RODERICK WALDEN,

Petitioner

vs.

EXCEL CONSTRUCTION & DESIGN CO.,
J. SPERANZA BRICKWORK,
P & C CONSTRUCTION AND
HALL’S CONSTRUCTION,

Respondent     

 DECISION ON MOTION FOR MEDICAL &TEMPORARY DISABILITY BENEFITS 

APPEARANCES:  

For the Petitioner: GARCES & GRABLER, ESQS., WILLIAM N. GRABLER, ESQ., appearing.

For the Respondent EXCEL CORPORATION:  FREEMAN, BARTON, HUBER, & SACKS, ESQS., DEBORAH C. GOTTUSO, ESQ., appearing and on the brief.

For the Respondent J. SPERANZA BRICKWORK:  BIANCAMANO & DiSTEPHANO, ESQ., JAMES PASSANTINO, ESQ.,  appearing and on the brief.

For the Respondent P & C CONSTRUCTION:  WEBER, GOLDSTEIN, GREENBERG & GALLAGHER, ESQS.,  JOSEPH BORUCKI, ESQ.,  appearing and on the brief.

For the Respondent HALL CONSTRUCTION:  THOMAS H. GREEN, ESQ., RICHARD J. RIORDAN, ESQ., appearing and on the reply brief.;  FRANK J. KUNZIER, ESQ., JOSEPH RACIOPPI, ESQ. appearing and on the brief.

LESLIE A. BERICH, J.W.C.

This matter comes before the court on petitioner’s motion for medical and temporary benefits.

On December 3, 2001,  an Order Approving Settlement was entered awarding petitioner thirty five percent (35%) of partial total for orthopedic and neurologic disabilities for a low back injury against the employer-respondent Excel Construction & Design Co.

A review and modification of the Formal Award against Excel Construction & Design Co. [hereinafter Excel], CP 2002 - 28142, alleged that petitioner’s condition had worsened.  An Answer Statement was filed which denied the need for additional treatment.  Excel, via its carrier, Guard Insurance Group, denied petitioner additional medical treatment.^[1]

The following claim petitions were also filed:

As to J. Speranza Brickwork [hereinafter Speranza], CP 2002-24969, in which occupational injuries due to repetitive movements from May 2001 to February 2002 were alleged. An Answer denying these allegations was filed by Speranza.

As to P & C Construction [hereinafter P&C], CP 2002 - 26343, in which occupational injuries due to repetitive movements from February 19, 2002 to March 5, 2002 were alleged. An Answer denying these allegations was filed by P&C.

As to Hall Construction Co. [hereinafter Hall or Hall Construction], CP 2002 - 24967, in which occupational injuries due to repetitive movements from March 5, 2002 to April 26, 2002 were alleged. An Answer denying these allegations was filed by Hall.

A Notice of Motion for Temporary and Medical Benefits was filed on September 19, 2000 as to each of the petitioner’s aforementioned pleadings.

The core issue before the court is, where petitioner suffered a compensable accident and received an award for partial total disability, whether, thereafter, petitioner’s injuries were aggravated, accelerated or exacerbated in order that temporary and medical benefits should be provided, and if so, whether the responsibility for same should be borne by petitioner’s initial employer-respondent, a subsequent employer-respondent or apportioned among the respondents.

Petitioner was initially employed as a brick mason with Excel, where his duties constituted laying brick or block.  On June 28, 2000, he was involved in a work-related accident wherein he injured his back.   Subsequently, petitioner received an award of thirty five percent (35%) of partial total for orthopedic and neurologic disabilities for his low back injury as a result, in part, of permanent residuals from a laminotomy, foraminotomy, decompression at L4-L5 and excision of central disc herniation L5-S1, right.  Following petitioner’s recovery from the surgery, he was medically released to return to his job as a brick mason.

Through his union, from May 2001 to February 7, 2002, petitioner began employment as a brick mason with Speranza.^[2]  During this entire time, petitioner was laying twelve-inch block weighing approximately 80 to 90 pounds which required two men to place.  Petitioner would lay 200 to 350 blocks a day.^[3]  At this time, petitioner claimed that he experienced pain which he alleged was similar to the pain he experienced prior to his surgery.  He testified that on a scale of 1-10, 10 being the maximum, he suffered pain in the range from 4 to 6.^[4]  Said pain would start in his back and radiate down his right leg down to the ankle.^[5]

Petitioner further testified that he was not one hundred percent (100%) and that he had good days and bad days.  Overall, he claimed his pain became worse during his employment with Speranza. Despite the increased pain, petitioner continued to work, as he testified, “cause I had to work.”^[6]  In fact, petitioner did not miss any days from Speranza and recalled that he may have put in some overtime.  According to the petitioner, he self medicated with over the counter pain relievers.  No medical treatment was sought or provided during his employment with Speranza.

Petitioner testified that he had limited movement upon arising in the morning and that his back was stiff at the end of his work day.  He occasionally placed a cold pack on his back.^[7]  Petitioner claimed, however, that he never advised Speranza of this pain.

Upon completion of the Speranza job, petitioner immediately sought work again through his union.  From February 26, 2002 through March 5, 2002, petitioner was employed as a brick mason with P&C.^[8]  Petitioner’s duties with this respondent were similar, in that he still laid brick/block. Although, petitioner claimed his work area was smaller; he described same as “like a little tight-squeeze.”^[9] According to the petitioner, his pain worsened at P&C.  Nonetheless, he continued to work despite the pain, and never missed a day from his job.  Petitioner continued to self medicate and use cold packs.   At P&C, petitioner testified that he advised his co-workers of his prior back injury.^[10]

Petitioner worked to the job’s conclusion at P&C and then, in March 2002, petitioner began employment with Hall Construction.  Petitioner testified that he, individually, laid twelve inch and eight inch blocks, weighing approximately 50 to 60 pounds and 30 pounds, respectively.^[11]  According to petitioner, his duties as a brick mason were different at Hall Construction as compared with his previous employers.   At Hall, petitioner alleged he was required reach over a wall in order to lay the block.

On April 26, 2002, petitioner stopped working due to incapacitating pain.  The following day, Saturday, petitioner claimed that he could not get out of bed, nor straighten his body, and that he was forced to crawl to the bathroom.

At Hall, petitioner alleged to have advised his foreman, Joe, that he had sustained a prior back injury.^[12] Petitioner also advised this foreman of the disabling condition which occurred on April 26, 2002 and that he intended to seek medical treatment and would, therefore, miss  work.^[13] Additionally, petitioner testified that he told his foreman that he did know how he injured his back.  To this, petitioner claimed that the foreman responded, “...go ahead and get medical help, take off all the time you need, whatever. You have a job when you come back.”^[14]

Hall Construction was petitioner’s last employer. There is no evidence of any subsequent accident or event occurring which would have had an effect on petitioner’s back.

Petitioner first sought medical treatment with Dr. Daniel Richmond, who then referred petitioner to Dr. Casey Lee.  Private medical insurance was providing coverage for said care.

Petitioner initially was treated with epidural blocks.  Dr. Casey Lee then ordered a discogram which showed intervertebral disc herniation at the L3-4, L4-5, and S-1 levels.  Petitioner underwent surgery with disc excision, a PLIF of L4 through S1, pedicle screw fixation and bilateral iliac crest bone grafting.^[15]                 

Currently, petitioner remains out of work and no medical evidence has been presented which would indicate that he is able to return to any gainful employment.  Therefore, petitioner is seeking payment of temporary disability was well as coverage for the costs of any medical treatment from April 26, 2002, his last day on the job to the present.

The pertinent provision of the Workers' Compensation statute which speaks to the provision of medical treatment requires that an “employer shall furnish to the injured worker such medical, surgical, and other treatment, and hospital service as shall be necessary to cure and relieve the worker of the effects of the injury and to restore the functions of the injured  member or organ where such restoration is possible...[the] Division of Workers' Compensation, after...giving the employer an opportunity to be heard, shall determine...[whether] such...treatment is necessary.”   N.J.S.A. 34: 15‑15.  The employer’s statutory duty to provide adequate and proper medical treatment is absolute.  Benson v. Coca Cola Co., 120 N.J. Super. 60, 66 (App. Div. 1972).

                Compensation for temporary disability must be paid by the employer when an employee is unable to work and has lost wages because of incapacity due to a compensable injury until such time as the employee is able to regularly resume work or has been as restored to the maximum physical function permitted by the permanent character of the injury.   N.J.S.A. 34:15‑38;  Harbatuk v. S & S Furniture Systems Insulation, 211 N.J. Super. 614 at 623‑628 (App. Div. 1986);  Monaco v. Albert Mound Inc., 17 N.J. Super. 425 (App. Div. 1952).

The Workers’ Compensation Act, “is remedial social legislation designed to place the costs of accidental injuries which are work-connected on 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 apply the Act’s provisions in order “to protect employees in the event of work-related injuries...” Prettyman v. State, 298 N.J. Super. 580, 591 (App. Div. 1997).  On the other hand, this responsibility to construe the Act liberally does not extend to ignoring the burden of proof which initially rests upon the petitioner.

The burden of proof  here, as in all Workers Compensation contested cases, is on the petitioner who must produce the evidence and persuade the trier of fact by a preponderance of the credible evidence of the existence of each element of the claim.  Perez v. Pantasote, Inc., 95 N.J. 105, 118 (1984).   The same evidential standard applies to the elements of the case on which respondent bears  the burden of proof.  Fiore v. Consolidated Freightways, 140 N.J. 452, 479 (1995).

As noted by the Appellate Division in Kozinsky v. Edison Products Co., in the case of  successive employments, a petitioner is required to sustain the following “significant” burden of proof in regard to each employer.  222 N.J. Super. 530, 538 (App. Div. 1998).  Emphasis added.

...the employee must first prove by demonstrable objective medical evidence a disability that  restricts the function of his body... he must establish either that he has suffered a lessening to a material degree of his working ability or that his disability otherwise is significant and not simply the result of a minor injury...

Id. (quoting Poswiatowski v. Standard Chlorine Chemical Co., 96 N.J. 321, 330 (1984)), Perez v. Pantasote, Inc., supra, at 118.  

Dr. David Weiss, a practicing and board certified orthopedist, testified on behalf of the petitioner.  Dr. Weiss examined petitioner on January 5, 2003.  At that time, the doctor took petitioner’s medical history.  The doctor also testified that he reviewed petitioner’s treatment records.

After the initial surgery, Dr. Weiss indicated that petitioner’s condition became so aggravated that he was required to undergo a spinal fusion and posterior lateral fusion for a three level disc herniation.   During cross examination, Dr. Weiss held firm and reasonably set forth his disagreement with Dr. Richman’s opinion that the petitioner’s current symptoms of sciatica were related to his prior claim.  Dr. Weiss stated, “You have to explain how he got the re-herniation. Annulus was intact. There was no penetration of the annulus and no indication to enter the disc space or look at he annulus.”^[16] He further testified that petitioner never returned to the prior baseline condition of improvement, post- initial surgery; thus, he found petitioner’s condition to be an aggravation, not an exacerbation.

In regard to an overall diagnosis, Dr. Weiss opined that petitioner suffers from “cumulative repetitive trauma.” 2T21:14.  The court’s review of Dr. Weiss’ testimony revealed that this diagnosis was primarily based on petitioner’s subjective complaints, of a progressive worsening at each successive job, coupled with information and conclusions gleaned from non-evidentiary, medical journal articles, to which the doctor only briefly referred.  Dr. Harold Fischer, a general surgeon, who has retired from active practice, testified on behalf of Hall Construction.  Though he agreed with Dr. Weiss’ diagnosis, Dr. Fischer’s opinion was similarly based upon petitioner’s history and subjective complaints.   No objective evidence was produced that petitioner’s “middle” employments with Speranza and P&C contributed materially to petitioner’s need for a second surgery.  See Kozinsky at 535-536.  Furthermore, the petitioner provided undisputed factual testimony that when he was in the employ of both Speranza and P&C, he never missed a day of work nor sought additional medical treatment.  At Speranza, petitioner even admitted to having worked overtime when it was offered in order to provide additional income for his family.  It is also undisputed that petitioner never suffered from an accident at either Speranza or P&C, nor were the duties required of him as a brick mason at those sites unusually strenuous or physically different from those at his previous job with Excel.

Both Doctors Weiss and Fischer acknowledged that petitioner’s MRI dated May 9, 2002 revealed a new lumbar disc herniation and a re-herniation along with intervertebral changes which warranted a second surgical intervention according to petitioner’s treating physicians. P3-P4.  In contrast to the sound medical evidence provided by this MRI, which was taken following petitioner’s last employment with Hall, no such objective proof exists as to specifically aggravating injuries, or additional trauma or physical insult, occurring at either Speranza or P&C.   See Kozinsky at 536-537, Peterson at 505.  As in Kozinsky, this court does “not see this as a case where a substantial contribution to disability from [certain] subsequent accidents or employments was plainly established, but where it was difficult to apportion the extent of those contributions..” Id. at 537.

This court’s review of the record revealed that no credible evidence exists of material contribution to petitioner’s need for  additional medical treatment from petitioner’s employment at either Speranza or P&C.  The court finds it reasonable to conclude that, as in cases involving compensation awards, in order for an employer to be responsible for even a portion of temporary disability payments or costs of medical treatment, proof of aggravation, exacerbation, acceleration of injury, additional trauma, or physical insult must rest upon more than conjecture or speculation. DiCostanzo v. Mathews Const. Co., 110 N.J. Super. 383, 389 (App. Div. 1970). “Absent objective medical evidence of significant increase in disability” resulting from petitioner’s employment at Speranza or P&C, the court finds that petitioner has failed to meet its burden of proof with respect to these employers.  See Kozinsky at 539-540.

Dr. Weiss was asked to opine on the causal relationship between petitioner’s need for a second surgical intervention and petitioner’s subsequent employments as a brick mason.  In reaching his opinions on this issue, Dr. Weiss relied upon his January 8, 2003 examination of petitioner, review of petitioner’s medical and treating records, which incorporated results from objective tests, and a hypothetical question which included the duration and nature of work performed by the petitioner at each of the employer-respondent job sites.  Dr. Weiss proffered several conclusions based on said information without over reliance on any of the aforesaid,  non-evidentiary journal articles.  The court notes that though it may not find a particular portion of an expert’s testimony or diagnosis to be sufficiently based upon credible evidence, this finding does not necessarily taint the reasonableness of all aspects of said expert’s testimony.

Concerning the effects of petitioner’s initial surgery, Dr. Weiss found, that as a result of petitioner’s first accident and subsequent surgery of November 2000, petitioner suffered from a “compromised back” but that same did “stabilize.” 2T18:12; 2T19:24.

With regard to petitioner’s need for a second surgery, Dr. Weiss concurred with petitioner’s treating surgeon, Dr. Lee, that the surgery proposed by same was necessary given the petitioner’s intervertebral disc herniation. 2T12:3-6.  Dr. Weiss explained, in detail, the medical basis for his opinion. See 2T12:3-14:24. In essence, he found that the objective testing performed by the petitioner’s treating doctors revealed a need to surgically stabilize the lumbar spine. Id.

Dr. Weiss also opined that petitioner’s need for a second surgery did not result from a natural progression of the initial injury with Excel. 2T21:4-23, 2T22:24-23:7, 2T37:17-38:15.  Following petitioner’s 2000 surgery, undisputed evidence revealed that petitioner was medically released to return to work as a brick mason.  Upon his return, he worked full time whenever union jobs were available. Although the petitioner alleged that he suffered from continued pain during these subsequent employments, the evidence is dispositive that he never missed work as a result of this pain, nor did he ever receive additional medical treatment, until his last employment with Hall. Therefore, Dr. Weiss’ opinion that petitioner’s condition stabilized after his accident with Excel and that his initial injury did not materially lead to petitioner’s current need for treatment and inability to work is clearly supported by petitioner’s testimony as to his working ability.

The only evidence in the record of a correlation between petitioner’s current condition and his initial employment is a four line addendum to the May 14, 2002 office note from Dr. Richman, a treating physician.  In same, the doctor notes that petitioner’s recent MRI, which revealed an L5, S1 herniation with S-1 nerve root compression was at the same level of petitioner’s prior surgery.  Dr. Richman commented that this condition, “came as result of a work-related injury.” P4. The doctor, “therefore opin[ed]” that petitioner’s “symptoms of sciatica are related to his prior workers’ comp claim.” P4.

As set forth above, in his testimony, Dr. Weiss disputed this finding by Dr. Richman. Additional objective testing and treating records also revealed that, as Dr. Weiss explained in length during his testimony, the need for petitioner’s second surgery was due to an additional herniation and  intervertebral disability, other than sciatica, which was not present during petitioner’s employment with Excel.  Moreover, it is not clear from Dr. Richman’s note, whether or not he was privy to any of the details of the duties undertaken by the petitioner at his subsequent employments.  It seems reasonable to conclude that knowledge of such details is necessary in order to substantiate a finding of causation between petitioner’s condition and his work for one employer as opposed to another. Based on the foregoing, therefore, the court does not find this brief note by Dr. Richman to be persuasive as to any determination of causal relationship in this matter.

Notably on this point, even Dr. Fischer admitted during cross examination that it was on April 27, 2002, during petitioner’s last employment with Hall, that petitioner’s current back condition was manifested. 3T17:22-18:16.

In sum, Doctors Weiss and Fischer concurred that the manifestation of petitioner’s present need for treatment is not as a result of petitioner’s initial injury which occurred during his employment with Excel.  These opinions are further supported by petitioner’s uncontradicted testimony that, after his return to his job as a brick mason, he worked without taking any sick leave until his last employment with Hall.   Accordingly, this court finds that petitioner has not met his burden of proof with respect to Excel.

The hypothetical question presented to Dr. Weiss, which was based on petitioner’s undisputed testimony, as noted above, indicated that at petitioner’s last job with Hall, he was required to engage in a physical activity different from that of the other, subsequent employers.  Petitioner was required to stretch or reach over a wall in order to lay brick/block. P5, 1T27:14-22.

In terms of casual relationship, Dr. Weiss found that the petitioner’s act of reaching and stretching at his last employment to be of critical importance.   During cross examination,  Dr. Weiss agreed that the “stretching was a culminating factor...in regard to this petitioner’s [present] condition...” 2T40:19-23.  See also 2T24:23-27, 31:3-32:5.  Dr. Weiss then elaborated on the physical significance of the additional stretching or reaching requirement at Hall.  When asked by counsel for Hall, “...how do you know just the fact that it was different [the stretching] motion, how do you know that [it] had an effect on his back?” 2T32:18-33:3. The doctor replied, “any change in the torque or loading on the back is compromis[ing]. It’s going to cause, it’s going to be a factor.” 2T33:4-6.

Dr. Weiss did comment that he could not opine as to any one employment being the “sole cause” of the development and exacerbation of petitioner’s intervertebral disc herniation. 2T20:9-18. Along with Dr. Fischer, Dr. Weiss found he could not apportion among the respondents responsibility for petitioner’s present, overall disability. 3T32:23-25.  Nonetheless, Dr. Weiss was able to conclude that petitioner’s last job with Hall was “the straw that broke the camel’s back... the last job drove him to where he was now, two-level fusion.” 2T26:1-3.  Thus, Dr. Weiss did find petitioner’s last employment with Hall to be a precipitating cause of petitioner’s  present inability to work and need for further treatment.  The court does not find Dr. Weiss’ inability to apportion overall disability among the respondents to be a bar to his determination that a single factor precipitated petitioner’s present need for surgery and inability to return to the work place.

Petitioner also clearly acknowledged the significance of the reaching required at Hall in relation to his current condition.  While petitioner did comment that “[a]ll the work effected the way [he] felt,” [1T27:16] petitioner also concluded, “I’m saying after that [the employment with Hall] happened I couldn’t do no more.” 1T27:10-19.

During cross examination, Dr. Fischer admitted as well that the stretching petitioner did at Hall could be a factor in the straw that broke the camel’s back with regard to petitioner’s present condition. 3T27:11-28:11.  In his report, Dr. Fisher initially concluded that petitioner’s employment with Hall “did not contribute to a material degree to the condition petitioner was in when Dr. Lee advised surgery.” RH-1.  During cross examination, however, the doctor acknowledged that when preparing his report, he was unaware of the stretching required of petitioner at Hall. 3T27:19-25, 3T29:6-22.  After being advised of this stretching factor during cross examination,  Dr. Fischer revised this conclusion and ultimately testified that he could not exclude Hall from material contribution to petitioner’s alleged need for surgery. 3T42:19-23.  Moreover, as noted above, Dr. Fischer agreed on cross examination that petitioner’s current back condition manifested during petitioner’s employment with Hall, on April 26, 2002, the day petitioner claimed that “he [could] do no more.” 3T17:22-18:1., Id.  Dr. Fischer also concurred that, on that day, while still in Hall’s employ, petitioner’s condition materially worsened. 3T18:2-6.

The intervention of additional trauma or physical insult during subsequent employment in a multi-respondent accident re-opener was addressed in Peterson v. Herrman Forwarding Co., 135 N.J. 304 (1994).  There, the issue before the Appellate Division involved liability for a compensation award when, following an initial accident, a petitioner returned to work at essentially at the same position, for several successive employers, prior to his symptoms manifesting in an inability to continue working.  Here, as in Peterson, there is no evidence of an additional accident or injury with the subsequent employers.

The petitioner in Peterson was a truck driver.  During his subsequent employments, he continued to work as a truck driver. Notably, the Peterson court found:

...all of [petitioner’s] subsequent jobs required physical activity including lifting, loading, and unloading of trucks. The work, however, did not appear to be any more strenuous than petitioner or others in his occupation, would otherwise routinely encounter as a truck driver.

Id. at 505.   Given these facts, the Appellate Division held, where a “subsequent employment, without intervention of additional trauma or physical insult, merely causes pain from pre-existent conditions  to be manifested ...liability should not attach to the subsequent employer even where the result is that the employee then realizes that continuous employment is not feasible.” Id. at 280-281. Emphasis added.

A canvas of the instant record reveals that petitioner, as well as both Doctors Weiss and Fischer, acknowledged that petitioner’s employment as a brick mason at Hall Construction involved an additional, different physical requirement, i.e. stretching or reaching when laying brick/block. Furthermore, both  medical experts concurred that this difference, which changed the physiological torque involved in petitioner’s job, was medically critical in precipitating the day when, as a Hall employee, petitioner, “[could] do no more” and became unable to work. 1T27:19, 2T33:4-6, 3T29:5-22, 3T30:19-31:19.  As Dr. Fischer explained, “lifting plus torque is more strenuous than just lifting alone.” 3T31:5-7.  This court finds that the above constitutes persuasive evidence that here, unlike Peterson, the reaching or stretching, or the physical alteration in torque, required of petitioner in his duties at Hall, materially intervened in the succession of his employment following his initial accident. According to Peterson, the court further finds that this intervention was in the nature of additional trauma or physical insult. This conclusion warrants finding respondent Hall Construction, the only subsequent employer for whom petitioner (1) engaged in the physically different stretching/reaching duty (2) missed work or (3) sought medical treatment, responsible for temporary disability payments from April 27, 2002, the undisputed date that petitioner was medically disabled.