BEFORE:                     HONORABLE STEPHEN TUBER
                                    Judge of Compensation

APPEARANCES: 

                                    FONTANELLA & BENEVENTO
                                    Attorney for the Petitioner

                                    HOWARD W. CRUSEY, JR., ESQ.
                                    Attorney for the Respondent

This is a written decision in the matter of Steven Paulson v. Knoble Construction, CP No. 2001-024811.

On June 29, 2001, Mr. Paulson while driving a company vehicle from one job-site to another was rear-ended by a SUV. Both vehicles were going approximately 30 miles per hour. The impact was so severe that when Mr. Paulson’s head hit either the windshield or mirror he lost a tooth. Mr. Paulson indicated that as a result of the accident he injured his arms, neck and back. Petitioner was treated by the respondent for his injuries from July 7, 2001 through October 8, 2001. Notwithstanding petitioner’s significant treatment he did not lose any time from work. The sole issue I must decide is the nature and extent of Mr. Paulson’s permanent partial disability.

As I have said so many times in the decisions that I have written over the years, our Appellate Courts have instructed us to look at each petitioner as an individual to see how their injury have affected their working ability and\or their ordinary life pursuits. They have instructed us never to have ranges of disabilities. For an industrial worker who suffers an orthopedic injury may have a significantly greater disability than a so-called “white-collar” worker.

Of course, although these instructions are valid in all matters, this particular case exemplifies the wisdom of the Appellate Courts admonishment. I quote from petitioner’s credible testimony because it reveals that as a result of his work-related motor vehicle accident, not only was he terminated because he was no longer physically able to perform the job he was once hired by the respondent to do, but because of his physical limitations, he was only able to obtain “light duty” work at significantly less pay.

THE JUDGE:               We want to know how these injuries affect you at work and then take them through your home life. How, if at all, do the injuries affect you at work? Let’s take that first.

THE WITNESS:          At work I don’t know if it’s a contributing factor or not, but I got laid off the end of March, because I can’t do the job I used to do alone.

THE JUDGE:               Well, give me examples.

THE WITNESS:          I used to put up monuments myself, and now I have to go to another job site myself to get help from someone else, because I can’t do it alone.

THE JUDGE:               Why is that?

THE WITNESS:          Because my back kills me when I do something like that.

Continuing…

Q         Mr. Paulson, what is your job responsibility at this new job at Ogdensburg School?

A         Light duty. I change light bulbs and door knobs, and sometimes I mop the floor and buff the floor.

Q         Could you compare the physical activities at this job to Knoble Construction?

A         A lot less.

THE JUDGE:               How much do you make now?

THE WITNESS:          $11.35 an hour.

THE JUDGE:               What did you make at Knoble?

THE WITNESS:          $20.50 an hour.

To rebut Mr. Paulson’s testimony that he was fired because he was no longer able to do the job he was required to do the respondent called Mr. Thomas Barrow, a vice-president of Knoble Construction. As with Mr. Paulson’s testimony, I had an opportunity to evaluate the credibility of Mr. Barrow’s testimony on both direct and cross-examination, and for the reasons, which I will go into at some length, unlike Mr. Paulson’s credible testimony, I find Mr. Barrow’s testimony to be self-serving and contradictory. In short, it was less than candid.

Mr. Barrow testified that Mr. Paulson was discharged because they lost a major account, not because of Mr. Paulson’s work performance. To support his position, Mr. Barrow testified that prior to Mr. Paulson’s June 29, 2001 motor vehicle accident he was not required to do anything “heavy” because of his preexisting back condition.

This testimony belies the facts. First, although Mr. Paulson did testify that while working for the respondent he injured his back in 1991 and his shoulder in 1989, he also testified that both accidents were minor and caused no disability, Indeed, as Mr. Paulson stated, after a short period of treatment his back felt “great.”

Mr. Paulson’s testimony is supported by the facts. I say this because for both accidents Mr. Paulson received minimal treatment, lost no time from work and filed no claim. Finally, apparently to maintain his physical condition, Mr. Paulson testified that he went to a chiropractor for “maintenance.”  I only add, I find it curious that the respondent did not produce any of Mr. Paulson’s fellow employees to corroborate Mr. Barrow’s testimony that before Mr. Paulson’s June 29, 2001 accident he did not do anything “heavy.” I also find it curious that the respondent did not produce any business records, which would corroborate Mr. Barrow’s testimony that Mr. Paulson was laid-off because they lost a major account.

Not only was Mr. Barrow’s testimony contradictory, but when confronted with the inconsistencies Mr. Barrow “flip-flopped” his answers. For example, at one point Mr. Barrow seemed to admit that Mr. Paulson did help his colleagues move head stones when asked, yet latter in his testimony he seemed to retract, or at least, qualify his answer. I quote.

Q         Before June 29, 2001, did he do any heavy physical labor?

A         No.

Q         Before June 29, 2001, would he perform duties such as moving markers?

A         Moving markers?

Q         Or monuments?

A         No, not really, no.

Because I wanted to be sure what Mr. Barrow meant by “not really” I asked him,

THE JUDGE:              What do you mean by not really?

THE WITNESS:          He had a person with him that did his physical labor.

THE JUDGE:               He never did it, is that what you’re telling me?

THE WITNESS:          Yes, he doesn’t do physical labor.

Q         That is before June 29, 2001, he never did physical labor?

A         No

Q         Before that date did he do any lifting or carrying of plants or heavy gardening?

A         Not heavy gardening, no.

Q         What kind of gardening did he do?

A         Plant ivy.

Q         And if anything heavy had to be done, and again this is before June 29, 2001, did he have help to do it?

A         Yes, he had a helper.

Continuing…

Q         And my question to you is, Mr. Barrow, was there any change at all between either his job duties or the way he performed his job, before and after June 29, 2001?

A         No.

Yet when I, once again, gave him an opportunity to clear up the discrepancy between his testimony and the testimony of Mr. Paulson he offered self-serving and non-responsive answers. I quote.

THE JUDGE:   The question is, he testified that he helped out, and was with the company for fifteen years, and enjoyed his work, and if a co-worker needed help, he helped him out?

THE WITNESS:          It was unfortunate we had to lay him off.

THE JUDGE:               On occasion if a colleague asked for help, he helped out?

THE WITNESS:          Did he say how he helped out?

THE JUDGE:               I could tell you what he said. A Judge must arrive at the truth. He said that there were times when he had to help a colleague, for example, he had to plant ivy that was part of it?

THE WITNESS:          Yes.

THE JUDGE:               And he said the colleague would say help me out and help me plant ivy. Is that Correct?

THE WITNESS:          That’s correct.

THE JUDGE:               And he said on occasion he had to move or lift a headstone or foot stone, and his colleague would say, give me a hand, and he would help him. Is that correct?

THE WITNESS:          That’s correct.

THE JUDGE:               That is correct?

THE WITNESS:          Yes, it depends on what physically it was, just pushing with a shovel or, you know.

For all of the aforementioned reasons I reject the testimony of Mr. Barrow and accept the testimony of Mr. Paulson that he was terminated from a job which he held for eighteen years because he was no longer capable of performing the job he was hired to do. I further find that as a result of Mr. Paulson’s work-related accident that his earning ability has been significantly reduced.

Mr. Paulson’s ordinary life pursuits have also been impacted by his work-related motor vehicle accident. For example, he can no longer ride a bike and plays one-half of the amount of golf he used to play.

I now turn to the nature and extent of Mr. Paulson’s disability.  The statute that defines the elements of proof necessary to sustain a compensable injury is N.J.S.A. 34:15-36. I quote.

“Disability permanent in quality and partial in character' means a permanent impairment caused by a compensable accident…based upon demonstrable objective medical evidence, which restricts the function of the body or of 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. Subject to the above provisions, nothing in this definition shall be construed to preclude benefits to a worker who returns to work following a compensable accident even if there be no reduction in earnings. Injuries such as minor lacerations, minor contusions, minor sprains…shall not constitute permanent disability within the meaning of this definition.”

In Perez v. Pantasote, Inc., 95 N.J. 105  (1984), the Supreme Court indicated that the statute's primary goal was to eliminate awards for minor partial disabilities.  The Court indicated in Perez that the petitioner must make a satisfactory showing of demonstrable objective evidence of a functional restriction of the body or its member organs.  This showing may not rest upon the petitioner's subjective complaints alone.  Second, the petitioner must then establish that he either has suffered a lessening to a material degree of his working ability or that his disability otherwise is significant and not simply the result of a minor injury.  The petitioner bears the burden of proof on both prongs of this test.

Our Supreme Court commented on the scope of professional analysis required to prove objective medical evidence.  In Colon v. Coordinated Transport Inc., 141 N.J. 1 (1995), the Court indicated that the closer the disability or impairment approaches a "minor injury" the more extensive the professional analysis must be.

We are persuaded that ordinarily a diminution in range of motion alone will not satisfy the 'demonstrable objective medical evidence standard' required to support an award of partial permanent disability.  Most range of motion test results are subjective responses of the patient especially when there is no physical manifestation that is observable by a medical expert (emphasis supplied). Colon, 141 N.J. at 10.

In this matter, there is a disparity in the estimates of permanent disability offered by the various physicians. Each of these medical experts does disclose an advocate's prospective which must be weighed in light of objective medical evidence.  Such a disparity is not unusual.  In Lightner v. Cohn, 76 N.J. Super., 461, 465 (1962) certif. denied 38 N.J. 611 (1962), the court indicated that “The judiciary is not bound by the medical estimates offered by one or all of the physicians.”  Medical testimony is not conclusive. Therefore, I have used the estimates of disability offered by the physicians merely as guides in formulating my own conclusion as to the degree of disability in this matter.

As I have said, I have had the opportunity to observe Mr. Paulson on both direct and a competent cross-examination. I found him to be a forthright and honest man. A person who does not exaggerate any of his complaints. His answers to questions on both direct and cross-examination were straightforward without any hesitation.

The candor and honesty demonstrated by Mr. Paulson concerning how his injuries have affected his working ability and ordinary life pursuits permeated his entire testimony. For example, each and every complaint that he testified to was consistent with the objective and subjective medical evidence of petitioner’s lumbar pathology found by Dr. Tiger.

As to the objective medical evidence of petitioner’s lumbar spine I accept the findings of Dr. Tiger because his testimony not only demonstrates a thorough knowledge and understanding of the anatomy of the lumbar spine, but explains why Mr. Paulson has the limitations to his lumbar spine and how those limitations impacts his working ability and ordinary life pursuits.  

Dr. Tiger found that there was a significant loss of the usual lumbar curvature. He also found moderate spasm in Mr. Paulson’s paraspinal muscles of the lower lumbar region. While it is true that Dr. Maletsky did not find spasms it does not mean that at the time Dr. Tiger examined the petitioner he did not have spasms. All it means is on the day Dr. Maletsky examined the petitioner his lumber spine was not spastic. And this would be consistent with the nature of Mr. Paulson’s injury. Indeed, as all medical evaluators have testified, spasm is a mechanism that prevents injury, and is rarely, if ever, constant. Dr. Tiger also found “areas of trigger point tenderness on both sides of the lower back. (And)…tenderness over sacroiliac joints. (And)…tenderness over the lower lumbar vertebral spinous process.” Of course the finding of tenderness is subjective evidence of petitioner’s disability, which I may consider because of the objective evidence of petitioner’s disability found by Dr. Tiger. Colon v. Coordinated Transport Inc., 141 N.J. 1 (1995). I only add, that Dr. Maletsky corroborated some of the Dr. Tiger’s findings. I quote. “…but he did experience some mild left sided lower back pain near the posterior superior iliac spine. Side bending was full with mild left sided low back pain noted when bending to the right.”

In arriving at my estimate of disability I have considered the testimony of the various fact and medical witnesses, the objective medical evidence of petitioner’s orthopedic disability, and the other evidence admitted during trial. Finally, I have looked at Mr. Paulson as a whole person and arrived at my estimate of disability after considering how his various disabilities have affected his working ability and his ordinary life pursuits.

Based on all of the foregoing reasons, I fix Mr. Paulson’s orthopedic disability at twelve and one-half percent for a chronic lumbosacral syndrome with chronic myofascitis. This estimate includes the four weeks of compensation Mr. Paulson is entitled to for his one lost tooth.

Petitioner will be entitled to $11,850.00, which equates to 75 weeks of compensation at $158.00.

Counsel fee - $2370.00. Payable $1,500.00 by Respondent and $870.00 by Petitioner.

To Dr. Tiger for his examination, report and testimony $800.00, payable each party one-half.

Stenographic Fee to O’Brien Court Reporting Service for multiple hearings $450.00, payable by Respondent.

Petitioner is to reimburse his attorney for out-of-pocket trial expenses, including transcript fees and costs to obtain medical reports, if any.

Petitioner’s attorney is to prepare an Order which conforms to this written opinion and serve it upon his adversary under The Five Day Rule.

November 29, 2004