On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, C.P. Nos. 2000-31615, -31628, -31632.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: November 15, 2007
Before Judges Cuff and Lisa.
Respondent Atlantic States Cast Iron Pipe Company (Atlantic States), the employer of petitioner Hector Mercado, appeals from an order for judgment of temporary disability for 264 weeks and a counsel fee based on the temporary disability award. The employer argues that it had no notice that petitioner sought temporary disability benefits. We hold that the employer had sufficient notice that petitioner would seek and might be found eligible for temporary benefits due to the nature of his injury and his request for permanent disability benefits. We remand, however, for specific findings of fact on the issues of eligibility for and duration of the temporary disability benefit.
The parties stipulated that Mercado was employed at Atlantic States and suffered a compensable accident when a 1500 pound pipe fell on his left foot on March 12, 1999. The impact split his reinforced work boot and fractured his left fifth metatarsal and sprained the lisfranc joint.
A week following the accident, petitioner received clearance to return to work on light duty. He was fitted with a large soft boot and returned to his customary work station. He re-injured his foot on June 10, 1999, when he slipped and fell. He was treated at Lehigh Hospital where his foot was placed in a splint and he was given crutches to ambulate. He was cleared for light duty and returned to work, but fell on June 26, 1999, re-injuring the left foot. At that time he commenced physical therapy with Dr. Subervi.
Petitioner was released to return to work without restrictions on July 20, 1999. Petitioner complained that his foot was still swollen and painful. He testified that he asked to be sent to a doctor but his employer refused this request. When his employer refused to authorize treatment, he left the job and sought treatment from a doctor. None of the doctors from whom petitioner sought treatment cleared him to return to work. He underwent multiple lumbar sympathetic blocks. An August 13, 1999 EMG/NCV revealed compression neuropathy of the left peroneal nerve over the fibular head. A bone scan revealed evidence of reflex sympathetic dystrophy (RSD).
From July 20, 1999, through the trial of this matter, petitioner has not worked. He testified that he experiences pain on the bottom of his foot that extends up his left leg to his knee. The pain is constant. He has trouble sleeping because his left foot is extremely sensitive to touch. In fact, he must use a pillow to prevent his right foot and leg from touching his left foot.
He ambulates with the assistance of a cane and has an antalgic gait. He has problems dressing himself. He can drive but only short distances. He does not shop for food because he cannot carry the parcels. He obtains his food from a restaurant at which a stepson works.
Petitioner also testified that he is depressed and seeing a psychiatrist. He described himself as desperate due to his physical condition, his inability to work, and his lack of income. Since 2004, he has been receiving Social Security Disability benefits. Throughout his treatment, petitioner had been prescribed a variety of medications, including Paxil, Tylenol with Codeine, Naproxen, Catapres TTS patches, and Hydrocodone (a generic form of codeine).
The experts presented by both parties agreed that petitioner was injured on the job. They agreed that he experienced a fracture with nerve damage. They agreed that he developed chronic regional pain syndrome, and that he demonstrated a complex neuropsychiatric impairment with features of anxiety, depression and somatoform disorder. The experts disagreed whether the combined orthopedic, neurological and psychiatric disorders rendered him totally permanently disabled.
Dr. Nicholas Diamond opined that petitioner was not able to return to work because it was difficult for petitioner to concentrate due to the cocktail of medications he takes on a daily basis, his educational and language limitations, and the likelihood that a sedentary job would aggravate his injury. Dr. Richard Rubin, a psychiatrist with a concentration in neurology, opined that petitioner would not return to work due to the nature and scope of his injury and his lack of qualifications for any occupation other than hard manual labor.
On the other hand, Dr. Sidney Bender, a neurologist and psychiatrist, testified that petitioner probably experienced chronic regional pain disorder during 1999 and 2000. At the time of his examination in 2003, however, Dr. Bender found no signs of chronic regional pain disorder or RSD. Petitioner may have experienced a peroneal neuropathy attributable to a tight cast but there was no longer any evidence of this condition. Dr. Bender doubted that petitioner experienced pain to the degree expressed by petitioner. The doctor also described petitioner's psychiatric disorder as an adjustment disorder with depression. He assessed petitioner with a ...