Cross-Respondent, v. ADAMAR OF NEW JERSEY INC (2011)

On January 22, 1993, petitioner, Manuel Lambour, sustained an injury to his right shoulder while working for Rhône-Poulenc.   On November 14, 1996, following trial, he received a judgment of 22.5% permanent partial orthopedic disability arising from subacromial bursitis of the right shoulder and right shoulder impingement.   The claim was reopened pursuant to N.J.S.A. 34:15-27, and on September 7, 2001, the award was increased as the result of a settlement to 30% permanent partial orthopedic disability attributable to subacromial bursitis of the right shoulder, right shoulder impingement syndrome and right rotator cuff tear with surgery.

On July 1, 1998, petitioner sustained an injury to his lumbar spine in an automobile accident while working as a car valet for Adamar of New Jersey at its Tropicana Casino and Resort.   As the result of the accident, which was petitioner's fault, he was fired.   The accident resulted in lumbar-sacral sprain with radiculopathy, radial tear at L5-S1, and disc protrusion at L5-S1 causing indentation on the thecal sac.   Following conservative treatment, petitioner was medically discharged in January 1999.   However, as the result of a court order entered on January 7, 2000, he appears to have received additional medical treatment by Stafford Orthopedics and Dr. Charles Daknis, a pain management specialist, receiving medications, physical therapy and five epidural steroid and trigger point injections.

Petitioner sought workers' compensation benefits for back and psychiatric injuries allegedly resulting from the 1998 accident.   The psychiatric claim was resolved in a lump sum settlement pursuant to N.J.S.A. 34:15-20.¹  Additionally, on September 27, 2002, the back claim was settled with a determination of 20% permanent partial orthopedic disability.

On September 24, 2004, petitioner re-opened his claim for back injury against Adamar, and on September 8, 2005, filed a claim against the Second Injury Fund pursuant to N.J.S.A. 34:15-95.1. That matter was consolidated with a prior pending claim filed in 2003 by petitioner against Rhône-Poulenc.   A trial was conducted, at which testimony was provided by petitioner, his examining physician, Martin Riss, D.O., and the examining physician of Adamar and Rhône-Poulenc, Lawrence Zazzo, D.O. Following the trial and submission of closing briefs, the judge rendered an oral opinion finding petitioner to be totally permanently disabled and eligible for Second Injury Fund benefits.

On April 28, 2009, the judge entered an order of judgment of 40% permanent partial disability against Rhône-Poulenc ² and an Order of Total Disability with Second Injury Fund benefits against Adamar and the Fund. Lifetime medical treatment was provided.   The judge found that petitioner's total permanent injury commenced as of August 10, 2005, the date of a report finding such injury by petitioner's expert, Dr. Riss, arising from a medical examination conducted in July 2005.

However, in addition to addressing disabilities arising from petitioner's shoulder and back injuries, in both his oral opinion and his Order of Total Disability, the judge also referenced an injury to petitioner's neck, the etiology of which was not disclosed at trial, and multiple hemangiomas that neither trial expert causally connected to petitioner's disability.   The judge's order stated:

100% percent permanent total disability with the Respondent paying 60% permanent total disability for the residuals of C6-7 Broad Based Disc Protrusion Resulting in Spinal Stenosis;  Hemangiomas at C6 vertebrae;  Multi-Level Degenerative Disc Disease and Osteophyte Formation noted throughout the Cervical Spine;  Lumbosacral Sprain;  L5-S1 Radiculopathy;  Radial Tear at L5-S1;  Disc Protrusion at L5-S1 which causes indentation of the ventral aspect of the thecal sac;  Degenerative Changes involving the Bilateral Facet Joints and Thickening of the ligamentum flavum at the [sic] level;  Combination forms a mild stenosis;  Status post epidural steroid injections;  Status post trigger point and epidural injections in 2000;  Moderate to severe spinal stenosis and narrowing at L5-S1 and multiple hemangiomas of vertebral bodies from L1 to L5.

Following the filing of an appeal by Adamar, the judge reviewed his oral opinion and then submitted a written supplement pursuant to Rule 2:5-1(b) to restate his conclusions.

In his revised opinion, the judge stated that neither petitioner's hemangiomas nor his neck condition contributed to petitioner's disability.   Focusing on petitioner's back condition, the judge noted that, following the 1998 accident, a lumbar MRI was interpreted as disclosing:

Radial tear at L5-S1 with small disc protrusion at this level which causes indentation on the thecal sac without evidence of spinal stenosis seen.

The only other treatment records placed in evidence were of MRI examinations of petitioner's neck, right shoulder and lumbar spine conducted on November 17, 2004 at Kimball Medical Center in Lakewood.   The lumbar spinal MRI disclosed, among other things, “moderate to severe canal stenosis and mild foramenal narrowing at the L5-S1 level.” ³  Despite the absence of medical treatment records to provide a foundation for a conclusion that petitioner's present disability was causally related to his 1998 accident, the judge found:

Respondent's own expert Dr. Lawrence Zazzo did not dispute Petitioner's claim that he has significantly greater disability in his back now than he did when he appeared before Judge Henson in September 2002.   He testified that spinal stenosis, such as he found in Petitioner's case was an ongoing process that developed over a period of years.   He also stated that he found a “global range of motion deficits” when he compared his exam findings in 2006 and 2008 with those made by other doctors in 1999 and 2000.

On cross-examination Dr. Zazzo ․ admits that he could have found causal relation between Petitioner's condition today and the 1998 back injury if there were bridging of symptomatology and no intercurrent traumatic events.   I think it can be reasonably inferred from Petitioner's testimony that he reached out for treatment and never got any and also that his back pain and difficulty with his legs got worse over a period of time, that there were bridging symptoms to link the 1998 accident with his present condition.

The judge then found that petitioner had a disability that was “permanent in quality and total in character.”   The judge observed that petitioner had tried to work over the past nine or ten years, but the combination of petitioner's shoulder and back problems prevented him from obtaining a job similar to those he had performed previously, and that his prospects of obtaining any other employment were “extremely slim.”

The judge concluded that petitioner's shoulder disability had progressed somewhat, determining that “[p]etitioner's shoulder is not completely useless, but his ability to use it is now more limited than it was when Judge Henson fixed his disability at 30% partial total.   The judge then found a disability of 40%.

Turning to petitioner's ability to collect Second Injury Fund benefits, the judge set forth the statutory exceptions to payment set forth in N.J.S.A. 34:15-95, and then he held:

Considering Petitioner's serious limitations from the combination of progression of his 1993 shoulder tear at Rhone and that of his 1998 back injury at Tropicana, I am satisfied that Petitioner's two injuries combine to render him totally and permanently disabled.   Without the shoulder injury, I am not satisfied that he would be as disabled as he is now.   I conclude from both Petitioner's testimony and the medical evidence before me these injuries were fixed and measurable when Dr. Riss examined Petitioner and issued his report on August 10, 2005 and opined that he was 100% disabled from a combination of these two injures.

The existence of the two injuries, the judge held, qualified petitioner for Second Injury Fund benefits under N.J.S.A. 34:15-95.

Following the issuance of the judge's supplemental opinion, the Second Injury Fund also filed a notice of appeal.

I.

On appeal, both appellants note that the judge's order does not conform to his supplemental opinion, and they argue that the order must be corrected.   The appellants also raise substantive issues regarding the merits of the judge's decision.   We first focus on the arguments of the Second Injury Fund.

N.J.S.A. 36:15-95 established the Second Injury Fund to provide compensation payments “to persons totally disabled, as a result of experiencing a subsequent permanent injury under conditions entitling such persons to compensation therefore, when such persons had previously been permanently and partially disabled from some other cause.”   The purpose of the Second Injury Fund is “to encourage the hiring by industry of people handicapped by pre-existing disabilities.”  Paul v. Baltimore Upholstering Co. 66 N.J. 111, 129 (1974);  Sexton v. Cnty. of Cumberland, 404 N.J.Super. 542, 555 (App.Div.2009).   However, “the Legislature has manifested concern that the fund not be subject to undue invasion.”  Paul, supra, 66 N.J. at 129.   The statute thus provides that “no person shall be eligible to receive payments from the Second Injury Fund” under conditions set forth in paragraphs (a), (c) and (d).

On appeal, the Fund relies on paragraph (d), which precludes benefits

(d) If a person who is rendered permanently partially disabled by the last compensable injury subsequently becomes permanently totally disabled by reason of progressive physical deterioration or preexisting condition or disease.

The Fund claims that paragraph (d) is applicable in this case because petitioner testified that, in the period shortly after his auto accident in 1998, he began to experience auditory and visual hallucinations and that he became very paranoid.   At about this time, petitioner applied for Social Security disability benefits alleging shoulder, back and psychiatric disabilities.⁴  In 2000, while in jail for nonpayment of child support, petitioner was seen by a psychiatrist.   He was diagnosed as schizophrenic and prescribed Prozac and Risperidal.   Following his release from jail, petitioner saw psychiatrist Karen Senese on a monthly basis and was still doing so when he was examined by psychiatrist Dr. Walden Holl on May 21, 2001.   At the time petitioner saw Dr. Holl, he was still having difficulty sleeping because he was hearing voices.   Although petitioner sought work after he was fired by Adamar, he testified:

I try to apply after they fire me, and then, you know, I was in therapy.   I have to go to the doctors, and my life never come back the same.   And then I have to go to SSD, and they said I am a hundred percent disabled

․

The judge's Order for Total Disability in the present matter states that petitioner's initial date of entitlement to Social Security Disability payments was December 1, 2000.

Petitioner testified at trial that he was no longer taking medications and that he could not recall when he stopped seeing Dr. Senese, but that he had done so because he had no money and no transportation.   No testimony at the hearing suggested that petitioner's psychiatric condition, which manifested shortly after petitioner left Adamar, arose out of and in the course of his employment with that entity.   See N.J.S.A. 34:15-7.

Adamar argues that, to prevail on a claim that Fund benefits are not payable, the Second Injury Fund must prove petitioner's permanent impairment arose as the result of the combination of his work-related and subsequently developed non-work-related conditions.   However, case law suggests otherwise.   In cases in which Second Injury Fund benefits are sought, the Fund does not have the burden of disproving liability.   Rather the burden of persuasion lies with Adamar.  Ort v. Taylor-Wharton Co., 47 N.J. 198, 207 (1966);  see also Lewicki v. N.J. Art Foundry, 88 N.J. 75, 84 (1981);  Shepley v. Johns-Manville Prods.   Corp., 141 N.J.Super. 387, 393 (App.Div.1976).   Thus, as the Second Injury Fund argues, “the party seeking to impose Fund liability first had to establish that [petitioner] was actually employable prior to August 10, 2005,” which was the date the judge chose for the onset of petitioner's total disability from his shoulder and lumbar spinal injuries.

The Supreme Court has held that “[t]otal permanent disability is found if the workman after the causative accident or employment exposure is rendered unemployable in a reasonably stable job market - and this notwithstanding that factors personal to the individual play a contributory part in such unemployability.”  Katz v. Twp. of Howell, 67 N.J. 51, 62 (1975);  see also Portnoff v. N.J. Mfrs. Ins. Co., 392 N.J.Super. 377, 387 (App.Div.), certif. denied, 192 N.J. 477 (2007);  N.J.S.A. 34:15-36 (defining “disability permanent in quality and total in character”).   There is no evidence in this record that petitioner was employable following the onset of his psychiatric symptoms in 1998, shortly after his automobile accident while employed by Adamar.

As Justice Burling noted in his dissent in Ratsch v. Holderman, 31 N.J. 458, 472 (1960), to obtain benefits from the Second Injury Fund, a petitioner's “total disability must result as a consequence of the last compensable injury combined with or superimposed upon prior disabilities, and not from independent noncompensable conditions arising subsequent to the last injury.”   Such qualifying proof is lacking in the present case.   Adamar has offered no evidence that petitioner, who was adjudged to be permanently partially disabled from work-related conditions in 2001 ⁵ and 2002 ⁶ could, following the manifestation of his psychiatric condition, have obtained employment in the period prior to August 10, 2005, the date fixed by the judge for the onset of petitioner's total disability arising from his shoulder and back injuries.   Accordingly, we find that the exception from liability provided by N.J.S.A. 36:15-95(d) is applicable in this case.   We thus reverse the judgment against the Second Injury Fund.

II.

We now turn our attention to Adamar's appeal, in which it argues that the trial judge's decision should be reversed because petitioner failed to prove his case.   Adamar notes that the core difficulty that exists in this case is the lack of any records of treatment afforded to petitioner other than the 2004 MRIs of petitioner's shoulder, neck and lumbar spine.   Adamar contends that this lack of treatment is fatal to petitioner's claim, since as a result, he lacks “bridging” evidence that would connect his present condition with his prior injuries.

Adamar also argues for reversal because the judge, in reaching his decision, relied on three matters that Adamar claims are unsupported by the record - (1) a note from a prior judge overseeing the first pre-trial conference in the reopened proceeding against Adamar that indicated that Adamar opposed offering treatment to petitioner;  (2) that petitioner tried to work for nine or ten years following his 1998 injury;  and (3) despite the fact that petitioner's expert combined neck and lumbar complaints in his August 2005 disability determination, the judge interpreted the report as establishing him to be totally disabled as the result, solely, of his back and shoulder injuries at that time.

In order to obtain benefits in this matter, petitioner had the burden of demonstrating that he was totally and permanently disabled and that his total permanent disability was causally related to shoulder and back injuries sustained in the course of his employment.  Bird v. Somerset Hills Country Club, 309 N.J.Super. 517, 521 (App.Div.), certif. denied, 154 N.J. 609 (1998).   If he established all of the elements of his case, the burden to defeat the claim and establish contrary facts and legal conclusions and to exonerate his employers would shift to them.  Ibid. Because Rhône-Poulenc has not appealed, the extent and origin of petitioner's shoulder injury is no longer disputed.   However, the cause of petitioner's disability arising from the condition of his lumbar spine remains in issue.

Our review of the evidence satisfies us that both petitioner's expert, Dr. Riss, and respondents' expert, Dr. Zazzo, agreed that petitioner was permanently and totally disabled as that condition is defined for workers' compensation purposes.⁷  According to Dr. Riss, as of his report on December 20, 2003, petitioner was 75% permanently partially disabled as the result of the injury to his shoulder.   Dr. Riss testified:

I opined that there was demonstrable objective medical evidence of restriction of function and lessening to a material degree of working ability that the petitioner was disabled orthopedically to the extent of 75 percent of the total, that no fundamental marked improvement could be reasonably expected.   The prognosis for improvement was not favorable.

When asked whether the shoulder condition was causally related to the 1993 accident at Rhône-Poulenc, the doctor stated:

I offered the opinion that the aforementioned complaints, findings and diagnoses were causally related to the accident of January 22, 1993, and furthermore that they were permanent in nature.

As of his August 10, 2005 report, Dr. Riss estimated petitioner's shoulder disability to have increased to “90 or 95” percent.   As of his April 9, 2008 report, the doctor considered petitioner to be “totally disabled orthopedically on the basis of the right shoulder alone if it was the only entity on the table.   So the shoulder, itself, would be 100 percent totally disabling.”

Turning to petitioner's back injury, Dr. Riss testified that he had examined petitioner in December 1999, and at that time petitioner was using a back support and a cane for ambulation.   He testified:

My opinion was that he had suffered demonstrable objective medical evidence of restriction of function and lessening to a material degree of working ability and that he's disabled orthopedically to the extent of 37 and a half percent of the total.

When questioned regarding causation, the doctor stated:  “I felt that the aforementioned complaints, findings and diagnoses were causally related to the accident of July 1, 1998 and that they were permanent in nature.”

Dr. Riss examined petitioner again in November 2001, generating a report dated January 30, 2002.   Describing that report, the doctor testified:  “I offer[ed] the opinion that at that point he was orthopedically disabled to the extent of 75 percent of the total for the back pathology,” that petitioner's condition was causally related to the July 1998 accident, and that it was permanent in nature.   Although, when Dr. Riss examined petitioner again in July 2005, and at that time found him to be 100% permanently totally disabled, he included neck ⁸ with back symptoms, nothing suggests that the back condition had improved from the 75% that Dr. Riss had found in 2002.   Thus, regardless of the neck symptoms on which Adamar has focused, as of the July 2005 examination, defendant was 90 to 95% permanently partially disabled as the result of shoulder symptoms and at least 75% permanently partially disabled because of back symptoms.

On cross-examination by counsel for Rhône-Poulenc, the following exchange occurred:

Q. Doctor, if I understand you correctly in your testimony, you've got [petitioner] 100 percent of total because of the shoulder, and you've got him 100 percent total because of the back.   Are you saying he's overall 200 percent of perm[anent] total?

A. If there were numbers to permit 200 percent, that would be the number I would offer.   My understanding is the most I'm allowed to give him is 100 percent total.   But, when I was asked to follow one path, had he been treated only for the shoulder that could have and would have made him 100 percent total.   And the same answer with the neck and back.   But he is 100 percent totally disabled.

The doctor testified that he routinely asked the petitioner for a medical history, and he was “not aware of any superseding injury, and further injury to his body parts after the two accidents.”

In addition to the testimony of Dr. Riss, respondents' expert, Dr. Zazzo, testified with respect to petitioner's condition and its causal relationship to the two work-related accidents.   In connection with causation, the doctor stated that he could not say with a degree of medical certainty that the back condition represented clinically and on the 2004 imaging findings were directly related to the 1998 incident.   If there had been evidence from serial clinical examinations and clinical treatment for a reasonable time period after 1999 so that there was a significant “bridging” of sympatomology and no evidence of an intervening traumatic event or anything else, then he could reasonably assume that the condition was related.   However, that evidence was absent.

Nonetheless, when Dr. Zazzo saw petitioner in 2006, he concluded that he was 100% orthopedically disabled, with an apportionment of 50% to the shoulder, which was partially frozen, and 50% to the back.   Further, the doctor found that although petitioner's shoulder condition was static, his back condition continued to evolve.

In evaluating this evidence, we recognize that the doctrine of liberally construing the Workers' Compensation Act does not extend to the evaluation of credibility or of the weight or sufficiency of evidence.  Lindquist v. City of Jersey City Fire Dept., 175 N.J. 244, 258 (2003).   Further, while a workers' compensation judge is not bound by technical rules of evidence, that judge must nonetheless determine the party's substantial rights from legally competent evidence.  Jasaitis v. Paterson, 48 N.J.Super. 103, 109 (App.Div.1957);  N.J.S.A. 36:15-56.   However, the test of whether petitioner has satisfied his burden of proof is probability, not certainty.  Pellegrino v. Monahan McCann Stone Co, 61 N.J.Super. 561, 572 (App.Div.1959), aff'd, 33 N.J. 73 (1960).

We also recognize, as a general rule, that a physician treating a petitioner is usually in a better position to express an opinion as to the cause of a disability than is an examining physician.  Bober v. Indep.   Plating Corp., 28 N.J. 160, 167 (1958);  DeVito v. Mullen's roofing Co., 72 N.J.Super. 233, 236 (App.Div.), certif. denied, 37 N.J. 222 (1962).   However, that rule is usually expressed in the context of the evaluation of opposing opinions rendered by treating and examining physicians.   We are aware of no decision that holds the opinions of examining physicians, when they are all that is offered, to be incompetent.

In the present case, there is agreement between the examining experts that petitioner is totally disabled as the result of his shoulder and back conditions.   The dispute is as to causation, particularly with respect to petitioner's back condition, with Dr. Riss finding a causal relationship to exist, whereas Dr. Zazzo found the evidence insufficient to warrant such a conclusion.   While as the result of petitioner's lack of treatment,⁹ evidence causally relating his back condition to the 1998 accident is not as strong as it might otherwise be, we find it sufficient to have met petitioner's burden of proof.   In this regard, we note that petitioner underwent a substantial number of medical examinations in connection with his workers' compensation claims.   He was seen by Dr. Riss in December 1999, December 2003, July 2005 and April 2008.   On each occasion, the doctor reported objective evidence of a progression in petitioner's back symptoms.   Although the doctor stated that he sought petitioner's medical history in connection with each examination, he was never informed of any intervening trauma to petitioner's back.

Similarly, petitioner was seen by Dr. Zazzo and previously by Dr. Fiedler, a now-deceased professional colleague of Dr. Zazzo, for his back condition.   Initially, Dr. Fiedler found 7.5% permanent partial orthopedic disability as the result of a lumbar MRI conducted in 1998.   Dr. Zazzo examined petitioner's back and issued a report dated August 5, 2005.   Following a further examination in February 2006, Dr. Zazzo increased his finding of disability by 10%.   In November 2006, Dr. Zazzo found that petitioner had a 50% reduction in range of motion in all planes, and for that reason, Dr. Zazzo increased his disability by an additional 5%. Dr. Zazzo offered no alternative explanation for the increase in petitioner's symptomatology other than to suggest, without elaboration, that his back may have been affected in some undescribed manner when, for an unspecified period, petitioner lived in his car.

We are satisfied that the opinion as to causal relationship offered by Dr. Riss, premised on the series of independent medical examinations that he had performed and his findings of progressive disability, together with the absence of evidence of an alternative cause for petitioner's worsening condition, was sufficient to meet petitioner's burden of proof.   Accordingly, we affirm the judgment as to Adamar.   However, we limit the compensable conditions to petitioner's right shoulder and lumbar spine, thereby eliminating any remaining reference to his cervical spine and to his hemangiomas.

Affirmed in part and reversed in part.

FOOTNOTES

FN1. That statute authorizes a lump-sum settlement of a disputed claim, which, following approval by the judge of compensation has “the force and effect of a dismissal of the claim petition and shall be final and conclusive upon the employee and the employee's dependents, and shall be a complete surrender of any right to compensation or other benefits arising out of such claim under the statute.”.  FN1. That statute authorizes a lump-sum settlement of a disputed claim, which, following approval by the judge of compensation has “the force and effect of a dismissal of the claim petition and shall be final and conclusive upon the employee and the employee's dependents, and shall be a complete surrender of any right to compensation or other benefits arising out of such claim under the statute.”

FN2. That judgment has not been appealed..  FN2. That judgment has not been appealed.

FN3. Respondents' expert, Dr. Zazzo, testified that the body of the 2004 radiologist's report described “a posterior broad-based disc protrusion along with facet joint hypertrophy which is the posterior or back of the joint at that level as well as folding of the ligamentum flavum which is essentially the ligament in the center of the spinal cord.”   Zazzo stated:  “All of these things the radiographer concluded produced a moderate to severe spinal stenosis.   In addition, there was also mild narrowing of the neuroforamena bilaterally at that site.”.  FN3. Respondents' expert, Dr. Zazzo, testified that the body of the 2004 radiologist's report described “a posterior broad-based disc protrusion along with facet joint hypertrophy which is the posterior or back of the joint at that level as well as folding of the ligamentum flavum which is essentially the ligament in the center of the spinal cord.”   Zazzo stated:  “All of these things the radiographer concluded produced a moderate to severe spinal stenosis.   In addition, there was also mild narrowing of the neuroforamena bilaterally at that site.”

FN4. The Second Injury Fund does not argue that evidence of petitioner's receipt of Social Security disability benefits establishes his total permanent disability for workers' compensation purposes..  FN4. The Second Injury Fund does not argue that evidence of petitioner's receipt of Social Security disability benefits establishes his total permanent disability for workers' compensation purposes.

FN5. On September 7, 2001 upon reopening his initial claim petition, petitioner was found to have a 30% permanent partial disability related to his shoulder injury..  FN5. On September 7, 2001 upon reopening his initial claim petition, petitioner was found to have a 30% permanent partial disability related to his shoulder injury.

FN6. On September 27, 2002, he received an award of 20% permanent partial disability related to his back..  FN6. On September 27, 2002, he received an award of 20% permanent partial disability related to his back.

FN7. Because both experts found permanent total disability to exist, we need not address whether the evidence was sufficient to support the judge's conclusion that petitioner had tried to find employment for nine or ten years..  FN7. Because both experts found permanent total disability to exist, we need not address whether the evidence was sufficient to support the judge's conclusion that petitioner had tried to find employment for nine or ten years.

FN8. No disability as the result of neck complaints was assessed prior to 2005.   There was no mention of neck complaints in Dr. Riss's 2002 report, and petitioner's 2002 settlement did not include compensation for a neck-related disability..  FN8. No disability as the result of neck complaints was assessed prior to 2005.   There was no mention of neck complaints in Dr. Riss's 2002 report, and petitioner's 2002 settlement did not include compensation for a neck-related disability.

FN9. We find the evidence insufficient to conclude, as did the trial judge, that petitioner's lack of treatment was attributable to Adamar's refusal to authorize it..  FN9. We find the evidence insufficient to conclude, as did the trial judge, that petitioner's lack of treatment was attributable to Adamar's refusal to authorize it.

PER CURIAM