CP# 87-15748 & 88-28055 Pino v. County of Ocean
DIVISION OF WORKERS' COMPENSATION
MONMOUTH COUNTY DISTRICT
C.P. # 87-15748 & 88-28055
COUNTY OF OCEAN,
APPLICATION FOR BENEFITS FROM
THE SECOND INJURY FUND
LIBERTY MUTUAL INSURANCE COMPANY-
ON CLAIM FOR REIMBURSEMENT OF
PIP MEDICAL TREATMENT EXPENDITURES
For the Petitioner: ROTH & ROTH, a Professional Association
by: JEFFREY S. ROTH, Esquire
For the Respondent: County of Ocean: BERRY, KAGAN, SHRADNIK & KOTZAS, EsquiresFor Liberty Mutual Insurance Company: JOAN B. SHERMAN, Esquire
by: ROBERT D. BUDESA , Esquire
by GILLEN M. GELDHAUSER, ESQUIRE
For Second Injury Fund: DAVID SAMSON, Esquire, Attorney General of New Jersey
by LOIS J. GREGORY, Esquire, Deputy Attorney General
LAWRENCE G. MONCHER, J.W.C.:
Mr. Pino seeks disability benefits from the County of Ocean for injuries to his spine and for a carpal tunnel syndrome from March 17, 1987 and June 15, 1988 accidents. The claim petition for the March 1987 injury is an Application for Review and Modification of a March 24, 1988 Order Approving Settlement in which he was awarded 12 ½ % of the right hand for residuals of a carpal tunnel syndrome and 7 ½ % partial permanent disability for orthopedic residuals of a cervical sprain with C6-C7 radiculopathy. Mr. Pino now claims that he is totally disabled as a result of a combination disability from these accidents plus earlier physical impairments.
Finally, Liberty Mutual which had been providing for treatment of petitioner's cervical and lumbar spine as petitioner's PIP carrier for a non work related January 27, 1989 automobile accident, declined to continue providing for treatment. Liberty claimed that the treatment and future treatment were due to the earlier compensation injury rather than the automobile accident. Petitioner's counsel filed a motion to join Liberty Mutual to this case. Liberty Mutual consented to joinder because this dispute would be referred here for hearing. I signed an order joining Liberty Mutual as a party. Liberty then sought reimbursement from Ocean County of all or part of the $358,104.02 medical and treatment and incidental expenses it paid out. See N.J.S.A. 39:6A-5 & 6, 34:15-15.1. Clearly Liberty would have been free to initiate its own application for reimbursement which would have been consolidated with this case. See generally: Hetherington v. Briarwood Coachlight, 253 N. J. Super. 484 (App. Div. 1992). The PIP carrier is not bound by the actions of the insured employee and must be afforded a fair opportunity to establish the parameters of its own claim that there was a causal relationship to the compensable accident and that the employer and not it should be held responsible for the treatment expense. During the pendency of this case, Liberty agreed to continue to fund medical treatment subject to its right to obtain reimbursement if it were successful.
At an earlier stage of this litigation, I dismissed C.P. 93-34681 against the State of New Jersey for an April 20, 1992 incident to Mr. Pino's back because petitioner failed to sustain his burden of proving that he sustained compensable permanent disability from the incident described in that claim. No credible proofs were introduced in this case to cause me to reconsider that decision. For that matter, neither petitioner, Ocean County, nor Liberty Mutual introduced any proofs which would place any liability on the State for the 1992 incident.
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. Perez v. Pantasote, Inc., 95 N.J. 105, 118 (1984). The same evidential standard applies to the elements of the case on which respondent has the burden of proof. Fiore v. Consolidated Freightways, 140 N.J. 452, 479 (1995). By obvious extension, the same burden evidential burden of production and persuasion is placed on the PIP carrier to the extent it seeks to obtain reimbursement from an employer.
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, mere 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 which will exonerate or mitigate the employers liability shifts to the employer. Cf. Gulick v. H.M. Enoch, Inc., 280 N.J. Super. 96, 109 (App. Div. 1995) and N.J.S.A. 34:15-12(d). This allocation of the burden of proof to establish prior loss of function to the employer is pertinent when the employer seeks to reduce a worker's recovery in a permanent partial disability case or when it seeks to transfer liability in a permanent total disability to the Second Injury Fund. Fiore v. Consolidated Freightways, supra.; Katz v. Township of Howell, 68 N.J. 125, 132 (1975).
The employer not only must prove a lessening of prior function, it has the burden of showing there is a causal nexus between the prior impairment and the eventual residual compensable permanent partial disability to cause total permanent disability. Katz v. Township of Howell, supra. Here there is no doubt that Mr. Pino had significant prior impairment to his back arising from earlier injuries with Foodtown and Old Time Tavern which resulted in a 30% permanent partial disability award . N.J.S.A. 34:15-95 (a). That claim is res judicata and can not be revisited here. A potential complicating factor is that this was reduced to judgment in 1996 before another judge. Nevertheless, it is still a documented measurable, substantial preexisting disability for purposes of consideration of calculating personal partial disability or Second Injury Fund benefits. When that case was resolved it was known by all concerned, including the forensic physicians that the subsequent back accidents involving the County and the State were still to be resolved and that the subsequent January 1989 auto accident was a significant factor impacting the disability. Petitioner's Second Injury Fund claim was dismissed by the judge who approved the total 30 % compensation award.
Thereafter, a new Second Injury Fund petition was filed. That claim was dismissed by me on December 13, 1999 without prejudice to the dismissal being vacated if new evidence were obtained. I ruled that "Petitioner can not show total disability from prior impairment and the last compensable accident." At that time I considered both the claims against Ocean County and the State alternatively as the last compensable injury for purposes of N.J.S.A. 34:15-95. Petitioner presented expert testimony from Dr. Riss who after being presented with the fact that petitioner had returned to work for Ocean County and was functioning with impairment until the 1989 automobile accident, agreed that this was a contributing factor to his total disability. There was agreement among all parties that based on the available medical proofs that Mr. Pino's permanent total disability was a consequence of compensable injuries plus impairment increased by the consequences of the 1989 non-work connected automobile. I reached this a conclusion after reviewing all of the evidence in the record and offers of proof.
Extensive medical records were introduced into evidence. Then petitioner's counsel learned for the first time of Liberty Mutual's changed position on its responsibility for continuing medical care and the newly expressed opinion from Dr. Ani that the extensive back surgery and therapy he provided was all due to the June 1988 compensable injury and not due to the 1989 auto accident. This opinion was in dramatic contradiction of his and other physicians stated opinions justifying the treatment as a consequence of the automobile accident. This followed his 9 years of treatment and receipt of payment from Liberty to him and other providers in excess of $350,000 from the PIP insurer. Because of the import of this newly expressed and surprise evidence, I placed the trial on hold until Liberty Mutual could be joined to the case. As a consequence, I granted petitioner's motion to vacate the earlier dismissal of his Second Injury Fund claim. Transcripts of the testimony were made available to the DAG representing the Second Injury Fund and to Liberty Mutual's counsel and the case was eventually concluded with the testimony of Dr. Peacock, Ocean County's orthopedic forensic expert and of Dr. Ani, and evidence in the form of additional medical records and follow up opinion letters from Dr. Ani.. Neither Liberty Mutual nor the Second Injury Fund called witnesses, both agreed to rely on the record produced by petitioner and Ocean County.
Petitioner is admittedly disabled as a result of the compensable injuries, the question is how much. He is more than permanently totally disabled on an overall basis. The question here is whether Ocean County is liable for all or part of the total disability and medical treatment after the 1989 auto accident. The measure of disability is calculated using the 1988 or the 1987 disability rate chart, depending on which or both compensable accidents gives rise to an award. If his overall permanent disability following the last compensable injury is less than total, disability would be calculated at a percentage of 600 weeks pursuant to the sliding scale disability schedule capped at no more than 70% of the pertinent wage. N.J.S.A. 34:15-12(c). If petitioner is permanently totally disabled as a result of this accident, his compensation award shall be what is essentially a life time disability pension payable at 70% of his wage for 450 weeks and continuing thereafter for the remainder of his life under the terms of N.J.S.A. 34:15-12(b). If petitioner is permanently totally disabled as a result of prior permanent partial disability and compensable partial disability, a portion of the award would be paid by the respondent for a finite period of time at total permanent disability rates, with the balance of total disability benefits paid by the Second Injury Fund for the remainder of petitioner's life. N.J.S.A. 34:15-95. Total permanent disability benefits whether payable by respondent or by the Fund are subject to possible adjustment until age 62, on account of family Social Security benefits. N.J.S.A. 34:15-95.5. If petitioner is awarded permanent partial disability pursuant to N.J.S.A. 34:15-12(c), there is no reduction for Social Security Disability. N.J.S.A. 34:15-95.5.
Second Injury Fund benefits are intended to encourage the employment of the handicapped in those instances where in the absence of the Fund the employer at the time of the last compensable injury could be tagged with the full measure of total disability. The Fund is not "an insurance scheme or . . . pension fund." Ruffin v. Albright, 121 N.J.L. 424 (Sup. Ct. 1938); Shulman v. Male, 70 N.J. Super. 234, 240 (App. Div. 1961). The basic definition of eligibility for Second Injury Fund benefits require that the total disability be a result of combining compensable disability of less than total with prior permanent partial disability. Shulman v. Male, supra. The absence of either element in reaching total clearly precludes Second Injury Fund involvement. As Shulman demonstrates, if a later in time, non compensable, injury is a necessary component of reaching a conclusion of total disability, there can be no award of total disability.
The Worker's Compensation statute contains these pertinent definitions of permanent disability:
"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.
"Disability permanent in quality and total in character" [is] ... physical or neuropsychiatric total permanent impairment caused by a compensable accident or occupational disease, where no fundamental or marked improvement in such condition can be reasonably be expected.
Factors other than physical and neuropsychiatric impairments may be considered in the determination of permanent total disability, when such physical and neuropsychiatric impairments constitute at least 75% or higher of total disability. N.J.S.A. 34:15-36.
The 1979 Worker's Compensation Reform Act added these disability definitions as another 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); Darmetko v. Electron Technology, 243 N.J. Super. supra. at 541. The clear implication of this legislative policy is that the new stringent standards for proof of permanent partial disability to be incorporated into the definition of permanent total disability. Otherwise, the definition of permanent total disability lacks meaning and substance. The crucial issue for determination now is whether petitioner can be found to be totally permanently disability without additional impairment caused by the January 1989 auto accident.
The proofs in this case include the testimony of petitioner, Dr. Riss, petitioner's orthopedic forensic medical examiner, Dr. Peacock, respondent's orthopedic forensic expert, and Dr. Ani plus 23 evidential exhibits including voluminous treating and forensic medical records. The pages of the treating records stand approximately 6 inches high. I have carefully read every page of these records and compared them to the offered testimony. Reading this detailed medical records consumed an extensive amount of time. I reviewed the records repeatedly, especially the medical findings and opinions expressed during treatment. I considered the written summations of the parties. This was not light reading for an hour or so but consumed substantial parts or all of days devoted to that purpose.
This case has had a lengthy history, unduly prolonged by Mr. Pino's multiple hospitalizations and surgeries following the automobile accident, psychiatric treatment, and numerous difficulties in obtaining necessary testimony and records from Dr. Ani, the physician who performed several surgeries on Mr. Pino. It will be helpful to review Mr. Pino's medical and work history. Mr. Pino is now 56 years of age, the divorced father of 2 adult daughters. He graduated high school in 1964 and served 2 years in the Marine Corp. To this point he had sustained no illnesses or injuries of any moment. He then worked in a series of semi-skilled jobs for the city of Newark, food establishments, security companies, factories and construction companies.
He moved to Ocean County and frequently held down 2 or 3 low skilled jobs at the same time. From 1982 to 1985 he was a dishwasher and then a cook for the Old Time Tavern, a Toms River restaurant. During this period and continuing for 2 more years until 1987, he also held down a full time job with the respondent County of Ocean as a transportation driver. From July 1986 to December 1986 he worked as a pizza maker for a Foodtown supermarket. From 1987 to 1989 he worked for Ocean County as a school bus driver for the Lakewood Head Start program. From 1989 to 1992 he worked as a security guard for a local security agency. During the school year 1992-1993 he worked for the State of New Jersey as a school bus driver for a facility which served developmentally disabled children in Ocean County. This job was really a part time job, 20 hours o per week at approximately $11 per hour. Mr. Pino testified that he did put in more than 20 hours , but was not paid for the extra time. This job was obtained through the Department of Labor, Division of Vocational Rehabilitation as part of an attempt at rehabilitation following back surgery performed in 1992 and attributed to his January 1989 automobile accident. At the same time he was doing investigatory and security work for a Toms River security company.
The January 1989 PIP injury was a result of a head on automobile accident on local roads in Lakewood. It did aggravate the earlier injuries and led to multiple surgeries and serious orthopedic, neurological, neuropsychiatric impairments. Effective July 1993, Mr. Pino was awarded Social Security Disability benefits at $976 per month.
Mr. Pino presented a history of multiple several injuries of differing severity. During the 1960's he injured his fingers and hand, none of this was of sufficient significance to impact on the claim for total disability or his Second Injury Fund claim. His initial back injury occurred in 1967 for which he received an award of 2 ½ % permanent partial disability. In1972 he sustained a second back injury while employed as a guard by the City of Newark for which he was hospitalized for 10 days with traction. This 1972 injury resulted in a Workers Compensation Award of 5% permanent partial disability for a recurrent lumbosacral sprain. The award contained no credit for prior loss. On November 8, 1976, Mr. Pino was working for the City of Newark as a guard at a Newark Housing Authority project when he again injured his low back for the third time. Her was hospitalized for 5 days in traction. That third back injury was settled in 1981 with an award of 10% permanent partial disability for a lumbar strain with right sided sciatica shared by Newark and its Housing Authority. Again the award did not provide a credit for prior loss of function due to the earlier awards. To this point, he had received a total of 17 ½ % for back problems in separate awards. These awards were all based on the pre-1980 disability definition which did not include the stringent standards now contained in N.J.S.A. 34:15-36. See discussion of legislative history in Perez v. Pantasote, supra.
On May 22, 1985, Mr. Pino was working for the Old Time Tavern, in Toms River when he slipped and fell on a wet floor, injuring his low back for the fourth time. He was hospitalized for 20 days. Imaging and tests revealed disk space narrowing at L4-5 and L5-S1 and L5-S1 sided radiculopathy.. Conservative therapy administered over several months was unsuccessful. In August 1985, he was again hospitalized, this time for a discogram, followed by chemonucleolysis in an attempt to dissolve a herniated disc at L4-5. When this did not resolve his back impairment, Mr. Pino was again hospitalized. This time, Dr. Surgent performed a laminectomy and diskectomy at L4-L5. He was discharge from Point Pleasant Hospital on November 26, 1985 and given exercises to strengthen his back and medication to relieve pain.
His radiculopathy persisted, he was given a series of caudal epidermal steroid injections from December through March 1986. After a few unsuccessful attempts, he finally returned to work at Foodtown as a pizza maker. Mr. Pino gave up his job at the Old Time Tavern. He did resume working for Ocean County as a passenger van driver transporting infirm and disabled persons. Dr. Surgent prescribed anti-inflammatory medication and a back strap. In November 1986, he received a fourth caudal epidermal injection of steroids.
On December 21, 1986, Mr. Pino was working for Foodtown, cleaning a pizza oven, when he sustained a fifth low back injury. Initially, he was treated by a chiropractic physician. After a few months he was returned to the care of Dr. Surgent. EMG studies showed no new pathology. Conservative treatment continued. A fifth steroid caudal epidermal injection was administered on January 27, 1987. He continued under Dr. Surgent's care. A review of Dr. Surgent's records reveal that Mr. Pino continued to have low back pain progressing to bilateral radicular symptoms. On January 26, 1988, Dr. Surgent office records report an increase in radicular complaints, the doctor observed a 1/4 inch atrophy of the left thigh. He expressed concern that the petitioner had a resorption syndrome. Dr. Surgent prescribed a CT Scan from L3 to S1. On May 3, 1988, Dr. Surgent reported a gradual recurrence of symptoms with radiating pain down to the left great toe, on the right leg there was radiating pain to the thigh and calf. An EMG and Ct Scan were negative for further anatomical change. Conservative treatment including use of a Knight-Taylor back brace and medication were continued. If Mr. Pino's symptoms continued, resumption of physical therapy was to be reconsidered.
Dr. Surgent, who had been treating Mr. Pino at the request of NJM, the compensation insurer for both Foodtown and the Old Time Tavern, then reported the history of the March 17, 1987 cervical injury at work for the County which he said had no connection to the conditions for which he had treated petitioner. Petitioner did give up his job as a pizza maker for Foodtown. The doctor reported that Mr. Pino's county job did require stooping and bending which did result in a feeling of stiffness towards the end of his work day. Dr. Finnessey who examined Mr. Pino on September 2, 1987 for NJM, noted that a multi-level lumbar fusion was under consideration, but postponed indefinitely because petitioner was functioning.
The review of his medical treatment will be halted temporarily for recitation of additional facts pertinent to his cases against the Old Time Tavern and Foodtown. While he had prior low back sprains which resulted in the permanent partial awards against Newark public entities, he testified here that he was able to perform his jobs for the Old Time Tavern, Foodtown, and Ocean County without significant limitation except some occasional discomfort. There were no lifting or other limitations on Mr. Pino before these accidents. He did incur occasional pain and stiffness but was able to function in 2 or 3 full time jobs at the same time. The description of his work and the number of jobs and total hours worked by this man leads to the conclusion that all he had sustained before the 1985 Old Time Tavern back injury was soft tissue problems which had pretty much resolved. Ocean County was aware of the pending case against NJM and did not participate in the hearings on those cases. It did not make a request to intervene or to heard. It had ample opportunity and it did not contend that the pre-existing back disability exceeded the 30% awarded in 1996 for the 1985 and 1986 accidents.
On September 24, 1996, several years after all subsequent back and cervical injuries, Mr. Pino settled his compensation claims against Old Time Tavern for the May 25, 1985 injury under C.P. 85-34070 and in C.P. 87-15747 for his claim against Foodtown for the December 21, 1986 injury. Both accidents were insured by NJM which entered into judicially approved settlements with petitioner. Judge Apy approved a 25% permanent partial disability against the Old Time Tavern, apportioned 20 % orthopedic and 5 % neurological and psychiatric, for
"residuals of Lumbar & Lumbosacral sprain, bilateral lumbar paravertebral myositis, bilateral sacroiliac sprain, herniation of L4-5 invertebral disc, chemonucleolysis, lumbar laminectomy w/l4-5 discectomy, residual surgical scarring, left sciatic reference, anxiety reaction w/features of depression and conversion and diminished reaction to pin prick of the left lower extremity."
The judgment against Foodtown, C.P.87-15747, for the December 21, 1986 accident was for 30 % permanent partial disability, less the 25 % awarded on 1985 injury. The description of the disability was the same as this was an aggravation of the 1985 disability. Neither award contained a credit as allowed by N.J.S.A. 34:15-12(d) for earlier awards paid by the City of Newark and others in the 1970's. This 1996 award was a settlement that was fully explored on a record and justified by the medical records. I suspect the structure of this settlement was because the disability awarded in the 1970's did not meet the standards enacted in the 1979 Workers' Compensation Reform Law. See N.J.S.A. 34:15-36 definition of permanent partial disability. Neither the case against Foodtown nor the claim against Old Time Tavern were reopened by petitioner, Ocean County or Liberty Mutual.
Turning now to the March 17, 1987 accident which occurred when Mr. Pino was driving a bus for Ocean County. He attempted to catch a falling bus passenger. He injured his right hand and cervical spine. The next day he was referred to Dr. Kover an orthopedic surgeon who prescribed physical therapy, EMG studies, and anti-inflammatory medication. Mr. Pino lost one week from work, placed on light duty for six weeks and eventually returned to full duty as a van driver. Despite his significant low back injuries he was able to perform these duties. Physical therapy concluded on April 29, 1887. The EMG revealed the presence of C6-C7 radiculopathy and a right extremity carpal tunnel like syndrome. No further treatment was requested or needed.
On March 25, 1988, his claim against Ocean County came on for hearing with a record consisting of petitioner's testimony and forensic reports by Dr. Floyd Krengel for petitioner and Dr. Robert Finnessey for the respondent. Both reports are part of the record of this case and were reviewed by me for this decision. Based on this record an Order Approving Settlement was entered by Judge O'Connell for 12 ½ % of the right hand for residuals of a carpal tunnel syndrome and 7 ½ % partial permanent disability for orthopedic residuals of a cervical sprain with C6-C7 radiculopathy. The stipulated wage was $300 per week, giving rise to an award of 70.625 weeks, a total of $ 6050 before fees and allowances. The award was paid. On March 13, 1990, petitioner filed an Application for Review and Modification. On March 6, 1991, petitioner filed a motion for medical and temporary disability. Respondent answered stating that the need for treatment, if any, was due to incidents or occurrences outside this employment. This defense referred to the non-work auto accident of January 1989. The motion for medical and temporary benefits was eventually abandoned. For reasons discussed in this decision, I have decided any increase in disability or need for subsequent medical treatment for cervical impairment and/or carpal tunnel syndrome was not attributable to the Ocean County 1987 injury.
Petitioner's second claim against Ocean County involves an incident of June 15, 1988. Petitioner reported an injury to his low back while lifting an empty wheel chair into a station wagon. He felt the sudden onset of pain in his back which shot down both legs. He could not move. Up to the time of this accident, he had remained under the care of Dr. Surgent, on an as needed basis, for follow up care and medication provided by NJM for his back problem. Of critical importance, is that he had been examined by Dr. Surgent May 3, 1988, 18 days before this last County accident. At that time the doctor reported that petitioner had bilateral low back radicular symptoms. The left leg radiation went down to the big toe, on the right side the radiation went through the thigh to the calf. The petitioner told Dr. Surgent that "he is just barely able to get by." He reported difficulty while driving because he must maintain the same position for the day. His second job required a lot of stooping and bending. A CT scan did show evidence of an acute herniated disc, an EMG was negative for lumbar radiculopathy or neuromuscular pathology, and a bone scan was also negative. Dr. Surgent continued Mr. Pino on anti-inflammatory medication and recommended the use of a back brace. Physical therapy was to be reconsidered if complaints continued. With this as a backdrop, I turn next to consideration of the treatment history following the June 15, 1988 accident.
Mr. Pino promptly reported this new June 15, 1988 back injury to the County and was again referred to Dr. Kovar. Petitioner was given physical therapy consisting of heat and electrical stimulation and anti-inflammatory medication. He was out of work for 10 days. He took a short vacation to the Bahamas. On July 25, 1988, Dr. Kovar discharged him from treatment and returned him to light duty with a permanent lifting restriction of 20 pounds. He was on light duty for approximately 2 months. The limitation on his ability to work led to involuntary termination of Mr. Pino's County job because the lifting restriction meant that he was no longer able to meet the requirements of his job duties as a transportation driver which involved driving elderly or infirm persons and their wheel chairs to various locations in Ocean County.
The evidence introduced in this trial included the medical data pertinent to Mr. Pino's termination by Ocean County. His termination was contested in a due process hearing and subjected to an appeal. At the risk of redundancy, his termination from the county job was because his back impairment now imposed a lifting restriction to 20 pounds, all of which preceded the January 1989 automobile accident. This loss of employment opportunity is significant. This medical impairment cut him out of substantial employment and income opportunities for the County and any other work requiring lifting more than 20 pounds or repetitive bending. This latter restriction always accompanies lifting restrictions.
On August 5, 1988, Mr. Pino was again examined by Dr. Surgent. The doctor reported subjective complaints that the radiation into both legs was worse. Yet, the extent described in the record is to a lesser degree than reported on May 3. Dr. Surgent suggested that consideration should be given to further studies to determine if there had been any interval changes or herniation. Petitioner obtained full time employment as a security guard. He was functioning quite well competently traveling around the area for his new employer. This job did not involve any bending or lifting and the driving was not a steady basis which would preclude periodic standing or stretching. He was able to function, obviously with more restrictions than prior to his 1988 county accident. His job opportunities had been impaired as a result of what I find to be a soft tissue aggravation of his prior back problems. This loss while not exceptionally large from a medical perspective, is substantial when considering permanent partial disability under the N.J.S.A. 34:15-36 standards. The legislature clearly said loss of earning power is an important part of the measurement of permanent disability. N.J.S.A. 34:15-36 states that
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 . . .
The next record of medical treatment appears after the January 23, 1989 accident. Mr. Pino's car was stopped waiting to make a turn when he was hit by an on coming car. He was thrown about and quite shaken. He described his state as woozy and had limited recall of the immediate facts. He was transported by ambulance to the Paul Kimbal Hospital Emergency Room, Lakewood. He was examined, x/rayed and stabilized and then discharged home. He continued to have persistent increasing symptoms. Four days latter, January 23, 1989, he went to see Dr. Surgent, who observed that petitioner walked with a flexed back. Flexion was limited to 30 degrees of normal. The doctor conducted a physical examination which on careful reading confirms trauma to the cervical and lumbar spines and the left knee. The doctor prescribed anti-inflammatory medication and pain medication, otherwise conservative treatment described as "let nature take its course over the next three weeks." He diagnosed a low back syndrome, cervical syndrome, and internal derangement of the left knee. He observed that bilateral cervical and lumbar radiculopathy should be studied. I find that this was a substantial aggravation of petitioner's preexisting physical impairment.
The next treatment with Dr. Surgent occurs on May 26, 1989. Mr. Pino now offers even more physical complaints secondary to the accidental injuries. All of his symptoms had progressively deteriorated. The major new complaints were a pulling sensation in the left calf, 7 to 8 times per month which persists for several days, left shoulder dysfunction when reaching overhead, right upper extremity radiculopathy, pain in the base of the spine, and pain at the base of the cervical spine. Further testing was ordered. The doctor noted that a February 9, 1988 EMG showed no evidence of lumbar radiculopathy, but the May 30, 1989 EMG showed both bilateral cervical radiculopathy and left sided L5-S-1 radiculopathy. The time sequence leaves only one inference which is supported by findings in Dr. Surgent's office records. I find that the auto accident is the only logical cause of these increased objective findings.
On June 16, 1989, Petitioner again returned to Dr. Surgent, who observed that petitioner walked in such a manner that he could not straighten up. He offered more complaints now especially when sitting or standing. The doctor observes a deterioration since the last visit 3 weeks ago. He added a new complaint of persistent headaches, which the doctor was able to reproduce on rotation of the cervical spine. Two days latter, Dr. Surgent hospitalized Mr. Pino at Point Pleasant Hospital for cervical and lumbar radiculopathy with treatment with caudal injections and cervical and pelvic traction.
Dr. Surgent's history of treatment contained in the Point Pleasant Hospital record is most instructive and convincing for evaluation of causal relation of the progressive deterioration of Mr. Pino's cervical and lumbar spine. He traces the course of this gentleman's condition over the last several years. He noted that Mr. Pino
"Was released from treatment of a low back as well as a cervical syndrome last 8/5/88. At that time he was placed on a conservative regimen and seemed to respond fairly well over a period of time."
Dr. Surgent reported on the substantial deterioration following the January 1989 automobile accident.
Dr. Surgent saw Mr. Pino again on July 13, 1989. Again he reviewed this man's course since 1985, noting he had been discharged from treatment and functioned. His multiple musculo-skeletal problems, cervical and lumbar spine degenerative conditions, and carpal tunnel syndrome were aggravated by the January 23, 1989 automobile trauma. On subsequent visits on August 10, 1989 and June 14, 1990, Dr. Surgent again observed the persistence of symptoms and recommended that petitioner have a vocational evaluation. He prescribed muscle relaxants and a swimming therapy program. A year latter, Mr. Pino returned to Dr. Surgent complaining that his symptoms have progressed and are now intolerable. His left leg gives way and other symptoms. Following a detailed physical exam, his diagnosis was "Lumbar instability syndrome with bilateral lumbar radiculopathy." The doctor recommended a full work up leading to a bilateral lateral fusion. The CAT scan and a myleogram of June 18, 1991 showed evidence of changes at each lumbar level from L2 to S1. The July 11, 1991 diagnosis was "Lumbar Radiculopathy Syndrome Secondary to Trauma. This is a substantial change from the pre-auto accident testing. Again, Dr. Surgent's diagnosis and finding makes it clear that this deterioration was due to the auto accident.
On December 11, 1991, Arjuna Ponnambalam, MD of Ocean Orthopedics examined Mr. Pino at the request of Liberty Mutual Insurance, he also reviewed extensive medical treatment records of current treatment and concerning Mr. Pino's injuries since 1985. He gave his analysis of the many factor including that the prior injuries played a part but that the January 1989 trauma were an aggravating factor and could also be the cause.. He essentially agreed with Dr. Surgent. On February 13,. 1992, Dr. Surgent noted increase lumbar and cervical symptoms and was going to proceed with a series of foraminal injections to determine the lumbar levels for a multiple body fusion and prescribed a cervical MRI to determine if he now has a right sided impingement syndrome.
On March 3, 1992, an EMG study by Dr. Paik reported to Dr. Surgent that normal conduction of the right medial and ulnar nerves but showed denervation of the muscles fed by roots emanating from C6 and C7 on the right side. The lumbar studies were positive for L4, L5, and S1 on the left side nerve conduction problems. This was indicative of nerve root irritation at the C6 and C7 level on the right and root L4, L5, and S1 on the left, likely due to spinal stenosis. Prior to the auto accident there had been no diagnosis of a cervical herniated disc at any level. The findings at the lumbar spine had also worsened.
At this point in time Dr. Surgent gave up his New Jersey practice and moved to another state. Mr. Pino's care was turned over to Dr. Ani who saw petitioner for the first time on March 20, 1992 and noted that Mr. Pino now walked with a antalgic gait. His had lost substantial use of his left leg. Dr. Ani prescribed an MRI and requested Dr. Surgent's records. Dr. Ani reported that petitioner was disabled and unable to work until at least the end of May, 1992. Subsequent records indicate that petitioner continued to be disabled from working.
On March 20 and again on March 29, 1992, Dr. Ani diagnosed and reported to Liberty Mutual that Mr. Pino had a "failed back with multiple degenerative disc disease secondary to trauma." On April 7, 1992, an MRI of the lumbar spine revealed the old right side L4 laminectomy with residual operative scar and no evidence of recurrent or residual herniated disc, degenerative disc and facet disease from L2 through S1 with a small herniated disc at L5-S1. There was an absence of significant thecal sac compression or foraminal impingement. On May 26, 1992, Dr. Ani admitted petitioner to Bayshore Hospital for his failed back syndrome. Surgery in the form of spinal decompression laminectomy and a spinal fusion covering each level of the lumbar spine rom L3 to S1 was performed with the insertion of a stainless steel plates and a posterior lateral fusion using a bone graft from the iliac crest, and a bilateral foraminotomy. The operative report discusses the removal of the facet joints at each level, the physical movement of the nerve roots, the removal of extensive scar material from the site of the old laminectomy, and the attaching of the steel pates with 4 pedicle screws at each level. This surgery as well as all treatment since January 1989 was paid for by Liberty Mutual under its No Fault auto insurance. The physical therapy records following this surgery demonstrate that Mr. Pino continued to have numbness and weakness in his legs, significant pain and limitation. The physical therapy records of November 4, 1992 recognize that Dr. Ani referred Mr. Pino for therapy because of lumbar and cervical conditions caused by the automobile accident.
In September 1992, Dr. Ani ordered an MRI of petitioner's cervical spine. He observed increased complaints to the cervical spine had been noted by Dr. Surgent post the 1989 accident and that Mr. Pino still had complaints to his cervical spine with radiation to the left upper extremity. The MRI revealed evidence of C6-C7 ridging on the left with some flattening of the adjacent cord and some permanent ridging of C3-C4 on the left without significant compression of the cord. A month latter, on October 30, 1992 Dr. Ani noted an EMG showed C7 radiculopathy. Dr. Ani offered the opinion that since there had been no recovery to the cervical spine after conservative treatment, surgery would be indicated. Dr. Ani opined that Mr. Pino had a C6-7 herniated disc which after recovery from the low back surgery would warrant an anterior cervical diskectomy at C6-7 with a fusion.
On April 20, 1993, Dr. Ani operated on Mr. Pino at Bayshore Hospital for revision of the prior fusion, removal of the hardware and a fusion from L2 to L3 with new hardware.. On September 24, 1994, Dr. Ani admitted Mr. Pino to Bayshore with a diagnosis of pseudoarthrosis with spinal stenosis L4-S1. He removed the hardware from the previous surgery and explored the results of the spinal fusion. He also performed a bilateral foraminotomy at L4 -5 and L5-S1. On April 3, 1995, An EMG study confirmed continued right sided radiculopathy. He continued to experience severe pain and discomfort. Various different conservative modalities of treatment had been attempted, none of which gave more than some temporary relief followed by more deterioration. All of this had an impact on his emotions and required referral to and treatment by various psychiatrists including the Veterans Administration. The spinal impairment had a severe impact on his feelings of self worth. He became despondent and depressed. He was threatening harm to his wife and himself. He moved out of his home and eventually his marriage ended. The psychiatric care was extensive and important. A review of the records and reports placed in evidence leads me to the conclusion that it all had its root in the severe unrelenting back and cervical pain which did not respond to medication caudical injections and multiple heroic surgery. All of which starts after the automobile accident of January 1989.
On December 5, 1994 Dr. Ani now interpreted an MRI of the cervical spine to reveal "multiple herniated discs and degeneration mostly at C6-C7 with foraminal stenosis at and on the right side at C4-C5, as well as stenosis at C3-C4. There is some stenosis at C5-C6 with foraminal herniation at C5-C6." the doctor now recommended an EMG to evaluate the radicular complaints. A May 5, 1995 MRI of the cervical spine was interpreted by the radiologist as showing
"MULTILEVEL SPONDYLOTIC CHANGES INVOLVING C2-C3 THROUGH C7-T1 WITH DISC BULGES AT C2-3, RIDGING AT C3-4, C4-5, AND C6-7, AS WELL AS SMALL HNP'S CENTRALLY AT C5-6, AND IN A LEFT PARACENTRAL LOCATION AT C7-T1. MILD TO MODERATE LOSS OF AP CANAL DIMENSION AT C5-6 AND C6-7. MILD BILATERAL FORAMINAL STENOSIS INVOLVING C3-4 THROUGH C6-7."
On May 24, 1995, Dr. Ani recommended a cervical myleogram and CAT scan for his diagnosis of multiple cervical disc herniations. He was referred for additional physical therapy and caudal injections to the lumbar spine with minimal relief. A June 6, 1995 cervical myleogram revealed evidence of
MULTIPLE SMALL VENTRAL EPIDERMAL DEFECTS INVOLVING C3-4 THROUGH C6-C7 WITH LATERAL MILD ROOT DEFORMITIES AT C6-7 AND A RIGHT SIDED ROOT DEFORMITY AT C5-6. CORRELATIVE CT WILL FOLLOW.
The CT scan performed the same day corroborated those findings and reported the presence of a central herniated disc at C5-6 and a left proximal foraminal disc and or ridge at C6-7.
On July 10, 1995 Dr. Ani reported that a new EMG now showed bilateral carpal tunnel syndrome as well as cervical herniations. Note, there was no prior indication of a bilateral carpal tunnel syndrome. The prior diagnosis was limited to the right upper extremity. Essentially this is a new finding. There was no finding of cervical herniations in the years following the 1987 compensable injury.
On August 21, 1995, Dr. Ani offered a diagnosis of multiple pathology "status post spinal decompression and fusion from L2 to S1, bilateral carpal tunnel syndrome, and disk herniation at C5-C6, C6-C7". Dr. Ani prescribed cervical and lumbar epidural injections. EMG studies performed in September 1995 reported no change since the earlier cervical and lumbar studies.
Eventually on March 10, 1998, Mr. Pino could no longer put up with the increased cervical radicular symptoms. Dr. Ani admitted him to the Bayshore Hospital where a cervical diskectomy and fusion at C5-6 and C6-7 levels with an autograft from the left iliac crest and the insertion of anterior instrumentation. The follow up was unremarkable for this otherwise troubled patient. He continued with prescriptions, braces and exercise routines.
Returning our review to Mr. Pino's lumbar pathology. This was followed by Dr. Ani for the 5 years following the last lumbar surgery without additional surgery or injections. By August 1999, Mr. Pino had increasing discomfort. Dr. Ani ordered a CT scan and myleogram which revealed new findings at L1-L2 -central ridging and facet changes and mild loss of canal dimension at L2 to L4. An EMG confirmed the radiculopathy from L1-L2 and L5-S1 with evidence of scaring at L3-L4. In November 1999 Dr. Ani again operated on Mr. Pino's low back. This time he performed a revision of spinal decompression from L1 to S1 and fusion with instrumentation from T5 to L5 with additional reinforcement of the fusion to S1 plus a foraminotomy. The final surgery to this point occurred in January 2001, when Dr. Ani again admitted Mr. Pino to Bayshore Hospital. This time for correction of an imbalance in his back. He removed the hardware from the previous fusion, revised the fusions, implanted a bone simulator and performed an osteotomy.
To say Mr. Pino has a failed back syndrome with overwhelming orthopedic disability is really an understatement. Since 1992, he has experienced substantial depressive episodes. He has received inpatient and outpatient treatment for his severe depression and anxiety. This has led directly to the end of his marriage and continued medication and treatment. He has expressed a fear that he might do harm to himself or others. He endures a substantial pain syndrome in his neck and back.
There was a diagnosis of right sided carpal tunnel syndrome listed in the award in the compensation judgment in C.P. 87-15748 against Ocean County. There was no trauma to the left wrist or arm in that accident. Petitioner did present symptoms at various time to his forearm and fingers of the right arm. Dr. Ani now states that his diagnosis of a bilateral carpal tunnel syndrome relates to the 1987 injury rather than the automobile accident. The treatment record presented in this case contains the diagnosis of bilateral carpal tunnel syndrome but all of the EMG testing was negative for any nerve pathology flowing from compression at the wrist. The syndrome here apparently relates to cervical nerve root compression which impacts on feed to median and ulnar nerves. The reported permanent positive nerve conduction pathology reported in the EMG reports was that which flowed from the cervical spine and caused denervation of muscles above the wrist. There has been a significant increase in complaints ever since the 1989 auto accident. This was initiated only after manifestation of injuries inflicted by the 1989 automobile accident. The time gaps, the lack of treatment for several years, and later addition of different, far different symptoms years after the compensable injury all combine to convince me that any increase in carpal tunnel syndrome like symptoms which showed up after 1989 are not related to the compensable injury.
Dr. Ani testified here that because the lumbar spine and the cervical spine were injured before the auto accident, that all of the subsequent progression related back. He testified that the automobile accident was merely a temporary aggravation. He offered the opinion that the initial laminectomy at L4-5, which had preceded the Ocean County accident was aggravated by that 1988 compensable injury which then caused the progressive degeneration of petitioner's lumbar disc spaces and the eventual collapse of his spine necessitating all of the subsequent lumbar surgeries. He offers an opinion that the 1989 auto accident caused no more than a temporary flare up of symptoms. His opinions at this time are inconsistent with the medical treatment record. They were likely the result of confusion on the sequence of prior medical testing and surgery.
Dr. Ani at the conclusion of his testimony was asked to review additional records and comment on them. On March 12, 2001, Dr. Ani submitted a one paragraph letter which was later marked P-23 in evidence. In it he offered the opinion that Mr. Pino's lumbar surgeries were directly related to the 1997 Workers' compensation injury and not the 1989 auto accident. However, the 1987 work injury was to the cervical spine and left shoulder and included a carpal tunnel syndrome. (I think this was a typographical error and he meant to say 1988 back injury.) There was no lost time and minimal treatment. Dr. Ani stated without equivocation that Mr. Pino's cervical injury and surgery were all due to the 1989 auto accident because there was minimal complaints and treatment before the 1989 auto accident.
Petitioner's counsel with knowledge of all concerned wrote to Dr. Ani's providing the report of the March 30, 1987 cervical EMG which led to the diagnosis of carpal tunnel syndrome on the right side and a mild C6-7 cervical radiculopathy. Based on that he offered a "correction" to his earlier letter and now said the cervical spine sustained a mere aggravation in the 1989 auto accident and that all the treatment to that part of the body was to a degree of medical probability due to the 1987 work accident. He offered no credible medical explanation beyond this recitation of the conclusion that the treatment would have been required in the absence of the auto accident.. He ignored the August 1988 finding of Dr. Surgent that petitioner's cervical and lumbar symptoms and radicular complaints had stabilized with conservative treatment and that Mr. Pino was able to work in a more restricted environment.
With all that said, I now turn to a final analysis of the contradictory medical opinion record. On one side is the recent changed opinions of Dr. Ani which all look back to the prior injuries and exonerate the 1989 auto accident as a causative factor. He presents little detailed medical analysis following more than 8 years of explicit and implied statements to the contrary. For years he had led Liberty Mutual to the belief that the cervical and lumbar treatment were all due to the 1989 auto accident.
On the other side is 1.) Dr. Ani's contemporaneously recorded treatment records, 2.) physical therapy records, 3.) Dr. Surgent's medical treatment records before and after the County injuries and before after the 1989 auto accident, 4.) Dr. Arjuna Ponnambalam's report, 5.) testimony of Dr. Riss, and 6.) testimony of Dr. Peacock. Dr. Surgent saw this man few days after the January 1989 auto accident and continued to follow him for the next 3 years. The forensic testimony of Dr. Riss and Dr. Peacock was that there was disability and impairment arising from the County accidents, but that Mr. Pino's low back pathology was increased by the 1989 auto accident.
Our courts have consistently held that a treating physician in a Workers' Compensation case is frequently in a better position to express an opinion as to cause and effect than one making an examination in order to give expert medical testimony. Bober v. Independent Plating Corp., 28 N.J. 160, 167 (1958); DeVito v. Mullen's Roofing Co., 72 N.J. Super. 233, 236 (App. Div. 1962); Celeste v. Progressive Silk Finishing Co., 72 N.J. Super. 125, 143 (App. Div. 1972). However, even a treating physician must have a factual basis for opinions on causal relation. Dr. Ani did not see Mr. Pino until 3 years after the 1989 auto accident. His opinions in this regard are no different than those offered by any other forensic physician and lack the type of detailed analysis I would expect from a forensic physician. Here there was a well documented credible factual basis from unimpeachable independent sources, the contemporaneously recorded treatment records recited above which were made without any thought of the outcome of this case.
Those records reflect the limited and static condition of this man's cervical spine from after discharge from treatment in early 1987 through the entry of the judgment by Judge O'Connell on March 24, 1988. There is no documented increase in those symptoms until after the 1989 automobile accident. This increase in cervical symptoms is clearly something that occurs and is recorded immediately following the auto accident by Dr. Surgent. There is no recorded change in the cervical spine from 1987 until well after the 1989 auto accident. The 1987 cervical injury was a cervical sprain with right sided C6-7 radiculopathy. The trauma and damage was to that level and that level alone. There was some irritation of the nerve root at that level, but no diagnosis of a herniated disc or reason to believe there was one for more than 5 years. The herniation is not definitively diagnosed until more than 3 years after the 1989 auto accident and 6 years after the 1987 accident. It deteriorates to the point requiring surgery in 1998. The cervical spine now includes pathology from C2 to T-1, with a laminectomy and fusion at C5-6 and C6-7. There has been substantial progression of degenerative disc disease.
Of significant importance is the finding of Dr. Surgent that Mr. Pino's cervical and lumbar spine had stabilized and was then followed by the auto accident. The time sequence of the development of subsequent more severe cervical pathology at several levels all point to the correctness of the opinions in the treating records attributing this to the head on auto accident. There is just no factual basis to attribute this almost total deterioration of this man's spine to the resolved stabilized 1987 trauma. Dr. Ani's opinion lacks credibility. He could only point to the fact that this man had an earlier cervical injury and no more. The two forensic physicians who testified here, Dr. Riss and Dr. Peacock when presented with the complete medical treatment records agree, the progression of this man's cervical spine was not due to the 1987 accident. Both petitioner and Liberty Mutual have failed to carry their burden of proof establishing a causal connection between the reopened 1987 accident and the subsequent treatment furnished by Liberty Mutual and increase in cervical spine impairment.
Turning now to the claim for carpal tunnel syndrome. I am not sure that Dr. Ani or any one really attributes the development of bilateral carpal tunnel syndrome to the County injuries. The 1987 accident which resulted in a diagnosis of right side carpal tunnel syndrome did not include trauma to the wrists. There is no medical evidence of any such progression of a permanent condition tied to the earlier diagnosis of right sided carpal tunnel syndrome. There was no evidence of injury to the left wrist or left upper extremity in the County accident. There was no positive nerve conduction testing to suggest neurological deficits emanating from the spine down the arms until years later. This does not appear until after 1989 head on automobile accident. Again both petitioner and Liberty Mutual have failed to carry their burden of proof of establishing a causal connection between a present carpal tunnel diagnosis and the reopened 1987 injury.
The final conclusions concerning Mr. Pino's lumbar spine problem present a different result. Here it is clear that Mr. Pino had an already compromised lumbar spine before the June 15, 1988 accident. While the prior back disability was not measured in compensation proceedings until several years later, the pre-existing disability of 30% set forth in the awards payable by NJM must be accepted as binding on petitioner and because of the procedural history discussed above it is also binding on Ocean County.
The 1988 back injury was a consequence of a twisting, lifting torsion injury to petitioner's lumbar spine. As diagnosed and treated by Dr. Kover, I find it to have been an added soft tissue injury which caused additional damage to the supporting musculature of the lumbar area. It did not cause any additional permanent disc pathology. There was no evidence of a disc herniation, or aggravation of the existing surgical site or permanent increased radicular symptoms secondary to this 1988 accident. I find the observation recorded by Dr. Surgent to be credible and most probative. Mr. Pino's condition was stabilized before the auto accident.
The progression and finding of multiple level degenerative disc disease did not occur until after the 1989 auto accident. This was followed by several caudal block injections and multiple laminectomies, spinal fusions with instrumentation and revisions. H is lumbar spine is now compromised from T5 to S1. His cervical spine from C3 to T1. He carries hardware permanently installed in his spine. He has severe neuropsychiatric disease mostly as a consequence of the impact of the physical impairment on his emotional and mental state. All of this is more likely due to the consequences of the auto accident than the minimal physical trauma caused by the Ocean County accidents.
To summarize, as a consequence of the 1985 and 1986, Mr. Pino had a single level laminectomy and fusion at L4-5 with radiculopathy and neuropsychiatric residuals. That back injury caused severe physical pathology and impairment in the ability to work. He continued to work 2 jobs. In 1987, he sustained a chronic cervical impairment which stabilized. He was physically able to continue working on a full time basis. Next, he has the June 15, 1988 accident while lifting a wheelchair. He has pain in his low back. He is given a short period of physical therapy. The treating physician opines he should lift no more than 20 ponds. Because of this impairment he is terminated from his county job. There is insufficient evidence to reach a conclusion that the substantial psychiatric illness which manifested after the 1989 automobile accident is tied to either the 1987 nor 1988 injuries incurred in Ocean County employment. These problems are all clearly tied to the substantial physical anatomical impairments secondary to the progressive deterioration of his lumbar spine. It is only then that the pain becomes unbearable and he expresses suicidal and fears of potential homicidal tendencies. It is only then that the psychiatric treatment commences. Ocean County has no liability for the neuropsychiatric impairment.
The additional anatomical change following the 1988 accident is apparently not much, there is no proof of disc pathology. Rather the anatomical changes are limited to a chronic lumbar sprain and strain. While limited in an anatomical sense, the added pathology did have a dramatic and substantial impact on this man's ability to work. He could no longer be employed at most of the jobs he has held for his entire work life. He could and did perform for several years at a more sedentary type employment. It is only after the low back as aggravated by the 1989 auto accident manifests itself, that he becomes totally disabled.
Disability numbers of the forensic witnesses are admittedly estimates. They are based on the medical judgment of the physician and frequently contain a significant element of partisan advocacy. It is not unusual for the litigated award to differ significantly from one to another forensic physicians. Even though the forensic physicians may be experienced physicians within the same specialty, they frequently report different positive findings or on the same findings provide widely differing disability numbers. This tribunal is not bound by the experts' estimates of disability. Lightner v. Cohen, 76 N.J. Super. 461 (App. Div. 1962) certif. den. 38 N.J. 611 (1962). The Judge of Compensation is required to fix the disability in accordance with the mandates of N.J.S.A. 34:15-36 as defined by the Supreme Court in Perez v. Pantasote, Inc., supra. and the cases which followed it. In doing so the judge exercises the expertise of the Division of Workers' Compensation and must explain the reasons for the decision. Lewicki v. N.J. Art Foundry, 88 N.J. 75, 89-90 (1981). These estimates of the forensic experts are merely a guide to the medicine involved in the injury. The court must exercise its independent expertise and square the facts, that is the medical documentation of loss of bodily function and the consequential impact on petitioner's working ability and life. Lightner v. Cohen, supra. This I have done.
For all of the foregoing reasons judgment will be entered as follows: The claim of Liberty Mutual for reimbursement is dismissed. The Application for Review and Modification of the 1987 judgment is dismissed. The Second Injury Fund application is dismissed. Judgment is entered in favor of Mr. Pino for the 1988 chronic lumbosacral sprain and strain at 70% permanent partial disability less a credit for 30% prior loss of function. N.J.S.A. 34:15-12(d). Mr. Pino's wage was stipulated to be $300 per week, which caps his permanent partial disability compensation rate at $210 per week. N.J.S.A. 34:15-12(c).
All allowances shall be incorporated in the judgment entered in C.P. 88-28055.
There is no temporary disability due, respondent discharged its obligation for temporary immediately following the accident and up to the time petitioner was discharged by Dr. Kovar. The award is calculated pursuant to N.J.S.A. 34:15-12(c)at 70% permanent partial, 420 weeks at $210 per week, $88,200 less $18,858 (the value of 30% on the 1988 permanent partial disability chart), which yields a net award of $69,348. See Abdullah v. S.B. Thomas, Inc., 190 N.J. Super. 26, 29-30 (App. Div. 1983). Respondent is authorized to deduct any advances it made on account of permanent disability.
The following fees and allowances are made.
1. Roth & Roth, A Professional Corporation - $13,869, payable $9,869 by respondent, $4,000 by petitioner.
2. Reimburse Roth & Roth for the report of Richard Surgent, M.D., a treating physician, $250, payable one-half each by Ocean County and petitioner.
3. Reimburse Roth & Roth for the report of Edward Dengrove, M.D., a forensic physician, $150, payable one-half each by Ocean County and petitioner.
4. Reimburse Roth & Roth for the advance to Martin Riss,.D.O., a forensic physician, for testimonial fee for 7/19/1999, $250, payable one-half each by Ocean County and petitioner.
5. Reimburse Roth & Roth for the 3 reports of Nasser Ani, M.D., a treating physician, (August 15, 1997, June 10, 1998, & November 23, 1998) at $250 each, a total of $750, payable one-half each by Ocean County and petitioner.
6. Reimburse Roth & Roth for medical records and judgment records, $173.40, payable by petitioner.
7. Reimburse Roth & Roth for trial transcripts, $723 payable by petitioner.
8. Martin Riss, D.O. a forensic physician for examination and reports of October 9, 1989 and February 25, 1995, $300, payable one-half each by Ocean County and petitioner.
9. Martin Riss, D.O., a forensic physician for testimony of September 21, 1999, $250, payable one-half each by Ocean County and petitioner.
10. Liberty Mutual Insurance Company shall reimburse Roth & Roth $100 for the payment it insisted on for a copy of its PIP file.
11. Dr. Ani, although called by petitioner, was also testifying on behalf of Liberty Mutual, it was this doctor's statements which led to the prolongation of this hearing and did not result in any additional award to petitioner. His testimony was the sole evidence in support of Liberty's affirmative claim. In justice, it, not respondent, nor petitioner who should pay for the cost of his appearance and testimony here. Cf. N.J.S.A. 34:15-64.
12. Respondent Ocean County shall pay a stenographic fee of $300 to John F. Trainor, Inc and $750 to State Shorthand Reporting Service, Inc.
The evidence will be retained in my Freehold office for 45 days. If any of you wish to retrieve the exhibits you are requested to make arrangements to pick them up. We do not have the space or facilities to retain them beyond that time.
Dated: July 22, 2002
Lawrence G. Moncher, J.W.C.