April 19, 2010
HECTOR MERCADO, PETITIONER-RESPONDENT,
ATLANTIC STATES CAST IRON PIPE COMPANY, RESPONDENT-APPELLANT.
On appeal from The New Jersey Division of Workers' Compensation, Docket Nos. 2000-31615, 2000-31628, 2000-31632.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 16, 2009
Before Judges Payne, Miniman and Waugh.
Employer, Atlantic States Cast Iron Pipe Co., appeals from a determination of a judge of the workers' compensation court that petitioner, Hector Mercado, is entitled to $100,000 in temporary disability benefits arising from a displaced fracture of the left fifth metatarsal,*fn1 sustained on March 12, 1999, when a 1500-pound pipe fell on his foot. On appeal, the employer claims that the judge's findings of fact, required by us upon remand from a prior appeal, Mercado v. Atlantic States Cast Iron Pipe Co., No. A-0268-06T3 (App. Div. March 19, 2008), are not supported by the evidence. The employer argues additionally that Mercado is not entitled to an attorney's fee award of $20,000 because temporary disability benefits were not sought in the initial proceeding, and thus none of counsel's efforts can be attributed to that aspect of the award. An award of $87,480 in permanent benefits was affirmed in the prior appeal.
A trial of the matter took place over eight days between April 15, 2004 and March 30, 2006. At issue, according to petitioner's attorney, was "the nature and extent of the disability and whether or not the Petitioner's additional treatment was reasonable and necessary." Testimony was provided by petitioner and his experts, Nicholas Diamond, D.O., a physician board-certified in pain management, and Richard D. Rubin, M.D., a physician board-certified in psychiatry. Experts Sidney E. Bender, M.D., board-certified in neurology and psychiatry, and Philip K. Keats, M.D., a board-certified orthopedic surgeon, testified for the employer, as did Josip Surca, the former human resources manager for the company. Additionally, various medical records and reports were introduced into evidence without objection.
Testimony by petitioner disclosed that he is a native of the Dominican Republic, born on November 10, 1950, who had been in the United States for approximately fifteen years at the time of trial. He is Spanish speaking, with no working knowledge of English. He received a fourth-grade education*fn2 in his native country and cannot read either Spanish or English. Petitioner's work experience has been confined to manual labor. At the time of his injury, he was working in the heat-processing of heavy metal pipes. The injury occurred on March 12, 1999 when a pipe fell on his foot, breaking through the steel cap of his shoe and causing an open displaced metatarsal fracture as well as a sprained lisfranc joint.*fn3 Petitioner was treated at a local hospital for his injuries and was hospitalized for administration of intravenous antibiotics. He reinjured his foot in a slip and fall accident at work on June 10, 1999, and again in a workplace fall on June 26, 1999. A doctor cleared petitioner for his return to work without restrictions on July 20, 1999. However, petitioner sought additional medical treatment, which the employer declined to authorize. Petitioner then left his employment, obtaining various treatments at medical facilities in Pennsylvania without authorization. He has not returned to employment of any type.
Petitioner walks with a cane and exhibits a pronounced antalgic gait. He has received social security disability income retroactive to September 2, 2003. At the time of trial, he complained of continuing pain in the leg, primarily in the area of the injury, and of depression.
Records, introduced at trial, demonstrated relatively consistent complaints of leg pain and nocturnal myoclonus, consisting of jerking, involuntary contractions of the leg muscles, and later, palpitations and depression. An EMG, conducted on August 13, 1999, revealed compression neuropathy of the left peroneal nerve*fn4 over the fibular head. A bone scan suggested reflex sympathetic dystrophy (RSD) or, as now known, complex regional pain syndrome (CRPS).*fn5 From September 1999 to June 2000, petitioner was treated by Maxime Gedeon, M.D. at Pennsylvania Pain Management, Inc., receiving six lumbar sympathetic nerve blocks for his RSD. He was also treated for the involuntary nighttime movements in his left leg that interrupted his sleeping.
Commencing in July 2000, petitioner was treated by John Castaldo, M.D., at the Lehigh Valley Hospital Clinic for neuropathy of the leg and nocturnal myoclonus or involuntary leg movement. A bone scan on August 2, 2001 disclosed no evidence of RSD by that technique. Nonetheless, Dr. Castaldo still indicated that petitioner was suffering from RSD in a clinic progress note of February 26, 2002. A May 28, 2002 progress note from Dr. Castaldo disclosed "burning pain at rest with allodynia*fn6 over dorsum of foot." Some loss of skin texture over the dorsum of the foot was also observed. A September 17, 2002 progress note indicated continued complaints of pain with swelling, but that petitioner was not taking his medication because of its cost. The doctor's physical examination revealed pitting on the left ankle and foot and allodynia on the dorsum of the foot. RSD remained the diagnosis. A further note on June 24, 2003 disclosed the same pain and nocturnal myoclonus that had been troubling petitioner for the past three years since his fracture. Again, the note indicated that petitioner was not taking his pain medications because of their cost. Dr. Castaldo prescribed diazepam and ordered an EMG to rule out tarsal tunnel syndrome.
During the period of his treatment by Doctors Gedeon and Castaldo, numerous medicines were prescribed to treat petitioner's conditions including Neurontin, Zanaflex, Clonazepam, Baclofen, and Mirapex to control the myoclonus, Celebrex (a non-steroidal anti-inflammatory drug), Klonopin (a tranquilizer), Topamax, Tylenol and codeine, a Duragesic patch, Valium, Oxycontin, and Prozac.
The records indicate that in November 2003, petitioner commenced to experience palpitations and anxiety attacks. Treatment for depression occurred in the Spring of 2004.
Petitioner was examined by pain management specialist Dr. Diamond on October 3, 2002. In his report, which was read into the record at trial, the doctor diagnosed post-traumatic left fifth metatarsal fracture (Grade I, open); sprain of the lisfranc joint; chronic regional pain syndrome, type I; derivative left plantar calcaneal (heel bone) bursitis; and left peroneal nerve compression neuropathy at the fibular head. Examination of the left ankle revealed a lateral effusion. Instability was noted, and range of motion was restricted. Sensory examination was found to be abnormal, involving the left peroneal nerve.
Dr. Diamond testified that petitioner's present complaints of a burning sensation, pain, tingling, and numbness through the foot and ankle area, his difficulty walking and his difficulty in flexing his left foot were not surprising, two years after his injury. He testified: "In these complex regional pain syndromes or RSD, that's quite a typical presentation, and prognosis is very poor." Petitioner's complaints of pain radiating to the knee were stated to be consistent either with RSD or peroneal nerve involvement. Dr. Diamond testified further that chronic pain such as petitioner was experiencing was often associated with emotional factors, including depression.
Dr. Diamond testified further that "[i]t would be very very difficult to employ such an individual in my opinion, with [the] illiteracy component, the work history of physical labor only and then having this type of an injury." Sedentary work would further aggravate his condition. Further, petitioner's ability to concentrate was likely compromised by the medications he was taking for pain and other conditions. All treatments provided to petitioner, in Dr. Diamond's opinion, were reasonable and necessary.
Dr. Richard Rubin, board certified in neurology and psychiatry, also testified on petitioner's behalf, reporting the results of neurologic and neuropsychiatric examinations performed on August 7, 2003. As the result of his neurologic examination, the doctor found hyperesthesia, or abnormally increased sensation, over the lateral aspect of the left malleolus or ankle and the dorsum of the left foot and hypoesthesia, or decreased sensation, over petitioner's left arm, the left side of his face, and the left leg to the ankle. Additionally, the doctor found signs consistent with tarsal tunnel syndrome. Skin temperature and texture were found to be the same on both feet.
Dr. Rubin described petitioner's neuropsychiatric condition by recounting his injuries, his initial treatment and his further treatment with lumbar injections. The doctor then testified:
He was perplexed and bewildered as to how to get back into the work force because of his marked difficulties ambulating, and he's never had any training for any occupation sitting down like an accountant or bookkeeper, computer programmer. He only did physical work depending on his health to make a living. He complained of tenderness in the left foot on ambulation. If he stepped down on the ground, he got a lot of pain. He used the cane to spare weight on the left foot. Most of his weight bearing was on his right foot and the cane, and he keeps the left foot off the floor as much as possible. He would not go out anywhere unless somebody accompanied him because he was always afraid he would fall, and he had to be with somebody he could rely on, so this impaired his trying to go shopping or even going to the doctor, and he felt hopeless about trying to get back to the Dominican Republic which apparently was some desire he had. He complained he had difficulty even putting on his clothing such as putting on his shoes or socks or raising his left leg to put it through the trouser. He admits he felt - he has felt very depressed . . . . [H]e's a person who's not mentally ill. He had [an] emotional reaction to pain and fears of weight bearing which increased his pain.
Dr. Rubin diagnosed petitioner as suffering from an "orthopedic distortion of the architecture of the foot," an inflammation of the tibial nerve secondary to compression of the tarsal tunnel, or tarsal tunnel syndrome. As a result of the tarsal tunnel syndrome, Dr. Rubin stated that petitioner had moderate CRPS or RSD. Additionally petitioner suffered from a complex neuropsychiatric impairment with features of anxiety, depression and a somatoform disorder in which emotional distress is converted into physical findings manifesting in the hypoesthesia on the left side of petitioner's body. Although Dr. Rubin determined that petitioner suffered from real pain and tenderness, he also agreed with the statement of the employer's expert, Dr. Bender, that: "In the final analysis, I cannot help but suspect that there is an enormous psychogenic overlay conditioning the continuing symptomatology and disability which Mr. Mercado is alleging." To petitioner, Dr. Rubin testified, that constituted "a real condition."
In contrast to Drs. Diamond and Rubin, the employer's expert in neurology and psychology, Dr. Sidney E. Bender, characterized petitioner's appearance as "flagrant[ly] acting out of pain behavior." He conceded that petitioner did have chronic regional pain disorder in 1999 and "perhaps" in 2000, but not thereafter. Dr. Bender also found prior evidence of peroneal neuropathy, which he attributed to a tight cast, but the doctor testified that no evidence of the condition remained. The only subjective neurological response that Dr. Bender evoked was to the sural nerve distribution in the skin, which, he stated, does not cause muscle weakness or dysfunction. Dr. Bender found no difference in the appearance of petitioner's legs, no objective abnormalities, no signs of disuse of the left leg, no evidence of tarsal tunnel syndrome and no somatoform disorder. The doctor characterized petitioner's pain behavior as "extremely exaggerated." He did not think that the nerve blocks administered to petitioner provided any benefit. In sum, Dr. Bender found that petitioner had a permanent injury manifesting as mild sural neuropathy and as depression that was reasonably attributable to petitioner's injury but also to his isolation.
In addition to Dr. Bender, the employer offered the expert testimony of Dr. Philip Keats, an orthopedic surgeon who had examined petitioner on January 31, 2003. Dr. Keats's examination revealed no swelling or abnormality of the left ankle. Range of motion was stated to be poor in flexion and extension and subtalar motion. Muscle power was normal in both legs. Petitioner exhibited increased sensitivity to a pin wheel drawn over the left leg below the knee. His skin temperature was the same in both feet, and he exhibited no stretched or shiny skin and no mottling. From this evidence, the doctor concluded that petitioner was suffering from the residuals of the initial compound fracture, including loss of range of motion and sensory changes that would not improve with treatment. Significantly, Dr. Keats, unlike Dr. Bender, found no evidence of magnification of symptoms. He found evidence of some wasting in the left thigh, but not calf - a finding that the doctor was unable to explain. Dr. Keats was of the opinion that petitioner could be fully weight bearing without his cane. However, he acknowledged that petitioner experienced pain.
The judge issued a written decision in the matter, dated December 22, 2008. In it, she found petitioner disabled from the residuals of the fracture, RSD, left peroneal nerve compression neuropathy at the fibular head from application of a cast that was too tight, depression and somatoform disorder. In support of her determination, the judge noted petitioner's treatment with nerve blocks during 1999 and 2000, and she noted that after the treatment, the pain seemed to abate somewhat and was further controlled by heavy medications. However, she noted that petitioner continued to suffer from myoclonic movements of his left leg that affected his sleep.
The judge stated in her opinion that objective tests continued to show abnormalities. A bone scan in August 1999 showed evidence of RSD and a bone scan in March 2000 revealed evidence of plantar calcaneal bursitis. A bone scan in 2001 showed that the fracture of the left fifth metatarsal had not completely healed.
The judge next detailed the treatment provided by neurologist Dr. Castaldo extending from July 2000 to June 24, 2003 focusing on the doctor's treatments for petitioner's continuing complaints of pain and involuntary movement of his left leg while asleep. In that regard, she noted that no records had been provided for the period from January 2001 to February 2002. Nonetheless, she concluded from an analysis of the medications listed in the two office notes that treatment must have occurred, since a change of medications could not otherwise be explained. According to the judge, as of June 24, 2003, Dr. Castaldo was still diagnosing petitioner as suffering from RSD, and he still found evidence of point tenderness and allodynia in the previously affected areas.
The judge noted that psychiatric problems manifested in December 2003, and treatment commenced on January 29, 2004 and continued to August 13, 2004 when Mercado was found to be "improved." The judge discontinued temporary disability benefits at this point. She discounted additional problems including asthma, thyroid disease and cervical radiculopathy, which she found to be unrelated to petitioner's workplace injury.
In conclusion, the judge stated:
There is no dispute among the experts that petitioner suffered an injury to his left foot at work that developed into reflex sympathetic dystrophy. He was treated intensely for this problem and I find that at some point the acute stage of RSD resolved. However, he was left with a significant disability to his foot which would preclude work at a heavy physical job, the only type of work available to a poorly educated, non-English-speaking, unskilled middle-aged man. This was a devastating blow to his psyche and caused a major depression. I find that between the orthopedic and neurological problems related to his foot and his depression, he was unable to work until August 13, 2004 when the treatment for the severe depression ended and he reached the maximum benefit of treatment for his work-related conditions.
The workers' compensation judge issued a supplemental opinion on March 26, 2009. In it, she stated:
Since petitioner left work in July 1999 he treated for reflex sympathetic dystrophy (RSD) in his left foot. As late as June 24, 2003, Dr. Castaldo continued to diagnose this condition based upon his findings on examination. Throughout his battle with RSD, petitioner suffered from an inability to purchase the expensive medications he needed to combat the disease and its pain. Dr. Castaldo, the clinic physician he saw most frequently, prescribed a changing cocktail of drugs to relieve petitioner's pain, among them: Diazepam, a tranquillizer that also slows nervous system transmissions; Celebrex, a potent nonsteroidal anti-inflammatory medication; Baclofen, a muscle relaxant; Klonopin, an anticonvulsant and nerve pain medication, and Mirapex, an antiparkinsonian drug that causes sedation and increases the effect of other nervous system depressants. Some of these drugs interact and intensify each other; some are effective for only a short period of time; some are dangerously addictive. . . . In my opinion given the strength and effects of these drugs both individually and particularly interactively, petitioner would not be able to work, drive, or operate machinery while under their influence. During the periods when he was unable to procure the medications, his intense pain precluded his working.
Respondent's denial of his claim left petitioner with no income and no money for medicine to improve his situation. Several times in the records Dr. Castaldo notes: "Hector has not taken meds due to cost" and tried to prescribe less expensive medications, even if they were sometimes less effective. As the acute phase of RSD declined, petitioner was overwhelmed with a severe depression toward the end of 2003. Eventually that drove him to the emergency room in December 2003 where he treated for heart palpitations and was referred to a clinic for treatment. I ended temporary disability in August 2004 when the records of the psychiatric clinic indicated that his condition had improved and stabilized. At that point, other unrelated conditions that arose after the work accident added to his disability and prevented petitioner from returning to the work force.
On appeal, the scope of our review is limited. With respect to factual findings, we must determine whether those findings "could reasonably have been reached on sufficient credible evidence present in the record" and affirm them if that standard is met. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). The judge's findings of law are owed no such deference. Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995).
The employer claims first that the award of temporary disability benefits was made sua sponte. We reject this position, having noted the preservation of the issue by petitioner's counsel at the commencement of his examination of Dr. Diamond. Moreover, in our prior opinion in this matter, we held that such benefits were available in the circumstances presented, upon introduction of appropriate proofs. Mercado, supra, slip op. at 8-10.
In that prior opinion, we described temporary disability benefits in the following terms:
The purpose of temporary disability benefits is to provide an individual, who suffers a work-related injury, with a "partial substitute for loss of current wages." Ort v. Taylor-Wharton Co., 47 N.J. 198, 208 (1966). The Workers' Compensation Act, N.J.S.A. 34:15-1 to -69.3, has been consistently accorded a liberal construction. Brock v. Pub. Serv. Elec. & Gas Co., 149 N.J. 378, 383 (1997). An employee, who suffers from an injury producing temporary disability, may recover 70% of the employee's weekly wages during the period of disability, not to exceed 400 weeks. N.J.S.A. 34:15-12a. Temporary disability benefits are payable from the first day the employee is unable to work because of an injury until "the first working day that the employee is able to resume work and continue permanently thereat." N.J.S.A. 35:15-38.
Temporary disability continues until the employee is able to resume work and continue permanently at that position or until the employee is as far restored as the permanent character of the injuries will permit. Monaco v. Albert Maund, Inc., 17 N.J. Super. 425, 431 (App. Div. 1952).
Actual absence from work is a prerequisite for a temporary disability award; and an injured worker who resumes work after a disability period, but who later experiences a relapse, may recover for the intermittent or recurrent intervals of temporary disability. Cunningham [v. Atl. States Cast Iron Pipe Co.], 386 N.J. Super. [423,] 428 [(App. Div.), certif. denied, 188 N.J. 492 (2006)].
On appeal, the employer argues that the judge of compensation erred in awarding petitioner 265 weeks of temporary workers' compensation claiming that the treatment records, as the judge conceded, were incomplete and such records as were admitted did not provide objective evidence of any medical condition after 1999. Thereafter, petitioner was treated only for "pain management" and, later, in 2004, for his psychiatric conditions. In support of its position, the employer points to statements in the medical records that petitioner's condition was improving at various times during his treatment.
Nonetheless, the fact remains that in August 1999, an EMG disclosed compression neuropathy of the left peroneal nerve over the fibular head, and a bone scan revealed RSD. Initial treatment for the RSD by Dr. Gedeon, consisting of six lumbar sympathetic nerve blocks, extended from September 15, 1999 through June 9, 2000. In a progress note on that latter date, Dr. Gedeon stated:
Due to a combination of lumbar sympathetic nerve blocks and oral medications with Celebrex and Zanaflex, the patient's condition has improved. However, he continues to experience pain on the lateral aspect of his left foot. The pain level today is 7 out of 10.
On physical examination, there is less swelling around his left ankle and foot. There is positive Tinel's sign on palpation of the left sural nerve. In addition, there is significant tenderness on palpation of the left fifth metatarsal where the fracture occurred.
As the result of petitioner's continuing pain, swelling and neurological symptoms, the doctor recommended that he remain on Celebrex and Zanaflex, that he undergo a series of left sural nerve blocks, and that trigger point injections into the tender area in petitioner's metatarsal be considered to control the mechanical pain in the foot.
In the next month, petitioner came under the care of neurologist Dr. Castaldo, who consistently treated him for RSD and nocturnal myoclonus in the left leg through June 24, 2003. A February 26, 2002 note indicates that petitioner was still complaining of "intolerable" pain and myoclonic jerks that kept him from sleeping at night. On June 24, 2003, Dr. Castaldo wrote: "Hector is [complaining of] the same pain and nocturnal myoclonus that has been problematic for him for three years - since trauma. At this time, Dr. Castaldo maintained a diagnosis of RSD, which had not been demonstrated on a follow-up bone scan. However, skin changes associated with RSD had been noted on both May 28, 2002 and September 17, 2002. Psychiatric problems manifested in November 2003 and psychiatric treatment commenced in January 2004 and continued to August 2004.
Moreover, petitioner's expert Diamond confirmed petitioner's inability to work, and both he and Dr. Rubin testified to the continuance of petitioner's RSD. While there was evidence to the contrary, upon which the employer has relied in this appeal, we find, after a thorough review of the record, that the award of temporary disability benefits was soundly based upon substantial credible evidence in the record.
As a final matter, we decline to disturb the attorney's fee award made in this matter, noting that petitioner's counsel, from the outset, indicated that temporary disability benefits were being sought, and the preponderance of the evidence introduced at trial was relevant to that issue.