THERESA SIMONS v. VISITING NURSE ASSOCIATION

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4150-03T34150-03T3

THERESA SIMONS,

Petitioner-Respondent/

Cross-Appellant,

v.

VISITING NURSE ASSOCIATION,

Respondent-Appellant/

Cross-Respondent.

________________________________

 

Argued September 26, 2005 - Decided

Before Judges Alley and C. S. Fisher.

On appeal from the Division of Workers' Compensation, No. 1999-021953.

David P. Kendall argued the cause for appellant/cross-respondent (Francis T. Giuliano, attorney; Francis T. Giuliano, of counsel; Mr. Kendall and Mr. Giuliano, on the brief).

Todd D. Wachtel argued the cause for respondent/cross-appellant (Levinson Axelrod, attorneys; Patrick T. Caufield, on the brief).

PER CURIAM

Theresa Simons filed a claim petition with the Division of Worker's Compensation on July 29, 1999, for injuries she allegedly sustained in an automobile accident that occurred during the course of employment. Her employer was the Visiting Nurse Association.

Hearings took place before a Judge of Compensation on various dates ending in November 2003. In a detailed opinion, the Judge of Compensation awarded petitioner twenty-seven percent partial total disability for a total of $25,788. After deducting a third party lien of $17,192, the result was a net award to petitioner of $8,596. She was also awarded two weeks of additional temporary disability which, after netting out the amount already paid, resulted in a balance due her of $522.10. The court also awarded various costs and expenses.

We set forth the following pertinent evidence from the record. Petitioner, then aged fifty-three, had worked for the Visiting Nurse Service for two years before the accident. Her position required her to "lift and care for patients and wash them and transfer them from bed to wheelchairs and from wheelchairs to chairs," feed them, and clean them if required.

The accident occurred when petitioner's vehicle was rear ended by another driver on August 7, 1997, as she was turning into a patient's driveway. Petitioner was wearing a seatbelt at the time of the accident and her head hit the windshield as a result of the impact. According to petitioner, she sustained injuries to her head, neck, hands, and lower back, and some of her teeth were cracked as well. Emergency personnel at the Hackettstown Hospital Emergency Room concluded that she had sustained (1) contusion forehead/cervical strain; (2) cerebral concussion; (3) contusion adhesions; and (4) other contusions or lacerations. Petitioner was released from the hospital that same day.

On August 15, 1997, Dr. Philip Keats opined that his examination of petitioner showed that she had "sustained muscular and ligamentous injuries to her neck and lower back as well as a possible mild concussion" as a result of the accident. He recommended that she continue to use medication and her cervical collar and concluded that she "remains disabled from her normal occupation." In a follow-up visit on August 29, 1997, Dr. Keats concluded that petitioner "continues to be disabled from her normal occupation secondary to post-concussion syndrome as well as muscular and ligamentous sprains of her neck and lumbo-sacral spine."

Dr. Daniel J. Feuer, a neurologist, examined petitioner at the request of Dr. Keats on August 19, 1997, and September 2, 1997. He diagnosed petitioner with cervical syndrome, lumbosacral syndrome and bilateral carpal tunnel syndrome, and recommended that petitioner wear a wrist splint. Dr. Keats's associate, Dr. Bertram M. Kummel, examined petitioner on September 23, 1997, and issued a note to petitioner stating that she was able to return to light duty, meaning that she "should not lift patients or try to turn one in a sling. She can do other things such as prepare meals and assist a patient to dress." After Dr. Kummel examined petitioner again on October 7, 1997, he determined that she should be discharged from his and Dr. Keats's care since she had reaped all possible benefits from therapy, and that she should continue to work on a restricted basis.

Petitioner was seen again by Dr. Kummel on November 7, 1997, and he recommended that she be evaluated by a neurologist, in order to better assess the tenderness observed in her back, neck, and hands. He also issued a note stating that she could return to full duty, but restricted her activity somewhat, noting that she "may not be able to keep up pace." On December 8, 1997, when Dr. Kummel examined petitioner again, he noted that the neurologist found no problems and that petitioner should have an ENT consultation with Dr. David Zenker. He further noted that in the meantime she would continue to work.

Dr. Zenker reported to Dr. Kummel in January 1998 that "her [petitioner's] complaints and physical findings are pretty much in line with an individual who has sustained a cervical trauma . . . and it would appear that her hearing is actually within normal limits, although it is better in the left ear than the right ear." He also stated that during his second examination she had mentioned that her symptoms had improved.

After Dr. Kummel examined plaintiff again on June 10, 1998, he reported that she had worked with respondent and with ARC Morris up until May but was then working thirty-six hours a week at ARC Morris only, and that petitioner left respondent because "she was 'not feeling well.'" Dr. Kummel concluded that petitioner had suffered an exacerbation of her pain, likely attributed to "a non-organic syndrome or diabetic neuropathy." Petitioner returned for another examination a week later, and Dr. Kummel noted that petitioner's condition had improved and that she could return to work without restriction.

When petitioner was examined again on March 11, 1999, by Dr. Kummel, he noted that she reported severe pains in her back from attempting to lift someone on February 16, while working for REM company. According to Dr. Kummel, she "demonstrates many non-organic signs such as the back pain engendered by neck motion, marked limitations of shoulder motions due to low back pain . . . ." He issued a note directing her not to work for one week.

On January 22, 2000, petitioner was examined by Dr. Albert Thrower, who concluded that she had suffered from cervical and lumbar sprain but had since recovered. In his view, her complaints concerning her hands were inconsistent with carpal tunnel, and her diabetes could not be the cause of any carpal tunnel present. Moreover, he did not believe there was any evidence of disability and opined that she was capable of working.

Dr. Arthur Tiger, who examined petitioner on February 28, 2000, opined that as a result of the accident, she had suffered "chronic cervical strain syndrome as well as chronic lumbrosacral strain syndrome with aggravated osteoarthritis in and about both areas with chronic myofascitis in and about the cervical and lumbar spines." According to Dr. Tiger, her total disability from the lumbar and cervical injuries was 37%, and he further estimated a 20% disability in each of her hands.

Dr. Tiger examined her again on April 4, 2003, and concluded that she suffered a disability of 22% of partial total for her cervical and lumbar injuries and a 25% disability in each hand for carpal tunnel syndrome. When Dr. Thrower evaluated petitioner again on April 29, 2003, he held to his belief that she had not suffered from any disability.

On August 20, 2002, petitioner was evaluated by Dr. Charles Effron, a doctor in psychiatry and neurology. Based on other doctors' reports and his interaction with her during a prior exam, he concluded that she did not suffer from any neurological disabilities and that she suffered from depression, likely stemming from her inability to pay her bills. He did not believe her psychiatric status was associated with the accident.

On February 25, 2004, the Judge of Compensation issued an order in favor of petitioner, and on February 26, 2004, she stated her reasoning on the record, making the following findings with respect to petitioner's claim:

Temporary disability is at issue for two weeks. The sole issues are nature and extent of permanent disability and temporary disability.

Petitioner testified that in August of 1997 she was working for the Visiting Nurses Association. Petitioner cared for, washed, fed, and lifted patients from wheelchairs to beds and back to wheelchairs. She worked in both private homes and in hospitals and nursing home facilities. Petitioner is 59 years old.

On August 7, 1997, she was driving to work when she had a car accident and injured her head, neck, hands, and lower back. She went to Hackettstown Hospital Emergency Room for x-rays and treated with Drs. Kummel and Keats. She was out of work until September of 1997. She then worked for ARC for dysfunctional people in a group home for three months. Then she got a better paying job with REM, which had only four people in a home, and it was closer to where she lived.

Dr. Keats referred her to Dr. Feuer, a neurologist, for tingling in the fingers, back, and neck. She then had an EMG. The treating doctor cut her off in March of 1999. Petitioner is presently getting medication from St. Clare's Hospital for depression. She takes Effexor three times a day. She goes to see a psychologist Josette at the Esther Dutton Treatment Center every two or three weeks. She now works for Dependable.

Her present complaints are pain, dizziness, headaches, nausea, and four broken teeth. About three or four times a week for a couple of hours she has stiffness and pain in her neck. She takes Propanol for it. She has problems turning her head when she drives a car. She gets nervous driving because she remembers the accident. She used to drive to dog shows on the weekends. She had twenty poodles, but after the accident she could no longer lift the equipment into the van, and she is nervous driving. She got rid of the show dogs. Her hands and arms have tingling sensations. She can't lift with her back, and she drops things. She has no strength. She used to lift 25-, 35-, and 50-pound dog crates and grooming tables. Now she only has three dogs.

Petitioner has back pain at the belt line which goes down her legs to her feet. She gets pain in her low back and legs after standing in one spot for two to three minutes. She doesn't run anymore. She used to have to run to show her dogs in the show ring. She used to show two or three dogs at a time. Now she can't show at all. She can now walk for only about 20 feet without a problem. Sometimes Petitioner uses a cane when the pain is severe, and that happens a couple of times a month.

Petitioner has a hard time getting up and down steps. She climbs up one step at a time, and she is exhausted when she gets to the top of the stairs. She has problems getting in and out of the tub because her back hurts. She usually sits on the toilet and washes with a washcloth because her shower is in the tub, and she can't get in it.

Dr. Arthur H. Tiger, M.D. testified on behalf of Petitioner as an orthopedic expert. The doctor testified he examined Petitioner on 2/28/2000. He took a history, her complaints, and had the following objective medical findings on his exam: loss of usual lordotic curve, moderate spasm in muscles on either side of the neck region.

In the hands Dr. Tiger found evidence of a positive Phalens and reverse Phalens test indicating some compression of the median nerve in the carpal tunnel and a positive Tinel sign at the carpal tunnel. He found evidence of thenar atrophy and evidence of a weakness of muscles innervated by the median nerve in each hand.

In the lumbar spine Dr. Tiger found loss of lumbar lordsis, moderate spasm in the muscles of either side of the lower back. His diagnosis was chronic cervical strain syndrome with a mild chronic fascitis together with a chronic lumbosacral strain syndrome with a chronic myofascitis and bilateral carpal tunnel syndrome in her hands.

Dr. Tiger's estimate of disability was 37 1/2% partial total split equally, 18 3/4% for the neck and 18 3/4% for the low back, and 20% of the right hand and 20% of the left hand for carpal tunnel syndrome.

Dr. Tiger re-examined Petitioner on April 4, 2003, and took her complaints of worsening symptoms in her neck, back, and hands. On his second exam, he found hard fibrotic muscle tissue in the cervical area with loss of usual cervical curvature. He stated his cervical findings were noted now as "profound."

In the low back Dr. Tiger found hard fibrotic muscle tissue with muscle spasm. In her hands he found Phalens signs, Tinel sign, "profound" thenar atrophy bilaterally with sensory loss in the median nerve distribution.

Dr. Tiger testified all these findings came from the motor vehicle accident. The doctor estimated disability went from 20% for each hand to 25% of each hand. Dr. Tiger said he reviewed all the treating records. He testified causal relationship between the auto accident of August 1997 and the injuries to her cervical and lumbar spine and her hands.

Dr. Tiger admitted that Petitioner on February 28, 2000, related to him a history of an exacerbated low back condition from a lifting incident on 2/16/99 while she was working for someone else. Petitioner got treatment from a chiropractor for it and was seen by Drs. Keats and Kummel, and subsequent x-rays showed degenerative lumbar changes with loss of lumbar lordosis.

Dr. Tiger stated that Petitioner only injured her low back on the 2/28/2000 [sic] lifting incident. She did not injure her neck. Dr. Kummel and Keats kept her out of work for one week.

Dr. Tiger testified it's possible that some of his low back findings in February of 2000 were due to the subsequent incident of 2/16/1999.

Dr. Tiger found full range of motion in both cervical and lumbar spine on both exams. He further stated Petitioner's bilateral carpal tunnel was moderate.

Dr. Albert B. Thrower testified on behalf of Respondent as an orthopedic expert. He examined Petitioner on 1/14/2000. He took a history, her complaints, and had the following objective medical findings on his exam. He found negative carpal tunnel testing. He found her complaints of tingling unrelated to the median nerve. He found mild to moderate loss of lateral bending and extension. He found she was taking Insulin for diabetes. He found no permanent disability related to the motor vehicle accident.

When Dr. Thrower was asked if he was aware that Drs. Keats, Kummel, and Feuer, a neurologist, diagnosed carpal tunnel syndrome, Dr. Thrower said he was aware that Dr. Feuer gave her wrist splints for carpal tunnel syndrome.

After a review of each exhibit and doctor's report, many of which we have already addressed, the decision concluded that

the Court finds that it cannot allow any low back orthopedic disability because of an intervening lifting accident on 2/16/1999. Dr. Tiger on the stand admitted that it's possible some of his objective findings could have been from the second lifting incident and not the auto accident.

There is, however, overwhelming objective medical evidence of carpal tunnel syndrome. Dr. Effron simply ignores the positive EMG results and ascribes it to her diabetes. However, the Court finds the treating doctor, Dr. Feuer, a neurologist, more persuasive, together with the positive EMG showing carpal tunnel. Dr. Tiger's objective findings of positive Tinel sign and Phalens sign with thenar atrophy is most persuasive.

The Court finds Petitioner has a 12 1/2% partial total disability for bilateral carpal tunnel syndrome unoperated. Her complaints of dropping things and weakness in her hands and inability to lift her dogs and dog crates affected her ordinary pursuits of life in that she could no longer show her dogs, which she was involved with in a major way every weekend. She had twenty show dogs.

Dr. Effron repeatedly complains he is missing one and a half years of psychiatric records and would be willing to submit a supplemental report if he ever got the complete records. Petitioner told Dr. Effron her first psychiatric care was in 2001 at the Esther Dutton Mental Health Center in Budd Lake for depression caused by inability to pay her bills. He received psychiatric records from St. Claire's Behavioral Center in Morristown, New Jersey.

Dr. Effron's 8/20/02 report cites improvement in her depression since onset of treatment in 2001. He finds no causal connection to the accident but rather relates it to failure at work and social isolation.

Dr. Rothman's report of 11/1/02 increased neuropsychiatric disability to 25% of total, which is a 5% increase over the 5/26/2000 exam.

Petitioner was still under psychiatric treatment with Dr. Miller who noted "major" depressive disorder, single episode. This was in the report review by Dr. Rothman. Petitioner was on Zoloft. Dr. Rothman causally relates her adjustment disorder to the accident of 8/7/97.

The Court finds Dr. Rothman's exam of 5/26/2000 very persuasive. He notes Petitioner had a downcast fact, was anxious and tense and was furrowing her brow during the exam. She cried when relating her history. He diagnosed an adjustment disorder and dysthymia and estimated 20% of total disability neuropsychiatrically.

This was following by treatment for depression with Dr. Miller in 2001 and Zoloft medication by her family doctor. Three separate doctors have noted psychiatric problems together with treatment by a psychotherapist, Joan Schram, once a week.

The Court finds overwhelming evidence of psychiatric problems causally related to this accident and will award Petitioner a 7 1/2% partial total neuropsychiatric disability based on Dr. Rothman's findings and report for an adjustment disorder and anxiety and dysthymia.

As to the cervical condition, Dr. Tiger's final exam and testimony noted "profound" cervical findings. These findings were much more persuasive than that of Dr. Thrower, who came across as extremely respondent-oriented to the extent that it affected his credibility.

Dr. Tiger appeared to be more objective. Dr. Tiger noted his cervical findings were not affected by the subsequent lifting incident, which did not involve the cervical area.

The Court finds Petitioner has a cervical disability here of 7 1/2% partial total for neck pain and stiffness, which gives her problems driving a car and turning her head.

Petitioner's present complaints which were credible substantially affect her ordinary pursuits of life and her ability to work. She no longer pursues her hobby of spending her weekends showing her twenty dogs, and in fact she has had to dispose of most of the dogs because she can't care for them nor can she complete the show circuit because of her physical problems in her neck, arms, and back, and her fear of driving. Her ability to work has also been affected.

Her job was a visiting nurse entailing lifting and turning patients. This is a very physical job. The Petitioner's physical and mental fitness has been sorely compromised by this accident. The objective medical findings of Dr. Tiger and Dr. Rothman and Dr. Feuer clearly show Petitioner has many limitations affecting her ability to work and her ordinary pursuits of life, and she has substantially complied with all the requirements of turning patients. Perez v. Pantasote, 95 N.J. 105, 469 A.2d 22 (1984).

Petitioner's overall disability her is 27% partial total, which would entitle Petitioner to 165 weeks at $156.29 a week for a total of $25,788 less a third-party lien of $17,192, leaving a balance due to the Petitioner at this time of $8,596. As to temporary disability, Petitioner was kept out of work by Dr. Kummel from 8/7/97 till 10/7/97, when she was returned to work light duty for a total of 8 4/7 weeks in 1997.

Dr. Kummel's treating records indicate he also kept her out of work from 6/10/98 through 6/17/98, entitling Petitioner to one additional week for a total of 9 3/7 weeks, although on 2/16/99 she was out of work for a lifting incident, and it was with another employer, REM Co., which exacerbated her back condition.

Petitioner should not be given temporary disability from NJM for this one week. The Court finds Respondent paid Petitioner for 7 3/7 weeks. She is entitled to 9 3/7 weeks, and the Respondent owes the Petitioner two weeks of additional temporary disability as claimed for a total of $2,461.33 less $1,939.23 already paid, leaving a balance due to the Petitioner on temporary disability of $522.10.

The Court will allow the following fees: Dr. Tiger, Petitioner's attorney paid $250 on the second exam. The Court will allow $650, payable $250 to Petitioner's attorney by Petitioner and $400 by Respondent.

Dr. Rothman, Petitioner's attorney paid $150 on the second exam. Total allowed $400, payable $150 to Petitioner's attorney by the Petitioner and $250 payable by the Respondent to the doctor. Counsel fee $5,157 total, payable $2,063 by Petitioner and $3,094 by respondent.

[C]ourt reporting fee $750 payable by Respondent. Petitioner's attorney costs for transcripts and medical records $307 payable by Petitioner to the attorney in reimbursement.

Respondent's appeal contests the sufficiency of the evidence to support the conclusion that petitioner sustained a compensable psychiatric disability materially caused by the accident; the sufficiency of Dr. Tiger's conclusion for a determination of disability in petitioner's cervical spine; the sufficiency of Dr. Tiger's testimony as a basis for finding disability as a result of carpal tunnel syndrome; and the sufficiency of the evidence the court relied upon in rendering judgment for petitioner. On cross-appeal, petitioner asserts that she had established, by objective proof, partial total disability to her lumbar spine as a result of the accident.

We first consider respondent's contention that there was insufficient credible evidence in the record upon which the Judge of Compensation could have reasonably concluded that petitioner sustained a compensable psychiatric disability caused by the accident.

We generally will not upset the determination of an agency unless it was arbitrary, capricious or unreasonable, or violated legislative policies expressed or implied in the act governing the agency. Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). When error in fact-finding of a judge or administrative agency is alleged, the scope of appellate review is limited. We will decide only whether the findings made could reasonably have been reached on "sufficient" or "substantial" credible evidence present in the record, considering the proof as a whole. We give "due regard," however, to the ability of the factfinder to judge credibility and, where an agency's expertise is a factor, to that expertise. In re Taylor, 158 N.J. 644 (1999).

In 1980, as part of extensive amendments to the Workers' Compensation Act, L. 1979, c. 283, 12, the statute, N.J.S.A. 34:15-36, "for the first time set forth a statutory definition of partial permanent disability." Perez v. Pantasote, Inc., 95 N.J. 105, 111 (1984). One of "the statute's primary goals [was] to eliminate awards for minor partial disabilities." Id. at 114.

Perez v. Pantasote addressed the evidentiary basis necessary to satisfy the statutory definition of partial-permanent disability. There, the court pointed out that under N.J.S.A. 34:15-36, a petitioner seeking to prove partial-permanent disability must satisfy a two-prong test. Id. at 116. First, a petitioner must make a "satisfactory showing of demonstrable objective medical evidence of a functional restriction of the body, its members or organs." Ibid. This showing may not "rest upon petitioner's subjective complaints" alone. Perez v. Pantasote, supra, 95 N.J. at 116. Second, "he must establish either that he has suffered a lessening to a material degree of his working ability or that his disability otherwise is significant and not simply the result of a minor injury." Id. at 118. Petitioner bears the burden of proof on both prongs of the test. Ibid.

The Supreme Court noted in Saunderlin v. E.I. DuPont Co., 102 N.J. 402, 411-12 (1986), that a petitioner's right to recover for permanent partial claims under N.J.S.A. 34:15-36 includes claims for psychiatric as well as physical injury. It further explained that the statutory requirement that a claim be "based upon demonstrable objective medical evidence" applies to psychiatric claims pursued under N.J.S.A. 34:15-36. Ibid. The Court continued that the reason for requiring such evidence

is to interpose a professional medical judgment between the subjective statement of the petitioner and the award of disability benefits. Presumably, evidence exceeding the subjective statement does not mean evidence excluding that statement. After all, any medical examination, whether physical or psychiatric, must begin with the subjective statement of the patient (unless he or she is unconscious). To what extent and in what manner the professional analysis must go beyond that statement in order to constitute demonstrable objective medical evidence appropriately depends upon the nature of the disability.

[Ibid.]

In Colon v. Coordinated Transport, Inc., 141 N.J. 1, 10 (1995), the Court elaborated:

The scope of professional analysis required beyond the subjective complaints depends on the nature of the disability or impairment. Saunderlin, supra, 102 N.J. at 412; Perez v. Monmouth Cable Vision, 278 N.J. Super. 275, 285 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995). The closer the disability or impairment approaches a "minor injury," the more extensive the professional analysis must be.

Although a doctor is permitted to consider a petitioner's subjective complaints, the doctor must also present either clinical or laboratory findings of "observable, measurable, physical manifestations" of injury to satisfy the "demonstrable objective medical evidence" standard. Saunderlin, supra, 102 N.J. at 412; see Perez v. Monmouth Cable Vision, supra, 278 N.J. Super. at 284.

We are persuaded that the record in this matter lacks adequate objective medical evidence to support the Judge of Compensation's conclusion that petitioner had a partial total neuropsychiatric disability. In so concluding, we recognize that in an evaluation letter dated May 26, 2000, Dr. Arthur C. Rothman concluded, as based on petitioner's complaints and his examination of her, that she suffered adjustment disorder with anxiety and dysthymia as a result of the accident, and that his view was the same after he examined petitioner in 2002.

Nevertheless, petitioner's psychiatric proofs were inadequate because her expert, Dr. Rothman, failed to provide objective proof for the opinions he provided. As we understand the record, rather than offering live testimony concerning the psychiatric contentions, the parties apparently agreed to allow the reports of their experts to go into evidence without further explanation. In reviewing the report of Dr. Rothman, we conclude that it simply fails to comport with what Saunderlin, supra, 102 N.J. at 412, requires. Almost in its entirety, it consists of the doctor's recitation of the physical findings and the complaints of petitioner and, with respect to the psychiatric disability claim, it merely quotes the statements of petitioner as to her depression and her concerns for the future:

She has upsetting thoughts about the accident. She gets upset and nervous in situations that remind her of it. She has a lot less interest or gets a lot less pleasure in almost everything she does. Her self-esteem is low. She can't seem to make decisions about things. She is pessimistic about the future. She can't do the things he [sic] used to do. She has problems at work, playing sports and doing chores around the house. When she is depressed, her appetite varies, sometimes she hardly eats and other times she overeats. "I cry a lot. I try not to think about it because I get upset. I am going to lose my house for taxes. I can't maintain my bills. I am behind in everything."

Nothing in these comments, which we understand are the only statements in the report that purport to support the psychiatric claim, provides more than what Saunderlin characterized as mere "parroting." 102 N.J. at 417. In the absence of the expert's analysis of the petitioner's alleged condition and of any evidence of her alleged psychiatric condition other than those things she stated to Dr. Rothman, we are constrained to reverse this aspect of the award. In other words, the Judge of Compensation's conclusions were not supported by the requisite evidence. Notwithstanding our usual deference to trial court and administrative findings, there is nothing here for us to defer to because of the absence of competent support for the finding and conclusion as to petitioner's receipt of disability compensation for the neuropsychiatric injuries she sustained from the accident.

With respect to respondent's assertion that there was insufficient credible evidence in the record upon which the Judge of Compensation could have reasonably concluded that petitioner sustained a compensable cervical disability caused by the accident, we are not persuaded, despite the forcefulness with which it is made, that ultimately the contention is correct. In particular, we conclude that substantial objective medical evidence exists in the record to support the conclusion that petitioner had a partial total cervical disability. Dr. Tiger testified that petitioner complained of pain and stiffness in the neck and back. According to the medical records, Dr. Tiger opined in both 2000 and 2003 that petitioner suffered from cervical injuries. While examining the cervical spine, he testified that he "found loss of the usual lordotic curvature and tenderness," a finding corroborated by his report dated April 4, 2003. Dr. Tiger further testified that the loss of lordotic curvature was related to the 1997 accident, not the lifting accident of 1999, a conclusion he came to based upon petitioner's statement to him that she did not injure her neck in the second incident. The cervical injuries are also corroborated by the reports of Dr. Rothman and Dr. Feuer.

There also exists substantial evidence in the record to support the conclusion that petitioner's cervical disability caused a decrease in her ability to work. As petitioner testified, and as noted in the decision, her job was physical in nature, requiring her to lift and turn patients. Further, the reports furnished by Dr. Rothman support a finding that her ability to work had decreased as a result of this injury.

The trier of fact further found the testimony of Dr. Tiger to be more credible than that of Dr. Thrower, a finding that deserves our deference. Because of this and the existence of substantial credible objective evidence supporting a finding that petitioner suffered from cervical injuries as a result of the accident, we affirm these conclusions.

Additionally, we reject the assertion that there was insufficient credible evidence in the record to support the conclusion that petitioner sustained a disability from carpal tunnel syndrome as a result of the accident.

To the contrary, such evidence includes the following: In response to petitioner's complaints of numbness in her upper extremities and a propensity for dropping things since the accident, Dr. Feuer examined her, revealing a positive right Tinel's sign in petitioner's hand. Dr. Tiger's examination revealed positive and reverse Phalen's signs and positive Tinel's signs as well. Accordingly, substantial evidence existed to support a finding of disability caused by carpal tunnel.

The same is true with regard to the conclusion that petitioner's carpal tunnel disability caused a decrease in her ability to work, particularly considering that her job requires her to lift and turn patients. She is also unable to participate in her usual activities with show dogs, of which she had twenty.

Finally, we do not accept the contention that Dr. Tiger's testimony constituted net opinion. Under N.J.R.E. 703, "[t]he facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing." Moreover, "[i]f of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence." Ibid. An expert's bare conclusions, however, "unsupported by factual evidence or other data, are inadmissible as a mere "net opinion." Biunno, Current N.J. Rules of Evidence, comment 3 on N.J.R.E. 703 (2004). We stated in Rosenberg v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002) (quoting Jimenez v. GNOC, Corp., 286 N.J. Super. 533, 540 (App. Div.), certif. denied, 145 N.J. 374 (1996)), that "[t]he rule requires an expert 'to give the why and wherefore' of his or her opinion, rather than a mere conclusion."

Here, not only did respondent fail to object to Dr. Tiger's testimony during trial, but Dr. Tiger's conclusions and opinions were based on his own examination of petitioner, and Dr. Tiger testified with complete consideration of the intervening accident that occurred in 1999.

Sufficient credible evidence existed in the record upon which the judge relied in rendering judgment in favor of petitioner, except as we have noted with regard to the psychiatric claim, we affirm the Judge of Compensation's decision with that single exception.

In her cross-appeal, petitioner argues that there existed substantial objective medical evidence supporting a finding of partial total disability to her lumbar spine caused by the accident, and that she should be compensated for that disability. She failed to meet her burden in proving disability of her lumbar spine, however, because she did not prove that the injury caused to her lumbar spine was a result of the 1997 accident, rather than the 1999 accident. Dr. Tiger testified that petitioner suffered from a lower back problem since the accident and the record is devoid of any evidence that the lower back problem was the result of the 1997 accident. The refusal to grant petitioner disability compensation for this alleged injury was appropriate and is entitled to our deference.

 
As to the appeal and the cross-appeal, we affirm in all respects, with the limited exception that on respondent's appeal, we reverse with regard to the award of psychiatrist's disability.

(continued)

(continued)

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A-4150-03T3

October 26, 2005