On appeal from a Final Agency Decision of Department of Labor, Division of Workers' Compensation, Claim Petition Number 1993-055139.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges J. N. Harris and Newman.
This is an appeal from a decision of the Department of Labor, Division of Workers' Compensation (Division), which reviewed petitioner Michael Vetter's application to modify a formal award of fifty-five percent disability with regard to his neck and lower back injuries. The judge of compensation determined that petitioner was entitled to a five percent increase for the disability to the neck, but did not increase the percentage of disability for the lower back. After our review of the Division's proceedings, and in recognition of our limited scope of review, we affirm.
On March 23, 1992, petitioner was employed by ISE America. As part of his employment responsibilities, petitioner was required to move numerous heavy cases each workday. Petitioner alleged that while moving one of these cases, his shoulder blade and lower back gave out. As a result of this incident, petitioner suffered painful injuries to his cervical area and lower back. The cervical injury was diagnosed as a disc herniation at two levels, for which petitioner subsequently underwent surgery. In contrast, the lower back injury was primarily diagnosed as a mere sprain. On February 5, 1996, this workers compensation claim was resolved by agreement, and petitioner obtained an unallocated award of fifty-five percent disability.
A second work-related incident occurred on August 16, 1995. This time, petitioner was lifting a metal diamond plate to connect his truck to a loading dock. The plate weighed approximately sixty-five pounds, was four to five feet wide, and measured six feet in length. Petitioner "wrenched" his lower back as a result of this exertion.
Petitioner received pain management to his lower back, including some spinal epidural injections also undergoing an MRI on his lumbar area on September 5, 1995. The MRI showed a herniated disc at level L5-S1. Petitioner never returned to work after this incident. This second claim was ultimately resolved in 1998 for $17,500.
Since the initial award in 1996, petitioner testified that his neck problems had gotten worse. He noted that he dealt with sharp pain in his shoulder blade and felt that the cervical surgery did not heal properly. He further testified that he used a neck pillow to sleep in order to avoid pain. With regard to his lower back, petitioner indicated that his pain and discomfort continued, eventually requiring him to submit to surgical procedures. On January 30, 2004, a micro discectomy at level L5-S1 was performed. Follow-up lumbar surgery was also performed in 2006.
In 2002 and 2004, petitioner was examined and evaluated by Dr. David Weiss, D.O. This expert opined that petitioner's then-current neck problems were related to the 1992 injury and estimated the injury to the cervical spine to be seventy-six and two-thirds percent of partial total disability, a ten percent increase from the estimate made in 1992 by Dr. Sidney Tobias, M.D. Dr. Weiss was also of the opinion that petitioner's lumbar pathology was linked to the work-related incident in 1992, as evidenced by the steady progression and worsening of symptoms from then until the present.
During the trial, petitioner asserted that he was entitled to an increased disability percentage award for either the neck or the back or both. Based upon Dr. Weiss's and petitioner's testimony, it was argued that petitioner was entitled to at least a ten percent increase with regard to the cervical injury, and due to the lower back symptomatology, petitioner requested a finding of total disability as a result of the 1992 incident.
In rebuttal, respondent presented the testimony of Dr. Vijay Paharia, M.D., who provided the competing opinion that there was no increase of disability over time as to the petitioner's cervical condition. Dr. Paharia had examined petitioner on three occasions, and the doctor's findings made during the last examination were similar to the first examination performed in 1994. Accordingly, Dr. Paharia's estimate of petitioner's cervical disability showed no increase over that span of time, and remained no more than that of petitioner's prior award.
Dr. Paharia also opined that petitioner's lumbar pathology was "related to the 1995 incident and not related to the 1992 incident." This conclusion was based upon the chronology of events, the doctor's examination of petitioner, and the review of ...