15-95.5. If petitioner is awarded permanent partial disability pursuant to N.J.S.A. 34:15-12(c), there is no reduction for Social Security Disability. N.J.S.A. 34:15-95.5.
The burden of proof here, as in all Workers Compensation contested cases, is on the petitioner who must produce the evidence and persuade the trier of fact by a preponderance of the credible evidence of the existence of each element of the claim. Lindquist v. City of Jersey City, 175 N.J. 244, 258-259 (1973); Perez v. Pantasote, Inc., 95 N.J. 105, 118 (1984). The same evidentiary standard applies to the elements of the case on which respondent has the burden of proof. Fiore v. Consolidated Freightways, 140 N.J. 452, 479 (1995).
Petitioner has the burden to prove . . . causal relation [and disability] by a preponderance of the evidence. All that is required is that the claimed conclusion from the offered facts must be a probable or a more probable hypothesis. . . The test is probability rather than a certainty. . . . However, the evidence must be such as to lead a reasonably cautious mind to the given conclusion. ‘The standard is one of reasonable probability; i.e., whether or not the evidence is of sufficient quality to generate a belief that the tendered hypothesis is in all likelihood the truth. It need not have the attribute of certainty, but it must be well founded in reason and logic, ere guess or conjecture is not a substitute for legal proof.’ [Citations omitted.] Laffey v. City of Jersey City, 289 N.J. Super. 292, 303(App. Div. 1996).
Once the worker has met this burden of proof, the burden of proof on alternative factual propositions and legal conclusions which will exonerate or mitigate the employer’s liability shifts to the employer. Lindquist v. City of Jersey City, supra. 175 N.J. 264-265; Gulick v. H.M. Enoch, Inc., 280 N.J. Super. 96, 109 (App. Div. 1995). The employer must carry that same burden of production of evidence and persuasion as to their factual contentions including issues of prior loss of function for a credit or to shift of liability to the Second Injury Fund. Katz v. Township of Howell, 68 N.J. 125, 132 (1975); Gulick v. H.M. Enoch, Inc., 280 N.J. Super. 96, 109 (App. Div. 1995); Abdullah v. S.B. Thomas, Inc., 190 N.J. Super. 26, 29-30 (App. Div. 1983); and N.J.S.A. 34:15-12(d). The obvious intent of this reduction of an employer’s liability is to encourage the employment of the handicapped. See Abdullah v. S.B. Thomas, Inc., supra.; Fiore v. Consolidated Freightways, supra., 140 N.J. at 478-479; Lewicki v. New Jersey Art Foundry, 88 N.J. 75 (1981).
The Workers’ Compensation Act “ is remedial social legislation designed to place the costs of accidental injuries which are work-connected upon employers who may readily provide for them as operating expenses.” Secor v. Penn Service Garage, 19 N.J. 315, 319 (1955). Judges are directed to “liberally appl[y] [its provisions] . . . to protect employees in the event of work-related injuries . . .” Ibid. The Supreme Court has continually reiterated that the Workers' Compensation Act is to be liberally construed in order that its beneficent purposes may be accomplished. This directive for liberal construction of the Act continues. Lindquist v. City of Jersey City, supra.,175 N.J. at 257-258; Fiore v. Consolidated Freightways, 140 N.J. 452, 479 (1995); On the other hand, this directive to construe the act liberally does not extend to ignoring the burden of proof. It does not release petitioner from the burden to persuade the trier of fact that his factual contentions are valid. .Lindquist v. City of Jersey City, supra.,175 N.J. at 258.
The Worker's Compensation statute contains these pertinent definitions of permanent disability:
Disability permanent in quality and partial in character" [is] ... permanent impairment caused by a compensable accident or compensable occupational disease ... based on demonstrable objective medical evidence, which restricts the function of the body or its members or organs; included in the criteria which shall be considered shall be whether there has been a lessening to a material degree of an employee's working ability. ... Injuries such as minor lacerations, minor contusions, minor sprains, and scars which do not constitute significant disfigurement, and occupational diseases of a minor nature such as mild dermatitis and mild bronchitis shall not constitute permanent disability within the meaning of this definition.
"Disability permanent in quality and total in character" [is] ... physical or neuropsychiatric total permanent impairment caused by a compensable accident or occupational disease, where no fundamental or marked improvement in such condition can be reasonably be expected.
Factors other than physical and neuropsychiatric impairments may be considered in the determination of permanent total disability, when such physical and neuropsychiatric impairments constitute at least 75% or higher of total disability. N.J.S.A. 34:15-36.
The 1979 Worker's Compensation Reform Act added these definitions along with the sliding scale for permanent partial disability definitions as a part of the legislative plan to install a pattern of cost containment for permanent disability awards as a balance for significantly increased disability benefits for seriously injured workers. L. 1979 c. 283; Fiore v. Consolidated Freightways, supra., 140 N.J. @ 468; Perez v. Pantasote, Inc., 95 N.J. supra. @ 110-118 ; Saunderlin v E.I. Dupont Co., 102 N.J. 402 at 406-410 (1986). The clear implication of this legislative policy is that the new stringent standards for proof of permanent partial disability be incorporated into the definition of permanent total disability. Otherwise, the definition of permanent total disability lacks meaning and substance.
The trial record to which I applied these legal precepts consisted of the testimony of petitioner, testimony and reports of four forensic examiners, a records and reports of treating physicians, reports of MRI examinations, reports of other medical examiners and a report of a functional capacity evaluation commissioned by the respondent. Both sides submitted written closing arguments. The case was ably tried by competent counsel who argued for every plausible inference from the evidence. After reviewing the transcripts, evidence, my trial notes, and the written summations, I make the following additional findings of fact and conclusions.
On January 23, 1998, Mrs. Livingston, was working on a United Airlines plane as it approached Phoenix, Arizona. She was rushing down the aisle, collecting empty cups, trays, wrappings, etc. from the passengers. She tripped over luggage straps which a passenger had allowed into the aisle. She began to fall, fell onto a seated passenger and in the process wrenched her back, and strained her wrist and shoulder. She felt immediate pain. She took Motrin for the pain. The accident was duly reported. To the flight captain. The pain kept increasing in severity to the point where she could not continue. Instead of working the return trip to Newark, she was placed on sick leave and “deadheaded.” home.
On January 26, 1998 she was examined by J. Khavanian, M.D., an orthopedic surgeon in Holmdel, New Jersey. His findings were that her left wrist was negative for fracture with minimal swelling, sprain of the AC joint of the right shoulder, and an acute lumbar sprain. He ordered an x/ray which was negative for fracture. She was placed on bed rest for 1 week, given a lumbar support, told to apply moist heat to the back, Myofex was prescribed. . Eventually the wrist and shoulder healed with no residual impairment. Substantial back discomfort and radicular pain persisted.
On January 27 she was seen at respondent’s industrial treating facility, Concentra Medical Center by Vincent Chow, M.D. who agreed with Dr. Khavanian’s diagnosis and treatment plan. A regimen of conservative treatment including physical therapy was administered. A March 5, 1998 MRI showed a herniated central L5-S1 disc. On March 3, 1998 she was seen by Dr. Canario who took a history of sleep disturbance, radicular pain into the right leg. The other injuries had healed. Dr. Canario diagnosed a herniation which he said was not significant. None the less, Dr. Canario ordered an epidural block. The symptoms continued so she sought out a chiropractor, Dr. Cronk who treated her for 5 months. An October 23, 1998 EMG was positive for “possible mild chronic S1 radiculopathy as evidenced by the absence of the H-reflex. There was no evidence of denervation.” The last entry means there was no death of nerve tissue. All in all, the EMG was interpreted by Dr. Canario at trial to be an indication of minimal back issues. To the contrary based on petitioner’s expert testimony in this case and the clear content of the report, I find that it confirms her complaints of right sided radicular pain with loss of strength on an intermittent basis but especially when she stressed her back by trying to work. The various treatment modalities tried by the chiropractor did not relieve her pain and discomfort.
She next saw respondent’s examiner, a Dr. Ryan who on December 2, 1998 wrote a prescription for additional physical therapy. He diagnosed her as having a herniated disc but having no disability and pronounced her fit to return to work. These findings are strangely inconsistent. If there was a need for physical therapy, certainly there was impairment, at least of a temporary nature. In June 1999, she tried but could not perform the duties of an airline service attendant. Dr. Ryan’s conclusions of no disability and ability to perform her job are at most optimistic but in fact dead wrong as shown by the testimony of Dr. Canario and Dr. Bender as well as her experts.
Another MRI on June 23, 1999 reported the same HNP. In view of the inadequate or mistaken medical treatment furnished by her employer under the Workers’ Compensation law, on her own, with the advice of her physician, she next went to Dr. Estin, a neurosurgeon located in Long Branch. He considered her symptoms and objective findings and recommended a discogram, an invasive diagnostic procedure usually preceding surgery. He also prescribed a back brace. Mrs. Livingston demurred, she was reluctant to undergo surgery. She did fear potential consequences.
On October 15, 1999, respondent directed that petitioner see a Dr. Pawl. This physician’s report contradicted the MRI interpretation and diagnosis of all the radiologists and treating physicians who had seen this lady to that point. He offered an opinion that she did not have a herniated disc. I wonder if Dr. Pawl’s office let slip a typographical error or grievous mistake. At the same time he wrote that diagnosis, he recommended a myleogram ( an invasive procedure not without risk) and tomograph. He also offered the opinion that Mrs. Livingston’s back issues were not related to her work. He recommended against a discogram, stating the procedure had no value. The employer reacted immediately without regard to the internal contradictions within that report and cut off temporary disability benefits.
Mrs. Livingston on the recommendation of Dr. Khavarian saw a Dr. O’Connor, a neurosurgeon, in Philadelphia, who opined the presence of a herniated disc which he related to the compensable accident. He further opined that surgery offered a 50 % chance of improving her condition. Petitioner filed a motion for medical and temporary benefits. Next in this continuing medical saga, counsel for both parties agreed to refer petitioner to Dr. Gordon Donald., an orthopedic surgeon with offices in Shrewsbury. On September 28, 2000 he reported that years ago there were issues concerning the worth of discograms, but no longer. His medical findings and review of the medical records was in agreement with the earlier opinion of Dr. Estin.
Mrs. Livingston’s pain and discomfort waxes and wains, she has periods of extreme pain and then her condition remits. She expresses fear of undergoing surgery and in fact any invasive procedure. Nevertheless, Her pain became so severe, she eventually consented to a discogram performed by Dr. Estin in January 2002. Her complaints of impairment were objectively confirmed and surgery was recommended, . Once again, her symptoms lessened and she decided against undergoing surgery. She has sought out and obtained acupuncture from Dr. Kwong, a neurologist. She continues to see Dr. Khavarian and Dr. Estin from time to time and has had additional physical therapy. She does take some medication but there has been no other active treatment.
She testified that physical activity increases the persistent back pain. She is never pain free, rather she had bad days and worse days. Lifting, bending twisting her back, any movement or stress on her back causes extreme pain. Any activity increases the severity level of pain. There are times she does not sleep, can not walk, stand, or sit.. She describes the pain and radiation as just unbearable. The pain never goes away completely. Now the pain goes across her low back, down the hip into her right leg down to the foot. Her whole lower right side is weak. This weakness was confirmed by the respondent’s forensic functional capacity test. The language of that test suggests she may be magnifying her symptoms but yet concedes the weakness and limits her to light work.
It is at these moments of intense pain that she considers surgery. A bit later her abiding fear of possible adverse result discourages her from going forward. There are times that pain medication or a heating pad gives some respite. There are times when they do not. She has weakness on the right side with radiation from the back, hip down the right leg. This has altered her life style. She has difficulty dressing, going up and down stairs, or going about the normal activities of maintaining her home. For instance she can load laundry but can not move wet laundry to the dryer because it is too heavy for her. She has similar difficulty in all home making but at times she does cook and reach up to cabinets. .There are times when she can drive or ride for long distances and other times when she can not. She does babysit for a grand child, but the record contains no proofs of heavy lifting. She unsuccessfully tried to volunteer at a hospital gift shop. On two different tries she related she could not continue or handle standing for 4 hour sessions..
The respondent cites the fact that Mrs. Livingston has flown on its airline to the Midwest and to Florida as evidence of minimal functional disability. It asked that petitioner return to the stand for further cross examination on that subject. At first I agreed. On further thought, well before the conclusion of the case, I changed my ruling and asked respondent to present an offer of proof of what it expected to establish with further cross examination . It declined. Later it filed a formal motion seeking the same result, citing my earlier agreement to have her retake the stand. Inadvertently, it omitted reference to my earlier ruling. Once again, I asked for an offer of proof. It presented no credible justification. So I denied the request for the same reasons previously stated. This request has the appearance of a fishing exercise. She was on their aircraft. They booked her flights as a benefit of her long years of employment. Certainly it had records and its own people present at such times and could have presented its own direct proofs. It certainly was acquainted with the facilities and what occurs on its own flights. It did not offer any particulars. It did not attempt to introduce evidence or explain in a satisfactory way the lack of such proof.. One need not take much thought to understand the difference between the activities of an airline flight attendant servicing the passengers and the sedentary status of a passenger. This appears to have been no more than a red herring calculated to prove nothing.
Respondent also defends by citing the fact that Mrs. Livingston continues to do her at home stretching exercise and uses ankle weights to build up her leg muscles. Stretching exercises are a traditional normal physical therapy response to low back injuries which impact on nerves feeding the musculature of lower limbs. How can she be criticized for doing stretching exercises after completion of multiple physical rehabilitation sessions. These exercises plus Advil for her pain and Avista for her sleep enable her to cope.
Mrs. Livingston, at age 62, after being out of work for four years, applied for and received a time service pension from the respondent. She applied for and received Social Security Disability rather than an age related early retirement. The grant of that type of Social Security benefit does yield a higher monthly benefit than an early retirement at age 62. The decision of the Federal Government has no bearing on the decision in this matter because the Social Security Administration applies different standards for determining liability. In addition she has received benefits from respondent’s private disability plan.
Looking at her testimony alone, it appears that this woman is definitely not capable of working as a airline attendant or any similar job. The bending, reaching, pushing, long periods on her feet would bring on substantial pain and instability. It would prevent her from performing her duties on a reliable basis. She would most likely be a safety hazard and unable to assist passengers in the event of an emergency. Respondent’s forensic witnesses did not disagree with the proposition that Mrs. Livingston could no longer work as an airline flight attendant,. This was her life long career. The question is whether the low back pathology on a realistic basis could be said to reasonably foreclose full time employment. There is no requirement that she be bed ridden or to use another term , a basket case.
Dr. Krengel, petitioner’s orthopedic evaluator examined her twice, authored 3 reports and testified on 2 separate occasions. The first examination was on June 29, 2000. He had the benefit of a detailed history and medical records to that date. His examination contained objective positive findings which were corroborative of her subjective findings and the medical treatment record. He reported flattening of the lumbar lordotic curve, bilateral lumbar parvertebral muscles, forward bending was limited to 45 degrees, lumbar extension was severely limited, side bending limited to 10 degrees, and difficulty with heel and toe stands, difficulty recovering from squats, straight leg raising was limited to 45 degree on the right and 60 degree on the left. He found tenderness of the right sciatic notch and of the sciatic nerve in the right thigh. He also reported that the Patrick and Laseuge sign’s were positive and petitioner’s deep tendon reflexes were reduced in intensity at both ankles. He also reported that sensory examination revealed decreased sensitivity of distribution in the right leg. He opined a disability of 37 ½ % for the orthopedic consequences of a central HNP at L5-S1, lumbar and sacroiliac sprains, and bilateral sciatic reference. He recommended a neuropsychiatric evaluation and asked to see the patient again.
On November 13, 20011, Dr. Krengel reexamined Mrs. Livingston, reviewed the interim medical treatment history. He did make additional objective findings: Her forward bending was now limited to 30 degrees. Extension of the lumbar spine was now practically nonexistent. She is now unable to squat. She now walks with a widened base, an antalgic gait, a limp favoring the left leg. Straight leg raising is now more limited, 30 degrees on the left and 45 degrees on the right. The right thigh now measures 18 inches, the left 17 inches. Previously they were equal. He offered an opinion that the orthopedic disability had increased to 55 percent permanent partial.
On May 7, 2002, Dr. Krengel prepared a third report after reviewing the Bayshore Hospital record of the discogram performed by Dr. Meltzer on January 5, 2002. The findings were strongly positive for a disc herniation at L5-S1 and probable at the two levels above. He amended his earlier report to increase permanent partial disability to 60%. At his first testimony he noted that surgery had been recommended and said he would reconsider if there was spinal surgery. At the time of his initial testimony he reviewed the neurological2 report of Dr. Eisenstein and Dr. Metzger’s report of the discogram and testified that the overall disability opinion was total permanent. Based on reasonable medical probability he explained why the positive findings and disability were caused by the compensable injury. His findings and opinions were well grounded in the imaging tests, discogram, and Mrs. Livingston’s progress through treatment over the years since the accident. He also gave a reasoned explanation that the absence of positive findings before the compensable accident meant there was no basis to attribute disability to any ongoing degenerative process or to the slip and fall she experienced at home approximately 10 days before the compensable accident. To avoid surprise I carried the case so the parties could prepare for a total disability case. When Dr. Krengel returned to the stand, a year later, he explained that the functional capacity evaluation by Kinematic Consultants did not change his opinion of total disability.
Petitioner presented the testimony of Lawrence Eisenstein, M.D., who is board certified in neurology and psychiatry. He conducted a physical neurological exam and a psychiatric examination. His objective findings on examination plus his review of the treating record were essentially in accord with the limitations found by Dr. Krengel all of which he attributed to the consequences of the compensable injury... He offered a finding of a neurological impairment of 35 % as a result of the nerve damage flowing from the HNP at L5-S1. The objective limitations he found are not inconsistent with the treating record, the physical limitations observed by Kinematic Consultants, or by Dr. Eisenberg, respondent’s neurologist. The doctor opined the presence of a psychiatric disability of 25 %, anxiety and depression as a result of the chronic pain which has persisted for 4 years. He observed that her self image had been harmed by her physical state. She has tried to keep active but has not been able. Her ability to travel on a sporadic basis does not detract from her physical limitations. The doctor attributed her weight gain to the inactivity and loss of self image which I find seems to feed on itself. She tries to loose weight. The more she fails, the worse she sees herself. The doctor agreed that her husband’s cardiac illness was another tense situation adding to her situation, still, he was not shaken from his opinion that adding together the findings of Dr. Krengel to his, Mrs. Livingston’s overall disability was total.
Arthur Canario, M.D. a board certified orthopedic surgeon with offices at Newark Beth Israel, treated Mrs. Livingston approximately 6 weeks after the accident. On March 2, 1998, he diagnosed her as having a sciatica.. He found no neurologic signs, but said she does have pain that radiates. I do not understand this difference, because on one hand he says there are neurological manifestations of an impairment and then appears to deny it. He recommended epidural injections which were administered but did not relieve her symptoms. Dr. Canario ordered an MRI, prescribed physical therapy and discharged her from treatment. She sought treatment from other physicians. She received 6 epidurals which provided no permanent relief.
On October 1, 2001, Dr. Canario reexamined her at the request of respondent. Although Mrs. Livingston still complained of right sided radicular pain which had been confirmed by EMG, he backed off his prior opinion of sciatica, disagreed with the radiologist and interpreted the MRI as negative for a HNP. Dr. Canario opined a disability of 5 % and suggested she was able to work without suggesting any limitations. He next examined her on July 15, 2002, he reviewed the discogram results which showed positive results, again characterized her medical problem as essentially a degenerative one disabling to the extent of 5 %..
On May 3, 2003, he examined her for the third time, his findings on clinical examination were essentially the same as his previous examinations. He reviewed the prior history and the report of Dr. Eisenberg of Essex Neurological. At this point, Dr. Canario recognized that petitioner might have radiculopathy as reported on the 1998 EMG as mild and chronic. He commented on the MRI finding by stating the lesion, the HNP was not shown to be a compressive lesion. He opined that her problem was a consequence of preexisting degenerative disease in her spine which may have been exacerbated by the compensable injury. He modified his prior opinion of disability, stating that his opinion of a 5 % disability added to Eisenberg’s opinion of 5 % was adequate to compensate petitioner. .The inconsistencies and minimalist appraisal of disability, I find render his opinion of a 5% disability so wide of the mark to have no credibility. Dr. Canario is in disagreement with the written reports, office records and imaging and test results reported by the other treating physicians.. While he was a treating physician for a brief moment at one time, he functioned in this case as forensic evaluator of disability and is not entitled to the extra weight accorded to treating physicians who render an opinion on cause and nature of disability. See Bober v. Independent Plating Corp., 28 N.J. 160, 167 (1958); Bird v. Somerset Hills Country Club, 309 N.J. Super. 517, 522-523 ( App. Div. 1998) ceritif. denied 154 N.J. 609 (1998); DeVito v. Mullen's Roofing Co., 72 N.J. Super. 233, 236 (App. Div. 1962); & Celeste v. Progressive Silk Finishing Co., 72 N.J. Super. 125, 143 (App. Div. 1972). In that regard the overall thrust of the treating physician records is that Mrs. Livingston is substantially disabled by her back injury.
Dr. Eisenberg is board certified in neurology and psychiatry. He examined Mrs. Livingston at the request of respondent on July 9, 2002. He detailed objective signs of neurological damage as a consequence of petitioner’s back pathology at L5-S1 and a causally related depressive state. On physical exam he found a mild restriction on straight leg raising on the right, tenderness in the right sciatic notch, decreased reaction to vibration over the right toes, and tenderness in the parvertebral muscles also on the right side. He opined a disability of 5% for the neurological pathology and 1 % for the psychiatric. The latter he defined as frustration from a weight probably attributable to her physical injury. He did not attribute any psychiatric impairment to a reaction to her husband’s cardiac issues. He opined she could do light work, lifting no more than 20 pounds and which did not require prolonged standing, sitting or repetitive movements. Considering the time lapse, he opined that progressive degenerative disc disease was responsible for her disability at the date of his examination. What he did not say is just as important. He did not state that the accident was not a an initiating cause of the degeneration. He only offered the opinion that considering the record and the time lapse, there was disk degeneration which had brought her to that point. What I find troubling his reliance on AMA standards for disability, which have no relation to the evaluation of disability under the New Jersey Workers’ Compensation Law. The AMA guidelines do not even allow for a determination of 100% unless the person is completely non-mobile. Furthermore his disability number does not take into account her inability to perform at her lifelong occupation. As a consequence, I can not accord much weight to his disability number.
Respondent points to a recent functional capacity evaluation as an indication of minor disability. To the contrary, I find it to be more corroborative of substantial disability in a realistic sense. The report commissioned by the employer recites that Mrs. Livingston could perform light duty if the employer allowed frequent breaks of 10 minutes during sustained walking or standing of less than one and a half hours. The report contained a confirmation of her antalgic gait and inability to perform her previous job as airline attendant and stated she was only suited for light duty. The report did not define what full time light duty might be. The testers opined that occasionally she could lift up to 12 to 20 pounds more frequently 6 to 10 pounds, and no more than 3 pounds constantly. I saw this lady during the trial and observed her non verbal speech while on the witness stand. She was unquestionably uncomfortable sitting in the witness chair and moved about frequently. All in all, as stated above that report indicates to me that she has very little if any capacity to work on a regular basis. Considering her inability to stand up for a 4 hour day as a hospital gift shop volunteer, I find it unlikely that she could even show up and remain for work 40 hours a week at any job. I should add, her age, Social Security and pension status has no input into that determination.
Next, I must consider whether respondent’s liability should be reduced by reason of any prior disability. If she is partially disabled, it seeks credit under N.J.S.A. 34:15-12(d). If she is totally disabled, it seeks to transfer liability to the Second Injury Fund. N.J.S.A. 34:15-95. However there was no proof of prior loss of function. Considering the length of Mrs. Livingston’s employment with respondent, a reasonable person would believe that if there was any indication of impairment or time loss of any degree, the employer would have such knowledge. One would expect some indication of time loss or other proofs from the personnel file or from management or co-workers who had observed her at work. The lack of such proof corroborates her testimony on that issue.
Respondent points to an incident at Mrs. Livingston’s home some 10 days before the compensable injury when she sustained a wrist injury. Certainly the medical treatment records were available. She returned to work without impairment. Both her evidence and the respondent’s proofs showed no disability, she healed and got better. A cynic might say that is impossible or improbable, but that is true life, people do heal. Respondent showed no indicia of permanent injury. It presented no reliable or believable evidence that the wrist injury caused any time loss from work or physical impairment. . As a consequence there is no acceptable inference of the presence of permanent disability caused by that incident.
Respondent’s experts opine and respondent argues that because following the accident she was diagnosed to have degenerative disease in her back, that this is the cause of her permanent impairment. I rejected that inference.. Further respondent claims predisposition or susceptibility to damage from physical deterioration or subsequent trauma is evidence of prior impairment. This alone, is not prior loss of function. We are all individuals with different physical structures. Some of us are more prone to disability following a trauma than others. The law provides for reduction of an employer’s liability only when there is prior loss of function or prior disability. That is the underlying thesis of the section 12(d) and of the Second Injury Fund. Mrs. Livingston was 60 years of age when she fell, naturally her physical structure was different than a younger person. The presence of degenerative changes is no surprise. The law required proofs that this was the cause of prior permanent physical impairment. This is not what the record showed. There was no prior loss of physical function due to these changes. There was no change in ability to work or pursue the normal pursuits of life. I find there was no prior permanent partial disability as defined by N.J.S.A. 34:15-36. There can be no “Abdullah” credit under N.J.S.A. 34:15-12 (d ). There can be no prior permanent partial disability as is required by N.J.S.A. 34:15-95. Lewicki v. New Jersey Art Foundry, supra. The respondent is liable for the full measure of disability.
For the reasons described above, I have concluded that petitioner’s overall physical disability, orthopedic and neurological in nature is total and permanent, there is a psychiatric impairment secondary to that physical disability, but that is relatively mild and adds little to the overall picture. Mrs. Livingston’s weekly wage was stipulated by the parties to be $840.96, entitling her to the maximum compensation rate for 1998 accidents. From the record it appears that she was paid a combination of wage replacements since the accident consisting of temporary total disability, full wages, and company funded disability benefits until she retired on her 62nd birthday, January 31, 2002. Therefore total permanent disability shall commence on February 1, 2002. The judgment shall be for 450 weeks of permanent disability at the stipulated maximum rate for 1998, $516 per week, a total of $232,200 and continuing thereafter subject to the terms of N.J.S.A. 34:15-12 (b). Because Mrs. Livingston was 62, there will be no reduction in her award for Social Security Disability. See N.J.S.A. 34:15-95.2. The Social Security Administration may reduce her benefits on account of her Workers’ Compensation periodic benefits from age 62 to age 65. See 42 U.S.C.A. 424a.
Respondent, on request, shall be responsible to provide such reasonable and necessary medical care, prescriptions, and other things as needed to relieve the effects of the compensable injury. The following fees and allowances are made:
Floyd Krengel, D.O. for his 3 examinations and testimony, $1,050, payable one-half each party, $200 of this allowance shall be reimbursed to Mr. Farley.
Lawrence Eisenstein, M.D., for his examination, 2 reports, and testimony, $700, payable one- half each party. $650 shall be reimbursed to Mr. Farley, and the balance of $50 paid to the doctor.
Mr. Farley shall be reimbursed $176 for the cost of a trial transcript,
John F. Trainor, Inc. shall be paid a stenographic fee by the respondent of $450.
Charles J. Farley, Jr., P.A. shall be allowed an attorney’s fee of $40,000, payable $25,000 by respondent and $15,000 by petitioner. In setting the fee, I considered the skill and effort which went into assembling and presenting the medical information to require the judgment of total disability to petitioner. Mr. Farley presented this complex collection of medical data in a coherent manner which dictated this award. He persevered where many others might have persuaded the petitioner to settle for a good deal less. There is a feeling abroad among many who evaluate Worker’s Compensation cases, that disability for back injuries should follow a preconceived schedule of partial disability and that when there has been no surgery, the judgment should be minimal as suggested by respondent’s experts. Mr. Farley, a certified civil trial attorney was alert to the meaning of developments which required a shift in gears to prosecute this case for total disability. The difference to his client is more than $150,000 payable over the period of the award. .
Mr. Farley is directed to prepare a formal judgment and serve a copy on the respondent under the 10 day rule. Both parties are alerted to retrieve their exhibits from my office within the next 20 days. The practice in the Division of Workers’ Compensation is to retain only forensic physician reports.
Dated: August 23, 2004 Lawrence G. Moncher
Lawrence G. Moncher, J.W.C.