ROBERT PEPE

            VS.                                                                  CP NO. 2008-5878

AMERICAN AIRLINES

DECISION ON NOTICE OF MOTION FOR MEDICAL
AND TEMPORARY DISABILITY BENEFITS

BEFORE:         HONORABLE DIANA FERRIERO
                        SUPERVISING JUDGE OF COMPENSATION

ATTORNEYS FOR PETITONER:

                        RONALD H. SIEGEL, ESQ.
                        LIVINGSTON, SIEGEL & DIMARZIO, LLP

ATTORNEYS FOR RESPONDENT:

                        ROBERT H. KLAUSNER, ESQ.
                        BIANCAMANO & DISTEFANO, PC

This is the court’s decision on the Notice of Motion for Medical and Temporary Disability Benefits filed in the matter of Robert Pepe v. American Airlines, claim petition 2008-5878.  There is complete agreement that petitioner requires a right total knee replacement.  The issue before the court is whether the need for the right total knee replacement is causally related to an admitted work-related accident of January 17, 2007.  It is the court’s opinion that the accident of January 17, 2007 aggravated and/or accelerated petitioner’s pre-existing osteoarthritis.

BACKGROUND

The subject claim petition alleges a work accident of January 17, 2007. Pepe works as an airline mechanic for American Airlines.

On May 23, 2004, Pepe, while descending the stairs of a movable stand, lost his footing, fell to the ground and landed on his knees.  Respondent provided authorized treatment with Dr. Robert A. Schultz.  Pepe underwent a partial meniscectomy of the right knee on July 7, 2004.  The post-operative diagnosis was a complex posterior horn tear of the medial meniscus with significant osteoarthritis of the medial compartment and patella femoral joint.

Although petitioner had pre-existing arthritis in his right knee in 2004, respondent nevertheless provided and authorized the surgery to the right knee. On August 23, 2004, Dr. Schultz found petitioner to be at maximum medical improvement.  Petitioner lost approximately 30 days as a result of the 2004 accident.  Petitioner filed a claim for the 2004 accident; respondent asserts that claim petition should be dismissed for failure to comply with the statute of limitations.

Pepe gave unrefuted testimony that following his return to work in August 2004 and up until the January 17, 2007 accident, that his work attendance was good, that his right knee did not give him any problems, that he did not suffer from any limitations, that he had no reason to see a doctor for his right knee, that he was not taking any medication for the right knee and that he was not wearing a brace.

On January 17, 2007, Pepe slipped and fell on ice and landed on both hands and both knees.  After falling, petitioner remained on the ground for some time eventually getting up and reporting the accident to his supervisor Michael Sterns.  Sterns prepared an accident report (P2-Evid 9/28/10) and Pepe received permission to return to the office of Dr. Schultz.

Pepe believes he called Dr. Schultz’s office on January 18, 2007.  However, Pepe could not get an appointment until February 6, 2007.  Pepe continued to work.  Dr. Schultz had retired so Pepe was seen by Dr. Snyder.

Since the January 17, 2007 accident, Pepe works with a brace on his right knee and regularly takes Relafen or Advil for pain.  Pepe has had extensive, authorized conservative treatment with Dr. Snyder for a period of approximately three years.

Respondent authorized and paid for all this conservative treatment without objection.  Specifically, respondent paid for and authorized a total of 28 office visits with Dr. Snyder for the period February 6, 2007 through January 12, 2010, 15 Hyalgan injections to the right knee, 14 aspirations to the right knee, prescription medication and physical therapy three times a week for four weeks.  At no time during this period of conservative treatment did respondent assert that petitioner’s right knee complaints were unrelated to the January 17, 2007 accident.  In fact, Dr. Snyder in his written reports to respondent’s carrier gives a diagnosis of osteoarthritis and states it is causally related to the accident of January 17, 2007.  See, P1-Evid.  11/1/10.

The claim petition was electronically filed with the court on March 4, 2008.  Respondent, in its certified answer to the claim petition filed October 6, 2008, denied the alleged injury arose out of and in the course of employment.  Respondent also certified that the mechanism of the injury and the location of the injury were under investigation.  However, the respondent was in possession of an Occupational Safety and Health Administration Report of accident dated January 18, 2007 prepared by petitioner’s supervisor Michael Sterns. 

On April 28, 2009, Dr. Snyder, the authorized treating physician, implied in his treatment records that the petitioner’s osteoarthritis in his right knee was work related and sought a new MRI of the right knee.  Dr. Snyder recommended an MRI of the right knee again on May 12, 2009.  On February 3, 2010, petitioner filed the subject notice of motion because the MRI recommended by Dr. Snyder had yet to be authorized by the respondent.  Despite the fact that Dr. Snyder had been treating petitioner for approximately three years, respondent sent petitioner to Dr. Lawrence Livingston for an opinion on causation.  Dr. Livingston concluded petitioner required a right total knee replacement but that the need for the replacement was unrelated to the January 17, 2007 accident.

The notice of motion came before the court.  During the conference, the court reviewed the lengthy transmittal letter respondent attorney prepared to Dr. Livingston part of which suggested there was no accident on January 17, 2007.  Given the convoluted transmittal letter to Dr. Livingston, the court directed the respondent to have the petitioner examined by Dr. Stephen Lindholm, a knee specialist well known to the court.  Dr. Lindholm declined to do the evaluation so the court directed the respondent to have petitioner evaluated by Dr. Mark A. Hartzband, a renowned specialist in knee and hip replacements.

Dr. Hartzband opined that petitioner’s need for a right total knee replacement was directly and causally related to the accident of January 17, 2007.

However, respondent refused to be bound by Dr. Hartzband’s report.  Respondent sent additional records to Dr. Livingston and asked that he prepare a supplemental report on causality.  Dr. Livingston maintained his position that petitioner’s need for a right total knee replacement was due to his pre-existing osteoarthritis and that the January 17, 2007 accident did not aggravate, accelerate or exacerbate petitioner’s pre-existing right knee pathology.

Respondent raised the issue of causation for the first time when the conservative treatment became ineffectual and it became apparent petitioner required a right total knee replacement.  In the court’s opinion, it borders on bad faith to lull the petitioner into believing that the respondent accepted responsibility for the right knee due to the January 17, 2007 accident and then raise the causation defense three years later.  Parenthetically, there is no question that respondent would be entitled to a credit for petitioner’s prior functional loss to the right knee at the time permanency is assessed, but to deny the January 17, 2007 accident aggravated and/or accelerated petitioner’s pre-existing arthritis simply is not supported by the history of the case.

Three board certified orthopedic surgeons testified as to causation.  Dr. Snyder testified first.  Although a board certified orthopedic surgeon, Dr. Snyder is a general orthopedist who does not perform joint replacements.  Dr. Snyder opined that the January 17, 2007 accident did not aggravate, accelerate or exacerbate petitioner’s pre-existing osteoarthritis.  Dr. Snyder opined that the injury sustained on January 17, 2007 was not sufficiently severe to affect what he believed to be the natural progression of petitioner’s osteoarthritis.  Dr. Snyder opined that a “fracture” is needed to aggravate, accelerate or exacerbate pre-existing osteoarthritis.  However, both Doctors Livingston and Hartzband testified that Dr. Snyder’s opinion concerning what is required to aggravate, accelerate or exacerbate pre-existing osteoarthritis is wrong.

Dr. Snyder treated petitioner for three years as a result of the January 17, 2007 accident.  Despite the fact that his initial treatment note does not reflect a work-related accident on that date, Dr. Snyder acknowledged that he knew at the initial intake petitioner had an

injury on January 17, 2007.  But he admitted that he did not know the mechanism of the injury, whether petitioner fell on foam or concrete and he also admitted that such information would be important.  Dr. Snyder testified that he “didn’t register anything new occurring in ‘07”, that petitioner was “coming in for a straightforward treatment for osteoarthritis of the [right] knee.” 

But clearly Dr. Snyder is incorrect.  There was something “new” that happened in 2007.  Petitioner slipped and fell on ice landing on his knees.  Petitioner had been completely asymptomatic prior to the 2007 fall.  Petitioner presented to Dr. Snyder because he fell, because he had a specific accident at work.

Dr. Snyder’s testimony that petitioner would have presented on February 6, 2007 regardless of the fall 16 days before quite simply is absurd.  There was nothing coincidental about petitioner presenting at Dr. Snyder’s office 16 days post fall.  That petitioner did not present with signs of bruising, swelling is not dispositive as to the effect

the January fall had on his pre-existing osteoarthritis.  All three doctors who testified acknowledged that bruising, swelling can diminish or resolve in a 16 day period.  During cross-examination, Dr. Snyder finally acknowledged that it was “probable” petitioner presented to his office due to the January 2007 accident.

For three years Dr. Snyder’s office billed the respondent carrier for the treatment previously outlined under a claim number assigned to the 2007 accident.  All of the transmittals to respondent carrier state it is a workers’ compensation case and in transmittals dated 1/9/2008, 1/23/2008 and 9/23/2008 Dr. Snyder diagnoses osteoarthritis and states it is casually related to the 2007 claim. 

The court finds Dr. Snyder’s testimony that the 2007 accident did not aggravate, accelerate or exacerbate petitioner’s pre-existing osteoarthritis disingenuous given the contents of his office chart.  Furthermore, Dr. Snyder’s testimony that a “fracture” is required to aggravate, accelerate or exacerbate pre-existing osteoarthritis is incorrect per Doctors Livingston and Hartzband and reflects that Dr. Snyder does not have a true understanding of arthritis and how it can progress.

Respondent, in its brief to the court, attempts to diminish the severity of the January 2007 fall based upon the fact that Pepe did not see a doctor for 16 days and that Pepe continued to work following the fall.  Pepe followed respondent’s protocol to the letter:  he immediately reported the incident; he completed an accident report; and he received permission to see an authorized doctor.  The authorized doctor did not have an appointment until February 6, 2007.  A negative inference should not be taken because petitioner could not get an earlier appointment.  Had petitioner presented to an emergency room or to an unauthorized doctor, the court has no doubt respondent would be criticizing petitioner for not following procedure.

Respondent also argued that since Pepe worked since the January 2007 accident that the fall could not have been severe enough to aggravate, accelerate or exacerbate petitioner’s pre-existing osteoarthritis.  However, no doctor, treating or evaluating, has opined that Pepe is unable to work.  Again, had Pepe stopped working the court has no doubt respondent would allege Pepe was malingering. 

Dr. Livingston also testified as to causality, but the court does not find Dr. Livingston a credible witness.  To begin, the court finds that Dr. Livingston’s opinion was tainted by the convoluted cover letter sent by respondent counsel. If respondent truly wanted an independent opinion, it should have simply forwarded all medical records to Dr. Livingston without any commentary. Respondent did not do this.  To begin, initially not all of the records were sent to Dr. Livingston.  The initial cover letter summarized the case and suggested that there was no specific accident on January 17, 2007.   This is reflected in Dr. Livingston’s report of August 2, 2010 which speaks of “an alleged accident.”  In the court’s opinion, Dr. Livingston crossed the line from a medical witness to an advocate.

Dr. Livingston’s opinion on causality also is suspect because he did not know the details of the 2007 accident.

The court asked Dr. Livingston to explain how the first accident could aggravate the pre-existing osteoarthritis but the second accident does not.  Dr. Livingston concluded that because the first accident resulted in an operation that fact demonstrates an aggravation and acceleration of the pre-existing osteoarthritis.  Dr. Livingston then testifies that because Pepe has not had an operation on the right knee following the 2007 accident that the underlying arthritis was not aggravated by the second accident.  But this opinion ignores the fact that everyone agrees that Pepe requires a right total knee replacement.  Pepe has not had the surgery solely because respondent has denied causal relation to the 2007 accident.  Dr. Livingston’s argument is specious at best.

It cannot be emphasized enough that Pepe was completely asymptomatic for the period August 23, 2004 until January 17, 2007 when he had the second fall onto his knees.  The only reason petitioner presented to Dr. Snyder was because he fell on January 17, 2007.  Dr. Livingston’s testified that the “treatment” following the 2007 accident did not accelerate the arthritis.  No one is alleging the treatment aggravated the arthritis.  The fall to his knees on ice aggravated and/or accelerated Pepe’s pre-existing osteoarthritis.

The court adopts the opinion of Dr. Hartzband that the 2007 aggravated and/or accelerated Pepe’s pre-existing osteoarthritis.  Dr. Hartzband is a renowned specialist in hip and knee replacements.  He is a board certified orthopedic surgeon, a fellow of the American Academy of Orthopedic Surgeons and an active member of the American Association of Hip and Knee Surgeons. Since 1998, Dr. Hartzband has served as the director of the Joint Replacement Service, Department of Orthopedics at Hackensack University Medical Center.  Dr. Hartzband’s practice is limited exclusively to hip and knee replacements.  He testified that he personally performs more than 400 knee replacements per year which is four times more than the number of knee replacements Dr. Livingston performs each year.  Dr. Snyder does not perform knee replacements.  Dr. Hartzband also testified that he has performed a total of 5000 plus knee replacements over the course of his 26 year practice.  Of the three orthopedists who testified, there is no question that Dr. Hartzband is the most qualified to give an opinion as to whether the 2007 accident aggravated and/or accelerated petitioner’s pre-existing osteoarthritis.  It is because of Dr. Hartzband’s reputation that the court directed respondent to have him conduct an independent evaluation of the petitioner.

The court gives the greatest weight to Dr. Hartzband’s testimony for two reasons.  First, there can be no question that of the three doctors who testified Dr. Hartzband is the most experienced on the issue of knee replacements.  Dr. Hartzband has been practicing for 26 years and his practice is exclusively knee and hip replacements.  Secondly, Dr. Hartzband is a completely neutral witness.  He was appointed by the court and not hand-picked by either party.  Dr. Hartzband has absolutely no personal or financial interest in the case.

A petitioner must prove both legal and medical causation when those issues are contested.  Lindquist v. City of Jersey City, 175 NJ 244, 259 (2003). “Medical causation means proof that the disability was actually caused by the work-related event.”  Id. at 259.  “It is sufficient in New Jersey to prove that the exposure to a risk or danger in the workplace was in fact a contributing cause of the injury.  That means proof that the work related activity probably caused or contributed to the employee’s disabling injury as a matter of medical fact.”  Id. at 259. (Emphasis added.) “Direct causation is not required; proof establishing that the exposure caused the activation, acceleration or exacerbation of disabling symptoms is sufficient.”   Id. at 259. (Emphasis added.)

Specifically, Dr. Hartzband opined that Pepe’s “knee symptoms are directly and causally related to his accident of 01/07 when he slipped on ice.  Although the patient does have a prior history of an injury in ‘04, treated with arthroscopy in ’04, he was completely asymptomatic and working with no restrictions at the time of the January injury.  As he has only been symptomatic since that [‘07] injury, it is my opinion that there was a direct and causal relationship.”  See, C-2 Evid. 11/1/10.  Dr. Hartzband also opined that “it is not uncommon in an arthroplasty practice to see patients who are functioning well with minimal symptoms in a knee that has osteoarthritis pre-injury, but is made permanently symptomatic by a fall.  As such, there is a direct and causal relationship here.”  See, C-1 Evid.  11/1/10.  Dr. Hartzband based his opinion on his examination of the petitioner, the history given and x-rays.

Respondent seeks to discredit Dr. Hartzband because he did not recall reviewing the treatment records until the morning of his deposition and because he opined that it was not necessary to review the treating records in this case for him to render an opinion on causality.  However, respondent ignores the fact that Dr. Livingston did not have all of the treatment records when he first opined as to causality. 

Drs. Snyder and Livingston are of the opinion that petitioner’s osteoarthritis was progressive and that he would have required the right total knee replacement even if he had not fallen in January 2007.  Dr. Hartzband disagrees. 

            It [osteoarthritis] may arise spontaneously.  It often arises traumatically.

            Those are the two primary causes of it.  It can be progressive or not.  It’s

            a common finding.

            If I did an MRI on a hundred well-feeling 64 year olds…, probably about

            65 percent of them would have some degree of arthritis.

                        Q  Over the course of time it’s progressive, it’s going to get worse?

A.  It doesn’t always, but it can...it [osteoarthritis] is often exacerbated by a fall                       and it [osteoarthritis] may be symptomatic or asymptomatic.

Hartzband Transcript 7, L. 23-25; 8, L. 5-16.  (Emphasis added.)

Respondent seeks to discredit Dr. Hartzband because he opined that it was a matter of conjecture as to how much arthritis existed post ’04 versus post ’07; respondent seeks to argue that because Dr. Hartzband cannot definitively state the extent to which the arthritis was aggravated, accelerated or exacerbated by the January 17, 2007 accident that petitioner has not met his burden of proof.  Quite simply, the respondent is wrong.  As previously stated, “It is sufficient in New Jersey to prove that the exposure to a risk or danger in the workplace was in fact a contributing cause of the injury…proof establishing that the exposure caused the activation, acceleration or exacerbation of disabling symptoms is sufficient.”  Id. at 259. (Emphasis added.) Moreover, Dr. Hartzband does state that the arthritis in 2004 was not “horrific arthritis…There’s articular cartilage remaining.  You don’t arthrosope somebody for bone-on-bone arthritis. Right now he’s got severe arthritis.”  HT 12, L. 15-18.  (Emphasis added.)            Dr. Hartzband proceeded to testify that petitioner’s “findings today are much, much worse than they were based on the ’04 MRI and arthroscopy findings.”  HT 13, L. 5-7.  (Emphasis added.)

Following the surgery in 2004, petitioner’s osteoarthritis was not symptomatic.  The osteoarthritis was quiescent.  It was not causing petitioner any problems.  He worked full-time without restrictions, took no medication, and sought no treatment.  The January 2007 fall ‘awakened’ the dormant osteoarthritis to the point where petitioner now requires a right total knee replacement.  As Dr. Hartzband so succinctly stated:  “…the bottom line is you have a guy with an arthritic knee who’s doing well, falls and then he’s not doing well.”  HT 19, L. 25; 20, L. 1-2.

As to the issue of medical causation, I accept the opinion of Dr. Hartzband that the accident of January 2007 aggravated and accelerated petitioner’s pre-existing osteoarthritis for the reasons previously stated and because it is consistent with the facts produced at this motion; it is based on sound, adequately founded scientific methodology involving data and information of the type reasonably relied upon by experts in the field.

The court orders the following:  1) Dr. Mark A. Hartzband is the authorized treating orthopedist for the petitioner; 2) within five (5) days of this date, respondent shall send written confirmation to Dr. Hartzband advising that he is the authorized treating orthopedist and that he is authorized to conduct the right knee replacement on the petitioner Robert Pepe; 3) within seven (7) days of this date, respondent shall schedule an appointment with Dr. Hartzband on behalf of the petitioner Robert Pepe for the purpose of evaluating the petitioner and scheduling the right knee replacement; 4) temporary disability payments shall commence on the date Dr. Hartzband opines that petitioner is no longer capable of working and shall continue until Dr. Hartzband opines that petitioner

has reached maximum medical improvement; and 5) petitioner’s counsel is to be copied on all communications with Dr. Hartzband.  Failure to comply with the terms of this Order shall result in enforcement pursuant to N.J.A.C. 12:235-3.16.  Fees are to abide.

November 11, 2010                                                      ____________________________

                                                                                      Diana Ferriero, J.C.