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Lister v. J.B. Eurell Co.

Decided: June 22, 1989.


On appeal from the Division of Worker's Compensation.

O'Brien, Scalera and Stern. The opinion of the court was delivered by Scalera, J.A.D.


Respondent J.B. Eurell Company appeals from a workers' compensation judgment awarding petitioner John Lister total disability benefits for back injuries arising out of a work-related accident which occurred on December 3, 1985.

At the trial the parties stipulated that Lister was employed by Eurell on December 3, 1985, when he sustained the compensable accident. Thus, the issues at trial involved only the

extent of the temporary disability, medical treatment and the claimed permanent disability.

Lister testified through a Yugoslavian interpreter. He related that he was born on March 29, 1948 in Yugoslavia, attended school there until the eighth grade, and emigrated to the United States at age 17. At the time of the accident, he had been employed as a truck driver by Eurell for some 2 1/2 years, and his duties included both the driving and unloading of trucks. Lister explained that he was required to unload heavy ceiling tiles and insulation materials. It was while he was unloading heavy bundles of insulation from one truck and loading them onto another that he heard the lumbosacral area of his back "crack" and immediately experienced "terrible pain." He could neither bend down nor stand up straight but did not seek medical treatment until the next day.

Petitioner apparently first saw a compensation insurance company doctor, Dr. Robert Goldstone, on December 4, 1985 and was treated by him through January 20, 1986. During this period, he was also treated by a Dr. Goulart,*fn1 an insurance company neurologist, and a chiropractor named Dr. McBain, who provided physical therapy during some 20 visits.

He was admitted to St. Joseph's Hospital during the week of January 7, 1986, where he was treated for the pain and placed in traction, but no surgery was performed. He was again hospitalized on January 20, 1986 for an examination, after which Dr. Goldstone and Dr. Goulart told Lister that they wanted to perform surgery on his back to alleviate his condition. Petitioner testified that he refused the recommended operation because he was afraid of being paralyzed for the rest of his life. According to him, Dr. Goulart had told him that the surgery involved a risk of paralysis which he could not guarantee

would not occur. However, no expert medical evidence regarding paralysis was produced. After his release from the hospital, petitioner apparently continued to be treated by Dr. Goldstone until February 25, 1986. Thereafter, his compensation disability checks were terminated because he was no longer being treated by an "authorized" treating doctor and also because he refused to have the recommended back surgery.

Subsequently, in March 1986, without the compensation insurance company's authorization, petitioner went to see Dr. Jerome B. Margolies, who he claimed was an orthopedist and who treated his back problem with hot pads and medication. He was seeing Dr. Margolies once a week at the beginning but less frequently at the time of trial since he was feeling a "little better than . . . before."

Since August 1986, petitioner has also been receiving treatment from Dr. Nicholas Marchese, a psychiatrist, for attacks of depression and nervousness which are manifested by screaming at his children, arguing with his wife and the like. The treatment consists of both medication and counseling. Petitioner explained that since his injury he has been so depressed that he has considered killing himself because of his poor health, loss of job and money, and inhibited sex life.

Because of the pain from his injuries, petitioner has never tried to work since this accident. He claims that he can only stand for 10 or 15 minutes at a time and has trouble walking up and down stairs; his left foot hurts a lot and it becomes numb approximately 30 to 40 times each day and he can only sit for 10 to 15 minutes before feeling discomfort. Regarding his present physical complaints petitioner summed it up by stating:

I'm not well. I'm still in pain. But I feel a little better than I was feeling before.

He admitted to having accidents in the past for which he received compensation benefits but denied that they involved his back. Finally, petitioner insisted that he knows only a little English and that that language is not spoken at home.

None of the doctors or therapists who treated the petitioner over the years were called as witnesses at trial. Rather the case was tried solely on the basis of petitioner's testimony and of the various experts, each of whom concededly had only limited contact with him.

The first expert witness to testify on petitioner's behalf was Paul J. Kiell, M.D., a psychiatrist who performed a neurological and neuropsychiatric examination of petitioner on February 25, 1988, during which he obtained a "history" from him. After relating his findings, Dr. Kiell opined that,

Obviously, he had a herniated disk, complaints and signs were consistent with a lumbosacral radiculopathy that were more marked on the left. Also he's on tranquilizers and antidepressants so that I felt that that masked somewhat the clinical findings but he's depressed in terms of his verbalization, in terms of the findings. Signs and symptoms are also of chronic pain syndrome, that is a person struggling with pain, they're irritable, they're tense, they're worried. He's fearful of further surgery . . .

I estimated neurological disability at 60 percent of total. I estimated permanent neuropsychiatric disability at 30 percent to total. These are exclusive of the orthopedic.

The second expert witness was Dr. Earl C. Shaw, not an orthopedist but a specialist in "traumatology and sports medicine." Dr. Shaw examined petitioner on February 13, 1987. His diagnosis was,

Low back derangement with herniated disk at the L4-5 level with degenerative disk disease at the L5-S1 level with central spur encroaching upon the sac and left nerve root with bilateral sciatic neuritis.

Dr. Shaw also stated that it was reasonable for Lister to have sought treatment on his own based on his fear of the proposed surgery. The doctor concluded that petitioner "appeared to be totally disabled" from an orthopedic viewpoint. That is, Lister would not be able to go back to work as a truck driver nor would he be able to fill a job which required him to stand on his feet all day or to sit for any length of time:

The basis for that opinion is the findings that were made in the body of my report, the functional restrictions that this man has in his lower back area as evidenced by my examination, the changes that have occurred in the muscular

structures of the lower back, the changes that have occurred in relationship to the vertebral bodies as well as the findings made on the CAT scan.

The final witness to testify on behalf of petitioner was Edmond A. Provder, an expert in the field of vocational training, who evaluated petitioner at his office on June 10, 1987, also without the benefit of any interpreter. He secured a history, read the medical reports and administered a battery of "standardized tests" in order to assess the effect of the ...

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