CP# 98-4029 Schleske v. Herr Foods
DEPARTMENT OF LABOR
DIVISION OF WORKERS’ COMPENSATION
OCEAN COUNTY DISTRICT
||HONORABLE COSMO GIOVINAZZI, III
Judge of Compensation
|DRAZIN & WARSHAW, ESQS.
By: PAMELA J. JOHNSON, ESQ. &
SCOTT J. SCHNEIDER, ESQ
Attorneys for the Petitioner
BRESSLER, AMERY AND ROSS, ESQS.
This is the decision of the court in Schelske vs. Herr Foods, C.P. 98-004029.
The parties have stipulated that the petitioner was in the employ of the respondent on August 21, 1997 when she allegedly suffered an injury to her right leg during the course of employment. At that time, petitioner was earning a gross weekly wage of $575 per week, giving rise to a temporary disability rate of $402.50. The respondent has denied that petitioner suffered a compensable injury on August 21, 1997. The issues to be determined by the court are whether the petitioner suffered an accident which arose out of and in the course of employment; if so, whether the petitioner sustained an injury which is causally related to employment; and if so, the nature and extent of temporary and permanent disability to which petitioner may therefore be entitled. If these issues are all determined favorably to the petitioner, it would then be necessary to determine whether Oxford Health Plans, Inc. is entitled to reimbursement from the respondent for medical bills which it paid to medical providers who treated the petitioner, totaling $4,788.89 (P-6).
ANALYSIS OF EVIDENCE
Petitioner, Cindy Schelske is a route salesperson for Herr Foods. Her job requires her to sell and deliver potato chips and related merchandise to retail outlets where she is required to set up displays and merchandise shelves.
On August 21, 1997, Ms. Schelske parked her truck outside of the front door of the Herr’s warehouse and descended the steps to go into the office to pick up her computer. As she was descending the two steps of the truck, she felt something in her right knee which was unusual. As she stepped down onto the ground with her right leg, she felt a pain in her right knee. When she looked down at her knee, she noted a lump, almost like a bone sticking out accompanied by pain.
Ms. Schelske reported this occurrence to her manager, Pete Wortman, who assisted her in completing her route assignment on August 21. By the end of the day, her knee was less painful. Within a couple of days whatever problem she experienced on August 21 “seemed to have gone away.”
However, a couple of months later, while she was walking on her route, her knee popped out again. She experienced the same symptoms S pain along with a lump on the outside of her right knee. Because the condition had cleared after the first incident on August 21, she thought it would probably go away again within a couple of days. She was on vacation a couple of days later and realized that her knee had not cleared up. As a result, her husband took her to the emergency room. She contacted her employer to advise that her knee had popped out again, and that she was planning to go see a doctor. Her employer directed her to see Dr. Joseph Bogdan, M.D., a Board-Certified Orthopedic Surgeon. Ms. Schelske first saw Dr. Bogdan on October 24, 1997, at which time he diagnosed a palpable mass in the lateral aspect of her right knee. He ordered an M.R.I., which was remarkable for an intra-articular mass adjacent to the lateral retinaculum.
At the time of her initial appearance before Judge Philip M. Gumbs on May 24, 2001, petitioner described the incident of August 21, 1997 as follows:
“. . . I parked my truck outside of the front door and I went to get out of the truck. I was at S S it’s a step van. I stepped down a step, held onto the side of the truck with my right hand, stepped down on my right knee and I felt S S as I am stepping down with my left foot I felt something in my knee that was unusual. It was painful and when I got out of the truck I looked down and I saw S S like it looked to me like my knee popped. I have never had anything wrong with it. So I wasn’t sure what it was, a little lump, almost like a bone sticking out and I knew it hurt. . . .”
On cross-examination, petitioner acknowledged that she held onto the handle of the step van door as she descended the steps, and that her foot did not strike anything. She was not sure that she had missed a step as she exited the van. She described the steps on the van as a little higher than a normal step would be. She surmised that it was “a possibility that I just S S It has been awhile. So I am not sure positively if I mis-stepped and that is why it hit down hard enough to make that mass pop out.” Petitioner acknowledged that there was no hole in the ground, no bulge or hump in the pavement, and that she had stepped out of the step van everyday, several times a day, without incident.
Petitioner acknowledged that the condition had cleared up after a couple of days, and that it was sometime in October when her right knee flared up again. She testified that after the first occurrence in August, the lump in her knee went down gradually within a couple of days. However, after the second occurrence in October, the lump was still popped out throughout most of her vacation. As a result, petitioner testified that she went to the emergency room at Brick Hospital while she was on vacation.
As a result of the illness and subsequent retirement of Judge Gumbs who took petitioner’s initial testimony on May 24, 2001, this case was transferred to me for completion. I requested the petitioner to testify a second time so that I could hear her first hand and observe her on the witness stand. Pursuant to my request, petitioner testified a second time on April 25, 2002. Petitioner’s testimony before me was consistent with the testimony which she provided initially before Judge Gumbs. As to the August 21, 1997 incident, petitioner stated “I stepped out of the truck, I felt my right, my right knee felt funny. So as I’m stepping down, onto it, I felt it, like I thought it popped. That’s the best way, that’s the only way I’ve ever been able to describe it. I felt it pop, and I kind of hobbling, and I looked at my leg and I saw a little, a bulge in it. . . .” Petitioner described the bulge as a pretty good size on the right side of her right knee, at about the point where the joint bends.
In order to be certain of what actually occurred as the petitioner was stepping out of her truck, I specifically asked the petitioner whether she felt the pain in her right knee before her foot touched the ground. She confirmed that that was the case, and that the pain actually occurred while her right leg was moving from the bottom step of the truck toward the ground. Petitioner acknowledged that she worked the rest of the day, and that while her right knee still hurt by the end of the day, it seemed to be getting better.
Petitioner testified that her leg cleared up, but that she had a recurrence of the bulge in her right knee while walking on her route a couple of months later. She indicated that as she was walking, the lump in her knee suddenly popped out again. During this second occasion it felt about the same as it had during the first occurrence and she assumed that in a couple of days it would go away again.
On cross-examination, petitioner acknowledged that there was no dip or rise in the pavement onto which she was stepping when she felt her leg pop on the first occasion while alighting from the truck. She admitted that she was stepping down in a normal fashion, that she was not carrying anything, and that this was something that she had done thousands of times before without incident.
Petitioner further acknowledged that there was no defect in the ground on which she was walking at the time of the second occurrence. She was simply walking along flat ground when the lump in her knee popped out again a couple of months later.
As a result of reporting this recurrence of her knee condition to her employer, petitioner was referred to Dr. Joseph Bogdan, M.D., a Board-Certified Orthopedic Surgeon. According to his curriculum vitae (R-2) Dr. Bogdan is a member of the American Academy of Orthopedic Surgeons, and has a special interest in the joint reconstruction of hips and knees. Dr. Bogdan testified by deposition on Monday, March 4, 2002, and a deposition transcript was subsequently admitted into evidence on May 16, 2002.
In his testimony, Dr. Bogdan describes petitioner’s injury as “in her words, written, the first time, stepping out of the truck on the right foot, felt something pop in the knee area, some swelling during the day. Second time, continuous bending of the knee, popped it out again.”
Dr. Bogdan first saw petitioner on October 24, 1997 when he diagnosed a palpable mass in the lateral aspect of her knee. As a result, he ordered an M.R.I. which identified an intra-articular mass adjacent to the lateral retinaculum of petitioner’s right knee. Dr. Bogdan discussed the M.R.I. findings with the petitioner on November 26, 1997 and recommended a biopsy as well as a diagnostic arthroscopy. On January 13, 1998, Dr. Bogdan removed a mass which was located along the lateral reticular region of petitioner’s right knee and sent the mass for a pathology evaluation. The mass is described in the surgical pathology report issued by a pathologist at Meridian Hospital as a lateral retinaculum with polypoid soft tissue fragment showing extensive coagulative infarction with hemorrhage. The pathologist found extensive acute inflammation in a reactive process that includes giant cells, which suggested synovial like tissues. He postulated that the mass was synovitis with localized infarction. (P-2). As a result of this uncertain diagnosis, the mass was then submitted to a second pathologist at the Hospital for Special Surgery who diagnosed the mass as pigmented villonodular synovitis, nodular intra-articular, infarcted in his report of January 23, 1998 (P-3).
Dr. Bogdan concluded that the pigmented villonodular synovitis (hereinafter PVNS) was in no way related to her work. He described the mass as a benign synovial tumor which was pedunculated like a ball attached to a stump, similar to what a mushroom would look like. Such a mass usually takes a long time to develop. Dr. Bogdan indicated that such a mass would normally continue to grow, and that, depending on its size, a person with such a mass could go an entire lifetime without even knowing that it was there.
Dr. Bogdan testified that the PVNS became infarcted at some point, and it was this infarction which caused petitioner to begin having acute symptoms. He described infarction as a cutting off of the blood supply to the tissue, which causes it to necrose or die.
Dr. Bogdan was clearly of the opinion that there is no way to determine what caused petitioner’s PVNS to become infarcted. He explained that a pedunculated lesion can rotate from basic, everyday activity, that it could become infarcted from a trauma, or from any torsional motion that would compromise the blood supply to the mass. His conclusion was that simple everyday activities could cause it to infarct, such as bending the knee in general, walking or turning over in bed.
However, Dr. Bogdan pointed out that the popping sensation which the petitioner described was not the result of the infarction of the mass, but was rather the pedunculated nodule of synovium flipping back and forth within the knee. He concluded that the popping would be a clinical sign of the lesion itself and not infarction of the lesion.
Dr. Bogdan further concluded that once the mass infarcted, petitioner would begin having symptoms at that time or shortly thereafter, and that once infarction occurs, the mass will usually stay symptomatic due to the death of the tissue.
In considering the history based upon petitioner’s testimony, Dr. Bogdan concluded that petitioner’s PVNS did not infarct as a result of petitioner’s stepping down from her truck on August 21, 1997. His opinion was based upon the fact that shortly after seeing the bulge in her right knee on August 17, accompanied by pain, she became asymptomatic and did not experience any further symptoms at all until approximately two months later in October of 1997. He concluded that the infarction of petitioner’s PVNS occurred sometime prior to his first examination of her on October 24, 1997. Dr. Bogdan admitted on cross-examination that a work-related incident or activity could have caused the infarction, but he testified “ . . . I don’t believe that we can accurately say that anything that was done at work caused this nodule to be infarcted.” This was consistent with his earlier testimony that “It is likely that, through activity, either at home or at work, may have caused the nodule to undergo torsion; as a result, to infarct.” This is also consistent with the opinion which he expressed in his progress notes of January 17, 1998, apparently as a result of a telephone conference with the petitioner and/or her husband. In that note, he stated “I don’t believe that we will ever know how this nodule became infarcted. It is not likely to be specifically related to work. Certainly the PVNS, in no way is related to her work condition. It may be that the type of work that she does may have led us to make the diagnosis a bit sooner but I don’t believe that we can accurately say that anything that was done at work caused this nodule to become infarcted.” Further down, he noted “Cindy’s husband is filing a case claim for compensation but I don’t believe that we can actually determine the true etiology of the infarction and the mass itself certainly was not caused by work-related activities.” (R-1, progress note of January 23, 1998).
When reviewing R-1, it is noteworthy that Dr. Bogdan’s initial history is inconsistent with the testimony of the petitioner. In his initial progress note of October 24, 1997, the history indicates that petitioner is “a 40-year-old female who is status post an injury to her right knee where she twisted it by getting out a truck. She had significant pain and swelling over the lateral aspect of her knee with a palpable mass in that area.” There is no mention in this history of the fact that the petitioner became pain-free and was unsymptomatic within two days of this occurrence, and did not experience a recurrence of pain in her right knee until approximately two months later. A similar history is cited in the progress note of November 26, 1997. That history indicates that the lump noted by the petitioner on August 21, 1997 continued without change from that date.
It is only the history set forth in the report of December 11, 1997 (P-4) in which Dr. Bogdan mentions a separate injury. Even in that report, however, he notes that the first episode was reported to be August 21, 1997. She then sustained a second injury in a similar fashion on August 17 (presumably October 17).
Obviously, the history set forth in Dr. Bogdan’s initial progress notes is inconsistent with the testimony of the petitioner. At no time did the petitioner testify that she twisted her knee while alighting from her delivery truck. It may be that in describing her condition to Dr. Bogdan on October 24, petitioner simply lumped the first occurrence of August 21 with the second occurrence which occurred about two months later in October of 1997 and that the doctor simply concluded that she must have twisted her knee. However, it is clear that the history set forth in Dr. Bogdan’s report is inconsistent with the petitioner’s testimony.
Similarly, the history which is set forth in the report and testimony of Dr. Martin Riss is also inconsistent with petitioner’s testimony.. Dr. Riss was the medical expert called by petitioner in support of her claim that the condition of her knee was causally related to her employment. His evaluating report (P-1) sets forth the following history: “While working the petitioner was descending from a truck and as she stepped down and applied weight to her right knee, a lump was noted. Her right knee was giving way. She continued to work getting in and out of the truck.” He then notes that in October 1997 petitioner’s right knee popped out again, and she notified the company doctor about her persistent knee complaints.
In his report and initial testimony, Dr. Riss diagnosed petitioner’s condition as right knee lateral reticular intra-articular mass and concluded that this condition was causally related to the accident of August 21, 1997.
In his testimony, Dr. Riss initially testified that the most reasonable medical probability is that it comes from trauma to an area infarcting the tissue. As a basis for this opinion, he indicated that it was his understanding from the history received that it was the ankle area. He then stated: “I’ll offer with a reasonable degree of medical probability that an individual with no preceding medical history, no proceeding lump until she fell down, that came from her stepping and getting, maneuvering off the van.”
The initial history given by the doctor is inconsistent with the petitioner’s testimony in that the petitioner testified that the lump and pain occurred in her right knee while she was stepping from the truck, and before her right foot had touched the ground. There is no indication that petitioner injured her ankle, or that she fell to the ground. Thus, it is unclear how Dr. Riss reached his opinion that the infarction of the tissue was due to trauma when she fell down, or that it somehow involved the ankle area.
In his report, Dr. Riss clearly indicated that the diagnosis of a right knee lateral reticular intra-articular mass was causally related to the accident of August 21, 1997. Upon cross-examination, he acknowledged that the petitioner did not tell him that the incident of August 21, 1997 involved a twisting of the knee.
After reviewing P-2 and P-3, Dr. Riss appeared to concede that the PVNS in petitioner’s right knee preceded the occurrence of August 17, 1997. He testified that it was his position that absent that entity (presumably the PVNS), however it may have happened, we now have an event and we have an infarcted lesion. He then stated “It may be there, who knows. It is incidental. Absent that traumatic event and absent the infarcting of this tissue, she perhaps would have never had a problem with that. Within a reasonable medical probability, she wouldn’t have had a problem with it.”
Subsequently, Dr. Riss conceded that it was quite possible that the PVNS existed without trauma. He continued to take the position that, but for the traumatic step and the infarction of the PVNS, it never would have jumped and bulged out the way it did.
As its expert witness, the respondent called Dr. Malcolm Coblentz, M.D., a Board-Certified Surgeon. Dr. Coblentz evaluated petitioner on January 21, 1999. The history which she provided to him is significantly different than the history provided to either Dr. Bogdan or Dr. Riss. In describing her injury to Dr. Coblentz, petitioner stated that she was stepping off her truck while working as a route sales representative when her right knee buckled and blew up. She did not think that it was too bad of an injury, but it happened a second time in October.
Dr. Coblentz determined that the condition from which Ms. Schelske suffered was pigmented villonodular synovitis which he described as an encroachment pathology condition of the sessile papillar, a growth, a nodular component which became raised, uneven and duplicate excess growth that came out on a little stack. He explained that this condition resulted in irregular surfaces on a very smooth lining of the joint. He testified that nodular means little nodules, which he described as little mushrooms which stack and attach to the lining. The condition was in the lateral or outside of petitioner’s right knee.
Dr. Coblentz described pigmented nodular synovitis as an incidious condition which can take years to develop. He noted that when the condition (PVNS) became infarcted, its blood supply was cut off. Dr. Coblentz noted that the history of what actually occurred in petitioner’s right knee was somewhat different from the history which he received from the petitioner at the time of her examination.
Dr. Coblentz agreed with Dr. Bogdan that the popping sensation which petitioner felt resulted from the nodules slipping back and forth in a portion of the joint space, and further testified that, in his opinion, the infarction of the PVNS did not take place at that time. Like Dr. Bogdan, he concluded that if the blood supply had been cut off to a segment of the tissue when petitioner stepped off of her truck on August 21, 1997, the tissue would have died off and there would have been inflammatory changes and a progression of problems. He testified, that, in his opinion, if the infarction had taken place on August 21, 1997, she would have continued to have symptoms thereafter.
Dr. Coblentz further testified that, in his opinion, there was no way of finding out when petitioner’s PVNS became infarcted. He noted that infarctions are usually caused by some sort of a vascular compromise. He attributed the infarction to a clotting in the blood vessel caused by irritation of the blood vessel lining. He attributed the irritation to the contact of the nodule back and forth within the knee which stressed the lining of the blood vessel at microscopic levels to the point where these linings cracked. He testified that once an irritation occurred in the blood vessel, it set up a clot which, if big enough, would cut off the blood supply. He indicated that such a stress could occur while walking, regardless of whether petitioner was walking at work, walking in her kitchen, or rolling over in her bed.
Consistent with the opinion of Dr. Bogdan, Dr. Coblentz concluded that petitioner’s PVNS and its infarction had no relationship to petitioner’s employment with the respondent. He did not know what caused the infarction, or at what moment the infarction had occurred.
On cross-examination, Dr. Coblentz read from Dr. Bogdan’s record of January 23, 1998 and testified that he agreed with Dr. Bogdan’s opinion and it was not possible to determine the true etiology of petitioner’s PVNS; the mass itself was totally unrelated to the incident at work. In assessing a disability to petitioner’s right leg of 5%, the doctor explained that it was based upon the fact that the synovectomy that relieved the synovial line, that had been altered by the operation to petitioner’s knee, resulted in an alteration of the tissue which resulted in a minor disability of 5%. The permanency rating was given regardless of cause, but is not related to her work. Rather, it was related to the surgery which was necessary to remove the PVNS.
This opinion given by the doctor is consistent with Dr. Coblentz’s earlier opinion that the only abnormality which he found during his examination were the arthroscopic scars. He found no functional loss to the knee.
FINDINGS, CONCLUSIONS AND DECISION
There is a substantial discrepancy between the petitioner’s testimony in this case and the history which she gave to the treating and evaluating doctors. Petitioner initially testified before Judge Gumbs that she parked her truck outside of the front door of the office at Herr Foods in order to pick up her computer in the office. She told Judge Gumbs that as she was stepping down with her left foot, holding onto the side of the truck with her right hand, she felt something in her right knee which was unusual. It was painful, and when she got out of the truck she looked down and saw a little lump in her right knee, almost like a bone sticking out. It hurt, and it looked to her like her knee had popped.
Petitioner’s testimony before me was consistent with the testimony which she provided to Judge Gumbs, as above noted. In furtherance of her testimony, petitioner indicated that the last step on the step van was not a normal step, but is a little higher than an average step would be. Petitioner subsequently clarified that she felt the initial pain in her right knee between the time when she placed her left foot on the bottom step and prior to her right foot touching the ground. Thus, it was while she was stepping from the bottom step of the truck to the ground that she felt the pain in her knee.
Having had the opportunity to compare the testimony which the petitioner provided to Judge Gumbs with the testimony which she subsequently provided to me on April 25, 2002, I find that the petitioner’s testimony is credible and that she first felt the pain in her right knee while she was stepping down from her truck, and while her right foot was in the air and prior to touching the ground or driveway beneath the bottom step. I find that the petitioner’s testimony between her first and second court appearances is consistent, and I further note that she tried to be as careful as possible to remember exactly what occurred in order to testify honestly and fully. It is my determination that the petitioner’s testimony in court was credible is not only based upon the consistency between her first and second court appearances, but also upon my observation of her demeanor and her facial expression as she testified before me on April 25, 2002.
Having reached this determination, I cannot give complete credence to the history which petitioner gave to any of the doctors who treated or examined her. In her initial meeting with Dr. Bogdan on October 24, 1997, she apparently told the doctor that she had injured her right knee when she twisted it by getting out of a truck. I note that in her testimony, petitioner did not indicate that she twisted her knee while stepping down from the truck. This conclusion is confirmed by her testimony on cross-examination, where she acknowledged that she was not carrying anything as she stepped out of the step van, and that she stepped out of the van in the same manner as she did every other day, in a normal fashion. This was a maneuver which she had performed thousands of times before. Petitioner acknowledged that she had not stepped into a hole in the ground, or stepped on a bump in the pavement. In answer to another question on cross-examination, petitioner was uncertain of whether the distance between the last step and the ground somehow caused or contributed to the pain which she felt in her knee. She indicated that it was a possibility, but that she was not sure positively if she had mis-stepped and that was why her foot had hit down hard enough to make the mass in her knee pop out. However, she clearly testified in response to my questions that she first felt the pain in her knee while her right foot was still in the air and before her foot hit the ground. It was only after she stepped onto the ground that she looked down to her knee and saw the lump which she thought was a bone.
Thus, I discount the description which Dr. Bogdan placed in his office note which indicates that petitioner twisted her knee by getting out of a truck.
I also note other inconsistencies regarding history given to Dr. Bogdan. On November 26, 1997, Dr. Bogdan notes that petitioner “is a 40-year-old female who reports twisting her right knee and ever since that has noticed a palpable mass on the lateral aspect of the knee.” (R-1). The inconsistency here is that petitioner clearly and unequivocally testified that the pain in her right knee, along with the lump which he saw on August 17, 1997 cleared up two or three days later so that her knee felt and looked just as it had before the incident of August 17. She was then pain-free until a couple of months later when, while walking, she again saw the lump pop out on her knee. At that point, she felt the same pain and saw the same lump which she had initially seen while stepping out of her truck. She indicated that that pain and lump lasted through most of her vacation, but she was not sure whether the pain and lump had again cleared up before she saw Dr. Bogdan.
Similarly, I note a discrepancy between the history which petitioner provided to Dr. Riss when he evaluated her on December 22, 1998 and the testimony which she gave in court. In explaining to Dr. Riss what had occurred, she indicated that she was descending from a truck, and as she stepped down and applied weight to her right knee, a lump was noted and her right knee was giving way. The petitioner may have noticed the lump after she placed her right foot on the ground. It is clear to me that she felt the pain in her knee before her foot touched the ground. Furthermore, in her testimony before both myself and Judge Gumbs, petitioner made no reference to her knee giving way. In fact, she testified that as the day went on, her knee felt better and she was thus able to continue working without any lost time.
Similarly, the history which petitioner apparently gave to Dr. Coblentz, who evaluated her on February 14, 1999 (R-3) is inconsistent with her testimony. She told Dr. Coblentz that as she was stepping off of her truck, her right knee buckled and blew up.
Since I do not know what questions the doctors who saw petitioner asked in obtaining their respective histories, or whether they accurately recorded what petitioner said in response to their questions, I do not find that petitioner misrepresented the happening of the incident to any of the three doctors. However, given the inconsistencies between the testimony which petitioner provided to me, which I find to be credible and that which she provided to the three doctors, I simply cannot accept the history set forth by any of the doctors in the medical records which have been marked into evidence.
It is undisputed that in a Workers’ Compensation case, the burden of proof rests upon the petitioner, who must persuade the trier of fact by a preponderance of the credible evidence on each and every element of his or her claim. Perez vs. Pantasote, Inc., 95 N.J. 105 (1984). It is also undisputed that respondent is subject to the same evidentiary standard on those elements of the case where it bears the burden of proof. Fiore vs. Consolidated Freightways, 140 N.J. 452 (1995).
Thus, pursuant to N.J.S.A. 34:15-7, the burden is on the petitioner to prove, by a preponderance of the evidence, that she suffered an accident which arose out of and in the course of employment. The statutory requirement that a compensable accident arise out of employment “looks to a causal connection between the employment and the injury.” Coleman vs. Cycle Transformer Corp., 105 N. J. 285, 290 (1986).
As outlined in her brief, the petitioner cites the case of Spindler vs. Universal Chain Corp., 11 N.J. 34 (1952) which considered the case of a woman who, while at work, turned to replace a wrench on a tool shelf behind her. In doing so, she slipped and fell on the concrete floor, severely injuring her hip. Petitioner was not certain what caused her to fall. Respondent argued that her injury probably resulted from dizziness or a fainting spell caused by a physical ailment, rather than from an accident arising out of and in the course of employment. The court, quoting from Bryant vs. Fissell, 84 N.J.L. 72 (1913) stated:
“Injury by accident is the language of the statute which must be construed and broadly delineated. Considering the words themselves in their context, it is obvious that they exclude injury by disease only as well as injury by design on the part of the petitioner. We have long held the view that an accident is ‘an unlooked for mishap or untoward event which is not expected or designed,’ or ‘an unintended or unexpected occurrence which produces hurt or loss.”
It is clear that the term “accident” is to be used and therefore should be considered in its ordinary, popular and accepted sense and that it need not be due to any extraneous event or occurrence. Spindler, supra. quoting from Bollinger vs. Wagaraw Building Supply Company, 122 N.J.L. 512
(E. & A. 1939).
The court in Spindler went on to state that where a respondent claims that an accident was the result of the physical condition of an employee, the burden of proof is on the employer to show such cause.
The court in Spindler, supra., at 38, 39 went on to set forth a number of additional principles. The court noted that an injury suffered during the course of work does not, per se, entitle the injured employee to the benefits of the Workers’ Compensation Act; it must also appear that the injury arose out of the employment. While the burden of proof may be sustained by circumstantial evidence,
probability, not the ultimate degree of certainty is the test. A risk is “incidental to employment” when it belongs to or is considered with what a workman has to do in fulfilling his contract of service.
In finding that petitioner Spindler was entitled to compensation, the court concluded that, by the process of elimination, her injury was brought about by her turning to replace the instrument she was using to the shelf located behind her, in furtherance of the purpose of her employment.
The respondent argues that the petitioner was suffering from an idiopathic condition which Dr. Bogdan, petitioner’s treating doctor, identified as PVNS. PVNS occurs in the lining or synovium of a joint, and results when the joint becomes thickened and contains agmosiderin, which gives the tissue a bloodstained appearance. As it grows, this tissue tends to invade the adjacent bone, causing cystic destruction.
Dr. Bogdan testified that PVNS is a benign synovial tumor, the etiology of which remains unclear. These tumors grow extremely slow, so that the PVNS in petitioner’s right knee clearly predated her incident of August 17, 1997.
In his office records (R-1) as well as in his testimony, Dr. Bogdan based his opinion of the condition in petitioner’s right knee upon the pathology report of Dr. Peter Bullough, M.D., the Director of the Department of Orthopedic Pathology at the Hospital for Special Surgery. Dr. Bogdan attributed petitioner’s complaints of August 17, 1997 to the PVNS in petitioner’s right knee “flipping back and forth within the knee.” Dr. Bogdan offered the further opinion that ultimately, the PVNS infarcted, thereby necessitating removal of the mass in petitioner’s right knee, which Dr. Bogdan did arthroscopically on January 13, 1998.
In his office records, and in his testimony, Dr. Bogdan stated that he did not believe that we would ever know how the PVNS became infarcted. He opined that it was not likely to be specifically related to work. Certainly, the PVNS itself was not work related. The doctor did note, however, that it may be that the type of work which petitioner performed may have led to the diagnosis a bit sooner. He did clearly state, however, that he could not accurately say that anything that was done at work caused the nodule to become infarcted. He felt that it was likely that, through activity, either at home or at work, the nodule was caused to undergo torsion and as a result, to infarct.
Dr. Bogdan also concluded that the infarction of the PVNS did not occur on August 21, 1997 because, had that been the case, petitioner would have had immediate and continual symptoms. Dr. Bogdan’s opinion was based upon the fact that petitioner became pain-free two or three days after the incident of August 21, 1997, and was thereafter pain-free and without a lump in her knee for approximately two months.
As the treating doctor, the opinions of Dr. Bogdan are entitled to greater weight in the analysis of the issue of causal relationship, and in the further analysis of what actually occurred in petitioner’s right knee. Bober vs. Independent Plating Corp., 28 N.J. 160 (1958). Clearly, Dr. Bogdan treated petitioner both before and after her operation, and performed the operation on her right knee. He therefore had a greater opportunity to know, understand and decide upon the producing cause of Ms. Schelske’s condition.
Both parties rely upon the case of Verge vs. County of Morris, 272 N.J. Super. 118 (App. Div. 1994).
In that case, respondent contended that petitioner suffered an “idiopathic fall while at work which was caused by a purely personal condition having no work connection whatsoever.” In Verge, the court noted that the burden of proof to establish an idiopathic cause is placed on the employer. In Verge, the Appellate Division noted that petitioner testified that while walking in the lobby of the Morris County Courthouse, she slipped on a rug. Because petitioner had a long history of prior injury to her left knee, the Judge of Compensation dismissed petitioner’s claim because he found that there had been no contact between petitioner’s knee and the floor, and because petitioner had a long history of prior injury to her left knee. He therefore found that petitioner’s injury was an idiopathic event which was not compensable.
The Appellate Division reiterated that New Jersey adheres to the proposition that the employer takes the employee as the employer finds such employee, with all of the employee’s preexisting disease and infirmity that may exist. Therefore, an employee is not disqualified from compensation where the preexisting condition is aggravated, accelerated or combined with the preexisting disease or infirmity to produce the disability for which compensation is sought. The court concluded that the petitioner’s “slip” on the rug in the courthouse caused an aggravation of her preexisting condition. This would not be an idiopathic event, and petitioner would therefore be entitled to compensation. The decision of the Workers’ Compensation Court was therefore reversed and remanded.
The instant case, however, is distinguishable from Verge. In Verge, the petitioner clearly and unequivocally testified that as she was walking across the lobby of the courthouse, her left foot slipped on a rug, and she immediately felt a stabbing pain in her left knee.
In the instant case, there is no indication of trauma to petitioner’s right knee. Petitioner did not testify that she slipped, that she twisted her knee, that she stepped in a hole or otherwise suffered an accident. Rather, she testified that as she was stepping down from her truck, as she had done thousands of times in the past, she felt a pain in her right knee. Upon placing her right foot on the ground, she noted that a lump had developed on the lateral side of her right knee, about the size of a dime. The pain and the lump subsequently cleared up in two or three days, and she did not feel similar symptoms again until approximately two months later. When the symptoms next appeared, petitioner was walking on level ground and again did not twist her knee or otherwise identify an event which could be considered an accident.
The requirement that a compensable accident arise out of employment looks to a causal connection between the employment and the injury. It must be established that the work was at least a contributing cause of the injury, and that the risk of the occurrence was reasonably incident to employment. In effect, there must be a nexus between the employment and the accident or injury. Coleman vs. Cycle Transformer Corp., 105 N.J. 285 (1986).
As noted in Coleman, although a number of tests had been devised for determining the requisite causal connection between injury and work, the “but for” or positional-risk test is now a fixture in New Jersey law. In Howard vs. Harwood’s Restaurant Company, 25 N.J. 72 (1957) the Supreme Court outlined three categories of risks to be considered in the application of the “but for” doctrine. The most obvious kinds of risks are those distinctly associated with employment. This group comprises those types of things which can go wrong in an industrial society such as machinery breaking, objects falling, explosives exploding. . . . These obvious kinds of risks are distinctly associated with employment and are clearly compensable when they occur at the place and during the hours of employment.
A second category of risk causing injury which may be said to arise out of employment are those described as “neutral” risks. Neutral risks are defined as uncontrollable circumstances which do not originate in the employment environment but which happen to befall the employee during the course of his employment. An example of this type of risk is an act of God, such as being struck by lightning.
A third category of risks which do not bear a causative relationship to employment and which, therefore, may not be said to arise out of employment are risks which are personal to the claimant. In these situations, the employment connection with the injury is minimal. It is the personal proclivities or contacts of the employee which give rise to the harm, so that even though the injury takes place during the employment, compensation is denied. Howard vs. Harwood’s Restaurant Company, 25 N.J. 72 (1957).
The test to be applied in determining causation is the “but for” or positional test. As described in Howard, supra., “but for” connotes a standard of reasonable probability. Thus stated, the question is whether it is more probably true than not that the injury would have occurred during the time and place of employment rather than elsewhere. The positional test requires us to first ascertain whether, but for the fact of employment, the injury would not have happened. Petitioner’s treating doctor, Dr. Bogdan, indicated in his office records of January 23, 1998 (R-1) that he could not determine how the nodule in petitioner’s right knee became infarcted. He stated that while the type of work which the petitioner performed may have led to make the diagnosis a bit sooner, he did not believe that it could be accurately stated that anything that was done at work caused this nodule to become infarcted. While it was likely that activity, either at home or at work, may have caused the nodule to undergo torsion and, as a result, to infarct, he did not believe that he could actually determine the true etiology of the infarction.
Furthermore, Dr. Bogdan concluded that the PVNS did not infarct on August 17, 1997, the date set forth in the claim petition since the petitioner’s symptoms went away within two or three days. The pain abated and the lump disappeared. He thus attributed the complaint of pain on that date to a flapping of the nodule within the petitioner’s knee. Dr. Coblentz, respondent’s expert, agreed with Dr. Bogdan’s opinions.
This situation is unlike George vs. Great Eastern Food Products, Inc., 44 N.J. 44 (1965) where petitioner’s idiopathic condition caused a traumatic event. In that case, a purely personal condition caused petitioner to fall, striking his head on a concrete floor. In the instant case, there was no evidence of a traumatic event. Rather, petitioner simply felt pain in her knee, and observed the appearance of a lump while stepping down from her truck, and subsequently, two months later, while walking. Applying the “but for” test, I conclude that the PVNS was a condition personal to the claimant, that the employment connection with this condition was minimal, and that it was the normal activities of the petitioner which gave rise to the harm, even though the condition may have manifested itself during petitioner’s working hours. It is apparent that the injury in this case did not arise of out of employment.
In arriving at this conclusion, I reject the opinion expressed by Dr. Riss in this case for a number of reasons. First, giving his initial opinion as set forth in P-1, Dr. Riss did not appear to have all of the relevant medical records when he formulated that opinion. I read his initial opinion, as well as the testimony which he gave on direct examination, to indicate that petitioner’s PVNS was caused by the incident of August 21, 1997. This may have occurred because Dr. Riss did not appear to have seen the pathology report (P-3) of Dr. Bullough prior to rendering his initial opinion. However, even after seeing P-3 during his testimony, he still concluded that petitioner’s PVNS was causally related to her accident.
On cross-examination, Dr. Riss conceded that petitioner’s PVNS was not caused by her accident, but still opined that the infarction was causally related to employment. On this issue, Dr. Riss testified that “It is my opinion that within the standard of reasonable medical probability, that the before mentioned client’s finding and diagnosis are causally related to the accident on August 21, 1997 on a permanent nature. In this case, the accident being the act of stepping down from the van, it is my understanding from history received that it was the ankle area. . . . I’ll offer with a reasonable degree of medical probability an individual with no preceding medical history, no preceding lump until she fell down, that it came from her stepping and getting, maneuvering off the van.” Clearly, the doctor’s opinion, based upon petitioner falling down, is inconsistent with the facts of this case.
Finally, on cross-examination, Dr. Riss admitted that it was possible to have PVNS without trauma. However, he continued to take the position that if she had not had the traumatic step which caused the infarction of the PVNS, the condition would not have occurred. However, Dr. Riss’ opinion of causal relationship was based upon petitioner stepping down from the van. But it is clear that within two or three days after the August 17, 1997 event, petitioner’s knee cleared up so that she was without pain, and the lump was gone. I therefore reject the opinion of Dr. Riss regarding what caused the infarction of petitioner’s PVNS. Rather, I accept as more logical the opinion of Dr. Bogdan, and of Dr. Coblentz, that petitioner’s PVNS did not infarct on August 17, 1997. If it had, she would have persisted with her complaints since the infarcted tissue would have died and the pain would have increased. I, therefore, conclude that it is more logical that on August 17, 1997, petitioner felt a flapping of the nodule within her knee which caused the protrusion. But this was not the incident or event which caused infarction of petitioner’s PVNS.
I further accept as more logical and consistent with the facts of this case Dr. Coblentz’ opinion of what occurred within petitioner’s knee to cause the infarction of her PVNS. Through everyday activity, both at home and at work, the nodule moving within the knee stressed the lining of the blood vessel at microscopic levels, cracking the lining and setting up a blood clot. This clot then cut off the blood supply, causing the infarction.
In summary, the condition of petitioner’s knee which ultimately was diagnosed as an infarction of PVNS was not caused by an accident, and did not arise out of employment. The condition is, therefore, not compensable and petitioner’s claim petition should therefore be dismissed.
I further conclude that respondent has carried its burden of proving that petitioner’s knee problem resulted from an idiopathic condition.
I direct respondent to prepare a Judgment consistent with this decision.
Given the fact that there were four days of trial in this case, I will allow a stenographic fee to State Shorthand Reporting Service in the total sum of $600, to be paid by the respondent.
Cosmo Giovinazzi, III
Judge of Compensation
January 21, 2003