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Feiteira v. Keebler Corp.

March 14, 2008

JOANA FEITEIRA, PETITIONER-RESPONDENT,
v.
KEEBLER CORPORATION, RESPONDENT-APPELLANT,
v.
SECOND INJURY FUND, RESPONDENT-RESPONDENT.



On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition No. 1998-7122.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 25, 2008

Before Judges S.L. Reisner and Gilroy.

Keebler Corporation (Keebler) appeals from a December 21, 2006 final judgment of the Workers' Compensation Court finding Keebler's employee, petitioner Joana Feiteira, totally and permanently disabled as a result of a compensable injury.*fn1

Because we find that the decision of the Workers' Compensation judge was supported by substantial credible evidence, we affirm.

I.

Petitioner, a machine operator, was injured at work on February 26, 1997, when she slipped on cookie crumbs on the floor, hit her head and was knocked unconscious. She suffered injuries to her shoulder, back and neck. According to petitioner, in 1997, after four months of unsuccessful physical therapy, she had shoulder surgery. The surgery left her dominant right arm useless. At the Workers' Compensation hearing, the judge observed on the record that petitioner's right arm was swollen, was "drastically blue" in color and appeared to be painful, and petitioner's right hand was much colder than her left hand. Petitioner also testified that she suffered severe shooting pains in her neck, and a feeling like "pins and needles" throughout her body, severe enough that at times she could not wear clothing. Her ability to walk was limited, and she suffered from psychiatric problems.

At Keebler's urging, petitioner returned to work in 1997, but she was not able to do anything and stopped working after a few weeks. She has not worked since then. In 1999, she had neck surgery, which was not helpful in relieving her pain. After that, she had surgery to insert a dorsal column stimulator, and she had nerve block injections. Petitioner's husband corroborated her testimony concerning the extent of her disability.

During petitioner's testimony, Keebler's attorney showed portions of a surveillance video purporting to show petitioner using her right arm. The judge discounted much of the video, indicating on the record that the video either was unclear or did not show what counsel claimed it showed.

Dr. Theodora Maio examined petitioner and diagnosed her as having sustained "multi-level disc herniations" to her cervical spine, restricted range of motion of her shoulder, "an impingement syndrome, a rotator cuff tendonitis," and "complex regional pain syndrome (RSD)" of the right arm "with marked loss of range of motion." She also diagnosed "right sciatic neuralgia" as a result of a disc bulge at L-5. According to Dr. Maio, all of the injuries were attributable to the fall on February 26, 1997, including an aggravation of a pre-existing back injury from 1992. She noted that prior to the 1997 accident, petitioner "had been able to work and was functional." In addition to petitioner's physical limitations, Dr. Maio testified that wearing a Duragesic patch containing pain medication "can alter mental capabilities." Dr. Maio testified that as a result of all of her injuries, petitioner was 100% disabled.

Petitioner also presented testimony from Dr. Bruce Johnson, who was board certified in neurology and psychiatry. He examined petitioner in 2001 and 2004. He diagnosed her as having "right suprascapular and auxilliary nerve neuropathy" following her shoulder operation, and RSD of the "right upper extremity," as well as cervical radiculopathy. Dr. Johnson explained that RSD is a neurological disorder affecting the parasympathetic nerve chain, which is next to the spinal cord, which controls the diameter of vessels, therefore, circulation.

He also explained that RSD could cause skin and muscle changes, wasting of the muscles and could spread from the hand to the shoulder. He testified that a person with RSD can have good days and bad days. Sometimes people seem to function okay for a day and then usually the worst days are worse than the better days. So that to the person who hasn't seen a lot of RSD, it can look like a person is malingering, and that is not my experience.

According to Dr. Johnson, the "classical signs" of RSD include "extreme sensitivity to light touch . . . bluish tint to the skin. Weakness [and] swelling." RSD is "very debilitating" and the physical limitations it imposes frequently also result in depression. He attributed the RSD to petitioner's 1997 fall at work and the subsequent surgery. He attributed her severe depression to "the accident and the RSD." He diagnosed petitioner as 100% disabled as a result of the RSD and the depression. He testified that either condition alone would also result in 100% disability. While some pre-existing disability could be attributed to her 1992 ...


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