CP# 02-20851 Wehmeyer v. Shop Rite Supermarkets
DEPARTMENT OF LABOR
DIVISION OF WORKERS’ COMPENSATION
ATLANTIC COUNTY, ATLANTIC COUNTY DISTRICT
SHOP RITE SUPERMARKET
NO. C.P. 2002-020851
HONORABLE COSMO A. GIOVINAZZI, III
Judge of Compensation
GOLDENBERG, MACKLER, SAYEGH, MINTZ,
PFEFFER, BONCHI & GILL, ESQ.
By: LAWRENCE A MINTZ, ESQ.
1030 Atlantic Avenue
Atlantic City, New Jersey 08401
Attorney for the Petitioner
MARHSALL, DENNEHEY, WARNER, COLEMAN &
By: KATHLEEN L. BURGHHARDT, ESQ.
200 Lake Drive East
Cherry Hill, New Jersey 08002
Attorney for the Respondent
Petitioner filed a Motion for Medical Treatment and Temporary Disability Benefits on September 11, 2002, alleging that she developed carpal tunnel syndrome of the right hand as a result of occupational exposure as a Deli or “Appy” Clerk. Petitioner’s application was supported by a medical report prepared by Dr. Stanley C. Marczyk, M.D., an Orthopedic Surgeon. Respondent filed its answer on October 2, 2002 denying the Motion, on grounds that petitioner’s duties as an Appy clerk did not cause or contribute to her carpal tunnel syndrome. Respondent relied upon the opinion of Dr. Voit, an Orthopedic Surgeon, who acknowledged that petitioner had carpal tunnel syndrome in the right hand, but denied that the condition is causally related to her work exposure. After petitioner testified on December 23, 2002, the testimony of Dr. Marczyk and Dr. Voit was taken by deposition, and the deposition transcripts were placed into evidence. Subsequently, the attorneys for each party submitted briefs outlining their respective positions.
STATEMENT OF FACTS
Petitioner began working for Shop-Rite Supermarket as an Appy Clerk on May 13, 1980. She worked full time for approximately 20 years, meaning that she worked 40 hours or more per week. In approximately the year 2000, petitioner became a part-time employee, which meant that she did not have to work 40 hours per week. After becoming a part-time Appy Clerk, petitioner worked, on average, six to eight hours per day, five or six days a week.
Respondent stipulated that petitioner had a gross weekly wage of $640 per week, giving rise to a temporary disability rate of $448 per week.
As an Appy Clerk, petitioner’s primary job was to slice lunch meat and cheeses on a slicer in the Deli Department at the Shop-Rite Supermarket where she was assigned. Over a period of 22 years, she worked at several Shop-Rite Markets. During the two years when her carpal tunnel syndrome worsened, petitioner had been employed at the Absecon Shop-Rite.
As an Appy Clerk, petitioner places lunchmeat and cheeses on an electric slicer. She then grasps the handle of the carriage with her right hand, presses the carriage down onto the lunchmeat or cheese, and pushes the product forward across the slicing blade. She then stops the carriage, pulls it back and pushes it forward again over the slicing blade. Petitioner must hold the carriage handle tightly with her right hand in order to push the weight of the carriage and the product across the slicing blade. As the product is sliced, petitioner catches the lunchmeat or cheese with her left hand. The lunchmeat or cheese can weigh up to 10 pounds, and the slicing carriage weighs at least 5 pounds.
In addition to slicing lunchmeat and cheeses for customers, she also slices the same product in order to make lunchmeat trays. She follows the same method to slice the lunchmeat and cheeses for the trays which she makes. However, after completing her slicing duties, she then folds or rolls the lunchmeat and cheese and places them on a large tray.
Petitioner spends the greater part of each shift slicing lunch meat and cheeses, either for customers or for the creation of lunchmeat trays. However, when she is not slicing product or making trays, she is cleaning the deli area and the slicing machine, and wrapping the lunchmeat and cheeses.
Petitioner first began experiencing problems with her right hand and wrist in 1998. She noted that her right hand began falling asleep during work, so that she had to stop periodically to rub or shake the hand to get the numbness out. Initially, this happened a couple of times per week. Petitioner was not aware in 1998 or 1999 that this problem was related to her work, and did not report this occasional numbness of her right hand to her employer, nor did she mention it to her doctor.
In March of 2001, petitioner was helping her husband at home, holding a flat bar against a stud with her right hand, while her husband pounded a nail into the stud. The next day, she felt pain in her right hand when she attempted to open her car door. The pain lasted for two or three days, and then subsided. Subsequently, petitioner continued feeling the same numbness in her right hand and wrist that she had felt previously while working the slicer at her place of employment. Petitioner missed no time from work as a result of the flat bar incident, and found that her hand had returned to its prior condition within a short period of time. However, in the following months, petitioner noted that the numbness and tingling in her right hand and wrist increased in frequency as she used the slicing machine at work. However, petitioner also began experiencing numbness while performing other activities at home, such as writing letters. She also began noticing that she was awakened from sleep by numbness and tingling in her right hand.
As the problem increased in intensity, petitioner consulted with her primary care physician, Dr. Ronald Gove, M.D. Dr. Gove referred petitioner to Dr. Stanley C. Marczyk, M.D., an orthopedic surgeon with Atlantic Shore Orthopedic Associates. Petitioner initially saw Dr. Marczyk on March 29, 2002. At the time of this visit, petitioner attributed the flat bar incident to the onset of the numbness and tingling of her right hand. However, after evaluating the petitioner and reviewing her history, Dr. Marczyk’s clinical diagnosis was carpal tunnel syndrome in her right hand and wrist. He did not believe that the flat bar incident caused this condition, but indicated that it was probably caused by the repetitive use of her hand and wrists at work. In any event, Dr. Marczyk concluded that petitioner’s condition had worsened as a result of her occupational duties at Shop-Rite, and suggested that petitioner advise her employer of her condition.
After clinically diagnosing carpal tunnel syndrome of the right hand, Dr. Marczyk referred petitioner to Dr. Arvind Baliga, M.D. for electro-diagnostic testing of her right hand and arm. Dr. Baliga conducted an EMG and nerve conduction study on May 17, 2002, which was abnormal, providing evidence of severe carpal tunnel syndrome without denervation in the right hand. Dr. Marczyk again saw petitioner on May 24, 2002, at which time he recommended surgical release.
After seeing Dr. Marczyk on March 29, petitioner reported her occupational injury to her employer. On June 4, 2002, she was evaluated by Dr. Gregory Voit, M.D. at the request of her employer. Dr. Voit also diagnosed carpal tunnel syndrome of the right hand. Due to the severity of her compression, Dr. Voit also recommended surgical release.
Having listened carefully to the petitioner’s testimony, and having reviewed the medical documentation presented to me by the parties, I am convinced that the petitioner testified truthfully regarding the history of her condition, as well as the nature of her job. I am further convinced that until the petitioner saw Dr. Marcyzk, she was not aware that the symptomatology which she presented was caused or aggravated by her employment. Once understanding the effect which her occupation had upon her right hand, she notified her employer in a timely manner and requested medical treatment.
ANALYSIS OF MEDICAL EVIDENCE
The sole issue in this case is whether the carpal tunnel syndrome which petitioner suffers in her right hand is causally related to her employment as an Appy Clerk at Shop-Rite Supermarket. Dr. Stanley Marcyzk, is a Board-certified Orthopedic Surgeon. He also holds a Certificate of Added Qualification in hand surgery (CAQ). At the time of his initial evaluation of the petitioner, Dr. Marczyk clinically diagnosed carpal tunnel syndrome of petitioner’s right hand, but did not believe that it was related to the flat bar incident of March 2001. Rather, after discussing petitioner’s occupation with her, Dr. Marczyk believed that petitioner’s carpal tunnel syndrome, however caused, was aggravated, accelerated or exacerbated by her occupation. Dr. Marczyk acknowledged that arthritic changes to petitioner’s thumb and wrist are commonly associated with carpal tunnel, although not normally the cause of this condition. Dr. Marczyk noted that an individual with risk factors, such as arthritis or diabetes is at greater risk for the development of carpal tunnel syndrome. However, he noted that in such individuals, carpal tunnel syndrome normally develops bilaterally. This is also the case where carpal tunnel is idiopathic.
Dr. Marczyk concluded, based upon a reasonable degree of medical certainty, that petitioner’s carpal tunnel syndrome is aggravated by her occupation because it is made worse by such activity. He felt that given the repetitive nature of petitioner’s work as a Deli Clerk, her symptoms had become worse.
Dr. Marczyk felt that the medical literature supports the thesis that certain occupations tend to a higher incidence of carpal tunnel syndrome. He noted that this usually occurs in patients who perform repetitive work activity with their hands. He explained that with repetitive activity, the nine tendons which go through the carpal tunnel tend to get larger, become inflamed and take up more space in the carpal tunnel. This presses against the median nerve which is also in the carpal tunnel, causing the syndrome. He explained that this occurs due to repetitive wrist flexion, meaning pulling the fingers down toward the forearm, or hyperextension. Dr. Marcyzk opined that the manner in which petitioner grasps the handle of the carrier on the slicer in performing her job is consistent with the studies which find a connection between repetitive flexion of the fingers and extension of the wrists and the development of carpal tunnel syndrome. He concluded that the petitioner’s activity of operating a slicer causes her hand to be in these positions on a daily basis.
While Dr. Marczyk was not sure of the underlying cause of petitioner’s carpal tunnel syndrome, he concluded, based upon a reasonable degree of medical probability, that petitioner’s job duties aggravated her symptoms, thereby making her a candidate for surgical release.
Dr. Gregory Voit, M.D., who evaluated the petitioner on behalf of the respondent, is also a Board-certified Orthopedic Surgeon. Although eligible, Dr. Voit has not yet acquired his CAQ. Dr. Voit also diagnosed petitioner with carpal tunnel syndrome in her right hand, and recommended surgery. However, he was of the opinion that petitioner’s need for treatment is not causally related to her occupation as an Appy Clerk at Shop-Rite Supermarket. Dr. Voit felt that the main risk factors for carpal tunnel syndrome are diabetes, hypothyroidism and vitamin deficiency, but concluded that petitioner had not been diagnosed with any of these conditions.
Dr. Voit was of the opinion that most carpal tunnel syndrome was idiopathic, and he was unable to explain how petitioner’s carpal tunnel syndrome developed. As he explained it, carpal tunnel syndrome just happens for reasons which no one fully understands, and no one has been able to demonstrate exactly how it develops.
Dr. Voit understood that petitioner spent most of each shift slicing lunchmeat or cheeses in which her right hand was wrapped around the handle of the carriage which she then pressed against the product as it moved back and forth over the slicing blade. However, he concluded that there was no relationship between this activity and petitioner’s carpal tunnel syndrome. He explained that he came to this opinion because there are no reliable studies which support such a conclusion, noting that he was not aware of any specific study which was conducted to determine whether the duties of a deli clerk, or “deli slicing” caused or aggravated carpal tunnel syndrome.
Dr. Voit did acknowledge that repetitive motion can aggravate carpal tunnel syndrome, and pointed to two studies, poultry de-boning and the operation of an air-hammer, which clinically proved that those two activities could aggravate the symptoms of carpal tunnel syndrome. Dr. Voit further acknowledged that numerous studies have been performed which come to the conclusion that repetitive motion does cause or aggravate carpal tunnel syndrome. He also acknowledged that those studies were done to the satisfaction of the doctors who participated in the studies, and were accepted by other doctors. He noted that there is somewhat of a dispute over which studies are accepted and which are not, from physician to physician. He acknowledged that some physicians will rely on one study and some will use different studies. He was of the opinion, however, that many of the studies which show a causal connection between repetitive motion and carpal tunnel syndrome were scientifically flawed, and this made their conclusion less reliable. In effect, such studies were not performed to his satisfaction, even though many repetitive motion studies were done under methods and standards satisfactory to the doctors who participated in the studies. His rationale for not accepting many of the studies which had been performed by other doctors was that such studies did not conclusively demonstrate a causal relationship between the activity which was being tested and any progression or worsening of carpal tunnel symptoms.
Dr. Voit further acknowledged that, based upon the facts of the flat bar incident, he did not believe that the flat bar incident was the causative factor in petitioner’s carpal tunnel syndrome.
The primary issue in this Motion for Medical Treatment and Temporary Disability Benefits is whether petitioner’s need for medical treatment is causally related to her occupation as a Deli Clerk. N.J.S.A. 34:15-15, dealing with medical treatment, provides in pertinent part as follows:
“The employer shall furnish to the injured worker such medical, surgical and other treatment . . . 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 investigating the need of the same and giving the employer an opportunity to be heard, shall determine that such physicians’ and surgeons’ treatment and hospital services are or were necessary, and that the fees for the same are reasonable and shall make an Order requiring the employer to pay for or furnish the same . . . .”
“If the employer shall refuse or neglect to comply with the foregoing provisions of this section, the employee may secure such treatment and services as may be necessary and as may come within the terms of this section, and the employer shall be liable to pay therefore; . . . .”
The employer’s statutory duty to provide adequate and proper medical treatment is absolute. Benson v. Coca Cola Company, 120 N.J. Super. 60, 66 (App. Div. 1972). The burden of proof in contested cases within the Division of Workers’ Compensation 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 vs. Pantasote, Inc., 95 N.J. 105, 118 (1984). The same evidential standard applies to the elements of the case on which respondent has the burden of proof. Fiore vs. Consolidated Freightways, 140 N.J. 452, 479 (1995). Where there is a question of causal relationship between a diagnosed condition and an occupational injury, the petitioner has the burden to prove this causal relationship 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 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 true. It need not have the attribute of certainty, but it must be founded in reason and logic; mere guesswork or conjecture is not a substitute for legal proof.” Laffey vs. City of Jersey City, 289 N.J. Super. 292, 303 (App. Div. 1996).
In the recent case of Lindquist vs. City of Jersey City Fire Department, 175 N.J. 244 (2003) our Supreme Court considered the evidential standard to be applied in occupational disease cases pursuant to N.J.S.A. 34:15-31. As interpreted by the court, section 31(a) defines “compensable occupational diseases as those diseases established by a preponderance of the credible evidence to have arisen ‘out of and in the course of employment,’ which are due in a material degree to causes and conditions which are or were characteristic of or peculiar to a particular trade, occupation, process or place of employment. (Cite omitted). Material degree means ‘a degree (substantially) greater than de minimis. Dwyer vs. Ford Motor Company, 36 N.J. 487, 493-94, 178 A. 2d 161 (1962).”
In Lindquist, the court reiterated the social policy of liberally construing the Workers’ Compensation Act which is designed to implement the legislative policy of affording coverage to as many workers as possible. The court noted that “the same doctrine is applicable whether the claim involves an accidental injury or an occupational disease, or whether the focus is on a well-established or a modern health condition. But the bargain and the occupational disease statutory history contemplate that what constitutes a compensable occupational disease will be affected by many social and industrial factors and vary across time. At the very heart of the “original bargain . . .(is the notion that the burden of proof on claimants) would be easier . . . under Workers’ Compensation laws than under common law.” (Citations omitted). In discussing social policy and the trade-off by which employees relinquish rights to pursue common law remedies in exchange for automatic entitlement to certain, but reduced benefits, the court stated: “Consequently, when the Division of Workers’ Compensation and appellate courts are called upon to decide whether a particular occupational disease is causally related to a particular employment, they should utilize the original bargain rationale for workers’ compensation and ergonomics to assist with the determination. Ergonomics refers to the applied science for the workplace that is broadly defined as ‘the science relating to man and his work.’ (Citation omitted). Ergonomics and other applicable principles should be the lens through which the determination of whether (a particular disease) is related to (occupational exposure) should be viewed.”
It is sufficient to prove that an exposure in the workplace was a contributing cause of injury. That means proof that the work-related activity probably caused or contributed to an employee’s disabling injury as a matter of medical fact. “Direct causation is not required; proof establishing that the exposure caused the activation, acceleration or exacerbation of disabling symptoms is sufficient.” Lindquist, supra.
In considering the standard to be applied in an occupational disease case, the court cited with approval the less restrictive standard developed by the court in Rubanick vs. Witco Chemical Corp., 125 N.J. 421 (1991), for the admissibility of scientific evidence. The court concluded that the Rubanick standard governing the admissibility and reliability of medical causation evidence should be applied in Workers’ Compensation cases.
In Rubanick, supra. the Supreme Court held that in toxic tort litigation, a scientific theory of causation that has not yet reached general acceptance may be found to be sufficiently reliable if it is based on a sound, adequately founded scientific methodology involving data and information of the type reasonably relied on by experts in the scientific field. In discussing its holding, the court stated “In determining if the scientific methodology is sound and well-founded, courts should consider whether others in the field use similar methodologies. ‘What is necessary is that the expert arrived at his causation theory by relying upon methods that other experts in his field would reasonably rely upon in forming their own, possibly different opinions, about what caused the patient’s disease .’ (citations omitted) . . . . As reflected in our own rule, Evid. R. 56 (2), it is not essential that there be general agreement with the opinions drawn from the methodology used. There must merely be some expert consensus that the methodology and the underlying data are generally followed by experts in the field. . . .” Rubanick, supra. at 450.
In discussing the standard to be applied in occupational disease cases, the Lindquist court discussed the extraordinary and unique burdens facing plaintiffs who seek to prove causation and the “extremely high level of proof required before scientists will accept a new theory.” The court concluded that, for an expert’s opinion to be admissible, “the expert must possess a demonstrated professional capability to assess the scientific significance of underlying data and information, to apply the scientific methodology, and to explain the basis for the opinion reached.” Linquist, supra, at 35.
In explaining its rationale for allowing a lesser standard in occupational disease cases, the Lindquist court stated “However, courts must not penalize workers suffering from diseases for which science has not yet clearly established causation. As this court stated in the toxic tort context, there are areas in which the judicial need for certain facts equals or exceeds the scientific community’s ability to establish them. Many cases present issues with respect to which courts have been forced intuitively to make assumptions on the basis of available knowledge . . . . Rubanick, supra., 125 N.J. at 437 . . . When the possibility of causal connection is accepted, we cannot deny relief in all cases simply because science is unable decisively to dissipate the blur between possibility and probability. . .”
Applying the principles of Lindquist, supra. to the instant case, I conclude that the petitioner’s carpal tunnel syndrome of her right hand is due in a material degree, to her occupation as an Appy or Deli Clerk. In arriving at this conclusion, I rely upon the opinion of Dr. Marczyk, who evaluated the petitioner upon the referral of her primary care doctor and concluded that she has carpal tunnel syndrome which is causally related to her employment. While Dr. Marczyk could not definitively state what caused petitioner’s initial symptoms, he concluded, based upon a reasonable degree of medical probability, that the repetitive nature of her work as a Deli Clerk made her symptoms worse. He relied upon studies which concluded that certain occupations lend to a higher incidence of carpal tunnel syndrome, identifying such occupations as those which involve repetitive activity. He concluded that the manner in which petitioner flexed her right wrist in operating the slicing machine was consistent with those studies which showed that repetitive flexion and extension of the wrist led to an increased incidence of carpal tunnel syndrome.
I reject the opinion of Dr. Gregory Voit, who is of the opinion that petitioner’s carpal tunnel syndrome was not caused or aggravated by her employment. Dr. Voit’s opinion was based upon the fact that only two occupations were conclusively shown to contribute to carpal tunnel syndrome, chicken de-boners and air-hammer operators. Since no other studies proved scientifically, to his satisfaction, that other occupations could cause or aggravate carpal tunnel syndrome, he concluded that the petitioner’s symptoms were unrelated to her employment. His refusal to acknowledge causal relationship between petitioner’s occupation and her condition was based upon the inability of science to conclusively demonstrate causal relationship between her activity and progression or worsening of her symptoms. My decision in this regard is based upon the standard articulated by Lindquist, supra. since it is clear that the standard applied by Dr. Voit is a standard of conclusive scientific evidence, rather than one based upon a reasonable degree of medical probability. I further conclude that Dr. Marczyk possesses the professional capability to assess the scientific significance of other studies, accepted by others in the scientific community, and to explain the basis for his opinion in a rational way.
There is a also a second reason for my rejection of Dr. Voit’s opinion, which lies in the “hired gun phenomenon” discussed by the Supreme Court in Rubanick, supra. Dr. Voit testified in another case which was tried before me in 2002 which involved the same respondent, the same insurance carrier and the same respondent’s attorney. The petitioner in that case was a seafood clerk who developed bilateral carpal tunnel syndrome. She was seen by Dr. Voit on May 21, 2002, about two weeks prior to his evaluation of the petitioner in the instant case. Dr. Voit concluded in that case that petitioner’s bilateral carpal tunnel syndrome was causally related to her occupational duties as a seafood dlerk, a position which she held for approximately one and one-half years. That report, however, was not produced in response to petitioner’s Motion for Medical Treatment and Temporary Disability Benefits. Rather, an addendum to that report, dated June 14, 2002 was utilized in defense of the Motion. In the addendum, Dr. Voit concluded that petitioner’s repetitive use of her hands was not causally related to her occupational duties based upon his review of her job description, since her job description revealed no task requiring constant repetitive use of her hands in ice, and did not reveal constant and repetitive use of her hands in her work activity.
Some time between his evaluation of that petitioner and his deposition in that case in October of 2002, Dr. Voit apparently had an epiphany. He revealed during that deposition that there were only two scientifically valid studies which showed a causal relationship between occupational duties and carpal tunnel syndrome. Those studies dealt with the occupations of chicken de-boning and jack-hammer operators. Notwithstanding his earlier opinion as expressed in his report of May 21, 2002, (which did not come to light until his deposition) he opined in his deposition that the lack of valid studies led him to conclude that repetitive work activity did not cause or aggravate carpal tunnel syndrome.
Seeing such a drastic change of opinion by the same doctor in such a short period of time leads me to question the reliability and credibility of Dr. Voit’s opinion in the instant case.
For the reasons above stated, I conclude that the petitioner has proven, by a preponderance of the probabilities, that the carpal tunnel syndrome in her right hand has been aggravated, accelerated or exacerbated by her occupation as a Deli Clerk for the respondent. I, therefore, direct the respondent to provide medical treatment to the petitioner through Dr. Stanley Marczyk, M.D. I further direct the respondent to pay temporary disability benefits to the petitioner at the stipulated rate of $448 per week during the period of time that petitioner receives active medical treatment from Dr. Marczyk until she has reached maximum medical improvement. Additionally, should Dr. Marczyk determine that petitioner has been unable to work for a period of time prior to the surgical release which he is to perform, then respondent shall pay temporary disability benefits for such retroactive period as determined by Dr. Marcyzk. Petitioner, however, was clearly working on December 23, 2002, the date when she testified before me, and there was no indication at that time that she would stop working in the very near future.
I also direct respondent to pay a stenographic fee to State Shorthand Reporting Service in the amount of $150 and to reimburse petitioner’s attorney for Dr. Marcyzk’s deposition, up to $2,500, together with the cost of the deposition transcript.
Attorney’s fees shall abide further court order. I direct petitioner’s attorney to prepare an Order consistent with this decision.
Cosmo A. Giovinazzi, III
Judge of Compensation
September , 2003