On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, C.P. No. 2004-28470.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and Newman.
Respondent Alpha Moving & Storage, Inc. (Alpha), appeals an order for judgment from the Workers' Compensation court that awarded petitioner Sasha Sormaz weekly permanent partial disability benefits for 300 weeks at the rate of $332.50 totaling $99,750. The order provided for an overall award since all the injuries resulted from the same incident:
50% permanent partial total (ophthalmological, neurological, neuropsychiatric in nature) for residuals of fracture of orbit of right eye with surgical repair with medpor sheet implant, right macula hemorrhage, right enopthalmos, right periorbital neuralgia, right vitreous floaters, right retinal scarring, right dilated pupil, chronic conjunctivitis, right angle recession areas, sensory loss right side of face, disruption of trigeminal nerve, post traumatic stress disorder.
Workers' Compensation Judge Kovalcik explained the permanent partial award:
disabilities of approximately 25% right eye visual, 20% p.partial total for structural changes, 10% p.partial total neurological, 12-1/2% partial total psychiatric, which disabilities are stacked.
Alpha does not challenge the disability of the right eye but does attack the neurological and psychiatric disabilities. We are satisfied that the psychiatric and neurological disabilities were well-founded. The compensation court properly calculated the award for disability cumulatively. We affirm. There is no dispute that the brutal attack on the petitioner occurred during the course of his employment. Briefly summarized, on the afternoon of April 30, 2004, while on the job as a foreman and mover for Alpha, petitioner was attacked from behind by two co-workers. He was struck in the back of the head, fell to the ground and was rendered unconscious. His attackers repeatedly kicked him in the face and body. A third co-worker intervened before they could kill him. As petitioner regained consciousness, he heard the two co-workers threaten to kill him, and they then ran off.
The police were called. Petitioner was transported by ambulance to Saint Clare's Hospital. It was determined that the orbital bone by petitioner's right eye was fractured.
Petitioner was treated and referred to Dr. Cangemi, who examined his eye. He was then referred to Dr. Janet M. Neigel who performed surgery on the fracture on May 11, 2004. On or about July 26, 2004, petitioner was released by one of the doctors to return to work. However, petitioner never returned to work for Alpha, explaining that he lived across the street from Alpha and that he did not think highly of nor feel safe around the type of people that Alpha hired. Petitioner and his wife decided to move to California because they did not feel safe after the attack and the threats made by the two co-workers who remained at large. While charges were brought against his attackers, they apparently did not appear in court and the record does not disclose what, if any, disposition was effectuated.
In connection with the various injuries sustained by petitioner, we refer to the judge's written opinion of February 13, 2009 where he summarizes the testimony of petitioner and the medical experts. Because the injury to the right eye which is not challenged is the springboard for the diagnosis of post- traumatic stress disorder and proximal to the neurological residuals, we include the judge's discussion of the trauma to the eye.
Petitioner was rushed to the hospital, where it was observed that he had suffered a severe trauma to the right side of his face. He was unable to see out of his right eye and there was initially some concern about retinal detachment. Treatment records reveal that he was determined to have suffered a fracture of the floor of the right orbit and extensive trauma to the anterior and posterior segment of the right eye with resulting hemorrhage in the macular region and around the optic nerve. Ultimately the right orbital fracture was repaired and a medpor sheet implant inserted to cover the resulting defect.
Petitioner credibly testified that his eye tires easily and he experiences blurred vision after 20 to 25 minutes of reading; he has difficulty driving at night because his injured eye is severely affected by the glare of oncoming vehicles; he is bothered by "floaters" drifting across his field of vision; and he occasionally experiences double vision. He testified that he experiences pain in his eye an average of a few times a week; that extremes of temperature, like eating ice cream, can cause pain; that his cheek under the eye down the cheekbone to the gums is numb; that his eyelid sometimes "twitches" by itself for no apparent reason; and that he often generates blood when he blows his nose, particularly in the morning.
There is no disagreement between the ophthalmologic experts as to the presence of visual and structural disabilities related to the right eye and the existence of objective medical evidence to support that determination. Both experts found the petitioner to have suffered ophthalmological disability to the right eye and additional partial total disability for structural and anatomical changes to that eye. Respondent's expert, Dr. Goldfeder, assesses 12% ophthalmological disability and 10% partial total disability for structural and anatomical changes. Petitioner's expert, Dr. Klein, assesses 55% ophthalmological disability and 42.5% partial total disability for structural and anatomical changes.
There is likewise no disagreement between the neurological experts as to the presence of nerve damage on the right side of the petitioner's face consequent to this work related injury. The respondent's neurological expert, Dr. Head, opines that the sensation testing confirming the distribution of the sensation of numbness is a subjective finding while the petitioner's expert, Dr. Wong, characterizes the results as objective. I note the testimony of Dr. Head to the effect that the results of the sensation testing and the Petitioner's complaints of a loss of sensation are consistent with the Petitioner's injury and damage to the trigeminal nerve which is objectively verified. There is no dispute that there is objective evidence of the orbital fracture and repair and I deem that to be a sufficient objective basis to support Petitioner's description of the neurological impairment to his face. While I ascribe merit to Dr. Wong's position that her sensation results constitute an objective result, I need not reach that issue, since there is adequate objective support for the petitioner's subjective complaints. Dr. Head ascribes no neurological disability, while accepting as valid the petitioner's complaints as to loss of sensation consequent to trigeminal nerve damage. It appears that Dr. Head's definition of disability would require a diminution of the ability to work before disability may be assessed, a position inconsistent with the criteria employed for purposes of workers compensation as I understand it. Dr. Wong ascribes 35% permanent partial total neurological disability consequent to the loss of sensation and post concussive disorder without apportioning between the two.
Within less than six months of the attack on the Petitioner he was driving a rented truck to Los Angeles with his wife and all of his belongings aboard. Records indicate that his treatment was not fully concluded and his testimony is that he had no definite place to stay and, in fact, that it was three weeks before they found a permanent place to live. The move was made despite the fact that the petitioner, a native of Spain, had never before been to California and his wife had lived her entire 35 years in New York. Neither of them had any family in California and the only reason for the move was to get as far away from the assailants as possible.
Both Dr. Head and Dr. Wong opine that following the incident Petitioner displayed symptoms of Post Traumatic Stress Disorder. Dr. Head testified that Petitioner ". . . had the symptoms of posttraumatic stress disorder . . . [and he had] no reason to doubt that, given the type of experience he described." Dr. Head also acknowledged that the petitioner described continuing occurrence of nightmares, albeit less frequently; symptoms of hyper-vigilance, avoidance behavior, loss of trust in people, a declining social life, persistent fears and other manifestations which Head characterized as "residual symptoms." Dr. Head concluded, however, that "the full syndrome is no longer present. Some elements of it were still present, and they were improving." He went further and opined that most cases of post traumatic stress disorder resolved within three months "and 50 percent of the cases go within a year or two years maximum." When it was pointed out that the petitioner was still displaying "residual symptoms" three years after the ...