On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, Claim Petition No. 2005-35837.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges C.L. Miniman and Fasciale.
Respondent Morristown Memorial Hospital/Atlantic Health Systems (the Hospital) appeals from a November 18, 2009 order of the Division of Workers' Compensation granting petitioner Tina Schock's motion for medical and temporary disability benefits.
After hearing testimony from Schock and two physicians and considering all the evidence, Judge Hutton found Schock's C4-5 and C7-T1 disc herniations to be related to a July 29, 2005 work accident and ordered the Hospital to provide medical treatment and pay temporary disability benefits from November 9, 2006 through February 17, 2007.*fn1 We affirm.
The question before the compensation judge was whether the C4-5 and the C7-T1 disc herniations were caused by the July 29, 2005 work accident or a December 5, 2007 slip-and-fall accident. It was undisputed that earlier C5-6 and C6-7 disc herniations were caused by the work accident.
On July 29, 2005, Schock suffered a work-related injury while attending to a patient as an emergency room nurse. She went to the emergency room on August 1, 2005 with complaints of severe pain to her left arm and neck, and then sought conservative treatment over the next four months with Dr. Giordano. A magnetic resonance imaging (MRI) on August 13, 2005 demonstrated herniations at C5-6 and C6-7. Ultimately, Dr. Giordano recommended an anterior cervical disc fusion at both levels. However, Schock sought a second opinion from a neurosurgeon, Dr. John J. Knightly.
On November 21, 2005, Dr. Knightly performed a minimally invasive partial hemilaminectomy foraminectomy on the left on C5-6 and C6-7, providing relief to Schock's arm but not her neck. Thereafter, Schock received physical therapy and pain management treatment, but did not improve. In September 2006, Dr. Knightly recommended that Schock undergo a cervical fusion because she had weakness in her right arm. She also continued to have severe pain in her neck and arm. The fusion was delayed three months from November 9, 2006, to February 15, 2007, first because the anesthesiologist canceled the surgery and then because Schock suffered from unrelated asthma. Even though she could not work because of her neck disability, her temporary disability benefits were suspended until February 15, 2007, when the fusion was performed. It is undisputed that Schock subsequently developed swallowing problems related to the neck fusion. In June 2007, Schock was seen by Dr. Knightly relative to the swallowing problems and she continued to suffer from neck and arm pain.
Ten months after the neck fusion surgery, in December 2007, Schock slipped and fell on a driveway. She was diagnosed by the nurse practitioner with cervical spondylosis with myelopathy and a shoulder contusion. No medical tests were ordered, and she was instructed to call if the symptoms persisted. The compensation judge found Schock's testimony credible that she received no treatment except pain medication and heat for the contusion sustained in the fall.
Because she continued to have difficulty swallowing, Schock was admitted to Overlook Hospital and saw a new ear, nose, and throat (ENT) doctor, who ordered an MRI of her neck on April 15, 2008 and performed a video fluoroscopy of her throat. The radiologist at Overlook interpreted the MRI as showing "status post anterior spinal fusion of C5 and C7." There were no interval changes from the August 7, 2007 film and no abnormal intraspinal enhancement. Schock's ENT physician and Dr. Knightly were provided with copies of this report. Dr. Knightly ordered another MRI which was performed on July 7, 2008, and was also compared to the August 7, 2007 MRI. This radiologist found a right side foraminal disc herniation at C7-T1 but noted that C3-4 and C4-5 were unremarkable.
The cause of the C7-T1 disc herniation was disputed at trial. Dr. Knightly, who testified first, opined that the cervical fusions were a contributing factor in the development of the herniation at C7-T1, documented on July 7, 2008, because it was adjacent to the cervical fusions, a finding seen in patients with fusions. He also noted there was no herniation above the fusion on this MRI, but on an MRI performed on February 2, 2009, Schock had another disc herniation at C4-5 and some foraminal degeneration at C3-4. He also opined that the cervical fusions were a contributing factor in the development of the C4-5 herniation. He noted, "Adjacent level instability can clearly be associated with her previous surgery."
Dr. Knightly made no note of Schock's slip and fall until the day before he testified, when he saw it mentioned in an independent medical examination (IME) report. He acknowledged on cross-examination that a slip and fall on ice on a driveway could potentially be a competent cause for a disc herniation. However, if the slip and fall caused the C7-T1 herniation, Dr. Knightly opined that it would have shown up on the April 15, 2008 MRI. A traumatic herniation would happen in fairly close proximity to the fall. Because she had no evident herniation until July 7, 2008, he opined that it was caused by the fusion.
Dr. James G. Lowe, on the other hand, opined on behalf of the Hospital that the C7-T1 herniation was caused by the December 2007 slip and fall because Schock had new symptoms immediately after the fall in a different part of her right arm into the fifth digit, consistent with a C7-T1 herniation, such as increased pain in the neck not controllable by Vicodin, her normal pain medication, and new arm pain.*fn2 However, Dr. Lowe did not have the April 15, 2008 films or report and admitted that a review of them might ...