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Robinson v. United Hospital

August 18, 2010


On appeal from the Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition No. 1997-12763.

Per curiam.


Submitted: August 3, 2010

Before Judges Axelrad and Espinosa.

Petitioner Deborah Robinson appeals from a November 14, 2008 judgment of the Division of Workers' Compensation, following trial, dismissing her claim petition based on her failure to sustain the burden of proof. Specifically, the workers' compensation judge found petitioner "failed to prove by objective medical evidence that any disease or disability that she may suffer from was caused or aggravated by her employment with the respondent," United Hospital. We affirm.

The relevant facts may be briefly stated. On October 20, 1997, petitioner filed a complaint alleging she was totally disabled as a result of her pre-existing disabilities and occupational exposure during her employment with respondent from l969 through 1997. The claim petition specifically alleged that her occupational exposure "caused, aggravated, accelerated or exacerbated" her '[p]ulmonary, otological, ophthalmological, neurological, neuropsychiatric, [and] cardi[o]vasc[ul]ar conditions." In support of her subsequent claim for Second Injury Fund benefits, petitioner alleged that certain conditions pre-existed her last compensable exposure such as "[a]sthma, residuals of hernia operation, residuals of hand and shoulder pain, poor vision, residuals of bilateral foot pain, [and] generalized arthritis."

During the lengthy trial, the court heard the testimony of petitioner, Dr. Ishmal Ahmad, an orthopedic surgeon, Dr. Robert Latimer, a psychiatrist, and Dr. Sidney Friedman, an internist. Respondent presented expert testimony by Dr. Gregory Gallick, an orthopedic surgeon, Dr. Melvin Vigman, a neurologist, and Dr. Benjamin Safirstein, a pulmonologist and internist.

From approximately 1969 to l990, petitioner worked for respondent as a nurse's aide, which required her to tend to the needs of the patients assigned to her. This entailed feeding, transporting, washing and lifting patients out of and back into bed. She was also required to push IV poles and wheelchairs, wash floors, poles and commodes with ammonia and similarly-smelling chemicals, lift beds, lift and turn mattresses and wash windows. According to petitioner, her job required repetitive lifting, bending, twisting and turning and also exposed her to dust, dirt, lint from the sheets, fumes and other pulmonary irritants. Petitioner further testified that, although she had been removed from any environmental contaminants present at the hospital for nine years, she continued to experience a shortness of breath.

Petitioner also testified on cross-examination that she had an automobile accident in the mid-l960s, in which she injured her back and neck, and settled her case for about $10,000. Petitioner further related that around l99l, she fractured her right third finger, sometime in the l990s she injured her left foot and left knee, around l995 she injured the second finger of her right hand, and in July 2001, she fractured her right foot, requiring an open reduction with internal fixation to the metatarsal. Afterwards, she began to use a cane.

Petitioner related the following numerous complaints that she alleged resulted from her employment with respondent: (l) pulmonary complaints of coughing, wheezing, shortness of breath upon exertion and phlegm; (2) orthopedic complaints of pain in her lumbar spine, which worsens when she sits for more than half an hour or walks half a block, pain in her cervical spine, hips and knees, and cramping in her right hand when she does a lot of writing; and (3) psychiatric complaints of depression because she can no longer do the things she was once capable of doing. Petitioner testified that she had no problems with her back, neck, arms, shoulders or legs before she began working for respondent, notwithstanding her significant automobile accident about five years before that time when she injured her cervical and lumbar spine.

At the close of evidence, Judge Stephen Tuber issued a twenty-page written decision on November 14, 2008. The judge set forth and analyzed in detail the lay and expert witnesses' testimony, expressly crediting respondent's expert testimony over that of petitioner's experts, and fully explaining his reasons for doing so. Specifically, the judge of compensation found:

I not only reject Dr. Ahmad's opinion that petitioner's orthopedic disabilities were caused or aggravated by her employment with the respondent, but I accept Dr. Gallick's opinion that any orthopedic disability that the petitioner may have was not caused, aggravated, or accelerated by her employment with the petitioner as a nurse's aide.

I dismiss petitioner's neurological claim for two reasons: First, Dr. Latimer's testimony only concerned petitioner's psychiatric disability. Dr. Latimer offered no testimony to prove by objective medical evidence that petitioner has any permanent partial neurological disability as a result of her employment with the respondent[.] Second, respondent's doctors, Gallick and Vigman testified that their neurological examinations of petitioner found no objective evidence of any neurological disability. Finally, Drs. Gallick [and] Vigman['s] opinions are consistent with Dr. Ahmad's opinion that petitioner was "neurologically intact."

I now turn to petitioner's allegation that her pulmonary disability - Chronic Asthma - was caused, aggravated, or accelerated by ...

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