CP# 01-7864 Nevers v. Continental Airlines
DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT
DIVISION OF WORKERS' COMPENSATION
MONMOUTH COUNTY DISTRICT
C.P. # 2001-7864
For the Petitioner: SHEBELL & SHEBELL, Esquires
by:RAYMOND SHEBELL , Esquire
For the Respondent: LENAHAN & ROCKWELL, Esquires
by: MARK ROCKWELL, Esquire
LAWRENCE G. MONCHER, J.W.C.,
Continental Airlines employed Mr. Nevers as a part time airplane loader at Liberty International Airport, Newark. On January 6, 2001 Mr. Nevers’ right leg was crushed by a loading machine. He was taken by ambulance to University Hospital, Newark. Respondent paid temporary disability and medical treatment to a point and then discontinued treatment. Petitioner filed multiple motions for medical and temporary disability. After petitioner presented medical documentation of the need for medical treatment, all medical and temporary total disability issues were settled with only the amount of counsel fee to be determined.
At the time of the accident and for years before, Mr. Nevers worked part time for the respondent and worked full time as a security person for Jersey Shore Hospital of the Meridian Health System. Because of the consequences of this injury, he felt that could no longer perform the requirements of his former job at the airport, nor could he work on his feet as a security person. Mr. Nevers was out of work for more than a year and a half. During this time had had an intramedullar pin from his hip to the knee to stabilize the displaced fracture, screws holding together fragmented segments and endured 3 knee surgeries and one for removal of the pin. He now works for the hospital at a different job and does not take available overtime. This trial concerned the nature and extent of permanent partial disability and whether wage and rate for permanent disability were to be reconstructed to a 40 hour work week pursuant to the standards of Katsoris v. South Jersey Publishing Co.,, 131 N.J. 535 (1993).
The record in this case included of the testimony of petitioner; William Glucksman, M.D. who is an emergency room physician who saw petitioner on his entry into University Hospital emergency room; Brenda Shuler, a Human Resources Associate at Meridian Health, and 2 forensic physicians for each party. Petitioner’s expert witnesses were Floyd Krengel, D.O. for orthopedic disability and Lawrence Eisenstein, M.D. for neurological and psychiatric disability. Respondent’s expert witnesses were A. Gregory McClure, M.D. for orthopedic disability and Ivan R. Dressner, M.D. in psychiatry and neurology. There were 19 separate exhibits and 2 follow up letters from Ms. Shuler providing further information on Mr. Nevers’ employment record at Jersey Shore Medical Center.
I applied the following legal precepts to this record. The burden of proof here, as in all Workers Compensation contested cases, is on the petitioner who must produce the evidence and persuade the trier of fact by a preponderance of the credible evidence of the existence of each element of the claim. Lindquist v. City of Jersey City, 175 N.J. 244, 258-259 (1973); Perez v. Pantasote, Inc., 95 N.J. 105, 118 (1984).
Petitioner has the burden to prove . . . causal relation [and disability] by a preponderance of the evidence. All that is required is that the claimed conclusion from the offered facts must be a probable or a more probable hypothesis. . . The test is probability rather than a certainty. . . . However, the evidence must be such as to lead a reasonably cautious mind to the given conclusion. ‘The standard is one of reasonable probability; i.e., whether or not the evidence is of sufficient quality to generate a belief that the tendered hypothesis is in all likelihood the truth. It need not have the attribute of certainty, but it must be well founded in reason and logic, ere guess or conjecture is not a substitute for legal proof.’ [Citations omitted.] Laffey v. City of Jersey City, 289 N.J. Super. 292, 303(App. Div. 1996).
Once the worker has met this burden of proof, the burden of proof on alternative factual propositions and legal conclusions shifts to the employer. Lindquist v. City of Jersey City, supra. 175 N.J. 264-265; Gulick v. H.M. Enoch, Inc., 280 N.J. Super. 96, 109 (App. Div.1995).
The Workers’ Compensation Act “is remedial social legislation designed to place the costs of accidental injuries which are work-connected upon employers who may readily provide for them as operating expenses.” Secor v. Penn Service Garage, 19 N.J. 315, 319 (1955). Judges are directed to “liberally appl[y] [its provisions] . . . to protect employees in the event of work-related injuries . . .” Ibid. The Supreme Court has continually reiterated that the Workers' Compensation Act is to be liberally construed in order that its beneficent purposes may be accomplished. This directive for liberal construction of the Act continues. Lindquist v. City of Jersey City, supra.,175 N.J. at 257-258; Fiore v. Consolidated Freightways, 140 N.J. 452, 479 (1995); On the other hand, this directive to construe the act liberally does not extend to ignoring the burden of proof. It does not release petitioner from the burden to persuade the trier of fact that his factual contentions are valid. .Lindquist v. City of Jersey City, supra.,175 N.J. at 258.
The Worker's Compensation statute defines permanent disability as:
Disability permanent in quality and partial in character" [is] ... permanent impairment caused by a compensable accident or compensable occupational disease ... based on demonstrable objective medical evidence, which restricts the function of the body or its members or organs; included in the criteria which shall be considered shall be whether there has been a lessening to a material degree of an employee's working ability. ... Injuries such as minor lacerations, minor contusions, minor sprains, and scars which do not constitute significant disfigurement, and occupational diseases of a minor nature such as mild dermatitis and mild bronchitis shall not constitute permanent disability within the meaning of this definition. N.J.S.A. 34:15‑36.
The 1979 Worker's Compensation Reform Act added this definition along with the sliding scale for permanent partial disability definitions as a part of the legislative plan to install a pattern of cost containment for permanent disability awards as a balance for significantly increased disability benefits for seriously injured workers. L. 1979 c. 283; Fiore v. Consolidated Freightways, supra., 140 N.J. @ 468; Perez v. Pantasote, Inc., 95 N.J. supra. @ 110‑118 ; Saunderlin v E.I. Dupont Co., 102 N.J. 402 at 406‑410 (1986).
Mr. Nevers had worked for respondent since 1998 and for Meridian since 1995. At the time of the accident, Mr. Nevers was working at Newark Liberty Airport on a loading ramp when a co-employee improperly operated a freight loader which jammed and crushed Mr. Nevers' right leg between it and a freight container. When the loader was removed, Mr. Nevers fell several feet to the ground and sustained a butterfly fracture of the distal transverse of his right femur. There was some controversy about whether he was knocked unconscious, but considering the record of medical treatment, I find there was no evidence of head trauma or a post concussion syndrome which would cause his migraine headaches. Considering the trauma of the comminuted fracture of his right leg with distortion of the thigh, it is likely that he was in shock and experienced feelings similar to a concussion. The dorsum side of his right hand was lacerated and bruised.
He was transported by ambulance to the Emergency Department of University Hospital, Newark. He was in severe pain, complaining of his right thigh. He was given narcotic medication to lessen his pain and admitted to the Hospital and taken to the operating room. The fracture was repaired with surgical nails (screws) and with an intramedullar rod inserted from the hip to above the knee. He was discharged on a walker with wheels, given a physical therapy prescription, narcotic pain medication and then followed by physicians near his home in Monmouth County. He continued to have problems with his right lower limb and hip. He could not work at either his part time or full time job. He underwent 3 separate arthroscopic surgeries for repair of torn meniscus in his right knee with follow up physical therapy. On July 8, 2002, Dr. Joel Goldstein surgically removed the intramodullar rod from the right leg, prescribed a 3 week course of physical therapy, and opined that petitioner could return to work on July 22, 2002, which was a year and a half after the accident.
Mr. Nevers was left with a disfiguring surgical scar on his right hip approximately 5 inches in length, widened and keloidal. On clinical examination, the hip scars are tender. He was left with a limp favoring his right leg. There is another 1 ½ inch scar at the level of the knee where the rod was removed. There are multiple portal scars above the patella at the points of entrance for the multiple arthroscopic surgeries. There is generalized tenderness around the right knee. He complains of pain on rotation of the knee. Flexion of his right knee is limited to 110 degrees. Dr. McClure reported crepitus of the right knee. Dr. Krengel observed that toe stands and squats were one-half of expected movement.
His complaints of permanent impairment were that he no longer had the ability to work 2 jobs. For years before this incident, Mr. Nevers performed the physical demanding job of moving freight for respondent and worked 40 hours per week on his feet at Jersey Shore Hospital as a security officer. After medical discharge he tried physical work but after one day found he could not perform it. He tried to return to respondent in September 2001 on light duty, he worked one day. He was placed on recall but was never called. He believes that he could not return to the same duties he had with respondent. He was unsuccessful when he tried one day to do a somewhat similar job for United Parcel Service.
His former assignment at Jersey Shore Medical Center required he stand on his feet for a full day. He could not do that. Although the hospital personnel records do not contain any determination by the hospital limiting his activities, the hospital did transfer him to a driving job. He experienced extreme pain and discomfort when he had to spend a full work day behind the wheel. He estimates he could only drive for no more that 1 hour in the morning and 1 hour at the end of the day before his right leg would lock. Fortunately the hospital found another job for him which does not require that he drive a vehicle or spend most of the work day on his feet. He sits at a desk as a receiving coordinator and get up or sit as required. These job changes have resulted in a small decrease in his weekly wage. Although there is overtime work available, the hospital records confirm he has not performed any.
Mr. Nevers' right hand was injured as a consequence of being thrown to the ground. His hand was lacerated with a resulting scar of approximately ½ inch above the first metacarpal joint. The wound was dressed and he was discharged with no further treatment. The treatment records do contain recitation of his complaints of pain in the forearm. The right upper extremity probably injured as he tried to cushion his fall. At this point there is no objective medical evidence of physical pathology of damage to corroborate his complaints of pain and impairment in his right hand due to this injury. This scar causes no functional impairment and the amount of disfigurement is not substantial. See N.J.S.A.34:15-36.
His complaints of pain and limitation to his hip and leg are substantiated by the substantial medical pathology. Both Dr. Krengel and Dr. McClure opine significant permanent partial disability. Mr. Nevers’ complaints of constant pain in his hip, thigh and knee and his obvious limp are obvious consequences of the butterfly fracture and multiple surgeries and insertion of permanent screws and the temporary rod. If he sits for any length of time his leg locks. He experiences sleep disturbance because of the aforesaid pain. He can not kneel on his right knee. Bending at the hip causes pain in the back and hip. Climbing and descending steps are a problem for him. He now abstains from athletic activities such as biking and dancing. Perhaps more importantly, normal intimate relations with his significant other are disrupted by his physical impairment.
After years of working 2 physically demanding jobs, he can no longer earn significant wages to meet his needs. He is now 35 years of age and sees his opportunities for a fulfilling life have been debilitated. He is anxious and depressed. His family doctor has prescribed a tranquilizer, Ativan. With the serious physical impairment, limitation and sleep disturbance, the presence of an anxiety state diagnosed by Dr. Eisenstein is quite understandable. Dr. Dressner does not dispute petitioner’s physical impairment but his minimal approach describing all disability as orthopedic defies logic. I find the anxiety state is present to the extent of 10% but it completely overlaps the orthopedic disability.
His physical impairments are substantial. His education ended in high school and his work history consists of labor type jobs. His subjective complaints referable to his hip and leg are well documented by the physical changes. I find he can no longer perform heavy physical labor of the type he performed for Continental Airline. I note respondent did not recall him to work. It does take a bit of “chutzpah” to claim Mr. Nevers can perform all the heavy labor duties in his former job and at the same time not call him back to work or explain that action. There is a permanent reduction in his earning capacity not only at respondent but also there is significant permanent inability to maximize his earnings at Jersey Shore Medical Center. The past record shows he has not accepted overtime and his job changes have reduced his hourly wage.
For the these reasons I find that in compliance with Katsoris v. South Jersey Publishing Co.,, 131 N.J. 535 (1993), his wage for permanent partial disability purposes only should be reconstructed to a 40 hour week. His hourly wage at respondent was $10.20 per hour, thus the reconstructed wage is $408.00 per week, which yields a maximum partial permanent disability rate of 70% of that wage or $285.60 per week. The overall permanent partial disability is fifty percent (50%) for the orthopedic residuals of the crush injury of the right thigh including a butterfly fracture of the right femur including hip damage, sprain and derangement of the right knee with torn medial meniscus, post 3 surgical interventions and an overlapping anxiety state. His compensation rate does not reach maximum payable for 50% on the 2001 disability chart promulgated under N.J.S.A.3r:15-12(c) (22). The disability award is 300 weeks at $285.60 per week, a total of $85,680.00.
Floyd Krengel, D.O. for 2 examination and testimony is allowed $1,250, payable one-half each party.
Lawrence Eisenstein, M.D. for his examination and testimony is allowed $850.
Petitioner shall reimburse his attorney for the reasonable and necessary cost of medical records and trial transcripts. The costs shall be identified when the judgment is submitted.
For permanent disability award, Shebell and Shebell, LLC. is allowed an attorneys fee of $17,340, payable $11,040 by respondent and $6,300 by petitioner.
Respondent shall pay a stenographic fee to John F. Trainor, Inc. of $900.
Petitioner’s attorney shall prepare a form of judgment consistent with this decision. The parties are directed to make arrangements to retrieve their trial exhibits within 10 days as we do not have space to permanently store them.
Respondent is ordered to provide to the court and petitioner’s counsel a schedule of medical and temporary disability paid after the motions at which point counsel fee will be considered for the motions.
Dated: March 14, 2005. Lawrence G. Moncher
Lawrence G. Moncher, J.W.C.