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Barney v. County of Monmouth

November 15, 2007

KARLA BARNEY, PETITIONER-RESPONDENT,
v.
COUNTY OF MONMOUTH, RESPONDENT-APPELLANT.



On appeal from Division of Workers' Compensation, Docket No. 2002-8347.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 19, 2007

Before Judges Payne and Sapp-Peterson.

Respondent, the County of Monmouth, appeals from an award of permanent disability benefits by a judge of the workers' compensation court entered in favor of petitioner, Karla Barney, a former sheriff's officer, arguing that the court erred in (1) entering an order for temporary disability and medical benefits after previously determining in an allegedly final order that no medical benefits were payable; (2) granting temporary disability and medical benefits when no medical benefits were sought in the notice of motion and when the award was not supported by sufficient evidence to satisfy the hindsight rule; and (3) in preventing the issue of causation to be explored during the trial on permanency. Having considered the record and the parties' arguments in light of applicable legal precedent, we affirm.

The record discloses that on February 7, 2002, petitioner sustained an injury to her back when she bent and twisted to place her gun belt around her waist. Several days later, petitioner saw her private physician, Dr. Romanella. She reported the injury to her employer, the County, on February 20, 2002, and on March 8, 2002, petitioner filed a workers' compensation claim petition. The claim was accepted and, on February 21, 2002, petitioner saw a doctor employed by the Meridian Health System, to which she had been referred by the County, who diagnosed lower back strain and prescribed four weeks of physical therapy. Petitioner returned to full duty in April 2002.

On February 10, 2003, in connection with her claim for permanent disability benefits, petitioner was examined on behalf of the County by Dr. Arthur Canario. At that time, she complained of pain in the lower back when twisting and bending and of being unable to sleep except on her back. Dr. Canario's report states that petitioner denied complaints of radiculitis, numbness or paresthesia. Following a physical examination, Dr. Canario found no substantiation for petitioner's subjective complaints and found no permanent disability, stating "[t]he mechanism of injury is highly unlikely to produce a lifelong injury."

As a result of an alleged worsening of her condition, petitioner sought a second opinion from a private neurosurgeon, Dr. Jonathan Lustgarden, and following substitution of counsel on October 8, 2003, petitioner filed a motion for medical and temporary disability benefits. The motion was supported by an August 5, 2003 MRI report that indicated a mild diffuse disc bulge at L4-5 with disc material extending into both neural foramina at that level and possible impingement on the right L-4 nerve root, as well as a mild central posterior disc bulge at L5-S1. The motion was also supported by the report of Dr. Lustgarden's examination on September 25, 2003. In that report, Dr. Lustgarden noted petitioner's complaints of nonspecific chronic low back pain syndrome that had improved over time but had not completely resolved, fluctuating in intensity depending on petitioner's activity. The doctor reviewed petitioner's MRI and reported that it was within normal limits, with a very mild disc bulge at L4-5 and very minimal degenerative changes. He found that petitioner's symptoms were out of proportion to any abnormalities noted on the MRI scan, and that his inspection of the MRI films disclosed that "each of the neural foramina throughout the lumbosacral spine is widely patent." The doctor recommended that petitioner be evaluated by a pain management specialist, who might consider either trigger point injections or epidurals. He did not find petitioner to be a surgical candidate.

When the matter was conferenced on October 30, 2003, the judge suggested that the parties consent to an independent medical examination by a court-appointed physician to determine if further treatment were required and that the parties agree to be bound by the doctor's advice. Upon agreement to these terms, petitioner was examined by Dr. Gordon Donald on December 17, 2003. Dr. Donald accepted that petitioner had persistent soft tissue symptoms, which he thought were probably consistent with bilateral sacroiliac joint sprains, which had not been the focus of her treatment to date. While acknowledging that petitioner's low back pain could possibly be discogenic in nature, he found the disc findings on the MRI to be so slight that he doubted their significance, finding no evidence of nerve root compression or irritation. Dr. Donald "strongly" suggested bilateral sacroiliac joint blocks, which would have both diagnostic and therapeutic value. He saw no present need for surgical intervention. Continuation of petitioner's present light employment duty was recommended. Treatment consistent with Dr. Donald's recommendations was ordered on January 30, 2004.

The bilateral sacroiliac joint blocks, when performed, provided no relief. Following a return visit to Dr. Donald on February 17, 2004, he recommended acupuncture, which the judge ordered, over the County's objection, despite the fact that the treatment was not "recognized." Eleven acupuncture treatments, occurring between April 12 and May 5, 2004, were not helpful.

Upon further return to Dr. Donald on May 12, 2004, he ordered a comprehensive neurologic evaluation by a specified doctor,*fn1 as well as a lumbar myelogram and mylo CT scan to rule out neural compression.

At the same time that treatment was being provided by Dr. Donald, petitioner consulted private orthopedic surgeon, Dr. Jacob Rozbruch. His report of an office visit of May 4, 2004 provided the basis for a further motion for temporary disability and medical benefits. Dr. Rozbruch reported petitioner's complaints of lower back pain, radiating down the left leg, with associated numbness of the left foot. His review of the MRI films suggested bilateral foraminal encroachment at L4-5 from a degenerative disc, but no other evidence of nerve root compression. He found a clinical picture of nerve root compression on the left at L4-5, but because it was not well substantiated by the MRI, he recommended a CTT/myelogram of the lumbar spine. If it confirmed compression of the left L4 nerve root in the left neural foramina, then he would recommend decompression surgery at that level.

At a conference with the judge on petitioner's motion for medical and temporary disability benefits,*fn2 held on June 17, 2004, the judge required a further evaluation by Dr. Donald. That examination occurred on June 29, 2004. Although Dr. Donald saw "no significant neural compressive pathology that [he] would consider operative intervention for," Dr. Donald stated in his report that he was "certainly willing to bow to Dr. Rozbruch's judgment and surgical treatment," scheduled for July 8, 2004. Petitioner's motion for medical benefits was denied without prejudice on July 8 as the ...


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