July 2, 2008
TEDDY VASSILATOS, PETITIONER-RESPONDENT,
MERCER WRECKING RECYCLING CORPORATION, RESPONDENT-APPELLANT,
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.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
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 the social security administration, Dr. Kambolis opined that petitioner is "unable to work, in any capacity, indefinitely."
In late 1999, petitioner fell while descending the stairs in his apartment building. He claimed that his right leg buckled, which caused him to fall down half a flight of stairs. He reported to the Bayonne Hospital emergency room where x-rays were taken; no other treatment was administered. Petitioner claims that the fall cause him to re-injure his right knee and injure his right shoulder.
In a deposition taken in connection with a lawsuit petitioner filed against the Jersey City Housing Authority, petitioner testified that the fall was caused by both his leg buckling and his slipping on "something wet." When confronted with this statement by Mercer Wrecking, petitioner denied giving that response, and he reiterated that the fall was caused exclusively by his injured knee. When petitioner was shown the medical records of Dr. Savatsky, reflecting that he said that he fell when he "slipped on water," petitioner testified that, to him, "slipping" meant the same thing as his knee "buckling." Petitioner worked sporadically, on a part-time basis in 1999 and 2000.
In March or early April of 2000, petitioner slipped as he walked up three steps to enter his building. He alleged that his knee "gave out"; he put his hands out to catch himself and when he hit the ground both his shoulders "came popping up." He injured his left knee when he fell. On April 18, 2000, Dr. Savatsky performed surgery on petitioner's right knee, which he re-injured when he fell down the stairs in 1999. United Healthcare, petitioner's wife's insurance carrier, paid for the cost of this surgery. Petitioner's right knee healed well thereafter. With respect to his left knee, which he injured in the 2000 accident, an MRI performed on May 2, 2000 revealed an ACL tear. Dr. Savatsky recommended surgery to repair this injury.
On May 25, 2000, Dr. Savatsky performed surgery on petitioner's left knee, which was also paid for by United Healthcare. In a follow up report dated June 5, 2000, Dr. Savatsky indicated that petitioner had "few complaints and [wa]s quite comfortable." Petitioner was no longer taking pain medication, he had "minimal or no pain" and normal range of motion. Despite this medical assessment, petitioner filed an amended claim petition on July 24, 2000, seeking compensation for "both knees post-opt, both shoulders, [fractured] right ankle, [fractured] right tibia and fibula, back, left wrist, head trauma, orthopedic, neurological, and neuropsychiatric" impairments.
Dr. Savatsky performed surgery on petitioner's right shoulder on February 1, 2001, and on March 22, 2001, he performed surgery on his left shoulder. Dr. Savatsky indicated that the reason for these surgeries was arthritis. A year later, petitioner consulted with neurologist Dr. Laskin who diagnosed him with post traumatic migraines.
On September 12, 2002, petitioner filed a verified petition seeking benefits from the Second Injury Fund and a motion seeking to have the Commissioner of the Department of Labor, as Trustee of the Second Injury Fund, joined as a party respondent. On August 16, 2002, petitioner filed a second amended claim petition. In this petition, he characterized the extent and character of his injury as including orthopedic, neurological, neuropsychiatric, pulmonary and internal residuals, and cardiac impairments.
From 2002 to 2004 petitioner saw Dr. Schmaus*fn1 for his back. An MRI of the cervical spine performed on July 31, 2003, revealed "degenerative disc disease at C4-5 through C6-7." On July 15, 2004, Dr. Schmaus ordered an MRI of petitioner's lumbar spine, and prescribed pain and anti-inflammatory medication. He also prescribed physical therapy three to four times a week; petitioner has been unable to afford this treatment.
In a report dated April 26, 2004, Dr. Savatsky indicated that petitioner was having "constant" pain in his knees. He again performed surgery on both of petitioner's knees on June 3, 2004.
Petitioner's wife testified that petitioner's behavior changed after the work-related accident. He gets angry easily, has mood swings, and avoids leaving the house and engaging in physical activities. He attempted to commit suicide in 2003. Although he refused hospitalization following the suicide attempt, he agreed to see a psychiatrist on an outpatient basis the following day.
Petitioner testified that he still suffers from headaches, paranoia or depression, difficulty leaving his home, pain in both shoulders, weak and sore knees, back pain, a swollen ankle, and limited movement and stability in both knees. He only sleeps about two to three hours a night. He continues to have pulmonary problems and utilizes three inhalers for bronchitis and infection of the lungs. He takes heart medication and he testified that his current physician has recommended surgery on his heart. He no longer sees a psychiatrist because he cannot afford the co-payments for that treatment. He further testified that his daily life activities are limited since the accident.
At trial, the judge of compensation heard the testimony of six expert witnesses, as well as petitioner and his spouse. Petitioner presented the testimony of an orthopedist, a neurologist, and a cardiologist/internist. Mercer Wrecking called an orthopedic surgeon, a neurologist/psychiatrist, and a cardiologist/internist specializing in pulmonary medicine. After reviewing all of this evidence, the judge of compensation made the following findings:
As previously noted, the issue here is [w]hether Petitioner has met his burden relative to the allegations set forth in his Claim Petition and Amended Claim Petition. The allegations set forth in the Second Amended Claim Petition, as previously set forth, are not part of this Decision nor a part of my deliberations in this matter.
After considering the essentially uncontradicted testimony of the Petitioner and Petitioner's wife's, (sic) and having taken testimony of the numerous medical experts, as well as having reviewed all of the medical reports previously set forth, I have concluded that the Petitioner has, in fact, sustained his burden under N.J.S.A. 34:15-36. Petitioner has clearly and unequivocally presented demonstrable medical evidence relative to, and in support of, the allegations set forth in his Claim Petition and Amended Claim Petition.
I have determined that the Petitioner is permanently and totally disabled from the last compensable accident of September 17, 1997, with multiple orthopedic injuries as follows: Legs: Fracture right ankle and fibula of right leg with surgery to right ankle and right leg with subsequent removal of syndesmotic screws. Three (3) surgeries to right knee; ACL reconstruction to right knee two (2) times; patellofemoral debridement/ chondroplasty and three (3) surgeries to left knee; ACL reconstruction to left knee two (2) times; medial menisectomy, resulting in 70% disability of the right leg; and 70% disability of the left leg.*fn2
Shoulders: Two surgeries to right shoulder; acromioclvicular osteoarthritis and subacromial decompression to the right shoulder; resulting in 35% partial total disability; and two (2) surgeries to left shoulder; acromioclavicular resections to left shoulder, resulting in 35% partial total disability.*fn3
Spine: Lumbar crush injury to dorsal spine (T10-12), resulting in 25% partial total disability; cervical herniated disc, resulting in 25% partial total disability. Cervical radiculopathy, resulting in 5% partial total disability.
Lumbar radiculopathy, resulting in 5% partial total disability. Neuropsychiatric, resulting in 20% partial disability.
For the foregoing, I enter an award as follows: 450 weeks at $496 per week for a total $223,200.
With respect to United Healthcare's claim for reimbursement, the judge found:
[A] lien in the amount of $38,874.80 was properly filed by United Healthcare for medical treatment provided Petitioner. This amount is to be held in escrow pending resolution either by settlement between United Healthcare and Respondent, or Plenary Hearing thereon as to the issue of reasonable and necessary. In the event said parties have not amicably settled this issue before April 17th, the hearing of this issue will commence April 30, 2007 at 9:30 a.m. before me.
Mercer Wrecking argues that in finding petitioner totally disabled, the judge of compensation erred in considering injuries caused by accidents, which were unrelated to the original 1997 accident. We are satisfied that a remand is necessary for the judge of compensation to articulate, with particularity, what effect the 1999 and 2000 accidents had on petitioner's physical and psychiatric well-being.
It is well-settled that "[i]f a reasonably prudent person innocently aggravates the harmful effect of the original injury the original wrongful cause continues to the end, and accomplishes the final result." Amey v. Friendly Ice Cream Shop, 231 N.J. Super. 278, 281 (App. Div. 1989) (quoting Selak v. Murray Rubber Co., 8 N.J. Misc. 838 (Sup. Ct. 1930), aff'd o.b. 108 N.J.L. 548 (E. & A. 1932). An employer may be responsible for an "aggravation of a compensable injury" as well as a "wholly independent injury" as long as the second injury is "directly connected in a chain of physical causation with the compensable injury." Kelly v. Federal Shipbuilding & Dry Dock Co., 1 N.J. Super. 245, 248 (App. Div. 1949) (citing Flanagan v. Charles E. Green & Son, 122 N.J.L. 424 (E. & A. 1938)); see also Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law § 10.01 (2007) ("The basic rule is that a subsequent injury, whether an aggravation of the original injury or a new and distinct injury, is compensable if it is the direct and natural result of a compensable primary injury.").
Our review of the determination in a workers' compensation case is limited to whether the findings are supported by "sufficient credible evidence present in the record." Sager v. O.A. Peterson Constr., Co., 182 N.J. 156, 163-64 (2004) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). We must consider "the proofs as a whole, with due regard to the opportunity of the one who heard the witnesses to judge of their credibility and, in the case of agency review, with due regard also to the agency's expertise where such expertise is a pertinent factor." Id. at 164.
We may not "engage in an independent assessment of the evidence as if [we] were the court of first instance." Ibid. (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). If there is "sufficient credible evidence" to support the agency's conclusions then [we] must uphold its findings, regardless of whether [we] would have reached a different result. Ibid. (citing In re Taylor, 158 N.J. 644, 657 (1999)).
Here, the judge of compensation identified an "intervening accident" as one of the issues in this case. He did not, however, specifically address the intervening 1999 and 2000 accidents in his analysis leading to his award of compensation. He made no distinction between petitioner's original injuries and those caused or aggravated by any subsequent accidents. He made no finding as to whether these subsequent accidents and injuries were causally connected to the original compensable accident. We are thus compelled to remand this matter for the judge of compensation to make the required findings.
As a consequence of his ruling, the judge of compensation dismissed the claims against the Second Injury Fund. Although we have concluded that a remand is necessary because of the injuries petitioner sustained in subsequent accidents, the claims against the Fund can be addressed and resolved within this record. In this light, we affirm the dismissal of the claims against the Fund, albeit for reasons other than those expressed by the court of compensation.
The Legislature created the Second Injury Fund, in an effort to "encourage the hiring by industry of people handicapped by pre-existing disabilities. . . ." Walsh v. RCA/General Elec. Corp., 334 N.J. Super. 1, 6 (App. Div. 2000) (citing Paul v. Baltimore Upholstering Co., 66 N.J. 111, 129 (1974)). The statute "protect[s] employees from being denied employment based on their pre-existing condition and risk of total disability" and "protects the employer from the obligation of absorbing the entire burden of paying for a total disability it did not cause." Id. at 6-7 (citing Paul, supra, 66 N.J. 129; Lewicki v. N.J. Art Foundry, 88 N.J. 75, 83 (1981)).
The Fund is liable when a worker's pre-existing permanent partial disability combined with a work-related accident or disease renders the person totally and permanently disabled. Id. at 6 (citing N.J.S.A. 34:15-95; Lewicki, supra, 88 N.J. at 83). The employer is only obligated to pay the "the value of the disability caused by the occupationally compensable condition related to the employment." Id. at 7 (citing N.J.S.A. 34:15-95; Lewicki, supra, 88 N.J. at 83).
The Fund pays the value of the disability attributable to the worker's pre-existing partial permanent disability. Ibid. (citing N.J.S.A. 34:15-95; Lewicki, supra, 88 N.J. at 83). The burden of proof to establish the statutory criteria is on the party seeking to implicate the Fund. Katz v. Howell, 68 N.J. 125, 132 (1975) (citing Ort v. Taylor-Wharton Co., 47 N.J. 198, 207 (1966)).
In order to prove that a disability is "permanent in quality and partial in character" a petitioner must satisfy two criteria. Perez v. Pantasote, Inc., 95 N.J. 105, 116-17 (1984); N.J.S.A. 34:15-36. First, the petitioner must show "demonstrable objective medical evidence of a functional restriction of the body, its members or organs." Id. at 116. This requires more than the petitioner's subjective complaints. Ibid. Second, the petitioner must show that the injury is "serious enough to merit compensation." Ibid. This can be shown through a "material lessening of an employee's working ability" or an "impairment in carrying on the 'ordinary pursuits of life.'" Id. at 116-17. "[I]mpairment of earnings or earning capacity is not a necessary prerequisite to a finding of partial permanent disability." Id. at 117 (citing Everhart v. Newark Cleaning & Dyeing Co., 119 N.J.L. 108, 111 (E. & A. 1937); Burbage v. Lee, 87 N.J.L. 36 (Sup. Ct. 1915)).
Here, Mercer Wrecking argues that petitioner had a pre-existing orthopedic injury to his knee. However, this fact alone is not legally significant. Although petitioner injured this knee in a car accident in 1993, the subsequent surgery enabled him to resume an active, normal life, including playing sports such as tennis and basketball, and doing work requiring hard labor, such as the work performed for Mercer Wrecking.
Mercer Wrecking did not present any evidence establishing that there was either a "functional restriction of [petitioner's] body, its members or organs" or show that this condition caused a "material lessening of [petitioner's] working ability" or an "impairment in [his] carrying on the 'ordinary pursuits of life.'" See Perez, supra, 95 N.J. at 116-17. Therefore, any injury to his knee did not qualify as a pre-existing permanent partial disability.
We next address Mercer Wrecking's argument that petitioner had a pre-existing psychiatric condition. The record shows that petitioner voluntarily admitted himself to a psychiatric hospital sometime between 1988 and 1990 for a week to ten days, because he was having difficulty controlling his anger. In 1991 he was diagnosed with attention deficit hyperactive disorder, residual type and intermittent explosive disorder and chronic complaints of insomnia. He had three additional psychiatric admissions prior to the accident, two between 1993 and 1995 and one more between 1995 and 1996; the cause of these admissions is unclear.
Dr. Rothman, petitioner's expert in neurology and neuropsychiatry, found that petitioner had "ADD personality disorder, [ ] relatively quiescent for 20 years, now with post traumatic stress disorder, chronic and major depression chronic." He concluded that petitioner was totally disabled, due to the September 17 accident, including a disability of fifty percent from a neuropsychiatric standpoint. Mercer Wrecking points out, however, that Dr. Rothman stated that: (1) "with respect to violent outbursts, if he's having them, they're exacerbations of an underlying condition"; and (2) he would "probably amend" his previous statement and find that petitioner's "major depression" was an "exacerbation of an underlying condition."
However, Dr. Rothman also stated that "violent outbursts" were not a part of his diagnosis or a "cardinal feature" of post traumatic stress disorder or major depression," and he emphasized that major depression was a "chronic process" and prior to the accident "those chronic processes didn't stop [petitioner] from doing anything. In short, he explained that before the accident, petitioner could "function as a normal person." Dr. Rothman's testimony did not establish that petitioner had a pre-existing permanent partial psychiatric disability.
Finally, Mercer Wrecking claims that petitioner had pulmonary and cardiac conditions that predated the 1997 accident. Although this may be true, it is nonetheless legally inconsequential. Petitioner's pulmonary and cardiac conditions were not considered by the judge of compensation because he found these claims were barred by the two year statute of limitations. That ruling is not being challenged on appeal.
Mercer did not prove that petitioner had a pre-existing permanent partial disability. Thus, because the Fund is only liable when a worker's pre-existing permanent partial disability combined with a work-related accident or disease renders the person totally and permanently disabled the court did not err in dismissing the Second Injury Fund from this case. See Walsh, supra, 334 N.J. Super. at 6 (citing N.J.S.A. 34:15-95; Lewicki, supra, 88 N.J. at 83).
The decision of the court of compensation finding petitioner totally disabled is reversed.*fn4 This issue is remanded for further findings consistent with this opinion. The decision dismissing the Second Injury Fund is affirmed.