CP# 95-24985 Taylor v. Stratford Nursing and Convalescent Center
DEPARTMENT OF LABOR
DIVISION OF WORKERS' COMPENSATION
CAMDEN, CAMDEN COUNTY DISTRICT
RUTH TAYLOR Petitioner,
STRATFORD NURSING AND CONVALESCENT CENTER, Respondent.
HONORABLE SHELLEY B. LASHMAN
Judge of Compensation
PHILIP L. FACCENDA, ESQ.
Attorney for the Petitioner
HOWARD J. CRUSEY, JR., ESQ.
By: ALLEN S. JACOBI, ESQ.
Attorney for the Respondent
This is a bifurcated trial on the issue of whether the petitioner's admitted accident arose out of her employment for the respondent, or was a noncompensable idiopathic event. Respondent had stipulated petitioner was in its employ on February 16, 1995, and that respondent had due and timely notice of petitioner's disabling condition on or about that date. However, respondent denied that her condition arose out of her employment for respondent.
Petitioner was a 57-year old certified nurses aid for respondent for about four years. On Thursday February 16, 1995, the date of the accident, she worked the 11:00 p.m. to 7:00 a.m. shift. Her duties the night and morning of the accident included making rounds with the patients, changing the patients, giving them "a.m. care," and assisting them with whatever they needed to do. Her injury occurred around 5:30 in the morning. In describing her accident she testified under oath:
We were going from room to room giving a.m. care and changing the patients and everything. So when I got to this one particular room -- we were very busy, and when I got to this one particular room, I changed this patient and gave him mouth care and everything, repositioned him in bed and then tucked him in, and then I went to pull up the side rail and felt pressure on my left -- and I felt this sensation this pain. . . then all of the sudden I felt this pressure on my left knee and a terrible pain went down on it and then a stinging and a burning sensation, like bone rubbing over bone and I could not apply pressure on it.
Petitioner then called her supervising nurse in change, a licensed practical nurse, Regina Kulisek, who unfortunately had passed away prior to testimony or trial. Regina came over, apparently saw petitioner outside of the room holding onto a hand rail, told petitioner to have a seat, and gave her two pain pills. Petitioner sat about half an hour. She testified it did not get any better, so petitioner told Regina she wanted to go home. Regina got a cane for petitioner. As they were walking down to the time clock to clock out, the Director of Nursing, Lee Ann Daniels asked what happened. Petitioner told her. Ms. Daniels called another nurses aid over to get a wheelchair, and they pushed petitioner out to her car. She arrived home about 6:00 a.m.
At 10:00 a.m., she went to her family doctor, Dr. Leonard Kabel, D.O., who told petitioner it was job-related. Dr. Kabel then and there, in petitioner's presence, called Ms. Anne G. McNally, the licensed business administrator of the respondent, Stratford Nursing and Convalescent Center, who insisted to Dr. Kabel that it was not job-related. Dr. Kabel replied: "No, she has never been to me for anything like this before." Dr. Kabel then told petitioner to go to respondent's Workers' Compensation doctor. Petitioner went there. That doctor then and there, in petitioner's presence, called Ms. McNally who repeated the same denial of job-relation she had told Dr. Kabel. The respondent's Workers' Compensation doctor then told petitioner to go back to Ms. McNally and try to talk with her.
At that point petitioner testified she was in so much pain she just drove herself to the emergency room of the Kennedy Memorial Hospital in Stratford, New Jersey. P-5 in evidence, the emergency room record, indicated petitioner's arrival at 13:30 on February 16, 1995. The emergency room physician's notes, reads: "This is a 57-year old ... female who presents to emergency today complaining of left medial knee pain. Petitioner was at work early this a.m. and recalls going to take a step and hearing a NpopN and pain followed. No mechanism of trauma. No history of injury to left knee." His working diagnosis was: "Medial collateral ligament strain. Rule out internal derangement."
The emergency department chart indicates the knee was x-rayed; she was given a knee immobilizer and told to follow up with Dr. Cole. Petitioner testified she was told at the emergency room to keep ice on it, keep it elevated, and given medication.
Petitioner testified she called but could not see Drs. Cole and Marcelli until that Monday, Feb. 20, 1995. Dr. Enrico A. Marcelli, D.O., an orthopedic surgeon's report to Dr. Kabel of February 21, 1995 is P-1 in evidence. It reports: "Ruth was seen on February 20, 1995. This is a 57-year old female who works two jobs, and the second job is at the Stratford Nursing Home. On the 16th when she was doing her rounds, she twisted on her knee, felt a snap, felt pain, had a grinding sensation, swelling, and the inability to continue walking. . . . Impression: Probable medial meniscal care or articular cartilage defect." Accordingly, he scheduled her for surgery.
Although not yet fully in point during this bifurcated portion of the trial, P-5 in evidence, petitioner's admission record of May 19, 1995, reports an admitting diagnosis of "meniscal tear, left knee arthroscopy." The operative report of May 19, 1995 relates: "Surgical arthroscopy left knee." The post-operation diagnosis reads: "Degenerative joint disease left knee. . . medial meniscal tear; chondromalacia type II and III tibial plateau, medial femoral condyle, lateral tibial plateau." P-4 in evidence, Dr. Marcelli's report of July 28, 1995 to Dr. Kabel states: "The patient will return to work on August 1, 1995. . . ."
Regarding the specifics of the accident, petitioner was asked by her attorney: "Did you move from one position to another? Did you twist or did you stay still and lift that rail?" She replied: "No, I twisted." In response to the Court's question she testified: "I was coming from the bed and I went this way. . . ." indicating turning to her left after I was coming from the bed and I went this way", indicating turning to her left, with her right hand over the bed rail and her left hand lower as she went to lift it up. She indicated her feet were about 45 degrees facing the guard rail, toes pointing out, "pivotally." Subsequently, on cross-examination, she testified that she was twisting, lifting, and heard a pop.
On cross-examination, the State of New Jersey Unemployment Disability form, R-1 in evidence, dated February 25, 1996, nine days post-accident, and certified by petitioner, had the block for "No" checked in answer to the question: "Was this disability caused by your job?" Dr. Marcelli also checked the block: "Not related to his/her work."
Ann McNally testified for respondent. She had been employed by respondent for thirty years and was the licensed administrator. She testified that petitioner had filed an incident report in the past (R-2 in evidence) regarding a May 13, 1994 accident, reported May 14, 1994, involving severe back pain when transferring a patient, and went to J.F.K. emergency room with follow-up at Health First Physicians. However, she testified petitioner filed no incident report regarding the alleged accident herein of February 16, 1995. From petitioner's personnel record, Ms. McNally testified petitioner had worked for respondent in the 1970's and returned June 1990, "and because of her good attitude and reputation, she was hired back right away." Ms. McNally testified petitioner phoned her from either Dr. Kabel's office or about two days later and told Ms. McNally "I don't think this is an injury from work". She said when she left the patient's room, she was walking down the hall and her knee popped." After Ms. McNally's conversation with Dr. Kabel, she had the Assistant Director of Nursing, Lee Ann Daniels, speak with Regina Kulisek, the evening supervisor or charge nurse of the 11:00 p.m. to 7:00 a.m. shift on that day of Dr. Kabel's call. Regina Kulisek prepared a memo or incident report and left it in the nursing office. It was dated February 21, 1995 which Ms. McNally called a "narrative" rather than an incident report. It was R-4 for I.D. only.
Lee Ann Daniels, respondent's Director of Nursing in February 1995 testified for respondent. She testified that petitioner reported to her by phone that she had injured her knee on the job on or about February 16, 1995, when petitioner had called Ms. Daniels at work right after Dr. Kabel had called Ms. McNally. Petitioner gave Ms. Daniels no details of the incident other than: "It was very simple. She was walking. Her knee popped out. . . she was walking out of the room."
At that point in the trial respondent recalled Ms. McNally who testified that Dr.Anton Kemps of Health First was the physician normally authorized to treat people injured on the job. Ms. McNally testified she advised Dr. Kabel, when he called her, that employees who have sustained Workers' Compensation injury ought to be seen by Dr. Kemps, as required by respondent's insurance company.
Ms. McNally testified that she did not tell Dr. Kabel he was not authorized to treat petitioner. She could not recall telling Dr. Kabel that petitioner was not injured on the job; nor did she recall word from Health First that petitioner was there to be treated. She testified she never told Health First that they were not authorized to treat petitioner because she was not injured on the job.
FINDINGS OF FACT
I find great confusion and conflict in the testimony of petitioner and respondent's two witnesses regarding whether petitioner's knee injury occurred while walking, or while twisting her left foot with the right foot planted beside a patient's bed. Equally uncertain is whether petitioner was lifting a bed guardrail at that time, or merely leaving the room. However, in the absence of medical testimony, I found it very difficult to believe that a medial meniscus in the knee, with no prior history of illness, degeneration, or trauma, would tear in the course of ordinary walking; and that the chondromalacia of the patella will soften by merely walking. Accordingly, I required medical testimony with full trial to make my findings of fact regarding the etiology of petitioner's torn medial meniscus and chondroplasty of the patella. I had previously hoped to save both parties the expense of medical witnesses..
I do find as fact that the "smoking gun" of petitioner's unemployment disability compensation form to the State of New Jersey (R-1 in evidence), in which petitioner and her treater Dr. Marcelli certified that the injury was not job related -- is not compelling nor controlling. That is so because in my 30 years of Workers' Compensation practice and judgeship in New Jersey, I have found that when a respondent denies compensability and refuses temporary disability payments, and more importantly refuses any medical treatment necessary to return the injured employee to gainful employment. . . the injured employee is left no alternative but to deny work relation in order to obtain the necessary and immediate medical treatment to return to gainful employment.
CONCLUSION OF LAW
Based on the subsequent testimony of both parties' orthopedic experts, Dr. Peacock for respondent and Dr. Heist for the petitioner, as well as the medical text book referred to by both doctors, they so testified and I so find that a torn medial meniscus could not occur while merely walking. It requires the planting of a foot and twisting.
That confirms petitioner's testimony under oath. Nothing of the varying accounts of the accident is inconsistent with twisting a planted knee to leave a patient's room in a hurry while lifting the patient's bed guardrail, and no other description of the incident was under oath. I found petitioner extremely credible and forthright, a most reliable witness.
I found Ms. McNally not credible in vehemently denying to petitioner's family treater Dr. Kabel, and to the respondent's own Workers' Compensation examiner, that it was not work related, despite both doctors insistence that it was, and subsequently denying or being unable to recall those denials.
Despite Dr. Peacock's testimony on behalf of respondent that the injury was in part due to a degenerative condition of petitioner's left knee together with excessive weight, I find petitioner's family treater, Dr. Kabel, had no record whatever of prior treatment or disability in her right knee, or of arthritis or fluid in that knee. The preparer of the incident report who filled it out several days after the incident, Regina Kulisek, the evening supervisor and charge nurse, unfortunately passed away prior to testimony in trial and was therefore unable to verify the exact facts of the incident which she had observed.
In Shaudys v. IMO Industries, Inc., 285 N.J. Super. 407 (App. Div. 1995) the burden of proof of an idiopathic injury remains with the respondent. I find as a matter of fact and law that the testimony of petitioner under oath regarding the specifics of the accident is nowhere contradicted by the respondent, and accordingly I find that respondent has not met its burden of proof of proving an idiopathic event by a preponderance of the credible evidence before me.
Crotty v. Driver Harris Co., 49 N.J. Super. 60 (App. Div. 1958) stands for the principle that for compensability, "The employment need not be the sole or proximate cause of the injury; it is sufficient if it is a necessary factor leading to the accident. . . ." citing Gargiulo v. Gargiulo, 24 N.J. Super 129 (App. Div. 1952), aff'd 13 N.J. 8 (1953).
There must be a causal relation between the injury and the conditions under which the work was required to be done. But foreseeability of the injury is not the test. It need not have been expected. Rather, it suffices if the injury has its origin in a risk connected with the employment and flows from that source as a rational consequence . . . while the employment may not have been the proximate cause.
Still further, Martin v. Snuffy's Steak House, 46 N.J. Super 425 (App. Div. 1957) states: "A compensable accident arises out of the employment when the risk is Nreasonably incidentN thereto[.] It has repeatedly been said that if the employment is a contributing cause, the accident arises out of it; it need not be the soul or proximate cause, so long as it is a necessary factor leading to the accident . . .."
Still further in Verge v. County of Morris, 272 N.J. Super 118 (App. Div. 1994): "We hold that if petitioners 'slip' is to be characterized as a 'idiopathic event', it must be found to be one which was caused by 'a purely personal condition having no work connection whatever.'"
Shaudys is specifically in point: ". . . knee injuries like the one suffered by petitioner, as the trial judge emphasized, result from twisting while one's weight is on that leg; such injuries generally do not result from solely internal, 'natural causes'."
The "but for" test, or "positional risk" test of Coleman v. Cycle Transformer Corp., 105 N.J. 285 (1986) and of Dean Larson's Workmen's Compensation Law is satisfied in this case in that the petitioner entered the patient's room rapidly, planted one foot, twisted, turned, and attempted to leave briskly. That activity is not typical of everyday personal action. Therefore, the risk was incidental to work, and also beneficial to the employer.
Accordingly, I find as a matter of fact and of law that the petitioner suffered a compensable accident in this matter, and that respondent has failed to sustain its burden of proof of a idiopathic event. Therefore, the matter is to be relisted for trial to determine the nature and extent of permanent partial disability, temporary disability, and unpaid related, necessary and reasonable medical expenses.
Petitioner's attorney shall prepare an appropriate Order for my signature forthwith.
Shelley B. Lashman
Judge of Compensation
Dated: June 4, 1999