CP# 92-16066 Marrero v. Parsicon, Inc. & 93-4189 Marrero v. Panther Interiors
State of New Jersey
Department of Labor
Division of Workers= Compensation
New Brunswick, Middlesex County District
CP No. 92-016066
JOSEPH A. MARRERO, Petitioner
CP No. 93-004189
JOSEPH A. MARRERO, Petitioner
THE HONORABLE PHILIP BOLSTEIN,
Judge of Compensation
JOSEPH SCHIAPPA, ESQ.,
Attorney for Petitioner
THOMAS H. GREEN, ESQ.,
By: JOHN J. JASIENIEKI, ESQ.,
Attorney for Respondent PARSICON, INC.
FRIELAND & DeSANTO, ESQS.
By: THOMAS J. DeSANTO, ESQ.
Attorney for Respondent PANTHER INTERIORS
Petitioner was injured on November 7, 1991 when he slipped while on the third step of a ladder and fell to the ground. He landed on his right leg and felt a Apop@ in his lower back. He reported the accident to his employer, Parsicon Builders, immediately after it occurred and filled out an accident report the same day.
Although his back hurt, petitioner did not go to a doctor as he wanted to finish his job and was afraid that he would be laid off if he saw a doctor and was kept out of work.
He worked the next two days with some pain. He said that the pain was not severe enough to see a doctor but he felt that if his condition got worse, he was protected because of the accident report and would be able to get medical attention.
Despite his not losing time to go to a doctor, petitioner was nonetheless laid off two days after the accident.
He was then out of work until January 20, 1992, when he accepted a job for Panther Interiors, putting up sheet rock insulation. He described this as a light duty job cutting 8 foot lengths of insulation from a roll and sliding them up between the wall studs. He did this for eight days, stopping on January 28, 1992, when the job ended.
Petitioner=s back condition progressed from the date of the injury of November 7, 1991, gradually worsening until he was unable to lift a jar of mayonnaise while shopping at a supermarket in March 1992. He sought medical attention and saw a Chiropractor, Dr. Kathleen Therkelsen, on March 9, 1992.
Claim Petition 92-016066 was filed against Parsicon Builders on March 27, 1992.
When the respondent did not accept responsibility for the chiropractic treatment, Petitioner filed a Motion for Medical Treatment and Temporary Compensation on May 14, 1992.
The respondent filed an Answer to the Claim Petition on July 2, 1992, denying that the petitioner suffered a compensable accident and, on August 12, 1992, it filed an Answer to the Motion which Aputs the petitioner to his proofs that any disability was due to this employment.@
Petitioner was paid Temporary Disability Benefits by the Division of Temporary Disability Insurance from April 19, 1992 until August 22, 1992 for which a lien was filed in the amount of $5,032.
On October 23, 1992, petitioner=s testimony was taken before Judge Giacomo Rosati (now retired) and, on December 8, 1992, the testimony of Dr. Therkelsen was heard.
Although the petitioner and the doctor both testified that the accident of 11/7/91 was the cause of his problems, on cross-examination by respondent=s attorney, Dr. Terkelsen was asked
Q: Assuming he had only little pain, little soreness would it be probable that it [meaning the work done for Panther Interiors] aggravated it, Doctor?
A: It would be. It would be probable that it aggravated it.
Thereupon, on February 1, 1993, petitioner filed Claim Petition 93-004189 against Panther Interiors for compensable occupational disease resulting from his employment with this respondent between January 20 and January 28, 1992.
This respondent denied that any aggravation of the pre-existing condition was caused by this employment.
The consolidated claims were then adjourned to permit Panther Interiors to investigate the claim and to consider the testimony of the petitioner and Dr. Therkelsen given in the Motion hearing to which this respondent was not a party.
On February 7, 1994, Judge Rosati entered an Order holding each respondent liable for one-half of the costs for medical treatment and temporary compensation, without prejudice pending the ultimate determination of liability, and further ordering that any overpayments based upon said ultimate liability determination would be repaid by the respondent held responsible.
A further Order signed by me on July 17, 1997, continued this sharing of liability for additional treatment and temporary compensation ordered therein.
On October 22, 1998, the petitioner again testified as to the additional treatment received since the original Order. Since respondent Panther Interiors was not a party to the original Motion hearing, details of the work done for this respondent were again elicited.
The petitioner=s testimony has been consistent over the years. He fell from the ladder and felt something pop in his lower back. He had pain but not unbearably so. He did not feel he needed medical attention at that time. The pain was in his lower back and into his left testicular area. In the two day period after the fall, he worked with the pain.
After he was laid off, he went on unemployment and, despite doing nothing, his back continued to worsen. His ability to perform the usual daily activities of his life was progressively decreasing during the time between the accident and the start of his work for Panther Interiors on January 20, 1992.
He worked out of a union hall and only accepted the job with Panther because it was light duty which he felt he could perform. There was no sudden worsening of his condition during his work for Panther. There was no episode of sharp pain, followed by a report of injury or immediate need for treatment.
Following the completion of the Panther job, petitioner=s condition continued to deteriorate. Finally, when it reached the point that he had difficulty lifting a jar of mayonnaise from a shopping cart to the cashier=s conveyor at a supermarket, he sought medical attention.
Dr. Therkelsen was given a history of the fall from a ladder while working for Parsicon. She specifically testified that the fall was the cause of the petitioner=s low back injury. She testified that the subsequent employment at Panther did not affect the condition caused by the fall, although on cross-examination, after being presented with a hypothetical assuming that the petitioner bend down all day long, she testified that this would Aaggravate@ this condition.
The petitioner was firm in his belief that his disability was due solely to the accidental fall. On October 22, 1998, he testified
A: I believe I have got hurt at Parsicon. The lawyer said that. I said I got hurt when I fell off the ladder. They said, well, when you bend and twist, you reaggravated it, and that=s what happened. They stuck it to the other insurance company. I got hurt at Parsicon. I said that from day one. That=s what happened. (T49L12-18)
The medical witnesses for the petitioner, Dr. Rubin and Dr. Ruderman were of the opinion that the Panther work did not aggravate the underlying back condition, although it might have caused the pain to become worse.
Dr. Kummel, who appeared for Panther, also testified that the disability was all due to the accident with no contribution from the work done for Panther.
The opinion of Dr. Frank, on behalf of Parsicon, that the work done for Panther was a significant contributory factor to the petitioner=s disability, was undermined by his misunderstanding of the sequence of events and the overall picture of the progression of the petitioner=s complaints from the time of the accident until he first sought treatment.
Two cases are apropos to the situation with which we are confronted, both dealing with a claim that an injury suffered in a traumatic accident was made worse by subsequent occupational exertions for a different employer.
In Kozinsky v. Edison Products Co., 222 N.J. Super. 530 (App. Div. 1988), the petitioner injured her back in a fall while working for Mayfair on January 27, 1983. She was treated and, approximately nine months later, while still under treatment, began working for Head Start. In this job, she lifted small children, although she suffered no specific incident of pain while working at this job. Her condition of periods of exacerbation or aggravation of the pain in her back remained the same from the occurrence of the accident through her employment with Head Start and her subsequent employment with Edison Products Co.
She filed claims against all three employers. An award apportioning her permanent disability against all three employers was reversed by the Appellate Division. The court said:
Thus there was undisputed proof of an accident at Mayfair which activated a pre-existing condition, but no proofs of any specifically aggravating injuries at the subsequent employers. Neither was there any objective proof of an increase in the disability which was clearly present in September 1983, prior to beginning the Head Start job. Id. at 536.
The court further stated:
We do not see this as a case where a substantial contribution to disability from the subsequent accidents or employments was plainly established, but where it was difficult to apportion those contributions . . .. Rather, our careful canvas of the entire record discloses that there is no credible evidence of material contribution by the subsequent employments.
Subsequently, the Appellate Division had another opportunity to comment on this situation and held:
However, we are persuaded that where the subsequent employment, without the intervention of additional trauma or physical insult merely causes pain from pre-existent conditions to be manifested, that liability should not attach to the subsequent employer even when the result is that the employee then realizes that continued employment is not feasible. Peterson v. Hermann Forwarding Co., 267 N.J. Super. 493, 505 (App. Div. 1993).
The situation herein is similar in most respects to these cases. The petitioner suffered a clearly traumatic injury while employed by Parsicon, causing him to suffer symptoms which continued to progress until, through, and subsequent to his later, short, period of light duty work for Panther, until he sought treatment long after the conclusion of the Panther job.
N.J.S.A. 34:15-31 defines a compensable occupational disease as follows:
a. For the purpose of this article, the phrase Acompensable occupational disease@ shall include all diseases arising out of and in the course of employment, which are due in a material degree to causes and conditions which are or were characteristic of or peculiar to a particular trade, occupation, process or place of employment.
b. Deterioration of a tissue, organ or part of the body in which the function of such tissue, organ or part of the body is diminished due to the natural aging process thereof is not compensable.
There is no evidence of any sudden increase in symptoms while working for Panther. There is no evidence of any change in the petitioner=s working ability during this short employment. In short, there is no credible evidence that the work done for Panther contributed in a material degree to the petitioner=s injury or disability. The testimony of Dr. Therkelsen that the petitioner=s condition was probably aggravated by his employment at Panther is not dispositive. She had previously testified quite emphatically that the cause of petitioner=s problems was the fall from the ladder. The question posed on cross-examination asked her whether the pain and soreness prior to this employment would probably have been aggravated by the bending done for Panther. Her affirmative answer was simply an agreement that this aspect of petitioner=s condition was probably aggravated but did not clearly change her opinion that the underlying cause of petitioner=s herniated disc was the accident at Parsicon.
The fact that a Claim Petition was filed against Panther following the hearing on the Motion for Treatment carries little weight in the determination of this issue. The petitioner=s attorney was faced with the testimony of Dr. Therkelsen who, somewhat reluctantly, testified that petitioner=s condition was aggravated by the Panther employment on cross-examination by Parsicon=s attorney. The attorney then had an obligation to file the Claim Petition so as to protect the petitioner.
The subsequent Orders of Judge Rosati and myself clearly indicated that the ultimate decision would depend upon the further evidence to be taken after treatment was concluded.
The petitioner=s strong opinion that his disability resulted only from the accident and was not affected by the subsequent employment was, in effect, and admission against his own interest. Under the current worker=s compensation benefit schedule, any permanent disability due to the employment at Panther in 1992 would have been payable at a rate higher than that to which he was entitled to receive from Parsicon. In this regard, therefor, his opinion has an additional attribute of credibility.
Based upon the evidence submitted to me, I find that the petitioner=s injury, the treatment which he received, and the temporary compensation to which he was entitled are the sole responsibility of Parsicon, Inc., and its insurance carrier PMA Group. The claim against Panther Interiors will be dismissed and PMA Group will reimburse the Travelers Property Casualty Co. the sum of $28,807 for medical treatment and $56,526 for temporary compensation paid by Travelers pursuant to the prior Orders.
With regard to the nature and extent of the permanent disability, Mr. Marrero testified that he had returned to work in June 1997. He works out of the union hall but, because of his inability to do the things he used to do, his work has not been steady. He has pain in the lower back from the lumbar area to the sacrum, radiating into the left testicle area and down into his left leg, although the pain is not as severe now as before the surgery for an L5-S1 discectomy which was done in April 1994. He has difficulty lifting things, including his twin infant children. He takes Advil or Motrin 3-4 times per day to relieve the pain.
He testified that when he is assigned to a job, he is treated by the other workers like an old man because of his inability to do as much as he could before and he is usually the first to be laid off because he can=t keep up with the work. It was at this point in his testimony that he became emotional and broke down in tears.
He cannot sit or stand for long periods. I noted that as he sat, he leaned to relieve the pain.
Dr. Armand Ruderman testified as petitioner=s orthopedic expert. He had examined the petitioner on November 25, 1997.
He noted the surgical scar with tightness and sharp pain in the lower back in the last 25% of the range of motion, although full range was attained. Straight leg raising test caused pain in the lower back bilaterally at 60 degrees. There was pain on palpation and percussion over the surgical scar.
Dr. Ruderman estimated the orthopedic disability at 45 percent of total.
Dr. Richard Rubin performed a neurological and psychiatric evaluation of Mr. Marrero on November 25, 1997. He noted that the petitioner stood during the interview. He looked sad but did not cry.
His objective neurological findings were a hypoesthesia of the left thigh, positive straight-leg raising at 70 degrees bilaterally, a markedly depressed cremasteric reflex on the left. He had evidence of sciatic radiculopathy and radiculitis, for which Dr. Rubin assessed a permanent neurological disability of 32 2 percent of total.
Dr. Rubin also found evidence of psychiatric disability diagnosed as an adjustment disorder with mixed emotional features in accordance with DSM IV section 309.28, manifested by a depressed mood and phobic neurosis. He estimated a psychiatric permanent disability of 30 percent of total.
Respondent Parsicon, Inc. presented the testimony of Dr. Stephen Frank who examined the petitioner on August 6, 1992. I have already discussed my view of the opinion of Dr. Frank on the issue of causal relationship. With regard to the issue of permanent disability, the opinion of Dr. Frank is not entitled to any weight whatsoever. His examination was long before the surgery and was, essentially, done during the course of treatment. He did not re-examine the petitioner subsequent to the surgery and post-surgical treatment and was in no position to evaluate the current permanent disability.
Respondent Panther presented Dr. Bergtam Kummel who performed an orthopedic evaluation on March 12, 1998. He noted the surgical scar but no muscle spasm, although he did note that flexion of the dorsal and lumbosacral spines was slightly restricted due to lumbosacral pain. Straight leg raising was positive bilaterally at 30 degrees.
Dr. Kummel evaluated the orthopedic disability at 5 percent of total.
Lastly, Panther presented Dr. Sidney Bender as neurological and psychiatric evaluator. Dr. Bender examined the petitioner on July 23, 1998 and found no evidence of either neurological or psychiatric disability.
The law now requires that permanent partial disability must be shown by demonstrable objective medical evidence and the injury must be significant enough to merit compensation. The petitioner must first show objective medical evidence of the injury and that this results in a restriction of the function of the body, its members or organs. Objective medical evidence means evidence exceeding the subjective complaints of the petitioner and, therefore, compensation can no longer be awarded where the condition is manifested only by subjective complaints. Furthermore, even if the petitioner meets these requirements, permanent disability cannot be found where the injury is minor in nature or where it does not impair the employee=s working ability or interfere substantially with other aspects of life. Perez v. Pantasote, Inc., 95 N.J. 1054, 115-117 (1984).
It is clear that the petitioner meets the statutory definition and has a permanent disability as a result of his injury and subsequent surgery.
I find that the petitioner is a credible witness. His testimonial demeanor evidenced not only truthfulness in his responses, but also in his indications of discomfort during his testimony and his emotional upset when testifying about the effect that the disabilities have on his working ability.
In Perez v. Capital Ornamental, 288 N.J. Super. 359 (App. Div. 1996) the court said that we must take into account the effect of the injury on the petitioner=s working ability in the evaluation of the permanent disability resulting from a compensable injury.
The petitioner=s experts have evaluated his permanent disability to be significantly higher than that estimated by the respondent=s experts. This is not unusual in the context of our cases.
A judge of compensation, of course, is not bound by the conclusionary opinions of medical experts; however, he must give consideration to such testimony and evaluate it based upon the doctor=s qualifications and demeanor, the inherent trustworthiness of the testimony, and the quality of the underlying examination upon which the opinions are based. Margaritondo v. Stauffer Chemical Co., 217 N.J. Super. 560 (App. Div. 1985).
In this case, I find that the testimony of the petitioner=s experts is more consistent with the nature of the injury and the severity of the disability resulting therefrom than that of the experts for the respondent, particularly with regard to the neurological and psychiatric effects on the petitioner. While the extent of the temporary disability period is but one factor in the overall evidence, it is certainly an indicator of the severity of the injury and the persistence of the symptomatology. Here, the petitioner was under authorized treatment and unable to work for a period in excess of five years. At the conclusion of this period, and despite all of the surgery and therapy, the petitioner is still unable to return to his usual work but is reduced to accepting lighter or shorter periods of employment. He feels embarrassed at being looked upon as Aan old man@ who needs assistance from his fellow workers with the heavier aspects of his work. He was unable to describe this aspect of his life without becoming tearful.
The petitioner alleges a neuropsychiatric disability. In order to establish such disability, there must be demonstrable medical evidence. This standard can be met without physical manifestations provided the psychiatric expert uses clinical methods to ensure an analysis which would yield demonstrative objective medical evidence. The court cannot accept the mere statement of the patient to substantiate disability. The professional psychiatric judgment may be based upon:
1. An analysis of the subjective statements of the patient,
2. Observations of physical manifestations of the symptom related in the subjective statement, and/or
3. Observations of manifestations of physical symptoms and analysis of descriptions of states of mind beyond those related in the patients subjective statement. See Saunderlin v. E.I.DuPont Company, 102 N.J. 402 (1986).
I find that the opinion of Dr. Rubin with regard to the existence of a psychiatric component to the petitioner=s permanent disability is in conformity with the requirements of Saunderlin. It was based upon the doctor=s independent observations and analysis and supported by reference to diagnostic standards accepted by the psychiatric community.
I cannot accept the totally negative opinion of Dr. Bender either as to the neurological or the psychiatric sequelae of the accident on Mr. Marrero. After reciting the long history of treatment and inability to work, Dr. Bender reports that the petitioner claimed that things had Aturned around@ and that petitioner found himself to be emotionally normal. In his report, Dr. Bender states:
This man went through considerable emotional stress during the period that he was unable to work; however, he was now obviously recovered and is doing well emotionally.
This is not the picture which I saw when the petitioner testified before me. He was clearly emotionally upset when describing his current situation. He testified:
The Court: And you feel that you=re in that position with the union and with the people that you said that you=re sent to, that those people who know you and know your background, they=re looking upon you as one of those workers who needs assistance in doing the heavy jobs.
The Witness: Sure. My partner carried the compressor for me every day because he knew about my back.
The Court: How does that make you feel?
The Witness: Pathetic. It makes me feel horrible. My nephew, I used to wrestle with them (sic) and stuff, and now they=re like, Uncle Joey can=t do that, he=s hurt. My little nephew, he=s three years old. He never --
The Court: Relax. Take it easy.
The Witness: His brother tells him how Uncle Joey used to be. (T37L5-35)
This in not the picture of a person who has Aobviously recovered and is doing well emotionally.@
Likewise, I believe that the petitioner=s orthopedic disability is more serious than respondent=s experts believe it to be. While it is true that the objective findings of functional loss do not appear to be severe, when the effect on petitioner=s working ability is factored into the equation, the result is that petitioner=s life has been significantly changed. He is no longer able to do the things he used to do. He cannot accept all of the jobs which he was formerly able to do. He cannot do the heavier lifting that he used to do. He cannot lift his twin children even though they are still infants.
Petitioner is a young man only 30 years old. His limitations are serious and permanent.
Based upon the evidence presented to me, taking into account the testimony of the petitioner, my observations of him as testified, the testimony of the respective medical experts as discussed herein, and my own expertise as a judge of compensation, I find that as a result of the accident of November 7, 1991, the petitioner has a permanent disability which is orthopedic and neurological in nature, based upon a chronic sprain of the lumbosacral spine with the residuals of a discectomy/laminectomy at L4-5 and L5-S1with sciatic radiculitis and radiculopathy which I fix at 40 percent partial total.
I also find that he has a psychiatric permanent disability based upon an adjustment disorder with mixed emotional features which I fix at 10 percent partial total.
The petitioner will be entitled to 300 weeks of compensation at a rate of $257 per week, amounting to $77,100.
The respondent will deduct the sum of $5,032 from this amount and send it to the Division of TDI in satisfaction of the TDB lien.
The following fees and allowances will be incorporated in the final judgment.
Dr. Ruderman, for examination, report and testimony $450, payable $225 by respondent and $225 by petitioner; Dr. Rubin, for examination, report and testimony $450, payable $225 by respondent and $225 by petitioner; counsel fee the Joseph Schiappa, Esq., $21,000, payable $12,500 by respondent and $8,500 by petitioner.
A stenographic fee of $750 is payable by the respondent.
Judgment will be entered in accordance with this Decision.
Judge of Compensation
Dated: April 8, 1999