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Forker v. Circuit Foil USA

August 23, 2010

RICHARD FORKER, PETITIONER-RESPONDENT,
v.
CIRCUIT FOIL USA, INC./TRAVELERS INDEMNITY COMPANY, RESPONDENT-APPELLANT.



On appeal from a Final Decision of the New Jersey Department of Labor, Division of Workers' Compensation, Claim Petition No. 97-036680.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 23, 2010

Before Judges Parrillo, Lihotz and Ashrafi.

The employer, Circuit Foil, USA, Inc., appeals from an Order for Total Disability dated January 22, 2009, issued by the Division of Workers' Compensation in favor of petitioner Richard Forker following our previous remand. See Forker v. Circuit Foil, USA, Inc., Docket No. A-2462-07T1 (November 26, 2008). The original appeal was from a similar order dated December 20, 2007, finding that petitioner had become totally and permanently disabled as a result of a May 1997 workplace accident. We remanded to the Judge of Compensation (JOC) to make more specific findings of fact and to explain the reasons for that decision. The judge issued a written decision dated January 14, 2009, complying with our directive and setting forth detailed findings and conclusions. Having reviewed the record in the light of the applicable standard of review, we now affirm.

We incorporate without repetition the statement of facts and procedural history contained in our prior opinion, noting that no new evidence was presented on remand. Briefly to summarize, Forker was employed as a laborer for more than thirty years by Circuit Foil. He worked a "hard job" with extensive heavy lifting, causing repeated strain on his back. During a typical work day, he was required to lift rollers that weighed more than 300 pounds and maneuver them to his machine for fabrication. He also had to "jog drums" that weighed six to seven tons into place for lifting by overhead cranes.

Petitioner had a long history of back problems dating back to 1970. Throughout the years, he had experienced persistent lower back pain and accidents resulting in several workers' compensation claims. Petitioner also suffered from other ailments and physical conditions that were not the direct result of his work duties, including hypertension, diabetes, and morbid obesity. In 1995, petitioner had been awarded 30% partial permanent disability as a result of orthopedic injuries to his back.

When the pain in his back worsened several months after a May 1997 accident at work, petitioner received treatment and needed several weeks of recovery time out of work. He then returned to his job and worked until he retired in June 1999 at the age of fifty-five. He has not been able to work since that time because of his back pain and related neurological and psychological conditions. He was granted Social Security disability benefits. According to the JOC's findings, he decreased his work duties during his last two years on the job as the condition of his back deteriorated. The JOC found that it was the 1997 accident, rather than occupational exposure in his last two years of work, or a fall off his porch in 2001, that was the cause of petitioner's total permanent disability.

We previously remanded for additional fact finding and explanation of reasons for the order of total permanent disability because the 2007 oral decision of the JOC did not adequately refer to the conflicting medical evidence or the extent of petitioner's pre-existing condition before the 1997 accident. The employer had argued that petitioner's expert witnesses, Martin Riss, a doctor of osteopathic medicine, and Lawrence Eisenstein, a neurologist and psychiatrist, did not establish from objective medical evidence a change in petitioner's condition caused by the 1997 accident, as required by N.J.S.A. 34:15-36 and pertinent case law. See Perez v. Pantasote, Inc., 95 N.J. 105, 118 (1984); Yeomans v. City of Jersey City, 27 N.J. 496, 512 (1958). In particular, Circuit Foil had argued that the 1997 MRI of petitioner's lower back showed no new developments in comparison to a pre-accident 1994 MRI. Circuit Foil's medical expert, Kenneth Peacock, an orthopedist, had testified that there was no change in petitioner's condition before and after the 1997 accident, as evidenced by the two MRIs.

In addition, Circuit Foil argued that new 2002 findings of Dr. Riss could not be attributed to the 1997 accident as opposed to petitioner's occupational exposure, his fall in 2001, or his other non-work-related medical conditions. In our prior opinion, we also sought more explicit findings comparing petitioner's pre-existing condition to medical findings after the 1997 accident, and explaining why the JOC did not attribute petitioner's condition to other potential causes following that accident. These findings affected the potential liability of the Second Injury Fund and also determined which worker's compensation carrier for Circuit Foil was liable for payment of petitioner's disability benefits.

In his decision of January 14, 2009, the JOC first explained reasons for crediting the testimony of petitioner on the subject of his increased disability after the May 1997 accident. Next, the JOC set forth his reasons for finding that the pre-existing orthopedic disability, and hence the liability of the Second Injury Fund, was 30% partial total disability. Most significant for purposes of Circuit Foil's challenge on this appeal, the JOC stated in detail his reasons for finding the testimony of petitioner's experts - to the effect that the 1997 accident was the cause of petitioner's total disability - more credible than the contrary testimony of Circuit Foil's expert. In that regard, the JOC stated:

In considering the medical evidence that was presented at trial, I take into account Dr. Riss' interpretation of the findings in the 1994 MRI report and his further interpretation of the findings in the November 1997 MRI. I realize that both of these tests were initially read by radiologists who reported specific findings that they recorded when they read the films. Dr. Riss reviewed these findings and used his own expertise to make his own independent medical interpretation. MRI reports normally contain the instruction to doctors who order them that their results should be correlated clinically. In other words, Dr. Riss took all the clues he found in these two reports and put them together with the findings of his medical examination to conclude that there was a greater amount of orthopedic and neurological pathology in Mr. Forker's back as a result of this accident than there was beforehand. He assessed objective medical findings and used them to reach a diagnosis.

Dr. Riss' and Dr. Eisenstein's dermatonal findings, Dr. Riss' clinical test results such as positive straight leg raising and the Lasague's findings as well as his review and analysis of the clinical findings of the doctors, nurses and physical therapists who examined him and followed him during the course of his treatment at Healthcare, Heath South and Community Medical Center constitute persuasive demonstrable objective medical evidence that Petitioner Forker has permanent disability as a result of his May 23, 1997 accident. These treating notes and records upon which Dr. Riss relied and which were put into evidence show that he had to stay out of work under treatment for nearly seven months.*fn1 They show that, during this time, he was treated with steroids, potent anti-inflammatory drugs like Tordol, and with narcotic pain killers such as Vicodin and Per[coc]et. They also show that he received intensive physical therapy and had considerable restrictions placed on his activity. It would be absurd to conclude that Petitioner's injury, which was documented by all the treatment medical records . . . is some mere triviality, or something that did not significantly increase the quantum of his overall disability.

I am persuaded by Dr. Riss' testimony that Petitioner now has a greater amount of lumbar disc pathology (particularly at the site of his L2-L3 epidural nerve block level, and his retolisthesis) and that his disability after his 1997 accident considerably exceeded what it was before this accident. I am persuaded by Dr. Riss' testimony that this accident has caused grave restrictions in his ability to function, and that finally, it prevented him from working at all. Dr. Riss interpreted the objective findings in the MRI report to show that Petitioner had a shifting of the spinal structure at the L2-L3 level which caused instability there and caused pressure on the thecal sac, thus interfering with nerve conduction from his spinal canal and caudia equina into the peripheral nerve network which enervates motion, coordination and sensation in his legs. His testimony is persuasive and indeed explains ...


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