CP# 96-17311 Truair v. County of Monmouth
DEPARTMENT OF LABOR
DIVISION OF WORKERS' COMPENSATION
MONMOUTH COUNTY DISTRICT
C.P. # 1996-17311
vs. FINAL DECISION
COUNTY OF MONMOUTH,
For the Petitioner: HOBBIE, CORRIGAN, RETUCIO, & TASHJY, P.C.
by: M. SCOTT TASHJY, Esquire
For the Respondent: JOHN T. LANE, Esquire
LAWRENCE G. MONCHER, J.W.C.:
Petitioner seeks an increase in permanent disability above that previously awarded. The County denies there has been an increase in disability and argues that Mr. Truair is barred from receiving periodic Workers Compensation disability benefits because he is now receiving an Ordinary Disability Pension from the New Jersey Police and Fire Retirement System. In the alternative it seeks a credit for some portion of his pension. The County asks for a refund of permanent disability paid by it against his original judgment overlapped the initial 59 2/7 weeks of Mr. Truair ordinary disability pension. The County’s pre-trial motion to dismiss the claim because of the ordinary disability pension was denied without prejudice to its renewal at the conclusion of the trial.
Mr. Truair, a Monmouth County Sheriff’s Officer was a sworn law enforcement officer required to carry a firearm while on duty. On March 6, 1996, he was at his work station for the day, the security post at the Monmouth County Court House, when the stool he was sitting on rolled out causing him to fall and injure his back. He sustained a serious debilitating injury to his low back with multiple herniated discs. He received adequate treatment including medication, physical therapy, epidural injections, surgery and post surgery therapy. He was returned to full duty with a degree of impairment. He performed the tasks of a uniformed armed Sheriff’s officer including serving warrants, fingerprinting, motor pool assignments, and court house security.
On May 18, 1998, Judge Smith approved a settlement of his workers compensation claim for the consequences of herniated lumbar discs at 3 levels, L3–4, L4-5, & L5-S1 with right sided radiculopathy, at 31% permanent partial disability, a total of 186 weeks at $224 per week which has been fully paid. As noted he continued working, his assignment was performing security at the Monmouth County Court House. On or about February 26, 1999, while dressing for work, he experienced a recurrence of the severe back leg pains. His condition deteriorated and he could not work. The County declined to furnish further medical care or pay temporary disability until ordered to do so by Judge Hooley following a hearing on petitioner’s motion for medical treatment and temporary disability on May 10, 1999. Judge Hooley entered a series of Orders directing the County to furnish medical care for petitioner’s back, pay temporary disability, out of pocket medical expenses, and counsel fees. No appeal was taken from these orders. Payment of this additional temporary disability, postponed the completion of payment of the permanent partial disability. N.J.S.A. 34:15-16. This continued past his March 1, 2000 retirement date for 59 2/7 weeks until January 23, 2001 when all disability due under the 1998 judgment were discharged. Although this case was pending before the Division oof Workers’ Compensation, the respondent made no request to suspend payment of the award..
Mr. Truair’s employment status continued, he was paid earned time or temporary disability for periods when he was not at work. He did try to return to work and was placed on light duty at the request of Dr. Crawford. He was told by his Chief that the County had directed that on the recommendation of Dr. Fries be was to be retired. On March 1, 2000, at 52 years of age, following 17 years as a sheriff’s officer, he could no longer continue and was retired on an Ordinary Disability Pension at 40% of his wage. If he had been able to continue for a few years more years, he would have received a larger pension based on years of service.
Eligibility for a disability pension requires first that a physical impairment prevents the officer from performing the duties of the job, and secondly that the government employer, here the County, would not or could not accommodate his impairment. N.J.S.A. 43:16A-6(1). The County’s authorized treating facility, Meridian Health reported that he could not perform the normal duties as a Sheriff’s Officer and should be on light duty. Dr. Fries and the examiners for the State Police and Fire Retirement system expressed similar opinions.
The record here makes it patently obvious that Mr. Truair could not reasonably be expected to perform the normal duties of the job as described in the Civil Service description of duties and requirements. He would be a danger to himself or members of the public if ever required to physically restrain anyone. It is equally clear that at this time he is not permanently totally disabled. He is capable of performing less physically demanding work. Especially if there is no physical interaction involved and that the employment accommodates the significant back and right sided radiculopathy. The key seems to be that he have the opportunity to stand or sit as necessary to relieve the back pain, there be no lifting, repetitive bending, or physical contacts with people, plus employer leniency on absences. He presently works for a private security contractor as a gate security officer at the waterfront side of the Earle Naval Station. He works with another guard. His duties in this job are less than those expected of a sheriff’s officer. He checks vehicle and individual identification paperwork of those entering Earle Naval Station, approximately 100during his daily 8 hour shift. He may look inside vehicles, but the other guard usually does the searches. When not checking a vehicle, he stays in a guard shack. He can function there and in his private life but with difficulty and impairment.
The record at this trial consisted of the entire record and transcript of the initial proceedings leading to Judge Smith’s May 14, 1998 Order Approving Settlement; the record before Judge Hooley on petitioner’s motion for medical treatment; the report of a1999 MRI which diagnosed a recurrent herniated disc at L3-L4; a report of a 2001 MRI of his lumbar spine which showed even more deterioration; a report of Meridian Health recommending that petitioner be removed from police duties and have restrictions on his work; Records and reports from Seaview Orthopedics; a report from Dr. Metzger, a pain control physician; reports from Dr. Thompson and reports from Dr. Estin, neurosurgeon; and the Division of Pensions, Police and Fire Retirement System file on Mr. Truair’s Pension application.
The reports and CV’s of the forensic orthopedic experts were placed into evidence, Dr. Tobias for petitioner and Dr. Fries for respondent. Both physicians are experienced, qualified, orthopedic examiners. The physicians’ testimony supplemented and explained their findings and opinions. Dr. Tobias’ opinion of permanent orthopedic disability before the 1998 hearing was 60%. He next examined petitioner January 22, 2001 when he noted increased findings and increased his opinion of permanent disability to 77 ½ %. His final examination of December 4, 2002 again expressed increased impairment with an increase of disability to 82 ½ %. Dr. Fries testified to his opinion that the permanent orthopedic disability of 20% which he evaluated in 1998 remained unchanged with the compensable injury restricted to one level, L3-L4. After the conclusion of the trial respondent submitted payment records from PMA, the County’s compensation administrator, covering disability payments made to petitioner for the initial judgment and temporary disability ordered by Judge Hooley. Both parties submitted written summations.
PERMANENT DISABILITY ISSUES
To this record I have applied the following legal principles. The burden of proof here, as in all Workers Compensation contested cases, is on the petitioner who must produce the evidence and persuade the trier of fact by a preponderance of the credible evidence of the existence of each element of the claim. Lindquist v. City of Jersey City, 175 N.J. 244, 258-259 (1973); Perez v. Pantasote, Inc., 95 N.J. 105, 118 (1984). The same evidentiary standard applies to the elements of the case on which respondent has the burden of proof. Fiore v. Consolidated Freightways, 140 N.J. 452, 479 (1995).Petitioner has the burden to prove . . . causal relation [and disability] by a preponderance of the evidence. All that is required is that the claimed conclusion from the offered facts must be a probable or a more probable hypothesis. . . The test is probability rather than a certainty. . . . However, the evidence must be such as to lead a reasonably cautious mind to the given conclusion. ‘The standard is one of reasonable probability; i.e., whether or not the evidence is of sufficient quality to generate a belief that the tendered hypothesis is in all likelihood the truth. It need not have the attribute of certainty, but it must be well founded in reason and logic, ere guess or conjecture is not a substitute for legal proof.’ [Citations omitted.] Laffey v. City of Jersey City, 289 N.J. Super. 292, 303(App. Div. 1996). The burden of proof is no different when the employee seeks an increase in awarded disability for progression of compensable injuries. When petitioner proceeds under N.J.S.A. 34:15-27, he must show that his disability increased and that the increase is causally related to the original compensable injury. Schiffres v. Kittatinny Lodge, Inc., 39 N.J. 139 (1963); Lightner v. Cohn, 76 N.J. Super. 461(App. Div. 1962) certif. denied 38 N.J. 611 (1962). Simply put the judicial approach to these cases is we lay the initial medical impairment on one side and the current impairment on the on the other side, if there is an increase in loss of function, an award follows, if not, the claim for disability falls. Once the worker has met this burden of proof, the burden of proof on alternative factual propositions and legal conclusions which will exonerate or mitigate the employers liability shifts to the employer. Cf. Lindquist v. City of Jersey City, supra. 175 N.J. 264-265; Gulick v. H.M. Enoch, Inc., 280 N.J. Super. 96, 109 (App. Div. 1995).
The Workers’ Compensation Act “is remedial social legislation designed to place the costs of accidental injuries which are work-connected upon employers who may readily provide for them as operating expenses.” Secor v. Penn Service Garage, 19 N.J. 315, 319 (1955). Judges are directed to “liberally appl[y] [its provisions] . . . to protect employees in the event of work-related injuries . . .” Ibid. This directive for liberal construction of the Act continues. Lindquist v. City of Jersey City, supra.,175 N.J. at 257-258; Fiore, supra., 140 N.J. at 465. On the other hand, the doctrine of liberal construction does not extend to ignoring the petitioner’s obligation to prove factually that his disability has increased and that this is causally related to the initial injury. Lindquist v. City of Jersey City, supra.,175 N.J. at 258.
When Mr. Truair testified before me, he was obviously in a great degree of discomfort. He could not sit in one position. I told him if it helped, he could stand or sit as he felt necessary. He described his persistent back and leg pain on a 1 to 10 scale, at 8. He walks around enduring this pain, it radiates from his low back into his buttocks on both legs down the thighs to the knees, more intense on the right and frequently on a daily basis, it descends into the right foot. There is a loss in the ability to properly flex the foot. Now his right knee just gives way 2 to 3 times a day. In 1998 it gave way 2 to 3 times a week. He said this is now a chronic situation before it was episodic. He experiences a persistent numbness, pins and needles sensation, where his legs feel like they are going to sleep, he complains of a coldness in his legs. These are the same symptoms he had in 1998 but much more severe and persistent now. He still abstains to the same degree from the same personal activities as before. He does perform the prescribed stretching exercises and tries to walk a mile a day, during which he must stop from time to time and either sit or elevate his right foot. He must sleep with a pillow between his knees and on his left side, still he awakens with pain. Bending or lifting are clearly out of the question.
When I compare the reports of Dr. Tobias and Dr. Frias, while there are some differences in their respective findings, they are not substantial. The major differences are that Dr. Tobias attributes all of the impairment and positive findings to the compensable injury. He describes it as aggravation of underlying degenerative changes, post surgical state of the L3-4 surgery with decompression of the right L4 nerve root, recurrent disc herniation, degenerative disc disease, chronic pain syndrome, and a failed back syndrome.
On the other side, Dr. Fries limits his estimate of disability to findings present immediately following the to the original surgery. Dr. Fries opines that all of the other findings are due to other causes without specifying what the other causes are. He agreed that the 2001 MRI showed pathology, degeneration at L4-5 & L5-S1 as well as L3-4. Dr. Fries conceded all this was present in 1997 and had increased. He said he expected the further degeneration even at the operative level L3-4, he mentioned scarring likely to cause further deterioration. Even though symptoms had increased, he opined there was no increase in disability. He testified to decrease in the range of motion of the trunk in several planes. Surprisingly he still maintained there was no change in disability. Dr. Fries viewed the 3 MRI scans and noted new findings on the latter scans such as the S1 nerve root was enlarged and increased signals suggesting further deterioration of the lumbar spine.
Dr. Tobias attributed the increased neurological findings in petitioner’s legs to the radicular consequences of the injury. Dr. Fries attributed the increased sensory losses in both limbs to peripheral neuropathy secondary to diabetes or perhaps to prior trauma or conditions. He does not evaluate any quantity of disability for the increased pathology and symptoms. He does not separate out what he says is due to the spinal trauma and which he says might be due to diabetes. I closely examined all of the other medical documents including the treating records and note the treating physicians do not make any finding of diabetic neuropathy. If it were there, I would expect such a diagnosis. The treating physicians would have taken that into account, they did not. I give the treating physicians more weight than the forensic opinion proffered by the respondent. See Bober v. Independent Plating Corp., 28 N.J. 160, 167 (1958); Bird v. Somerset Hills Country Club, 309 N.J. Super. 517, 522-523 ( App. Div. 1998) ceritif. denied 154 N.J. 609 (1998); DeVito v. Mullen's Roofing Co., 72 N.J. Super. 233, 236 (App. Div. 1962); & Celeste v. Progressive Silk Finishing Co., 72 N.J. Super. 125, 143 (App. Div. 1972). I can not give any credibility to Dr. Fries’ refusal to consider the increases in disabling pathology which he acknowledges to be present. He found a decrease in the range of motion of the trunk. Dr. Fries’ opinion and diagnosis is consistent with the established law of the case which attributed all of the spinal pathology from L3 to S1 as a consequence of the trauma. Respondent has failed to prove any prior disability. N.J.S.A. 34:15-12(d). For that matter I find Dr. Fries’ testimony attributing physical changes and symptoms to other causes to inconsistent with the treating records as well as the earlier record of the case.
The reported findings Dr. Tobias on his of examination track the steady increase in this man’s impairment from disability to a failed back syndrome. There has been no other trauma or reasonable medical explanation for the progression. It is traceable to the compensable spine trauma. Previous incidents were not shown to have caused any impairment. If physical conditions such as disc degeneration was present or had its roots in prior life experiences, it certainly was aggravated and exacerbated by the 1996 injury. The respondent presented no credible evidence which would permit an inference of prior impairment unaffected by the 1996 injury. It presented no evidence such as testimony from superiors, co-workers, or personnel records. Mr. Truair worked for the respondent for 17 years in a quasi-military disciplined police type unit. If there were anything to support its claims, I would have expected some evidence. Respondent did not appeal the earlier consent order which attributed the pathology in the spine to the compensable injury.
This earlier order was consistent with the facts, Dr. Tobias’ 1997 report and a treatment record which included surgery at L3-4 with decompression of the L4 nerve root, degenerative disc disease at L4-5 and degenerative disc disease with a small central disc herniation at L5-S1. As I noted during the trial no one ever made a timely challenge to the content of the 1998 Order which is the equivalent of a judgment. No mention of a dispute was made on either Pre-trial Order for this trial. This was a final binding disposition unless revised on appeal. The purpose of the application filed by petitioner under N.J.S.A. 34:15-27 is to decide if the initial injuries have increased. Respondent filed no such application to decrease the award, certainly because there is no basis to believe it true.
Mr. Truair’s right sided radiculopathy has increased from infrequent to a daily event. He now presents bothersome, but less frequent left sided radiculopathy. This is a consequence of pressure on the nerve roots by a collapse of the discs and disc spaces as a result of disc desiccation, the dewatering of the discs, which was set in motion by the initial trauma. It took 5 years to reach the point where the deterioration of the disc spaces manifested. Dr. Tobias noted an increase in loss of forward flexion of the trunk from 30 degrees to 55 degrees. The doctor explained how this man’s back pathology prevented him from sitting in a normal position and how he would sit in an awkward manner. He explained he did not measure the legs for atrophy because by eyeballing the legs there was little change in the size of the legs. Mr. Truair has performed exercises and walking to avoid further deterioration. Still this was only evidence that there was no significant muscle loss. In this case, he explained there are 2 pathways for nerves. One is sensory, the other is a motor function. Here the predominant radicular pain was of a sensory nature. On the other hand, Dr. Frias did measure the left and right thigh and calf on each examination . He did report that the left was slightly larger than the right and that there was a decrease over the years measured in one or one and a half centimeters which is more probably due to the L3-4 disc pathology. This is a large right handed individual.
There certainly is objective medical reasons for Mr. Truair no longer working as a Law Enforcement Officer. His employer’s treating physician, all of the pension board examiners and the forensic examiners all state he is not physically fit to serve in his former job. No one expressed such an opinion at the time of the 1998 judgment. He had been returned to full duty. One can not doubt his sincerity and credibility of his physical complaints. He has been forced out of a $62,000 a year job before he could achieve his full pension benefit. He now works at a sedentary job for $11.50 per hour. Instead of receiving a $5,166 per month wage, he receives a $1600 per month pension. The financial loss for this married man is substantial and just another way of stating he has substantial physical impairment.
Based on the testimony and medical reports, I find he could never be relied upon in any position which required any physical effort. I have considered this substantial impact on his ability to work. It has dramatically decreased from the individual presented before Judge Smith. The purpose of this hearing is determine if the disability has increased, it is not to determine if I would have decided the 1998 hearing any differently. After reviewing the record, I would have approved the settlement, and if tried reached a judgment for approximately the same amount.
The clear fact as stated above, there have been physical changes due to the original injury, the end result has been a significant change in this man’s ability to earn a living. This diminishment is both a shrinking of available work skills and earnings. See N.J.S.A. 34:15-36 definition of permanent partial disability; Perez v. Pantasote, Inc., supra. I consider the disability opinion of Dr. Tobias to be a close approximation of the actual disability, there is nothing of any validity on the other side. The disability numbers of forensic physicians are merely estimates. The judge is not bound to follow these estimates, I must exercise the expertise of the Division of Workers’ Compensation in weighing the evidence against the statutory standards. See Lightner v. Cohn, 76 N.J. Super. 461 (App. Div. 1962); Lewicki v. New Jersey Art Foundry, 88 N.J. 75 (1981).
Here the changes in this man’s spine, have deprived him of the physical ability to engage in his occupation and anything which requires physical effort, he has had a significant loss of physical function which will be with him for the rest of his life. All of this brings him to a much larger degree of disability. For the foregoing reasons, I find the present permanent partial disability to be 65%. The monetary award is based on the 1996 rate chart and will be subject to a credit for the initial order approving settlement.
The award is 390 weeks at $416 per week, a total of $162,240 less credit for $41,664 previously paid, a net award of $120,576. Petitioner’s attorney is allowed a counsel fee of $24,000, payable $8,000 by petitioner, $16,000 by the respondent. Dr. Tobias is allowed $400 for his examinations and $450 for his testimony, payable one half by each party all to be reimbursed to petitioner’s attorney. Petitioner’s counsel shall be reimbursed by his client for out of pocket costs of trial transcripts and medical records, a total of $487. John F. Trainor, Inc. is allowed a stenographic fee of $600 for the 3 trial dates and the motion for medical and temporary before Judge Hooley.
ORDINARY DISABILITY PENSION AND N.J.S.A. 34:15-43.
Mr. Truair’s annual salary was $62,000. If he had been able to work the few years required for a full pension he would have received a full pension based on his years of service. Instead he was left with a lesser ordinary disability pension at 40% of his wage. Respondent bases its claim to deny Mr. Truair’s disability award on the language N.J.S.A. 34:15-43. Factually the disability which is the basis for this award is the same as the basis for his ordinary disability pension. This defense misses the pont that a portion of the pension this man receives is based on deductions from his paycheck over the course of his employment. On September 22, 2002, I previously denied claims similar to the ones advanced by Monmouth County in Rosales v. State of New Jersey, C.P.99-7099 & 95-34296 the written decision is reported at 2002 NJ WRK COMP 20 (Sept. 23, 2002) and is published on the web site of the Division of Workers’ Compensation, under the subdivision miscellaneous topics. For the reasons set forth in that 22 page written decision, the county’s defense to bar the disability award or to reduce, or refund of its disability paymentsit by reason of the pension is denied. The judgment in Rosales is presently pending in the Appellate Division, docket# A- 002110-02T3. I have been informed that the briefs have been filed and the case is awaiting assignment.
The claim of respondent for a refund of disability benefits it willingly paid for more than a year after the award of his pension has no legal or moral basis. See Ifka vs. International Smelting and Refining Co., 188 N.J. Super> 586 ( App. Div. 1983). The County can point to no contract between the parties or any language in the retirement plan which allows such a credit or offset. Young v. Western Electric Co. Inc. 96 N.J. 220 (1984). Respondent was aware of the award of the ordinary disability pension, after all it forced the retirement. It never moved for a stay or made any other timely application to amend the earlier judgment. There is no fraud or false statement by petitioner. Cf. Hajanas v. Englehardt Mineral & Chemical Co. 231 N.J. Super. 353 (App. Div. 1989). Respondent took no action and has no excuse. It clearly believed as did all government employers that there was no right to reduce or end workers compensation periodic payments by reason of a simultaneous payment of ordinary disability pensions. The request for a refund is denied.
Dated: February 10, 2004 Lawrence G. Moncher
Lawrence G. Moncher, J.W.C.