On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, 99-007099.
Before Judges King, Newman and Holston, Jr.
The opinion of the court was delivered by: Newman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: September 15, 2004
This appeal presents the issue of whether Workers' Compensation benefits should be offset by an ordinary disability retirement based upon the same disability. We are satisfied that the long-standing public policy prohibiting dual recoveries for the same disability require an offset. We are further convinced that the Workers' Compensation judge's findings of total disability are well-supported by the credible evidence in the record, but that the judge mistakenly delayed petitioner's payment of attorneys' fees and costs. We affirm in part and reverse and remand in part to make the necessary financial adjustments.
Petitioner Tami M. Rosales (petitioner) was born on November 25, 1963. Her education includes an associate degree and credits toward a bachelor degree. She was hired by the County of Ocean as a clerk-typist in 1989. In 1991, petitioner developed severe pain in her right dominant hand. Following testing, she received a right carpel tunnel release in 1991. Dr. Martin Riss, petitioner's medical expert, found that after the first surgery, petitioner had a disability of forty percent of the right hand and twenty percent of the left hand. Dr. Gary Pess, a board certified hand surgeon, performed a second right carpel tunnel release and an ulnar nerve release on July 21, 1993. In 1994, petitioner had a left carpal tunnel release. Dr. Pess diagnosed petitioner with de Querevain tenosynovitis of the left wrist. Dr. Riss examined petitioner in 1994, and opined that her disability had increased to sixty-five percent of the right hand and forty-five percent of the left hand. Petitioner's complaints included pain and numbness in both hands, stiff fingers, restricted wrist movement, weak grasp, and an inability to open her right hand completely. Her symptoms were aggravated by inclement weather. The symptoms continued to progress, and in June 1995, electrodiagnostic studies confirmed the continued presence of pressure on the right carpal tunnel.
On July 24, 1995, petitioner received her first Workers' Compensation award pursuant to claim number 91-015164. Judgment was entered against the County of Ocean providing for twenty-five percent of partial total disability for residual effects of"bilateral carpel tunnel syndrome with de Quervain's syndrome and ulnar nerve disability" stemming from occupational exposure from 1989 through 1991. In 1995, the county courts came under the jurisdiction of the State, and petitioner became a State employee, although her position and work responsibilities remained the same.
On September 20, 1995, petitioner filed claim number 95-034926 against the State Treasury Department, Bureau of Risk Management (Risk Management), alleging that her continued occupational exposure with the State caused her hands and arms to develop increased disability. On October 18, 1995, petitioner underwent a revision of the right carpal tunnel release that she received in 1991 by receiving a right finger trigger release of her right thumb. She remained out of work until January 22, 1996, and then returned on light duty. Petitioner was examined by Dr. Riss on April 8, 1996, and her complaints included continued pain in her right wrist and thumb, loss of grip in her right hand, pins and needles in her fingers, tenderness in her right arm, use of a brace on her right wrist, and returning pain in her left hand as a result of overuse. Dr. Riss was of the opinion that she was totally disabled.
Petitioner was diagnosed with right cubital tunnel syndrome, and on August 14, 1996, Dr. Pess performed an ulnar nerve transposition.
On October 9, 1996, petitioner was examined by the State's medical expert, Dr. A. Gregory McClure. Petitioner voiced the same complaints to Dr. McClure that had been provided to Dr. Riss. Based on a review of the medical history, operative reports and examination, Dr. McClure determined that petitioner had a seven and one-half percent disability in her right arm.
On January 15, 1998, petitioner was again examined by Dr. Riss, who was of the opinion that the new surgeries resulted in a disability of forty-five percent of the right arm and thirty-five percent of the right hand, which reflected an improvement from his prior estimate of sixty-five percent in the right hand. He still held the view that she was totally disabled.
On April 15, 1998, Workers' Compensation Judge Apy entered a judgment for petitioner for forty-five percent of partial total disability on claim number 95-034926 for"residuals of nerve impingement and de Quervaens Syndrome with bilateral carpel tunnel release followed by right ulnar nerve release, right median nerve and trigger thumb release and flexor tenosynovectony with status post anterior transposition and nuerolysis right ulnar nerve at right elbow." Risk Management received credit for the July 25, 1995 judgment entered against the County of Ocean for twenty-five percent of partial total disability.
Petitioner testified that after her receipt of the April 1998 award, her job was changed to a light duty position as a receptionist for the Superior Court. Her responsibilities included working at a reception counter tending to individuals requiring servicing from the courts. She frequently made photocopies, worked on a computer and answered and transferred calls from a main switchboard which had three telephone lines. She was relieved of retrieving tightly packed files since that activity worsened her symptoms. She no longer had to open the mail, but still sorted and documented it. Shortly before she stopped working, at her request, she was provided with a telephone head set to facilitate multi-tasking. She often required assistance from her co-workers and needed frequent breaks.
Petitioner returned to Dr. Pess on October 13, 1998, complaining of numbness from the side of her neck radiating down her shoulder and pain in her arms, hands and fingers. She continued in his care and was sent for an EMG and nerve conduction studies on March 2, 1999, which disclosed left ulnar neuropathy at the elbow site. On March 4, 1999, petitioner filed an application for review of the April 1998 award, seeking additional compensation on the basis that her condition had worsened. Risk Management denied the application. On that same date, petitioner filed claim number 99-007099 for the consequences of her occupational exposure from April 1998 until the filing of that claim. Risk Management denied that claim as well.
On April 6, 1999, an EMG and nerve conduction study of the right upper extremity showed a right median nerve disorder at the wrist. Compared to the June 1995 study, there was a mild worsening of the carpel tunnel syndrome, but some improvement of the right ulnar nerve neuropathy. On May 25, 1999, Dr. Pess administered injections of Xylocaine and Celestone to petitioner's right hand, which resulted in minimal relief. On July 1, 1999, an x-ray of petitioner's right shoulder revealed"possible calcific tendonitis of the greater tuberosity." An MRI of the cervical spine was performed on July 8, 1999, which revealed no abnormalities. On September 14, 1999, petitioner received another injection of Xylocaine and Celestone to her right hand.
On September 28, 1999, she was again examined by Dr. McClure. He found a full range of motion of both arms, and no objective findings to support the complaints of petitioner, who he considered a symptom magnifier. He found there was no change in the disability of the right arm from his previous estimate of seven and one-half percent. However, as a result of the nerve conduction studies, he found a five percent disability of the left arm. He opined that she could return to work, but that she should be restricted from"highly repetitive or highly forceful work" and could not perform beyond a light duty position.
In an October 5, 1999 report, Dr. Pess stated that petitioner would be unable to perform her work duties due to pain in her wrist and elbow. He was of the opinion that her condition would never improve to a degree where she would be able to perform her work duties, and that her injuries were caused by occupational exposure due to repetitive motion.
On October 5, 1999, petitioner filed an application for an ordinary disability pension. On October 13, 1999, she filed a verified petition in which she alleged that she was entitled to benefits under the Second Injury Fund (SIF), to commence when her Workers' Compensation benefits expired. SIF is a Special Compensation Fund that makes benefit payments to workers already partially disabled who subsequently experience a work related injury which when combined, render them totally disabled.
Petitioner worked until November 1999 when she reached ten years of employment and had the minimum time needed to qualify for an ordinary disability pension. The ordinary disability pension was made effective on December 1, 1999, and she received forty percent of her average wage, or $673.49 per month (on November 1, 2001, all ordinary disability pensions were increased to 43.6% of the final wage). Her contributions of $6440.61 yielded an annuity of $79.34 per month, and the Public Employee Retirement System's funded portion was $594.56 per month. Petitioner also filed for Social Security disability, which was initially denied, but granted in July 2001 with payments made retroactive to May 1, 2000.
On January 10, 2000, Dr. Riss examined petitioner for the final time. He again opined that petitioner was totally disabled due to her impairment of mobility and loss of grip strength. He found that her total disability had existed since 1996, and had worsened over time. He found that the loss of function in her left hand was the same as he found in 1998, except for minor changes in supination and flexion; the right hand had minor changes in supination and extension. The only change in the loss of function in the right and left arms was a minor change on supination.
On January 24, 2002 Workers' Compensation Judge Moncher rendered an initial decision regarding petitioner's three claims: the application for review and modification of the April 15, 1998 award, claim number 99-007099 for her occupational exposure from April 1998 to March 4, 1999 and the petition for benefits under the SIF. Testimony by petitioner, Dr. Riss and Dr. McClure was provided over the course of several months. The trial was held pursuant to the SIF bifurcation rule N.J.A.C. 12:235-5.1(e) (recodified from N.J.A.C. 12:235-7.2 and amended by 34 N.J.R. 364(d) effective October 21, 2002). That rule provides for an initial trial with only petitioner and the employer's attorney on the issues of compensability and total disability, while the issue of SIF liability is determined later with the participation of a Deputy Attorney General (DAG) representing the fund. Ibid.
During the trial, petitioner testified that while her job made her symptoms worse, she continued to work to support herself and her child. She further testified that she did not want any additional surgeries because she felt the surgeries only worsened her condition. Additionally, she stated that she had not pursued new employment since every job that she was qualified for involved use of her hands. She indicated that she engages in limited housework with the assistance of her son, and is not able to maintain her house as she once did.
On January 2, 2002, Judge Moncher found that petitioner was totally and permanently disabled and was unlikely to ever improve. His award of benefits was as follows:
I have found that petitioner is totally permanently disabled following manifestation of permanent disability from her last compensable injury and that she is most likely eligible for Second Injury Fund benefits. Therefore, pursuant to N.J.A.C. 12:235-7.2, et seq., I am entering an interim order directing the respondent to begin payment of total permanent disability effective January 1, 2002 at the weekly ...