State of New Jersey
DEPARTMENT OF LABOR

CHRISTINE TODD WHITMAN, Governor
MEL GELADE, Commissioner

July 9, 1999

Martin Rudnick, Esq
Rudnick, Addonizio et al
25 Village Court
Hazlet, N. J. 07730

James McKenna, Esq.
Lomell, Muccifori et al.
250 Washington Street
Toms River, N. J. 08754

re: Oddy v. Just Shirts - C.P. 93-017977

Gentlemen:

The issue before me in this matter is whether the respondent should be required to provide additional surgery in the nature of a dorsal column stimulator to petitioner as a means of reducing her lumbosacral and related radicular pain. Petitioner filed a Motion for Medical and Temporary Benefits in the course of pursuing her "reopener" claim. During December 1996 she had been found to be 50% (partial/total) disabled as the result of the residual effects of a fall from a ladder. Her injuries from such accident include a fracture of the coccyx, a herniated disc at level L5-S1 and significant radicular pain, notwithstanding a lumbar micro discectomy. During the period 1994 - 1996 petitioner's medical treatment included what Dr. Rosenblum, a neuro-surgeon, described as "virtually every type and configuration of nerve blocking and pain relieving procedures".

The surgery/treatment petitioner seeks is based upon the provisions of N.J.S.A. 34: 15-15 which provides that an employer must provide an injured worker with such medical treatment as shall be necessary to relieve the worker of the effects of his/her work-related injury and to restore the functions of the injured member or organ where such restoration is possible.

We heard the testimony of the petitioner and Dr. Hartwell, respondent's medical expert, while the testimony of petitioner's expert, Dr. Rosenblum, was presented through a court-approved deposition. In addition, respondent presented a surveillance video tape of petitioner (Exhibit R-1) taken during September 1998 through the testimony of a licensed private investigator.

In the course of the initial testimony of the petitioner (September 1998) she stated that she had constant pain in both legs, that the pain was "stronger" in the left and that it was hard for her to walk.

T-8/13/98, p. 5. She also testified that she had not sought medical treatment from late 1996 until early 1998 when she went to Dr. Rosenblum to get relief from "excruciating" pain. Two brief  hospitalizations followed during which she underwent various diagnostic tests, all of which proved normal or negative. Dr. Rosenblum, a practicing neuro-surgeon, testified that he found the most recent (1998) EMG test results to be consistent with chronic residual L5-S1 nerve damage and no new disc herniation. In such witness' view the radicular pain that petitioner suffers is a result of both nerve damage and scar tissue; he also stated that he found the petitioner to have predominant left lumbosacral radiculopathy. Dr. Rosenblum noted that he had office notes that supported his position that a dorsal column stimulator should have been implanted prior to the time that petitioner initially settled her claim against the respondent (1996).

Dr. Hartwell, a practicing neuro-surgeon, examined the petitioner during September 1998. He testified that he found the petitioner to be less than cooperative in the course of such examination,  since he did not believe that the petitioner was giving him an "honest" effort and did not respond to his instructions and questions in a manner that he would consider to be a true reflection of her physical capacity. As regards the use of a spinal column stimulator for the treatment of radicular pain  Dr. Hartwell stated that 4 criteria must first be satisfied to meet the established medical protocol for such medical procedure/surgery: location of pain, type of pain, objective (clinical) findings, and a personality profile of the patient. He then stated that in his view the petitioner did not meet any of such criteria which substantially limits the success of an implantation procedure.

By way of illustrating why the petitioner failed to meet the criteria Dr. Hartwell noted that (I) her complaints of pain were diffuse rather than specific in nature, (ii) her description of the pain she suffered was other than nerve-related (burning or sharp), and (iii) he found petitioner to be substantially wanting in the "personality profile" area due to the lack of honesty that she showed in the presentation of her physical condition at the time of his examination, e.g. "she could barely walk, stand, sit, (or) move her legs in any way" versus the physical abilities she displayed less than 2 weeks later when she was video taped on 3 different days. Such film (Exh. R-1) presented petitioner:

a) getting into and out of her automobile in a normal manner and without apparent difficulty or effort, as well as driving the vehicle;

b) performing a rather thorough cleaning of the interior of her car at a self-service location,

including roughly 20 minutes of consecutive bending, squatting, reaching and lifting activity;

c) carrying items she had purchased in a store to her car and reaching into the rear seat of her vehicle to rearrange a child's safety seat in order to place her purchases into the rear seat area, following roughly 90 minutes of shopping.

After seeing the video in question Dr. Hartwell found the petitioner to be guilty of symptom magnification and stated that in his view she was not a proper candidate for a spinal column stimulator. He further expressed the view that petitioner, based on the activities that she showed herself capable of doing on the video film, was capable of light duty or sedentary work with restrictions on lifting, repetitive stair or step climbing, and with sitting or standing limited to 20-30 minutes at a time.

I note for the record at this point that the petitioner's activities on Exhibit R-1 were filmed on  three out of four consecutive days. I find this fact to be significant since it shows that the activities of the first two days did not incapacitate the petitioner from continuing to perform "normal" physical activities on the last day that she was filmed. Further, I find the petitioner's rebuttal testimony relative to her filmed activity to border on the absurd, i.e. she "had a lot going on then" due to family problems or commitments. In short, the petitioner's activity during the period September 18 - 21, 1998 showed (I) she was grossly dishonest in presenting her physical condition to Dr. Hartwell on September 8, 1998, and (ii) that she was able to perform physical activity(ies) such as walking, bending, standing and squatting without aid or apparent effort aside from the fact that she did exhibit pain or spasm in her left leg on a few occasions (by lifting the limb) in the course of her car cleaning activity.

Of additional note in reviewing this file and petitioner's state of health, as well as the level of credibility to be given her testimony regarding her physical condition, is the fact that during the period 1996 to date, 3 other doctors, in addition to Dr. Hartwell, have found her to be guilty of symptom magnification in the course of conducting their respective physical examinations of petitioner, i.e.

Drs. Brustein, Fries and Frankel. Further, according to Dr. Fries, who measured the petitioner's legs to determine comparative girth, her left leg displayed no sign of atrophy as of August 30, 1996. Lastly, none of the objective testing procedures to which petitioner has submitted since the date of her prior award (i.e. EMG, MRI, myelogram, post myelogram CT scan) have been read/interpreted as normal or negative for any finding other than left side radiculopathy, a condition that she admitted having at the time of her prior award in December 1996.

I found Dr. Hartwell a convincing witness. His academic training and medical experience qualify him  as an expert on the issue to which he testified. His testimony was both direct and easy to follow. The fact that he (I) is currently practicing as a neuro-surgeon, rather than a doctor who devotes a significant portion of time to forensic matters, and (ii) has no personal interest in the outcome of this motion beyond stating his views or opinions, adds to the objectivity of his opinion. I note in addition that petitioner did not seek to rebut the detailed testimony Dr. Hartwell offered regarding current medical protocol preliminary to the installation of a spinal column stimulator.

Based on the above findings it is my decision that petitioner has not met her burden of proof insofar as requiring respondent to provide her with the installation of a spinal column stimulator at this time. I further find that petitioner has not presented the necessary authorization and other pertinent information regarding the various medical bills that were marked as Exhibit R-2. Accordingly, I find  that respondent has no obligation to either pay or reimburse petitioner for same. Respondent shall pay J. Trainor, Inc. a stenographic fee of $300.

I will enter an appropriate order incorporating the above findings; the case will be returned to the pre-trial list. I would encourage the parties to obtain permanency examinations so that this case can be completed later this year.

Neale F. Hooley
Judge of Compensation