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Rommel Calle v. Dejana Industries

October 7, 2011


On appeal from the Division of Workers' Compensation, Department of Labor and Workforce Development, Claim Petition No. 2005-26279.

Per curiam.


Submitted September 19, 2011

Before Judges Sabatino and Fasciale.

Respondent DeJana Industries, d/b/a Aero Snow Removal Corp. (DeJana), appeals from a September 13, 2010 order finding petitioner Rommel Calle permanently disabled and awarding total disability benefits. DeJana argues that the workers' compensation judge reached a decision unsupported by and inconsistent with the law and the credible evidence at trial. We disagree and affirm.

DeJana employed Calle to load its trucks with de-icing bags of salt between November 2004 and March 2005. Calle worked for DeJana during the winter for several years, and performed work as a laborer for other employers during the spring, summer, and fall. The parties stipulated that Calle was injured as a result of a compensable accident on March 8, 2005. He injured his low back when he slipped and fell while pulling a hand truck loaded with approximately fifty bags, each bag weighing fifty pounds.

On the day of the accident, Calle was taken to the emergency room where he was examined, x-rayed, and prescribed pain medication. While there, he received an epidural injection for pain in his low back. In April 2005, Dr. Shailendra Desai performed an MRI of Calle's low back, which showed "[a] central and left lateral large protruding disc with left neural foraminal encroachment."

Dr. Lester treated him conservatively from May 2005 to August 2005. Dr. Lester noted that "[Calle] has a left-sided disk protrusion at L5-S1 with posterior displacement of the S1 nerve root and absent left ankle reflex." He administered two epidural steroid injections, but Calle's pain continued. As a result, Dr. Lester performed a discogram in August 2005, which revealed "a positive provocative and analgesic response with injection of the L5-S1 disk correlating to his current back pain syndrome," and noted a "severely degenerative nucleogram pattern with disruption of the posterior annulus." In August 2005, Dr. Lester referred Calle to a surgeon, Dr. Richard Nachwalter, because his back pain remained unresolved.

On November 15, 2005, Dr. Nachwalter performed a lumbar laminectomy and fusion at L5-S1, inserted hardware, and performed a bone graft. Calle underwent post-operative physical therapy and remained out of work. In his June 2006 report, Dr. Nachwalter notes that "[Calle had] no appreciable improvement," and he ordered a functional capacity evaluation (FCE) "to determine what [Calle] is capable of doing."

The parties tried the case on seven non-consecutive days between January 2010 and September 2010. The primary contested issue was the nature and extent of the injury. Calle testified and produced two expert medical witnesses, Dr. Sheryl Wong, a forensic neurologist and psychiatrist, and Dr. Theodora J. Maio, an expert in the field of orthopedics. DeJana produced Dr. Ivan R. Dressner, a forensic neurologist and neuropsychiatrist, Dr. Arthur Canario, an expert in orthopedics, and Monica A. Lynch, a biomechanical expert.

Calle, whose primary language is Spanish, testified with the assistance of an interpreter. He testified that he worked for DeJana usually when it snowed. During the winter, he earned $11 per hour from DeJana, but during the summer he earned between $20 and $22 per hour working odd jobs for other employers. He was unable to work for any employer after the accident because of the constant pain. He testified that after the accident he felt "very bad," and that he did not "feel like . . . a normal person."

Dr. Wong examined Calle in January 2007. She diagnosed him as having "a central bilateral L5 radiculitis secondary to a L5-S1 disc herniation status post laminectomy and fusion at L5-S1 level," and an anxiety disorder. She reported an initial neurologic disability determination of thirty-seven and a half percent, and a twenty percent psychiatric disability. In March 2007, Dr. Wong issued a joint addendum report with Dr. Maio, considered Calle's neurological, orthopedic, and neuropsychiatric disability, and opined that Calle was totally disabled.

Dr. Maio examined Calle in January 2007. She diagnosed Calle with "post-traumatic injury to the lumbosacral spine . . . with disc herniation at L5-S1, status post epidural injections." She stated that after the laminectomy and fusion, Calle suffered from residuals "of lumbosacral myositis and fibromyositis . . . loss of range of motion lumbar radiculopathy as manifested by his complaints of radiating radicular pain, resultant reflexes predominantly left-sided sciatic neuralgia and post-operative scarification." Dr. Maio initially opined that Calle's orthopedic disability was sixty-six-and-two-thirds percent of total disability. She later supplemented her opinion, after reading a February 2007 report from Dr. Wong, and testified that Calle is totally disabled.

Dr. Dressner examined Calle in April 2007. He admitted that Calle sustained "an injury which was trauma to the back." He opined that Calle suffered from strains and sprains, the operation was unnecessary, and there was no objective ...

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