CP# 96-6391 Rodriquez v. Solomon Management Company
Harvey H. Rothman, Esq.
P.O. Box 818
Howell, N.J. 07731
Jody L. Wiedemann, Esq.
Marshall, Dennehey et al.
200 Lake Drive East
Cherry Hill, N.J. 08002
RE: Rodriguez v. Solomon Management Co. C.P. No. 96-006391
Petitioner has filed a motion seeking medical treatment and related benefits for an alleged work related injury to his knees. Pursuant to a subsequent court order petitioner underwent an MRI of his right knee during December 2000. The report of that procedure identifies a complex tear of the posterior horn of the medical meniscus as well as a “probable” complex tear of the anterior horn of the lateral meniscus and a bone bruise in the proximal medial tibial plateau. Exhibit P-3.
Petitioner claims that he suffered the above injur(ies) an April 27, 1995 while engaged in installing a water heater in the course of his duties as a head maintenance man for the respondent. The latter acknowledges such employment relationship, as well as the occurrence of a work-related injury, but argues that petitioner did not suffer the meniscus tears noted in the MRI while employed by the respondent.
Petitioner testified that on the date in question he was required to push a hot water heater along a 40 foot long crawl space prior to setting it up for installation. In the course of that task he lost his balance and fell on concrete rubble and blocks that lay in the area, injuring his knees. He reported the incident to his superior (Exhibit P-1) and later provided a statement to the representative of the respondent’s compensation carrier (Exhibit P-2). Petitioner was out of work for two days after the accident and shortly thereafter sought and found other employment which did not require him to work in crawl spaces or to frequently use ladders.
Petitioner stated that he has had no further accident or fall involving his knees. He testified that throughout the period since his accident (April 1995) his right knee would frequently swell, he had to sit or lay down often, at times he could not drive and he had to stop his normal exercise routine including walking, running and riding his bicycle. Eventually petitioner consulted with Dr. Mittman who recommended that petitioner undergo surgery on his right knee to repair the meniscal tear(s) noted on the MRI report (supra p. 1; Exhibit P-3). Petitioner stated that he has been unable to work since May 2001 due to the increased physical requirements of his last employment, which had commenced to require the physical activity, i.e., working in crawl spaces and frequent ladder use, which petitioner has been unable to perform for respondent after his April 1995 accident.
On cross-examination it was revealed that petitioner had an accident during April 1996 when, in the course of his employment with Jacso Maintenance, he slipped and fell, fracturing his right ankle. Subsequent treatment required a cast to that joint. Petitioner testified that he did not injure his right knee in that accident. In addition he was involved in a vehicular accident when he was struck in the upper body by a deployed vehicular airbag. Petitioner stated that his right knee was unaffected in such incident and there is no evidence before me contesting that statement.
Following his April 1995 accident the petitioner consulted with Dr. Streit. The latter’s office notes of two visits during May 1995 (Exhibit R-1) records swelling in the right knee as a result of a work-related accident. Petitioner’s next medical visit was a permanency evaluation conducted during September 1996 by Dr. Tobias, a physician selected by petitioner’s counsel. Dr. Tobias’ report (Exhibit R-3) includes findings of (I) a sprain to the lumbar spine for which a disability figure is presented, and (ii) bilateral knee contusions which are found to have resolved without disability. It appears that the next medical examination/evaluation was conducted by Dr. Maiatico, a physician selected by the respondent. Though his report, dated January 1997, was not submitted into evidence by either party, and apparentle was not presented to Dr. Krengel, it was reviewed by Dr. Petrosini, who also examined the petitioner at respondent’s request. Dr. Petrosini notes that Dr. Maiatico reported that “petitioner probably sustained a contusion with some traumatic synovitis; however, I cannot rule out the possibility of a tear of the meniscus right knee joint.” Dr. Maiatico recommended an MRI of the right knee at that time. (Exhibit R-4.) I find it extremely unfortunate that it took a court order issued three years later before the respondent followed the advice of its own medical representative.
Petitioner next consulted with Dr. Riss (January 1999). The record indicates that the petitioner neither sought nor received medical treatment for his knees during the intervening two year period. Dr. Riss diagnosed bilateral knee sprains and related the same to petitioner’s April 1995 accident. (Exhibits P-5 and R-2). Thereafter (during 2000) the petitioner consulted with Dr. Mittman who recommended arthroscopic surgery for the right knee. (Exhibit R-4). That surgery was not authorized by the Respondent and heretofore has not been ordered by the court. Following that MRI, as well as Dr. Mittman’s most recent examination, the petitioner was evaluated by both Dr. Krengel and Dr. Petrosini. Dr. Krengel found internal derangement in the right knee and a probability of the same in the left knee as well; he recommended that an MRI study be made of the left knee and found causal relationship between the current condition of both knees and petitioner’s work-related accident of April 1995. Dr. Petrosini acknowledged the existence of a torn medial meniscus in the petitioner’s right knee, as well as the need of remedial arthroscopic surgery for that condition, but challenged any causal relationship with the former’s April 1995 accident. In Dr. Petrocini’s view the meniscal tear(s) must have occurred after Dr. Tobias’ examination (September 1996) since they are not referenced in the report prepared by that physician.
An overview of the record in this matter presents the fact that every medical report submitted or referenced in the record, including that of Dr. Tobias, found that petitioner injured his right knee in some fashion. Further, the reports taken in chronological order present a steadily worsening condition which is supportive fo the petitioner’s testimony in the matter. Respondent’s denial of causality is founded on two points – first, Dr. Tobias found neither internal derangement nor any permanent disability with respect to the right knee; secondly, as he testified, if he had the internal derangement found by the December 2000 MRI, or in the alternative, it is such work in his last employment that caused his condition.
In light of the record before me I do not find Dr. Tobias’ failure to diagnose internal derangement of petitioner’s right knee to be a bar to a finding of causality between petitioner’s 1995 work-related accident and his current need for surgery to that joint. Further, I find the quotation from Dr. Maiatico’s report, presented in Exhibit R-4, to be of critical importance since it establishes as early as January 1997 (I) the petitioner was exhibiting objective signs of right knee misfunction, and (ii) the respondent was aware of the possibility of petitioner’s condition and did nothing about it. An MRI of the right knee in January 1997, as recommended by Dr. Maiatico, would have most probably resolved the causality issue. The respondent must now accept the consequences of that decision.
I reject Dr. Petrosini’s argument challenging causality on various grounds. To begin with, he does not present any medical authority or basis for rejecting causal relationship between the current condition of petitioner’s right knee and his accident of April 1995 beyond his opinion that the petitioner could not have endured his current condition for a six year period. Further his conclusion as to lack of causality rests in large part on Dr. Tobias’ failure to report any unresolved right knee abnormality during 1996 while giving little weight to the finding and recommendation of Dr. Maiatico which was made a year later and prior to the petitioner resuming any ladder work or similar activity. This is significant because Dr. Petrosini clearly views ladder work as interrupting any causality link between the April 1995 accident and petitioner’s current right knee derangement. I note also that petitioner’s characterization of his employment duties since leaving the employ of the respondent is uncontradicted on the record. In summary, I find Dr. petrosini’s conclusion regarding lack of causality to be a legal argument rather than one based on medical principles or authority. Contrary to the position advanced by respondent, I see no reason to give Dr. Petrosini’s conclusion on the issue of casuality any greater weight than is to be given Dr. Krengel’s contrary conclusion which supports petitioner’s claim.
Ciuba v. Irvington Varnish & Insul. Co., 27 N.J. 127 (1958), stands for the proposition that the sucessful party must introduce evidence sufficient to generate belief that the tendered hypothesis(causal relationship of internal right knee derangement in the case at hand) is in all human likelihood the fact. Certainty is not required; rather, “the evidence must be such in quality as to lead a reasonably cautious mind to the given conclusion.” Id. at 140. I find that the petitioner has met this standard on the issue of causal relationship. he has testified to an accident in which he both struck his knees and that his legs slipped on went in a different direction than his body. T-1/30/01, pp. 10, 12. He presented a similar explanation to the claims representative of respondent’s insurer. Exhibit P-2. He reported the incident promptly to his employer. He then sought treatment. Respondent’s selected medical examiner, Dr. Maiatico correctly diagnosed his right knee problem in 1997 and recommended an MRI which respondent failed to provide. Since that time petitioner has had various jobs and may well have adversely affected his condition. However, there is no evidence before me to support a finding that the petitioner incurred any new injury to his right knee subsequent to his April 1995 accident while in the employ of respondent. An MRI was not provided until directed by court order during 2001. Further, I find that the respondent’s history of right knee problems closely follows the opinions offered by both Dr. Krengel and Dr. Petrosini insofar as his ability/inability to physically function after his April 1995 accident. I note in this regard that (I) he engaged in no further ladder work prior to his employment with Continental Properties in late 1999 and, (ii) he left that job prior to April 2001 due to increased frequency of ladder work.
I find that petitioner has met his burden of proof on this motion. Accordingly I hereby order the respondent to provide appropriate medical treatment, including arthroscopic surgery as suggested by Dr. Mittman and Dr. Petrosini, for petitioner’s right knee. The respondent shall have the right to select the medical providers. Surgery is to take place, if practicable, on or prior to May 1, 2002. Temporary disability benefits will be paid in accordance with the applicable statutory provisions. In the event that petitioner seeks payment benefits for any period prior to the date of his surgery he shall present adversary counsel and the court with the necessary supporting medical documentation prior to May 1, 2002; if counsel cannot agree on the period(s) to be covered we will list that issue for oral argument.
Petitioner’s counsel shall submit an appropriate order incorporating the above findings to his adversary and the court; the usual 5 day period shall apply as regards respondent’s submission of any objections to the same.
Neale F. Hooley
Judge of Compensation
 Though the claim Petition and the current Motion both allege injury to both knees, the treatment (surgery) sought at this time is limited to the right knee.