State of New Jersey
DEPARTMENT OF LABOR

December 22, 2000

re: Morris v. Aramark – 99-004143

Gentlemen:

Following the testimony of Dr. F Krengel, petitioner’s expert medical witness in this matter, the respondent filed a motion seeking to dismiss the petitioner’s claim on two (2) alternate bases, (a) that the petitioner’s experts medical witness, Dr. Krengel, had been unable to distinguish/apportion the extent of permanent disability, if any, which petitioner suffered from a pre-existing injury/condition, and (b) that Dr. Krengel’s failure to present an adequate understanding of the phrase "reasonable medical probability" rendered his testimony "incompetent".

To appreciate the first of such arguments it is necessary to consider petitioner’s medical history. The industrial accident upon which her claim is based occurred during May 1998. Later in the same year (October 11^th) she fell at home suffering a fracture of the right ankle. Dr. Krengel did not examine the petitioner until January 2000, over 2 years following petitioner’s later accident. The respondent makes the argument that the petitioner’s later accident had an effect on her back and that it should therefore be given a credit in the calculation of permanent orthopedic disability relating to the petitioner’s earlier industrial accident. While respondent may well make such argument, the fact of the matter is that neither of the medical experts who are identified on the pre-trial memorandum for this case examined the petitioner until more that 6 months after her later accident.

The case law on this issue does not support respondent’s position. Rather, I find that in situations where more than one accident or injury affecting the same body part has occurred without medical evaluation between such accidents, the court has the obligation of reviewing the medical records pertaining to the various incidents and apportioning disability on the basis of objective medical evidence presented. Quinn v. Automatic Sprinkler Co., 50 N.J. Super. 468, 477 (App. Div. 1958). Conversely, where there is no showing that later accidents increased the claimant’s permanent disability as to a particular body part, there is no basis for apportionment. Kosinsky v. Edison Prd. Co., 222 N.J. Super. 530, 537 (App. Div. 1988). Accordingly, I must deny respondent’s motion on the first of the points noted above. As when I render an opinion on apportionment of disability, or the lack of same, the respondent is of course entitled to file an appeal with the Appellate Division.

The second of respondent’s arguments concerns Dr. Krengel’s testimony as regard’s to petitioner’s alleged "loss of function" due to her industrial accident. Though I both appreciate and understand the point of such argument in light of the text of Dr. Krengel’s continued response to adversary counsel’s questioning, the fact remains that Dr. Krengel did provide both detailed testimony and an opinion (in figures) as to his objective examination findings regarding petitioner’s loss of physical abilities due to her industrial accident. I am of the opinion that his testimony is sufficiently clear and understandable that it can, if accepted by the court, form the basis of a judgment awarding petitioner a measure of permanent orthopedic disability. I note on this issue that Dr. Krengel took the position that it was his duty to physically examine claimants and to generate a written report of such examination which detailed his findings. He does not "convert" such findings, viz. A loss of range of motion or an inability to sit or stand for normal periods of time, into a "loss of function" that is specifically related to the claimant’s employment. I am satisfied, however, that his objective examination findings are sufficiently well stated that they can be, with the claimant’s testimony, found to be the proper basis for an award of orthopedic disability. I also note the petitioner’s testimony regarding the change of lifestyle following her industrial accident that has included a shift in the nature of her employment and her physical abilities.

The last of respondent counsel’s arguments is based on his understanding of the court’s holding in Schrantz v. Luancing, 218 N.J. Super. 434 (Law Div. 1986). To begin with, all parties agree that medical opinion testimony must be couched in terms of "reasonable medical probability or certainty." In Schrantz, which was concerned with a medical malpractice action, a medical expert’s opinion was stricken on the grounds that such witness could not offer an acceptable definition of such phrase, + which the court then defined, in its opinion, as meaning the general consensus of recognized medical thought and opinion concerning the probabilities of conditions in the future based on present conditions. Dr. Krengel offered this definition:

"Most doctors (would) do the same thing, or (when) … face with the same set of findings … will come up with the same conclusion." (edited for clarity). See T-10/24/00, p. 50.

I find Dr. Krengel’s definition and understanding of the term in question to be sufficiently consistent with that presented in Schrantz, supra. As to justify the acceptance of his opinion in this case. In addition, I must question the application of what I will refer to as the Schrantz standard of medical competency to the testimony of a physician whose opinion is sought solely with respect to the evaluation of orthopedic disabilities resulting from industrial accidents. I note in this area that the Schrantz case related to testimony evaluating the treatment given a patient while the testimony of Dr. Krengel in this case related solely to the evaluation of the residual effects of a prior injury.

For the foregoing reasons, respondent’s motion to dismiss petitioner’s claim petition is denied at this point on all grounds. This case will continue and I expect the respondent’s medical expert to testify on or before February 9, 2001.

Neale F. Hooley
Judge of Compensation