On appeal from a judgment of the Division of Workers' Compensation, Department of Labor, 97-038962, 97-030469.
Before Judges Petrella *fn1 Braithwaite and Parker.
The opinion of the court was delivered by: Parker, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This is an employer's appeal from a workers' compensation judgment in favor of the employee for seven and one-half percent permanent partial disability resulting from low back strain. The judgment amounted to $5,940, plus $800 in doctors' fees and $1,000 in counsel fees.
The facts elicited during the compensation court hearing indicate that the petitioner had been employed as a packaging inspector by respondent for seventeen and one-half years. Her job responsibilities included lifting parcels weighing about thirty pounds. She left employment with respondent in April 1997 and began working for American Vitamin Products, Inc. (Intergel) on July 7, 1997, doing the same work she had done with respondent. When she applied for her position at Intergel, she claimed that her health was "excellent," that she had no physical or mental condition which would limit her ability to work at Intergel, and that her medical history involved nothing more than "checkups."
In September 1997, however, she filed a petition against respondent, claiming "injury to pulmonary and internal system, eyes, ears, back[,] upper and lower extremities[,] pulmonary[,] internal[,] opthalmological[,] otolarynological[,] and ortho in nature with neuro and neuropsych complications."
In December 1997, when she was three months pregnant, she was examined by Dr. Jack Haberman, who found "a flattening of the lumbar curve ... [and] diffused hardness and tenderness of the paravertebral musculature of the lumbo dorsal, lumbar and lumbo sacral region."
On February 1, 1999, after her baby was born, she was examined by Dr. David E. Gross on behalf of respondent. Dr. Gross found normal spinal curvatures, no swelling or spasm anywhere, normal neck and trunk motions and "no finding for any permanent orthopedic disability resulting from this alleged exposure."
On July 18, 2000, petitioner underwent an independent evaluation at the University of Medicine and Dentistry of New Jersey (UMDNJ). During that examination, for the first time, she told physicians that her symptoms began in 1996, a year before she left her employment with respondent. The report from the UMDNJ examination stated:
Ms. Prata is a 38-year-old woman, employed in the pharmaceutical industry for the last 20 years, who is complaining of 2 distinct symptom constellations. One involves neck, upper back and upper chest pain which she is concerned may be associated with an injury that occurred at work 4 years ago. Further complaints involve dizziness and some ataxia and electrical sensations in her head which have been occurring over the last approximately 19 years, which she believes may be associated with her exposure to solvents including alcohol and Naphtha at Banner Pharmacaps .... She is able to work at her present job as a packaging supervisor without any impairment .... Her condition appears to be a muscular strain.
Concerning her dizziness and ataxia, .... [a]t the present time she has no determinable impairment.
Petitioner testified at the February 6, 2001, workers' compensation hearing that "[a]bout two years ago, the pain in [her] leg [got] worse. So I thought [it] was not the problem from work. But the problem now, it's from my back; the leg hurts because I have a problem in my back." Petitioner attributed the problem to her employment with respondent. She testified that she visited a doctor for the pain and received an injection two years ago. She received another injection one year ago, but since then had no further treatment. In response to her attorney's question as to whether the pain interfered with her work in any way, she responded, "I couldn't write .... for ... about two months." When asked whether the condition caused any problem at home, petitioner responded that five months before when she was washing ...