Before Judges Kestin, Wefing and Steinberg.
The opinion of the court was delivered by: Wefing, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the State Department of Labor and Industry, Division of Workers' Compensation.
Petitioner Hattie Smith appeals from a judgment entered in the Division of Workers' Compensation. We affirm.
Petitioner worked as a nurse's aide at respondent's facility. She alleged that she slipped and fell on July 12, 1990 and injured herself while at work. She alleged a further incident of January 2, 1992 in which she fell while trying to assist a patient. Petitioner filed separate claim petitions for these incidents and also filed a claim petition alleging an aggravation of her injuries through occupational exposure.
Petitioner underwent an extensive course of treatment for her injuries, including a cervical spinal fusion and shoulder surgery. Petitioner returned to work after both incidents on a light duty basis. Petitioner experienced significant pain and discomfort, however, and, at her doctor's direction, ceased working in October 1992. She has not returned to respondent since.
The thrust of petitioner's case was that she had been left totally and permanently disabled as a result of these incidents. Based upon that premise, at the outset of the proceeding, the parties advised the judge of compensation that the claim petitions referring to the specific incidents of July 12, 1990 and January 2, 1992 would be dismissed and the matter would proceed under the final claim petition which alleged an aggravation of all prior injuries. Under this approach, the question to be tried was the nature and extent of petitioner's permanent disability.
Petitioner was examined by several physicians, one of whom, Dr. Krengel, testified on her behalf. Dr. Krengel's report, dated September 11, 1996, expressed the opinion that petitioner was totally and permanently disabled. Dr. Krengel's report also estimated that petitioner had suffered an orthopedic disability of ninety percent of partial total.
Petitioner initially testified on July 15, 1997. She told the judge of compensation that the only work she felt she would be able to perform was several hours a day as a telemarketer, provided she could get up and move around on occasion. Dr. Krengel testified in September 1997. Based upon petitioner's testimony that she was actively seeking work, Dr. Krengel was no longer of the view that she was totally and permanently disabled but did adhere to his opinion of ninety percent of partial total disability.
Dr. Flicker examined petitioner on behalf of respondent. His report, dated October 23, 1997, expressed the opinion that petitioner was totally disabled both orthopedically and psychiatrically. He wrote:
[m]uch of her limitation falls in the orthopedic sphere, but I feel there is a tremendous element of psychosomatic superimposition which caused the patient to be out of work for five (5) years . . . .
Dr. Flicker noted at the bottom of his report that petitioner had returned to work one week earlier.
That was a development that was apparently unknown to any of the participants in this proceeding and petitioner was recalled to testify on November 18, 1997. She explained to the judge of compensation that she had obtained a position doing light duty cleaning for some twenty hours a week. Dr. Flicker testified in February 1998; he expressed the opinion that ...