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Mercado v. Atlantic States Cast Iron Pipe Co.

April 19, 2010

HECTOR MERCADO, PETITIONER-RESPONDENT,
v.
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.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

I.

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 ...


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