On appeal from the Department of Labor, Division of Workers' Compensation, Claim No. 1996-26124.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Rodríguez, Reisner and Chambers.
In this workers' compensation appeal, respondent Central Regional Board of Education (respondent or Board), the former employer of petitioner Martin Brown, appeals from a judgment of the Division of Workers' Compensation awarding Brown permanent total disability, and from a subsequent determination that no benefits were due from the Second Injury Fund. We affirm.
Brown, a school custodian, was injured on the job in 1996 during an incident in which he threw a heavy garbage bag into a dumpster. He applied for workers' compensation, and settled that claim on June 2, 1999 for an award of partial permanent disability, primarily relating to problems with his left elbow and right shoulder. Brown retired on a disability pension in 2000, but he had continued medical problems stemming from the 1996 injury. Those problems included several surgeries on his right shoulder, and surgery to fuse five spinal discs in his neck.
Therefore, on August 8, 2000, Brown filed an application to modify the June 2, 1999 award, alleging that his condition had worsened because he was experiencing neck pain. The Board filed an answer on September 25, 2000, denying Brown's claim. Brown filed a motion for medical and temporary benefits on December 2, 2002.
Workers' Compensation Judge Henson entered an order on March 14, 2003, directing the Board to return Brown "to the authorized treating physician Harold Bade, professional orthopedist, for his opinion as to the causal relationship as to Petitioner's neck complaints and need for treatment." Payment records indicate that, thereafter, the Board paid approximately $138,000 from 2003 through 2007 for Brown's treatment and temporary disability benefits, including paying for neck surgery. Brown filed an application to receive benefits from the Second Injury Fund (the Fund) on July 15, 2005.
At the beginning of the trial on Brown's application for additional benefits, Supervising Judge of Compensation Andrew M. Smith, Jr., began by asking counsel if Brown had received any more treatment since his June 2, 1999 award. The Board's attorney noted that Brown had received treatment for his neck and a lump sum temporary disability payment, and said that there was an "issue" as to whether the Board made an overpayment for twenty days of disability. The judge asked if any "medical bills" were in dispute, and Brown's attorney responded, "[n]one as far as I can tell, your Honor. I don't think so." The Board's attorney did not object to that statement or otherwise dispute any of the medical bills at that time. Nor did the Board's attorney indicate that his client intended to dispute that Brown's neck problems stemmed from the 1996 incident.
Brown presented his own testimony as to his severe physical restrictions and resulting emotional problems, and presented two doctors who testified as to his disability. The Board then presented expert testimony opining, among other things, that Brown's neck problems were not related to the 1996 incident. On July 3, 2007, Judge Smith issued a written opinion concluding that Brown was totally disabled due to problems with his shoulder and his neck, and emotional problems secondary to his physical disabilities. However, the judge concluded that he could not award Brown total disability for workers' compensation purposes, because there was insufficient proof that his neck problems were caused by the 1996 incident.
Brown filed a motion for reconsideration alleging, as the judge characterized it, that the employer had "sandbagged" him. Brown contended that he had no notice prior to the hearing that the employer was going to contest that his neck problems were caused by the 1996 incident. He argued that the workers' compensation carrier had previously paid for treatment for the neck including surgery to repair the five cervical discs. Expressing some displeasure that "[n]ow I find after this trial is over, that... [respondent's] carrier did treat his neck," Judge Smith determined as a matter of equitable discretion that the hearing should be reopened to take testimony from Brown's treating orthopedic surgeon.
At the supplemental hearing on April 9, 2008, Dr. Harry Bade explained that as early as six days after the accident, Brown's medical records showed that he was complaining about problems with his neck. Bade then traced the repeated references to neck problems in subsequent medical reports over a period of years. However, as Bade explained, Brown's torn right rotator cuff appeared to present a more serious problem, and therefore his treating doctors focused their efforts on his shoulder. In essence, the shoulder injury masked the underlying neck injury. After several shoulder surgeries, Brown continued to have pain in his neck, eventually requiring surgery on the cervical discs. According to Bade, Brown had a pre-existing but asymptomatic degenerative condition in his neck. Bade testified, to a reasonable degree of medical certainty, that the 1996 incident caused the neck to become symptomatic, resulting in the eventual need for surgery to the cervical spine.
Judge Smith found Bade to be a credible witness and, in an oral opinion of June 4, 2008, he found that the 1996 incident had in fact caused the injury to Brown's neck as well as to his shoulder. The judge therefore found that Brown had become ...