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Vassilatos v. Mercer Wrecking Recycling Corp.

July 2, 2008

TEDDY VASSILATOS, PETITIONER-RESPONDENT,
v.
MERCER WRECKING RECYCLING CORPORATION, RESPONDENT-APPELLANT,
v.
SECOND INJURY FUND RESPONDENT-RESPONDENT, AND UNITED HEALTHCARE PETITIONER/INTERVENOR-RESPONDENT.



On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, 1997-042470.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 1, 2008

Before Judges Fuentes and Grall.

Mercer Wrecking Recycling Corporation (Mercer Wrecking) appeals from the decision of the court of compensation which found petitioner, Teddy Vassilatos, totally and permanently disabled as a result of a work-related accident. Mercer Wrecking argues that the judge of compensation erred in failing to find that: (1) petitioner had pre-existing conditions for which the Second Injury Fund (the Fund) should share liability; and (2) intervening accidents, unrelated to the original compensable injury, contributed to petitioner's disability.

After reviewing the record before us, we reverse. We are satisfied that the court of compensation failed to make specific findings as to how, if at all, two intervening accidents may have caused or contributed to the injuries caused by the work-related accident. We affirm, however, the decision dismissing the Second Injury Fund.

This case has a long and complicated procedural and factual history. We will limit our discussion to those facts necessary to address the issues raised.

I.

On September 17, 1997, petitioner was employed as a laborer by Mercer Wrecking, and assigned to a demolition project located in Jersey City. While working on the fourteenth floor of a building, petitioner stepped on debris concealing an open shaft, causing him to fall into the shaft up to his chin. Both of his arms became stuck in the hole in an almost upright position; his right leg wrapped around his neck, preventing him from falling down the fourteen stories below him.

Petitioner suffered a fractured ankle and the bone "popped right through the skin." He also complained of pain following the accident in his back, his right knee, and both his shoulders. He was treated at the Jersey City Medical Center, and thereafter consulted with Dr. Mastromonico. Petitioner filed a petition for workers' compensation benefits based on a fractured right ankle, fractured right tibia and fibula, low back injury, and left shoulder injury.

Dr. Mastromonico performed an emergency open reduction surgery on petitioner's ankle. Following the surgery, petitioner's leg was in a cast for approximately seven months.

After the accident, petitioner was placed on temporary disability beginning on September 20, 1997 and he received $992 every two weeks. Respondent's workers' compensation carrier, AIG Claim Services, paid for all of the work performed by Dr. Mastromonico.

Dr. Mastromonico treated petitioner for about ten to twelve months. On December 1, 1997, he ordered an MRI of petitioner's knee, which found a "small effusion." Dr. Mastromonico attributed the only other abnormality detected to a knee surgery petitioner had years earlier. Based on petitioner's complaints of pain, Dr. Mastromonico suspected there might be additional problems. He thus requested approval to perform an arthroscopy "to investigate why [petitioner] had such protracted pain in his right knee." Petitioner's motion for approval of this procedure was denied. The surgery was not performed.

On March 17, 1998, Dr. Mastromonico surgically removed the screws from petitioner's ankle. Despite concerns over a possible rotator cuff tear, an MRI of petitioner's left shoulder performed on July 2, 1998 revealed only tendenopathy and tendonitis. Throughout this time period, petitioner continued to complain of pain in the right knee, left and right shoulder, and lower back, headaches, and soreness in his wrist.

Petitioner continued on this course until the compensation carrier stopped authorization for further treatment and terminated his temporary disability payments. At trial before the judge of compensation, petitioner testified that his symptoms and complaints continued thereafter. He also testified that he had pulmonary problems, including wheezing and coughing up black phlegm. These symptoms were manifest before he started working for respondent, and worsened following his employment. He received treatment from a breathing machine and still uses an inhaler two to three times a day.

About a year after the accident, petitioner began experiencing cardiac problems, including a rapid heartbeat, chest pains, and numbness in his arm. He had similar symptoms before the accident, but they increased in intensity and duration following the accident. After the accident, petitioner was diagnosed with bicuspid aortic valve disease, tachycardia and paroxysmal supraventrical tachycardia. The tachycardia worsened from 2001 to 2003. He was hospitalized three times with rapid heart beat.

Near the end of 1998, petitioner began seeing Dr. Kambolis, a psychiatrist who treated him for about five years. According to petitioner, Dr. Kambolis assisted him with his difficulty leaving his apartment, a condition that persisted for over a year. Dr. Kambolis found that, following the accident, petitioner's psychiatric condition deteriorated significantly; he became "increasingly withdrawn, depressed, with mood swings and angry outbursts, and was unable to function."

While under Dr. Kambolis's care, petitioner's symptoms included "depressed mood, feeling hopeless and helpless with inability to concentrate, violent outbursts, chronic insomnia and persistent suicidal thoughts." He also attempted to overdose several times. Dr. Kambolis diagnosed petitioner as suffering from bipolar disorder, attention deficit hyperactive disorder, borderline personality traits, chronic cardiac arrhythmia, restless leg syndrome, and sleep apnea. In a letter to ...


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