On appeal from the Division of Workers' Compensation, Department of Labor, Claim Petition No. 2006-30594.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges R. B. Coleman and Simonelli.
Utica National Insurance Company (Utica) appeals from an order for judgment entered January 23, 2008, in the Division of Workers' Compensation (Division) awarding petitioner Elizabeth Vetri permanent and temporary disability benefits pursuant to the Workers' Compensation Act. After a careful review of the record, we affirm the compensation judge's finding of compensable injury and the award of permanent disability benefits. We reverse with respect to the award of temporary disability benefits.
The facts of this case are fairly straightforward. Vetri was employed by Utica and her duties included the performance of clerical work. At the time of Vetri's injury, the Utica office facility in which she worked was a large space consisting of offices and cubicles, with indoor/outdoor carpeting throughout. Vetri testified that on May 30, 2006, she was returning to her workspace from her manager's office when it felt as if her toe had become "stuck in something," her leg twisted, and then she felt an "explosion in [her] knee." Vetri managed to get back to her cubicle and co-workers supplied her with crutches to help her get around the remainder of the day.
The following day Vetri returned to work and continued to use the crutches to walk. When Vetri awoke on the third day, she was unable to stand and her knee was noticeably swollen. Vetri informed her supervisor that she needed medical attention, and called her health benefits carrier who directed her to the Princeton Orthopedic Group. On June 2, Vetri was examined by Dr. Harvey Smires. An MRI revealed a medial meniscus tear and some chondromalacia of the patellar area, as well as a small amount of effusion, i.e. fluid on the joint. On June 22, 2006, Dr. Smires performed a right knee arthroscopy on Vetri, and as a result, she was unable to work from June 1 through July 5, 2006. During this period of time, Vetri received her full salary which was labeled as "sick pay."
Vetri contacted Utica's workers' compensation carrier, Chubb, and spoke with representative Linda Black. Black denied Vetri's claim alleging that Vetri had injured her right knee in an unrelated accident which occurred in 1998. On November 6, 2006, Vetri filed a claim petition with the Division for the injury to her right knee occurring on May 30, 2006. Utica filed an answer asserting that the injury did not arise "out of and in the course of employment."
This matter was tried before the judge of compensation on September 19, October 10, and October 31, 2007. Vetri testified that although she was involved in a car accident in 1998, she did not suffer injuries to her right knee as a result of that accident. Vetri further testified that prior to the injury in 2006, she had led a very active lifestyle. As a result of the injury, Vetri claims she now uses a cane to walk, she cannot kneel on her right knee, dance, or lift heavy objects.
Vetri's orthopedic expert, Dr. Nicholas Diamond, testified that he had examined Vetri on March 22, 2007, and a review of her medical history indicated to him that her right knee was not injured prior to May 30, 2006. Diamond provided the following diagnosis of Vetri's knee:
One would be post-traumatic internal derangement with tear of the medial and lateral meniscus of the right knee. Number two, post-traumatic patellar chondromalacia. Number three, status post right knee arthroscopy, patellar chondroplasty and partial excision of the medial and lateral meniscus. Number four, post traumatic osteoarthritis by clinical impression.
In Diamond's opinion, Vetri had a sixty percent disability in her right leg which was causally related to her 2006 knee injury and subsequent surgery.
Utica offered the expert testimony of Dr. David Gross, an orthopedic surgeon. Gross examined Vetri in June 2007, and testified that her MRI revealed that she had a severely arthritic knee which was confirmed at the time of surgery. Gross further testified that Vetri's description of how the accident transpired was a "classic presentation for arthritis" and posited that Vetri's foot did not get caught on something such as the outdoor carpeting, rather, that her arthritis caused her knee to "lock" which caused her to slip. He concluded that even if there was a "slight twisting motion" during the accident, it was nothing severe enough to cause tears in both the medial and lateral meniscus. In Gross's estimate, Vetri suffered about five percent permanent disability in her right leg as a result of the meniscal tears and the arthroscopic surgery, and he estimated an overall disability, including arthritis, of ten to twelve and one-half percent.
On January 23, 2008, the judge of compensation rendered his decision finding that Vetri's injury did arise out of and in the course of employment. The judge determined that Vetri suffered a thirty-five percent permanent partial disability of the right knee, and awarded a seven and one-half functional loss credit. The judge awarded Vetri permanent disability benefits for 110.25 weeks, ...