On appeal from a Final Decision of the New Jersey Department of Labor, Division of Workers' Compensation, Claim Petition Nos. 2003-6729 and 2003-21703.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman, Parrillo and Ashrafi.
Appellant North Brunswick Board of Education (the Board) appeals from an order of the Division of Workers' Compensation dated May 4, 2009, denying its motion to terminate medical and temporary disability benefits and confirming a prior order of the Division dated August 13, 2007, requiring that the Board provide psychiatric treatment for petitioner for a period of three months. We affirm.
Petitioner Ana Santiago originally filed claim petition 2003-6729 on February 28, 2003, alleging injuries to her low back, neck, and shoulders sustained on September 6, 2002, during the course of her employment as a teaching assistant for the Board. She alleged that a thirteen year-old girl pushed her up against a wall and caused the orthopedic injuries alleged. The Board filed an answer on May 8, 2003, admitting the claim.
Santiago filed a second claim petition, numbered 2003-21703, on July 9, 2003, alleging injuries to both shoulders and "re-aggravation" of the neck injury. She alleged that after she returned to work, a student pulled a door that she had been holding and she twisted her back. The Board did not file an answer, later claiming that its attorneys did not have a record of receiving the second claim petition.
On March 22, 2004, the Judge of Compensation (JOC) conducted a conference on the claims, and the parties agreed to a settlement, assigning 221/2 % of partial total disability for orthopedic injury, that is, residuals of herniated discs. On April 12, 2004, after the judge heard Santiago's testimony, an order was issued approving the settlement. The order referenced both claim petition numbers. It contained no reference to psychological injury, and none had been claimed up to that point.
Eleven months later, on March 4, 2005, Santiago filed applications to review or modify the award for each claim petition. The Board filed an answer to the application to modify the first claim, indicating there was no need for additional treatment or increase in disability; it did not answer the application for the second claim. On September 19, 2005, Santiago filed amended claims changing the date of the accident from September 6, 2002, to April 28, 2003, and also claiming psychiatric disability. Using the second claim number, the Board filed an answer stating:
Petitioner's amendment is inappropriate. A previous settlement was entered with respect to a September 6, 2002 accident in which petitioner sustained an injury. The alleged April 28, 2003 accident was merely a manifestation of symptoms of the prior injury. Respondent denies that any injury or disability occurred on the amended April 28, 2003 date.
On August 21, 2006, Santiago filed a motion for medical and temporary disability benefits seeking psychiatric treatment for both claims. The Board opposed the motion. Relying upon Brandt Shaw v. Sands Hotel & Casino, 282 N.J. Super. 106 (App. Div. 1995), and Yeomans v. City of Jersey City, 27 N.J. 496 (1958), the JOC rejected the Board's motion to dismiss the claims on various procedural and substantive grounds based on the 2004 proceedings and settlement of the claims.
At a hearing in February and March 2007, Dr. Vin Gooriah, a board certified forensic psychiatrist, testified in support of Santiago's motion. Dr. Gooriah diagnosed Santiago as suffering from a major depressive disorder bordering on psychosis, post traumatic stress disorder, and anxiety disorders, all "secondary to work-related injury." He described her symptoms as "very severe." He concluded that she was in need of psychiatric treatment, including medications and counseling with a psychiatrist and a psychologist.
The JOC found the testimony of Dr. Gooriah credible. He also referred to testimony of Santiago that she had experienced fear as a consequence of the original injury in September 2002 and that her psychological conditions were aggravated by the incident of April 2003. In addition, the judge relied on a report of the Board's examining psychiatrist, Dr. David Scasta. Dr. Scasta disagreed with the diagnoses of Dr. Gooriah but agreed that Santiago suffered from psychological conditions and was in need of treatment. Dr. Scasta stated in his report:
I believe . . . the patient has developed a Panic Disorder with Agoraphobia.
The etiology of the patient's psychiatric symptoms is not clear. Her embellishment of symptoms (which appears to be at least partly conscious) makes it difficult to assess etiology accurately. There certainly were non-work related pre-existing factors such as the difficulty that she has had with her husband.*fn1 She also was hyperthyroid, which would make her very anxious and, in fact, may have precipitated her Panic Disorder. Etiology is thus mixed.
The patient's current level of treatment appears to be appropriate. . . . I would estimate the patient will need to be in treatment for at least six more months. I would recommend more aggressive treatment of her anxiety symptoms as well as her depression.
The JOC concluded that Dr. Scasta's report supported a conclusion that Santiago was entitled to psychiatric treatment as part of her worker's compensation benefits, and offered the Board the opportunity to present Dr. Scasta as a witness if it wished. The Board later indicated it was not calling Dr. Scasta to testify.
On August 13, 2007, the JOC heard further argument and stated that he would order the Board to authorize psychiatric and pain management treatment and to provide for medications prescribed by the treating doctors. The judge stated that the Board must "at the very least" provide "a psychiatric consult or treatment as necessary and a pain management doctor to also take a look at the Petitioner." In denying the Board's application for a stay, the judge said, "it is at least my hope that even after an initial evaluation by a psychiatrist and a pain management expert some comment might be forthcoming as to whether or how much additional treatment may be needed." He said further:
And if we need to come back to this - and in fact we will because hopefully we will have some indication from both the psychiatrist and the pain management expert as to what they see may be necessary for the Petitioner in the future.
The judge's order of August 13, 2007, stated that the Board "will authorize a treating psychiatrist and provide psychiatric treatment until further Order of the Court. [The Board] will pay temporary disability benefits if indicated by treating [doctor] . . . ." The order also required that the Board arrange for payment for medications.
Attempting to comply with the order of August 13, 2007, the Board arranged for Santiago to be seen by Dr. Henry Odunlami, a board certified psychiatrist. Dr. Odunlami saw Santiago on September 12, 2007, and issued a report concluding that:
[Patient's] symptoms appear exaggerated during the session and her symptoms of anxiety 5 years after initial episode appear exaggerated and excessive. [Patient] appears to have secondary gain to remain ...