October 9, 2009
KENNETH TRIPP, PETITIONER-APPELLANT,
TEAM STAFF/MR. ROOTER, RESPONDENT-RESPONDENT.
On appeal from the Final Agency Decision of Department of Labor, Division of Workers' Compensation, Docket No. 2002-9674.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 16, 2009
Before Judges Cuff and Waugh.
Plaintiff Kenneth Tripp appeals from the decision of the Department of Labor, Division of Workers' Compensation (Division), determining that his disability was only forty-five percent partial total. We remand to the Division for further consideration and clarification of its decision.
On June 6, 2000, Kenneth Tripp was working as a plumber employed by Team Staff when he injured his lower back. The injury occurred while Tripp was carrying a 170 pound sewer cleaning machine up a set of basement stairs. Tripp immediately informed his employer, who referred him to a Dr. Yucis. After examining Tripp, Yucis prescribed medications and ordered an MRI of the lumbar spine that was performed on July 10, 2000. The MRI revealed a prominent disc herniation at the L4-5 level.
Tripp was then referred to Orthopaedic, Sports Medicine and Rehabilitation Center, P.A., (Center) in Red Bank, where he was initially seen by Dr. Daniel J. Mulholland on July 19, 2000. Mulholland noted that the MRI showed a left-sided para-central herniated lumbar disk at the L4-5 level that appeared to be displacing the L5 nerve root. Mulholland diagnosed Tripp with a herniated lumbar disc and prescribed a battery of physical therapy and medications. At a follow up visit on August 16, 2000, Mulholland prescribed epidural injections with Dr. Scott E. Metzger. On September 20, 2000, Mulholland noted that Tripp still had pain and weakness despite the completion of the first stage of epidural injections.
On October 26, 2000, Mulholland noted that Tripp had completed the prescribed epidurals but was still experiencing significant pain. Tripp was then referred to a surgeon, Dr. Arthur H. Phair, also of the Center, who noted that Tripp completed physical therapy and epidural injections without major improvement. Phair also reviewed Tripp's MRI and confirmed a moderately large central disc herniation and an extruded fragment at the L4-5 level, and further observed a disc bulge at the L5-S1 level. Phair recommended microdiscectomy surgery with a warning that "future surgery may be a necessity ...." Tripp underwent lumbar spine surgery at Riverview Medical Center in Red Bank on November 9, 2000, at which time Phair performed a decompressive laminectomy on the left side at the L4-5 level with removal of the intervertebral disc at the L4-5 level.
On November 15, 2000, Tripp saw Phair, who noted that Tripp was still in severe pain, which radiated into his left lower extremity. Phair found that the complained of area was neurologically intact. He ordered blood work and another MRI of Tripp's lower back. At follow-up visits in December 2000 and January 2001, Phair noted that Tripp was still experiencing pain.
Team Staff requested that Tripp submit to an evaluation by another doctor. Consequently, Tripp was seen by Dr. John H. de Jong, an orthopedic surgeon on March 1, 2001. De Jong found that "the large herniation at L4-5 would be accident-related," that Tripp needed further treatment, and that "he is not able to return to work." De Jong further found Tripp to be in constant disabling pain and that he would need an additional MRI, and possibly, further lumbar surgery.
The second MRI was performed in March 2001 and showed the possibility of significant lateral recess stenosis related to the scar left from surgery. It also revealed significant deformity of the left ventral aspect of the thecal sac, a deformity of the left lateral recess, and that Tripp's left L5 root was not in its normal location.
On April 17, 2001, Phair reviewed the results of the second MRI and noted that Tripp continued to complain of lower back pain and left side radicular pain. At a follow-up visit in June 2001, Phair again noted that Tripp continued to complain of severe back pain and radicular pain. Phair prescribed a provocative discogram study.
Team Staff requested that Tripp obtain a third opinion by Dr. Michael F. Lospinuso of the Orthopaedic Institute of Central Jersey. On July 17, 2001, Lospinuso examined Tripp and found him to be in "acute distress." Lospinuso noted that Tripp's reflexes were asymmetrical and that Tripp suffered from a sensation deficit and weakness at L5. He recommended a repeat MRI with gadolinium, an EMG study, dynamic x-rays, and review of the original MRI from 2000.
On August 14, 2001, Lospinuso issued a report noting that the studies showed no appreciably identifiable residual fragment in Tripp's lumbar spine. He recommended that Tripp undergo a myelographic study, which was completed. On September 18, 2001, Lospinuso examined Tripp again. He noted that the myelogram showed an abnormality within the L4-5 disk, as well as a blunting of the nerve root at the left side. He reported that, in his opinion, Tripp's pain seemed to be out of proportion to the clinical findings as well as the radiographic findings he reviewed. He added that it "is likely that this patient would not return to his normal line of employment as a plumber with or without an additional surgical reconstructive procedure." Lospinuso concluded that further surgery was the "one viable solution" for Tripp's condition, noting that Tripp was at high risk for further surgery and that he would probably need a four to six month period of post-operative recovery.
On September 25, 2001, Team Staff sent Tripp to Dr. Bruce R. Rosenblum, a neurosurgeon, for a fourth opinion. Rosenblum examined Tripp and reviewed his medical records. He concluded that Tripp suffered from a "failed back surgery syndrome" with recurrent lumbar-sacral radiculopathy and lumbar herniated disk. Rosenblum advised Tripp that he might need to have further back surgery in the form of a "microlumbar discectomy on the left at L4-5 for curative purposes."
On October 17, 2001, Tripp saw Metzger, who performed a myeloscopy to break up the scar tissue in Tripp's lower back. The operation report noted that Metzger was able to break up the scar tissue and relieve pressure on the nerve, resulting in a normal neurogram of the exiting L5 nerve root.
On October 29, 2001, Tripp saw Metzger again, and informed him that his lower extremity pain was basically gone as a result of the surgical procedure performed a week earlier. The residual pain Tripp was experiencing was bilateral in his lower back. Tripp indicated that he had been taking Percocet on average of less than one per day to deal with the pain. Metzger noted that, considering Tripp's pain was worse with extension and appeared no longer to be radicular in nature, it would be worthwhile to perform facet joint injections.
On November 13, 2001, Rosenblum noted that Tripp felt "'100%' better in terms of the left lower extremity" after the scar removal procedure conducted by Metzger. On November 26, 2001, Metzger performed a left-sided sacroiliac joint injection.
He reported that Tripp stated after the procedure that all of his left-sided lower back pain was relieved.
On January 22, 2002, Tripp returned to Rosenblum for a follow-up examination. He found that Tripp continued to have pain radiating to his left buttock and SI joint region that was unabated by Metzger's SI joint injection. Rosenblum recommended a microlumbar discectomy which Tripp underwent on February 7, 2002.
Tripp was next seen by Rosenblum on February 26, 2002. He reported that Tripp had only local back pain and no radicular pain. At the time, Tripp was walking with a flex posture and with the assistance of a cane. Rosenblum recommended that Tripp remain out of work and that he be re-evaluated for further course of action and physical therapy.
On April 9, 2002, Tripp saw Rosenblum, who noted that, although Tripp was still walking with a cane, he was able to ambulate without the device. Rosenblum also noted that there was no focal motor or sensory abnormality.
On April 30, 2002, Tripp filed an application for total disability benefits with the Social Security Administration. On March 21, 2002, Tripp filed his formal claim petition with the Division.
On June 11, 2002, Rosenblum again saw Tripp and noted that Tripp had no complaints at that time. While Tripp was still walking with a cane, he indicated he was only doing so to exercise caution. Tripp's surgical wound was found to be well healed. Rosenblum noted that Tripp was doing "quite well" and had reached "maximal medical improvement."
On July 8, 2002, Tripp visited Metzger. He noted that, five months from Tripp's last surgery, Tripp had reached a plateau and was making slow progress. He reported that Tripp had been "making strides with progressively increasing levels of physical activity" and remained on Percocet and Lidoderm to provide him with an adequate degree of relief. Metzger concluded that Tripp had reached maximal medical improvement and did not recommend further intervention.
On September 10, 2002, Tripp returned to Rosenblum, stating that he had stopped all of his medications for approximately four weeks and was experiencing "recurrent pain down the left lower extremity."
On March 4, 2003, Tripp was again examined by Lospinuso, who concluded that Tripp had a "failed back syndrome." He noted that Tripp was now in chronic pain with an "inability to walk." He indicated that Tripp could not function in his normal line of work and concluded that Tripp would need further pain management treatment, but that further invasive procedures would not be curative.
On March 15, 2004, Tripp saw Dr. Nathan Holtzberg for pain management care. Holtzberg issued Tripp a prescription for OxyContin and Neurontin. In May 2005, Holtzberg performed a procedure to implant a spinal cord stimulator, he later noted that Tripp had only about a thirty percent reduction in back pain, and consequently, decided to discontinue the trial of the spinal cord simulator. On September 14, 2005, Tripp underwent a final surgery for implantation of an intrathecal pump. Tripp continues to be treated by Holtzberg for pain management.
The Workers' Compensation trial began on April 25, 2007 with testimony from Tripp, who was then fifty-three years old and receiving total disability benefits from Social Security. Tripp recounted the details of the accident and his subsequent medical treatment. He testified that he could not lift anything of significant weight, had trouble sleeping, could not go down stairs, and lost the feeling in his left leg on a daily basis. He explained that he had trouble moving about the house, spent most of his time sitting in a chair, and his wife had to help him bathe. Tripp told the trial court he suffers from constant pain and takes OxyContin, Percocet, Neurontin, and medication for depression.
Tripp testified that he could not return to work as a plumber because he "couldn't lift or do any of the low crawling that [is] normally" done by plumbers. Further, the pain injection pump, which had been installed within his stomach, would make laying down impossible. When asked about other kinds of work he might be able to perform, Tripp stated that he "didn't really know anything other than plumbing."
Dr. Floyd Krengel testified on Tripp's behalf. Krengel found Tripp to be one hundred percent orthopedically disabled, a condition Krengel believed was permanent and resulted from Tripp's June 6, 2000, accident.
Dr. Lawrence M. Eisenstein also testified on Tripp's behalf. Dr. Eisenstein opined that Tripp suffered from a neurological disability as a result of the June 6, 2000 injury. He also testified that Tripp suffered from a neuropsychiatric disability resulting from major depression related to his injuries. Eisenstein estimated the total of Tripp's neurological and psychiatric disabilities to be seventy-two-andone-half percent partial total disability.
Tripp introduced into evidence the decision of the Administrative Law Judge (ALJ) in his Social Security case, dated February 23, 2004, which found Tripp to be totally disabled and entitled to benefits. The ALJ noted that Tripp had not engaged in any gainful activity since his accident on June 6, 2000, that his impairment was severe, that he was a credible witness, that his residual functional capacity was limited to lifting less than ten pounds, that Tripp could not stand for more than one-half hour per day, and that he could not walk for more than one-half hour per day. The ALJ also found that Tripp was unable to perform his past relevant work, that he had a limited, eleventh grade education, that his job skills were not transferable to a type of work within the limits of his functional capacity, and that there were not jobs in the economy existing in sufficient numbers that he could perform.
In opposition to Tripp's claim, Team Staff presented the testimony of Dr. Melvin P. Vigman. Vigman opined that Tripp suffers from "chronic pain syndrome," which is causally related to Tripp's injuries of June 6, 2000. The doctor estimated that this condition resulted in a partial psychiatric disability of five percent of partial total disability. However, Vigman's report stated that "this man will never return to work based on this chronic pain syndrome."
Dr. Kenneth C. Peacock also testified on behalf of Team Staff as an orthopedic expert. Peacock had reported that Tripp "likely has a left L5 and S1 radiculopathy," that the condition was causally related to Tripp's June 6, 2000, injury, and that the associated orthopedic disability was only fifteen percent of partial total disability.
On October 1, 2008, the judge of compensation rendered his decision from the bench. He noted that the sole issue before him was the nature and extent of the permanent disability with respect to Tripp's injury. He noted that Peacock and Lospinuso, the later of whom he inaccurately characterized as one of Tripp's treating physicians, had both opined that Tripp's pain appeared out of proportion to their physical findings. The judge also noted that Tripp's June 23, 2003, MRI indicated a bulge at L3-4 but with no nerve root compression.*fn1 He referred to Peacock's finding that Tripp's ability to drive indicated that his complaints were not consistent with the level of pain that he was feeling. The judge concluded that Tripp's statement that the pain became more severe after various treatments lacked credibility.
The judge stressed that the case turned on credibility. He found Peacock to be a credible witness and expressed doubt as to Tripp's credibility, particularly with respect to his reported pain. The judge stressed that the doctors found no bilateral atrophy, which would normally have been present if Tripp was truly suffering. The judge also mentioned an August 31, 2005, record that, after having the pain injection pump installed, Tripp experienced a fifty percent reduction in pain. The judge concluded that while Tripp "experienced objective findings with respect to disability, . . . [his] level of pain and complaints [did] not rise to the level of him being totally disabled." He recognized that Tripp is receiving Social Security disability, but noted that he was not bound by that determination.
The judge concluded that Tripp's level of disability was forty-five percent partial total for postoperative L4-5 disc herniation and disc bulge at L3-4. He calculated Tripp's disability payments to be 270 weeks at $341 a week for a gross amount of $92,070. This appeal follows.
On appeal, Tripp raises the following issues:
POINT ONE: PETITIONER-APPELLANT KENNETH TRIPP HAS PRESENTED CREDIBLE EVIDENCE CONCERNING THE NATURE AND EXTENT OF INJURIES SUSTAINED IN THIS COMPENSABLE ACCIDENT TO SUPPORT A FINDING OF TOTAL DISABILITY, AND THE FINDING OF A 45 PERCENT DISABILITY IS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.
POINT TWO: THE SOCIAL SECURITY AWARD ARISING OUT OF THE SAME INJURIES AND DISABILITIES AS ARE THE SUBJECT OF THIS MATTER CREATES A PRESUMPTION OF CORRECTNESS THAT THE PETITIONER IS TOTALLY DISABLED, THE RESPONDENT FAILED TO PRODUCE CREDIBLE EVIDENCE TO REBUT THAT PRESUMPTION AND THE COURT BELOW FAILED TO SET FORTH FINDINGS AS TO HOW THE PRESUMPTION WAS REBUTTED.
POINT THREE: "ADMISSION" OF MR. TRIPP'S INABILITY TO EVER RETURN TO WORK BY DEFENSE MEDICAL EXPERT DR. VIGMAN MANDATES A FINDING OF TOTAL DISABILITY.
POINT FOUR: THE COURT SHOULD REJECT THE TESTIMONY OF DR. KENNETH PEACOCK AS BEING IMPROPER "NET OPINION" EXPERT TESTIMONY IN THIS WORKERS COMPENSATION PROCEEDING WITH REGARD TO ESTIMATES OF DISABILITY.
POINT FIVE: [THE COMPENSATION JUDGE] CLEARLY COMMITTED A FACTUAL ERROR IN FINDING THAT DR. MICHAEL LOSPINUSO WAS A "TREATING PHYSICIAN," AND [HIS] ERRONEOUS RELIANCE UPON A PASSING COMMENT IN DR. LOSPINUSO'S FIRST INDEPENDENT MEDICAL EXAMINATION REPORT AS THE BASIS FOR FINDING AN ALLEGED "CREDIBILITY ISSUE" IN THIS CASE RELIES ON THAT FACTUAL ERROR AND IS AGAINST THE WEIGHT OF ALL THE CREDIBLE EVIDENCE.
POINT SIX: IT WAS ERROR FOR THE COURT BELOW TO PROHIBIT INTRODUCTION OF EVIDENCE CONCERNING DR. KENNETH PEACOCK'S EARNINGS FROM PERFORMING EXAMINATIONS ON BEHALF OF RESPONDENTS.
On appeal, we must defer to the factual findings of the compensation judge provided they are "supported by substantial credible evidence in the record and are not so wide off the mark as to be manifestly mistaken." Tlumac v. High Bridge Stone, 187 N.J. 567, 573 (2006). In making this evaluation, we must consider the judge of compensation's "opportunity to evaluate witnesses' credibility" and "expertise with respect to weighing the testimony of competing medical experts and appraising the validity of [petitioner's] compensation claims." Ramos v. M & F Fashions, Inc., 154 N.J. 583, 598 (1998). Judges of compensation also have "expertise in assessing the nature and extent of the disability." Colon v. Coordinated Transp., Inc., 141 N.J. 1, 11 (1995). Thus, this court will defer to the findings of the compensation judge, provided that he gives "sufficient reasons for his findings to enable appellate review." Kaneh v. Sunshine Biscuits, 321 N.J. Super. 507, 511 (App. Div. 1999).
In reviewing the record and the judge's oral decision, we note that, in making his credibility determination, the judge relied in part on his mistaken belief that Lospinuso was Tripp's treating doctor.
With respect to the [c]court's findings, I find that this case turns on the credibility of witnesses who testified during the course of the trial. The [c]court notes that the respondent examining doctor, as well as the treating doctor, felt that the petitioner's complaints were out of proportion to the underlying pathology in petitioner's back, and that being Dr. Lospinuso and Dr. Peacock.
The Court finds that Dr. Peacock with respect to his analysis of the petitioner's condition, particularly in the area of the complaints being out of proportion to the pathology, was credible in his testimony and that testimony was, in fact, backed up by the notes of Dr. Lospinuso, who was the treating doctor as opposed to solely examining.
In fact, Lospinuso never treated Tripp, although he offered to do so, but was rather an examining doctor on behalf of Team Staff.
Because the judge set forth other reasons for his decision, including additional views on credibility, we cannot determine the extent to which he would have reached a different result had he not made the factual error concerning Lospinuso. Consequently, we remand the case to the Division with the direction that the compensation judge reconsider his decision in that light. As part of the remand, we also direct that the judge elaborate on his reasons for discounting the decision of the ALJ with respect to Social Security disability and expand his analysis of Vigman's finding of a partial psychiatric disability of five percent of partial total disability in light of Vigman's subsequent statement that "this man will never return to work based on this chronic pain syndrome."
We do not, however, express an opinion, one way or another, as to whether any of the matters outlined above should result in a change in the judge's decision. The compensation judge should provide the Clerk of the Appellate Division and the parties with his decision on the remand within forty-five days of the date of this opinion. We retain jurisdiction.