APPEARANCES:  

    For the Petitioner: ROBERT A. OLKOWITZ, Esquire

    For the Respondent: WORTHINGTON & WORTHINGTON, Esquires
                                        by: DAVID L. WORTHINGTON, Esquire

LAWRENCE G. MONCHER, J.W.C.:

                Mr. Smith’s career for the past 25 years has been as a truck driver and laborer in the waste industry. His formal education ended in the fifth grade, he is 52 years of age.  He sustained 2 compensable injuries to his shoulders and can no longer perform this type of work. Initially, the respondent provided treatment and temporary disability for both shoulders. It latter discontinued treatment authorization and temporary disability for petitioner’s right shoulder. Respondent’s defense to this motion for medical and temporary benefits was the assertion that petitioner had reached the maximum benefit of medical intervention and the right shoulder injury was due to a prior condition rather than the last compensable accident. For the reasons set forth in this decision, I have decided that Mr. Smith shall be paid temporary total disability and be provided with reasonable and necessary medical treatment by Evan Flatow, M.D.

                Mr. Smith testified and the medical witness testified via telephone conference call. Petitioner presented the testimony of Christopher Johnson, M.D. of Tinton Falls, who is a board certified orthopedic surgeon and the authorized treating physician until the fall of 2001.  The respondent presented the testimony of Joseph Leddy, M.D., of New Brunswick, a board certified orthopedic surgeon. The documentary evidence included the office records of Dr. Johnson, two reports prepared by Evan Flatow, M.D., two reports prepared by Dr. Leddy’s, 2 reports of Clint Ferentz, M.D. concerning preexisting pathology and his prior treatment to Mr. Smith’s shoulders, a report prepared by Jeffrey Bechler, M.D., a board certified orthopedic surgeon affiliated with Dr. Leddy’s group, University Orthopedics, and a report of the Tinton Falls Police Department concerning the July 12, 2001 accident where petitioner injured his right shoulder. Respondent was granted  the opportunity to present further evidence, but did not do so.  

                The burden of proof here, as in all Workers Compensation contested cases, is on the petitioner who must produce the evidence and persuade the trier of fact by a preponderance of the credible evidence of the existence of each element of the claim.  Perez v. Pantasote, Inc., 95 N.J. 105, 118 (1984).   The same evidential standard applies to the elements of the case on which respondent has  the burden of proof.   Fiore v. Consolidated Freightways, 140 N.J. 452, 479 (1995).For petitioner to prevail he must establish a link between ... [the] disease and occupational conditions.  Petitioner has the burden to prove this causal relation by a preponderance of the evidence.  All that is required is that the claimed conclusion from the offered facts must be a probable or a more probable hypothesis. . .  The test is probability rather than a certainty. . . . However, the evidence must be such as to lead a reasonably cautious mind to the given conclusion.  ‘The standard is one of reasonable probability; i.e., whether or not the evidence is of sufficient quality to generate a belief that the tendered hypothesis is in all likelihood the truth.  It need not have the attribute  of certainty, but it must be well founded in reason and logic, mere guess or conjecture is not a substitute for legal proof.’    [Citations omitted.]   Laffey v. City of Jersey City, 289 N.J. Super. 292, 303(App. Div. 1996).

                Once the worker has met his burden of proof, the burden of proof on alternative factual propositions and legal conclusions which will exonerate or mitigate the employers liability shifts to the employer.  Cf.  Gulick v. H.M. Enoch, Inc., 280 N.J. Super.  96, 109 (App. Div. 1995) and N.J.S.A. 34:15-12(d). Fiore v. Consolidated Freightways, supra., 140 N.J. @ 478-479:  Lewicki v. New Jersey Art Foundry, 88 N.J. 75 (1981).  

                The pertinent provision of the Workers' Compensation statute which speaks to the provision of medical treatment requires that an

employer shall furnish to the injured worker such medical, surgical, and other treatment, and hospital service as shall be necessary to cure and relieve the worker of the effects of the injury and to restore the functions of the injured  member or organ where such restoration is possible...  [The] Division of Workers' Compensation, after ... giving the employer an opportunity to be heard, shall determine ... [whether]  such ...  treatment is necessary. [Emphasis added.]  N.J.S.A. 34: 15-15.

The employer’s statutory duty to provide adequate and proper medical treatment is absolute.  Benson v. Coca Cola Co., 120 N.J. Super. 60, 66 (App. Div. 1972).   Under the New Jersey Workers’ Compensation law the respondent ordinarily has the power to control treatment and select the medical providers.  Benson, supra.   This is essentially a managed care system, except the patient is not left to dispute resolution by a system controlled by the insurer.  The Division of Worker’s Compensation hears disputes to determine if the insurer or employer is wrong in its treatment decision or is acting arbitrary.  N.J.S.A. 34:15-15.                  

                Compensation for temporary disability must be paid by the employer when an employee is unable to work and looses wages because of incapacity due to a compensable injury until such time as the employee is able to regularly resume work or has been as restored to the maximum physical function permitted by the permanent character of the injury.  N.J.S.A. 34:15-38;  Harbatuk v. S & S Furniture Systems Insulation,  211 N.J. Super. 614 at 623-628 (App. Div.);  Monaco v. Albert Mound Inc.,  17 N.J. Super. 425 (App. Div. 1952).    If petitioner’s condition is such as would permit his return to work but at light duty, the respondent must either furnish the light duty or pay temporary total disability until such time as the condition is fixed and not subject to further improvement by treatment or convalescence.  Harbatuk.  It is no defense to claim as this respondent apparently does that it has no light duty.  Harbatuk.  Here, petitioner has not worked anywhere and can not perform at his former job. 

               Mr. Smith’s medical problems with his shoulders had their beginnings before these accidents. He had been diagnosed by Dr. Clint Ferentz with bilateral full thickness rotator cuff tears with positive impingement signs. In July 1997, Dr. Ferentz administered a cortisone injection to the left shoulder and in August 1999 to the right shoulder. Despite this, Mr. Smith continued to work full time as a laborer, truck driver for respondent in the waste business.  A good deal of his work as a truck driver involved heavy lifting, 70 to 80 pounds, and overhead work opening doors, affixing tarps and similar activities. He would use his arms and shoulders in the process of loading and then adjusting dumpsters and containers on to and off tractors which he would then transport to transfer stations or landfills. When the activities would be repeated.  He described his duties in detail, I accept his testimony as credible and note that the respondent presented no evidence to contradict his testimony.  Nor did the respondent present any evidence to suggest that Mr. Smith was absent from work because of the prior pathology. Nor did it show that he was substantially unable to perform his clearly arduous work duties. He did have prior medical pathology, he did have prior impairment. Still he was capable of performing his duties and living a fairly active personal life until these two compensable accidents ended his ability to work at his job.  I note his excellent work ethic which had him working even while injured. Unless the proposed surgery is successful, it is indeed possible that this 52 year old man who has worked in the waste collection industry for 25 years could be permanently totally disabled.    

                The first accident occurred on October 9, 2000 when he was in the process of closing a dumpster, literally banging on the door with a steel bar when the stress of the activity caused a torn left rotator cuff.  The employer provided for medical treatment by Dr. Christopher Johnson  including a left shoulder decompression on December 6, 2000 with follow up physical therapy.  While at the physical  therapy facility, there was an incident which caused a temporary flare up of right shoulder symptoms. Dr. Johnson noted the likelihood of this being an aggravating factor. He noted positive findings on clinical examination and was suggesting that further studies might be considered for the right shoulder. Nothing was planned at that time beyond the benefit of anti-inflammatory medication administered for the left shoulder. An MRI of the right shoulder taken in March 21, 2001 revealed degenerative changes and  inflammatory changes of the acromioclavical joint with mild degenerative changes of the humeral head, a full thickness tear of the rotator cuff and fluid or a cyst in the supraspinatus notch.  Mr. Smith’s pain lessened, it is likely that this was most likely a temporary flare up of underlying pathology. Petitioner, with some pain and limitation of use of his left shoulder eventually returned to work at full duties.

                Mr. Smith was working at full duty when on July 21, 2001, he was at the Monmouth County Landfill to unload a container of garbage He was stepping out of his truck when he fell backwards, breaking his fall with both hands.  He struck his back and right shoulder on the ground.  He was in a great deal of pain.   A police report corroborates his history of the accident and injury to both shoulders. He was transported to Jersey Shore Medical Center via ambulance..

                Respondent did provide treatment with Dr. Johnson and temporary disability on an intermittent basis until June 28, 2002.  For reasons never made clear on the record temporary total disability may not have been paid from July 12, 2001 to August 31, 2001.[1]  On August 31, 2001, Dr. Johnson operated on petitioner’s right shoulder at the Shrewsbury outpatient Surgery Center.  The diagnosis was right chronic, large rotator cuff tear and right AC dislocation. The procedure was an

l. Open repair of massive rotator cuff tear (23420) with arthroscopic decompression and acromioplasty. 2. Open treatment of AC joint dislocation of distal clavical.

Post surgery, his recovery to the right shoulder was slow and he experienced increasing recurrent pain with prescribed exercises. Xrays and an MRI which together with clinical examination showed recurrent large rotator cuff tear inflamation with impingement, a tear of the suptasinatus tendon and a loss of strength. This was unsuccessfully treated with Medrol Dos-Packs   He was unable to perform his normal duties.  Petitioner’s right upper extremity is virtually useless. I saw him on the witness stand and observed the way his right arm seemed to hang. There. It did not move when he approached the stand or got off it. Dr. Johnson prescribed a revision of the righ t rotator cuff repair. The respondent refused to authorize further treatment by Dr. Johnson. It stated it lost confidence in the doctor. It has not offered any further treatment or authorized any other physician to take over treatment.

                Respondent has defended this motion by claiming Mr. Smith’s preexisting pathology with out reference to the compensable accidents was the actual cause of the need for the surgery. It contended here that the surgical revision of the right rotator cuff full thickness tear recommended by its previously authorized surgeon, Christopher Johnson, M.D. was not medically appropriate and that right shoulder pathology preexisted and was not caused by an injury arising out of and in the course of his employment. It offered at least 3 defenses. It asserted there was there was no injury to the right rotator cuff in July 2001 accident. The fact record and the course of events disallow this defense. It happened, the police report offers corroboration, the prompt complaints and trip to the hospital confirm the occurrence. The medical appropriateness is established by both the treating physician, Dr. Johnson and the proposed surgeon, Dr. Flatow. Dr. Flatow, in the words of respondent’s witness, Dr. Joseph Leddy, is “a world authority on shoulder problems.”  Dr. Flatow has examined petitioner, reviewed MRI’s and has requested authorization to perform a right shoulder revision rotator cuff repair on an inpatient basis with necessary post surgery brace, rehabilitation and therapy. Dr. Johnson spoke to the need for this surgery to give this man to once again become productive. At this point the best Mr. Smith can do is carefully prescribed light duty, which the respondent has not provided.  The third factual defense was that the preexisting right shoulder cuff pathology, rather than the accident was the cause of the need for the surgery.

                Mr. Smith did have prior pathology to his right shoulder.  But still, he was able to perform the physically demanding tasks required of a laborer in the garbage industry including performing overhead work with his dominant right hand until the July 12, 2001 accident. I found Dr. Johnson’s explanation of causal relation convincing. He saw Mr. Smith within days of the accident, he had seen him before the July 12, 2001 accident. He did see the relevant MRI’s, performed surgery on this man’s right shoulder and has examined him on numerous occasions for more than a year. He responded to a hypothetical question with a  reasoned explanation which relied on the pertinent facts.   

                Our courts have consistently held that a treating physician  in a Workers' Compensation case is in a better position to express an opinion as to cause and effect than one making an examination in order to give expert medical testimony. Bober v. Independent Plating Corp., 28 N.J. 160, 167 (1958); DeVito v. Mullen's Roofing Co., 72 N.J. Super. 233, 236 (App. Div. 1962); Celeste v. Progressive Silk Finishing Co., 72 N.J. Super. 125, 143 (App. Div. 1972).    Still the same authorities require the factual basis of the treating physician be presented, explained, and have its roots in the actual history of the events.  The treating physician’s conclusions must be shown to be justified by the facts of the case.   In that regard the conclusions of Dr. Johnson of the causal nexus of the right shoulder injury to the accident and on the issue of medical treatment is consistent with the facts.   

                Even Dr, Leddy who testified to the presence of the prior pathology and that what was shown on the imaging reports was not the consequence of an accident, offered the opinion that the present need for surgery on petitioner’s right shoulder can be a consequence of the described compensable trauma aggravating the underlying preexisting pathology or the repeated wear and tear peculiar to this man’s occupational duties over the years. He did work for this respondent for several years and has been in the waste industry for 25 years.  Following Dr. Leddy’s testimony, petitioner filed an Occupational Disease claim petition for the same injuries as those involved in this case.

                The Workers’ Compensation Act “is remedial social legislation designed to place the costs of accidental injuries which are work-connected upon employers who may readily provide for them as operating expenses.”  Secor v. Penn Service Garage, 19 N.J. 315, 319 (1955).  Judges are directed to “liberally appl[y] [its provisions] . . . to protect employees in the event of work-related injuries . . .”  Ibid.;   Prettyman v. State, 298 N.J. Super. 580, 591  (App. Div. 1997)  The Supreme Court has reiterated recently that the Workers' Compensation Act is to be liberally construed in order that its beneficent purposes may be accomplished.  Fiore v. Consolidated Freightways, supra., 140 N.J. at 465.  On the other hand, this directive to construe the act liberally does not extend to ignoring the burden of proof.  It does not release petitioner from his burden to persuade the trier of fact that his factual contentions are valid. 

                The legal question is the degree and nature of relationship required between the compensable accident and the pathology in petitioner’s right shoulder.  Interestingly the compensation act does not speak to the degree of relationship between the trauma and the impairment except for occupational disease claims, N.J.S.A.  34:15-31(a) and cardiovascular injury, N.J.S.A.  34:15-7.2, and permanent partial total disability, N.J.S.A.  34:15-36.  This statutory language requirement of cause to a material degree is not present or mentioned in the statutory provision for medical treatment, N.J.S.A.  34:15-15, or temporary disability. N.J.S.A.  34:15-12 (b) & N.J.S.A.  34:15-38.  This language has been described as substantially more than “de minimis.” Put simply the required degree of relationship to the employment accident is a “but for test.”   Prettyman v. State, 298 N.J. Super. 580, 590 (App. Div. 1997). Verge v. County of Morris, 272 N.J. Super. 118, 126 (App. Div. 1994).

                The current legislative plan allows for credit against permanent disability for the degree of disability due to other causes.  See N.J.S.A.  34:15-12(d) & 34:15-95.  Obviously such apportionment would be impractical if the compensable accident were only one of several contributing causes to the need for medical care or temporary disability.   Here there are two contributing causes to the condition of petitioner’s right shoulder. One is the prior right rotator cuff tear. The second is the trauma occurring on July 12, 2001. I find quite convincing that despite the prior injury, Mr. Smith was able to perform his physically demanding job for at least 2 years until he fell causing further damage.

                Respondent argues that at some undetermined future time in the absence of the accidental injury, petitioner might have had the same impairment that he now has. Such conjecture is too problematic and speculative.  Mr. Smith until this injury was quite capable of performing his physically demanding job. He did have some complaints which did prompt him to seek out medical treatment. He was a strong man. He was a weight lifter and able to engage in that and to work without limitation until these accidents. Respondent produced no witnesses to contradict his description of his work or work performance.  Respondent has failed to present persuasive proof that petitioner’s present total disability and need for surgery to his right shoulder is “one which was caused by a purely personal condition having no work connection.” See  Prettyman v. State, supra.; Verge v. County of Morris, supra..     This is not a situation such as what occurred in  Dietrich v. Toms River Bd. of Education, 294 N.J. Super.  256 (App. Div. 1996) where an underlying idiopathic condition was not made worse by a compensable event.  In Dietrich, the court observed there was a lack of

 “suitable medical evidence that the job stress substantially contributed to the condition or disease that developed, and that without the exposure, it would not have developed to the extent that it caused the disability manifested.”       

                Here, such evidence is present.   Based on the evidence of Dr. Johnson I find that but for the compensable injuries, the need for medical care i.e. the surgery might not have occurred or if it did, it might not have reached the point where it is so disabling that he could not use his right arm until some indefinite time well into the future. Prognosticating on the future course in the absence of these accidents is problematical and speculative. There was no convincing evidence presented here that Mr. Smith’s right shoulder would have deteriorated without the impact of the trauma. The fact that an employee in vulnerable to injury does not excuse an employer from its obligation to provide for treatment and a wage replacement. Prettyman v. State, 298 N.J. Super., supra. at 591. A basic tenet of the Workers’  Compensation law is that an employer takes the employee with all that persons as found with all infirmities.   In Belth v. Anthony Ferrante & Son, Inc., 47 N.J. 38, 45-46 (1966),  the Court held that

When an employee is admitted to an employers work force, he makes no warranty of physical or mental fitness, or freedom from latent or patent disability or disease.  The employer takes him as he is, handicapped by any physical impairments, whether or not observable, as well as any underlying condition or unusual susceptibility or idiosyncrasy or quiescent disease, which when subjected to accidental work-connected injury may result in greater disability than would follow if such impaired physical condition or weakness were not present.

         Of course, this has been modified by the 1979 Workers’ Compensation Reform Act which allows for credit for previous loss of function, N.J.S.A. 34:15-12(d).  This legislative change was devoid of any indication that the legislature intended to relieve an employer of liability when a compensable injury was the exacerbating or accelerating force on a prior condition.  The content of the 1979 Workers’ Compensation Reform Act shows that the clear legislative intent was to modify the Belth doctrine only to the extent it now gives a credit for a prior loss of function when there is a worsening of the underlying condition by reason of the compensable injury.  See Fiore v. Consolidated Freightways, supra.    N.J.S.A. 34:15-12(d) speaks to prior loss of function, not to mere susceptibility or vulnerability to injury.    DiCostanzo v. Matthews Construction Co., 110 N.J. Super. 383, 386-389 (App. Div. 1970) aff'd by equally divided court 58 N.J. 159 (1971).

[T]he preexisting disease or infirmity of the employee does not disqualify a claim . . .   If the employment aggravated, accelerated, or combined with the disease or infirmity to produce death or disability for which compensation is sought. . . .  Larson’s Workmen’s Compensation Desk Edition, sec. 12.4 (1993).