NEW JERSEY DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT

DIVISION OF WORKERS’ COMPENSATION

ESSEX COUNTY DISTRICT

124 Halsey Street, 2^nd Floor

Newark, New Jersey 07101

Telephone:  973-648-2785;   Fax 973-648-7780

Claim Petition No. 1997-12763

Deborah Robinson, Petitioner

vs.

United Hospital Corporation, Respondent

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BEFORE:

Stephen Tuber, JWC 

Appearances:

Freeman & Bass, Esqs

By: Michael Murphy, Esq.

24 Commerce Street

Newark, New Jersey 07102

Attorneys for Petitioner 

BIANCAMANO & DI STEFANO

By:  JOSEPH V. BIANCAMANO, Esq.

10 Parsonage Road

Suite 212

Edison, New Jersey 08837

Attorneys for Respondent 

DECISION

On October 20, 1997, the petitioner, Deborah Robinson, filed Verified Petitioner No. 1997-12763, alleging that she was totally disabled as a result of her preexisting disabilities and an occupational exposure during her employment as a nurse’s aide and a nurse’s unit clerk with the respondent, United Hospital Corporation, from 1969 to 1997.

Specifically, petitioner alleges that her occupational exposure, “caused, aggravated, accelerated or exacerbated” her “Pulmonary, otological, ophthalmological, neurological, neuropsychiatric, [and] cardivascar [sic]” conditions.

In support of her claim for Second Injury benefits the petitioner alleges that “Conditions which pre-existed petitioner’s last compensable …exposure [were]: Asthma, residuals of hernia operation, residuals of hand and shoulder pain, poor vision, residuals of bilateral foot pain, [and] generalized arthritis.”

For the reasons which I will go into at length in this written opinion, I find that the petitioner has failed to prove by objective medical evidence that any disease or disability that she may suffer from was caused or aggravated by her employment with the respondent.

From 1969 to approximately 1990, petitioner worked as a nurse’s aide which required her to tend to the needs of the patients assigned to her. This entailed feeding, transporting, washing and lifting patients out of and back into bed. As a nurse’s aide she was also required to push IV poles and wheel chairs, wash floors, poles and commodes with ammonia, and chemicals which smelled like ammonia, lift beds, lift and turn mattresses and wash windows. According to the petitioner she was also exposed to lint from the sheets.

For the last seven years of petitioner’s employment with the respondent [1990-1997] she worked as a nurse’s unit clerk. This work required her to do computer work, answer the phone, order and put supplies away, and file. According to the petitioner, although this job was a promotion for which she received a raise, she did everything that a nurse’s aide, except she no longer was required to lift or feed patients.

According to the petitioner, the air in the areas that she was assigned to had a lot of dust and fumes. The dust, according to the petitioner would come from the papers and the fumes came from the ink for the computer, and the chemicals used twice a month by exterminators.

Petitioner alleges a myriad of complaints as a result of her twenty-eight year employment with the respondent. Her pulmonary complaints are: coughing, wheezing, shortness of breath upon exertion and production of phlegm. For these complaints, according to Dr. Safirstein, she is getting aggressive and appropriate treatment. Indeed, according to Dr. Safirstein the asthma which she had prior to her employment with the respondent has improved from when he saw her in January 2007, from the time first saw her in March of 2003. She is currently taking Proventil, Theodur, Singulair and Advair. Finally, although the petitioner never smoked, her husband did.

As to petitioner’s orthopedic complaints, she testified that she did not have any problems with her back, neck, arms, shoulders or legs before she began working for the respondent, notwithstanding the fact that approximately four or five years before she commenced working for the respondent she was in an automobile accident and injured and received treatment consisting of x-rays, a cervical collar, and physical therapy for injuries to her cervical and lumbar spine. Petitioner did file a cause of action for that accident and recovered approximately $10,000.00 for her injuries.

Although the petitioner does not remember the year, apparently she had another accident during the course of her employment when she fell in the respondent’s parking lot and injured her left knee and left foot. She was treated by Dr. Staggers and was out of work for two weeks. Petitioner made no claim for that accident.

Not only did petitioner have the aforementioned accidents, but during the course of her employment with the respondent she had two other accidents which caused orthopedic injuries: In 1995 she had another automobile accident in which she reinjured her neck and back. Again apparently again in 1995 she fractured her left ankle. Petitioner was also treated for a fracture of the finger and left knee injury, as well as for neck and shoulder complaints as well as headaches.

Moreover, in July 2001, four years after she terminated her employment with the respondent, she fractured her right foot at home which required an open reduction and internal fixation. The rods were eventually surgically removed. Petitioner is currently taking Darvocet N and extra-strength Tylenol three or four times a day for her back, neck knee and foot pain.

Petitioner’s orthopedic complaints are: Pain in her lumbar spine, which becomes worse when she sits for more than one-half an hour or walks a half a clock. Petitioner also has pain in her cervical and lumbar spine, both hips and knees. She also experiences cramping in her right hand when she does a lot of writing. Cold and damp weather aggravates her orthopedic complaints.

As to petitioner’s psychiatric disability, she indicated that she feels depressed because she cannot do the things that she once was capable of doing. However, petitioner testified that she never sought psychiatric treatment, nor has she ever taken any anti-depression medication.

As to petitioner’s allegation in her Verified Petition that her employment with the respondent caused [or aggravated] either an otological or ophthalmological disability, because petitioner produced no objective medical evidence that she suffers from either an otological or ophthalmological disability, those claims are dismissed for failure to sustain burden of proof.

The starting point for the consideration of any occupational claim is N.J.S.A.34:15-31, which defines a compensable occupational disease. Section 31 states:

(a) For the purpose of this article, the phrase 'compensable occupational disease' shall include all diseases arising out of and in the course of employment, which are due in a material degree to causes and conditions which are or were characteristic of or peculiar to a particular trade, occupation, process or place of employment. 

(b) Deterioration of a tissue, organ or part of the body in which the function of such tissue, organ or part of the body is diminished due to the natural aging process thereof is not compensable.

The first analysis of any occupational claim must begin with an evaluation of the objective medical evidence offered to demonstrate the existence of the occupational condition itself.  Thereafter, once the court has determined that proof of occupational condition or disease has been established by competent medical evidence, the next inquiry must be whether the injuries are due in a material degree to the conditions peculiar to the petitioner's employment.

An evaluation of the medical evidence presented by the petitioner in this matter reveals a paucity of demonstrable objective medical findings in the orthopedic, neurological and psychiatric areas.

I begin my analysis with the petitioner’s orthopedic occupational claim. Dr. Ahmad testified on behalf of the petitioner, and Dr. Gallick testified on behalf of the respondent. I accept the opinion of Dr. Gallick that any orthopedic disability that the petitioner may have was not caused, aggravated, or accelerated by her employment with the respondent as a nurse’s aide not only because it is based upon sound medical reasoning, but unlike Dr. Ahmad’s opinion, it is consistent with the evidence produced at trial. As our Appellate Courts’ have said, 

A medical opinion relating a disability to the workplace must, however, be based on facts submitted in evidence. Black v. Mahoney Troast Const. Co., 65 N.J.Super. 397, 405, 168 A.2d 62 (App.Div.), certif. Denied, 34 N.J. 471, 169 A.2d 745 (1961). If a physician’s opinion is based on a fact not in evidence, its persuasiveness is greatly undermined. Ibid.

…The value of an expert’s testimony also depends upon the accuracy of the hypothetical questions upon which opinions were based. Williams, 178 N.J.Super. at 558, 429 A.2d 1063.

Dr. Ahmad’s opinion that petitioner’s orthopedic disability to her cervical and lumbar spine was caused or aggravated by her employment with the respondent is undermined by the fact that he was unaware that petitioner was involved in two automobile accidents in which she injured these parts of the body. As I have previously indicated, the first accident in which the petitioner injured her neck and back was in the 1960’s. In that matter she received $10,000.00, and the second accident in which the petitioner again injured her neck and back occurred in 1995.

Dr. Ahmad was unaware of petitioner’s prior motor vehicle accidents because, simply put, petitioner did not tell him. I quote;

Q         In further reviewing your report it does not appear the Petitioner every told you about a prior motor vehicle accident {In fact, petitioner never told Dr. Ahmad about the two motor vehicle accident she had in which she injured her neck and back.} where she injured her back, am I correct?

A         That is correct.

Q         And that would have been helpful or useful related to your opinion as to causation, the personal history, am I correct?

A         Yes

Finally, as to petitioner’s neck and back occupational orthopedic claim, Dr. Ahmad candidly admitted he could not apportion his estimate of disability between petitioner’s preexisting neck and back disability flowing from her two car accidents and her occupational orthopedic claim.

Q         And how much orthopedically was pre-existing, to provide a disability of the neck and back is pre-existing to her employment:

A         I do not know.

Q         You have no idea?

A         No.

Not only was Dr. Ahmad not told about her two previous motor vehicle accidents where she injured her neck and back, but he did not take a past medical history concerning petitioner’s other orthopedic claims for disability. For example, Dr. Ahmad did not elicit a past medical history concerning injuries to petitioner’s left ankle, notwithstanding his candid admission that it would have been “beneficial.”

Q         You did not elicit a past medical history including injuries to the left ankle, am I correct?

A         That is correct.

Q         And that would also have been beneficial, is that correct?

A         That is correct.

As to petitioner’s claim for orthopedic occupational disability to her right foot, Dr. Ahmad’s opinion that petitioner’s right foot disability was caused or aggravated by her work is, once again, undermined because he apparently did not consider or apportion her right foot disability between her claim for a fight foot occupational disability and the accident she had at home where she fractured her right foot.

Q         So that would have or could have affected your opinion on causation and permanency, correct?”

A         It could have, but if you check my examination –

THE JUDGE:   Which are you referring to, Doctor?

THE WITNESS: This is of November 2006.

THE JUDGE:   Thank you.

A         In the first paragraph I do say she has a scarring of the right foot and movement is moderately restricted.

Q         And this too could have been related to a slip and fall in the home, correct?

A         Yes/

Q         Doctor, and this too could have an impact upon your opinion of causation, correct?

A         For the fracture of the foot, yes.

As to petitioner’s claim for a left foot occupational disability, Dr. Ahmad’s opinion, once again, is undermined because he was unaware that she had fractured that foot in a non-work related accident.

Q         And I asked if you examined and whether you noticed or she disclosed whether she had a fracture in the left ankle.

A         And I have no knowledge of such a fracture.

Q         Your examination was not consistent with any prior fracture to the left ankle, am I correct?

A         That is correct.

In sum, as respondent’s attorney pointed out during his cross-examination, “As a matter of fact, the hypothetical question is inconsistent with the past medical history that she told you in your office, am I correct?” To which Dr. Ahmad replied, “It appears that way, yes.”

For all of the aforementioned reasons, I reject Dr. Ahmad’s opinion that petitioner’s orthopedic disabilities were either caused or aggravated by her employment with the respondent.

I not only reject Dr. Ahmad’s opinion that petitioner’s orthopedic disabilities were caused or aggravated by her employment with the respondent, but I accept Dr. Gallick’s opinion that any orthopedic disability that the petitioner may have was not caused, aggravated, or accelerated by her employment with the respondent as a nurse’s aide. My reasons follow.

Dr. Gallick not only did a complete physical orthopedic examination, but he took x-rays of petitioner’s extremities. Succinctly put, as a result of his physical examination and the x-rays he concluded that petitioner’s orthopedic disability was not caused or aggravated by her employment with the respondent, but was “age related or weight related.” I accept his opinion, because his reasoning is based upon sound medical knowledge. Dr. Gallick indicated, “Obesity significantly put you at increased risk of developing a degenerative arthritic condition in any of your weight-bearing bones: your hips, your knees, your ankles.”

As to petitioner’s neck and back orthopedic disability, Dr. Gallick indicated that his “physical examination of her neck, her back was basically normal.  I didn’t see anything significant.” Indeed, his physical examination supports his opinion that the petitioner has no occupational orthopedic disability. I quote. “Her motion was otherwise good and examination of her low back, she had some – what I term - very mild diffuse tenderness and she also had some slight decreased abduction and external rotation. Abduction is when you bring your hips out to the side, external rotation is when you rotate your feet outward involving both hips.”

Although Dr. Gallick found some tenderness, which he called “subjective” is was not accompanied with any objective findings, such as spasm. In short, he found no objective medical evidence of any disability to petitioner’s lumbar or cervical spine.

Q         Now, the tenderness that you found in the lumbar spine is not accompanied with any spasm, am I correct?

A         I do not identify anything other than tenderness in the back. There was a good range of motion and neurologically she was normal.

As to petitioner’s allegation that her work caused or aggravated an occupational disability to her hands, once again, his examination was benign. I quote.

Q         Although the petitioner complains about pain in her hand, did you find any decreased grip strength or any abnormalities in that regards?

A         I did not find any abnormalities with her hands. I do a grip strength with what’s called a dynamometer, which is a metal device where you add grip to. I also checked for carpal tunnel, which is what is referred to as the Tinel and Phalen’s test. Those tests were negative. I also look for muscular atrophy or what’s referred to as the thenar eminents, which are the main muscles sin the hand, and I could not see any abnormalities.”

Moreover, Dr. Gallick opined that he “found no need to use a cane based on her evaluation involving her neck her back and her knees.” Dr. Gallick’s opinion that not only was there no medical reason for the petition to use a cane, but that the petitioner did not suffer from any occupational orthopedic disability was buttressed by the fact that she has not received any orthopedic treatment while working for the respondent other than the orthopedic treatment she received to the various parts of the body she injured in non-work related accidents.

For all of the aforementioned reasons, I dismiss petitioner’s claim for occupational orthopedic disability.

I now turn to petitioner’s neurological claim. Dr. Latimer testified on behalf of petitioner and Dr. Vigman testified on behalf of the respondent. I dismiss petitioner’s neurological claim for two reasons: First, Dr. Latimer’s testimony only concerned petitioner’s psychiatric disability. Dr. Latimer offered no testimony to prove by objective medical evidence that petitioner has any permanent partial neurological disability as a result of her employment with the respondent: Second, respondent’s doctors, Gallick and Vigman testified that their neurological examinations of petitioner found no objective evidence of any neurological disability.  Finally, Drs. Gallick, Vigman opinions are consistent with Dr. Ahmad’s opinion that petitioner was “neurologically intact.”

For all of the aforementioned reasons, I dismiss petitioner’s claim for occupational neurological disability.

I now turn to petitioner’s allegation that her pulmonary disability – Chronic Asthma – was caused, aggravated, or accelerated by her employment with the respondent.

Dr. Friedman testified on behalf of the petitioner and Dr. Safirstein testified on behalf of the respondent. I accept Dr. Safirstein’s opinion that petitioner’s Chronic Asthma, which apparently manifested itself before she commenced her employment with United Hospital was not caused, aggravated, or accelerated by her employment with United Hospital her Chronic Asthma, because it is based upon sound medical reasoning that is supported by accepted medical literature. I reject Dr. Friedman’s opinion of causal relationship because not only were the Pulmonary Function tests that Dr. Friedman used to diagnosis and quantify petitioner’s pulmonary disability not reliable, but inexplicably he did not know the nature of the substances that allegedly caused petitioner’s pulmonary disability. I quote.

Q         You took a history back in August of 1997 about what she was allegedly exposed to at United Hospital, am I correct?

A         Yes.

Q         It’s documented on the first page of your report, am I correct?

A         Yes.

Q         And the only thing that you indicate tous is that on page one of your report your say, as a result of her exposure she came into contact in the work place to inhalable particulate substances,” am I correct?

A         Yes.

Q         According to your report do you write down or specify the type of substances that she was exposed to, am I correct?

A         You mean as to particulates?

Q         Correct?

A         It’s not mentioned.

Continuing,

Q         Nowhere in your report do you set forth the specific substances to which she was exposed?

A         I’m sorry about that, yes, that’s true.

As to the objective medical evidence that Dr. Friedman used to diagnosis the petitioner’s pulmonary disease, in response to the court’s question concerning the reliability of the Pulmonary Function Test [PFT] he relied on to diagnosis and estimate petitioner’s pulmonary disability, Dr. Friedman indicated that the three tests had to be within five percent of each other. I quote.

THE JUDGE:   Doctor, following up on that question, on your last page of your report it indicates and I quote, “baseline FVC three tries no matches.” What exactly does that mean?

THE WITNESS:          The patient does three breaths in the machine, three times.

THE JUDGE:   Doesn’t it have to be within five percent to be reliable, each test have to be within five percent, and is that why you have three tries no matches: It pappears – now my math is not that good – it appears it would not be within the five percent confidence factor: is that correct?

THE WITNESS: Probably so.

Continuing,

Q         The more recent guidelines from the American Thoracic Society requires that the test be done within 200  milliliters of one another, which is even more stsringent, that what Judge Tuber had just asked you, am I correct?

A         The guidelines – I guess the physician cannot necessarily file that. If he does – the doctor or the technician probably doesn’t necessarily have to be that close to the guideline.

Q         Doctor, you don’t even know the guidelines right now?

A         No, I really don’t.

Moreover, Dr. Safirstein indicated that the PFTs performed to determine whether the petitioner had asthma were not valid because Dr. Friedman did not conduct a pre and post bronchodilator test. I quote, “I mean they should have been done, it’s standard. If you’re going to make a diagnosis or evaluate somebody with asthma there’s just no way that you could do that without doing a pre imposed spirometry.”

As to the validity of Dr. Friedman’s PFT tests, Dr. Safirstein indicates why Dr. Friedman’s testing was not reliable. I quote his testimony at length, because his rationale demonstrates his knowledge of his field of expertise – pulmonary medicine.

Q         You looked at all three of them; are they valuable in your opinion?

A         No.

A         Why not?

A         Well, first of all I don’t see any of the graphs on two of the three and the variability is not mentioned on any of the reports. He does say he did it three times, but I don’t see what the difference is in one of the tests. The ones done in 2002, the FEV1 is .7 a test like that in a woman this age would mandate almost hospitalization and I think there’s something wrong with that test or the machine or her complaints or understanding. But she has a 29 percent vital capacity. That’s pretty low.

The second group were the ones taken October 15^th, 2005 in this test variability is mentioned and it’s 11.9 percent. The American Thoracic Society would mandate at least a 5 percent variation?

As to the issue of whether petitioner’s employment with the respondent caused, aggravated or accelerated his pulmonary disability, once again, I accepted his well-reasoned rationale because it is based upon accepted medical precepts. I quote.

Q         And nothing in the hypothetical opinion provided you where the duration or exposure, the amount of exposure, the chemical compound in the exposure, there’s no qualitative evidence for you to review that?

A         That’s correct.

Q         As a medical inclination you would need that information to offer an opinion; am I correct?

A         Correct, if a person said she was working and she was exposed to something she worked in at the hospital it could have been a viral infection. She was lifting, people, exercise could induce asthma, cold air. When they walk to the bus to get to the hospital a lot of people say that they’re exposed, they smell something their asthma occurs. The fact is you really from a scientific point of view you really should say what is the chemical, how much, how long, what concentration before one can say that that was the cause of exacerbation.

For all of the aforementioned reasons, I find that the petitioner has failed to sustain her burden of proof to show by a fair preponderance of the evidence that she was exposed to substances that caused, aggravated, or accelerated her chronic asthma.

I now turn to petitioner occupational psychiatric claim. The seminal case defining what a Petitioner must prove to obtain a Judgment of Compensation for psychiatric disability is Saunderlin v. E.I. Dupont Company, 102 NJ 402 (1986). Justice Garibaldi writing for a unanimous Court held, “Accordingly, we hold that the statutory definition of permanent partial disability in N.J.S.A. 34:15-36 applies to claims of psychiatric disability as well as to those of physical disability, and hence that claims of both psychiatric and physical disability must be based upon “demonstrable objective medical evidence.” 102 N.J. at 410.

Justice Garibaldi went on to explain how a Petitioner’s medical evaluator can meet the burden of establishing objective medical evidence of a psychiatric disability. I quote. “Rather, the requirement is to interpose a professional medical judgment between the subjective statement of the petitioner and the award of disability benefits. Presumably, evidence exceeding the subjective statement does not mean evidence excluding that statement.” 102 N.J. at 412.

Further, the Court held, “we conclude that a professional psychiatric judgment might rest upon: (1) analysis of the subjective statement of the patient: (2) observations of physical manifestations of the symptoms related in the subjective statement; and/or (3) observations of manifestations of physical symptoms and analyses of descriptions of states of mind beyond those related in the patient’s subjective statement…” 102 N.J. 416.

The crux of petitioner’s psychiatric claim is that her occupational pulmonary, orthopedic, neurologic, and psychiatric disabilities together with her non- work related disabilities have caused anxiety and depression. I quote from Dr. Latimer’s testimony:

My opinion is that this patient suffers from a psychiatric syndrome, which is a result of unresolved heath problems of a chronic, painful, and distressing nature which includes cardiorespiratory problems, asthma, arthritis, and so on, and that is causing her to be depressed, scared, and anxious, and that is conducive to the diagnosis of adjustment disorder related to those issues manifested by depression and anxiety.

Continuing,

The reason for that opinion is the history of 28 years of labor with various stresses, progressive illnesses of a respiratory nature, an arthritic nature, reports of other physicians that I read, and I noted the issues in the hypothetical.

…But it could be related to other issues. In this particular instance it is related to health issues and inability to work.

            Having already determined that any pulmonary, orthopedic, and neurological disabilities that the petitioner may suffer were not caused, aggravated, or accelerated by her employment with the respondent, I must dismiss petitioner’s psychiatric claim because the precipitating factors that she alleged caused her anxiety and depression – at least, according to Dr. Latimer – were not the result of her employment with the respondent.

            I also dismiss petitioner’s psychiatric claim for failure to prove by objective medical evidence any psychiatric disability that affects her working ability or her ordinary life pursuits. In this regard, I reject Dr. Latimer’s opinion that the petitioner has a psychiatric disability within the meaning of our Statute and accept the opinion of Dr. Vigman that petitioner does not suffer from any psychiatric disability. My reasons follow.

            Dr. Vigman testified that he found no psychiatric disability. His opinion is buttressed by the fact that at no time before, during, or after her twenty-eight year employment with the respondent did she ever seek psychiatric treatment – psychotherapy or medication. This, of course, is inconsistent - a “disconnect” as explained by Dr. Vigman - with the plethora of psychiatric complaints petitioner testified to. Dr. Vigman’s rationale for this conclusion is convincing because it is based upon sound medical reasoning. I quote.

There are psychiatric complaints in this [the hypothetical question] and it’s just that these were not expressed to me by the patient. I asked her and these were just not expressed to me. Now, I didn’t ask her specifically such as do you go to parties or not, but I asked her do you have any anxiety or depression and she said only that  she has a little trouble sleeping and that makes her a little anxious. She certainly did not have any other complaints to me that were remotely psychiatric.

Continuing,

There doesn’t seem to be any attempt at any point to treat her or for her to seek out treatment or for someone to refer her for psychiatric treatment. So there is a disconnect that I’m seeing with these complaints and the rest of the records and what she’s saying, at lest what she said to me.

For all of the aforementioned reasons, Claim Petition No. 1997-12763 is dismissed for failure to sustain the burden of proof[1].

I assess a stenographic fee of $2,000.00, payable by the respondent to William C. O’Brien Associates, Inc. for seventeen hearings.

Respondent’s attorney is to prepare an Order which conforms to this Decision and serve it upon petitioner’s attorney under the Five Day Rule.