On appeal from decision of State of New Jersey, Department of Labor and Industry, Division of Workers' Compensation.
Dreier and Shebell. The opinion of the court was delivered by Shebell, J.A.D.
Danny Margaritondo appeals from a Workers' Compensation decision denying him psychiatric disability. He alleged this disability was related to a back injury for which he was award "a disability of 25 per cent of partial permanent, orthopedic and neurologic, for post[-]operative state for lumbar laminectomy and discectomy at L5-S1 with recurrent sciatic neuritis." His employer Stauffer Chemical Company appeals the judge's disallowance of credit for a 1973 Workers' Compensation award for "a lumbosacral sprain with myositis." We reverse on both issues.
On April 16, 1982 while employed as an electrician Margaritondo felt pain in his back when lifting, with two coemployees, a motor weighing two to three hundred pounds. He worked with pain for a few days but went to the company doctor when the pain spread. He was seen by the company doctor two or three times, sent for x-rays, and referred to another physician. After being treated briefly by the new physician he was admitted to the hospital during the early morning hours when the pain became worse. While at the hospital he was examined, x-rayed and an EMG study was done. Surgery was performed for removal of an extruding disc and he was discharged from the hospital on May 9, 1982 after thirteen days confinement. He received follow-up treatment consisting of examinations,
physical therapy, heat and exercises, and was compelled to wear a back brace when subjecting his back to stress. On September 13, 1982 he returned to work having gained approximately sixty pounds. His overtime work was dramatically decreased and he was assigned to light duty and instructed not to lift more than thirty-five pounds.
Margaritondo complained at trial that his back bothered him a lot; he got sharp pains in the right leg; some nights pain kept him awake; his leg goes to sleep at times; he gets pain in his lower back; he gets headaches; it takes him a while to straighten up after he has been seated in a chair for a long period of time; he walks a little bit bent over; weather affects the amount of pain he feels; he has to take aspirin and lie down for a few hours to relieve his headaches; he wears his back brace a couple of times a week when he expects more stressful activity than usual; he no longer played with his two children except for "sit down type games"; he has been hard to get along with and irritable since the accident; he can no longer work on his car or perform other chores around the house; he no longer bowls, and camping was more difficult than it was before the accident.
Petitioner was examined by Dr. Jack Sall for the purpose of evaluating his disability. Dr. Sall diagnosed a post-operative state for lumbar laminectomy and discectomy at L5-S1 with recurrent right sciatic neuritis. He evaluated disability at 40 per cent of total inclusive of all the disability he found. Dr. Sall found that the sciatic neuritis was a manifestation of the nerve root irritation secondary to the pressure present following the disc herniation and that it was not totally relieved by the operative procedure. Petitioner also called as a witness Dr. Peter Crain, a Diplomate of the American Board of Psychiatry and Neurology and a Diplomate of the Board of Forensic Psychiatry. Dr. Crain found that the right ankle jerk was absent and the left ankle jerk was "2 out of 4 possible grades." He received an extensive array of complaints from the petitioner and concluded that in addition to the diagnosis of right lower
extremity neuropathy that there was a "depressive reaction to the accident of April 6, 1982 and sequelae." He estimated the neurological disability to be 17 1/2 per cent of total and a psychiatric disability of 20 per cent of total.
The employee was examined for his employer by Dr. G. E. Troncoso who was certified in family practice and did not specialize in orthopedics or have Board certification in orthopedics. The doctor "estimated a 12 per cent of total disability." He did not know at the time of his examination that the employee had had a prior award of 2 1/2 per cent of partial total for a prior back injury. He said that with that knowledge his estimate included the prior award. The employer also called as an expert witness Dr. Ivan R. Dressner, a Diplomate of the American Board of Psychiatry and Neurology, who estimated neurological and psychiatric disabilities at 5 per cent of partial total. When asked whether he could give any finer break down between the neurological condition and the psychiatric condition he stated:
Understanding the limitations of these things, I would say the neurologic overlapping the orthopedic is probably three percent, and the psychiatric, for his chronic discomfort, 2 per cent.
On further examination he affirmed that the psychiatric disability would be separate from the neurologic disability, which he felt ...