CP# 2009-1472 Moscoso v. Chief Fire Equipment & Service Co
DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT
DIVISION OF WORKERS’ COMPENSATION
C.P. #: 2009-1472
vs. RESERVED DECISION
Chief Fire Equipment & Service Co.,
Livingston, Siegel, Di Marzio & Baptista, Esqs.
By: Frank Di Marzio, Esq.
Attorneys for Petitioner.
Braff, Harris & Sukoneck, Esqs.
By: Keith Kandel, Esq.
Attorneys for Respondent.
The petitioner, Mauricio Moscoso worked for the respondent, Chief Fire Equipment & Service Co. as a sprinkler system installer. During the course of his employment he injured his back on 6/14/07. He sustained orthopedic and neurological residuals consisting of a disc bulge at L4-L5 and a herniated disc at L5-S1. Surgery ensued with a laminectomy and discectomy performed at the L5-S1 level and a decompression at the L4-L5 level with resulting left sided lumbar radiculopathy.
On 12/1/09 Judge Minniti approved and the petitioner accepted an award for 27 ½% or $36,921.
Mr. Moscoso is a young man. As of 2011 he is only 25 years old. The surgery performed in 2007 was complicated with removal of bone, pulpous and constricting fibers that impinge on the nerves located in the spinal canal. As such common sense and trial experience both dictate that such an award bespeaks a serious injury with related permanent residuals. One would therefore expect a certain quality of complaint arising from said disability on a permanent basis.
It is because of these complaints that Mr. Moscoso recently filed (on 12/28/10) an application for review or modification of his formal award seeking increased permanency benefits.
Shortly thereafter the petitioner filed a motion (on 6/14/11) seeking temporary disability and medical benefits. The respondent refused to voluntarily provide it. The motion was litigated with the petitioner, his expert, Dr. Tiger and respondent’s expert, Dr. Canario testifying before the court.
I am convinced that Mr. Moscoso wants the diagnostic test and believes that any future course of recommended treatment will improve his medical condition and relieve his pain.
However when considering this type of an application although the petitioner’s testimony is relevant, the issue is determined by medical opinion. The medical treatment sought must be reasonable and necessary. It must also improve his medical condition. In other words, it doesn’t really matter how much the petitioner subjectively complains if it is not corroborated by objective proofs.
In this regard, I find that the nature of Mr. Moscoso’s complaints have not significantly or substantially changed over the years. When I compare his testimony at the 12/1/09 hearing to his testimony of 7/5/11 in support of the motion for medical treatment, it is the same. His complaints remain static. For example, both times he complained of: radiating pain down the left leg; tightness in the low back that increases during inclement weather; pain in the low back; cannot play soccer; cannot jog; lifting causes pain.
As a matter of fact the petitioner has presented less complaints relating to functional loss this time than at the time of the settlement hearing in 2009. For example at that time he complained about restrictions in bending, kneeling, squatting and rotating that he did not complain about now. Moreover at that time he was taking prescription medication (Celebrex) for the pain and now he only takes analgesics such as Advil or Alleve.
The only new complaints presented are that the pain now travels down both legs; prolonged sitting increases pain; getting in and out of car increases pain.
In considering the demonstrable objective medical evidence of record the court notes procedurally what transpired off the record prior to any testimony.
On 12/16/10 Mr. Moscoso consults his family physician, Dr. Steven Belt. The doctor noted that petitioner’s chief complaint was low back pain without any sciatica. (This is important and significant because only two months later he conveys the opposite to Dr. Canario).
On 12/28/10 petitioner’s counsel forwards a letter directly to the carrier requesting authorized medical treatment due to substantially increased back complaints.
On 2/16/11 Dr. Canario conducts a physical examination and recommends that the petitioner: (1) return to the surgeon, Dr. Dorsky for a further opinion as to the necessity for resumed treatment and (2) submit to an MRI with gadolinium to confirm any reoccurrence of the disc post-surgery.
On 3/15/11 Dr. Dorsky consults with the petitioner, conducts a full physical examination and recommends no treatment whatsoever. The report explains that any right sided complaints of radiculitis or radiculopathy are not related to the left sided herniated disc arising from the subject work accident.
On 5/10/11 Dr. Tiger evaluates the petitioner and recommends that conservative modalities of treatment be authorized, i.e. an MRI to confirm the reoccurrence of the disc, physical therapy and perhaps epidurals if warranted, but no further surgery.
The court observes that the best course of action that a respondent can take when a treatment request is presented is to refer the petitioner back to the original provider. This is so because a treating physician’s opinion is entitled to be accorded more weight than a physician conducting a one-time evaluation. The respondent in this case did it backwards by first having the petitioner examined by Dr. Canario, the prior permanency evaluator whom himself recommended the standard course for review, i.e. an examination with Dr. Dorsky. Eventually as previously noted the petitioner did return to the surgeon. The doctor is Overlook Hospital’s Orthopedic Department’s Chief of Staff. After taking a history and conducting a physical examination he opined that the subjective complaints presented by the petitioner, i.e. right sided pain extending to the buttock and thigh were not related to the subject work accident. Moreover he couldn’t corroborate the subjective complaints upon physical testing. He found that right side nerve root tension signs were negative with normal motor examination and recommended no treatment at all.
Although he did not testify before the court his report is prima facie evidence on the issue of causality, reasonableness and necessity for resumed medical treatment. The petitioner has a right to rebut said evidence. Instead of conducting cross-examination of the doctor (petitioner failed to object to the submission of Dr. Dorsky’s report into evidence) they relied on the testimony of Dr. Tiger.
In deciding the issue of medical treatment the court has weighed the opinions of all three evaluators. All three (Dr. Dorsky, Dr. Tiger and Dr. Canario) are board certified orthopedic surgeons. Dr. Tiger and Dr. Canario have both retired from active surgery. Both have a limited treatment practice with the remainder revolving around physical evaluations and trial testimony. They have both testified before this court on dozens of occasions. Although I have considered their opinions the best credentialed physician to provide the court with a medical opinion would be the authorized medical provider that actually performed the surgery. Dr. Dorsky has an established doctor-patient relationship with the petitioner. His opinion and explanation are entitled to be accorded more weight and is more persuasive than the opinions of either evaluator.
After reviewing all of the medical records, reports and trial testimony I am convinced that no course of treatment is warranted for three reasons.
First the petitioner has failed to prove that his subjective complaints of functionality have substantially worsened since he appeared before Judge Minniti in 2009. His complaints of right sided radiculopathy remain uncorroborated. His complaints of prolonged sitting exacerbated by getting in and out of the car are not sufficient to factually satisfy the standard of substantial worsening of the condition. He was performing the same job duties for about a year when he testified at the settlement hearing. Since then his work shift, hours worked, job duties with his current employer have remained the same.
Second the petitioner has consistently stated that most of the pain that he experiences remains in his low back with occasional pain traveling down either leg. In other words the radicular pain experienced into the buttocks (radiculitis) is constant and is not different from what he experienced for years prior to the hearing. Unfortunately for Mr. Moscoso who is a young man these are residuals of his permanent orthopedic condition. The pain he described as traveling down to the thigh of either the left, right or both legs is experienced infrequently. Several times during direct testimony the petitioner said so, “It radiates on the leg sometimes, but it’s just the lower back”.
The court notes again that when the petitioner consulted Dr. Belt he complained of no radiating pain i.e. no sciatica. This is basically the same testimony proffered at the settlement hearing. Infrequent or occasional manifestation of pain is not sufficient to satisfy the standard of substantial worsening of an established condition.
Lastly there are no objective medical proofs of a radiculopathy. From its vast trial experience the court has amassed much medical knowledge. All neurologists that have testified before this court have provided this court with the same explanation because it is the standard in the medical community. Pain that radiates from the low back into the buttock is orthopedic in nature resulting from muscular spasms and not neurological injury. If however the pain travels into the lower extremities, i.e. thigh, knee, calf, or toes it is neurological in nature. Subjective complaints of radiculopathy can be objectively corroborated. This is so because pain travels along a certain path of nerves referred to as a dermatome pathway. Pain that travels from an injured disc at levels located at L4, L5 or S1 can be tested by reflex at the knee and ankle joints. An absent or weakened reflex corroborates the radiculopathy complaints. Dr. Belt noted no complaints of sciatica. He prescribed pain killers (Mobic, Flexeril, Percocet) for the lower back pain. At the hearing petitioner testified that he did not fill the scripts. On the two occasions that Dr. Canario examined the petitioner (3/5/09 and 2/16/11) he found no weakness and normal reflexes both for the knee and the ankle bilaterally. Most importantly Dr. Dorsky opined (after physical examination) that testing for right side nerve root irritation was negative. He recommended no follow up treatment at all.
After the conclusion of petitioner’s case the respondent filed a motion to implead the subsequent employer, Apollo Health Street. Opposition papers were filed in response. Having found that no substantial worsening of his condition has been proven it becomes irrelevant whether petitioner’s employment either caused or contributed to the necessity for treatment.
The motion is moot.
The court will allow the following fees payable by the respondent:
$800 to Dr. Tiger for his medical report and testimony. In the event the doctor was prepaid for his appearance the court will reimburse said fee from the amount allowed herein.
This can be handled by amended order.
$500 to William C. O’Brien for their stenographic services.
The respondent is directed to prepare an order of dismissal with prejudice. Said order addresses not only the denial of medical treatment but also the closure of the reopener as the petitioner has failed to prove that his condition has substantially worsened.
The respondent is further directed to submit an order denying the motion to implead the subsequent employer as it is moot.
These orders are to be submitted to the court within five days from the date hereof.
Dated: October 28, 2011
_________________________________ Nilda C. Hernandez, J.W.C.