AND WORKFORCE DEVELOPMENT

DIVISION OF WORKERS’ COMPENSATION

C.P. No. 2003-41089

JOSEPHINE SOWINSKI,

Petitioner

v.

BERGEN COUNTY SPECIAL SERVICES

Respondent

BEFORE: Jill M. Fader

Judge of Compensation

DECISION

This is the Court’s decision in the matter of Josephine Sowinski v. Bergen County Special Services, Claim Petition 2003-41089.  Petitioner, a then 50-year-old custodial bus driver, alleged that on July 16, 2003 she tripped and fell going up the stairs while carrying a computer into a trailer classroom injuring her neck, shoulders and back.  Respondent admitted the accident.  Both parties stipulated to the following facts:  the Petitioner was in the employ of the Respondent on the date alleged; her weekly wage was $705.76 per week which would give rise to a temporary disability rate of $494.03 per week and a permanent disability rate commencing at $170 per week.  Although the Pre-Trial Memorandum indicated there was an issue as to temporary disability, neither party addressed the issue in their brief submitted to the court, therefore, the issue is waived and temporary disability shall be deemed adequate as paid.  All authorized medical bills have been paid.  There is an issue, however, as to outstanding medical bills for unauthorized treatment, and whether Petitioner’s unauthorized treatment commencing in October of 2003 and continuing through the present is related to the compensable accident and necessary to cure or relieve her of her symptoms.  Respondent contests the causal relationship of petitioner’s injuries to the compensable accident, and, their responsibility under the Statute for Petitioner’s unauthorized medical treatment.  Finally, while all but one of the evaluating physicians found Petitioner to have a permanent disability, the experts do disagree as to the percentage of Petitioner’s disability.  Therefore, the final issue before the Court is the nature and extent of Petitioner’s permanent disability as evidenced by the Pre-Trial Memorandum dated April 27, 2007 which was marked into evidence as C-1.

Regarding this particular case, I have listened to the testimony of the Petitioner and I have reviewed the medical reports and records submitted into evidence by both parties.  There is no doubt that Petitioner has a permanent orthopedic disability.  All the doctors agree on that.  It is, however, the issue of the extent of the disability and the relationship between it and the accident which arose out of and in the course of Petitioner’s employment which is the main focus of the dispute and controversy between the parties.  It is on that issue, that the credibility of the Petitioner has been most affected and ultimately found to be lacking. 

I find petitioner’s testimony to be less than credible for a number of reasons. To begin, Petitioner testified that she injured herself while taking a computer up some stairs into a mobile classroom.  “As I put my foot on it (the step), I just felt something push me and I ended up hitting into the trailer itself.  And as I was being pushed with that force, I heard a crunk (sic) in my back and I went down on my knees.” (JS T. p.7 lines 11-15)  However, the history contained in the medical records for treatment immediately following the accident make no mention of a fall.  Petitioner first sees Dr. Hailey, a chiropractor that she went to on her own, who gives a history of, “Petitioner pulled left side, low back pain after lifting computer boxes.” (See P-5 in evidence.)  The Center for Occupational Medicine records, where she first receives authorized treatment 2 days after the accident, makes no mention of a fall either.  The history noted by Petitioner on the intake sheet states, “Back injury moving computers up stairs.”  (See P-1 in evidence.)  Dr. Tiger, Petitioner’s evaluating expert gives a history of injury while lifting boxes of computer equipment. (AT T. p. 5 lines 1-8).  Again, the history given to Dr. Gallick on October 24, 2003 only mentions that she (Petitioner) was carrying a box with a computer in it and she started having some neck pain, back pain, some pain into both shoulders, some radiation of pain down both lower extremities. (See P-6 in evidence.)  The first time the Court can find any reference to a fall is in the records of Dr. Yu on December 1, 2003 (see P-7 in evidence.)

Furthermore, the Court finds that Petitioner was less than candid regarding her prior back problems.  For example, when questioned by the Court about a prior workers’ compensation case containing reports of examining physicians that reference prior back injuries (CP 1994-6992), Petitioner testified that she “did not recall” having a problem with her back. (JS T. p. 59 lines 2-25, p. 60 lines 1-15)  When asked specifically by the Court whether she had ever treated with Dr. Hailey, the unauthorized chiropractor she went to immediately following the accident, Petitioner testified, “No.” (See JS T. p. 60 lines 16-24)  According to Petitioner’s testimony, the only reason she knew of Dr. Hailey was that he was a chiropractor in her town whose place of business had burned down the year before and because her son played sports.  Yet, Petitioner tells Dr. Effron at the time of his examination on March 29, 2004 that Dr. Hailey had treated her ten years earlier (see CE T. p.9 lines 10-25, p. 10 lines1-10).

Finally, the Court’s own observations of the Petitioner do not comport with her testimony regarding the nature and extent of her disability.  When asked by the Court to rate her pain on a scale of 1-10, with 10 being the most severe pain, Petitioner testified that she was currently experiencing pain of 8.5 and that this was a normal day for her (JS T. p. 62 lines 16-23).  She also testified that she spends a typical day lying in bed or on the couch because sitting for more than 10 or 15 minutes is too uncomfortable for her. (JS T. p. 64 lines 12-24)  Interestingly, however, the Court noted that Petitioner sat comfortably throughout her testimony, never once getting up to move around, and did not look to be in any particular discomfort.  When asked by the Court what pain medication she had taken that day Petitioner testified that she had not taken any pain medication before coming to Court. (JS p. 66 lines 4-14).  The Court also noticed that Petitioner looked rather suntanned.  Apparently, if Petitioner is outside (Court’s emphasis), she is able to sit for longer periods of time, sleeping, daydreaming, reading books and talking with people. (JS T. p 65 lines 3-10)   Thus, it is with the credibility of the Petitioner in doubt that the Court examines the proof before it.

With regard to the issue of Petitioner’s unauthorized medical treatment and whether it was necessary and related to the compensable injury, the undisputed facts are as follows: Petitioner received authorized treatment with the Center for Occupational Medicine and then with Dr. Gross of Active Orthopedics and Sports Medicine.  Petitioner had an MRI of her cervical and lumbar spine performed on August 5, 2003 with the impression of “Mild degenerative changes.  Otherwise, unremarkable studies.” The MRI of the lumbar spine did note a left foraminal disc bulge at L3-4 and degenerative disc disease, characterized by desiccation of disc material at L4-5 (see P-4 in evidence.)  Dr. Gross, the authorized treating physician, deemed Petitioner to be at maximum medical improvement on or around September 29, 2003.  She was returned to work as of October 20, 2003 (see P-1, P-2 and P-3 in evidence.)  While receiving authorized treatment, Petitioner also treated unauthorized with Dr. Hailey, a chiropractor from July 16, 2003 until August 13, 2003 (see P-5 in evidence.)  After Petitioner was found MMI by the authorized treating physician, she requested that she be sent for a second opinion which was denied by her employer (see P-3 in evidence.)  Petitioner subsequently went to a series of unauthorized physicians and has been treating unauthorized since October of 2003.  Petitioner applied for Social Security Disability, which was granted sometime in 2004, and is currently Medicare entitled.  The Court does not have the benefit of knowing on what basis the Petitioner was rendered disabled by Social Security as she never provided the Court with a copy of her application.  It should be noted, however, that the Petitioner has admitted to a lengthy history of coronary artery disease and cervical cancer.  Petitioner was also recently awarded an Ordinary Disability Pension but has not been provided with the details of the conditions which constitute the disability.

            The duty of an employer to provide medical treatment as shall be necessary to cure and relieve the worker of the effects of an injury is absolute (see N.J.S.A. 34:15-15.)  Our Supreme Court has instructed that in determining what is reasonable and necessary, the touchstone is not the injured worker’s desires or what she thinks is the most beneficial, but rather what treatment is shown by sufficient competent evidence to be reasonable and necessary to cure her.  See Squeo v. Comfort Control Corp. 99 N.J. 588 at 606 (1985).  The salient question herein is whether the unauthorized treatment that Petitioner received after she was found to be MMI was in fact “related” to the compensable injury and “necessary” medical treatment.  The Statute itself does not define “necessary” but the Appellate Division held as follows in Benson v. Coca Cola, 120 N.J.Super 60 (App.Div. 1972):  “…We are satisfied as well that the nature of the treatment required by the statute and its reasonable necessity (or the adequacy of treatment given or offered, if any) may be measured on a post hoc appraisal of the medical facts.”  Id. at 66.  In other words, the result in such cases will depend on whether the treatment was in fact effective.

            The only proof presented by Petitioner on this issue was the testimony of Petitioner’s experts, Dr. Arthur Tiger and Dr. Angela Adams.  Dr. Tiger testified that, in his opinion, the unauthorized treatment Petitioner received after being deemed MMI in September of 2003 is related to the compensable accident.  “…there is a track record or road map of treatment from the injury regarding her low back and thus it is my belief that she did injure her low back in the accident and the treatment that she had subsequent to that accident was related to the accident.”  (AT T. p. 17 lines 5-20)  The Court rejects this as a net opinion. 

The Court then questioned Dr. Adams as to whether Petitioner’s present disability was a natural progression of an underlying degenerative condition with her back, having nothing to do with the compensable accident.  The doctor responded, “The degenerative disease on the first MRI was not that significant, and from the first, to the third, to the one in 2005 I don’t think that it was just related to that.  Symptomatically, there was a sharp change.  She was able to work before.  She was doing physical work before.  Suddenly, after this happened she wasn’t able to and she had pretty impressive neurologic deficits on her exam.  (AA T. p. 46 lines 6-18)  Asked by the Court to explain the two year gap between the date of accident with an MRI noting mild degenerative changes and an otherwise unremarkable study (see P- 4 in evidence) and the MRI showing a herniated disc in May 2005, Dr. Adams responded, “Well, she specifically said that her problems started after.” (AA T. p. 46 lines 19-25; p. 47 lines 1-3)  I note, however, that Petitioner testified that she attempted to return to work when she was MMI’d but that her job duties were changed to a more physically demanding assignment for which she filed a grievance with her Union.  This grievance suit was ultimately dismissed.  Since Petitioner felt she was unable to perform her new work assignment, she went on FLMA and never returned to work.  Yet when asked on cross-examination if she could have continued to work if she had been returned to her original job duties, Petitioner testified, “Yes.” (See JS T. p. 40 lines 9-13)  Therefore, the Court can not give much weight to the opinions of Dr. Adams since they were based upon the inaccurate statements given to her by Petitioner.

Furthermore, when asked by counsel on cross examination whether there was any medical benefit to the unauthorized treatment performed, namely, epidurals on an almost monthly basis, both Dr. Tiger and Dr. Adams were in agreement that there was not. (See AT T. p. 30 lines 5–19 and AA T. p.37, lines 16-22.)  Furthermore, Dr. Tiger noted that Petitioner told him upon examination that she did not have any improvement as a result of the treatment she received and she still had complaints referable to her back with the pain, discomfort and numbness going down into her left leg. (See AT T. p.7, lines 1-10.)

Dr. Cohen, Respondent’s orthopedic expert, was of the opinion that Petitioner’s condition is a chronic degenerative condition which has had a natural progression and that it was not aggravated by trauma.  Dr. Cohen based this opinion on the fact that Petitioner’s MRI performed shortly after the accident only showed mild degenerative changes and a bulge at L4-5 with no cord compression.  Dr. Cohen also had the benefit of reviewing Petitioner’s medical records and points out that the authorized treating physician notes of August 25, 2003 indicate that the patient was complaining of low back pain without radiation. (See IC T. p. 13 lines 9-16)  This opinion is supported by an examination of the unauthorized treatment notes as well.  Dr. Gallick’s first exam note on October 24, 2003 notes that Petitioner had no tenderness in either sciatic notch, that her straight leg raise was negative and the neurovascular status of both lower extremities to include motor, sensory and reflexes were normal.  (See P-6 in evidence)

            Therefore, after careful review of the competent medical evidence before me, including all the treatment records, and, based upon Petitioner’s own testimony that the unauthorized treatment did not provide her with any lasting curative effects, I find all the treatment rendered after Petitioner was found to be maximum medical improvement by the authorized treating physician in September 2003 was neither “related “ nor “necessary” medical treatment. Measured on a post hoc basis, the unauthorized treatment rendered was, in fact, not effective.  I find the Respondent did provide the medical treatment necessary to cure and relieve the Petitioner of the effects of her injury of July 16, 2003.  Therefore, the respondent is absolved from any liability arising from medical bills for the unauthorized treatment subsequent thereto.  Furthermore, I find that any conditional payments made by Medicare for this unauthorized treatment is not the responsibility of the Respondent.

With regard to the nature and extent of any permanent disability, our statute and case law are clear.  To be entitled to an award for permanent partial disability, the petitioner must show “demonstrable objective medical evidence of a functional restriction of the body, its members or organs.  This showing may not rest upon petitioner’s subjective complaints alone.”  Colon v. Coordinated Transp., Inc., 141 N.J. 1,9 (1995) (quoting Perez v. Pantasote, Inc., 95 N.J. 105, 116 (1984)).  Second, the Petitioner “must establish either that he has suffered a lessening to a material degree of his working ability or that his disability otherwise is significant and not simply the result of a minor injury.”  Ibid. (quoting Perez, supra, 95 N.J. at 118.) 

The legislative purpose of requiring “demonstrable objective medical evidence” of disability “is to interpose a professional medical judgment between the subjective statement of the petitioner and the award of disability benefits.”  Colon, supra. 141 N.J. at 9 (quoting Saunderlin v. E.I. DuPont Co. 102, N.J. 402, 412 (1986)).  The other goal of the statute was to “eliminate awards for minor partial disabilities.”  Perez, supra, 95 N.J. at 114.  In determining whether an injury is significant and entitled to an award of permanent disability, or minor and not entitled to an award, I must be governed by the credible proofs before me.  I must be satisfied that the petitioner has sustained a lessening to a material degree of her work or out of work ability and those proofs must be corroborated by objective medical evidence.

Petitioner testified that she can’t sweep her floors, brush her teeth standing, and that she has hardly any use of her left side.  Petitioner’s pain is too severe to wash clothes or wash her dishes.  She has to lie down or pop pain pills. She testified that she can’t do anything for herself and that she can’t do much of anything.  (See JS T. p. 30-31)  As stated earlier, herein, the Court’s own observations of the Petitioner do not comport with her stated disability. 

Thus, while I find the Petitioner has suffered a lessening to a material degree of her work and non-work abilities and is entitled to an award of permanent disability, it is not to the extent the Petitioner would have the Court believe.  The expert reports, as is often the case, differ in their estimates of permanent disability.  Dr. Cohen, Respondent’s orthopedic expert found Petitioner had a sprain and stain of the lumbar spine with a permanent partial disability of 2% related to this accident.  I find the opinion of Dr. Cohen to be more credible than Dr. Tiger for a number of reasons.  Dr. Tiger’s first estimate of disability of 65% of partial total disability is based upon a finding of multiple herniated discs.  Yet the MRI of August 2003 makes no such finding – only mild degenerative changes.  Dr. Tiger explained that he made that diagnosis in conjunction with the discogram performed in May 2004 which showed pain generators at multiple levels.  Dr. Cohen explained that these pain generators are arthritic conditions which are never caused nor aggravated by trauma.  When Dr. Tiger reevaluated the Petitioner in 2005 and 2008 he raised his estimate of disability based upon the Petitioner’s increased complaints and because she was exhibiting a limp.  Again, Petitioner’s increased complaints and limp are not persuasive to the Court.  In addition, Dr. Tiger found more atrophy in her left thigh.  I note however, that no other doctor found atrophy at all.  In fact, Dr. Adams testified that Petitioner could not have atrophy with 4/5 muscle strength, especially in the legs, because you have to stand so you’re using those muscles. (AA T. p. 50 lines 1-3)

Petitioner’s neurologic expert, Dr. Angela Adams, testified that on her examinations of the Petitioner she found objective proof of a permanent neurologic disability based upon Petitioner’s motor strength testing and reflexes.  Dr. Adams also opined that Petitioner’s radiculopathy is causally related to the compensable accident.  The Court has noted previously herein why it finds Dr. Adams’ findings lack credibility.  By contrast, Respondent’s expert, Dr. Charles Effron, who examined Petitioner on March 29, 2004, found normal muscle strength, normal reflexes and normal range of motion.  The doctor testified that Petitioner had an inconsistency in her complaints of pain on straight leg raising (See T. CE p. 17 lines 9-17)  Dr. Effron also found evidence of embellishment with respect to cervical range of motion and exaggerated complaints of tenderness. (See T. CE p. 22 lines 4-10).  At the conclusion of his examination, Dr. Effron found no permanent neurological disability based upon the fact that Petitioner had no radicular findings of weakness, sensory impairment or reflex asymmetry and the lumbar MRI of August 2003 demonstrated no disc herniations.

Counsel for Petitioner contends that Dr. Effron’s testimony should be disregarded because the doctor had examined Petitioner approximately 42 months prior to Petitioner’s testimony before this Court.  He cites Allen v. Ebon Services Intern., Inc. 237 N.J.Super. 132 (A.D. 1989) in support of this position.  This Court disagrees.  Since the Court has found that all of Petitioner’s treatment after being MMI’d by the authorized treating physician in September 2003 was not related to the compensable accident, I conclude that Dr. Effron’s exam occurred after the twenty-six week waiting period mandated by the Legislature for determining permanent disability. N.J.S.A. 34:15-16 and in compliance with the holding of Allen. 

Overall, Dr. Cohen’s and Dr. Effron’s estimates of disability are more consistent with the Court’s own observations. The Court, in arriving at a determination of disability, however, is not bound by the opinions of any one or more, or even all, of the medical experts who have testified or whose reports have been submitted into evidence.  The Court’s conclusion is an independent determination based upon the Court’s observations of the Petitioner, together with the Court’s evaluation of the medical records and the proofs before it.  See, Lightner v. Cohn, 76 N.J.Super. 461 (A.D. 1962); cert. den. 38 N.J. 611 (1962).  The Court must use its own good judgment, common sense, experience, expertise and observations in making this independent determination. 

It is the Court’s opinion that Petitioner has sustained a 15% partial permanent disability, orthopedic in nature for a lumbosacral sprain and strain with a disc bulge at L3-4.  The Claim Petition alleged injuries to Petitioner’s neck and shoulders, but none of the experts found any disability thereto.  Although Petitioner’s neurologic expert found evidence of an adjustment disorder with mixed anxiety and depression, Petitioner did not testify to any psychiatric complaints. Therefore, Petitioner has failed to sustain her burden of proof with respect to those aspects of her case.  Petitioner is entitled to an award of 90 weeks of compensation at the rate of $170 per week for a total award, before Court assessed fees of $15,300.  Fees are as more fully detailed in the Order.  Since petitioner is now receiving an ordinary disability pension, Respondent is entitled to an offset pursuant to Rosales v. State of New Jersey, 373 N.J.Super. 29 (App.Div. 2004) certif. den., 182, N.J. 630 (2005)

Jill M. Fader

Judge of Compensation