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Ferraro v. Pepsi-Cola

October 15, 2010

EDWARD G. FERRARO, PETITIONER-APPELLANT,
v.
PEPSI-COLA, INC., RESPONDENT-RESPONDENT.



On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, Claim Petition No. 1991-878.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 13, 2010

Before Judges Lisa and Alvarez.

Petitioner Edward G. Ferraro appeals from the January 26, 2009 denial of his second application for review and modification of a workers' compensation award. For the reasons that follow, we affirm.

On March 21, 1990, petitioner was injured while employed as a driver for respondent Pepsi-Cola, Inc. As a result, he underwent multiple surgeries, including on his left ankle, left elbow, and left shoulder. He has not worked since the occurrence. The matter eventually settled on February 1, 2000. Petitioner's compensation award was as follows:

60% partial total disability for orthopedic, neurological [and] neuropsychiatric...

37.5% of total for ortho/neuro of left shoulder; 35% of left foot for ortho/neuro;

7.5% of left arm for neuro/ortho; 5% of total for neuropsychiatric injury... represent[ing] residuals of multiple surgical interventions to l[eft] shoulder, post-traumatic epicon[dyli]tis of l[eft] elbow s/p surgery for removal of nodules [and] ligament surgery to [left] ankle [and] post traumatic anxiety [and] depression.

Petitioner on January 16, 2002, filed an application for review and modification. Judge Karch entered an order of judgment on October 14, 2004, on that application after a hearing. She increased the percentage of permanent disability to sixty-five percent, attributable to "partial total, orthopedic, neurologic [and] neuropsychiatric in nature, for residuals of torn l[eft] rotator cuff, l[eft] lateral epicondylitis, l[eft] carpal tunnel syndrome, torn l[eft] ankle ligaments, w[ith] multiple surgical interventions, plus anxiety and depression." Accordingly, among other things, respondent paid petitioner an additional $18,360.

Petitioner filed a pro se second application for review and modification on August 9, 2006. He again contended he was permanently and totally disabled, this time solely on the basis of a claimed increase in psychiatric disability. Judge Karch entered a judgment denying his petition on January 26, 2009, following a hearing. Petitioner now appeals.

During the course of the proceeding at issue, petitioner testified that his psychiatric condition had worsened since the entry of the October 14, 2004 order of judgment. He claimed that the pain in his left side had worsened, that he could not sleep and suffered from recurrent nightmares. After the entry of the 2004 judgment, petitioner was treated for pneumonia at Clara Maas Hospital. Copies of those records were marked into evidence in the proceedings at issue and were relied upon by the judge in reaching her decision.

Roberto Sozzi, M.D., petitioner's treating psychiatrist since February 2004, testified as his witness. Sozzi's diagnosis is that petitioner suffers from "[s]tress adjustment reaction with major depressive episode and paranoid delusional disorder[,] [o]bsessive compulsive disorder with poor insight[,] [g]eneralized and panic disorder," and "[p]ain disorder associated with general medical condition and psychological factors." When Sozzi tested petitioner, his Global Assessment Functioning (GAF) score was 40 although it has currently increased to 50. Sozzi's treatment included not only monthly psychiatric visits but, since July 21, 2005, he has prescribed Geodon twice daily, Alprazolam three times daily, Paxil two times daily, Darvocet three times daily, and Ambien for insomnia every night. Currently Sozzi's treatment of petitioner includes prescriptions for Seroquel, Paxil, Xanax, Ambien, and Darvocet. Sozzi said petitioner is agitated, suffers from mood swings punctuated by rage, is paranoid, obsessively ruminates, and has impaired language and comprehension.

In reaching her decision, Judge Karch significantly relied upon her own observations of petitioner over the years concluding that his "'psychosis' exists... only when pursuing workers' compensation benefits,... in [] Sozzi's office, at his examinations with [] Crain and Semel,*fn1 and in court." Judge Karch also noted that the records from petitioner's August 2005 ten-day stay at Clara Maas Hospital refute his claimed psychiatric disability. While there, petitioner was repeatedly asked whether he had been prescribed any medications, to which he responded that he was only prescribed Ambien and Darvocet. When pressed as to the dates he last took those medications, he said he takes Darvocet and Ambien on an as-needed basis, not daily. The medical records further indicate that although petitioner appeared to be anxious ...


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