CP# 99-28097; 02-20675 Tejeras v. Kennedy Concrete
DIVISION OF WORKERS' COMPENSATION
BRIDGETON, CUMBERLAND COUNTY DISTRICT
CLAIM PETITION NO. 99-28097 & 2002-20675
JUAN A. TEJERAS, SR.,
GARDEN STATE SPRING, INC.
t/a GENERAL SPRING &
Monday, February 28, 2005
B E F O R E:
THE HONORABLE ROBERT F. BUTLER
Judge of Compensation
A P P E A R A N C E S:
MICHAEL T. GRIMES, ESQ.
311 West Landis Avenue
Vineland, New Jersey 08360
For the Petitioner.
HOWARD W. CRUSEY, ESQ.
BY: ALLEN S. JACOBI, JR., ESQ.,
301 Sullivan Way
West Trenton, New Jersey 08628
For the Respondent.
Certified Shorthand Reporter
FREEMAN, BARTON, HUBER & SACKS, ESQS.
BY: RICHARD A. BARTON, ESQ.,
20 Tanner Street
P.O. Box 10
Haddonfield, New Jersey 08033
For the Respondent, Garden State Spring
as insured by Highland.
COOPER, LEVENSON, APRIL, NIEDELMAN
& WAGENHEIM, PA
BY: WILLIAM T. MEADOWS, ESQ.,
11423 Manklin Creek Road
Ocean Pines, Maryland 21811
For the Respondent, General Spring
as insured by Hartford.
CHERYL B. KLINE, D.A.G.,
Trenton, New Jersey 08625
For the Respondent.
THE COURT: This is the return day with respect to several claim petitions that have been filed -- I should say two claim petitions that have been filed on behalf of the Petitioner, Juan Tejeras. In one claim petition, the Respondent is Kennedy Concrete, Inc. In the other, the Respondent is General Spring with various carriers on the risk.
Would you note your appearance.
MR. GRIMES: Michael Grimes on behalf of the Petitioner.
MR. JACOBI: Allen S. Jacobi, Jr., on behalf of Kennedy Concrete.
MR. BARTON: Richard Barton on behalf of General Spring, your Honor, through the carrier SRS or Highlands Group. I'm sorry. It's Highlands.
MR. MEADOWS: William Meadows. I'm on behalf of SRS.
MS. KLINE: Cheryl Kline, Deputy Attorney General, on behalf of the Commissioner of Labor as custodian for the Second Injury Fund.
THE COURT: Counsel, we concluded the testimony in this matter and the proofs several weeks ago. I received your briefs three weeks ago and indicated that I would be in a position to render my decision today, and that is what I am going to do at this point.
This case consolidates a claim arising from an admittedly compensable accident with several occupational claims involving a disability to the same part of the Petitioner's body. There are several issues that this Court must decide, the
primary one being the nature and extent of the Petitioner's permanent disability. If the Petitioner is found to be permanently and totally disabled, his entitlement to Second Injury Fund benefits from the State of New Jersey would then have to be decided.
The traumatic claim was presented to the Court based upon the Petitioner's Application for Modification of a Prior Award entered by this Court, which is the subject of Claim Petition No. 99-28097, and that award occurred on November 2, 2000. That award occurred as a result of an injury to the low back of the Petitioner, Juan Tejeras, while he was employed by the Respondent, Kennedy Concrete (hereinafter referred to as "Kennedy"). That accident occurred on July 8, 1998 when he attempted to lift an air compressor. His job at the time was that of a truck mechanic. His duties included working on mixers and trucks.
Following this lifting incident, the Petitioner developed both low back and left leg pain. When seen by the Respondent's authorized doctor, Dr. Scott Williams, on July 13, 1998, he noted tenderness of the low back and left buttock as well as a straight leg raising test that was positive on the left for low back pain. The doctor's impression was that of "probable nerve root compression." His treatment consisted of six physical therapy visits, and he received temporary disability benefits of five weeks returning to work on August 19, 1998. On July 23, 1998, Dr. Williams indicated that if the Petitioner's symptoms did not ameliorate an MRI and physical therapy would be recommended. The Petitioner never underwent the MRI.
As a result of that accident, the Petitioner was the recipient of an award of 10 percent permanent partial total disability on November 2, 2000. That disability was found by the Court to represent the residuals of a lumbosacral strain and sprain with a left-sided radiculopathy. In preparation for that award, the Petitioner was evaluated by two physicians for the purpose of diagnosing and estimating his disability. He was evaluated on his own behalf by Dr. Marshall Pressman on October 19, 1999. His diagnosis was post traumatic lumbosacral strain and sprain, and his estimate of disability was 25 percent permanent partial total. He was evaluated on behalf of Kennedy by Dr. John G. Costino on March 28, 2000. His diagnosis was that of an acute lumbar strain and sprain with early disc disruption. His estimate of disability was 5 percent permanent partial total.
The Petitioner had terminated his employment with Kennedy in November of 1998. He then worked as a diesel mechanic for Levari Trucking (hereinafter referred to as "Levari") from December 1998 until June of 1999. He described this as an easier job than that which he had with Kennedy.
He began working for General Spring and Equipment Company (hereinafter referred to as "General") as a diesel mechanic in June 1999. He testified that his duties there required him to repair truck engines, transmissions, differentials and hydraulic systems. He also performed wheel alignments and welding duties. He found that he was lifting items weighing up to 90 pounds and was doing so up to 20 times daily. The Petitioner was working for General at the time of his November 2, 2000 award. During that hearing, he testified that he experienced back pain every time he moved or bent quickly or when he would lift or try to hold something weighing 25 pounds or more. He would also experience left leg and knee numbness when he would lift and hold 25 pounds or more.
What appears from the record as the Petitioner's first medical treatment for his low back since 1998 occurred on December 27, 2000. He then visited the office of Delaware Valley Primary Care because of back pain. He was prescribed Lortab and told not to lift more than 20 pounds and to avoid excessive bending. He was also referred for an MRI. That study occurred on January 18, 2001, and it revealed the presence of a moderately large central to left disc herniation at the L5-S1 level of the lumbosacral spine.
The Petitioner then returned to the care of Dr. Scott Williams. The Petitioner underwent three epidural steroid injections to his low back. They were administered in March, September and October of 2001. He was noted by Dr. Williams as being in severe pain and unable to work as of September 20, 2001. His employment was terminated by General on August 27, 2001 because of his inability to work. In October, 2001, Dr. Williams suggested that the Petitioner be scheduled for a lumbar laminectomy.
On January 2, 2002, the Petitioner was evaluated by Dr. Marc Levitsky, an orthopedic surgeon, at the request of Kennedy. Thereafter, on February 11, 2002, Dr. Levitsky performed a hemilaminectomy at the L5 level and a discectomy at the L5-S1 level. The Petitioner was discharged by Dr. Levitsky on July 15, 2002. Because he continued to suffer from significant pain, he returned to Dr. Williams who in turn referred him for an additional MRI. That November 10, 2002 study revealed a moderate recurrent left paracentral disc herniation impinging on the nerve root and thecal sac at the L5-S1 level.
The Petitioner testified that since that time he continues to suffer from both low back and left leg pain. He has not returned to any form of employment since he was terminated by General.
The procedural history of this case began with the filing of the Petitioner's application for modification of his prior award against Kennedy. That was filed in April 2001. Kennedy filed a responsive pleading on June 1, 2001 in which it denied that it was responsible for any further benefits to the Petitioner.
On November 26, 2001, a Motion for Temporary and Medical Benefits was filed by the Petitioner in which he asserted both a need for the surgery suggested by Dr. Williams as well as temporary disability benefits. The responsive pleading filed by Kennedy once again denied liability as to both requests. Following a conference with the Court on the return day of that motion, Kennedy agreed to have the Petitioner evaluated by an orthopedic surgeon concerning the need for surgery as well as the causative factors for that need. Following that eexamination by Dr. Levitsky, Kennedy agreed to provide authorization for surgery as well as the related temporary disability benefits on a "without prejudice" basis. Kennedy reserved its right to seek reimbursement for these benefits and further conditioned its offer upon the Petitioners's filing of occupational claims as to General.
In June 2002, Claim Petition No. 2002-20675 was filed against Garden State Spring, Inc. trading as General Spring and Alignment in which it was alleged that the Petitioner suffered an injury to his lumbar spine due to repetitive lifting and bending while working for General between January 1999 and August 27, 2001.
OneBeacon Insurance Company filed an answer on behalf of General for a period of coverage from June 19, 1998 through June 19, 1999. SRS/The Hartford Insurance Company (hereinafter referred to as "Hartford") filed an answer on behalf of Reliance National Insurance Company. Although the period of coverage originally acknowledged by Hartford was June 15, 1999 to June 15, 2000, it was later learned that the correct coverage was June 16, 1999 to June 15, 2001. That was further acknowledged by Hartford on Page 5 of its brief. Highlands Insurance Company (hereinafter referred to as "Highlands") filed an answer on behalf of General for a period of June 15, 2001 to June 15, 2002. On May 29, 2003, a verified petition to join the Second Injury Fund was filed and an order of joinder was entered on July 21,2003.
Prior to the commencement of trial and by agreement of all the parties, OneBeacon Insurance Company was dismissed from the proceedings because its period of coverage had expired prior to the November 2, 2000 Order Approving Settlement entered against Kennedy.
The trial in this case began on January 26, 2004. At that time, Kennedy stipulated that the benefits assessed against it in the November 2, 2000 award had been paid. It also acknowledged that, pursuant to the agreement with the Petitioner that had temporarily resolved the issues involved in the Motion for Temporary and Medical Benefits mentioned above, it had provided both temporary disability benefits and medical treatment without prejudice to the Petitioner. Those temporary disability benefits represented weekly benefits at $515 per week from February 4, 2002 through April 22, 2002 and from May 17, 2002 through July 13, 2002. Additionally, Kennedy had paid an additional 10 percent permanent
partial total over and above the 10 percent permanent partial total specified in the 2000 award which it stipulated was also provided without prejudice. It asserts that it is entitled to reimbursement for these payments depending upon this Court's decision.
This Court also noted the existence of a State of New Jersey TDB lien totaling $6,414.88. That lien represented benefits paid to the Petitioner from August 27, 2001 through December 16, 2001.
In preparation for this trial, the Petitioner was examined and evaluated by several physicians. Dr. Marshall Pressman once again examined the Petitioner. His examination took place on December 3, 2002. He estimated the Petitioner's disability to be 80 percent permanent partial total due to his low back condition. He also testified that the Petitioner was totally and permanently disabled as a result of his orthopedic, neurologic and psychiatric disabilities and that this was due to a failed back syndrome following surgery. He attributed 25 percent of the Petitioner's orthopedic disability to his accident with Kennedy and the remaining 55 percent to the worsening of his condition due to the employment with General.
Dr. Anton Kemps examined the Petitioner on behalf of Highlands on April 21, 2004. He estimated the Petitioner's disability at 12 1/2 percent permanent partial total disability. He opined that this entire disability was causally related to the residuals of the 1998 accident with Kennedy.
Dr. Kelly Allen evaluated the Petitioner on behalf of Hartford on July 16, 2004. She too found the extent of the Petitioner's disability to be 12 1/2 percent permanent partial total. She also causally related that entire disability to the Petitioner's 1998 accident.
From a psychiatric standpoint, Dr. Edward Tobe examined and evaluated the petitioner on his own behalf and Dr. Walden Holl did so at the behest of Kennedy. It was Dr. Tobe's opinion that the Petitioner at the time he examined him on May 7, 2003 was totally and permanently disabled. He estimated a psychiatric disability at 65 percent permanent partial total and his neurologic disability at 25 percent permanent partial total. Although Dr. Holl originally evaluated the Petitioner on behalf of Kennedy, he was called to testify by
Highlands with the consent of Kennedy. It was his opinion that the Petitioner's psychiatric disability totaled 75 percent permanent partial total. Of that amount, he estimated 25 percent represented the residuals of an adjustment disorder attributable to his back problem and the remaining 50 percent he causally related to schizophrenia.
The first issue to be decided is the nature and extent of Petitioner's present disability. Having considered all the proofs presented, this Court finds that the Petitioner's total and permanent disability is unmistakable. That finding is supported by the Petitioner's testimony.
He experiences low back pain on a constant basis and is in severe pain most of the time. He also suffers pain in his left leg that radiates to his foot and toes. That pain is with him most of the time. His discomfort level requires him to take morphine tablets every 12 hours and morphine booster tablets every four hours. He can only sit or stand for 15 minutes before having to change his position. He is unable to perform any household chores at all. Most of his time is spent watching TV in his recliner, that time being interrupted for changing positions as described up above.
For his psychiatric condition, he takes Wellbutrin and Risperdal daily. He hears voices of people who are not present. He has had thoughts of suicide because of his pain several times. On one occasion he acquired a gun and intended to shoot himself, but his wife prevented him from doing so.
The Petitioner's total disability was also supported by most of the medical proofs. As mentioned above, Dr. Pressman found the Petitioner to be totally disabled. Besides the abnormal orthopedic findings that he noted in his most recent examination which supported a diagnosis of failed back syndrome, the doctor noted two other significant factors that lead to a conclusion of total disability. They were the Petitioner's dependency upon morphine to control his pain and, secondly, the Petitioner's brittle mental state as evidenced by his hallucinations and suicidal thoughts. Although Dr. Kemps testified that in his opinion the Petitioner's orthopedic disability only equated to 12 1/2 percent permanent partial total, even he conceded that it was "reasonable to say" that he was essentially unemployable.
After having considered Dr. Kelly Allen's testimony, this Court notes that, although her estimate of the Petitioner's permanent disability agreed with the 12 1/2 percent permanent partial total expressed by Dr. Kemps, she was never asked to express her opinion regarding the possibility that the Petitioner might be totally disabled and unemployable. In that regard, Dr. Allen conceded during her testimony that she did not know that the Petitioner was medicating with morphine and morphine boosters on a daily basis.
Having had the opportunity to observe the Petitioner during the course of his testimony, this Court took note of the repeated occasions on which the Petitioner's pain forced him to change from a seated position to a standing position and vice versa. The expression of pain in his face when he did so was vivid and real. Also noticed was the difficulty that he encountered when walking to and from the witness stand with the use of his cane. This Court is satisfied that more than likely the Petitioner was totally and permanently disabled purely from an orthopedic and neurologic standpoint.
However, I find that his compensable psychiatric disability is substantial as well. Dr. Tobe testified that the Petitioner was totally disabled by a combination of compensable orthopedic, neurologic and psychiatric disabilities. He estimated the neurologic disability caused by his left-sided L5 radiculopathy at 25 percent permanent partial total. He documented that diagnosis with his finding of a loss of sensation on the bottom of his left foot and the presence of marked muscle spasm associated with that diagnosis.
He diagnosed the Petitioner's psychiatric disability as being a Major Depressive Disorder secondary to his neurologic disease and chronic pain. The essential elements for such a diagnosis were all found to be present in the Petitioner by the doctor. The Petitioner suffers from poor sleep patterns, agitation, thoughts of death, withdrawal and feelings of worthlessness. Those same findings were evident during the Petitioner's testimony. The severity of the Petitioner's psychiatric condition was emphasized by the doctor's expressed concerns at the conclusion of his direct examination. He then opined that the extent of the Petitioner's depression, his previously expressed thoughts of driving his car into a pole, the episode involving his thoughts of killing himself while in the possession of a gun and his attempted suicide by overdosing on his medications, all signal a severe depression and a current need for psychiatric treatment.
Dr. Tobe testified that during his evaluation the Petitioner had denied hearing any voices that would evidence the occurrence of hallucinations. The doctor first became aware that the Petitioner had acknowledged the hearing of voices in his home when he was presented the hypothetical question in preparation for his testimony. Based upon that information, Dr. Tobe testified that the petitioner's condition had deteriorated since his office visit and that the Petitioner was suffering from hallucinations. He then indicated that these facts evidence a progression of the Petitioner's depression to the point where it now involves psychotic features. He explained that the development of this psychosis is what caused the Petitioner's treating psychiatrist to prescribe Risperdal, an antipsychotic medication.
The severity of the Petitioner's psychiatric disability was echoed by Dr. Holl. Bearing in mind that he evaluated the Petitioner on behalf of the Respondent, the Court finds rather momentous the fact that his overall estimate of psychiatric disability exceeds that of Dr. Tobe. With respect to diagnoses, Dr. Holl's opinion was both similar and dissimilar to Dr. Tobe's. Like Dr. Tobe, he found evidence of depression that was causally related to the Petitioner's back condition. His diagnosis was that of an adjustment disorder with depressed mood, and he assessed a 25 percent permanent partial total disability for that condition.
His opinion was dissimilar to Dr. Tobe's in that his evaluation also resulted in an additional diagnosis, that of an acute schizophrenia. For that disability, he assessed 50 percent permanent partial total, and the doctor was of the opinion that this disability was not causally related to either of these work-related claims.
The most obvious disparity between the two doctor's opinions is their views concerning the cause of the Petitioner's psychotic behavior and symptomatology. Dr. Tobe feels that it represents a deterioration of the causally related depression, and Dr. Holl feels that it represents a schizophrenia that bears no relationship to the Petitioner's work-related injuries.
This Court finds the opinion of Dr. Tobe more persuasive and entitled to greater weight for the following reasons:
According to Dr. Holl, schizophrenia is caused by genetics and early environmental factors occurring before the age of five or six and can have an acute onset at any time during one's life. It was his opinion that the Petitioner suffered from some degree of schizophrenia prior to 1998. This Court finds no support for that contention. Not only was no evidence presented that would suggest any elements of schizophrenia existed prior to 1998, but there was no evidence that would suggest the presence of any type of psychiatric abnormality prior to that time. There were no medical proofs to that effect nor were there any lay proofs to suggest that.
Dr. Holl also testified that schizophrenia is neither caused nor exacerbated by conditions such as trauma occurring later in life. The evidence presented clearly reflects the absence of any psychotic behavior on the part of the Petitioner prior to the development of his low back condition and surgery. In order to accept Dr. Holl's opinion, this Court would have to find that the beginning of the Petitioner's hallucinations and hearing of voices occurred coincidentally and fortuitously after the Petitioner's back surgery and failed back syndrome.
I find Dr. Tobe's opinion that the Petitioner's psychosis represents a progression of his depression caused by his physical pain and limitations to be more convincing and consistent with the facts presented.
For all the reasons set forth above, I find the Petitioner to be totally and permanently disabled due to the orthopedic, neurologic and psychiatric residuals of his work-related low back condition.
The next issue to be decided is that of causal relationship; is the Petitioner's total and permanent disability due to a natural progression of the condition caused by the accident with Kennedy or is it due to an aggravation or exacerbation of that condition that was in turn precipitated by the occupational exposure with General.
Both Hartford and Highlands argue that it was the initial trauma to the Petitioner's low back that occurred while he was working for Kennedy that is the sole cause for his current disability. In support of that argument, Highlands, in its brief, relies upon the opinion of Dr. Marc Levitsky, the orthopedic surgeon who both treated and operated upon the Petitioner. A reading of that brief clearly indicates that the doctor's opinion constitutes the linchpin of Highlands' argument. That opinion was contained in the doctor's January 7, 2002 report that was placed into evidence. That opinion is as follows:
"It is very obvious that it is impossible for anyone to state with a complete degree of medical certainty whether or not his initial injury resulted in the disc herniation or if he basically sustained a lumbar spine sprain/strain and the disc herniation has resulted from the degenerative nature of the L5-S1 disc. At this point in time, I feel it is virtually impossible for anyone to refute the causality between the patient's symptoms and his injury of July 18, 1998."
Highlands suggests that this opinion must be given greater weight than the contrary opinion of Dr. Pressman because Dr. Levitsky's opinion enjoys the elevated status of that of a treating physician. It then cites the following excerpt of Bober versus Independent Plating Corporation, 28 NJ 160, 145 A2d 463 (1958); and I quote, ". . .Manifestly, these opposing medical opinions cannot be considered apart from the factual framework of the entire case. Their probative force must be evaluated by a number of factors. In the process of evaluation, a criterion of recognized significance is the greater opportunity of a treating physician, as compared with a doctor who conducts a single examination in order to become an expert medical witness, to know, understand and decide upon the producing cause of the patient's condition. . ."
This Court finds that the Bober case provides no support for Highlands' argument but rather buttresses the opposite conclusion. In that case, both the workers' compensation court and the county court to which the first appeal was taken found that the petitioner had sustained his burden of proving that his pulmonary disability was causally related to his occupational exposure. In doing so, both courts had found more credible and had given greater weight to the causal relationship opinion of the petitioner's treating physician than that of the respondent's evaluating physician.
However, the Appellate Division reversed those decisions. It found that the opinion of the treating physician should have been disregarded. It did so because it found that the doctor's testimony and opinion were based upon facts which were either not proven or disproportionate in degree to those proven. The Supreme Court reversed the Appellate Division's decision. In doing so, it said that the Appellate Division had imputed as dishonest and fraudulent the treating doctor's opinion because of the above.
After reviewing the testimony of the doctor as it was detailed in that decision, the Supreme Court found that the doctor's erroneous assumptions and statements could alternatively been explained as inadvertent error rather than being dishonest.
When one compares the treating physician's opinion in Bober with that of Dr. Levitsky in this case, one notes two glaring distinctions. First, in Bober, the doctor's testimony demonstrated a detailed understanding of the petitioner's job duties and the elements to which he was exposed while working. Some of those details may have been erroneous, but nevertheless his knowledge of those facts was extensive.
The extent of Dr. Levitsky's knowledge about the stresses, strains and weights involved in what the Petitioner did at General, how often he did it and what effect this had upon him is limited to the information contained within the four corners of his report. Having reviewed the three pages of that report, I find that the sum total of the information referencing this subject consisted of one sentence.
". . .he was employed as a mechanic by General Spring Company of Newfield, New Jersey." There is absolutely no indication in that report that the doctor knew any of the salient and relevant facts that were posed to all of the other physicians who testified during this trial. What weight can be given Dr. Levitsky's opinion under these circumstances? As above indicated in Bober, "Manifestly, these opposing medical opinions cannot be considered apart from the 'factual framework of the entire case.'"
Secondly and even more importantly, in Bober the treating physician testified extensively concerning his opinion and the basis thereof. He was also subject to cross-examination. In this case, Dr. Levitsky did not testify. Counsel for the respective parties never had the opportunity to test his opinion by cross-examination. The "edge" to be given to the treating physician's opinion over that of an evaluating doctor presupposes that both will be produced via oral testimony. Only then can their validity be tested by the probing and prodding of cross-examination. Although I will not disregard Dr. Levitsky's opinion regarding causal relationship, I give it minimal consideration for the reasons stated above.
In its brief, Hartford also argues that the Petitioner's current disability is due to the injury that occurred while working for Kennedy. As espoused in that brief, its theory is that although there was no definitive finding of Petitioner's herniated disc until the January 18, 2001 MRI it nevertheless was present following the July 8, 1998 accident with Kennedy. In support of that theory, Hartford relies upon the opinion of its evaluating physician, Dr. Kelly Allen. She testified that her opinion was based upon two factors. The first was the finding of Dr. Williams on July 23, 1998 of a straight leg raising test that was positive for back pain as well as his impression at the time of a probable nerve root compression. The second factor was the Petitioner's statement to her that the back pain he experienced following his 1998 accident never improved but only got worse.
Dr. Allen explained the correlation of these two factors. She testified that the Petitioner's pain that he experienced was caused by the material of the herniated disc imposing upon the thecal sac or actually compressing directly upon the exiting nerve. This would be consistent with Dr. William's impression of a probable nerve root compression.
I find that Dr. Allen's opinion is flawed and not consistent with some of the more significant and relevant evidence presented. I do so for the following reasons:
First, implied, if not expressed in her opinion, is Dr. Allen's assumption that the findings of Dr. Williams that lead him to his diagnosis of probable nerve root compression on July 23, 1998 remained present from that time through to the time of the Petitioner's surgery. That assumption was incorrect, and she conceded that during her cross-examination. She acknowledged that she did not have the opportunity to review the report of Dr. Pressman regarding his October 19, 1999 examination of the Petitioner. When her attention was drawn to Dr. Pressman's statement that the straight leg raising test was accomplished to 80-degrees bilaterally and was negative for low back pain, she admitted that this represented an improvement in the Petitioner's condition as compared to what it was when examined by Dr. Williams. She also admitted that if Dr. Pressman's findings were correct there was insufficient medical evidence to justify a diagnosis of a herniated disc or probable nerve root compression at that time.
Because Dr. Pressman's findings have become such an important element in the determination of the issue of causal relationship, a few comments concerning the weight to be given his findings are certainly warranted. Dr. Pressman as well as all the other physicians who testified in this trial were retained for the purpose of rendering opinions concerning causation and to provide estimates of permanent disability. This Court would certainly be naive if it did not acknowledge, based upon its experience, that in any given case the opinions as well as some of the findings of these doctors will vary even though they have examined the same person and are presented the same or similar facts. To a limited extent, they are advocates for those who retain their services.
In any given case, the petitioner's evaluating physician's estimate of disability will usually substantially exceed that of the respondent's evaluating physician. As to physical findings, if the presence or absence of a finding is in the grey area, it is this Court's experience that a statement as to the presence or absence of that finding may well vary depending upon whether the examination was conducted by the petitioner's evaluating physician or the respondent's evaluating physician.
Bearing that in mind, this Court is satisfied that any possible positive or abnormal physical findings that may have been present at the time of the examination would not be overlooked by Dr. Pressman as the Petitioner's evaluating doctor. Consequently, this Court finds that the determination by Dr. Pressman that there was a negative straight leg raising test and an absence of any other finding that would suggest the presence of a nerve root compression is beyond reproach.
Secondly, Dr. Allen's belief that the level of the Petitioner's back pain never decreased from the time of his accident with Kennedy until his last day of work with General is inconsistent with the Petitioner's own testimony. He testified that the back pain he experienced while working for Kennedy after his accident became less severe when he began working for Levari. He also testified that his back pain remained less severe during the entire time he worked for Levari and did not increase in severity until he began work for General.
Dr. Anton Kemps who testified on behalf of Highlands also was of the opinion that the Petitioner's herniated disc occurred as a result of the 1998 accident with Kennedy. His reasons for that opinion are much the same as those of Dr. Allen. He relies upon the report of Dr. Williams in which he references a straight leg raising test of the left that was positive for back pain and a diagnosis of a probable nerve root compression. He also relies upon the Petitioner's testimony in which he provides a continuous history of low back pain and left leg pain and/or numbness.
I find fault with Dr. Kemps' opinion for basically the same reasons I did as to Dr. Allen's testimony. First, there is no medically objective evidence of the presence of a herniated nucleus pulposus until the MRI was performed on January 18, 2001. Dr. Kemps concedes that point. This Court also finds significant the fact that an X-ray was performed of the Petitioner's low back by Marsh Radiology Professional Association on July 13, 1998, and it showed no evidence of a herniated nucleus pulposus. This Court is well aware that an MRI is a more definitive diagnostic tool to detect disc abnormalities, but this negative study is significant nonetheless.
Secondly, the positive clinical findings of Dr. Williams that furnished the basis for Dr. Kemps' opinion regarding the presence of nerve root compression and a herniated disc were totally absent in October of 1999 when Dr. Pressman examined him. Thirdly, and of even more significance, is the fact that the Petitioner had no complaints of pain or numbness in his left leg when he was examined by Dr. Pressman in October of 1999. Dr. Pressman's report of October 22, 1999 that was placed into evidence at the time of the November 2, 2000 award states under the caption of Present Complaints with regard to his low back; "The patient denied any radiating pain at present."
For the reasons stated above and below, I find that the opinion of Dr. Pressman is entitled to greater weight than those of Drs. Allen and Kemps. I also find, based upon the opinion of Dr. Pressman and the factual evidence that supports it, that the Petitioner's herniated disc, need for surgery and total disability are causally related to his occupational duties and exposure with General.
I find that the positive physical findings noted by Dr. Williams that lead him to his diagnoses of nerve root compression eventually abated, and as Dr. Pressman says, "he (the Petitioner) got better." That conclusion is supported by several facts.
First, the MRI that Dr. Williams said he would obtain if the Petitioner's symptoms did not abate was never requested.
Secondly, as Dr. Pressman mentioned during his testimony, Dr. Klausman who was treating the Petitioner at the same time as Dr. Williams noted two later office visits in which his physical examinations were characterized as normal.
Thirdly, the initial examination by Dr. Pressman constitutes unequivocal proof that the extent of the Petitioner's condition in October 1999 was limited to that of a lumbar strain and sprain. There was absolutely no evidence of any neurologic involvement or a radicular component. Although the Petitioner testified that he continuously suffered from leg pain and/or numbness from the time of his 1998 injury up to the time of his surgery, Dr. Pressman's October 1999 report concerning the Petitioner's complaints clearly states that, "The patient denied any radiating pain at present." For the reasons stated earlier, I find Dr. Pressman's statement to be more reliable than the Petitioner's testimony in this regard.
The absence of any neurological or radicular findings and/or complaints in October 1999 is especially relevant because the Petitioner at that time had concluded his work activities with both Kennedy and Levari and had been working for General for four months. As such, he had already been performing the strenuous duties with General that included lifting or handling items up to 90 pounds and doing so up to 5 times per hour and 20 times per day.
There is no medical evidence of any neurologic or disc related pathology until the Petitioner had been working for General for nine months. On March 28, 2000, Dr. John Costino examined the Petitioner on behalf of Kennedy in preparation for the November 2, 2000 workers' compensation hearing. At that time, the Petitioner had complained of pain in the lumbar area with some "lateralization to the left lower extremity." Dr. Costino found that the straight leg raising test was positive on the left with evidence of sciatica and a positive sciatic stretch test on the left. His diagnosis was that of early disc disruption.
This finding of Dr. Costino supports the opinion of Dr. Pressman that it was the Petitioner's work activities with General that precipitated the Petitioner's herniated disc. His opinion is also supported by the history given by the Petitioner to Dr. Kemps on April 21, 2004. Dr. Kemps testified that the Petitioner told him at that time that he had experienced ongoing complaints of back pain but that his "occupational back pain started in January 2000."
I find that the causative connection between the Petitioner's herniated disc and his employment with General is supported by the fact that the Petitioner sought no medical treatment for his back from late 1998 until December 27, 2000, while he was working for General. That treatment was provided by Delaware Valley Primary Care and subsequently by Dr. Scott Williams. His complaints then were that of low back pain and left leg pain. Those complaints were consistent with the testimony he gave on November 2, 2000 during his workers' compensation hearing. It was these complaints that lead to the January 18, 2001 MRI that evidenced the presence of a moderately large central left disc herniation at the L5-S1 level.
Both Highlands and Hartford suggest that the case of Peterson versus Hermann Forwarding Co. 267 N.J. Super 493 (1993) require this Court to assess the Petitioner's current disability against Kennedy. I find that the court's reasoning in that case requires the opposite conclusion.
In the Peterson case, the petitioner was a tractor trailer driver who was involved in an accident while working for Hermann Forwarding on October 1, 1982. He slipped and fell from his truck and felt pain in his shoulder, neck, right leg and right hip and low back. He received emergency room treatment at a local hospital. Follow-up care consisted of eight visits with local physicians. He missed one month of work. There were apparently no diagnostic studies performed.
When he returned to work, he did so with another trucking company. Over the next 15 months, he worked as a truck driver for five different companies on a sporadic basis. During those employments, he consistently complained of pain in his low back, right hip and right leg. He last worked on June 18, 1984 for Yellow Motor Freight. He stopped working because he said he could no longer take the pain. In 1986 an MRI revealed the presence of two herniated discs in the cervical spine.
Following a trial, the workers' compensation judge found the petitioner totally and permanently disabled and assessed all the petitioner's compensable disability against Yellow, the last employer. The Appellate Division reversed that decision to the extent that it found that the compensable disability should have been assessed against Hermann Forwarding. What appears to be one of the more important factors for the court's decision to assess the entire responsibility for the petitioner's disability upon the initial traumatic injury was the presence of unequivocal evidence that the petitioner's condition followed a continuous pattern of progression and deterioration following that accident. Specifically, that evidence was the fact that his diseased back continued to worsen even ". . .after all employment had ceased."
The evidence in the present case is to the contrary. Although there was no significant period of time when the Petitioner ceased working prior to his being terminated by General in August of 2001, his job duties became somewhat less strenuous when he left Kennedy and began working for Levari. During the six months that he worked for Levari, not only was there no progression or worsening of the Petitioner's condition or symptoms, but according to his own testimony they actually improved. Another distinguishing fact in this case is the fact that the Petitioner's medical findings as well as his complaints involving his left leg not only showed improvement, but they were totally abated as of 13 months after his accident when he was examined by Dr. Pressman.
A second significant factor in the Peterson case was; "[Peterson's] inability to tolerate the efforts required at these employments demonstrates the degree to which the initial injury rendered [him] disabled." After sustaining his injury while working for Hermann, Peterson worked sporadically for five different trucking companies. The duration of most of those periods of employments varied from eight hours to four days.
Once again, the contrary is true in this case. Not only did this petitioner work on an almost continuous basis for the two years following his employment with Kennedy, but his job duties during that time were quite rigorous and strenuous. They involved lifting and moving objects weighing up to 90 pounds up to 5 times per hour 20 times per day.
For the reasons set forth above, this Court finds the Petitioner's total and permanent disability, including his orthopedic, neurologic and psychiatric residuals, are due in a material degree to his job duties and occupational exposure at General, thus satisfying the requirements of N.J.S.A. 34:15-31.
This Court also finds that, considering the Petitioner's employment with General during the respective periods of coverage by Hartford and Highlands, the Petitioner's disability did not rise to the level of being totally disabled until Highlands coverage; and consequently, his totality is attributable to Highlands. This finding is based upon the following:
The record reflects that the Petitioner's lumbar herniated disc and its associated disability first manifested itself as a result of an MRI that occurred during Hartford's coverage in January 2001. That condition and disability, however, did not rise to the level of total disability until the period of coverage by Highlands. The Petitioner continued to suffer from the symptomatology caused by that herniated disc during Hartford's coverage, but he still was able to perform the strenuous duties of his job involving the lifting of 90 pounds on a frequent basis.
Following the Petitioner's MRI study, the records of the Petitioner's treating orthopedist, Dr. Williams, evidence some degree of improvement in his condition. The severe back pain and the shooting pain in his left leg about which he complained on February 20, 2001 was "doing much better" according to the office note of March 14, 2001. The positive straight leg raising test on the left side that was reported on February 20, 2001 was absent on March 14, 2001 which also evidenced some improvement. On the April 14, 2001 visit, the doctor mentioned that the epidural block that was administered to the Petitioner during the previous visit seemed to have helped his left leg and numbness complaints. The Petitioner was scheduled to return to the doctor in two weeks, but he did not.
His next visit with Dr. Williams occurred on August 20, 2001 after Highlands' coverage had commenced. The medical records of Dr. Williams from this date forward reveal a gradual but steady worsening of the Petitioner's condition. The straight leg raising test that was negative on March 14, 2001 was now positive. The doctor's notes indicate that the "exam does not show any massive neurological deficit." (emphasis supplied) The doctor suggests the injection of another epidural and mentions for the first time the possibility of lumbar surgery.
On September 10, 2001, the doctor mentions that the Petitioner is no longer able to work because of his pain. On this visit, the doctor records a "very positive" straight leg raising test on the left side. The office note of October 17, 2001 reflects some degree of worsening of the Petitioner's condition even though he was no longer involved in the strenuous activities of his job. The Petitioner then complains of "great amounts of pain", and the doctor indicates that he is "basically unable to walk or work."
On February 11, 2002, the Petitioner underwent a hemilaminectomy at the L5 level and a discectomy at the L5-S1 level of the lumbosacral spine. Following that surgery, the Petitioner never returned to work.
These treating medical records indicate that the herniated disc that manifested itself during and as a result of the Petitioner's employment under Hartford's coverage may well have caused the Petitioner some degree of disability at that time. However, these same medical records also establish the fact that the Petitioner's work activities at General did not cause his disability to rise to the level of being totally and permanently disabled until Highlands' coverage. In support of this finding, this Court notes that the termination of the Petitioner's employment relationship with General did not occur based upon his decision that he was no longer physically able to do the work. It was General's determination that he was unable to do his job because of his physical condition that caused them to terminate him.
Having determined that the Petitioner's disability is attributable to Highlands, the next issue is whether any portion of the Petitioner's disability should be assessed against Hartford. Any discussion or decision regarding the assessment of disability involving a petitioner with successive exposures involving two or more employers or insurance policy coverages must begin with a consideration of Bond versus Rose Ribbon and Carbon Manufacturing Company 42 NJ 308, 200 A2d 322 (1964).That case stands for the proposition that when an occupational exposure activates or causes an insidious progressive disease, the existence of which is undisclosed or unknown until or after the last of the potentially responsible employers or carriers, the last carrier shall be assessed the entirety of the petitioner's disability.
That proposition commonly referred to as the "Bond rule" was later amplified in the case of Giagnacova versus Beggs Bros. 64 NJ 32, 311 A2d 745 (1973). In that case, the court stated that where the evidence warrants, an apportionment among two or more of the causally contributing employers or carriers then on the risk may be appropriate. By way of explanation, the court said that apportionment is appropriate if the prior disability is "fixed, arrested and definitely measurable."
In order to decide whether apportionment of the Petitioner's total disability is applicable, the more recent case of Levas versus Midway Sheet Metal 337, NJ Super 341, 2001 is helpful. In Levas, the petitioner was employed from early 1990 to February 1991 by successive employers during which he was exposed to pulmonary irritants. The workers' compensation judge found the petitioner to be totally and permanently disabled following his last period of employment. In assessing that disability, the court found each of the eight or more employers contributed in a degree substantially greater than de minimis. The judge then apportioned the petitioner's disability equally among each of the employers with Midway being the last employer.
The Appellate Division affirmed the workers' compensation decision of totality. However, after reviewing the record below as it related to the petitioner's eight or more employers during an occupational exposure in excess of one year, the court was "convinced (that) the petitioner's disability became fixed, arrested and measurable" during his employment with D & M Sheet Metal, one of the earlier employers. It also found that with regard to the petitioner's employment with Raritan Valley Sheet Metal, Inc., also an earlier employer, the medical evidence was not "sufficiently undisputed" to allow the Appellate Division, because of what it referred to as its "limited expertise", to allow it to determine if the petitioner's disability had increased sufficiently and could be assessable to an additional level. The court then remanded the case to the workers' compensation judge to, first, assess the percentage of permanent partial disability attributable to D & M and, secondly, to make the determination mentioned above as to Raritan.
Before deciding that there was sufficient evidence to apportion some of the petitioner's total disability to D & M, the court mentioned that the New Jersey Supreme Court has not yet detailed the prerequisites and methods to be utilized in apportioning disability when warranted. It did acknowledge, however, that in Giagnacova the court did say that the ordinary means of proving a "revelation of a specific degree of physiological pathology" for an internal condition such as a pulmonary disability is "medical examination and diagnosis."
Realizing that the Levas court used that statement as a basis for its decision, it would seem that a careful comparison between the medical proofs as to D & M versus those as to Raritan should reveal the factors that it believes to be essential in apportioning disability.
In both instances, those employments included periods of hospitalization of the petitioner for his pulmonary condition. Both hospitalization records contained diagnoses of the petitioner's pulmonary condition. There were two hospitalizations during Raritan's employment, but only one during D & M's employment. There was no indication as to how extensive the medical records of these three hospitalizations were. However, the court's comments concerning them were more detailed as to the Raritan hospitalizations than they were as to D & M.
During both employments, there was a course of medical treatment by various doctors that followed all three hospitalizations. Those records appeared to be available to the court. What appears to this Court to be the only significant distinguishing factor regarding the medical aspect of these two employment periods is a physician's percentage estimate of disability at the time of or attributable to that employment. Dr. Hermele, the petitioner's evaluating physician, did assess a percentage of petitioner's disability as of the date of his employment with D & M. He did not do so, nor, apparently, was he asked to do so, as of the date of petitioner's employment with Raritan.
Based upon these principles, this Court finds that the prerequisites for the apportionment of a disability are the concurrence of a diagnoses, a medical examination and/or associated physical findings and a physician's opinion as to the extent of the petitioner's disability expressed in terms of reasonable medical probability at a point in time when the petitioner's condition is sufficiently stable or "arrested."
The Court must now examine the facts of this case to determine if there is a basis to assess a portion of Petitioner's disability to his exposure while Hartford was on the risk.
This Court finds that the first manifestation of the Petitioner's herniated disc occurred during Hartford's coverage. That diagnosis is based not upon just a physical examination, but rather it occurs as a result of a diagnostic study, the MRI of January 2001. That diagnosis represents a significant worsening of the Petitioner's earlier lumbar sprain and strain which resulted from his accident with Kennedy.
Secondly, the medical treatment records of Dr. Williams reflecting the Petitioner's office visits from January through April, 2001 containing the doctor's physical findings can be contrasted with his findings that occurred during his visits from August and thereafter while Highlands was on the risk.
Thirdly, the absence of any medical treatment records between April and August 2001 would seem to be consistent with the suggestion that the Petitioner's condition was quiescent or "arrested" at the time. That time frame also coincides with the expiration of Hartford's coverage and the commencement of Highlands' coverage. That transition occurred on or about July 15, 2001. The final prerequisite for apportionment, a physician's opinion regarding the extent of the Petitioner's disability expressed in terms of reasonable medical probability at or about the end of Hartford's coverage is conspicuously absent. Not one testifying physician even attempted to apportion the Petitioner's disability between Hartford and Highlands. Nor were they asked to do so on either direct or cross-examination. The absence of medical testimony concerning this issue is remarkably similar to that which occurred in the Levas case. The Appellate Division's comments concerning that subject were as follows:
"Midway, then, pointed the finger at D & M and Raritan Valley Sheet Metal. Neither they nor any other respondent made any effort to assist the judge, by way of additional medical testimony or otherwise, in an appropriate method of allocating the responsibility of petitioner's total disability. We find this somewhat troublesome as allocation of responsibility would seem to be the employers' burden where, as here, petitioner demonstrates a compensable disability substantially the product of respondent employers' exposure. We suppose respondents here were not concerned with that burden because their primary position was that petitioner's disability was not work related at all and that any contribution to it by the occupational exposure was de minimis."
The court then remanded the case to the workers' compensation judge directing him to determine the percentage of disability assessable to D & M based upon the fact that at least one physician had estimated the petitioner's disability as of that period of employment and had provided a plausible explanation for that opinion.
Petitioner suggests in its brief before the Court today that a certain percentage of disability would be attributable to the Petitioner's occupational exposure during Hartford's coverage. Since there has been no physician that has espoused that nor any other percentage of disability, it would seem to be implied by Petitioner's argument that this Court has the inherent authority to determine the extent of the Petitioner's compensable disability without the support of a medical expert's opinion. This Court is aware of no such authority. This Court is satisfied that any determination rendered in this division regarding medical causal relationship and the extent of one's compensable permanent disability due to a medically definable condition must be based upon the findings, testimony and opinions of a qualified physician.
A decision of a judge in this division regarding the extent of permanent disability may certainly and usually does vary from that opined by either the petitioner's or respondent's evaluating physician. However, it may never supplant it. A decision to the contrary would suggest that this Court is free to decide such issues without the necessity of expert testimony. Such is certainly not the case.
There being no credible medical opinion that could serve as a basis for apportioning the Petitioner's disability and assessing prior permanent partial disability as to Hartford, I must assess the Petitioner's total and permanent disability entirely to Highlands.
There are several issues that remain to be determined. They relate to the determination of the Petitioner's entitlement to additional temporary disability benefits, assessment of the responsibility for satisfaction of the State of New Jersey TDB lien and finally assessment of responsibility for those benefits that Kennedy provided without prejudice pursuant to the Petitioner's Motion for Temporary and Medical Benefits.
An injured worker is entitled to temporary disability benefits from the date when he or she is first unable to work, as established by medical proofs, until he or she is as far restored as the permanent character of the injury will permit. Helmholtz versus Union Building and Construction Company 22 NJ Misc. 343, 39 A2d 36 (1944).
The Petitioner ceased working and last worked on August 27, 2001. The office notes of Dr. Williams of September 20, 2001 indicate his statement that the Petitioner was no longer able to work, and I find that inability to work is retroactive to August 28, 2001 entitling him to temporary disability benefits from the carrier on the risk at that time, Highlands, for the reasons set forth earlier in this decision. Following the surgery performed by Dr. Levitsky, the Petitioner was discharged from his care on July 15, 2002. Dr. Kemps also testified that that was an appropriate period of time for recuperation from the type of surgical procedure that the Petitioner underwent. I, therefore, find that Highlands is responsible for the payment of temporary disability benefits to the Petitioner for that period of time, or 66 weeks.
There were no stipulations by Hartford or Highlands at trial nor do their responsive pleadings reflect the Petitioner's weekly wage or temporary disability rate while working for General. This Court will, therefore, find the Petitioner's weekly wage to be $868.25 and the temporary disability rate to be the corresponding maximum rate of $591 per week based upon the allegations contained in Claim Petition No. 2002-20675.
This entitles the Petitioner to 66 weeks of temporary disability benefits at the rate of $591 per week for a total of $39,006. From that sum, Highlands shall first pay by way of reimbursement the New Jersey State TDB lien of $6,414.88 for the benefits paid from August 27, 2001 to December 16, 2001 at the rate of $417 per week. Highlands shall also pay by way of reimbursement to New Jersey Manufacturers the sum of $10,025.14 for the temporary disability benefits it paid without prejudice to the Petitioner from February 4, 2002 through April 22, 2002 and from May 17, 2002 through July 15, 2002. That will leave a balance of temporary disability benefits payable to the Petitioner of $22,565.98.
New Jersey Manufacturers also seeks reimbursement for the medical expenses it incurred and paid for the surgical procedure and follow-up care that the Petitioner received in the amount of $13,244.20. This Court finds that the medical treatment represented by these expenses was necessary based upon the evidence presented. However, there were no proofs presented that would establish the reasonableness of the amount of these expenses.
Unquestionably, New Jersey Manufacturers should be reimbursed by Highlands for these expenses assuming they are reasonable. New Jersey Manufacturers should certainly not suffer any disadvantage for providing medical treatment at a time when it was most needed without imposing the burden upon the Petitioner of fully litigating his motion. Such a gesture should be encouraged and not discouraged by this Court. Consequently, I will allow 20 days from today's date to permit New Jersey Manufacturers and Highlands to amicably determine the amount of that reimbursement. Should that issue not resolve within that time, this Court will schedule that issue for an immediate hearing and determination upon the request of New Jersey Manufacturers.
Finally, with respect to the payment of 10 percent permanent partial total disability by New Jersey Manufacturers that was made for the purpose of providing funds to the Petitioner when he was without a source of income, this Court will direct that $9,516 of the accrued benefits to which the Petitioner is entitled by this decision shall be paid by Highlands to New Jersey Manufacturers by way of reimbursement.
Based upon the opinion of Dr. Pressman, I find that the date of Petitioner's totality is December 3, 2002.
I find the Petitioner's total and permanent disability represents the orthopedic and neurologic residuals of a herniated nucleus pulposus at the L5-S1 level, post hemilaminectomy and discectomy and failed back syndrome and the psychiatric residuals of a Major Depressive Disorder with psychotic features. The Petitioner's initial disability previously assessed to Kennedy based upon this Court's November 2, 2000 award was 10 percent permanent partial total. Consequently, the assessment as to Highlands represents 90 percent of permanent total disability, or 405 weeks payable at the Petitioner's total disability rate based upon the 2001 rates of $591 per week for a total of $265,950. I find that the Second Injury Fund is responsible for the payments represented by the prior disability of 10 percent permanent partial total as well as continuing benefits following the initial 450 weeks provided that the Petitioner remains totally and permanently disabled.
Pursuant to this decision and for the reasons set forth above, I hereby dismiss the Application for Modification as to Kennedy. I also dismiss the claim petition as to Hartford for its period of coverage with General Spring. I direct counsel for both to prepare Orders of Dismissal for my signature today that will encompass the content of this decision.
I will assess a stenographic fee payable by each to JerseyShore Reporting Service of $100 and $250 each payable to State Shorthand.
I direct Petitioner's counsel to provide to this Court within ten days of this date a long form of judgment that incorporates this decision and fees, allowances and provisions that follow. That shall be accompanied by self-addressed stamped envelopes along with the order. Copies of the proposed order shall also be submitted to all counsel under the five-day rule. Unless the Court is in receipt of an objection by a party, the order will be executed on the fifth day and distributed by mail. That order shall also contain and specify the date of final payment by Highlands and the date upon which the payments due the Petitioner from the Second Injury Fund shall commence. There shall also be a Decision of Eligibility to accompany the Order of Judgment.
I will allow the following by way of costs and allowances between the Petitioner and Respondent Highlands. All by way of reimbursement to Petitioner's counsel, for the two examinations and reports and testimony of Dr. Pressman, $1,200. That will be apportioned equally between the parties, $600 each. For the two examinations and reports and testimony of Dr. Tobe, $1,200. That too will be shared equally between the parties, $600 payable by the Respondent and Petitioner $600.
I will direct reimbursement to Petitioner's counsel of $75 for the treating medical records. That will be deducted from the Petitioner's award. I will direct reimbursement to Petitioner's counsel in the amount of $1,770 for the cost of transcripts incurred by counsel for preparation of this brief,and the cost of that will be shared equally between the parties, $885 payable by each.
I will allow counsel fee to Mr. Grimes for his efforts in obtaining temporary disability benefits for his client $7,800. That will be paid by the Respondent. I will allow a counsel fee of $30,000 for the permanent disability award. That will be $12,000 assessed against the Petitioner and $18,000 as to the Respondent.
Assessment of an additional counsel fee may be appropriate based upon the resolution of the issue of the cost of the medical treatment that shall be reimbursed to New Jersey Manufacturers; and as to this Respondent, Highlands, I shall assess also a stenographic fee to State Shorthand of $250 and as to JerseyShore $100.
MR. JACOBI: I assume that was the end of your decision?
THE COURT: Yes.
MR. JACOBI: I have a question, and it may be a situation -- since the order against Highlands requires them to make reimbursement to New Jersey Manufacturers, could the dismissal as to Kennedy Concrete be included as being a consolidated order prepared by Mr. Grimes so it makes it less confusing so we have one document to show it's less confusing?
THE COURT: Check with Toni because there may have to be a separate document because of the fact it's a separate claim petition.
MR. JACOBI: But we have consolidated Second Injury Fund cases all the time.
THE COURT: I agree with you, but check with her and make sure.
MR. GRIMES: The only question I had, Judge, was on the Motion for Med and Temp I had filed there was some miscellaneous medicals. Can I have an opportunity to work that out with Dick also?
THE COURT: Sure.
MR. JACOBI: Judge, I'm a little confused in terms of this 20 days that we have to resolve the issue with Highlands. I guess what I will do is send all of the bills to Mr. Barton and he can send them on.
THE COURT: Right. Send him the bills that represent that dollar amount you put in your brief. If there is a question about it, then we can resolve it. I just put that in as a formality. (Whereupon, a discussion was held off the record.)
(Whereupon, this matter is adjourned.)
I, CHRISTINE RHOADES, a Certified Shorthand
Reporter and Notary Public of the State of New Jersey
hereby certify the foregoing to be a true and accurate
transcript of the proceedings as taken
stenographically by me on the date and place
hereinbefore set forth.
License No. 2181030
My Commission Expires
June 20, 2006
Dated: March 7, 2005