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Barney v. County of Monmouth


November 15, 2007


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

Per curiam.


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 result of Dr. Donald's report. Any request for temporary disability benefits remained unaddressed. Such were terminated by the County as of July 2, 2004.

Lumbar decompression surgery at L5-S1 was conducted on July 8.

On July 19, 2004, petitioner moved for temporary disability benefits from July 2, 2004 to the present and on a continuing basis during the period of petitioner's disability. Although petitioner did not request medical benefits in her motion, in supporting briefing, she argued:

Pursuant to N.J.S.A. 34:15-15, because the surgery was effective in relieving Petitioner Karla Barney of some of her complaints, it was "necessary to cure and relieve [Petitioner] of the effects of the injury" and Respondent[] cannot deny the resulting obligations.

In response, the County argued that because the court's order of July 8, 2004 was entered without prejudice, petitioner retained the right to argue the issues of entitlement to medical, temporary and permanent benefits at trial. Similarly, the County could argue causation at that time. But until trial occurred, either at the conclusion of treatment or in connection with petitioner's permanency claim, the court should not modify its July 8, 2004 order denying benefits.

In a decision placed on the record on December 6, 2004 and incorporated in a December 7 order, the judge granted both temporary disability and medical benefits. In that connection, the judge relied on Dr. Donald's statement that he would "bow to Dr. Rozbruch's judgment" as evidence that the treatment was directed to occur by an authorized doctor. He also found that the treatment "clearly made petitioner much better based upon her statements and general medical condition," although it is unclear what evidence supported that statement, since none appears to have been submitted that was relevant to it. A motion for reconsideration, filed by the County, was withdrawn and no appeal from the judge's December 7, 2004 order was filed.

The County, instead, moved on April 27, 2005 for an order re-directing petitioner's treatment to an authorized treating doctor and requiring petitioner to submit to a medical examination by an expert chosen by the County to render an opinion regarding petitioner's treatment status and ability to return to full duty. In an affidavit in support of the motion, counsel for the County did not challenge the surgery performed by Dr. Rozbruch. Rather, it noted that the doctor cleared petitioner for work on November 6, 2004, but that petitioner had not reported for duty. Counsel then claimed that petitioner's failure to return to work was occasioned by unrelated foot surgery, and he suggested that petitioner was in fact working elsewhere while claiming to be disabled. The motion was resolved by the parties' agreement, embodied in a September 1, 2005 order, to refer petitioner to Dr. Steven Reich for an assessment of her treatment status, and to be bound by his evaluation.

On November 9, 2005, petitioner was examined by Dr. Reich. In his report, the doctor recorded petitioner's statement that, after the surgery, "she did have some initial improvement of some of her symptoms, but noted that in general, her symptoms have close to worsened to baseline. She notes that roughly 59% of her pain is attributable to her back and 50% is attributable to her lower extremity." After a review of petitioner's records and diagnostic testing, Dr. Reich stated:

I am certainly in agreement with Dr. Gordon Donald as well as [another examining physician] that there was no clear evidence of neural compression. Certainly the myelogram and MRI do not reveal discrete nerve root compression. Again, Dr. Rozbruch's notes indicated that he was considering left L4 pathology and an L5-S1 disc herniation only treats S1 nerve root irritation. Unfortunately, she has not had significant improvement from her operative intervention.

Dr. Reich then gave the following opinion:

At the current time, there is clearly no role for any consideration of any further intervention. I would state that she is at maximal medical improvement from spine surgical intervention. Unfortunately, there is nothing that I can provide her that would help her in any meaningful way. Again, her functional capacity evaluation demonstrates capacities in the sedentary job category and I would allow her to do so. It is likely probable that she has significantly greater strength, but due to her self-limitation, she is limited to sedentary function.

Temporary disability and medical benefits were accordingly terminated as of December 15, 2005.

In anticipation of a trial on permanency, medical examinations were conducted and reports received from Dr. Floyd Krengel and Dr. Lawrence Eisenstein, for the petitioner, and Dr. Peter Blumenthal and Dr. Allen Josephs, for the County. In his report, Dr. Blumenthal concluded that:

[B]oth Dr. Reich and I had some left-sided radicular findings during our examination and Dr. Canario, Dr. Reich, and I agree that the surgery performed was not necessitated by the initial event in 2002. This lady's present disabilities are not related to this incident. Furthermore, they are in part related to the surgery performed.

Despite this conclusion, the County did not further challenge the judge's December 7, 2004 order for payment of medical and temporary disability benefits and, as disclosed by the pretrial order, it did not place causation in issue at the pretrial conference, but only permanent injury.

At the commencement of the permanency trial, the County nonetheless sought to raise permanency as an issue. Its attorney stated at the trial's commencement: "we are here for the first day of trial, as your Honor has indicated, and the issue as far as the County is concerned, is causation, as well as extent of permanent injury." The following exchange then occurred:

[PETITIONER'S COUNSEL]: Your Honor, I have to take issue with that. Pretrial memorandum clearly has the only issue as nature and extent of permanent disability and fees due my office on motions for med. and temp. and those are the only issue[s].

THE COURT: There was a motion for med. and temp.?

[PETITIONER'S COUNSEL]: Multiple, and multiple benefits paid under those orders.

THE COURT: The order was entered then? In other words, it was determined that the matter was compensable at that time and that it was causally related?

[PETITIONER'S COUNSEL]: That's correct.

[COUNTY'S COUNSEL]: I agree with that.

THE COURT: So the only issue then would be the extent of permanent disability. All the med. and temp. is paid?

[PETITIONER'S COUNSEL]: Yes. The County did not object to this conclusion.

At trial, objections were sustained to cross-examination of petitioner by the County regarding the date of onset of disabling pain and petitioner's awareness of the fact that Dr. Donald did not recommend surgery. Additionally, the judge barred cross-examination of petitioner's expert, Dr. Krengel, regarding the necessity of Dr. Rozbruch's surgery. Nonetheless, the County's expert, Dr. Blumenthal was permitted to testify that the surgery did not yield any substantial benefit, and to apportion petitioner's disability between that caused by the initial incident and that caused by the surgery, although the judge declined to accept the apportionment as relevant to the issue of permanency.

Following a finding of permanency of 35% of partial total, petitioner was awarded $61,530. The County has appealed.

It its brief on appeal, the County asserts several procedural objections to the judge's consideration of petitioner's request for medical benefits following entry of the July 8, 2004 order denying such benefits. We reject those arguments, noting that the July order was entered without prejudice, and thus remained subject to review and potential revision.

Moreover, petitioner's subsequent request for medical benefits, contained in briefing in support of a motion for temporary disability benefits that the County concedes was properly filed,*fn3 presented a theory of recovery that was different from that previously advanced and that could not have been asserted in the absence of the July 8, 2004 order declining to authorize further medical care. In her brief, petitioner argued that payment by the County for her unauthorized surgery should be required, despite the July 8 order, because of her demonstrable improvement as a result of the treatment. Although not denominated as such, petitioner's request was premised upon the "hindsight" rule, which we recognized in Benson v. Coca Cola Co., 120 N.J. Super. 60 (App. Div. 1972), holding in circumstances in which adequate medical treatment has been refused by the employer, the employee may seek reimbursement for the cost of unauthorized medical care, which will be granted upon a determination that the treatment offered by the employer was inadequate "and that procured by the employee was reasonably necessary to cure and relieve the [employee] of the effects of the injury and to restore function where restoration was possible." Id. at 69. Without the July 8 order denying further medical benefits, petitioner's claim for relief on this theory would have lacked foundation.

The County additionally raises substantive objections to the judge's order holding that the surgery performed by Dr. Rozbruch was compensable. It argues that Dr. Donald abdicated the authority given to him when he deferred to the findings and course of action proposed by Dr. Rozbruch, while disagreeing with his opinions. The County also challenges the factual basis for the judge's hindsight ruling, stating that nothing in the record at the time of the judge's decision supported the conclusion that petitioner had benefited from the surgery. As a final matter, it challenges certain alleged factual errors in the judge's decision.

We decline to reach the merits of the County's arguments, determining that they were waived as the result of the County's withdrawal of its motion for reconsideration and its failure to otherwise seek a timely hearing on the issues now raised, as well as its failure to appeal the judge's December 7, 2004 order at the time of its entry, as it was entitled to do pursuant to our decisions in Della Rosa v. Van-Rad Contracting Co., Inc., 267 N.J. Super. 290, 293-94 (App. Div. 1993) and Hodgdon v. Project Packaging, Inc., 214 N.J. Super. 352, 360 (App. Div. 1986), certif. denied, 107 N.J. 109 (1987). As we noted there, an order for payment of medical benefits may be docketed in the Superior Court, it may be executed upon, and payment is required in the absence of a stay. Della Rosa, supra, 267 N.J. Super. at 294. Such an order is thus the equivalent of a final judgment that may be directly appealed. Moreover, were the respondent to delay its appeal, the petitioner might be faced with the requirement of repayment, long after medical expenses had been satisfied, Hodgdon, supra, 214 N.J. Super. at 360, and when alternative payment sources had become unavailable as the result of the passage of time.

As a final matter, we reject the County's argument that it was improperly denied its right to challenge causation at the trial on permanency. As we have noted, the County did not raise causation as an issue in the pretrial order, and at trial, the County conceded on the record that it had previously been determined for purposes of temporary disability and medical benefits that petitioner's injuries were compensable and that a causal relationship existed. If the County sought, more than a year and one-half after medical benefits were paid, to challenge that award or to otherwise dispute petitioner's assertion that her disability was work-related, it should have signaled that intent at the pretrial conference, so that petitioner could prepare to meet the County's arguments. It did not do so.

Further, although initially raising causation as an issue at the commencement of trial, the County agreed with the judge's conclusion that the issue had previously been determined, and it offered no further argument addressing the judge's determination to bar causation testimony. The County cannot, now, adopt a contrary position. County of Morris v. Fauver, 153 N.J. 80, 104-05 (1998) (waiver); First American Title Ins. Co. v. Vision Mortgage Corp., Inc., 298 N.J. Super. 138, 143 (App. Div. 1997) (when an issue is conceded, the contrary cannot be argued on appeal); see also Ji v. Palmer, 333 N.J. Super. 451, 459 (App. Div. 2000).


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