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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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, ...