CP 96-018031

August 17, 2000

HONORABLE PHILIP BOLSTEIN
JUDGE OF COMPENSATION

WYSOCKER, GLASSNER & WEINGARTNER, ESQS.
By: ALLAN LOCKSPEISER, ESQ.
Attorney for Petitioner

LUSTBADER & LUSTBADER, ESQS.
By: ALFRED F. CAROLONZA, ESQ.
Attorney for Respondent

The petitioner was employed by the respondent as a tractor-trailer driver. Based upon a wage statement (P31) his average weekly wage between January 1, 1996 and the date of his accident of April 12, 1996 was $818.63. This gives rise to compensation rates of $480 per week for temporary compensation and rates commencing at $128 per week for permanent compensation.

Petitioner alleged a compensable accident occurring on April 12, 1996.

Respondent initially denied the occurrence of a compensable accident. After the petitioner filed a Motion for Medical Treatment and Temporary Compensation, the respondent referred the petitioner to Dr. Flax and commenced payment of temporary compensation at a weekly rate of $208.60 and paid a total of $5,721.60.

Petitioner had been involved in a prior accident in which he injured his lower back. He underwent surgery for a herniated disc at L4-5. On June 8, 1992, he was awarded 22½ per cent partial permanent total disability for this injury.

On April 12, 1996, petitioner was driving a tractor-trailer for the respondent. He was on his way from a shoe warehouse in Mantua, NJ to the Tioga MarineTerminal in Philadelphia, PA. On Route I-95, near Philadelphia, the truck struck some bumps in the road and petitioner was catapulted from his seat. He stepped hard on the brake pedal and felt a "severe" pain in his lower back that radiated through his left hip and down his left leg.

He stopped at a roadside telephone and called the respondent. He spoke to the dispatcher, Peter Brunetti, and reported the accident. He requested permission to go to a hospital in Philadelphia and for a relief driver to get the truck.

He was told to return to respondent’s terminal in Edison, NJ with the truck.

Upon his return, he requested medical treatment and was told by Brunetti to go to an Emergency Room but was not given a referral slip.

He thereupon went to the ER at the Robert Wood Johnson Hospital in New Brunswick, NJ. The record of that visit (P7) shows that petitioner arrived at 4:07 p.m. and gave a history of the accident. X-rays were taken of his back and left hip. He was advised to see an orthopedist and was discharged with medication.

He returned to the respondent on April 13 and was given an accident report form that he filled out. (P1)

He was given a telephone number to call and was told that he could go for treatment and would be sent additional forms for this but he never received those forms.

On April 18 he saw Dr. Richard Lehman, a neurosurgeon at UMDNJ. He diagnosed petitioner’s condition as a radiculopathy and prescribed conservative treatment. (P8)

He came under the care of Dr. Devin Friedlander. On April 26 he was sent for X-rays of his left hip (P9) and a MRI of his lumbar spine (P10) which revealed degenerative changes in his lumbar spine. These changes had also been seen in a MRI done on March 31, 1994, prior to the accident of April 12, 1996.

Both doctors agreed that the petitioner was unable to work and in need of treatment as a result of the injuries sustained on April 12.

Petitioner was referred to the Comprehensive Rehabilitation Institute by Dr. Lehman and received physical therapy for his injuries.

On July 31, 1996, at the request of the respondent’s workers’ compensation insurance carrier, Public Service Mutual, the petitioner was examined by Dr. Walter Flax who prescribed a course of, "daily intensive routine back therapy x 4 weeks" for a "severe L-S sprain". (P14)

This therapy was provided at the Robert Wood Johnson Hospital.

On September 11, 1996, Dr. Flax reported to the Local 807 Labor-Management Health and Pension Fund that the petitioner was continuously disabled as a result of the severe lumbo-sacral sprain from April 12, 1996 and should be able to return to work on October 14, 1996. (P16)

On September 11, 1996, Dr. Flax continued petitioner’s physical therapy for an additional four weeks.

On September 23, 1996, while the petitioner was still being treated for the injuries he sustained on April 12, he was descending a stairway leading to the basement in his home and was three or four steps from the basement when he "felt a great pain in my left leg and left hip and it was like a numbing, like my leg was ready to give out and I fell back, but in the meantime, while I was falling back, I braced myself from, you know, hurting my back any worse than what it was with my right hand, breaking my wrist and injuring my left leg on the banister."(T23 L1-7)

He was seen at the Medical Emergency Treatment in East Windsor, NJ where he gave a history that he "slipped on stairs this am and fell jamming his R wrist and forearm on the stairs." X-rays showed a fracture of the right distal radius, radial styloid. (R3)

Petitioner was referred to Princeton Orthopedic Associates the same day where he was treated by Dr. Michael Jolly for the fracture as well as for the injury to his left leg.

He was subsequently diagnosed with RSD of the right upper extremity.

Dr. Jolley concluded that the injury to petitioner’s wrist was related to the compensable injury of April 12, 1996. (P23)

Petitioner was paid Temporary Disability Benefits from the Union Fund for the twenty-six week period commencing April 13, 1996, and, later, from the State of New Jersey Division of Temporary Disability, Disability During Unemployment for an additional twenty six weeks from October 27, 1996 to April 26, 1997.

The petitioner has returned to work as a truck driver. He has significant complaints to his right hand. He gets sharp pains, which, at times, require him to use his left hand to shift the gears on his truck. He gets shooting pain that periodically " jolts" his hand. He cannot lift or carry heavy items and drops even light things when his hand "just gives out."

He has had to give up playing the guitar because he does not have the strength or mobility in his hand and fingers.

His hand is worse in cold or damp weather.

He has pain in his lower back, left hip, and left leg. These pains cause him to awaken at night. He has to stop his truck and get out to walk around in order to restore the feeling in his left leg. He has difficulty pressing on the clutch of the truck and tries to avoid using it. It takes him longer to complete his run and he does no loading or unloading.

He has restricted ability to do things around the house and his marital relations with his wife have been affected.

Although he had similar problems with his lower back following his first injury and surgery, his condition now is more painful and his physical abilities are more limited than they were prior to the happening of the accident of April 12, 1996.

Dr. Mark Friedman testified for the petitioner. He is a specialist in Physical Medicine and Rehabilitation. He examined the petitioner on October 23, 1996 and again on April 12, 1998.

The report of an examination by Dr. Richard D. Rubin was submitted on behalf of the petitioner to support his claim for neurological and psychiatric disability resulting from this accident.

The respondent presented the testimony of Dr. Walter Flax and Dr. Andrew Piskun and the report of Dr. Michael Yaffe on the issue of permanent disability.

A petitioner has the burden of proving all of the elements of his case by a preponderance of the probabilities. See Dwyer v. Ford Motor Co., 36 N.J. 487 (1962). The standard is one of reasonable probability. The evidence must be of sufficient quality to generate a belief that the tendered hypothesis is in all likelihood the truth. It must be such as to lead a reasonably cautious mind to the given conclusion. Although it need not be certain, it must be well-founded in reason and logic. See Ciuba v. Irvington Varnish and Insulator Co., 27 N.J. 127 (1958). There must be sufficient credible evidence to support any findings made by the judge.

In this case, I find that the petitioner was an extremely credible witness. His testimony was forthright and without evidence of exaggeration. Furthermore, it was not contradicted by any testimonial evidence by the respondent. Indeed, the documentary evidence clearly establishes that the respondent had due and timely notice of the accident as well as the nature of the injury originally suffered by the petitioner on April 12, 1996.

The areas of significant dispute revolve around the petitioner’s fall down the stairs at his home and the overall extent of the petitioner’s permanent disability.

Clearly, if the fall was caused by the effects of the back injury for which the petitioner was still under active medical treatment, then the injury to petitioner’s right hand which he fractured in the fall would be compensable as an "innocent aggravation." Kelly v. Federal Shipbuilding Drydock Co., 1 N.J. Super. 245 (App. Div. 1949).

The respondent argues forcefully that the petitioner’s varying explanations of what happened militate against a finding of innocent aggravation. Respondent’s medical experts, fixating upon petitioner’s description, "my hip locked up", have testified that there were no findings upon their examinations of any condition which would cause such a situation to occur.

I find that this is a too literal interpretation of the terms used by petitioner. He is a layman and his use of the term "locked up" is simply his way of describing an inability to move his leg, most probably due to the pain in his lower back and left hip for which he was receiving treatment and therapy. I have previously described the petitioner as an extremely credible witness and, in the absence of evidence of any other condition, either of the stairway or of the petitioner, which could account for the fall, I find that it was an innocent aggravation of the compensable accident resulting in the additional injury to petitioner’s right statutory hand.

A judge of compensation, of course, is not bound by the conclusionary opinions of medical experts; however, he must give consideration to such testimony and evaluate it based upon the doctor's qualifications and demeanor, the inherent trustworthiness of the testimony, and the quality of the underlying examination upon which the opinions are based. See Margaritondo v. Stauffer Chemical Co., 217 N.J. SUPER. 560 (App. Div. 1985). A Workers' Compensation Judge is a trier of fact and, consequently has "no duty to give controlling effect to any or all of the testimony provided by the parties' experts, even in the absence of evidence to the contrary." Amaru v. Stratton, 209 N.J. Super. 1, 20 (App. Div. 1985). The trier of fact may adopt as much of the testimony as appears sound, reject all of it, or adopt all of it. Ibid.; accord State v. Wemrock Orchards, Inc., 95 N.J. Super. 25, 31 (App. Div. 1967), cert. den., 50 N.J. 92 (1967).

Dr. Mark Friedman is a specialist in the field of Physiatry, the science of physical medicine and rehabilitation. He examined the petitioner on two occasions, October 23, 1996 and April 22, 1998. The reports of these examinations are in evidence as well as his testimony. These show significant findings of objective evidence of permanent disability involving the petitioner’s lower back, left hip, and right hand. At the time of his last examination, Dr. Friedman concluded that the petitioner had an overall disability of 45 per cent of total for a severe sprain and strain of the lower back with evidence of radiculopathy, superimposed upon his prior injury and surgery. He also concluded that petitioner had an additional disability of 45 per cent of total for involvement of the left hip which was separate from the lower back disability, and 35 per cent of the right hand for the residuals of the fractured wrist. He causally related all of these disabilities to the compensable accident of April 12, 1996 and the subsequent fall, which he said, was due to the low back injury.

I had questioned Dr. Friedman about what I perceived to be a problem with his estimate of 45 per cent of total for the lower back in his first examination which included references to some findings in petitioner’s left hip as compared to his later examination in which he evaluated the lower back and left hip separately at 45 per cent of total each on what seemed to be the same findings.

The law now requires that permanent partial disability must be shown by demonstrable objective medical evidence and the injury must be significant enough to merit compensation. The petitioner must first show objective medical evidence of the injury and that this results in a restriction of the function of the body, its members or organs. Objective medical evidence means evidence exceeding the subjective complaints of the petitioner and, therefore, compensation can no longer be awarded where the condition is manifested only by subjective complaints. Furthermore, even if the petitioner meets these requirements, permanent disability can not be found where the injury is minor in nature or where it does not impair the employee's working ability or interfere substantially with other aspects of life. Perez v. Pantasote, Inc.,95 N.J. 105, 115-17 (1984).

I find that the separate evaluations of disability made by Dr. Friedman for the lower back and left hip are based essentially upon the same findings as made in his first examination and are substantially overlapping.

The report of Dr. Richard Rubin was introduced into evidence on the issue of petitioner’s claim of neurological and psychiatric disability resulting from the accident of April 12, 1996. He examined the petitioner on April 22, 1998 and diagnosed a sciatic radiculopathy and radiculitis for which he estimated an overall disability of 35 per cent of total, a reflex sympathetic dystrophy of the right hand, for which he estimated 15 per cent of partial total an adjustment disorder with mixed emotional features for which he estimated a permanent psychiatric disability of 27 ½ per cent of partial total.

The respondent presented the testimony of Dr. Walter Flax who first saw the petitioner on July 31, 1996 in connection with petitioner’s request for medical treatment. At that time, petitioner complained of constant pain in the left hip, which radiated down his left leg. He said his leg went numb and his knee became swollen at times. Dr. Flax noted marked spasm of the paravertebral muscles with significant restriction of motion.

He prescribed physical therapy and referred petitioner to Robert Wood Johnson Hospital for this treatment.

He next examined the petitioner on September 11, 1996. He still had constant pain in the left hip, which went down his leg. There was still some spasm in the paravertebral muscles and petitioner was still in need of continuing physical therapy which Dr. Flax prescribed for an additional four weeks. Despite this, Dr. Flax estimated a permanent disability of 3½ per cent of total for this accident with the overall being higher due to the prior injury.

Dr. Flax last examined the petitioner on October 23, 1996. Although there was no longer any spasm, Dr. Flax noted that straight leg raising was tight on the right and 10 degrees restricted on the left. Hyperextension of the spine and lateral flexion to the left and right were noted to be tight and accompanied by complaints of pain.

Dr. Flax concluded that the petitioner’s permanent disability was unchanged from his prior examination and diagnosed his condition as a lumbosacral sprain.

The respondent’s final witness was Dr. Andrew Piskun. His appearance as a witness requires some explanation.

During the pendency of this matter there were significant differences of opinion between the parties on the medical issues. The court suggested that an independent examiner be chosen to see the petitioner and render an opinion as to the need for further treatment. There was an agreement that this examination would be done by Dr. Lewis Zemsky on February 4, 1997.

When the report was submitted, however, it revealed that Dr. Piskun who is a partner of Dr. Zemsky did the examination.

Dr. Piskun felt that the petitioner had reached the maximum benefit from medical treatment and had no disability with regard to his lower back and that the fall on the stairs was unrelated to his lower back injury.

When he was called to testify, it was revealed that Dr. Piskun had been the original treating doctor of the petitioner in connection with the prior injury to petitioner’s lower back in 1991. He felt that there was no evidence of a herniated disc at that time. Petitioner became dissatisfied with the doctor and had his treatment transferred to a neurosurgeon, Dr. Scialabba who thereafter operated on petitioner for a herniated disc at L4-5. This resulted in the prior award of 22½ per cent.

I found the testimony of Dr. Piskun to be biased and not worthy of credibility. He did not believe that the petitioner had any disability from the 1991 accident. He came very close to directly accusing Dr. Scialabba of performing unnecessary surgery and falsifying the surgical record and he had no hesitancy in intimating that that was the explanation for the totally negative findings made by Dr. Piskun in 1991 and again in 1997 despite the surgery and the prior award of permanent disability which followed.

His examination was supposed to be as an "independent" evaluator. He was anything but.

The report of Dr Yaffe revealed that he felt there was no permanent neurological or psychiatric disability resulting from a sprain of petitioner’s left hip and that there was no evidence of RSD in the right hand.

RSD (reflex sympathetic dystrophy) is a chronic pain state induced by soft tissue or bone injury in which the pain is associated with sweating or vasomotor abnormalities and/or skin or bone atrophy, hair loss or joint contractures of the affected area. (Merck Manual, centennial ed. 1999 P. 1372). Neither the report of Dr. Rubin nor that of Dr. Yaffe makes any such findings.

I therefore find that the petitioner is not currently suffering from RSD of the right hand. He does, however have permanent disability resulting from the fracture. Dr. Friedman found swelling of the right wrist with tenderness and a 20 per cent reduction in all motions, together with a 50 per cent reduction in strength compared to the opposite hand, for which he estimated a permanent disability of 35 per cent of the right hand. The respondent has not presented any evidence on the issue of the permanent disability of the hand. Neither Dr. Flax nor Dr. Piskun examined that member other than to note that petitioner was still under treatment for that injury.

I accept the opinion of Dr. Friedman and find that the petitioner has a permanent disability of 35 per cent of the right hand as a result of a fracture of the radial styloid of the right wrist.

I further find that the petitioner has a permanent disability of 40 per cent of total for the residuals of a severe sprain of the lumbosacral spine and a contusion and sprain of the left hip, superimposed upon the prior lower back surgery. Respondent will receive a credit for the pre-existing functional loss of 22½ percent reflected in the prior judgment.

I base this award upon my evaluation of the petitioner’s complaints, the objective findings in the lower back of spasm and tenderness with restriction of motion found by Dr. Friedman together with the weakness of the left quadriceps, hip flexors and the limitations of petitioner’s working ability consequent thereto. I also note that, while Dr. Flax only estimated petitioner’s permanent disability at 3½ per cent of total, he was clear in stating that this was in addition to the pre-existing disability.

I find that the petitioner is entitled to a period of temporary compensation from April 12, 1996 to April 26, 1997, or 54 1/7 weeks at $480 per week amounting to $25,998.57. From this amount, the respondent will deduct the sum of $8,814 and send it to the Local 807 Labor-Management Health Fund as reimbursement for TDB paid to the petitioner.

The respondent will also deduct the sum of $9,412 and send it to the State of New Jersey Division of TDI, Disability During Unemployment Section as reimbursement for the TDB paid to the petitioner.

The respondent will also receive credit for $5,721.60 paid to the petitioner subsequent to the petitioner’s Motion for Medical Treatment and Temporary Compensation.

The balance of $2,040.97 is due to the petitioner.

N.J.S.A. 34:15-28.1 provides that the unreasonable delay or refusal to pay temporary compensation after having actual knowledge or receiving notice of the occurrence of a compensable injury for which temporary compensation is due shall subject the employer or insurance carrier responsible for said delay to a penalty of 25 per cent of the amount then due together with reasonable attorneys fee.

In this case, the evidence is clear that the respondent had due and timely notice of the accident and occurrence of the injury and that temporary compensation was due and owing. Despite this knowledge, the respondent and/or it’s insurance carrier not only did not pay anything to the petitioner until after a Motion for Medical Treatment and Temporary Compensation was filed, they then paid the petitioner a weekly amount far below that to which he was entitled by reason of his wage at the time of the accident.

Furthermore, the respondent has never admitted to the compensability of this accident either on the record or in any amended pleading filed in this case, despite making payments later. Even the stipulations made on the first day of trial are silent on this issue.

Nevertheless, respondent has, in fact, paid petitioner the sum of $5,721.60 following the Motion. The correct amount due for the lost time chargeable to the lower back injury was $8814. Therefore, I find that the respondent was in violation of it’s obligation to pay temporary compensation in the amount of $3,192.40 and therefore I assess the respondent with a penalty of $798.10, payable to the petitioner in addition to the temporary compensation awarded herein. I do not award any additional counsel fee on this penalty as there were no additional services rendered by the petitioner’s attorney other than those for which he will be awarded a fee for representation of the petitioner.

I find, however, that in connection with the temporary compensation awarded for the lost time due to the fractured wrist and other injuries sustained in the fall at home, there was a reasonable basis for the failure to pay temporary compensation as the liability of the respondent was denied and that denial was not unreasonable in the face of the disputed medical and legal facts.

The respondent shall also pay the outstanding bills for medical treatment in the sum of $3,314 and reimburse the petitioner in the amount of $2,528 for treatment paid by him on submission of bills and receipts.

The permanent disability entitles the petitioner to 165.60 weeks of compensation at $256 per week amounting to $42,393.

There will be allowances as follows:

Dr. Friedman, 2 examinations, appearance and testimony, $650 payable $325 by each party;

Dr. Rubin, examination and report, $200, payable $100 by each party;

Wysoker, Glassner & Weingartner, Esqs., attorney’s fee $14,800, payable $13,600 by respondent and $1,200 by petitioner.

J.F.Trainor, Inc., stenographic fee $900 payable by the respondent.

Judgment will be entered in accordance with this Decision.