On appeal from the Division of Workers' Compensation, Docket No. 1999-2328.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 29, 2010 - Decided Before Judges Wefing and Payne.
On January 22, 1993, petitioner, Manuel Lambour, sustained an injury to his right shoulder while working for Rhone-Poulenc. On November 14, 1996, following trial, he received a judgment of 22.5% permanent partial orthopedic disability arising from subacromial bursitis of the right shoulder and right shoulder impingement. The claim was reopened pursuant to N.J.S.A. 34:15-27, and on September 7, 2001, the award was increased as the result of a settlement to 30% permanent partial orthopedic disability attributable to subacromial bursitis of the right shoulder, right shoulder impingement syndrome and right rotator cuff tear with surgery.
On July 1, 1998, petitioner sustained an injury to his lumbar spine in an automobile accident while working as a car valet for Adamar of New Jersey at its Tropicana Casino and Resort. As the result of the accident, which was petitioner's fault, he was fired. The accident resulted in lumbar-sacral sprain with radiculopathy, radial tear at L5-S1, and disc protrusion at L5-S1 causing indentation on the thecal sac. Following conservative treatment, petitioner was medically discharged in January 1999. However, as the result of a court order entered on January 7, 2000, he appears to have received additional medical treatment by Stafford Orthopedics and Dr. Charles Daknis, a pain management specialist, receiving medications, physical therapy and five epidural steroid and trigger point injections.
Petitioner sought workers' compensation benefits for back and psychiatric injuries allegedly resulting from the 1998 accident. The psychiatric claim was resolved in a lump sum settlement pursuant to N.J.S.A. 34:15-20.*fn1 Additionally, on September 27, 2002, the back claim was settled with a determination of 20% permanent partial orthopedic disability.
On September 24, 2004, petitioner re-opened his claim for back injury against Adamar, and on September 8, 2005, filed a claim against the Second Injury Fund pursuant to N.J.S.A. 34:15-95.1. That matter was consolidated with a prior pending claim filed in 2003 by petitioner against Rhne-Poulenc. A trial was conducted, at which testimony was provided by petitioner, his examining physician, Martin Riss, D.O., and the examining physician of Adamar and Rhone-Poulenc, Lawrence Zazzo, D.O. Following the trial and submission of closing briefs, the judge rendered an oral opinion finding petitioner to be totally permanently disabled and eligible for Second Injury Fund benefits.
On April 28, 2009, the judge entered an order of judgment of 40% permanent partial disability against Rhone-Poulenc*fn2 and an Order of Total Disability with Second Injury Fund benefits against Adamar and the Fund. Lifetime medical treatment was provided. The judge found that petitioner's total permanent injury commenced as of August 10, 2005, the date of a report finding such injury by petitioner's expert, Dr. Riss, arising from a medical examination conducted in July 2005.
However, in addition to addressing disabilities arising from petitioner's shoulder and back injuries, in both his oral opinion and his Order of Total Disability, the judge also referenced an injury to petitioner's neck, the etiology of which was not disclosed at trial, and multiple hemangiomas that neither trial expert causally connected to petitioner's disability. The judge's order stated:
100% percent permanent total disability with the Respondent paying 60% permanent total disability for the residuals of C6-7 Broad Based Disc Protrusion Resulting in Spinal Stenosis; Hemangiomas at C6 vertebrae;
Multi-Level Degenerative Disc Disease and Osteophyte Formation noted throughout the Cervical Spine; Lumbosacral Sprain; L5-S1 Radiculopathy; Radial Tear at L5-S1; Disc Protrusion at L5-S1 which causes indentation of the ventral aspect of the thecal sac; Degenerative Changes involving the Bilateral Facet Joints and Thickening of the ligamentum flavum at the [sic] level;
Combination forms a mild stenosis; Status post epidural steroid injections; Status post trigger point and epidural injections in 2000; Moderate to severe spinal stenosis and narrowing at L5-S1 and multiple hemangiomas of vertebral bodies from L1 to L5.
Following the filing of an appeal by Adamar, the judge reviewed his oral opinion and then submitted a written supplement pursuant to Rule 2:5-1(b) to restate his conclusions. In his revised opinion, the judge stated that neither petitioner's hemangiomas nor his neck condition contributed to petitioner's disability. Focusing on petitioner's back condition, the judge noted that, following the 1998 accident, a lumbar MRI was interpreted as disclosing:
Radial tear at L5-S1 with small disc protrusion at this level which causes indentation on the thecal sac without evidence of spinal stenosis seen.
The only other treatment records placed in evidence were of MRI examinations of petitioner's neck, right shoulder and lumbar spine conducted on November 17, 2004 at Kimball Medical Center in Lakewood. The lumbar spinal MRI disclosed, among other things, "moderate to severe canal stenosis and mild foramenal narrowing at the L5-S1 level."*fn3 Despite the absence of medical treatment records to provide a foundation for a conclusion that petitioner's present disability was causally related to his 1998 accident, the judge found:
Respondent's own expert Dr. Lawrence Zazzo did not dispute Petitioner's claim that he has significantly greater disability in his back now than he did when he appeared before Judge Henson in September 2002. He testified that spinal stenosis, such as he found in Petitioner's case was an ongoing process that developed over a period of years. He also stated that he found a "global range of motion deficits" when he compared his exam findings in 2006 and 2008 with those made by other doctors in 1999 and 2000.
On cross-examination Dr. Zazzo . . . admits that he could have found causal relation between Petitioner's condition today and the 1998 back injury if there were bridging of symptomatology and no intercurrent traumatic events. I think it can be reasonably inferred from Petitioner's testimony that he reached out for treatment and never got any and also that his back pain and difficulty with his legs got worse over a period of time, that there were bridging symptoms to link the 1998 accident with his present condition.
The judge then found that petitioner had a disability that was "permanent in quality and total in character." The judge observed that petitioner had tried to work over the past nine or ten years, but the combination of petitioner's shoulder and back problems prevented him from obtaining a job similar to those he had performed ...