DECISION ON MOTION
FOR MEDICAL AND TEMPORARY BENEFITS

RUTHIE LOUGHNEY, Petitioner
vs.
A. W. MEYERS, Respondent

BEFORE:
LAWRENCE G. MONCHER
Judge of Compensation

APPEARANCES:

D. GAYLE LOFTIS, Esq.
For the Petitioner

HEIN, SMITH, BEREZIN, MALOOF, DAVIDSON & JACOBS, L.L.C
by: SIDNEY BEREZIN, Esq.
For the Respondent

Ms. Loughney, a 41 year old former receptionist, claims she has been unable to work and continues to be in need of medical care as a consequence of a fall at work. On June 26, 1995, towards the end of the work day, she tripped on some scattered debris and fell 3 or 4 steps to the floor below. Her left side hit a large tool box and then a hard floor. She claimed injury to her left knee, left hip, low back, and her left shoulder. The employer and its insurer conceded the occurrence of the accident and provided some medical care. It has never paid temporary disability, contending none was due.

This trial concerns the nature and extent of the injuries, the need for treatment past and present, and identification of disability both temporary and permanent. There is also a question of causal connection of an April 25, 1998 fall and ankle fracture to the residuals of the compensable 1994 injury; i.e., did petitioner=s left knee buckle and cause her to fall or did she fall because of other reasons. If there is no need for further medical treatment, permanent partial disability if present can be determined. If there is a need for further medical care, then evaluation of some or all of her conditions must await that medical care. There are any number of possible resolutions of this trial dependent on my finding of facts, so it is time to turn to the legal standards for determination of this case.

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. Perez v. Pantasote, Inc., 95 N.J. 105, 118 (1984). The same evidential standard applies to the factual and legal claims on which respondent has the burden of proof. Fiore v. Consolidated Freightways, 140 N.J. 452, 479 (1995).

For petitioner to prevail, [s]he must establish a link between ... [the] disease and occupational conditions. Petitioner has the burden to prove this causal relation 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, mere 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).

Where respondent urges an alternative factual proposition or legal conclusion which will exonerate it or mitigate its liability, it, and not the petitioner, bears the burden of proof and persuasion on that proposition. Cf. Fiore v. Consolidated Freightways, supra; Gulick v. H.M. Enoch, Inc., 280 N.J. Super. 96, 109 (App. Div. 1995). Here both parties rely on the testimony of treating physicians. Petitioner relied on Dr. Eyerman, her long term chiropractic physician, respondent relied on the testimony of Dr. Hutter, the orthopedic surgeon it selected to take over treatment from March 1996 to July 1996. Our courts have consistently held that a treating physician in a Workers' Compensation case is in a better position to express an opinion as to cause and effect than one making an examination in order to give expert medical testimony. Bober v. Independent Plating Corp., 28 N.J. 160, 167 (1958); 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. 1962). Still the factual basis of the treating physician must be presented and explained. The treating physician=s conclusions must be shown to be justified by the facts of the case. If the opinion of the treating physician were accepted without question, then there would be no need for the common practice of obtaining a second opinion or consultation with specialists.

Manifestly, these opposing medical opinions cannot be considered apart from the factual framework of the entire case. Their probative force must be evaluated by a number of factors. In the process of evaluation, a criterion of recognized significance is the greater opportunity of a treating physician, as compared with a doctor who conducts a single examination in order to become an expert medical witness, to know, understand, and decide upon the producing cause of the patient=s condition. Fusco v. Cambridge Piece Dyeing Corp., 135 N.J.L. 160, 162, 167 (E. & A. 1947).

I have carefully scrutinized the evidence of the physicians, considered their respective interest in the outcome and the nature of their retention by the party who produced their evidence and looked to the objective non-party generated evidence, such as hospital records and imaging reports. I place more reliance on the medical history generated at time of crises such as the Jersey City Medical Center (Liberty Medical System) emergency and clinic records and the Christ Hospital record than the history contained in Dr. Eyerman or Dr. Hutter=s records.

The pertinent provision of the Workers' Compensation statute which speaks to the provision of medical treatment requires that an

employer shall furnish to the injured worker such medical, surgical, and other treatment, and hospital service 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] Division of Workers' Compensation, after ... giving the employer an opportunity to be heard, shall determine ... [whether] such ... treatment is necessary. (emphasis added) N.J.S.A. 34: 15-15.

The employer=s statutory duty to provide adequate and proper medical treatment is absolute. Benson v. Coca Cola Co., 120 N.J. Super. 60, 66 (App. Div. 1972). Under the New Jersey Workers= Compensation law the respondent ordinarily has the power to control treatment and select the medical providers. Benson, supra. This is essentially a managed care system, except the patient is not left to dispute resolution by a system controlled by the insurer. The Division of Worker=s Compensation hears disputes to determine if the insurer or employer is wrong in its treatment decision or is acting arbitrary. N.J.S.A. 34:15-15. Here respondent recognized the compensability of the injury and provided medical treatment benefits from the date of the accident until July 1996. Compensation for temporary disability must be paid by the employer when an employee is unable to work and has no wages because of incapacity due to a compensable injury. The payments continue until such time as the employee is able to regularly resume work or has been as restored to the maximum physical function permitted by the permanent character of the injury. N.J.S.A. 34:15-38; Harbatuk v. S & S Furniture Systems Insulation, 211 N.J. Super. 614 at 623-628 (App. Div. 1986); Monaco v. Albert Mound Inc., 17 N.J. Super. 425 (App. Div. 1952).

Petitioner was the sole lay witness. The record includes the testimony and treatment records of Dr. Eyerman and Dr. Hutter; and the examinations and the opinions of Arthur Tiger, M.D., for petitioner and Arthur Canario, M.D. for respondent -- both forensic physicians who are board certified orthopedic surgeons. Other documentary evidence includes the Christ Hospital record for August 1991; State TDB records; physical therapy records and reports to Dr. Hutter; a March 29, 1996 report of an MRI of petitioner=s left knee; Jersey City Medical Center records of treatment in April and May 1998; and a May 8, 1998 report of an MRI of petitioner=s low back.

Both parties were represented by capable counsel who ably advocated for their respective clients. I have carefully reviewed the cogent written summations. I then reread the transcripts more than once. I am acutely aware of the importance of the case to the parties. Petitioner has not been employed since November 1995. She is seriously disabled. There is a state TDB lien of $6,033.53. Ms. Loughney has incurred a debt of at least $7,815 to Dr. Eyerman.

Petitioner was a charity patient at Jersey City Medical Center. As a consequence of that status, she has received no bills from the practitioners seeing her under the auspices of the hospital, its affiliates, clinics, and cooperating physicians and medical providers. Causal connection of the April 1996 injury has been denied by the respondent , so, if there is liability, respondent must pay those who provided the care at the reasonable value of the care. N.J.S.A. 34:15-15.1. It would be outrageous to utilize public and charity funds where it is the responsibility of the employer to pay.

If there is no liability for certain treatment -- particularly if certain parts of her treatment are not a consequence of this injury but are merely palliative with no valid purpose of alleviating compensable injuries -- it would be wrong to impose those costs on the employer or its insurance company. It must be kept in mind that workers= compensation is not intended to take the place of a general policy of medical insurance. The Workers= Compensation Law

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. [Judges are directed to] liberally appl[y] [its provisions] . . . to protect employees in the event of work-related injuries . . . Secor v. Penn Service Garage, 19 N.J. 315, 319 (1955).

The Supreme Court has frequently reiterated that the Workers' Compensation Act is to be liberally construed in order that its beneficent purposes may be accomplished. Fiore v. Consolidated Freightways, 140 N.J. at 465. With these precepts in mind, I arrive at the following findings and conclusions.

Petitioner=s personal medical history is an integral part of sorting out the issues. She is 5 foot 6 inches tall and at all pertinent times obese. Her weight is reported at 256 to 260 pounds. Medical records describe her as having significant weight in the lower half of her body. Those personal factors coupled with her injury history certainly permit the inference and suspicion that she is a fragile individual given to the unfortunate propensity to fall with significant consequences. That does not excuse the respondent from liability for the consequences of the compensation injuries and does not make her an outlaw who can be injured with impunity from liability.

Ms. Loughney=s work experience includes a service as a public safety dispatcher for a Hudson county municipality and as a receptionist clerical person for respondent. Her date of birth is January 22, 1958. She is presently unmarried and the mother of an adult daughter. She has not worked since November 1995. She did receive 26 weeks of state temporary disability benefits from November 28, 1995 to May 26, 1996 for a sprain of her thoracic and lumbar spine with left sided lumbar radiculopathy. She was also treated in November and December for a very short time for bronchitis. She has an appeal of a social security disability claim pending. She now relies on family members for housing and support

Twenty years earlier, at age 18, Ms. Loughney, a resident of North Bergen, sustained a low back injury with disc involvement, probably disc bulges. Apparently the problem was quiescent until approximately 1988 through 1991. About that time, she presented symptoms suggestive of phlebitis in her right leg. She was hospitalized in 1991 at Christ Hospital, Jersey City because of swelling of her right leg. During this hospitalization she presented symptoms of low back pain. A CAT scan taken during this hospitalization was interpreted as degenerative disc disease with central disc herniations at the L4-5 & L5-S1 levels, further testing confirmed right sided radiculopathy. The phlebitis was determined to be superficial. Treatment for that condition ceased and petitioner received lumbar traction. She was eventually discharged for follow up treatment in the community. On September 12, 1991, Vera Nowakiwskyj, M.D., petitioner=s family physician, wrote a prescription for physical therapy 3 times a week for a diagnosis of Ll4-5 & L5-S1 HNP with radiculopathy. She came under the care of a chiropractic physician who is no longer in practice..

In 1992, Ms. Loughney became a patient of Edmund Eyerman, D.C. She remains his patient for spinal therapy down to the time of his testimony. Dr. Eyerman=s records show consistent treatment to petitioner=s thoracic and lumbar spine from the time he undertook her treatment down to the time of his testimony. Early on, his records report spasm throughout the lumbar spine with some cervical involvement. The intake history sheet shows complaints to all limbs more so to the right leg than to the other extremities. Before the happening of the compensable accident, Dr. Eyerman did report to major medical insurers that petitioner had bilateral radicular findings. On each visit he applied galvanic therapy (electric stimulation) followed by chiropractic adjustment of the spine. The frequency of his treatment varied from monthly, weekly, to 3 times a week. It appears that a good deal of his treatment was billed to petitioner=s major medical insurer Guardian Life Insurance Co.

On October 5, 1992 and June 25, 1992, Dr. Eyerman billed Guardian Life treatment on a diagnosis acute lumbar syndrome, bilateral lumbar radiculopathy. [emphasis added]. On March 26, 1993, Dr. Eyerman provided Ms. Loughney with a typed note that he had been treating her for Abilateral lumbar radiculopathy,@ possible Adiscopathy@ and that she had been unable to work, she could return to work on March 28, 1993. [emphasis added]. In an optimistic vein he reported to her major medical insurer that he did not expect the condition to be permanent. Treatment continued, his prognosis or prophesy was not to be a valid prediction of the future.

On August 2, 1993, Dr. Eyerman provided a report to petitioner=s employer that he was treating Ms. Loughney for Aacute lumbar syndrome, bilateral lumbar radiculopathy, severe migraine headaches@ and that she was unable to work from July 11, 1993 to August 3, 1993. [emphasis added]. During March 1995, Ms. Loughney slipped on a mat at home, falling and once again injuring her low back. She was absent from work for several weeks and was able to return to work on April 17, 1995. Earlier, she had injured her back or at least stirred up preexisting pathology when bending over to pick up a case of soda. The record is not clear, but it appears likely she remained on her employers payroll for these absence. Dr. Eyerman continued treatment for what he described in a note to the employer as a Asevere injury to her neck and low back.@ with Aacute lumbar syndrome, bilateral lumbar radiculopathy, acute cervical syndrome with migraine headache .@ [emphasis added]. All of this preceded the compensable injury of June 26, 1995.

During this lengthy treatment no x/rays were taken because Ms. Loughney declined them. Interestingly, despite the persistence of her complaints and obvious discomfort, there were no electromyography, nerve conduction studies nor any other imaging or testing for nerve damage or consultation during all those years until well after the June 26, 1995 compensable accident. She had major medical insurance, so I do not comprehend its absence. The first imaging, an MRI, or testing of her spine since the 1991 hospitalization occurs in 1998 after petitioner fractures her ankle. More will be said of this latter.

Dr. Eyerman=s progress notes reflect some improvement in Ms. Loughney=s symptoms in April and May 1995 and on May 19, 1995, he reports the patient has improved, was given instructions for home exercises, and was discharged. Yet there appears to be an overlap or inconsistency between the doctor=s records and billing records. His office may have billed Guardian for a re-examination and therapy on June 28, 1995, June 30, 1995 and a discharge date of July 5, 1995. He did bill General Accident (the workers= compensation insurer) for two of these dates. There is certainly some confusion between his patient progress notes and his billings to insurance companies on this subject for these 3 dates. I have no indication he collected from both insurance companies for the same dates of treatment.

I note that the May 19 discharge treatment was the last entry on the bottom of a page and the last 3 dates appear on the top of a new page. On a Guardian Life Insurance report form dated October 9, 1995, the doctor reported that he discharged the patient on July 5, 1995 from treatment for lumbar spasm with a good prognosis and no permanency. On a June 28, 1995 examination form in Dr. Eyerman=s record he reports A low back acute pain & stiffness - reinjury to previous sprain.@ I reviewed these records in detail and dwell upon them in this decision because the date sequence and state of the doctor=s records certainly raised a suspicion of the possibility of double billing. It may be that one or the other of the insurance companies may want to discuss this with the doctor=s office.

This chiropractic physician does not impress me as a person who is familiar with court process and testimony. I note his charges for services were reasonable, there was no overcharging or referral to a plethora of consultants and pain control methodologies. I do have some experience and expertise as a compensation judge which I feel does qualify me to ferret out a claim puffed up by overcharging, overbilling, and excessive use of consultants. None of that occurred here. This doctor is a practitioner who impressed me as a person who believes he is providing supportive chiropractic treatment which helps people. He is not sophisticated and maintains minimal records without up to date computerized systems. There is confusion in his records and billings. This does not enhance his credibility, but I will not hold this against this petitioner.

The petitioner is an unlettered person and does not appear to be a claim wise individual. I have no indication or belief that she has, or tried to, manipulate the system. She is not that sophisticated. She has told essentially the same story from beginning to end, even in those instances when her explanations obviously did not advance her litigation interests. Put another way, I found her to be an honest individual. Her testimony contained some anatomically unusual complaints but was basically believable. At least she seemed to explain the events and her problems as best as she could.

With her history of significant prior back impairment with chiropractic treatment for three years and frequent lost time from work, one can easily conclude that Ms. Loughney had a fragile back which was susceptible to aggravation by subsequent trauma, such as the June 26, 1995 accident. With her history of injury and treatment any trauma was likely to warrant medical attention and some absence from work. Her prior insurance claims were submitted to her medical insurer for payment. The record documents serious prior problems but contains no evidence she sought to profit from it. She did not hide her prior history. She returned to the doctor who had treated her for several years. She told every doctor and every physical therapist of her past and ongoing back problems. For these and other reasons, I do not buy respondent=s argument that she withheld information of a back injury from Dr. Hutter and Dr. Canario until some later date. I weighed all of the facts including her immediate report of the accident to the employer and complaints to the Dr. Eyerman. I concluded she did injure her low back on June 26, 1995.

A comparison of the 1991 hospital record, the only truly independent and objective definition of her prior back pathology to the 1998 MRI establishes that there was a significant objectively measured material deterioration of lumbar spine. Was this normal deterioration that would have happened without any further trauma? One can speculate to that end, but there is no believable credible proof of that. In all likelihood, the 1991 CAT scan was either a false positive for disc herniation or evidence of disc degeneration in its earliest stages at 2 levels. She now has degenerative disc disease. This is a dewatering process or dessication of the discs in her lumbar spine which can be set off or aggravated by trauma. Here it appears the process was manifested and worsened by a long series of traumas and is now present at 3 levels. The following facts demonstrate that the compensable accident did add to her back syndrome.

On June 26, 1995, Ms. Loughney, was at work on her employer=s premises. Towards the end of the day, she was walking towards the time clock. She tripped over some garbage which caused her to fall down three or four steps to a hard concrete or wood floor, on the way down her body struck a tool box. The dynamics of the fall caused injury to the left side of her body including her left shoulder, left hip, low back and left knee. She promptly reported her injury to her employer and told them of her returning to her chiropractic physician. The respondent produced no witness or evidence to contradict her. There was no showing that Mr. or Ms. Melnick, the owners of her employer, were unavailable. I conclude that the absence of such critical evidence means the employer would confirm her testimony. She continued working and lost no time for work.

The respondent authorized or ratified the authorization of treatment by petitioner=s long term chiropractic physician, Dr. Eyerman. After minor adjustments, not challenged here, it paid his bill for treatment through February 21, 1966. Dr. Eyerman observed and recorded Ms. Loughney=s complaints of persistent pain in her left knee. He also observed what he called left sided radiculopathy, which perhaps masked her complaints to her left knee. As a part of his whole body therapy, he did massage her left leg. Not exactly the best therapy available for knee injuries, but nonetheless, this is what was done. One can speculate that her problems might have been diagnosed with more precision if she had gone to an emergency room for a full orthopedic work-up and prompt imaging of her left knee. She continued working with significant back and knee complaints. She had a sedentary job with no lifting or bending so work effort was possible.

Petitioner experienced continual popping or grinding in her left knee. Crepitus, a grinding of bone on bone was latter detected by Dr. Hutter, his physical therapist and Dr. Tiger. The physical therapist selected by respondent detected pathology and significant symptoms in her left knee. Dr. Hutter disagreed, particularly after he received a negative MRI report. For better or worse, until she was sent to Dr. Hutter in March 1996, Ms. Loughney did not seek treatment from medical providers, she was satisfied with her chiropractor. The respondent did not send Ms. Loughney to an orthopedist until March 1996 when it revoked Dr. Eyerman=s authorization to treat and sent Ms. Loughney to Dr. Hutter.

On November 28, 1995, Ms. Loughney was sick, she told her employer she had bronchitis and was unable to work. On December 1, 1995, her employer notified her orally and in writing that because of excessive absences her employment was terminated. At this time she was being treated by her family physician, Dr. Nowakiwskyj, for the bronchitis and by Dr. Eyerman. She had back pain, but there was no change in her symptoms since the summer. True, Dr. Eyerman continued to treat, but, I find no positive curative consequence of his treatment. At some unknown point between June 28, 1995 and November 1995, I conclude his treatment was no longer giving any additional relief. It did not improve or cure her spinal problems. It was not a factor which alleviated her condition in the sense that she was able to work or go about her everyday affairs. Cf. Hanrahan vs. Township of Sparta, 284 N.J. Super. 327 (App. Div. 1995) cert. denied 143 N.J. 326 (1996). I am sure the chiropractic treatment gave her some sense of temporary relief, she was on a program which failed to provide relief much beyond the moment. I find no basis to find that it alleviated her condition. This is not what the Hanrahan court meant when it spoke of supportive treatment. There was no improvement in her physical status or symptoms. The benefit of this treatment had been spent by the winter of 1995-1996. The respondent chose to authorize it and pay for it, so there is no need to make an award for chiropractic treatment up to the end of February 1996. From the point Dr. Hutter got into the case, the chiropractic treatment was redundant and then unnecessary. The claim for Dr. Eyerman=s bill is denied.

I am aware of Dr. Eyerman=s opinion and certification to the state TDB program that Ms. Loughney could not work because of her back problem. That state agency accepted his short cryptic conclusion as they must in the administration of their program. I am sure he believed that when he heard Ms. Loughney=s complaints that she could not work. The TDB process does not provide for cross-examination or detailed exploration of the facts as occurred in this trial unless the employer raises the issue. Here such issues is are decided in the crucible of trial with close scrutiny of the pertinent treating records and close cross examination of all witnesses plus review of the 1998 MRI of her back.

I find the very significant prior pathology was worsened and pathology increased as a consequence of the June 1995 accident, but it had stabilized by November 1995. Dr. Eyerman=s opinion that Ms. Loughney=s back or left knee caused her to miss work is lacking in medical credibility. I weigh more heavily, the conclusions of Dr. Hutter on his initial examination together with the findings of Dr. Tiger, when he examined petitioner on April 9, 1998, 2 years later. So I find petitioner had a chronic low back sprain, evidenced by clinical findings enumerated by Dr. Tiger including muscle hardness in this obese woman. From November 1995 to April 1996, petitioner presented no acute symptoms of her lumbar spine which could be lessened with treatment. She had a chronic problem, which I find was pushed along a path of further deterioration by the June 26, 1995 accident. She had a permanent partial disability, but the low back syndrome did not prevent her from working. In the lexicon of workers= compensation she had a prior substantial loss of function made worse by this accident. At this point it is premature to measure the back disability, the condition may yet worsen because of gait changes caused by the April 29, 1998 fall or by the fall itself. If the parties request a measurement of the prior loss of function I will provide it. At this time I prefer to postpone that until the ultimate result can be measured.

For all of the foregoing reasons, I must deny the claim for temporary disability and medical treatment as it relates to her back injury for periods prior to April 29, 1998. There is no factual or medical basis to consider temporary disability for her shoulder or hip contusion. The injury to her left knee receives separate consideration below.

Ms. Loughney=s left knee was injured in this accident and unfortunately did not receive full diagnosis or treatment until much latter. There was no prior impairment or disease of her left knee. The trial record corroborates complaints to that part of her body following the accident. The knee injury was reported in her claim petition and was investigated, an MRI was ordered and physical therapy prescribed for it by Dr. Hutter. The March 29, 1996 MRI was negative for damage to her knee. There is no other trauma to her left lower extremity before or after the compensable June 1995 accident until the April 1998 fall and fracture of her left ankle.

Both Dr. Hutter and the physical therapist who attended to Ms. Loughney=s knee reported crepitus, a grinding noise in her left knee. She complained of instability. The therapist reported an antalgic gait, petitioner was favoring her left leg when she walked. I note the therapist=s description paints a far more serious picture than Dr. Hutter. At the commencement of Dr. Hutter=s treatment on March 19, 1995, there were significant clinical signs of a need to condition petitioner and work on her left knee. The treatment continued with therapy until discharged by Dr. Hutter on July 9, 1996. I infer that attendance at regular employment was inconsistent with the treatment plan. I find she was medically unsuitable for work while the respondent was furnishing this active rigorous physical therapy. If she was capable of employment during this period, the record does not so show it in a convincing manner. For the foregoing reasons temporary disability is awarded for the period of March 1, 1996, the date that respondent notified her to see Dr. Hutter until July 9, 1996 when she was discharged by Dr. Hutter from active treatment. This is a period of 18 5/7 weeks payable at $257.25, a total of $4,814.25.

It appears petitioner=s condition had been stabilized by July 9, 1996. Essentially she had been returned to at least the same or probably better than she had been during the 5 months she worked following the June 26, 1995 compensable injury. She did not return to work for her employer because she had been fired several months earlier. She did not seek out a new job. From the record before me, I find that she was capable of working in an office position of the type she had previously held with respondent or with the municipality of North Bergen. She was not under medical care for her knee, so temporary total disability would end.

Ms. Loughney had permanent disability of her left leg. Based on the testimony of Dr. Tiger who examined her on April 15, 1996, I am convinced her knee was unstable. She did have chondromalacia of her left knee. She did have crepitus, indicating degenerative changes in her left knee. The 1996 MRI of her left knee was negative for a meniscal or ligament tear, but did show some degenerative changes. All of this would indicate there is a medical basis for her continuing complaint of instability, buckling, and popping or grinding of her left knee. If she had not had the subsequent left ankle fracture, it would be appropriate to measure her permanent partial disability for that extremity.

Stepping back a bit, following discharge from treatment by Dr. Hutter, the parties proceeded to prepare this case for trial, there were physical examinations for purposes of estimating permanent disability, the claim for temporary disability was put off until all issues could be addressed in one hearing. Dr. Canario examined petitioner on December 13, 1996, he offered an opinion of no permanent disability. He made no positive findings. He reported petitioner had no medical impairment of any nature. His report of examination and conclusions are so inconsistent with the reported objective medical findings discussed in this decision, that his opinions and conclusions are accorded no probative value.

Dr. Hutter examined petitioner on March 10, 1998 and offered an opinion of no permanent partial disability. He stated there was no permanent partial disability to her back and that her left leg complaints were non-anatomical. Considering the number of positive pre-existing indications of back pathology and his own treating decisions and MRI report, I find his opinion a bit perplexing. Dr. Hutter was a treating physician, but, when he examines as a forensic physician as he did here, his observations and opinions on disability are entitled to no more weight than any other forensic physician.

Probably the most cogent and prophetic forensic examination was a consequence of the fortuitous timing of Dr. Tiger=s April 15, 1998 examination. Although not a treating physician in this case, this board certified, experienced, orthopedic surgeon, his detailed findings and recommendation for further treatment consideration was proven to be absolutely accurate by subsequent events. At that time he found evidence of chondromalacia of the patella and arthrofibrosis with residual synovitis (swelling) of the left knee. I found his testimony to be accurate. Dr. Tiger personally reviewed the 1996 MRI of petitioner=s left knee and offered the opinion that it should have been taken from a different angle with attention paid to the patella femoral joint. If it had been done, he believed it would have revealed significant pathology not shown by the original MRI. Considering the repeated instances of instability and noise described by petitioner, there was ongoing pathology, I agree that at least in April 1998, there was ongoing disease and deterioration of her left knee joint attributable to the consequences of the 1995 compensable injury. On a post hoc basis, I must agree with him that petitioner had not reached the maximum benefit of medical treatment and she was a candidate for further treatment.

Nine days latter, at 6AM, April 25, 1998, Ms. Loughney was going down steps at her home in North Bergen. Once more, her left knee gave way, she fell down the stairs fracturing her left ankle. She was taken by EMS ambulance to the Jersey City Medical Center Emergency Room and eventually admitted to the hospital for an open reduction. At this time it is not necessary to review the details of the surgery, suffice it to say she would set off metal detectors. The hospital treatment record confirms the history that her left knee collapsed causing the fall. I believe and accept this history as true. It was given under the stress of this new trauma to a physician who was contemplating surgery. Further, Dr. Tiger=s explanation of how the mechanics of this new derivative accident was caused by the shearing effect of the previously traumatized left knee rings true. His explanation of the mechanics relates to the pathology and human anatomy. I have given consideration to the findings of Dr. Hutter in his examinations in July 1996 and again in March 1998 and Dr. Canario in December 1996. There is no way of reconciling them with Dr. Tiger=s findings made on April 15, 1998. After carefully considering the findings of Dr. Tiger concerning petitioner=s left knee and the calamity which befell Ms. Loughney a few days later, I conclude Dr. Tiger was right on the mark.

It is probable, although not conclusive that Ms. Loughney injured her low back during this fall. I infer this because the treating physicians ordered an MRI of her low back. Her treatment has been protracted and not as aggressive as perhaps it would have been if the workers= compensation insurer, General Accident, had been overseeing the treatment. Petitioner has no medical insurance. She has sought and obtained charity care to the extent it is available.

Because the April 25, 1998 fall and ankle fracture was a direct and proximate result of the injury to petitioner=s left knee injury, all of the consequences of the April 1998 injury are compensable and the financial responsibility of respondent. Respondent is ordered to pay temporary total disability commencing April 25, 1998 to March 12, 1999, inclusive, 45 6/7 weeks at $257.25 per week, for a total of $11,808.21 and continuing thereafter until such time as petitioner is no longer temporarily totally disabled.

Respondent shall immediately assign a competent orthopedic surgeon or group to manage petitioner=s medical treatment for the consequences of the injury including attending to the consequences of her left ankle fracture, her knee injury and to evaluate whether there is a need for medical care or therapy to petitioner=s low back at this time. In the strongest terms, I recommend that respondent select a medical group at a Medical School treating facility so that a multi-disciplined therapy plan can be followed to aggressively reduce the impact of this woman=s serious compensable medical problems. The treatment plan can, if appropriate, include work hardening and psychological help necessary to get her back into the work force. If that is not pursued, in view of the serious, debilitating, probably permanent impairments, I predict the disability costs and eventual medical costs will be huge. I hope there is still time to reduce the impact of these injuries and get this young woman back into the work force. Respondent shall pay all necessary and incidental expenses including tests, medication, and therapy. Treatment shall include any complications secondary to these injuries including infections at the site of the hardware. The physician or group selected shall not be one who has testified in this case or one who regularly acts as a forensic physician for any party in the Division of Workers= Compensation. If this is not done within 30 days of this order, I will select such a physician or group on petition of either party.

Petitioner is ordered to cooperate with the treatment plan put together by this new treating physician. Respondent shall, subject to audit for reasonableness, pay the Jersey City Medical Center, its affiliates, clinics, and affiliated physicians the reasonable value of the treatment furnished to petitioner as a consequence of the April 25, 1998 fall including subsequent infections at the site of hardware. If there is a dispute on the reasonableness of any such charges, I will retain jurisdiction to determine same. The compensation insurer is in the business of determining reasonableness of medical expenses and subscribes to data banks which provide such information for all types of medical care. I assume they will competently discharge their obligation with dispatch.

The issue remains whether respondent insurer is liable for a 25% penalty for denial of temporary total disability for more than 30 days. N.J.S.A. 34:15-28.1. See Amorosa v. Jersey City Welding & Mach. Works, 214 N.J. Super. 130 (App. Div. 1986). I have carefully examined the record of this case and find the failure to pay temporary disability to this point was due to the insurer=s reliance on the opinions of Dr. Hutter and Dr. Canario. Both are competent, reputable, board certified orthopedic surgeons. Though I found contrary to their opinions and findings, still, I find their opinion letters to the insurer were based on disclosed facts. General Accident=s reliance on their opinion was in an objective sense in good faith. It was not unreasonable or negligent. Once General Accident received information that a claim of disability was being made, it referred petitioner to Dr. Hutter with authorization to treat. Ms. Loughney had worked steadily for 5 months while being treated by a chiropractor of her own choosing. It was only after she told her boss she was ill and not working due to bronchitis, that she was fired. I cannot fault the insurer=s failure to pay temporary disability; it acted in good faith. For all of the foregoing reasons I conclude respondent has successfully rebutted the statutory presumption of unreasonableness and negligence. Respondent is warned that a new statutory 30 day period begins to accrue once a judgment is entered implementing this decision.

In summary petitioner is awarded temporary total disability of 64 4/7 weeks at $257.25, a total of $ 16,622.46 and continuing thereafter until petitioner is no longer temporarily totally disabled. Temporary total disability may be terminated and the terms of this order modified on the earlier of (1) the treating physician reports to respondent insurer in writing stating petitioner is no longer temporarily disabled or can return to full time work; (2) petitioner returns to full time work; and (3) further order of a judge of compensation , which may be sought for good cause on 2 days written notice to petitioner. Respondent shall furnish to petitioner=s attorney copies of all reports received from the treating physician or other practitioners. Petitioner may move to modify this order to obtain relief for good cause shown on 2 days written notice to respondent.

The following allowances are made:

Dr. Eyerman is allowed $750 for his appearance and testimony on two occasions, payable by the respondent.

Dr. Tiger is allowed $450 for his examination and testimony, payable by respondent.

Petitioner=s attorney shall be reimbursed by petitioner for transcript costs and expenses of subpoenas and medical records.

Petitioner=s attorney is allowed a counsel fee of $3,320, payable by respondent. This fee shall be increased at a later point in this case to 20% of the then known total value of temporary total disability and medical treatment expenses obtained and paid as a consequences of this motion. Petitioner=s counsel earned this fee the old fashioned way: by diligently serving the interests of her client with all of her skill knowledge. Her performance in the court room evidenced many hours of preparation. Ms. Loughney received this award only because of her counsel=s persistence in marshalling the facts and advocacy.

Respondent shall pay a stenographic fee of $750 to North Jersey Reporting.

______________________________

Lawrence G. Moncher

Judge of Compensation

Dated: March 12, 1999