January 12, 2003

Irwin Rein, Esq.
59 Main Street
West Orange, NJ 07052

Antonia A. Tenenbaum, Esq.
C\O New Jersey Manufacturers Insurance Company
1559 Littleton Road
Parsippany, NJ 07054-3803

 Re:       Silva v. Custom Bandag – C.P. 91-013746

 Counselors:

 I enclose herewith my written Decision on C.P. 91-013746

            Thank you.

Enc. Written Decision – C.P. 91-013746

On February 14, 1991, the petitioner, Jose Silva, while working for the respondent injured his lumbar portion of his back when he attempted to remove a heavy tire from a truck to repair. Both parties stipulated that the petitioner was paid seventy-nine weeks of temporary disability at the stipulated rate of $200.20 for a total of $15, 815.80 and that amount is deemed adequate.

As concerns medical treatment, although petitioner’s attorney stipulated that all authorized medical treatment was paid for by the respondent the testimony reveals that there does appear to be an outstanding $451.00, July 19, 2000 St. James Hospital Emergency Room medical bill. Respondent alleges that bill is not their responsibility because it was unauthorized. Respondent further argues that even if it the bill was for emergency treatment there is no proof of its reasonableness. The petitioner alleges the respondent is responsible for that bill because it was for emergency treatment.

Before deciding the only remaining issue, the nature and extent of petitioner’s disability, I will give the reasons why I find the July 19, 2000, $451.00 St. James Hospital bill is the responsibility of the respondent. Of course, if the petitioner requires emergency medical treatment and authorization cannot be reasonably obtained the bill for the emergency treatment is the responsibility of the respondent. Colbert v. Consolidated Laundry, 31 N.J. Super. 588 (A.D.1954), Champman v. Valley Dinner, 25 N.J.Misc. 438 (1947).

In this matter, Mr. Silva testified that in the early evening hours of July 19, 2000 he went to the St. James Emergency Room, because he “couldn’t stand the pain any longer. I couldn’t stand the pain any longer.” Petitioner testified that he was examined by an emergency room physician, given x-rays of his lumbar spine, an injection for pain and a prescription for pain medication. His testimony is corroborated by P-7 in evidence, the St. James Hospital emergency record. The hospital record also indicated that Mr. Silva’s pain was the result of “trauma 9 yrs. ago to his back was recurrent exacerbation. No new trauma.”

From the above facts, it becomes clear that due to the nature of the emergency and the hour in which it occurred, Mr. Silva could not obtain the authorization of the respondent for this one emergency room visit. Further from P-7 it appears that the emergency treatment was not for any new trauma, but for an exacerbation of the admitted industrial accident. Finally, based upon my expertise I find the $451.00 medical bill reasonable. In making this decision I have considered the treatment rendered by St. James Hospital: an examination by an emergency room physician, x-rays of the petitioner’s lumbar spine, an injection for pain and a prescription for pain medication.

For all of the aforementioned reasons I order the respondent to pay the July 19, 2000, $451.00 St James Hospital bill.

I now turn to the nature and extent of Mr. Silva’s disability. In order for a petitioner to receive a judgment of compensation the claimant must prove by a fair preponderance of the evidence that the industrial accident occurred in and out of the course of the his or her employment. The claimant must also prove by objective medical evidence a disability that restricts the function of the body and then must establish either that there has been a lessening to a material degree of the worker’s working ability or that the worker’s ordinary life pursuits have been significantly impacted. Perez v. Pantasote, Inc., 95 N.J.105 (1984), Perez v. Monmouth Cable Vision, 278 N.J. Super. 275 (App. Div. 1994).

In this matter, four doctors testified. On behalf of the petitioner, Dr. Schwartz who conducted multiple orthopedic evaluations and Dr. Crain[1] who conducted a neuropsychiatric examination of the petitioner on August 26, 1998. On behalf of the respondent, Dr. Gross evaluated the petitioner’s orthopedic disability and rendered a report on September 3, 1998 and Dr. Dressner who evaluated petitioner’s neuropsychiatric disability on July 13, 2000 and issued a report dated July 17, 2001. Dr. Dressner also rendered two supplemental reports. The first on August 22, 2001, after reviewing an April 2, 2001 MRI and the second dated April 7, 2002, after reviewing videotapes.

Although the various evaluators all have estimates of orthopedic and neurological disability[2] there is a disparity in the estimates of their permanent disability. Each of these medical experts does disclose an advocate's prospective which must be weighed in light of objective medical evidence.  Such a disparity is not unusual.  In Lightner v. Cohn, 76 N.J. Super., 461, 465 (1962) certif. denied 38 N.J. 611 (1962), the court indicated that “The judiciary is not bound by the medical estimates offered by one or all of the physicians.”  Medical testimony is not conclusive.

Therefore, I have used the estimates of disability offered by the physicians merely as guides in formulating my own conclusion as to the degree of disability in this matter.

From the testimony and evidence I fix petitioner’s disability at sixty percent (60%) of permanent partial disability for residuals of a sprain of the lumbar sacral spine, a left-sided HNP at L5-S1 with radiculopathy and depression. My reasons follow.

In arriving at my estimate of disability I have considered the testimony of the various fact and medical witnesses, the objective medical evidence of petitioner’s various disabilities, the videotapes of petitioner, and the other evidence admitted during trial, including but not limited to, Mr. Henry’s, the respondent’s investigator, surveillance reports. Finally, I have looked at Mr. Silva as a whole person and arrived at my estimate of disability after considering how his various disabilities have affected his working ability and his ordinary life pursuits.

After and only after, I arrived at my estimate of petitioner’s overall disability did I allocate percentages for petitioner’s various disabilities. I allocated percentages of disability in the event that the petitioner reopens his claim. I would like to make it crystal clear to the parties that I did not simply add up estimates of petitioner’s disabilities in arriving at my estimate of disability. Rather, as I have said, I considered how Mr. Silva’s overall disability has affected his working ability and his ordinary life pursuits, and then I allocated percentages of disabilities in the event that the petitioner reopens his claim.

As to petitioner’s orthopedic and neurological disabilities, as I have said, all evaluators have estimates of disability. In evaluating these disabilities I have followed the instructions of our Appellate Courts not to have ranges of disabilities, because paraphrasing our Appellate Courts, an orthopedic injury to a blue-collar worker will often times have a greater affect on his or her working ability than on a white-collar worker’s working ability.

The unchallenged testimony in this trial reveals that Mr. Silva was a hard working individual whose entire employment history consisted of heavy, laborious work. This was due to his limited education and training, and his inability to speak English. Notwithstanding his limited resources, according to the lay witnesses produced by Mr. Silva he always held a job and has always worked hard. For example, Clarinda Silva, Mr. Silva’s wife testified, “Here, before the accident, he would do construction. Any type of work that he was asked to do, he would do it. He would do overtime. He work until all kinds of hours.” Continuing, “Before he had the accident he was a very active person. He was like an ox, the strength that he had. He was never tired. He worked until just about before he went to bed. He would get home, take a bath, and have dinner and go to bed. The next morning he would get up at four o’clock in the morning, go to work. Heavy work. Construction work. Blacktop that he did.”

Clearly, the objective medical evidence of Mr. Silva’s orthopedic and neurological disability that flowed from his admitted industrial accident prevents him from doing the heavy work that he did for the respondent. Indeed, it prevents him from doing any type of work that requires heavy lifting, repetitive bending, walking or standing for long periods of time. Notwithstanding, these significant limitations I agree with respondent’s evaluators that Mr. Silva is not totally disabled.  Not because as respondent’s evaluators would have me believe he is a malingerer, but because he is a man of courage and strength. A man who has learned to live with, indeed overcome adversity - a significant injury to his left leg, a limited education, and a limited knowledge of English - in order to work to support his family. 

Indeed, Mr. Silva’s own testimony reveals that he has looked for work since his accident. Unfortunately, he has not been able to find work, because no employer would hire once they found out that he had a significant work-related accident. I quote from Mr. Silva’s testimony.

Q             Have you looked for work. (Sic.) And if so, where?

A             Last year I went looking for work. Also this year. But the thing is, as soon as I arrive they see the condition that I am in, and right away they tell me no. Continuing,

A             They ask what happened, and I told them that I had an accident at work. They look at me and they give me that funny look.

Q             Have you looked for work more than two years back, in addition to 2000 and 1999? A  I have been looking for work. Some time ago when I was walking, I was walking with the lower position, because the pain was more intense. Now, thank God, the pain is a little lighter. When I have to – but then again there are days when the weather changes. When the weather changes, that’s really bad.

Even Drs. Schwartz and Crain, petitioner’s own medical evaluators testified that the petitioner can work, albeit not work that requires heavy lifting, repetitive bending, lifting, or standing or sitting for long periods of time. I quote from Dr. Schwartz’s testimony.

Q             Exclusive of any problem that he might have had with his left femur, did you have a (Sic.) opinion whether or not he was totally disabled?

A             Yes, he was totally disabled for this type of occupation. Given the opportunity to move around a little bit, he probably would have been able to work a few hours, but in this kind of very light physical activities that does note (Sic.) require strain with a lumbar support on.

Dr. Schwartz further indicated that although Mr. Silva could not return to the type of work he was doing he was capable of employment even with his physical limitations. Indeed, the doctor listed several types of jobs he felt the petitioner could do. Once again, I quote from his testimony. “Even I reiterated this man could not return to either his work as a tire recapper or whatever he was doing or construction. The best I could see for him was being a salesperson, but not carry anything heavy. Convenient store salesperson, but he was also handicapped as far as I was concerned because of his lack of passable English.”

Dr. Crain was also of the opinion that it was not his physical or mental limitations that made him unemployable, but his limited education and his inability to speak English. I disagree. In my over twenty-one years experience as a judge I have heard countless number of cases where claimants have worked without speaking English and with less education and intelligence than Mr. Silva has. I quote from Dr. Crain’s testimony.

Q            Did you have an opinion as that time as to disability, if any, and whether it was causally related?

A            Yes, I believe that a disability neurologically 20 percent of total and neuropsychiatrically 50 percent of total, which relate to this accident and then take into account these disability (Sic.) plus orthopedic combined and the fact that he’s Portuguese speaking with limited education I considered him unemployable.

Q            Did the fact that he was basically Portuguese speaking enter into you opinion in addition to that?

A            It is an opinion in the sense that this man’s flexibility to return to work other than physical labor are extremely limited because he doesn’t speak much English a all and he has very limited education and his – in the hypothetical talks about this, also all physical work and that he can’t do so I consider him totally disabled.

The objective evidence of petitioner’s orthopedic and neurological disability that I have relied on is contained in the medical reports and testimony of the evaluating doctors, the hospital records, and the medical reports of the treating doctors.

Orthopedically, Drs. Schwartz and Gross testified that as a result of this admitted accident the petitioner did suffer from a sprain and herniated disc at the L5 S1 level. Neurologically, both Drs. Crain and Dressner testified that the industrial accident resulted in a permanent lumbar radiculopathy. All four evaluators’ opinions were based on the MRI and EMG tests performed by the authorized treating doctors and their own examinations.

Specifically, the MRI taken on April 2, 1991 and marked P 10 in Evidence reveals Mr. Silva’s orthopedic pathology. I quote from that report. “There is a central and left sided HNP present at L5-S1 which causes left lateral recess stenosis and narrowing of the neural foramen. However, there is no compression of the thecal sac.”

Dr. Schwartz also found significant restriction of motion of the petitioner’s lumbar spine. While it is true that our Supreme Court in Colon v. Coordinated Transport Inc., 141 N.J. 1 (1995), indicated that ordinarily a diminution in range of motion alone will not satisfy the 'demonstrable objective medical evidence standard' required to support an award of partial permanent disability, because most range of motion test results are subjective responses, I have considered the restriction to petitioner’s lumbar spine because Dr. Schwartz found spasm of the lumbar spine and an MRI of the petitioner’s spine dated April 3, 1991 revealed lumbar pathology that I have alluded to. Furthermore, I have considered the restriction of motion of petitioner’s lumbar spine because I believe it helps explain why he is not capable of doing the type of work he has done his entire life: heavy industrial type labor. However, for all of the reasons I have stated I agree with Dr. Gross’s opinion that Mr. Silva “is capable of some light work, still.”

The evaluating neurologists in this matter also relied on objective medical evidence when they gave their estimates of petitioner’s neurological disability. A report dated September 29, 1992 by Doctor Jacobs, a doctor authorized by the respondent, marked P 8 in evidence supports their common opinion. I quote. “IMPRESSION: This study is consistent with a lumbo-sacral radiculopathy on the left.” Of course, both neurologists did not rely solely on the EMG in arriving at their opinion that the petitioner does have a radiculopathy caused by his industrial accident. Indeed, most doctors that have appeared before me have indicated that there are occasions that a so-called objective medical test would have a positive finding, but their physical examination was entirely normal. Assuming those facts, more often than not the doctor would rely on his or her physical examination in arriving at a diagnosis and an estimate of disability.

In this case, however, the EMG test finding of left-sided radiculopathy was confirmed by Dr. Crain’s physical examination. I quote.

Q            Do you have reasons for his disability Doctor?

A            Yes, I do.

Q            Neurologic area?

A            This man has radiculopathy that’s down his left lower extremity, which corresponds to the left-sided disc herniation at the L5-S1 level of the spine as shown by the MRI. He also – I am going to add has undergone EMG studies, which I reviewed with Dr. Jacobs, which shows evidence of radiculopathy at that level and he has reduced sensation in the left lower limb as well, that’s neurologic.

Finally, Dr. Crain indicated that petitioner’s nonanatomical neurological physical symptoms were indicative of an emotional overlay, while Dr. Dressner testified that these findings support his opinion that the petitioner was exaggerating his complaints and was a malingerer. For the reasons that I will go into a length I accept Dr. Crain’s well-reasoned analysis and reject Dr. Dressner’s opinion that Mr. Silva exaggerated his complaints and was a malingerer.

As I have said, our Appellate Courts have instructed us not to use ranges of disability when we estimate disability, because a similar injury to two individuals often times results in vastly different disabilities. Clearly, the Appellate Court’s rationale can be applied in this case to help resolve the issue of whether the petitioner is a malingerer.

While Dr. Dressner’s opinion that people who have nonanatomical neurological symptoms are exaggerating their complaints may be true in some cases, these findings may indicate, as Dr. Crain’s states, a genuine psychiatric disability. Simply put, it depends on the facts of the case. To be sure, as Dr. Dressner states, there may be cases where nonanatomical neurological physical symptoms would help prove that a petitioner is a malingerer, but as respondent’s videotapes reveal this is not such a case.

Not only did the respondent’s videotapes of the petitioner corroborate many, if not all, of the petitioner’s orthopedic, neurological and psychiatric complaints, but they support Dr. Crain’s opinion that Mr. Silva was not a malingerer, and was not exaggerating his complaints. They also tend to prove the facts upon which Dr. Dressner relied on to label Mr. Silva a malingerer were inaccurate. I quote from investigator, Mr. Ronald Henry’s report marked R 7 in evidence –

1.                      (March 14, 2001 surveillance) “He resides in the first-floor apartment, and surveillance indicates that he apparently does not do much with his days.”
2.                       “The claimant spent most of the morning peering out the window and talking to acquaintances passing by.”
3.                      It was just before noon that the claimant was seen leaving the house. He wore a blue flannel jacket. Upon locking the front door, he was observed walking with a wobbly walk down the front steps. He began walking down the street with a decided limp, but he carried no walking devices. He walked with an obvious impediment to the corner of Magazine and Komorn Street, where he entered a restaurant called Torrie o Café.
4.                      It was clear upon his exiting the restaurant that Jose Silva had difficulty negotiating steps. He returned directly to his house from the restaurant.
5.                      A second surveillance was conducted eight months later, November 26, 2001… Just after 11:30 a.m., a sanitation truck was collecting garbage on the street. The claimant was seen leaving the house, stepping down the concrete steps (with an obvious limp), and opening a door to an alleyway between his building and another. He was seen pulling trash cans from the alleyway to the street. Parked vehicles on the street blocked this investigator’s full view, but it appeared that the claimant was dragging the cans as opposed to lifting and carrying them. By 11:50 a.m., he completed the task and went back into the house, negotiating the steps with difficulty.
6.                      At 11:58 Jose Silva left the house again. The same difficulty was noted with his walking down the steps. He walked down the street to the cornrow of Komorn Street, where he entered Terraco Brasil Churrascaria, the same restaurant he entered eight months earlier, but now under a different name. Again, he displayed much difficulty climbing the steps into the restaurant. He remained inside the restaurant for one hour, exiting at 12:52 p.m. He walked directly back home, again with the same limp.
7.                      Based upon the two surveillances conducted, it appears that Jose Silva conducts little activity through the day. He remained at home on the two days he was under surveillance, (I add, ten years after his industrial accident.) with the exception of lunch time, when he eats a the restaurant one block from his home. He does not use any walking devices, but he does appear to have a definitive walking impediment.

As our Appellate Courts have repeatedly stated, an opinion is only as good as the facts upon which it is based. Clearly in this matter, Dr. Dressner’s opinion is based on facts that are not supported by the evidence produced at trial.

Furthermore, we must never forget that as a youngster the petitioner had a significant injury to his leg.[3] Notwithstanding this severe injury all though out his life Mr. Silva rarely, is ever, complained. Not only did Mr. Silva not complain about his disability, he always worked and supported his family at heavy, laborious jobs. This is not a person who exaggerates his complaints, or is a malingerer. To the contrary, it tends to prove, as stated by Dr. Crain, “this man is not a malingerer.”

Thus, because Dr. Crain’s opinion is not based on general, universal statements, as is Dr. Dressner’s, but rather, upon the facts of this case, including but not limited to Mr. Silva’s orthopedic and neurological disabilities that resulted from his work-related accident, his work experience, and his reactions to prior significant physical disabilities, I accept Dr. Crain’s well-reasoned opinion that Mr. Silva’s psychiatric disability is a direct result of his industrial accident. I quote from Dr. Crain’s testimony.

Q            Doctor, do you have an opinion with respect to malingering versus psychiatric overlay?

A            My opinion is that this man is not a malingerer.

Q         And how did you reach that conclusion?

A            Well, first of all, the man as pathology, it’s not someone faking something that does not exist because I know there is an MRI which shows left sided disc herniation L5-S1 level, but EMG studies which documents radiculopathy I that level down the left lower limb left sided. So there is objective proof of pathology in this person. Secondly, this – these tests are the basis for complaints of pain are consistent. Low back pain going to left lower limb is consistent with these tests also. So already that much I can say is not malingering.

Now, the rest of it is an extension beyond those symptoms, which I consider to be the overlay. In other words, adding onto the physical and the overlay is emotional. This man in front of me is emotional and I think the way he interprets his functioning is on his emotions including the use of his left lower limp, his grimaces and groaning limited to pain tolerance is consistent with the hypothetical which I read how he spends time at home. He told me the same thing, he just sits around, looks out the window, looks at people who appear to be normal, which makes him even more upset, this is a depressed man basically.

From the above, it becomes clear that both evaluators are using their professional expertise to arrive at their respective conclusions. Of course, the use of a psychiatrist’s knowledge and experience is permitted under Saunderlin v. E.I. DuPont Co., 102 N.J. 612 (1986) to satisfy the statutory definition requirement that there be “demonstrable objective medical evidence” in psychiatric disability claims.

For all of the above-mentioned reasons, I find that petitioner has sustained his burden of proof by objective medical evidence to prove a psychiatric disability.

I again return to the nature and extent of Mr. Silva’s permanent partial disability. Although I did not have the opportunity to observe Mr. Silva, I have read the transcripts of his testimony, and I did take the testimony of several of the evaluating doctors. I also had the benefit of watching the videotapes of petitioner and reviewing the medical evidence submitted. Utilizing those factors, for all of the reasons already given I find that the complaints given by Mr. Silva and the fact witnesses he called to corroborate those complaints are consistent with the objective medical evidence of petitioner’s orthopedic, neurologically and psychiatric disabilities. Needless to say, those complaints show a material and significant lessening of petitioner’s working ability and his ordinary life pursuits.

Based on the objective medical evidence and petitioner’s credible complaints I fix petitioner’s disability at sixty percent (60%) permanent partial disability for residuals of a HNP at the L5 S1 level with left sided radiculopathy and depression. I break it down thirty percent (30%) orthopedic for residuals of a lumbar sprain and HNP at L5 S1, fifteen percent (15%) for left sided radiculopathy and fifteen percent (15%) for depression.

Petitioner will be entitled to $68,982.00, which is three hundred-sixty weeks of benefits at $200.20 per week for an amount of  $72,072.00, less the $3090.00 voluntary offer paid. Finally, having found that the petitioner is not totally disabled the Verified Petition is dismissed. I also deny petitioner’s request that I apply the Odd Lot Doctrine because of his failure to meet the seventy-five percent (75%) disability threshold. N.J.S.A. 34:15-36.  “Factors other than physical and neuropsychiatric impairment may be considered in the determination of permanent total disability, where such physical and neuropsychiatric impairments constitute at least 75% or higher of total disability.”

I award the following fees:

$13,795.00 Counsel fee – Payable $8,795.00 by respondent, $5,000.00 by petitioner.

For Dr. Crain’s examination, medical report and testimony $450.00  – Payable $225.00 by respondent, $225.00 by petitioner.

For Dr. Schwartz’s examinations, medical reports and testimony $450.00 – Payable $225.00 by respondent, $225.00 by petitioner.

For Dr. Kiell’s medical report  $200.00 – Payable $100.00 by respondent, $100.00 by petitioner.

For Interpreter, Maria Silva’s multiple appearances $500.00 – Payable $250.00 by petitioner, $250.00 by respondent.

Respondent shall pay a Stenographic fee of $1,100.00 for multiple hearing dates, payable to William C. O’Brien Associates.

Petitioner’s attorney is to submit an Order, which conforms to this Judgment under the Five Day Rule.