On appeal from the Department of Labor, Division of Workers' Compensation, Claim Petition No. 2000-20814.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Alvarez.
Ryder Transportation Resources (Ryder) appeals from an award of total and permanent disability granted to petitioner Gerard Marra, a former employee, and the dismissal of the claim against the Second Injury Fund (Fund). For the reasons that follow, we affirm.
By way of background, petitioner was granted twenty percent disability on August 31, 2001, for a left inguinal hernia, which resulted in multiple surgeries and profound ilioinguinal syndrome. Thereafter, on September 15, 2003, petitioner applied for modification of the award, asserting that his condition had worsened and he required continuing treatment. Ryder resisted the application, alleging that petitioner had failed to demonstrate a need for increased disability and that all necessary medical treatment had been provided.
On June 19, 2009, petitioner requested the court join the Fund to the pending claim. The Fund participated on a limited basis, "with a reservation of rights to reopen medical testimony if deemed appropriate." The subsequent seven-day trial conducted by the judge of compensation commenced December 10, 2009, and ended on December 16, 2010.
On the last day of trial, Ryder attempted to introduce a surveillance video of petitioner on the basis that it would refute his testimony that he could do nothing more around his home than replace a light bulb. The judge of compensation denied the request because it not only came after petitioner and his experts had testified, but also without prior notice.
In his March 15, 2011 written opinion, the judge of compensation concluded that petitioner was "presently [t]otally and [p]ermanently [d]isabled as a consequence of his work related injury . . . ." On June 2, 2011, he signed an order finding total disability. The judge also dismissed the claim against the Fund on March 15, 2011. This appeal followed.
Petitioner worked as a large engine mechanic at Ryder, and had suffered several injuries, some work-related, prior to the one at issue. The earlier injuries included a fractured kneecap, for which he had undergone surgery, and a tendon repair. He testified that the knee injury did not impact his ability to work, however, as he returned to his employment approximately one week after surgery. Years earlier, petitioner fell down a flight of stairs, recuperated, and returned to work. He had twice broken bones in his right wrist. Petitioner believed none of these injuries affected his ability to work in the long run.
Petitioner became the "supervising tech" in 1997 or 1998, and stopped working with heavy machinery and tools. On the day of his injury, however, he was sent on a road call, and while lifting a loading gate, he "felt like something burst in [his] stomach . . . ." On January 6, 1998, "[h]e underwent a left hernia, inguinal hernia repair, however it was complicated by [the] onset of a nerve condition." The nerve condition resulted in exuberant scar formation which entrapped the ilioinguinal nerve and produced symptoms including "burning sensations in the testicle extending into the upper thigh, inner thigh on the left side with some numbness, as well as electric shock sensations in those same areas." This condition, ilioinguinal syndrome, occurs where there is injury to a nerve which passes over the inguinal region, resulting in pain and discomfort.
In April 1998, petitioner was medically released "for light duty with restrictions[,]" however, his prior position was not available. He explained that he had previously been a supervisor and mechanic, but the supervisory role was filled. He was assigned work he could not perform even though he was "supposed to be on light duty." He stopped working shortly after his return. On March 30, 2000, petitioner underwent a second operation, "which consisted of a division of the left ilioinguinal and iliohypogastric nerves." He was then diagnosed by Dr. Arthur Tiger, an orthopedist, in November 2000, with "scarification status post inguinal hernia surgery times 2 as well as a profound ilioinguinal syndrome." In 2000, Tiger estimated the "disability for this unusual syndrome was 35% of partial total."
In 2003, petitioner petitioned to reopen his case because in the intervening time, a series of three injections administered directly into the site proved to be more damaging than beneficial, causing "extreme testicular pain and nausea." He suffered attacks an average of six times a month, lasting at least forty-five minutes, and as long as a day-and-a-half. If alerted to the possibility that he would fall victim to these episodes, he would ingest medication which relieved the pain to a limited extent. The residual pain from these attacks might last for hours. Petitioner testified that he was never free from discomfort, but at times found the pain bearable. His pain management specialist, Dr. Ramesh Sawhney, maintains petitioner on a medication regimen consisting of Lidoderm patches, EMLA cream, Cachtralac,*fn1 Oxycontin, and Vicodin. As a result of the chronic pain, petitioner has undergone psychological changes, including irritability and loss of appetite.
In fact, since 2004, petitioner has been treated by Dr. Roberto Sozzi, a psychiatrist, who prescribed Neurontin, Welbutrin, Zoloft, Klonopin, and Provigil in an attempt to address petitioner's depression. Petitioner's therapeutic sessions with Sozzi revolve around the fact that his activities are extremely limited, that prior to the injury he "was a heavy duty truck mechanic[,]" and now, could do little more than change a light bulb, and that he rarely left his home.
Petitioner described his typical day as commencing at 6:00 in the morning, when he takes Provigil and Vicodin. He readies his children for school and drives them there. Petitioner then watches television until 2:00, when he picks the children up from school, and either takes the dog outside or sits on the couch. His wife handles the grocery shopping and household chores, although he sometimes does yard work. Petitioner has not worked since 1998.
Petitioner's wife also testified. She said that the injury has caused petitioner to experience a significant personality change. He has little energy, is short-tempered, and otherwise acts like a person living with chronic pain. The deterioration in petitioner's mental state, in her opinion, occurred around 2003 or 2004. Petitioner is different from the person that she married, and different from the person he was prior to 2002.
Dr. Peter Crain, a neuropsychiatrist, examined petitioner on April 20, 2007, and testified on his behalf. He diagnosed defendant with "left ilioinguinal neuropathy, chronic pain syndrome, and adjustment disorder with depressed mood that was chronic." When administered the Beck Depression Inventory, petitioner tested in "the severe range of mood of depression."
Crain opined that "there is a causal relationship between what [he] diagnosed, that accident, and [his] estimate of disability." The pain was significant because it prevented petitioner from being employed, engaging in normal sexual relations with his wife, and generally feeling productive, thereby causing his depression. Petitioner did not suffer an increase in his neurological disability since the first award, but is nevertheless now, for all intents and purposes, "totally disabled on a neuropsychiatric basis because of his condition" and requires continuing treatment. Although the neurologic physical problem has not really changed, the magnitude of petitioner's pain and depression has increased to 100%.
On cross-examination, Crain was asked about petitioner's prior injuries, and said that petitioner still experienced pain from his back and right wrist. Crain nonetheless did not agree that those injuries had "any bearing on [his] estimate of disability[,]" and did not impact on petitioner's depressive or chronic pain syndrome.
Tiger also testified for petitioner, based on his examination of petitioner in May 2007, that petitioner's "inguinal syndrome had worsened and now he had evidence of a complex regional pain syndrome that was localized to this area as well as an altered gait." Tiger opined the condition was causally related to petitioner's work-related accident of January 23, 1998, and estimated the injury to be sixty percent of partial total. Petitioner had developed "a complex regional pain syndrome[,]" which increased his disability due to petitioner's degree of pain and change in gait. Tiger also testified that petitioner did "have some pre-existing medicals as well." In his opinion, petitioner's overall disability was 100%.
Ryder's expert witness, Dr. Sidney Bender, a neurologist who examined petitioner in 2000, examined him again on January 8, 2009. Although in his view the gross area afflicted by pain had actually decreased since 2000, the intensity had significantly increased. Bender emphasized his conclusion was reached on petitioner's subjective reporting because no mechanism exists for measuring ...