On appeal from Department of Labor, Division of Workers' Compensation, Claim Nos. 2000-31404; 2003-23669; 2003-34518.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman, Parrillo and Ashrafi.
Petitioner Miguel Valle*fn1 appeals from a final judgment of the Division of Workers' Compensation awarding him fifteen percent partial total permanent disability benefits as a result of a workplace accident on December 17, 1999, and dismissing his additional claims for occupational disease and for total disability against the Second Injury Fund from another workplace accident on August 3, 2002.
These are the pertinent facts. Petitioner was born May 10, 1948, and immigrated to the United States in 1973 where he held a series of manual labor jobs leading up to his employment with respondent LML Supermarkets from 1991 to 2003. Petitioner worked in various departments in the supermarket, including meat, dairy, produce, and at the food court. In the meat department, petitioner had to clean the animal grease off the tables, the floors, and the machines using "[v]ery strong" smelling chemicals. He was not given a mask for this work. His responsibilities also included pushing or carrying plastic receptacles containing meat, which weighed about eighty to a hundred pounds, and the utilization of a jack to push pallets weighing over one hundred fifty pounds. Additionally, petitioner had to clean the walls and floors in the dairy and meat freezers for up to an hour per day, five to six days a week.
Petitioner's first accident occurred on December 17, 1999, while he was cleaning a freezer in the supermarket's dairy department. He was rolling a cart with juice containers back into the freezer, and one of the wheels on the cart got stuck, causing the cart to fall toward him, pinning him against the door handle. The cart weighed between 150 and 200 pounds, and while he was able to hold it up for about five minutes, petitioner then fell to the ground, and the cart and its contents fell on top of his chest.
Petitioner was taken to Hackensack Medical Center Emergency Room, where he was diagnosed with a back contusion and released. Although he could not recall the exact amount of time he missed work, he estimated that he was out of work between two weeks and a month. Petitioner's work record, however, revealed that he returned to work immediately following the accident; he missed one week of work around January 22, 2000.
Petitioner continued doing the same job as before since he needed the "money [and] finances[,]" but claimed to be suffering from "strong pains in the back, problems with [his] hands . . ., respiratory problems as well as . . . pains in [his] chest." According to petitioner, "[d]ay by day the situation got worse and worse."
As a result of this accident, petitioner claimed to have sustained injury to his "[b]ack, nervous system, [and] neurological system." Petitioner was first treated for this injury, outside of the emergency room, by Dr. Jose R. Sanchez-Peña in July 2000. In a January 22, 2001 report, Dr. Sanchez-Peña noted that a July 7, 2000 MRI scan on petitioner revealed "no significant abnormalities." However, a CAT scan revealed disc desiccation "at L4-5 and L5-S1 with focal left side herniation and impingement of anterior aspect of the thecal sac." Dr. Sanchez-Peña diagnosed petitioner with lumbar concussion with hematoma formation, lumbar disc herniation at L4-5, lumbar sprain/strain, disc dissecation at L4-5 and L5-S1, lumbar radiculitis with myelopathy, and lumbosacral apophysitis. This "diagnosis is causally related to the [December 19] accident[,]" and the "injury is severe and permanent in nature and will result in residual dysfunction."
In September 2000, petitioner began to be treated by Dr. Iqbal Ahmad. An October 19, 2000 CT scan revealed "[m]oderate degenerative changes . . . at L5-S1." There was also "left-sided disc herniation impressing on the proximal left S1 nerve root[,]" and "mild generalized disc bulges [at] L3-4 and L4-5 without focal disc herniation[,]" and "Schmorl's nodes . . . within the inferior end plate of L3." Additionally, the CT scan revealed bilateral L3-4 and L4-5 osteoarthritis, but "no compression fracture, spondylolisthesis[,] or spinal stenosis." In December 2000, Dr. Ahmad treated petitioner with "hydrocodone pads and active exercises[,]" which improved his condition. However, he did not, at that time, make an estimate of permanent disability.
Dr. Ahmad's January 2001 evaluation revealed that petitioner's lumbar spine was spastic. The lumbar curve was flattened. Flexion of the low back was lost by 30 degrees; extension was restricted by 15 degrees, lateral bending was lost by 10 degrees. Lasegue's test and straight leg raising test was positive. Both the sacroiliac joints and greater siatic notches were tender. Muscle spasms extended to both the buttocks. Hamstring muscles were spastic. He had difficulty in squatting down and CAT scan did reveal arthritis of the lumbar spine. The disc was herniated at L5-S1 and the discs were bulging between L-3 and L-5.
Dr. Ahmad diagnosed petitioner, at that time, with "spinal sprain and arthritis" and "bulging and herniated discs[,]" but did not estimate a specific disability. Dr. Ahmad did conclude, however, that because of the accident, petitioner "has permanent residual effects."
Dr. Ahmad next treated petitioner in March 2002, at which time petitioner had a "similar history" but had injured "his head and back and he was treated by many physicians and at many hospitals." Dr. Ahmad's assessment and diagnosis was exactly the same as in 2001, except for a slightly reduced loss flexion of the low back. At this time, Dr. Ahmad estimated petitioner suffered from fifty percent partial total disability due to the December 19 accident.
The second back injury occurred on August 3, 2002. While at work at approximately 4:30 to 5:00 a.m., petitioner was attempting to push a plastic receptacle containing meat, when he slipped and fell backwards. When the store manager arrived at 6:00 a.m., he told petitioner to take off work and see a doctor. Although petitioner returned to work after the accident, he was in "a lot of pain[.]" His hours were reduced to two days a week, but even with the reduced hours, he was "unable to work" because of the pains in his back and his hands. According to petitioner, he became "[v]ery depressed" due to his inability to work, and a doctor prescribed a girdle to wear for support.
Following this accident, Dr. Ahmad examined petitioner again on July 31, 2003, and his evaluation revealed the same assessment as before, except with a slightly increased loss of flexion of the low back. The July 2003 report also revealed that "[t]here was no gross neurological deficit in the upper extremities. Deep tendon reflexes were intact." Dr. Ahmad concluded that petitioner's orthopedic disability in July 2003 remained at fifty-percent.
Dr. Ahmad examined petitioner for the last time on February 21, 2007, and his February 28 report was almost identical to his earlier reports, except he noted that petitioner's pain "radiate[d] into the shoulders and the upper extremities." There was, however, "no gross neurological deficit[,]" and "[d]eep tendon reflexes were intact." He concluded that petitioner was "totally disabled as a physiological unit." However, Dr. Ahmad conceded that this report was "more of an occupational claim than an accident[.]" Moreover, Dr. Ahmad testified that the December 17 accident "did not initiate the arthritis" revealed in the September 2000 CT scan, and further admitted that he did not review any MRI films or reports prior to making a diagnosis.
As a result of these injuries, petitioner filed a September 15, 2000 claim petition in the Division of Workers' Compensation for the December 17, 1999 injury and an October 10, 2003 claim petition for the August 3, 2002 injury. On the October 10 claim petition, petitioner sought benefits from the Second Injury Fund, see N.J.S.A. 34:15-95,*fn2 asserting that he "is totally & permanently disabled as a result of [his] pre-existing conditions & [his] last compensable conditions." In support of these petitions, petitioner proffered the testimony and reports of his treating physicians, as described above.
Petitioner also filed a third claim petition, also on October 10, 2003, claiming "[o]ccupational exposure to dust, fumes, pulmonary irritants, bending, lifting, stress, strain, repeated manipulations, adverse environment, causing occupational conditions and diseases." He alleged pulmonary, psychiatric, cardiac, and orthopedic occupational claims, in support of which he proffered the testimony of Dr. Sidney Friedman (pulmonary, cardiac), Dr. Robert Latimer (psychiatric), and Dr. Ahmad (orthopedic).
Dr. Friedman examined petitioner on August 5, 2003. He performed a cardiac exam, an X-ray exam of petitioner's chest, an electrocardiogram (EKG), and a pulmonary function test (PFT). He read the PFT as "normal," yet diagnosed petitioner with "chronic occupational bronchitis[,] for which [he] estimated disability of 30% of total." According to Dr. Friedman, this was a result of petitioner's "exposure to dirt, dust, fumes, and other pulmonary irritants during his work life at the facility that he worked in."
However, Dr. Friedman input the wrong data into petitioner's PFT; his height was input at fifty-eight inches, rather than his actual height, sixty-eight inches. Factors such as age, height, weight, and race are all necessary factors for an accurate PFT. Dr. Friedman was thus unable to state what petitioner's expected results would be if the correct numbers were input into the PFT.
Furthermore, Dr. Friedman based his opinion on petitioner's history and exposure to dirt, dust, fumes, and other pulmonary irritants, as well as his exposure at respondent's facility to "cleaning fluids, numerous inhalents, numerous cleaning fluids, [and] chemicals[.]" According to the Judge of Compensation (JOC), petitioner, however, "failed to identify the substance to which he was exposed and [Dr. Friedman] failed to provide any scientific evidence establishing a causal link between the exposure and his alleged breathing ...