CP #'s 2004-21284, 2006-22094, 2006-8332 Ochoa v. Passaic Valley Sewerage Commission
AND WORKFORCE DEVELOPMENT
DIVISION OF WORKERS’ COMPENSATION
C.P. No.’s 2004-21284, 2006-22094, 2006-8332
PASSAIC VALLEY SEWERAGE COMMISSION,
BEFORE: Jill M. Fader
Judge of Compensation
This is the Court’s decision in the matter of Luis Ochoa v. Passaic Valley Sewerage Commission, Claim Petition 2004-21284, 2006-22094 and 2006-8332 which were consolidated for purposes of this trial. Respondent stipulated that Petitioner was in its employ on the dates alleged and that his gross weekly wage was $1400 in 2004 and $1,417.06 in 2006, which is sufficient to give rise to the maximum rates for temporary disability and permanent disability for each of the corresponding years. All other issues were in dispute as evidenced by the Pretrial Memorandum dated October 10, 2007 which was marked into evidence as C-1. There is an outstanding State of New Jersey Temporary Disability Lien in the amount of $8,438.89 for benefits paid for a disability period commending May 1, 2006 through October 11, 2006 while under unauthorized treatment for his back and neck. Petitioner qualified for Social Security Disability benefits as of October 1, 2006 and became Medicare entitled as of October 1, 2008. Finally, Petitioner has applied for an Ordinary Disability Pension, which was denied and is under appeal. The parties have submitted Proposed Findings of Fact and Conclusions of Law which have been marked into evidence.
With respect to his occupational pulmonary claim, Petitioner testified that he worked for the Respondent from January 1990 until April 19, 2006 as an electrician. Petitioner testified that he worked primarily at Respondent’s main facility in Newark, which he described as “a very big place that contains a lot of processes, dirty water, also sanitary ones, disposal ones, disposable ones, yes that they come to this process in which it embodies chemicals, chemical processes.” (T. LO p.6 lines 22-25; p. 7 lines 1-2) When asked specifically what chemicals he was exposed to, Petitioner responded, “I’m ignorant at that sort of material, but I do remember chlorine…” (See T. LO p. 7 lines 16-19). Respondent also acknowledged in its Answers to Occupational Interrogatories that in the course of his employment, Petitioner routinely used a compound called Electra Clean as indicated on a Material Data Safety Sheet (see P-3 in evidence). Petitioner offered no evidence as to the period of exposure, the quantity or concentration of exposure with respect to either chlorine or Electra Clean. Petitioner also acknowledged that he was provided with two types of safety masks to be utilized in certain designated areas of the plant and that he received training in both how to use the mask and where to use the mask. (See T. LO p. 52 lines 1-13).
Petitioner testified that as a result of his exposure to numerous “venomous poisonous liquids” that after walking for short periods of time he “feels the need to grasp for air” and that going up small steps or stairs is difficult because he “cannot breathe and sustain air.” (See T. LO p. 13 lines 20-25) Petitioner testified that, because he has no medical insurance, he is not under treatment for his breathing problems, nor is he taking any medications, either over the counter, or prescription, for his breathing problems. Petitioner testified that he went to Dr. Alvaro Tellez, his family doctor, in early 2006 due to breathing problems and that Dr. Tellez referred him to Holy Name Hospital in February 2006.
Petitioner’s pulmonary expert, Dr. Jeffrey Nahmias, testified that he examined Petitioner on March 16, 2007. Dr. Nahmias testified that he found objective medical evidence of occupational asthma which is causally related to his noxious fumes exposure. Dr. Nahmias based his diagnosis, in part, on the history he took from the Petitioner that he was exposed to “copious amounts of chlorine” and “other chemicals and sewage” that put off “very noxious fumes.” Petitioner however, failed to produce objective, quantitative evidence that the exposure allegedly suffered while employed by Respondent was anything other than de minimus. A decision in an occupational exposure case must be based on “objective, quantitative evidence…and cannot be based upon the claimant’s subjective characterization of the work environment.” Laffey v. City of Jersey City, 289 N.J.Super. 292 (App.Div.), certif.. denied, 146 N.J. 500 (1996) In the Court’s opinion, Dr. Nahmias has asserted a causal relationship without a credible foundation. Therefore, the Petitioner has failed to sustain his burden of proof with respect to Claim Petition 2006-8332.
Petitioner’s occupational orthopedic claim alleges a disability to his right and left knees and right shoulder for a period of exposure from August 2003 through April 2004. Petitioner testified that on or around August 2003 he was moved to a different department and his new duties required him to work in a squatting position, work on his knees, and run connections at ground level which required him to lie down on his right shoulder. By April of 2004, Petitioner testified that he was in such pain that he saw his family doctor, Dr. Tellez, who referred him to an orthopedic specialist, Dr. Kayal. Apparently, Petitioner’s work assignment was then changed to accommodate his discomfort (See R-3 in evidence.) Petitioner testified that he received approximately two months of physical therapy for his knees and no treatment for his shoulder. (See T. LO p. 53 lines 11-25; p. 54 lines1-2) Petitioner did not testify as to any time lost from work as a result of these injuries or present any medical proofs that he was not able to work as a result of an injury to his knees or right shoulder during that time period.
Petitioner testified that as a result of the orthopedic occupational exposure, that he has “constant pain.” The pain in his left knee is “like a dog that is biting you sometimes.” (See T. LO p. 20 lines 6-7) With respect to the pain in his right knee, “week by week it starts increasing, the pain. The joint is swollen.” (See T. LO p. 20 lines 8-11) Although the Petitioner testified extensively regarding his complaints to his right shoulder and the very limited use he has with his right arm as a result of the alleged shoulder injury, Petitioner gave no complaints to Dr. Tiger regarding his right shoulder at the time of his examination in March 2007. As such, Dr. Tiger gave no opinion regarding permanent disability with respect to the right shoulder. Therefore, Petitioner’s claim for a disability to his right shoulder is dismissed for failure to sustain the burden of proof. It is curious to this Court that Dr. Tiger did not note any disability to Petitioner’s right shoulder during his examination of Petitioner when only six months later, Petitioner testified before this Court at length about the limited use of his right shoulder, even demonstrating for the Court the limited use of his arm. It certainly calls into question the credibility of the Petitioner.
With regard to the alleged disability to Petitioner’s knees, Dr. Tiger testified that Petitioner had objective findings of traumatic chondromalacia patella, fluid accumulation and arthrofibrosis, as well as a tear of the left medial meniscus which he estimated to be 30% of the right leg and 35% of the left leg. Among Dr. Tiger’s objective findings were a positive patellofemoral grinding and compression test, which the Doctor admitted could also be caused by an arthritic condition. However, the Doctor’s opinion was that this arthritic condition was aggravated, accelerated or exacerbated by the occupational exposure. In the Doctor’s opinion, the meniscus tear in Petitioner’s left knee as evidenced by an MRI performed in September 2006, was causally related to the occupational exposure and the “direct trauma” of the accident of April 19, 2006 which is the subject of Petitioner’s third claim petition, CP 2006-22094.
Respondent’s orthopedic expert, Dr. Andrew Hutter, examined Petitioner on two occasions. He first examined him on July 12, 2005 for the orthopedic occupational exposure claim, and issued a report wherein he concluded that Petitioner suffered from arthritis in his knees and right shoulder (See R-3 in evidence). Dr. Hutter testified, however, that Petitioner’s arthritic condition is not causally related to his work conditions. It was the opinion of Dr. Hutter that Petitioner’s age, and weight were the primary contributing factors to Petitioner’s degenerative condition with his knees. Dr. Hutter testified that he personally reviewed the films of an MRI performed on July 12, 2004 which showed degenerative changes on the medial side of the inside of the left knee with no evidence of a tear. (Court’s emphasis) Dr. Hutter also personally reviewed the X-Ray of Petitioner’s right knee from May 2004 which was “normal” as well as x-rays of Petitioner’s shoulder which were “normal.” (See T. AH p. 8 lines 20-25 and p. 9 lines 1-6).
Both Dr. Tiger and Dr. Hutter agree that the Petitioner has an arthritic condition in his knees. However, I find the opinion of Dr. Hutter that his condition is not causally related to Petitioner’s occupation more credible for several reasons. First, Dr. Hutter had the benefit of examining Petitioner on two separate occasions, the first being July 2005 for the occupational exposure claim. Unlike Dr. Tiger, Dr. Hutter had the benefit of reading the objective, medical evidence, namely, the MRI films and x-rays themselves rather than just the reports. Persuasive to the Court was that Dr. Tiger candidly agreed that Petitioner’s weight was a factor contributing to Petitioner’s arthritic condition, although he felt it was a small factor. After careful consideration of the testimony of the experts, and Petitioner’s own testimony confirming the paucity of treatment for his knees following the alleged exposure period, I find the Petitioner has failed to sustain the burden of proof that he suffered a permanent disability to his knees that can be causally related to his occupational exposure for the period August 2003 through April 2004.
Petitioner’s final claim alleges an accident of April 19, 2006 wherein he injured his head, neck and back. Petitioner testified that he was sitting on an upside down bucket, leaning forward when the front edge of the bucket slipped out from under him. Petitioner tried to stand straight up so as not to fall into the electrical panel, and fell backward into a pipe behind him striking his head, neck and back. (See T. LO p. 23 lines 15-25; p. 24 lines). Petitioner testified that he screamed out, fell to the ground, and was discovered by a co-worker. Petitioner testified that he reported the injury to his immediate boss, Mike Morsey, and was referred to the Concentra clinic where x-rays were taken and pain medication prescribed. Petitioner contends he was discharged from treatment after his second visit to Concentra.
Respondent has denied the accident. However, Respondent did not produce any witnesses to refute Petitioner’s testimony that he reported the accident to Mike Morrissey or that he was referred to Concentra for treatment immediately following the accident. Based upon Petitioner’s unrefuted testimony, I find that Petitioner did suffer an accident on April 19, 2006 wherein he injured his head, neck and back. Petitioner treated unauthorized with a chiropractor, Dr. Golden, who certified for the New Jersey Department of Labor and Workforce Development that Petitioner was under his care, and unable to work, for the period May 1, 2006 through December 22, 2006. The Division of Temporary Disability Insurance confirmed for the Court that Petitioner received State Temporary Disability benefits totaling $8,438.89 for the period May 1, 2006 through October 11, 2006 and, that benefits were suspended when Petitioner was awarded Social Security Disability benefits effective October 1, 2006. (See C-2 in evidence.) I find Petitioner was entitled to temporary total disability benefits for the period of May 1, 2006 through September 30, 2006, or 21 5/7 weeks at $691 per week for a total of $15,004.58. The Respondent shall reimburse the State of New Jersey its lien and the pay Petitioner the differential.
The claim petition was amended in December of 2006 to include an allegation of an injury to both knees. This I suppose after an MRI in September 2006 found evidence of a torn meniscus in Petitioner’s left knee. Dr. Tiger causally related the torn meniscus to a combination of the occupational exposure and to the “direct trauma” suffered in the accident of April 19, 2006. I note, however, that when Petitioner applied for State Temporary disability benefits in August of 2006, his application only noted injuries to his head, neck, and back. Furthermore, Petitioner’s own testimony before this Court does not describe a “direct trauma” to his knees. On cross-examination, when confronted with Petitioner’s testimony that he stood straight up and fell backwards, Dr. Tiger clarified that the “direct trauma” suffered to Petitioner’s knees was that Petitioner “…did injure his body. I’ll agree it did contribute to it but in a small way.” (See T. AT p. 15 lines 10-20). This de minimus contribution fails to compel the Court to find causal relationship. I find Dr. Hutter’s opinion that a “tear involves some kind of twisting injury, not just up and down injury” as described by Petitioner to be more credible. Furthermore, the MRI of Petitioner’s left knee, performed on July 12, 2004, immediately following the period of occupational exposure, shows degenerative changes only and no evidence of a tear. As such, I find Petitioner fails to sustain the burden of proof that the torn meniscus in his left knee is causally related to either the accident of April 19, 2006 or the occupational exposure.
With regard to the nature and extent of any permanent disability to Petitioner’s head, neck and back, our statute and case law are clear. Section 36 of the Workers’ Compensation Act defines permanent disability. Only significant injuries are entitled to awards of permanent disability. In determining whether an injury is significant and entitled to an award of permanent disability, or minor and not entitled to an award, I must be governed by the credible proofs before me. I must be satisfied that the petitioner has sustained a lessening to a material degree of his work or out of work ability and those proofs must be corroborated by objective medical evidence. Lacking either aspect of proof, no award can be allowed.
Regarding this particular case, I have listened to the testimony of the petitioner, the medical experts and I have reviewed the medical reports and records submitted into evidence by both parties. I do not find petitioner’s testimony to be credible. Petitioner testified that after this accident he “feels like somebody is whipping from the bottom of his low back to the top of his neck.” “When I cough, I feel like it’s a small explosion on my back and on my ribs.” (See T. LO p. 33 lines 8-25) The Petitioner testified that he can’t bend over to tie his shoes or carry things. He testified about having to wear pain patches, although during cross-examination, admitted that the last time he used a pain patch was “a long time ago.” (See T. LO p. 36 lines 12-19) Petitioner testified that he does nothing but stay home and go to church because of these injuries. Of course, as noted previously herein, the Petitioner also testified that he can barely use his right arm because of his alleged shoulder injury, yet he failed to give Dr. Tiger, his examining physician for purposes of permanency, any complaints regarding that injury just six months prior.
In essence, I agree with Dr. Hutter who opined that Petitioner suffered soft tissue injuries to his neck and back that have resolved and that Petitioner’s subjective complaints are out of proportion to the objective findings. Petitioner’s own expert, Dr. Tiger, testified that he reviewed the MRI report of Petitioner’s neck, thoracic and lumbar spine that diagnosed “a chronic cervical, thoracic and lumbosacral strain syndrome, myofascitis and multiple levels of bulging discs.” Of significance to the Court was Dr. Tiger’s testimony that he found the Petitioner to be neurologically in tact. When questioned by the Court, the doctor confirmed that the MRI did not indicate any impingement on nerve roots as a result of the bulging discs. When asked why the Petitioner would be unable to bend over to tie his shoes as a result of the bulging disc, the doctor seem somewhat perplexed although he responded that it must be a combination of muscle injury as well as the mechanical effect of the bulge. Dr. Tiger also conceded that the Petitioner’s body habitus could contribute to Petitioner’s limitations in range of motion (See T. AT p. 28 lines 18-20) and that an injury to a muscle is not always a permanent injury (See T. AT p. 26 lines 5-17).
Accordingly, I find that the petitioner has failed to satisfy the requirements of Section 36 and is not entitled to an award of permanent disability. Fees are as more fully detailed in the Order.
Jill M. Fader
Judge of Compensation
 This is a denied occupational claim petition alleging injuries to both knees and right shoulder for a period of exposure September 2003 through April 2004.
 This is a denied accident of 4/19/06 alleging injuries to the head, neck and back.
 This is a denied occupational claim petition alleging a pulmonary disability for a period of exposure through March 2006.
 Petitioner testified he is 5’2” to 5’3” and weighs 220 to 230 pounds.