July 17, 2008
NANCIE ANZALONE, PETITIONER-RESPONDENT,
On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition No. 2007-20009.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 29, 2008
Before Judges Stern and Sapp-Peterson.
Respondent, Healthsouth, appeals from the order of judgment entered by a judge of the Division of Workers' Compensation on November 5, 2007, directing it to pay "medical and temporary benefits," including bills petitioner, Nancie Anzalone, incurred for shoulder surgery she underwent for a work related injury. Respondent contends the judge of compensation improperly accorded greater weight to the testimony of petitioner's evaluation expert than to the opinion of petitioner's treating physician, "did not make findings sustaining a causal relationship that are supported by the medical evidence[,]" "disregarded the material degree standard in considering whether the work incident was a contributing factor to the need for surgery[,]" and improperly denied its "request to present lay testimony." We have considered these arguments in light of the record, the arguments of counsel and applicable principles, and we are satisfied (1) that the findings of the workers' compensation judge are supported by substantial credible evidence in the record, (2) that the judge did not err in according greater weight to the testimony of petitioner's expert, (3) that the excluded lay opinion testimony would not have altered the outcome and therefore the exclusion of this testimony was not harmful error, and (4) that the court did not disregard the material degree standard.
Petitioner worked as a floor nurse for respondent and, at the time of her injury, had been working for respondent for three months. According to petitioner, on Friday, March 23, 2007, while working the evening shift, petitioner was wheeling a blood pressure cuff affixed to a stand when the stand, which stood about three feet high, tilted. Petitioner reached for the stand with her right arm and felt a burning pain go down her arm to the elbow. She reported the incident to the charge nurse, who reported the matter to the supervisor. Petitioner was told to go the emergency room. Petitioner went to the Ocean Medical Center in Bricktown around 6:00 a.m. the next day where x-rays were taken of her right arm. The x-rays revealed osteopenia and mild osteoarthritic change. Petitioner was placed in a sling and discharged. Petitioner went to work on Monday but reported that she did not feel she could work because of the pain. She was sent to the Community Medical Center (Community), located across the street from Healthsouth. The doctor who treated her diagnosed a bad sprain. Although she returned to Healthsouth, petitioner was still unable to work and took off for about two days. When she returned to work, she was placed on "modified" duty. For the next three weeks, petitioner continued to see the doctor at Community, and although she repeatedly told him she was feeling no better, his initial diagnosis remained unchanged; a bad sprain and arthritis.
At the suggestion of Healthsouth's employee health nurse, petitioner began a three-week course of physical therapy and was referred to Dr. Toby Husserl, an orthopedist, on April 24, 2007.
In a report authored the same day, Dr. Husserl diagnosed petitioner with a "[r]ight shoulder strain, four weeks' duration, occupationally induced." His report also notes that petitioner told him that prior to injuring her right arm trying to catch the falling blood pressure cuff, she had not experienced any previous shoulder problems or difficulty.
At petitioner's request, Dr. Husserl ordered an MRI which revealed (1) "[s]upraspinatus, infraspinatus and subscapularis tendinosis with a large bursal surface tear of the supraspinatus tendon measuring approximately 1.4 cm anterior to posterior";
(2) "[m]oderate joint effusion"; and (3) "[m]oderate amount of fluid in the subacromial/subdeltoid bursa consistent with bursitis." Following his review of the MRI findings with the radiologist, Dr. Husserl authored a second report on June 5, 2007, in which he opined that petitioner has suffered "a significant rotator cuff injury of the right shoulder girdle representing a traumatic inflammatory rotator cuff tear, [for] which I would recommend surgical arthroscopic decompression repair as it appears to be nearly full thickness or full thickness and will certainly progress if not remedied." Dr. Husserl also put petitioner on light duty.
Respondent authorized treatment for petitioner's injuries and continued petitioner on light duty until early July. At that time, respondent denied further treatment because its review of Community's records of petitioner's March 26, 2007 visit disclosed that petitioner reported she started having pain in her shoulder three weeks earlier while exercising at a gym. Respondent also learned that petitioner had reported this earlier injury to her charge nurse.
On July 25, 2007, petitioner filed a claim petition for workers' compensation benefits under the Workers' Compensation Act (Act), N.J.S.A. 34:15-1 to -128, and on August 15, 2007, filed a Notice of Motion for Temporary and Medical Benefits, pursuant to N.J.A.C. 12:235-3.2. In the motion, petitioner sought reinstitution of treatment and temporary disability benefits retroactive to petitioner's termination.*fn1
The hearing on the motion commenced the following month. In addition to herself, petitioner presented Dr. Cary Skolnick, a board certified orthopedic surgeon, while respondent presented the treating physician to whom it referred petitioner for treatment, Dr. Husserl. Respondent also sought to present one of its supervising nurses, Mary Jean Natoli (Natoli), whose proposed testimony would be that petitioner called out sick before the work incident because "she hurt her arm[.]" The judge denied this request and also precluded respondent from introducing an affidavit of Natoli as well.
Petitioner testified that three weeks before the work-related injury, she experienced pain in her arms a day after she had worked out at the gym. She mentioned, during a work orientation class the next day, "my arms hurt. I must have worked out too hard yesterday." She did not seek treatment for this pain. She continued to work over the next three weeks, during which time she "lift[ed] these big machines[,]" maneuvered stroke patients around "in order to change them and put diapers on them and whatever they needed." During the course of those three weeks leading up to the work injury, other than the initial aching she felt for two days after working out at the gym, she had no further symptoms. On cross-examination, she denied taking any over the-the-counter medication for the initial pain she experienced in her arms the day after the gym workout, but acknowledged that she did call out sick that weekend, which would have been the first weekend duty she had been scheduled to work. She returned to work on Monday and, in addition to working without incident over the next three weeks, petitioner testified that she continued to exercise at the gym, using the treadmill and free weights.
Dr. Skolnick testified that petitioner had a pre-existing rotator cuff pathology prior to her work-related injury. He explained,
It clearly is. I mean, a rotator cuff at this person's age group, 60 years old, almost always is aggravated by a small inferior acromial spur which grows in everybody as we age.
Just like people's fingers or their knuckles get wider, well, the AC joint gets wider also which decreases the space for the rotator cuff to move under it.
We have a situation where a rope is going over a cliff for years and any rope starts to fray, starts to thin. There's no question that that probably occurred in this 60-year-old woman.
It is also true that fraying ropes have events, and it could be as simple as in this case lifting an IV pole or anything else that that is the, quote, last straw.
So this woman had a fraying rope which I maintain everybody does at age 60.
Something causes it to slip over the edge. If something causes it to slip over the edge it hurts, there's no question it hurts, and it doesn't just get better quickly.
Now don't get me wrong, she had an incident in a gym that she told me about and your hypothetical refers to as well.
Now that was a few weeks before, however, and maybe that did make her a little bit more irritated in the rotator cuff, but she continued to work and she continued to do her job.
She didn't run to an emergency room. She didn't take time off, but she was able to function for the next three weeks until another event which I'll call the last straw finishes her off.
On cross examination, Dr. Skolnick explained that the weight of the blood pressure machine that petitioner grabbed when it tilted over was not dispositive. Rather, "if it's tipping the actual jump out is the issue. It's the actual jump out that did it, not what it could have been because it won't matter. It's the actual movement of the arm on a quick basis." She described the mechanism as "like having saltwater taffy. You can stretch saltwater taffy forever if you do it slowly, but you can snap it if you do it quickly." She indicated further that the fact that the tear in petitioner's rotator cuff was so large meant that it could have happened with petitioner reaching to the side or slightly to the front. She was also of the opinion that petitioner's age, which was sixty at the time of the injury, and the already eroded condition of the cuff were contributing factors noting that the mechanism of a rotator cuff tear can be caused by wear and tear that just erodes the rope, by an erosion combined with an event that pulls on the rope or an event that rips the rope.
All three can be consistent.
It depends on the state of the rotator cuff, the age of the patient and the quality of the tissue.
Remember, we're not talking about a 23-year-old pitcher here. We're talking about a 61-year-old woman with an already eroded rotator cuff.
Dr. Husserl testified that petitioner's need for rotator cuff surgery was caused by lifting weights rather than by reaching for the blood pressure machine as it tilted over:
Well, the mechanism of injury of a rotator cuff tear usually requires a resistance being applied to the rotator cuff. The mechanism of injury that she described when she was injured said she was injured at work. She was reaching and there was no resistance being applied to the arm.
There was no weight or force being applied to the arm. It was simply reaching. The second reason is the rotator cuff comes under most stress the higher the arm is elevated, the more your arm is up and over.
And in resistance training in the gym, in any weight training activity using machines or as in her case those machines overload the rotator cuff because they require you to elevate your arm above your head level or shoulder level. So that is a mechanism of injury which is quite typical of a rotator cuff injury, and combining the resistance load as well as the position it's just a much more, it's a much more plausible explanation for a rotator cuff tear.
This testimony was inconsistent with Dr. Husserl's April 24, 2007 report in which he described petitioner's injury as "occupationally induced." Dr. Husserl explained that this diagnosis had been made without the benefit of additional information. Specifically, petitioner never disclosed the earlier exercise-induced injury, the fact that she missed a couple of days of work as a result of the earlier injury or that that she had been lifting weights and doing resistance training. This additional information led him to conclude within a reasonable degree of medical certainty that the necessity for surgery was caused by petitioner's exercising routine three weeks prior to the purported work-induced injury. He testified that he did not believe the reaching incident "materially affected [petitioner's] rotator cuff to any significant degree other than giving her pain" and that the pain she described upon reaching was more consistent with nerve irritation.
At the conclusion of the hearing, the court rendered an oral opinion the following day, finding that petitioner sustained a work-related injury to her shoulder that "added to the pre-existing deterioration in the shoulder which Dr. Husserl testified to also." The judge concluded that "there was the stretching to this previously damaged, previously weakened right shoulder and that the Respondent is liable for reasonable and necessary medical treatment to alleviate and lessen the impact of that injury upon her." He reasoned that respondent's "reliance on the subsequent information pointing back to the three-week earlier incident in the gym is misplaced." He rejected the argument advanced by respondent that the degree of the purported work-induced injury was not material, concluding that material degree "is a standard for determining the existence and causal relationship of permanent disability[,] not a standard for temporary disability." He also noted that while ordinarily in a workers' compensation proceeding, greater deference is accorded to the opinion of a treating physician than to the opinion of one retained solely to provide expert medical testimony, Dr. Husserl's opinion as to causal relationship was not necessarily based solely in or grounded in his treatment of the patient and the diagnosis. The diagnosis of the individual, the information that he's relying on is the very same information that was presented to Dr. Skolnick. Here he's testifying in response to a hypothetical opinion, to factual information outside the scope of his attention to the patient as the treating physician. He's testifying as a forensic witness, one whose opinion is entitled to very serious consideration as is Dr. Skolnick's, but certainly no more weight than I would give Dr. Skolnick's testimony.
On November 5, 2007, the judge entered judgment in favor of petitioner. The order directed, among other relief, that respondent "is liable for reasonable and necessary medical treatment including surgery . . . and such other treatment as may be recommended by Dr. Husserl. Respondent is liable temporary disability retroactive to July 11, 2007[.]" The judge denied respondent's subsequent motion to stay enforcement of the judgment, and respondent's timely notice of appeal followed. On January 9, 2008, we denied respondent's motion to stay enforcement of the judgment.
On appeal, respondent raises the following points for our consideration:
POINT I THE TRIAL JUDGE IMPROPERLY GAVE GREATER WEIGHT TO AN EVALUATING EXPERT AND FAILED TO GIVE GREATER WEIGHT TO THE OPINION OF THE TREATING DOCTOR.
POINT II THE TRIAL JUDGE DID NOT MAKE FINDINGS SUSTAINING CAUSAL RELATIONSHIP THAT ARE SUPPORTED BY THE MEDICAL EVIDENCE.
POINT III THE TRIAL JUDGE DISREGARDED THE MATERIAL DEGREE STANDARD IN CONSIDERING WHETHER THE WORK INCIDENT WAS A CONTRIBUTING FACTOR TO THE NEED FOR SURGERY.
POINT IV THE TRIAL JUDGE DENIED APPELLANT'S REQUEST TO PRESENT LAY TESTIMONY.
Our standard of review from a determination of a judge of workers' compensation is the same standard we employ in the review of any non-jury case. Brock v. Pub. Serv. Elec. & Gas Co., 149 N.J. 378, 383 (1997). "We may not substitute our own factfinding for that of the Judge of Compensation even if we were inclined to do so." Lombardo v. Revlon, Inc., 328 N.J. Super. 484, 488 (App. Div. 2000). Rather, our task is to decide "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record,' considering 'the proofs as a whole'. . . ." Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). Further, we accord "due regard to the opportunity of the one who heard the witnesses to judge of their credibility[,]" and, where an agency's expertise is a factor, give due regard to that expertise. Ibid.
Against this standard of review, we first reject the contention that the judge improperly accorded greater weight to the testimony of Dr. Skolnick, petitioner's expert, over that of Dr. Husserl, petitioner's treating physician. As the judge noted, the change in Dr. Husserl's testimony related to causation that was occasioned not by virtue of his treatment but on the basis of additional information provided to him by respondent after the treatment had concluded. In that regard, his opinion on causation was more characteristic of a forensic opinion rather than an opinion reached solely for treatment purposes and was therefore not entitled to any greater weight.
Next, respondent's claim that the judge failed to make factual findings sufficient to causally establish that petitioner's injury was work-induced is without sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following comments.
The judge found the testimony of petitioner describing the sequence of events leading up to the work-induced injury credible. He found that petitioner had a pre-existing pathology in her right shoulder that was serious to the point that when she reached for the tilting blood pressure stand "there was the stretching to this previously damaged, previously weakened right shoulder[.]" Those findings are entitled to our deference, particularly where the record supports such a conclusion. Close, supra, 44 N.J. at 599.
Notably, there is no dispute that following petitioner's report to her supervisor that she believed she hurt her arm at the gym, she called out sick for her scheduled weekend duty over the next two days. Petitioner then returned to work the following Monday and worked, without incident, for the next three weeks. Her ability to perform all of her nursing responsibilities, which included lifting machines and moving patients, was consistent with her testimony that the pain in her arms from exercising subsided after a brief period of time. Respondent's contention simply invites us to impermissibly substitute our judgment for that of the trial judge. Gallichio v. Gumina, 35 N.J. Super. 442, 447 (App. Div. 1955). We find no basis for our intervention into the judge's credibility determinations.
Likewise, we agree with the compensation judge that the evaluation of whether the claimed work-induced accident was a contributing factor to a material degree or de minimis is not applicable to the provision of temporary medical benefits. While we accord deference to the factual findings of a judge of workers' compensation, "we do not owe deference to the [workers' compensation judge's] determination of [a] legal question . . . ." Smerling v. Harrah's Entertainment, Inc., 389 N.J. Super. 181, 187-88 (App. Div. 2001) (citing Muise v. GPU, Inc., 332 N.J. Super. 140, 157 (App. Div. 2000)). We are, however, in complete agreement that the award of temporary disability payments to petitioner under the Act does not require a determination that petitioner's work-related injury contributed in material degree to her inability to work. Rather, petitioner was only required to present credible evidence that she sustained a work-related injury that caused her to be absent from work. Williams v. Topps Appliance City, 239 N.J. Super. 528, 533 (App. Div. 1989).
We have previously noted that while the Act defines permanent total disability and permanent partial disability, N.J.S.A. 34:15-36, it contains no definition of temporary disability. James v. Bd. of Trs., Pub. Employees' Ret. Sys., 323 N.J. Super. 100, 105 (App. Div. 1999). The reference to "material degree" in the statute relates solely to the definition of "disability permanent in quality":
"Disability permanent in quality and partial in character" means a permanent impairment caused by a compensable accident or compensable occupational disease, based upon demonstrable objective medical evidence, which restricts the function of the body or of its members or organs; included in the criteria which shall be considered shall be whether there has been a lessening to a material degree of an employee's working ability.
There is no statutory language under the Act or otherwise that conditions compensability for temporary disability upon a finding that the injury has lessened the worker's ability to work in a material degree. Hence, we find respondent's attempt to impose such a standard of proof upon petitioner in the present matter lacking in authority and unpersuasive. There is no dispute that petitioner sustained an injury and that the injury prevented her from performing her full duties and left her without employment when respondent determined that light duty was no longer available. The workers' compensation judge did not err when he declined to impose upon petitioner the additional proof element "material degree" advanced by respondent.
Finally, respondent's claim that the judge erred in excluding lay testimony is equally without merit. The decision to limit the scope and number of witnesses who testify in a proceeding is committed to the discretion of the judge. See State v. Mucci, 25 N.J. 423, 433 (1958); N.J.R.E. 611(a)(2); N.J.R.E. 403(b). Here, the testimony excluded would not have altered the outcome of the matter. State v. Jenewicz, 193 N.J. 440, 475 (2008). As the judge noted, there was no dispute that three weeks before petitioner's work-related accident, she experienced pain in her arms after exercising and the pain was severe enough that she called out sick for two days. The proposed testimony would not have provided the court with any additional facts. Therefore, we find no abuse of the judge's discretion in excluding the testimony or affidavit. Mucci, supra, 25 N.J. at 433.