B E F O R E:

HONORABLE PHILIP A.  TORNETTA

Judge of Compensation

A P P E A R A N C E S:

For the Petitioner:       MARCUS & LEVY

BY: JOHN ROBERTSON, ESQ.   

For the Respondent:   McELROY, DEUTSCH,   MULVANEY & CARPENTER

BY: GLENN F. CORBETT, ESQ.

Introduction

            The petitioner, Evelyn  Mojica, (“petitioner”)  filed a claim petition alleging that on November 1, 2004 she sustained an injury to her right knee by an accident arising out of and in the course of her employment with the respondent, The Valley Hospital, (“respondent”), compensable under N.J.S.A. 34:15-7.  Respondent filed an answer admitting that the petitioner was employed by the respondent on November 1, 2004, but denying that the alleged injury arose out of and in the course of petitioner’s employment with respondent.

 Statement of Facts

            Petitioner testified that while working for respondent, she was kneeling on both her knees while cleaning a small refrigerator. When petitioner attempted to stand, she was unable to do so, because of  a very strong pain in her right knee. She asked a fellow employee, Maria Enciso, to assist her as she continued to attempt to stand. Petitioner testified that Ms. Enciso contacted  petitioner’s supervisor, Judy Fernandez. Petitioner  did not call Ms. Enciso, as a witness nor was it  indicated  that Ms. Enciso was unavailable to testify. Petitioner further testified that she is unable to recall the date of this incident. However, the claim petition filed by the petitioner indicates the date of the injury as November 1, 2004

           Petitioner asserts that at the time of the accident, Ms. Fernandez  told her to sit down, apply ice to the knee and to go home. According to petitioner, when she requested additional  treatment, Ms. Fernandez told her to continue to apply ice to the knee. Petitioner does not recall if she returned to work the day following the accident.  The payroll records of respondent (R-2 Evid) indicate that petitioner did work on November 1, 2004, the day of the alleged accident, and also worked from November 3, 2004 through November 5, 2004, November 8, 2004 through November 10, 2004, November 12, 2004, through November 15, 2004, November 18, 2004 through November 19, 2004 and November 22, 2004 through November 23, 2004.  R-2 further indicates that Petitioner did not return to work after November 23, 2004. When asked on direct examination if she sought any treatment after the accident, petitioner’s  response was that she went on vacation to visit her daughter in Florida. She does not recall the date in November that she went to Florida, she does not recall how many days she stayed in Florida, but she does recall returning from Florida before Thanksgiving, which was earlier then she had planned to return. 

            On cross-examination, petitioner testified she departed for the Florida vacation from Newark Airport. Upon arrival at the airport, she walked to the  departure gate, boarded the plane, walked down the aisle of the plane and sat in her seat for several hours during the flight and upon arrival in Florida, she walked off the plane. She testified that her vacation was scheduled to last for ten days, but she returned after three days.

            After returning from Florida, petitioner was seen by Moumina Airood, M.D. on December 3, 2004.  Dr. Airood  administered injections to petitioner’s right knee for pain and ordered X-rays and an MRI. Dr.  Airood’s progress record for petitioner, dated December 3, 2004 (P-4  Evid)  indicates that there was no recent trauma to petitioner’s   right knee . Petitioner acknowledged  that prior to November 1, 2004, she had been  treated by Dr. Airood for pain in her right knee, her back and her hip.  

            Dr. Airood referred petitioner to C. Tobenna Okeezie, M.D.  Petitioner was seen by Dr. Okeezie on December 8,  2004. Dr. Okeezie’s treating record for that date (P-3 Evid) indicates that petitioner was referred to him for evaluation of pain in her right knee for about two to three months and petitioner denies any antecedent trauma of the right knee. On January 6, 2005, Dr. Okeezie performed arthroscopy surgery on petitioner’s right knee, which included a partial medial meniscectomy, chondroplasty of the medial femoral condyle and chondroplasty of the patella. (P-5 Evid.). Petitioner then  received physical  therapy, post surgery.  Thereafter, in January 2005, petitioner returned to Florida, and  received treatment for her right knee and right arm from  Dr. Franklin Rodrigues, a chiropractor,  until  January, 2007. 

            At some point, petitioner filed an application for temporary disability benefits with respondent’s temporary disability benefits insurance carrier, Unum Life Insurance Company of America (R-4 Evid).  The part of the application completed by Dr. Okeezie is dated January 5, 2005 and indicates the diagnosis as medial meniscus tear, the nature of treatment as right knee arthroscopy and that petitioner’s disability is not related to petitioner’s employment. The part of  the application completed and signed by petitioner,  dated January 12, 2005, indicates that petitioner’s disability is not due to  a “Work-related Injury/ Sickness”, but is due to   “Other Accident.”

            Correspondence from Christine Masley, Disability Benefits Specialist with Unum Life Insurance Company of America to the petitioner, dated January 24, 2005 (R-4 Evid) indicates that petitioner’s request for temporary disability benefits had been approved because her sickness or injury was not caused by petitioner’s job.

            Petitioner testified that presently she cannot work. She cannot walk long distances. She  has very intense knee pain. On some days the knee is very swollen. She has difficulty going up and down stairs and performing household chores which require bending.           

            Judy Fernandez testified on behalf of respondent. Ms Fernandez is employed by respondent as an Environmental Service Supervisor and was so employed as petitioner’s supervisor on November 1, 2004. Ms. Fernandez testified that she does not recall if she was working on November 1, 2004. She does not recall any incident involving the petitioner injuring her knee on November 1, 2004, she does not recall being contacted by Maria Ensico regarding an injury to petitioner, she does not recall telling petitioner to apply ice to her knee and to go home. She testified that petitioner never reported the accident of November 1, 2004 to her. Ms Fernandez   further testified that the procedure to be followed when an employee is involved in an accident is that the employee is to contact a supervisor and the supervisor completes an incident report and offer to the injured employee treatment at respondent’s emergency room. The supervisor will document if the employee refuses the treatment. Ms. Fernandez has no knowledge of an incident report ever being completed for petitioner for an accident on November 1, 2004.

            At a subsequent hearing on December 5, 2007, respondent entered into evidence The Valley Hospital Attendance Tracking form for Judy Fernandez, dated October 30, 2004 through December 30, 2004 (R-3 Evid.) which indicates that Ms Fernandez was in fact not working on November 1, 2004.

            David M. Porter, M.D. testified on behalf of petitioner. Dr. Porter is Board Certified in the field of Family Medicine. Dr. Porter had seen petitioner on January 12, 2007. He took a history from petitioner in which petitioner stated that while employed by the Valley Hospital in Ridgewood in the Housekeeping Department, she injured her right knee while cleaning and attempting to stand up from a squatting position. Petitioner stated that she had no pre-existing accidents or injuries. Petitioner indicated to Dr. Porter that she had pain, soreness and stiffness in the right knee, foot pain and that she walked with a limp and a cane and  she had pain in the left hip and knee. She stated she had difficulty with lifting, driving, cleaning, standing, squatting, climbing stairs, walking, sleeping and that her daily activities were limited and caused increased pain. Dr. Porter examined petitioner and found that there were scars from a previous surgery that petitioner had undergone during a suprapatellar effusion. There was  a collection of fluid above the kneecap. There was pain with extension and flexion, both being decreased by 5 to 10 degrees compared to normal. There was slight laxity of the anterior cruciate ligament and there was pain with stress maneuvers to the medial and lateral meniscus. Dr. Porter took physical measurements and found petitioner to be 5’ 6” and 225lbs. Dr. Porter reviewed the operative report of Dr. Okezie from Valley Hospital, the treating records of Dr. Okezie from December 2004 through January, 2005 ,an MRI report from Valley Hospital and  physical therapy records from Dr. Rodriguez. 

            Dr. Porter’s diagnosis was post-traumatic medial meniscus tear of the right knee with operative repair. Initially, Dr. Porter testified that petitioner has a permanent orthopedic disability of 45% of the right leg. . However, Dr. Porter acknowledged that he had subsequently been provided with additional records of Dr. Airood, which pre-date the accident of November1, 2004  and indicate that  Dr. Airood, who is a rheumatologist, treated petitioner from September, 2003 through November 1, 2004 for osteoarthritis of the right knee.  Dr. Porter testified that based upon his review of these records, his original estimate of orthopedic disability of 45% of the right leg is modified to reflect that 10% of the disability as pre-existing.

            Dr. Porter further testified that based upon his review of a Hypothetical Question prepared by petitioner’s counsel (P-7 Evid), and within a reasonable degree of medical probability, the incident described by petitioner that she was on her knees cleaning a refrigerator and upon rising felt terrible pain in the right knee and was unable to get up is consistent with the torn meniscus that was diagnosed and may have prompted the tear.

            In response to questioning by the court, Dr. Porter testified that when you have a degenerative joint, particularly a weight bearing joint, the hydration of the disc, in this case the meniscus, is lost and when the hydration is lost, the elastic fibers within the disc itself become much less elastic and therefore much more prone to trauma. However, Dr. Porter also testified that considering the condition of petitioner’s right knee prior to November 1, 2004, the tear of petitioner’s right knee medial meniscus could have occurred without any type of trauma and could have occurred as a result of normal activities of daily living. On re-direct examination by petitioner’s attorney, Dr. Porter described some of those activities as navigating stairs while carrying groceries or squatting down to pick up or play with small children.

            Mark E. Maletsky, M.D. testified on behalf of respondent. According to Dr. Maletsky’s Curriculum Vitae (R-5 Evid) he is  Board Certified in Orthopaedic Surgery. On January 10, 2007, Dr.  Maletsky  obtained a history from petitioner. According to Dr. Maletsky’s report (R-7 Evid), petitioner related to him, with the assistance of an interpreter, that on November 1, 2004 she was injured at work. She stated that she was kneeling down to clean a refrigerator when she developed pain in the right knee and  could not return to a standing position. Petitioner gave no history of any prior or subsequent injuries to the right knee.  Petitioner complained of  right knee pain, which is worse when walking. She feels like her leg goes out to the side. She usually walks with a cane or uses a motorized scooter when she is in a store. She has difficulty walking. She cannot stand for any length of time and she has difficulty bending. The right knee swells at times.

               Dr. Maletsky’s examined  petitioner and found range of motion was present from 0 to 105 degrees of flexion versus 125 degrees of flexion of the left knee. There was mild effusion of the right knee. There was tenderness over the lateral aspect of the right knee both at the joint line, as well as above and below the joint line. There was tenderness  over the medial side of the knee joint extending well above and below the joint line. Petitioner had some diffuse posterior knee pain upon palpitation. There was no pain with the McMurray test. There was some crepitus in the right knee, but actually there was more crepitus in the left knee. There was no calf atrophy.   

            Dr. Maletsky reviewed the treating record of Dr. Okezie dated December 8, 2004 (P-3 Evid),  an MRI report of the right knee, dated December 15, 2004 (P-5 Evid),  the operative report of Dr. Okezie (P-5 Evid) and the Valley Hospital Short Stay History and Physical Form, dated December 27, 2004 ( P-5 Evid). Dr. Maletsky also reviewed  a Hypothetical Question, prepared by respondent’s counsel (R-6 Evid).

            Dr. Maletsky estimated   that  petitioner has a disability  of 10% of the right leg  regardless of cause. Dr. Maletsky  does not  relate the injury to petitioner’s right knee as having occurred at work on November 1, 2004 because of the following: first,   the discrepancy between the history petitioner gave to him and the medical records of  Dr. Okezie (P-3 Evid), where it is indicated that  petitioner  “…was referred by Dr. Airood for  evaluation of pain in the right knee for about two to three months duration. The patient denies any antecedent trauma.”    Second, Dr. Maletsky would question the history given to him by the petitioner that she injured her right knee at work if petitioner submitted an application for temporary disability benefits which indicated that her injury was not work related.

Legal Analysis

               It is undisputed that in a Worker’s Compensation case, the burden rests upon the petitioner, who must persuade the trier of fact by a preponderance of the credible evidence on each and every element of  her claim. Perez v. Pantasote, Inc., 95 NJ 105 (1984). It is also undisputed that respondent is subject to the same evidentiary standard on those elements of the case where it bears the burden of proof. Fiore v. Consolidated Freightways, 140 NJ 452 (1995).

            Pursuant to N.J.S.A. 34:15-7, the burden is upon the petitioner to prove by a preponderance of the evidence, that she suffered an accident which arose out of and in the course of employment. The statutory requirement that a compensable accident arise out of employment “looks to a causal connection between the employment and the injury.” Coleman v. Cycle Transformer Corp., 105 NJ 285, 290 (1986).

            In the present case, I find petitioner not to be credible and that she has not presented even a scintilla of credible evidence to support her claim that the injury to her right knee arose out of and in the course of her employment with the respondent.

            To begin, although the claim petition alleges that the accident occurred on November 1, 2004, and respondent’s payroll records indicate petitioner was working on November 1, 2004, petitioner testified that she does not recall when  the accident occurred. She asserts that  at the time of the accident,  she requested a fellow employee, Maria Enciso,  to assist her as she attempted to stand and that Ms. Enciso notified  petitioner’s supervisor, Judith Fernandez of the accident. She testified that Ms. Fernandez told her to sit down and apply ice to the knee.  However, petitioner has failed to present any evidence to  refute the fact that  the attendance records of the respondent indicate that Ms. Fernandez was not working on November 1, 2004.

              What is most interesting to the court is that petitioner did not call  Ms. Ensico as a witness to corroborate petitioner’s testimony. The court infers from the non-production of Ms. Ensico that she would not have corroborated petitioner’s testimony.

            Petitioner’s credibility is further lacking based on the fact that subsequent to November 1, 2004, she continued to work from November 3, 2004 through November 5, 2004, November 8, 2004 through November 10, 2004, November 12, 2004, through November 15, 2004, November 18, 2004 through November 19, 2004 and November 22, 2004 through November 23, 2004 and did not seek any treatment for her injury during this time period. Thereafter, at some point subsequent to November 23, 2004, petitioner went on vacation to Florida. She does not recall the date in November she departed for Florida or how many days she stayed in Florida, but she does recall returning before Thanksgiving, which was earlier than she had planned to return. She testified that on the day she departed for Florida, she arrived at the airport, walked to the departure gate, boarded the aircraft, walked down the aisle of the aircraft, sat in her seat for several hours during the flight and upon arrival in Florida, walked off the aircraft. It was not until after petitioner returned from Florida that petitioner sought treatment for her injury, for the first time, on December 3, 2004. 

            Furthermore, petitioner testified that prior to November 1, 2004 she had been treated by Dr. Airood for pain in her right knee. Also, petitioner presented no evidence to rebut the note in Dr. Airood’s progress record of December 3, 2004, that there had been no recent trauma to petitioner’s right knee. Additionally, petitioner offered no evidence to rebut the entry in Dr. Okezie’s treating record that petitioner was referred by Dr. Airood for  evaluation of pain in the right knee for about two to three months duration and that petitioner denied any antecedent trauma.

            Finally, the fact that petitioner  submitted an application for temporary disability benefits, in which both  Dr. Okeezie and the petitioner indicated that petitioner’s disability  is not related to petitioner’s employment, makes  petitioner’s assertion that her injury occurred while working for the respondent even more untenable and not worthy of belief.

            As to the opinions of both medical experts, Dr. Maletsky’s opinion is that petitioner’s disability of the right knee is not related to an injury  alleged to have occurred at work on November 1, 2004.  Dr. Maletsky based his opinion on the following:  the discrepancy between the history petitioner gave to him and the medical records of  Dr. Okezie , where it is indicated that  petitioner  “…was referred by Dr. Airood for  evaluation of pain in the right knee for about two to three months duration. The patient denies any antecedent trauma” and the fact that petitioner submitted an application for temporary disability benefits indicating that her injury was not work related.  

            Dr. Porter opined that the incident described by petitioner that she was on her knees cleaning a refrigerator and upon rising felt terrible pain in the right knee and was unable to get up is consistent with the torn meniscus that was diagnosed and may have prompted the tear. However, Dr. Porter also testified that because of the degenerative condition of petitioner’s right knee and that  prior to November 1, 2004, Dr. Airood treated petitioner for osteoarthritis of the right knee, the tear of petitioner’s right knee, medial meniscus could have occurred without any type of trauma and could have occurred as a result of normal activities of daily living.

            After, considering the opinions of both doctors, I find the opinion of Dr. Maletsky  to be more credible and logical, both medically and factually. 

Conclusion

            For the foregoing reasons, I conclude that the petitioner has failed to sustain her burden of proving by a preponderance of the credible evidence that she suffered an accident which arose out of and in the course of her employment and the claim petition is dismissed, with prejudice.

            I will allow an interpreter fee to Phil Jauregui Interpreting Services, Union City, New Jersey, in the amount of  $150.00 to be paid by respondent.

            I will allow  a stenographic fee of  $600.00 to Global Court Reporting Services, to be paid by respondent.

            Respondent shall prepare and submit to the court an order which conforms with this decision.   

DATED: February 29, 2008

_________________________________
Philip A. Tornetta,
Judge of Compensation