Before: 

Elaine B. Goldsmith
Judge of Compensation

Appearances: 

Levinson Axelrod, Esquires
By:       Michael Mizen, Esquire
            Richard Marcolus, Esquire

Attorneys for Petitioner

Robert Gunn, Esquire
Attorney for Respondent

            Petitioner brings this matter before the court on three Motions for Medical Treatment and Temporary Disability Benefits. The first  motion  requested reimbursement to petitioner for payment of numerous prescriptions and payment of  future prescriptions, payment to authorized treating doctors of approximately $800, membership to a health club prescribed for exercise subsequent to his cervical laminectomy, and the installation of a Jacuzzi in his home.  Respondent’s  (“C B I”) counsel  informed the court that he had instructed his client to pay the presently known pharmaceutical and doctor bills in full.  As to the issue of future prescriptions, he had given that request to the case manager for review and consideration. Respondent objected to the petitioner having unlimited access to a health club without supervised care but had no problem with authorizing physical therapy with an authorized physical therapist to ensure the correctness of any  exercises. This objection was based upon petitioner’s previous experience of tearing his surgically repaired left rotator cuff during physical therapy while under supervised care. Respondent also objected to the request for the Jacuzzi.  It is my understanding that during the proceedings the requests for the health club and Jacuzzi have both been withdrawn by petitioner. 

            In the second motion, petitioner requested temporary disability benefits at the rate of $460 per week  from December 10,1994 , the date of the accident through September 21, 1998, the date of Dr. Gallick’s examination, exclusive of February 15, 1995 through August 18, 1995 already paid by respondent. There was some confusion about a $13,000 check in payment for the period August 18, 1995 through March 8, 1996. On the witness stand petitioner admitted that he probably received the check, so I consider the matter of  the check resolved. Parties have agreed that the issue of temporary disability will be put aside pending the determination on three issues of treatment.

            The third motion was filed during the hearing of the first two motions. This one requested treatment for his right shoulder, lower back and two knees which petitioner claimed were causally related to the accident.

            The issues for determination are whether petitioner’s both knee problems are causally related to his accident; whether surgery is the proper course of treatment for the pain in his lower back with radiculopathy down his left leg; whether the torn right rotator cuff is causally related to the petitioner’s accident.  If it is found that any one or more of the physical problems are related to the accident, it would be respondent’s responsibility to provide medical treatment.

            On October 12, 1994 working in New Jersey for respondent, petitioner fell approximately  seven feet through a hole in the floor of a tower, injuring his left shoulder, left elbow, neck and lower back. Taken to the emergency room of Underwood Memorial Hospital his wounds were dressed, arm placed in a sling and he was told not to work for the next two weeks and then return to the hospital. He was paid until November 6, 1994 and then laid off. Returning to his home in Texas, he worked a week  for Cimko until December 10 doing what he described as “babysitting a part of the plant that was down for work”.

            Mr. Young insists that respondent authorized treatment with Dr. O’Neill, his personal physician because when he went for the visit on December 10,1994, the doctor told him he was authorized to treat only his left elbow and left shoulder. After diagnosing a torn left rotator cuff, Dr. O’Neill ordered three weeks of physical therapy and an arthrogram performed in January 1995. Petitioner received a letter from Crawford & Company stopping treatment with Dr. O’Neill, directing him to see Dr. Gartsman on February 15, 1995. Up to that point Mr. Young was not receiving any temporary disability benefits.  After examination, Dr. Gartsman agreed with Dr. O’Neill that petitioner had a left shoulder torn rotator cuff but wanted to check with a neck and back specialist before surgery. From May to August petitioner continued seeing authorized physicians Dr. Williamson for his neck and back and Dr. Crouch for his elbow. In July 1995, there was an MRI of the cervical and lumbar spine. Surgery on the left shoulder was performed and physical therapy was granted from May 1995 through May 1996. During the physical therapy session petitioner claims that he re-tore the left rotator cuff. Petitioner also claims that his right shoulder started bothering him during this period. Interest was primarily focused on the left shoulder, and  Dr. Gartsman’s  request for permission to take another MRI of the left shoulder was denied. By an order of the Court, petitioner came  to New Jersey for an examination. with respondent’s examining orthopedic expert,  Dr. Gallick, Board Certified in Orthopedic Surgery, on October 4, 1995. The doctor recommended two more months of therapy , recommending an independent evaluation to determine whether surgery was needed. Preparing for the second surgery to the left shoulder, petitioner was informed that cervical surgery was necessary before the shoulder operation should be done. After considerable discussion, the neck surgery was authorized and  performed by Dr. Williamson.  After recovery from this operation,  the second left shoulder surgery was performed by Dr.Gartsman.

            Now petitioner is seeking surgery to his right shoulder for a turn rotator cuff. Dr. Lessing, Board Certified in Orthopedic Surgery, petitioner’s orthopedic expert, testified that the  examination of March 23, 2001 revealed a  clicking sensation upon rotating the right shoulder, pain at the endpoints of forward flexion, pain and weakness of abduction against resistance, only slight loss of internal motion and normal external rotation. The neurovascular status of the right hand was intact. Deep tendon reflexes showed signs of some weakness but were symmetric at the biceps and triceps. Dr. Lessing attributed this to “transfer lesions”, due to the prolonged period that the left shoulder was dysfunctional, requiring the substitution of the right shoulder to perform all the activities that the left one would have previously performed, resulting in overuse and the torn right rotator cuff.  Recognizing that “the symptoms became manifest during the period of physical therapy for the left, this is merely coincidental.” The doctor steadfastly maintained that the problem arose from the overuse. He explained “transfer lesion” occurs when load and stress from one part of the body is shifted to another, and is a “very flexible term”.  This results in increased wear and tear, deterioration, pain and loss of function. When asked about his experience with his own patients, he admitted that after rotator cuff surgery, only about 20% returned with complaints on the other shoulder for which he usually administers a cortisone shot. Admitting that very few had torn rotator cuffs and that it was not a common thing, he continued, “...the fact that contra lateral tears are rare to me doesn’t mean it can’t be a transfer lesion that caused it.”  Another reason given by Dr. Lessing for the right shoulder rotator cuff tear, was the fact that petitioner was having so many problems with his knees, and  because he was unable to use his left shoulder and arm, he was using his right arm to hold on to walls, and lift and lower his body when necessary.  I note that in his report, the doctor states that “the neurovascular status of the right hand was intact” indicating that he carefully examined the right hand and found no other abnormalities or he would have so noted in his report. Lastly, I note that in his written report Dr. Lessing states in his reported  diagnosis after examination he states, “Right shoulder tendonopathy, possible rotator cuff tear”, recommending an MRI  to further evaluate the status of the tear, the results of which could be surgery or additional physical therapy.  However, during his testimony, he appeared more sure that petitioner had a full thickness rotator cuff tear and needed surgery. 

             Reviewing the Texas Orthopedic Physical Therapy notes, I find that although the therapy commenced in April 1995, there are no right shoulder complaints until February 1996. The first record mentions popping sounds and pain, continuing, “Pt again cautioned against overactivity leading to exacerbation of CS/BLE symptoms. PT has been repeatedly warned against overloading B shoulders if symptomatic but expressed concern about ‘losing what I have; ie, muscle strength’.” Dr. Gallick’s May 4, 1995 report shows an extensive and thorough consideration of petitioner’s left shoulder, his back , his left elbow. Neither in the section on complaints nor on examination is there any mention nor any findings related to the right shoulder. Additionally, as to the treating doctors in Texas, in 1997, two and a half year after Dr. Gartsman commenced treatment of petitioner’s left shoulder, the first mention of right shoulder pain can be found in his records.

            In his testimony, Dr. Gallick explained that transfer lesions usually take place in the lower extremities when one leg or knee is disabled and the individual, in order to avoid the pain in the disabled leg shifts the body weight to the healthy leg. The prolonged shifting of some, if not the entire body weight, may result in injury to the previously healthy knee or other parts of the leg.  A shoulder injury is different. The upper extremities are not weight bearing. If, in order to push away from  leaning against the wall, or raise or lower his body to or from a seated position, and the individual uses his arm, he is more likely to put pressure on the hand, wrist or elbow rather than the shoulder. There is no evidence or testimony from either side that Mr. Young has complained about his right hand, wrist or elbow.  As stated above, during his own examination, Dr. Lessing , after carefully examining petitioner’s right wrist indicated neither pain nor abnormality, nor was there any mention of pain in the right  hand or elbow.

            After listening to the testimony of the petitioner and taking all of this evidence into consideration, I find that petitioner did not injure the right shoulder upon impact nor did he ever allege this occurring. Several months later he begins to complain but the physical therapy records indicate that they warned him about overdoing the exercises. Although he mentions the problem to his physical therapist almost a year after treatment starts, he fails to complain about his right shoulder pain to his treating doctor, the one who is treating the left shoulder,  until more than two years after the accident. Additionally, I find Dr. Gallick’s explanation more reasonable concerning the expected areas of disability on an individual’s extremity where there is a possibility of “transfer lesion”.  There are no medical or other records of  Mr. Young complaining of any pain in his right hand, wrist or elbow. I find  Dr. Lessing’s suggestions unreasonable that the occurrence of  the right shoulder pain was coincidental with the physical therapy, that although occurring only a few months after the accident, was caused by such an overuse of the right shoulder that it has now  become a full thickness rotator cuff tear.  On October 21, 1999, Dr. Jaffee, an examining doctor,  diagnosed the right shoulder as having a rotator cuff strain with minimal, if any, impingement but without instability. Dr. Jaffee found the right shoulder difficult to relate to the left shoulder. He could not explain what happened during therapy but would not consider it an overuse syndrome. There is no question that the right shoulder was not injured in 1994 as a direct result of the accident.   The weight of evidence shows that any disability that occurred happened after the 1994 accident. For the reasons stated above, I find that petitioner has failed to show a direct or indirect causal relationship between any disability he may have in his right shoulder  rotator cuff, the 1994 accident, or the injury to his left shoulder rotator cuff for which the respondent should be medically responsible. I find that respondent is not responsible for providing any further medical care or treatment to petitioner’s right shoulder rotator cuff. 

            Petitioner claims that as a result of pain radiating from his back, numerous times  his left leg has gone numb and collapsed, causing him to twist his right knee in the fall. The evidence shows that petitioner has had a long history of medical problems with his right knee. During his high school years petitioner had been very active in sports. In 1978 he suffered several injuries to his right knee and was told that he had a torn medial meniscus, torn medial ligaments and subluxing patella. He underwent a medial meniscectomy, reconstruction of his medial ligaments and proximal extensor mechanism reconstruction. Returning to  the football field he re-injured the knee. Referred for  treatment to Dr. Bosell, petitioner complained of the knee frequently giving way, instability in just walking, especially on uneven ground. There was mild swelling related to the give-way episodes.  After an extensive exercise program, a second surgery was performed and then further exercise.  The procedures performed on the right knee were ligamentous reconstruction for anterolateral rotatory instability, partial synovectomy for suprapatellar plica, lateral meniscectomy, chondroplasty patella and intercondylar groove and proximal extensor mechanism reconstruction. The anterior cruciate was completely gone. Once again Mr. Young entered into a strenuous athletic exercise to strengthen the knee.  In 1978 he was informed by Dr. Bosell that he would  eventually need a total knee replacement.

             June 17, 1997, Mr.Young returned to Dr. Bosell complaining that two to three months before, due to pain from L5 radiculopathy,  his left leg had given way causing him to fall, thereby  twisting his right knee that was now causing him pain.  In Dr. Bosell’s opinion, “Since the first injury, his knee has never recovered”.  Examination of the left knee revealed no instability, but in the right knee he found mild swelling, pain on movement, and palpable osteophytes over the medial femoral condyle. X-ray examination of the right knee revealed three compartment degenerative joint disease. A February 8, 1999 MRI report stated (1) extensive tricompartment grade111 and grade 1V   chondromalacia with prominent marginal osteophytes, most prominent in the lateral compartment (2) osteochrondral fragments within the posterolateral recess as well as the lateral suprapatellar bursa (3) macerated diminutive appearance of the medial and lateral menisci and (4) nonvisualization of the anterior cruciate ligament, probably due to chronic tear. All of this information is incorporated into a April 27, 1999 report from Dr. Bosell, who recommended arthroscopy to “debride the joint, clean up the knee and buy him some time”.   In 1998 petitioner went to Dr. Friedman for an orthopedic evaluation but the report contains neither complaints given by petitioner nor results of any examination of the knees by the doctor. When respondent’s Dr. Gallick examined Mr. Young on October 4, 1995, the report indicates that  petitioner was complaining of pain radiating into the left lower extremity, but never mentioned numbness causing collapse. There was no finding of any neurological compromise, no weakness, numbness, all reflexes normal.  On re-examination in September 1999, Dr. Gallick reported no change in findings.

             MRI for the back taken at Texas Orthopedic Hospital on July 7, 1995 shows disc degeneration at L4-5, L5-S1, spondyltheses and spondyloses at several levels. No other nerve root shows impingement except  for compression of the left L5 nerve root due to  disc herniation into the left neural foramen with disc bulging on the right. Dr. Lessing agreed  that damage to the nerve emanating from L5 would result in numbness or pain in the big toe only.  Here, petitioner is complaining that on several occasions his entire leg went numb and  collapsed. Dr. Gallick explained that a leg will collapse when there is weakness, loss of strength or nerve damage to the quadriceps, the muscle in the front of the thigh. The nerve for the front of the thigh area would be related to L3 or L4 and there is no indication of any nerve root involvement at those levels on the MRI.  Dr. Lessing agreed that there was arthritis throughout the entire right knee and diagnosed medial meniscal tears for both knees, causally related to the 1994 fall.  All other findings being normal, the doctor based his diagnosis for the left knee solely on a finding of focal medial joint line tenderness, recommending an MRI of both knees to further evaluate the status of the menisci. In his opinion, this would  ultimately leading to arthroscopic surgeries on both knees. Petitioner admitted that he never told Dr. Lessing about the February 1999 MRI of his right knee. If the doctor had had access to the MRI he would have realized that petitioner was in need of far more than a simple repair of the medial meniscus. Beginning in 1995 there are recorded complaints from petitioner regarding the pain from his back radiating down into his left leg.  Examination by Drs. Williamson, Garrlick and  even petitioner’s own treating doctor, Dr. Bosell, in whom he has such faith, failed to find anything wrong with petitioner’s left knee in 1995, 1996, 1997 or later. No neurological abnormalities or atrophy that would cause the left leg to collapse, as claimed. After reviewing all of this information, I conclude that petitioner has a badly degenerated right knee that is in need of care. After many years of walking around on that disabled knee, engaging in the many athletic activities enjoyed by Mr. Young, and in consideration of the heavy work he performed in his job as boilermaker, the right knee has come to a point that, with some careful surgery, as outlined by Dr. Bosell, it might be possible to stave off replacement for a few more years. In 1979 petitioner was warned that the knee would reach this stage sometime in the future and he should not be surprised that the time has come. However, the disability in this knee is a direct result not of the 1994 accident but the passage of time since 1979 when petitioner injured his right knee numerous times and underwent two surgeries.   As to the left knee, I find it interesting that after careful examination, Dr. Bosell finds no instability and makes no recommendations as to any other findings in that knee. I also take into consideration the fact that it was not until almost 4 years after the 1994 accident, that petitioner started having problems with his knees and contacts the orthopedic doctor who previously treated him. Petitioner also admitted that in April 2001, during Dr. Gallick’s examination he did not tell the doctor about his problems with his knees. “I didn’t tell Dr. Gallick about the knee problems because I knew the appointment never lasted more than three to five minutes, like going through a revolving door.”  Dr. Gallick explained that although petitioner claimed that his left leg gave out as a result of sciatic pain, the sciatic nerve does not affect your quadriceps muscle which comes from  the femoral nerve and would not cause collapse or giving way of the leg.   I find it difficult to understand what has caused petitioner’s left knee to buckle as he has previously not shown any signs of weakness in the left knee and his claim of numbness in the entire leg is not anatomically possible. For that to happen, I would expect to the MRI to show numerous  herniated discs at various levels with obvious compression of the numerous nerve roots, something that neither one of the  MRI’s show. I am not here denying that he may have radiculopathy from the L5 nerve root compression, but petitioner’s complaints do not coincide with the objective medical facts. I find it difficult to believe  that radicular pain would make an entire leg  go numb, causing him to fall to the ground, unable to raise himself for about 30 seconds in order to “let the pressure release”, as the petitioner testified on the witness stand.  I find that petitioner has failed to show by a preponderance of the evidence  that any disabilities he may suffer in relationship to his right and left knees are causally related to his 1994 accident rather than related to his injuries and surgeries from 1979.  I find that respondent is not responsible for any medical treatment related to petitioner’s right and left knees.

            The final request for medical treatment relates to petitioner’s low back. When Mr. Young fell through the floor in 1994 he landed on his back and has complained of lower back pain ever since. An MRI of the lumbar spine taken at the Texas Orthopedic Hospital in July 1997 showed disc degeneration with a broad based posterior disc bulging at the L4-5 level which did not impinge upon the ventral thecal sac. At the L5-S1 level there was disc degeneration with a GradeI spondylolisthesis and probable bilateral spondylosis defects. There was a disc herniation to the left neoroforamen with disc bulging on the right and compression of the L5 nerve root in the foramen.  Mr. Young does complain of left leg radiculopathy but no pain radiating down the right leg. Petitioner has not challenged Dr. Galllick’s 1995 examination of him in which he found “absolutely no evidence of neurological deficit”, straight leg raising to be negative and no evidence of muscular atrophy of the left leg. In the doctor’s experience, if there were significant disc herniations in the back, there would have to be either loss of sensation, the equivalent of numbness, loss of reflex or loss of muscular or motor components and a positive straight leg raising. The development of spondylolisthesis is not something that takes place overnight as it is a congenital or degenerative problem, usually not the result of an acute injury. It takes considerable time to develop this condition and on that basis, the doctor opined that the condition pre-existed the accident in 1994. Dr. Gallick’s opinion was that without evidence of neurological compromise or compression of the nerves, an operation would not benefit him. This is the standard criteria generally accepted as the standard in the medical community. He strongly recommended an EMG nerve conduction study to determine if there was neurological compromise and if so from which area of the spine.   During his examination, Dr. Lessing also noted that the straight leg raising test was negative bilaterally. Finding petitioner walked with normal heel and toe components, he noted the restricted range of motion for the lumbar spine was minimal.  Dr. Lessing agrees with Dr. Gallick that the disc degeneration and  spondylolesthesis most likely pre-existed the accident, but Dr. Lessing opines that the conditions  were aggravated by the accident. Pre-existing conditions go more to the setting the value of the disability unless there is an  issue of medical treatment necessitated by an aggravation of a previously quiescent condition.  Aggravation of disc degeneration and spondylolesthesis are not necessarily improved by surgery. In fact, Dr. Lessing does not recommend surgery but conservative treatment by Neurontin and TENS as well as epidural steroid injections. Failing this treatment he suggests that petitioner “would be a candidate for back surgery and decompression of the L5 nerve root ...”. An L5-S1 disc herniation with nerve impingement would result in the loss of motor control to lift up the big toe, the nerve impingement from L4-L5 would effect the capacity to lift the ankle. In 1996, even  Dr. Williamson found normal motor strength in the left leg, reflexes normal, the toes down-going and no clonus.  Dr. Williamson insisted on performing a discogram, and refused to order an EMG or nerve conduction study. I also note that Dr. Williamson has discussed surgery with the petitioner and the doctor’s understanding of the possible consequences of such a procedure are very different from the expectations of Mr. Young. That is the reason why the doctor wants to send Mr. Young to a S.T.E.P. program for a better understanding of the consequences.  The doctors all report petitioner’s complaints of  radicular pain, but the issue is the cause of this pain. The two MRI’s do not differ that much that it is necessary to perform another test that will do little more than duplicate these findings. Studies have shown that discograms and MRI’s are fairly equally reliable. The weight of the evidence points to the conclusion that the  solution to this problem lies in the  neurological rather than orthopedic area.  Therefore, I find that petitioner’s complaints of suffering from a problem of unknown origin, most probably neurological in nature, may be causally related to his accident in 1994.  He should be sent to respondent’s choice of a  neurologist for an examination and the conduct of an EMG and a  nerve conduction velocity study to ascertain whether there is a problem, and  if so, the locus of the problem and possible future treatment. Pending the completion of  these tests, the situs of the pain ascertained and  treatment determined,  I recommend delay of any lower back surgery at this time.

            All fees and awards will be delayed until a final determination is reached on the issue of diagnosis and treatment for petitioner’s lower back pain.

            Respondent will be responsible for payment of $1,650 to J.F. Trainor for a stenographic fee.

Date:                                                                                        --------------------------------------

                                                                                                Elaine B. Goldsmith, JWC