State of New Jersey
DEPARTMENT OF LABOR

January 17, 2001
Revised: Jan. 3l, 2001

re: Marino v. Kullman Industries - C.P. 99-014405

Counsel:

This claim is before me for a decision relative to petitioner's motion for medical and related temporary disability benefits. Petitioner has already submitted, on an "unauthorized" basis, to the surgical treatment that he sought; with the completion of his post surgical treatment and the 26 week "waiting" period provided under Section 16, this case shall be ready for permanency evaluation.

Petitioner initially injured his low back during September 1990. As a result of that injury he later

(Jan. 1995) received an award of 17.5% partial total based on finding(s) of a herniated disc at L3-4 and degenerative disc disease at levels L2-3 and L3-4. Petitioner continued in respondent's employ through January 1999, with noted absences from time to time due to continuing low back problems which were aggravated by the laboring nature of his employment. During 1994 petitioner submitted to a fresh MRI of his back which revealed a new disc herniation at level L4-5, as well as ongoing degenerative disc disease at multiple levels. The latter disease, which presents evidence of desiccation of multiple discs, is sometimes referred to as "black disc" disease due to the fact that the dehydrated discs appear as black or darkened objects on MRI film.

On January 19, 1999, while engaged in his employment duties with the respondent, the petitioner suffered the latest of his "on the job" back problems. He received treatment from Dr. Greisman for what was diagnosed as a lumbosacral sprain. He remained out of work for roughly 13 weeks (until April 1999) and underwent a further MRI which was read as demonstrating degenerative disc disease at multiple levels without evidence of disc herniation. On April 1, 1999, Dr. Greisman issued a "return to work" note with a lifting restriction of 15 lbs. Exh. J-2. Due to the nature of petitioner's employment with respondent such lifting restriction effectively foreclosed re-employment by respondent. The latter's carrier next sent petitioner to be examined by Dr. Gallick, who found the petitioner's latest MRI to be "normal" in that it presented no disc herniations or radicular problems and suggested that the petitioner look for employment of other than a "laboring" type. The petitioner followed such recommendation and soon after commenced employment as a car salesman for All American Chevrolet.

On August 7, 1999, while at home, the petitioner developed severe back pain. There is no definitive testimony as to precisely how, why or when such pain developed beyond the fact that the petitioner made some movement of a bending, reaching or lifting nature which caused his back condition to present severe pain symptoms. Petitioner testified that he was not sure whether he was tying his shoes or reaching for an object on his kitchen table when he experienced a sharp pain in his low back and was unable to fully stand up. Respondent alleges that petitioner injured himself while in the course of moving a dishwasher at his home. In support of such position the respondent produced two (2) employees of All American Chevrolet ("All American") who testified that on a particular occasion the petitioner told a group of co-employees at the car dealership that he had injured his back in the course of moving an appliance at his home. Conversely, Peter Marino, Jr., petitioner's son, testified that he had been living at home with his parents during August 1999 and that he and his mother had moved the dishwasher in question without any physical assistance from the petitioner. I find it appropriate to note for the record at this point that the testimony of All American's representatives was neither sought nor presented until after respondent had filed a motion to implead All American as a co-respondent in this matter. Such motion was denied during December 2000.

After meeting with Drs. Greisman and Gallick in April 1999, petitioner sought an "unauthorized" opinion concerning his condition and treatment therefor from Dr. Glastein. The latter recommended that petitioner undergo a discogram, as well as a myelogram and CT scan, as a means of completing a pre-surgical workup. Petitioner submitted to these tests during August and September 1999. The results of the tests confirmed both the then existing broad-based disc herniation at level L4-5 without compression of neural structures, as well as the fact that there had been no real change in petitioner's orthopedic condition since the prior MRI taken during March 1999. I also note Dr. Bram's comment of September 16, 1999 that he found the petitioner "in no apparent distress." Further, Dr. Bram found the petitioner able to perform bilateral straight leg raising without pain. Exh. P-4, item 8.

Respondent then asked Dr. Kreiger to examine the petitioner. He did so during November 1999.

In his evaluation report of November 22, 1999 Dr. Kreiger diagnosed the petitioner as having a lumbosacral sprain, resulting from his January 1999 injury, superimposed upon a "chronic low back derangement" which he found to be related to his original (1990) injury. Though the petitioner only

testified to having one additional "back incident" during the above 9 year period (circa 1996),

Dr. Kreiger noted in his report that the petitioner had told him that he had "periodic episodes of severe back and leg pain every few months". In the later portion of his report Dr. Kreiger opined against the fusion surgery suggested by Dr. Glastein and did nothing further for the petitioner, who,

on his own, renewed contact with Dr. Glastein, who found him to be a candidate for a spinal fusion. On March 2, 2000 Dr. Glastein performed a wide decompression and spinal fusion with instrumentation at levels L3-4, L4-5 and L5-S1. (For a description of the surgical procedure see T-8/2/00,p. 12.) As of the date that Dr. Glastein testified in this matter the petitioner was still treating under such physician's care and in Dr. Glastein's opinion was not able to return to work, with specific attention to the duties of a car salesman. We have recently been advised that Dr. Glastein released the petitioner to return to sedentary work as of December 6, 2000.

In short, respondent's denial of the pre-surgical testing and later surgery that petitioner sought under its motion, and ultimately received on an "unauthorized" basis through/with Dr. Glastein, is based on two (2) separate and distinct arguments. First, it argued that the testing and surgery were not necessary or required under the opinion of Dr. Kreiger, a qualified orthopedic expert. This argument must fail in light of the improvement in petitioner's condition following his successful fusion operation +. I find such operation to be clearly within the scope and direction of that portion of Section 15 which directs the employer (respondent) to furnish such "medical, surgical and other treatment, and hospital service as shall be necessary to cure and relieve the worker" of the effects of his injury.

Respondent's second argument turns on the credibility or weight to be given the allegation that petitioner reinjured his back in August 1999 while attempting to move a dishwasher which was in excess of the 15 lb. lifting restriction that Dr. Greisman had placed on his activities during April 1999. Respondent (i) disregards the denials as to such activity presented by both the petitioner and his son, as well as any explanation of the statement petitioner allegedly made to a group of co-employee at All American, which might explain the basis for the statement without admitting any lifting activity, viz. that he bent down to disconnect the hoses or electrical wire, or to hold a floor covering in place while his wife and son moved the appliance to the deck area, and (ii) claims that whatever physical activity the petitioner performed on August 7, 1999 broke the chain of causation insofar as his back condition is concerned if in fact it related to the movement of a dishwasher or other household appliance. Respondent relies on Amey v. Friendly Ice Cream Shop, 231 N.J. Super. 278, 283 (App. Div. 1989). I note, however, in reviewing the Amey opinion that the Court followed Professor Larson + + in making a distinction between an accident or "mere negligence" on the part of the petitioner, which does not break the chain of causation, and "intentional conduct" which may be regarded as expressly or impliedly prohibited activity, which does break the chain of causation. In Larson's view "rashly undertaking a line of action" without consideration of the risk of reinjury is the type of conduct that can break such chain. Further, respondent's position that the chain of causation was broken by some action of petitioner on or about August 7, 1999 disregards (i) Dr. Bram's findings (page 2, supra) as to petitioner's return to his pre-August state of health not later than mid-September, and (ii) the results of the myelogram and CT scan dated August 25, 1999, both of which place the petitioner in the same state of orthopedic health that he enjoyed as of mid-March 1999. In short, petitioner's back episode of August 7th, regardless of the immediate cause thereof, was simply another in a long string of low back incidents experienced by petitioner which have been found to be related to his initial accident/injury of September 1990. This conclusion has been accepted by Drs. Glastein, Greisman, Gallick and Kreiger.

At commencement of this trial counsel for the respective parties stipulated that the petitioner had

incurred a "compensable accident" on January 19, 1999. Given the testimony of both the petitioner

and Dr. Kreiger as to various work-related incidents which adversely affected petitioner's back during the period 1990 and 1999 I view the January 1999 incident, which was clearly more serious since it caused the petitioner to give up his trade as an ironworker, as a manifestation of occupational back disease which was timely reported in accordance with Section 34:15-34.

Respondent's argument alleging a break in the chain of causation is further clouded by the fact that while Dr. Greisman did place a 15 lb. lifting restriction on the petitioner as of April 1, 1999, neither

Dr. Gallick nor Dr. Kreiger, to whom respondent later sent petitioner, suggested any lifting restriction to the latter. Clearly, Dr. Greisman had been "de-authorized" by the respondent prior to May 1, 1999; are we to consider the petitioner still bound by his lifting restriction? Further, in light of Dr. Kreiger's position, as of November 1999, that the petitioner's low back problems were related to his 1990 injury/condition, how can respondent now argue that petitioner's activity and his resulting injury of August 1999 interrupted the chain of causation regarding petitioner's back condition of January 1999 or prior thereto ?

On the basis of the above comments and findings I (i) reject respondent's argument that there has been any interruption in the chain of causation leading from petitioner's September 1990 injury to the date that he received surgical treatment and relief from Dr. Glastein, (ii) find that petitioner's January 1999 low back injury/incident was a manifestation of his chronic low back derangement that Dr. Kreiger traces to his earlier (1990) injury, and (iii) find that the spinal fusion which petitioner underwent during early March 2000 was medical treatment of a type which should have been provided to petitioner by respondent under Section 15. I also find that respondent acted improperly in failing to provide temporary disability payments to petitioner after the date of his latest back incident, i.e. August 7, 1999. Clearly, petitioner was entitled to same after he commenced treating with Dr. Glastein (March 2000) due to respondent's refusal to provide further medical benefits. I further find that such benefits should have been paid to petitioner for the period August 7, 1999 through to the date that petitioner started treating with Dr. Glastein (March 2000) on the basis that he was unable to work and submitted to all medical tests and examinations offered by respondent during such period.

Therefore, the following sums/benefits shall be paid by respondent to petitioner or the latter's medical providers at this time:

(x) Reimbursement for prescription expense, etc. set forth on the cover page of Exhibit

P-1 (copy attached) - total $ 137.78;

(y) Payment of the various medical bills listed on page 1 of Exhibit P-2 as well as the additional

sum(s) sought by Monmouth Medical Center (total bill $ 85,543.70). I have revised such page to reflect the latter amount (copy attached) - total $ 164,065.28. In the event that petitioner has paid any portion of such bills that amount shall be reimbursed to him. (z) Petitioner shall receive 69 4/7 weeks of temporary disability benefits for the period August 7,

1999 through December 6, 2000 at the weekly rate of $ 460.60 - total $ 32,044.49.

As a result of a post-trial conference which I had with counsel in this matter I am aware that, in addition to the charges by Monmouth Medical Center, petitioner has incurred additional medical costs since his surgery, or related thereto, which are not reflected on Page 1 of Exhibit P-2. I would

ask petitioner's counsel to present such expenses/costs to her adversary and that respondent pay same. In the event there is any challenge or question concerning such expenses/costs please present same to me and I will arrange a hearing date and time for your respective arguments.

In addition the following charges or expenses shall also be paid at this time in the manner and amounts indicated:

I will enter an order incorporating the above findings, awards and fees.

Neale F. Hooley
Judge of Compensation