On appeal from Final Decision of the New Jersey Department of Labor, Division of Workers' Compensation, Claim Petition No. 2000-21033.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 1, 2010
Before Judges Lihotz and Ashrafi.
Petitioner Jose Medina-Segarra appeals from a decision of the Division of Workers' Compensation ("the Division") denying his claim for increased permanent disability. We affirm.
In the course of employment by respondent Rudl Fencing & Decking, petitioner injured his back while lifting heavy items on September 1, 1999. He underwent same-day surgery on his lower back in November 1999. He never returned to his job. He filed a claim for workers' compensation and eventually settled the case on July 17, 2001, by order establishing partial permanent disability of 33 and 1/3 percent of total.
In December 2002, petitioner filed a claim petition before the Division to review and modify his award. For reasons not revealed by the record, almost five years lapsed before the Division began a hearing on the claim. In the meantime, petitioner moved to Florida, did not obtain any other employment, and suffered other unrelated medical ailments.
Petitioner testified before a judge of compensation in September 2007. He stated that previously he had pain in his left leg but now it also radiates to his right leg and feels like a knife in his back. He testified that he experiences pain when sitting, walking, or lying down, and he has great difficulty sleeping. Although he testified that his weight has dropped from more than 200 pounds to 164, respondent pointed out that the weight loss came after petitioner suffered a heart attack in 2006. Petitioner also testified about various household tasks that he has difficulty doing and social and recreational activities that he can no longer enjoy, such as riding a bicycle, jogging, fishing, and picking up his grandson.
He described his mental state as "a very fine line between sanity and insanity" as a result of his back pain.
In January 2009, petitioner and respondent each submitted four medical reports in lieu of live testimony from the doctors. Respondent's orthopedic expert, Philip K. Keats, M.D., examined petitioner on March 8, 2004, and compared his examination of that date to one he had conducted on December 4, 2000, about a year after petitioner's back surgery. Dr. Keats concluded that there were no objective findings of additional orthopedic impairment and disability in 2004 as compared to 2000.
Respondent's neuropsychiatric expert, L. Scott Eisenberg, M.D., examined petitioner on March 9, 2004. He noted petitioner's unrelated medical disorders as hypertension, diabetes, and a viral infection of the eye. He also noted that he had previously examined petitioner in December 2000. Dr. Eisenberg found "[a] degree of elaboration" by petitioner regarding his subjective complaints and concluded that there was no objective evidence of any increase in neurologic disability in 2004. He wrote: "Assuming the complaints and his presentation for the neuropsychiatric point of view are bona fide, I would estimate an additional disability in that regard of 2% of partial total related to his back condition."
On behalf of petitioner, Bruce Johnson, M.D., submitted a neuropsychiatric report dated November 16, 2004. Dr. Johnson concluded that petitioner suffers from "bilateral lumbar radiculopathy post-op for laminectomy with permanent neurologic impairment estimated at 70% of total." In addition, Dr. Johnson attributed 30% of total disability to psychiatric impairment resulting from major depression, thus concluding that petitioner was 100% disabled.
Petitioner also submitted two reports dated April 13, 2006. An orthopedic report prepared by Vijaykumar Kulkarni, M.D., found 100% disability based on the back injury. Dr. Kulkarni relied on petitioner's subjective complaints, his own physical examination of petitioner, including range of motion testing, MRI reports from September 1999 and February 2000, and various treatment notes and reports of doctors. Although Dr. Kulkarni's office had also examined petitioner in December 2000, his report of April 2006 did not include a comparison of findings from the two examinations.
The second report submitted by petitioner dated April 13, 2006, was a neuropsychiatric evaluation by Cheryl Wong, M.D. Dr. Wong, like Dr. Johnson in 2004, concluded that neurologic impairments caused by the accident resulted in 70% of total disability and that psychiatric impairment, namely, ...