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Torres v. Verizon Communications

December 7, 2009


On appeal from Department of Labor, Division of Workers' Compensation, Claim No. 2003-23032.

Per curiam.


Argued November 10, 2009

Before Judges Carchman, Parrillo and Lihotz.

Appellant Verizon Communications (Verizon) appeals from a decision of the Workers' Compensation Court: (1) finding petitioner Denise Torres 100% permanently and totally disabled as a result of a compensable accident arising out of and during the course of her employment; and (2) dismissing petitioner's claim against respondent Second Injury Fund (Fund). We affirm.

Denise Torres began working for Verizon as a 411 operator in 1998, when she was twenty-seven years old. Within the year, she was promoted to service assistant, and in November 1999, to repair service clerk. In this position, she was primarily responsible for fielding phone calls from customers needing phone service, attempting to resolve their service problems, and typing reports and repair orders.

On January 18, 2003, petitioner was at work, typing, when she felt a pain and noticed swelling in her right index finger. The next day her right middle and index fingers, thumb, hand and wrist were swollen. The tips of her thumb and index and middle fingers were numb. She went to work that day and experienced pain up to her elbow.

Torres continued working, typing with her left hand and leaving early when permitted. On March 7, 2003, she moved to the front desk, a job that did not require typing. However, the pain and swelling continued. She also developed a burning sensation and by November 2003, the pain and burning gradually spread throughout her upper, and eventually to her lower, extremities. Unable to continue working, Torres left employment on January 22, 2004, on the advice of her treating neurologist, Dr. Gabriel Tatarian.*fn1 Thereafter, she moved to Florida in April 2005 because she can only wear minimal clothing as her skin burns when she is dressed. According to Torres, her condition continues to date. Since moving to Florida, Torres receives authorized pain management treatment from her physician, Dr. Michael Gutman, on a monthly basis.

On July 17, 2003, Torres filed a claim petition against Verizon alleging permanent injury to her neck, right arm, right hand, reflex sympathetic dystrophy (RSD) and psychiatric residuals from typing on January 18, 2003.*fn2 On October 3, 2006, Torres filed a claim petition against the Fund alleging that she was totally and permanently disabled as a result of the compensable events alleged in the verified petitions in conjunction with certain pre-existing disabilities.

Trial on these matters took place over seven days from January 15, 2008 to October 14, 2008. According to the testimony adduced therein, Torres first presented for treatment on January 28, 2003, one week after she first experienced the "stabbing pain" while typing. She was originally diagnosed with carpel tunnel syndrome. However, when a cortisone shot aggravated her symptoms, it was determined that she was not suffering from that condition. After a series of referrals and treatments, including occupational and physical therapy, which did not prove successful, Torres underwent six ganglion block injections into the right side of her neck, with no resulting relief. In fact, following the injections, the pain in Torres' hand and arm traveled to her right shoulder.

As a result, Torres was referred first to Dr. Tatarian, with whom she treated from November 9, 2003 to June 3, 2004, and then to world-renowned RSD specialist Dr. Robert Schwartzman at Hahnemann Hospital. RSD/Complex Regional Pain Syndrome (CRPS) is a neurovascular condition that causes pain in various parts of the body due to constriction of the blood vessels, atrophic changes (weakening), color change, coldness, hair loss, swelling, irregular sweating, and sometimes bone loss. The condition is often caused by minor traumas, including repetitive strain injuries or carpal tunnel syndrome. Although difficult to accurately diagnose through medical testing (i.e., magnetic resonance imaging (MRI), x-ray, electromyography (EMG), or CAT scan), the condition is clinically corroborated by visual and tactile observation - namely skin discoloration, sweating, sensitivity to touch, swelling and temperature variation.

When Dr. Tatarian first saw Torres on January 23, 2004, he originally diagnosed her with CRPS, but "thought it was suspect" because she had no history of trauma and her symptoms began suddenly from an activity she had been performing for years on a regular basis, and also because ordinary treatments had been unsuccessful. He did, however, observe Torres guarding her right hand as well as a blue color in that hand. In his final report of September 9, 2004, Dr. Tatarian concluded that Torres was totally disabled as a result of chronic pain syndrome - small fiber neuropathy - although he could not directly relate the condition to her work on January 18, 2003.

By the time Torres first saw Dr. Schwartzman in December 2004, the pain was in her upper extremities as well as her legs and feet. Dr. Schwartzman recommended IV Lidocaine and Ketamine treatment. As a result, Torres received Lidocaine injections from February 7 to 12, 2005, which temporarily relieved the burning sensation for about two weeks. When the burning resumed, Dr. Schwartzman recommended Ketamine treatment because of the severe nature of her condition, but because it was not covered by her insurance, Torres did not undergo the treatment.

Torres did not receive any further medical treatment in New Jersey before moving to Florida. There, on August 17, 2005, she came under the care of Dr. Michael Gutman, a psychiatrist and neuropsychiatric pain management specialist. Dr. Gutman opined that Torres was suffering from a work-related injury "that eventually led to a CRPS condition," primarily focusing on the right hand and arm, but having progressed to Stage 4, with symptoms of pain in all extremities. Although EMGs and MRIs were normal, Dr. Gutman based his diagnosis of RSD not only on Torres' consistent complaints over a five-year period, but as well on the objective medical findings of other treating ...

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