DATE:             FRIDAY, OCTOBER 10, 2004
                                                TIME:              2:00 P.M.
                                                PLACE:           TRENTON, NEW JERSEY

B E F O R E:                            THE HONORABLE RENEE C. RICCIARDELLI
                                                ADMINISTRATIVE SUPERVISORY JUDGE

A P P E A R A N C E S:          DEVLIN, CITTADINO, AND SHAW
                                                BY:  PAUL DEVLIN, ESQ.
                                                ON BEHALF OF THE PETITIONER 

                                                WEBER, GALLAGHER, SIMPSON, STAPLETON,
                                                FIRES AND NEWBY
                                                BY:  RICHARD TAVANI, ESQ.
                                                ON BEHALF OF THE RESPONDENT 

                                                PETER C. HARVEY, ATTORNEY GENERAL
                                                BY:  CHERYL KLINE, D.A.G.
                                                ON BEHALF OF THE SECOND INJURY FUND
 

This is the matter of Mark A. Ricciardo v. Stroehmann/Maiers Bakery, claim petition number 2001-7310.  Mr. Ricciardo was involved in an admittedly compensable accident on April 28, 1999.  He was earning a weekly wage of $700 per week which gives rise to a temporary disability benefit rate of $409 per week.  Petitioner filed a Motion to Join the Second Injury Fund on January 16, 2003. 

Petitioner started his testimony on August 8, 2003.  Following that testimony, respondent’s attorney asked for and received leave to have petitioner undergo x-rays of his hands and knees and to be re-evaluated by Doctor Herman in regard to any hand or knee injury or pre-existing condition.  This was in an effort to prove pre-existing disability in order to receive contribution by the Second Injury Fund.

On March 8, 2004 the Social Security Administration approved petitioner’s application for benefits finding that he was totally disabled as of October 1, 1999.  As a result, petitioner began receiving an initial entitlement of $1,616 per month beginning in August of 2002.  The Social Security Administration also advised that petitioner’s 80% average current earnings was $2,332.80.  This calculates to an offset rate from August 1, 2002 until the petitioner turns 62 years old on August 7, 2008 of $165.42 per week. 

The two issues before the court are: 1) nature and extent of permanent disability as a result of the accident; and 2) if the petitioner is deemed to be totally disabled should there be contribution from the Second Injury Fund or is this disability due solely to the April 28, 1999 injury. 

When petitioner testified in August of 2003, he was then 57 years old, had been married for 35 years and had one child, a son 34 years old.  He has worked for the respondent since 1986 as a route salesman.  He was injured on April 28, 1999 when lifting a stack of trays and twisting awkwardly.  Respondent referred petitioner to Professional Health Care Services where a course of treatment was begun.  Eventually, Mr. Ricciardo had an MRI ordered by Doctor John Tydings who then proceeded to inject Mr. Ricciardo with two epidural injections.  On February 28, 2000 he underwent an anterior lumbar disectomy and interbody fusion with right iliac crest bone graft and BAK cages.  The surgery was unsuccessful and Doctor Tydings performed a second procedure on November 15, 2000 consisting of a posterior spinal fusion at L4/L5, another right iliac bone graft, placement of an EBI stimulator, a graft and matrix and non-segmental pedigal screw instrumentation.  On June 18, 2001 Mr. Ricciardo underwent a third surgical procedure to remove the batteries from the EBI stimulator.

When petitioner testified he indicated that he could neither stand nor walk for more than fifteen minutes without pain.  It was very difficult for him to get out of the chair because of the pain.  He has a stabbing pain daily from his spine down his left leg into his left foot and cramping of the leg.  Sometimes the pain is so profound that it awakens him from a sound sleep.  He also has a pins and needles sensation in his left foot.  Rarely does he have a problem with his right foot.  The pain is unbearable and he cannot walk a city block.  He refuses to use a cane because he is embarrassed.  When he lies down he has to lie flat with his legs elevated and he is awakened at least twice a night due to the pain.  He cannot sleep in his own bed, he must sleep on a couch because he feels it is unfair for his wife for him to sleep in the bed and awaken that often.  He does not perform any household duties and his wife works.  He does sometimes cook.  When driving he has to take a break every fifteen to thirty minutes.  He can bend but he cannot bend all the way down and coming back to a straight position is difficult.  He can lift twenty to twenty-five pounds maximum. 

In the past, he had been a surf fisherman and did antique furniture restoration.  He no longer can do that.  He does go to the Columbus Flea Market on occasion, tries to go at least once a week to sell some collectables.  He said in the year 2003 he went seven or eight times, stayed there maybe three to four hours at a time.  He is not there alone running the stand but rather has his wife or uncle or neighbor there with him.  He does it to keep busy and is not interested in the money, he just wants to keep “his sanity”.  Petitioner has not returned to work since this final surgery.  He feels that he can no longer do the job that he had.  He does not receive any treatment at the present time from an orthopedist.  He takes over the counter Advil three or four times daily.  He has gained approximately seventy pounds in weight due to his inactivities.

Petitioner feels depressed because of his condition.  He is no longer the bread winner in the family and is too dependent on too many people. 

On cross-examination, petitioner indicated that he sustained a hand injury in the 1970’s where he broke his fourth statutory finger on his right hand and received an award of 90% of the finger.  On occasion his fingers swell up.  He has had various finger fractures and stitches.  He has less grip strength than in the past and drops objects.  As to his knee condition, he indicated that his knees swell up once a month.  This was related to his work because of the walking.  He received treatment at the Professional Medical Services for that.

Petitioner indicated that he smokes two packs of cigarettes a day and that in 1984 he was diagnosed with hypertension but he no longer takes medication for that condition.  He did indicate that sometimes while he was working he felt pain after a full days work.

On cross-examination by the attorney for the Second Injury Fund petitioner indicated that he worked approximately 50 hours per week for the respondent and that in addition to that he did his home repairs and maintenance.  He did have trouble kneeling on occasion while he was at the respondent’s place of business and he carried a pillow with him to assist him.  He now gets approximately six hours of sleep per night.  His average daily pain is 8 on a scale of 1-10.  On a good day it is 3 or 4, on a bad day it is 10.  The week before he testified he indicated that he had to spend his entire day on the couch in pain for five days out of that week.  He testified that he averages three days a week of complete bed rest. 

On redirect by his attorney, petitioner indicated that he has great difficulty with stairs and that he is short tempered and argumentative now as a result of this condition.  On re-cross by respondent’s attorney petitioner indicated that the difficulty with stairs was sometimes related to his knee pain.

Petitioner was examined by Doctor David Weiss from an orthopedic standpoint and by Doctor Richard Rubin from a neurologic and neuropsychiatric standpoint for his attorney.  He was examined by Doctor Harold Herman from an orthopedic standpoint and Doctor Jon Courtney from a neurologic and neuropsychiatric standpoint for the respondent.  The Second Injury Fund did not have Mr. Ricciardo independently examined. 

Doctor Weiss testified on September 10, 2004.  Doctor Weiss opined that as a result of his examination that Mr. Ricciardo was 100% totally disabled overall.  He based this upon petitioner’s history and complaints as well as a physical examination.  His physical examination indicated that petitioner had paravertebral muscle spasm and tenderness over the posterior midline.  Range of motion was quite reduced. Forward flexion was 40 over 80 degrees.  Backward extension 10 over 30 degrees.  Left lateral flexion 5 over 30 and right lateral flexion 5 over 30.  Sitting root test showed complaints of low back pain at 40 degrees above the horizontal and is positive at 35 degrees above the horizontal on the left side producing radicular pain down the left lower extremity.  Straight leg raising was positive at 65 degrees on the right and 55 degrees on the left producing radicular pain down the left lower extremity.  Manual muscle testing of the gastrocnemius musculature is graded at 4 plus over 5 on the right and 3 plus over 5 on the left.  Deep tendon reflexes are plus 2 and symmetrical.

The gastrocnemius circumference is 42 centimeters on the right versus 40 ½ centimeters on the left indicating atrophy. 

Doctor Weiss testified that petitioner’s complaints included a daily “red zone” pain.  Doctor Weiss also indicated that the success rate on a second surgical fusion is less than 50% successful. 

It was Doctor Weiss’s opinion that petitioner’s disability was 85% of total due to his spinal injury, 10% of total due to the two iliac crest bone grafts and that petitioner was 100% disabled overall as an industrial unit. 

On cross-examination respondent’s attorney attempted to have Doctor Weiss give an opinion as to the petitioner’s hands and knees degenerative joint disease and osteoarthritis.  However, since Doctor Weiss did not examine the petitioner’s hands or knees the court would not allow Mr. Tavani to proceed in that matter.  Upon cross-examination by the attorney for the Second Injury Fund it was Doctor Weiss’s considered opinion that petitioner could no longer hold a job and he reached this opinion based upon his own examination as well as his reading of Doctor Ruben’s report and that all of petitioner’s disability was a result of the April 28, 1999 accident. 

Again, respondent’s attorney tried to elicit an opinion regarding hands and knees but was unsuccessful.

Doctor Richard Rubin testified on October 1, 2004.  It was his opinion that petitioner’s disability was 100% total overall considering his orthopedic, neurologic and psychiatric condition and that all of disability was related to this injury.  He based his opinion upon his examination of the petitioner, the petitioner’s history as well as a review of the medical reports of treatment.  Doctor Rubin indicated that petitioner told him that he was bitterly disappointed at the outcome of the surgery although he does have a great deal of confidence in Doctor Tydings saying “I knew he did the best he could, but it was supposed to get me back to work, I certainly would not have gone through all of this torture if I did not want to go back to work”.  He is markedly fearful doing any lifting or pulling.  He has become fearful of walking on ice, snow, gravel or uneven terrain.  During the interview he had to stand because sitting in the chair for more than a few minutes caused back spasm.  In addition, he told Doctor Rubin that he is angry and depressed and he has not been able to have marital relations with his wife ever since the accident.  As to Doctor Ruben’s neurologic examination he indicated the patella reflexes were equal and extremely hypoactive.  The Achilles reflexes were totally absent on a repeated testing with augmentation technique.  The straight leg raising test for sciatic reticulates could not adequately be performed due to low back pain and stiffness at above 40 degrees in the vertical position.  Doctor Rubin indicated that Mr. Ricciardo had an antalgic gait and he examined petitioner’s soles and heals of his shoes and noted a very distorted wear pattern. 

Doctor Rubin’s diagnosis was post abdominal approach spine fusion with failed fusion, posterior spine fusion with replacement hardware and battery removal, sciatic radiculopathy and adjustment disorder with depressed mood.  He opined that petitioner’s disability neurologically was 40% of total and psychiatrically was 40% of total but considering his overall condition both neurologic, psychiatric and orthopedic, Mr. Ricciardo was unemployable and therefore 100% disabled.

Doctor Harold Herman testified on September 10, 2004.  He is an orthopedist who testified on behalf of the respondent.  Doctor Herman performed two examinations. 

Upon examination of petitioner’s lumbo sacral spine Doctor Herman noted that there was a decreased range of motion.  He found the lumbo sacral flexion to be 85 to 90 degrees, extension is 5 degrees and right and left lateral flexion is 10 to 15 degrees.  The sitting root test was performed through 90 degrees and the supine test was performed through 80 to 85 degrees on the right and between 75 and 80 degrees on the left.  Deep tendon reflexes are present in the range of plus or minus one on both sides and are similar.  This is at the knee and the ankle level.  It was Doctor Herman’s opinion that petitioner’s disability for the lumbo sacral spine was 20% of partial total, however, he questioned the causation of the disability.  He felt that because there was no overt herniated nucleus pulposes and no distinct trauma that petitioner’s disability was all degenerative disc disease and therefore not related to the accident or the incident in question.  Doctor Herman also rendered an opinion as to the disability in petitioner’s hands and knees and found that there was no disability in either of these parts of the body.

He did indicate that petitioner has not been receiving any treatments since 2001, that he could not perform any heavy lifting, that a sitting job would be a problem because he had difficulty both sitting and standing and walking.  He found that petitioner had a normal range of motion in both hands and knees and with no significant problems. 

On cross-examination Doctor Herman indicated that he felt that this condition was not related to work because he had no injury.  However, he did admit that petitioner had no prior back problems to indicate a pre-existing condition. 

In Doctor Herman’s opinion there is no trauma unless there is “unusual circumstance”.  Upon examination by the court, Doctor Herman did say that degenerative disc disease can be asymptomatic and triggered in a variety of ways.  He also indicated that other than some post operative physical therapy the only other treatment post fusion surgery is pain medication.

Doctor John Courtney testified for the respondent on October 1, 2004.  Doctor Courtney is a psychiatrist and gave his opinions regarding petitioner’s neuropsychiatric and neurological condition.  He found that petitioner had a 4% neurologic disability based upon the radiculopathy in his left leg and a 4% psychiatric disability based upon his depressed mood.  On direct examination, Doctor Courtney did indicate that the problems with Mr. Ricciardo’s L4/L5 disc may have been pre-existing since he did have an absent knee jerk and this would indicate degenerative disc disease but he felt that this would be over and above the 4% of partial total that he opined as a result of this accident.  Upon physical examination Doctor Courtney also found a lessening of range of motion as well as a straight leg raising test being positive at 30 degrees on the left and 40 degrees on the right.  The right knee jerk was obtained at plus one, the left knee jerk was absent.  Ankle jerks were absent.  Mr. Ricciardo also complained to Doctor Courtney of his inability to have marital relations with his wife since this injury. 

Based upon the foregoing as well as my observations of the petitioner who I found to be very credible, I find that the petitioner is totally and permanently disabled as of July 7, 2001 which is the day immediately following his last payment of temporary disability benefits. 

I find that his disability is totally related to his injury of April 28, 1999.  For the respondent to be successful in having Second Injury Fund contribution, the respondent bears the burden to prove that there was a pre-existing disability.  It is not the Second Injury Fund’s burden to prove that there was not a previous disability.  Respondent has failed to bear that burden of proof.  The only conditions which petitioner had prior to the injury was a fracture of the fourth finger as well as some degenerative joint disease in his hands and knees. 

The back condition as a result of the April 28, 1999 accident is so extensive as to cause the petitioner to be totally disabled in and of itself regardless of any minor disability petitioner may have had in his wrists and knees and his fourth finger fracture.

I must comment that Doctor Herman’s opinion as to causal relationship is incredulous in my opinion.  Petitioner had no complaints of any problems regarding his back prior to this incident and as a result of this incident he underwent an extensive course of treatment including three operative procedures.  It is quite possible that petitioner did have some degenerative disc disease prior to this incident, however, it was completely quiescent and asymptomatic.  Therefore, there was no disability as defined by the Workers’ Compensation Statute regarding petitioner’s low back.  Doctor Herman did admit upon examination by the court that the degenerative disc disease could have been quiescent and then triggered by any number of things.  All of the doctors agree that the petitioner has an extensive disability.  Doctors Weiss and Ruben believe that he is an unemployable industrial unit.  Doctor Courtney, giving numbers for a psychiatric as well as neurologic condition and Doctor Herman giving a disability ranking of 20% of partial total albeit not related in his opinion.  Therefore, based upon these facts, I find that the Second Injury Fund shall be dismissed from this matter since there is no indication that petitioner’s total disability is a result of a last compensable pre-existing condition coupled with a pre-existing condition.  Mr. Ricciardo’s disability of 100% is based solely on this April 28, 1999 incident. 

Therefore, Mr. Ricciardo is entitled to 368 4/7 weeks at the rate of $165.42 or $61,134.50 representing the time from July 7, 2001, petitioner’s date of totality to August 7, 2008, petitioner’s 62^nd birthday.  Thereafter, petitioner will be entitled to 80 3/7 weeks at $409 per week or $32,895.29 representing that period of time from his 62^nd birthday through the end of 450 weeks disability.  Petitioner will be entitled to 12B benefits if he complies with the requirements.

There will be an allowance for Doctor Weiss and Doctor Ruben for their examination and testimony of $850 each, payable half by each party.  There will be an attorney’s fee of $29,600 payable $7500 by the petitioner, $22,100 by the respondent.  There will be a $750 stenographic fee payable to John F. Trainor for this matter.

                                                                        _________________________________

                                                                        Renee C. Ricciardelli
                                                                        Administrative Supervisory Judge

Date:  April 15, 2005