On appeal from the Department of Labor, Division of Workers' Compensation, Claim Petition No. 95-019753.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Fisher.
In this appeal we address whether the workers' compensation judge erred when he found no causal connection between back surgery performed on the petitioner and a work-related back injury that occurred nine years earlier. The compensation judge found that petitioner's work-related back injury had "plateaued" years earlier; that petitioner, who was HIV-positive, was hospitalized because of respiratory problems, which required intubation; and that, upon extubation, petitioner was found to be suffering from quadriparesis, which necessitated the surgery in question. The judge's finding of an inadequate causal connection between the work-related injury and the surgery in question is based on his application of correct principles of law and on evidence he was entitled to credit. Accordingly, we affirm.
The record reveals that petitioner suffered an injury to his cervical spine as the result of a work-related accident on December 16, 1994. In the workers' compensation proceedings that followed, petitioner received permanent disability awards on June 11, 1996, May 14, 2001, and August 1, 2005. The last of these orders approved a settlement in petitioner's favor for 80% partial total disability for the residuals of cervical herniations at C3-C4 and C6-C7; that order also recognized that the parties contested whether there was a "causal relationship" between the work injury and a surgical procedure performed by Dr. Jason Cohen on petitioner at Monmouth Medical Center on April 18, 2003 -- an issue reserved for a later date.
An evidentiary hearing took place on May 30 and July 28, 2008. During that hearing, the workers' compensation judge heard the testimony of Dr. Cohen, who was called by the petitioner, and the testimony of Dr. Cary Glastein, who was called by respondent.
In his findings, the judge recognized that Dr. Glastein had treated petitioner's back condition from 1995 until early 2002. Dr. Glastein described how petitioner's condition "fluctuated as is normal with herniated discs as the condition can get better and worse[,] on and off." Dr. Glastein explained how the condition had become "stable and that there was no need for surgery for the disc." The judge also found that petitioner had declined surgery on a number of occasions prior to 2002.
On March 17, 2003, petitioner presented to the emergency room at Monmouth Medical Center in respiratory distress, where he was diagnosed with severe bilateral pneumonia and hypoxia. Dr. Cohen acknowledged, and there is no dispute, that these respiratory problems resulted because petitioner was HIV positive. Petitioner remained hospitalized and, as his condition worsened, he was intubated in order to assist breathing.
In a report prepared at the time, Dr. Cohen explained the history leading up to the surgery in question. He indicated that petitioner "was able to walk and move his upper extremities without difficulty, just with some gait ataxia" prior to becoming "sick with pneumonia," and, to relieve his breathing difficulties, petitioner was intubated and, upon extubation, "found to be quadriparetic, could not move his right upper extremity other than some muscle twitches . . . [and] could move his left upper extremeity and his legs but only with difficulty." Dr. Cohen then stated:
An MRI of the cervical spine was obtained, which showed further progression of his C3-C4 disk herniation completely compressing the spinal cord with significant myelomalacia cord edema. The patient was started on steroids, did not respond. Orthopedic consultation was obtained. The patient was evaluated, deemed necessary to undergo urgent spinal cord decompression to give him the best possible chance of any neurologic recovery.
Despite insisting there was a link between the C3-C4 disk herniation, which was caused by the work-related injury, and the need for the April 2003 spinal surgery, Dr. Cohen acknowledged in his testimony that he fe[lt] the need for surgery was the insult [that] occurred to his spinal cord, okay. I can't tell you exactly what that was, whether that was the lack of oxygenation from the hypoxia or whether there was increased pressure that occurred during the intubation. One of those two things is the most likely cause that precipitated the need for surgery.
In his testimony, Dr. Glastein testified that petitioner was hospitalized in 2003 for a condition "very common in HIV-infected patients," and that at the time petitioner was "[t]otally ambulatory" in that he was able to walk and move his upper extremities without difficulty. According to Dr. Glastein, the need for the April 2003 surgery resulted from a ...