MICHELLE HICKS v. ACCU STAFFING SERVICES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1476-04T31476-04T3

MICHELLE HICKS,

Petitioner-Appellant,

v.

ACCU STAFFING SERVICES,

Respondent-Respondent.

________________________________________________________________

 

Argued December 7, 2005 - Decided February 6, 2006

Before Judges Weissbard and Winkelstein.

On appeal from the Department of Labor,

Division of Workers' Compensation, Claim

Petition No. 2001-33316.

Christian A. Pemberton argued the cause for appellant.

Dominick Fiorello argued the cause for respondent (Styliades, Jackson and DiMeo, attorneys; Beverly A. McCurry, on the brief).

PER CURIAM

Petitioner Michelle Hicks appeals from a judgment of the Division of Workers' Compensation finding that she sustained a compensable injury to her left foot arising out of an accident while in the employ of respondent Accu Staffing Services. Specifically, petitioner appeals the Judge of Compensation's rejection of her claims for additional disability involving her left leg, right leg, and lumbar spine, as well as related neuropsychiatric trauma. Under our limited standard of review, we are compelled to affirm.

Petitioner was injured at a jobsite in Bridgeport on March 9, 2001 when her left foot was caught between metal shelving and the power jack she was operating. She was taken directly to Crozier Hospital in Chester, Pennsylvania. After examination, her foot was wrapped in a bandage and she was sent home on crutches. Although a fracture was suspected, x-rays were not taken because the foot was badly swollen. However, it was subsequently confirmed that the left foot had been fractured. Thereafter, petitioner saw a number of doctors for treatment, beginning with Dr. Steig, then Drs. Gordon, Holgado, Grant, and Boyajian. At the time she consulted Dr. Gordon, petitioner claimed that pain was running from her left foot up through her left leg and into the buttocks. Dr. Gordon prescribed physical therapy but then discontinued it and referred petitioner to a foot specialist. Dr. Holgado, a family practitioner, treated her between March and June 2001 for complaints of nightmares, sleeplessness, depression and panic attacks, all of which, petitioner claimed, had begun after the accident and rendered her nearly incapable of leaving home. Dr. Holgado prescribed Zoloft for depression, Xanax for the panic attacks, and Ambien for the sleep disorder.

Dr. Grant, a podiatric surgeon, operated on petitioner's left foot in July 2001 to remove a piece of the navicular bone. Following that surgery, petitioner claimed that her condition worsened dramatically, with severe pain radiating from her foot to her buttocks and into her lower back. Dr. Grant referred petitioner to Dr. Boyajian, who is board certified in pain management and anesthesiology. In his initial evaluation on October 4, 2001, Dr. Boyajian recorded that petitioner suffered from "chronic distal left foot and ankle pain with clear dystesthetic/neuropathic features, possibly representing the hyperemic/acute phase of complex regional pain syndrome." In the following five visits, Dr. Boyajian's impression was that petitioner suffered from complex regional pain syndrome, also known as reflex sympathetic dystrophy (RSD). In his final report, on February 22, 2002, Dr. Boyajian noted that the MRI film of petitioner's lumbar spine showed a bulged annulus at L5-S1.

RSD, which became a focal point of the case, is a sympathetically mediated pain disorder that often starts with some minor trauma which results in irritation to the sympathetic nerve. The irritation spreads throughout the neurons in the spinal column and then into the neurons that control certain motor functions, causing an impact on multiple systems including skin, fascia, muscle joints, and synovium. The attendant symptoms include swelling, a burning feeling, redness from coldness related to physical spasms in the area, hyperhidrosis, hair loss, change in skin texture, changes in nails and muscle weakness.

RSD is a complicated condition because it spreads throughout the nerves and tissue in the affected areas by way of information transmitting neurons. Many people do not go into remission and the condition in fact worsens, although why this is the case remains undetermined. Patients who continue to regress often display parallel negative mental effects because the RSD spreads to the brain. As a result, the patients cannot think correctly because they are constantly in pain and depressed.

At trial, petitioner presented testimony from two forensic consultants, Dr. Edward Tobe, a psychiatrist, and Dr. Ralph Cataldo, board certified in pain management and anesthesiology. Tobe, who examined petitioner twice, on April 2, 2002 and on September 9, 2003 just before the trial began, and reviewed medical records of the treating physicians, concluded that petitioner had RSD and a variety of psychiatric disorders, including but not limited to, a pain disorder associated with psychological features in her orthopedic/neurological disease, sleep disorder, a major depressive order, and a generalized anxiety disorder. He testified that petitioner was totally disabled by her psychiatric condition alone. Tobe concluded that petitioner's condition resulted in 100% psychiatric disability and a 50% neurological impairment. After noting that there is considerable documentation connecting RSD to crush injuries, Tobe determined that there was a direct relationship between petitioner's work injury and her current disabilities.

Dr. Cataldo, who also examined petitioner twice, on January 18, 2002 and September 8, 2003, and reviewed records, concluded that she had RSD of the left foot and leg, compensational lumbar sprain and strain, and RSD in the right leg. He estimated that petitioner had a 90% disability of the left leg, 95% disability of the left foot, 50% disability of the right leg and 25% permanent partial total disability for the lumbar sprain and strain. He concluded that a causal relationship existed between the accident in question and the disabilities which he diagnosed, a conclusion bolstered by the fact that petitioner had no such problems prior to the accident on March 9, 2001.

Dr. Boyajian appeared at trial reluctantly, under subpoena. He testified that petitioner demonstrated a chronic pain condition that was characterized by neuropathic pain, but he remained unable to state affirmatively that she had RSD. However, he asserted that he still had "a suspicion that [petitioner] did [have RSD] and not all patients that have RSD respond to the sympathetic nerve block." He further confirmed that petitioner had a bulging disc at L5-S1. He believed that petitioner had a permanent injury and determined that petitioner's prognosis was "very poor" and would remain so whether or not she received further treatment.

Respondent produced two medical witnesses. Dr. Maiatico, a board certified rehabilitation specialist, examined petitioner in September 2002 and reviewed medical records. Dr. Maiatico did not believe petitioner had RSD, attributing the fact that her left toes were colder than her right toes to an abnormality in the peripheral vascular system. He concluded that petitioner's disability was limited to her left foot and evaluated it at 7.5% of the left foot. He found no reason why petitioner could not return to work.

Dr. Holl, a psychiatrist, evaluated petitioner on October 25, 2002 and reviewed her medical records. He determined that petitioner suffered from some sort of severe emotional disorder, which he believed might be schizophrenia or paranoia. He opined that such conditions are not known to be caused by either emotional or physical trauma occurring later in life. Dr. Holl did not believe the work injury worsened petitioner's psychiatric condition.

Petitioner's testimony was that she had burning pain throughout her right leg all the way up into her buttocks. Her left leg also felt like it was "on fire all the time," and her knee gave out whenever she attempted to place weight on it. Her leg was extremely sensitive to the touch and to temperature changes. Petitioner expressed concern that she might end up in a wheelchair because her right leg was beginning to bother her as well.

Petitioner further testified that she wore a special shoe for her disabled foot, one that was less constricting, and that cold worsened the pain. She could not go up and down stairs without exhaustion, and she gained thirty-five to forty pounds after the accident. She testified that she was no longer able to live independently in her own home and had been forced to move in with her children to her mother's one floor apartment in Pennsylvania because there were no stairs to navigate in that building. Petitioner cannot perform household chores or drive a car due to pain in her back and legs. The pain had not improved up to the time of her testimony on October 15, 2003.

On August 25, 2004, the Judge of Compensation rendered her decision. In pertinent part, she found as follows:

With regard to Dr. Cataldo and Dr. Maiatico they're experts in the area of orthopedic evaluations for permanency. Dr. Steven Boyjian was qualified as a medical expert, and again, he was the treating physician. I do understand the dispute that both counsels have rights with regard to bringing him into court, also, with his diagnosis, his notes and records that he has versus how he testified and also that Dr. Tobe and Dr. Holl were qualified as experts in the evaluation or -- in the area of psychological or psychiatric disability evaluations for permanency.

All of the physicians, all of the medical records seem to unanimously conclude that the petitioner did suffer a left foot fracture as a result of a crush injury at work on March 9th of the year 2001. Petitioner's complaints during the time of testimony and also from the time that she filed a claim petition along with the treating medical records are consistent with regard to left foot crush and fracture of the left foot.

The radiology records at the time of the incident, in which the foot is being examined, indicate it was an ununited fracture, and the petitioner did undergo surgical intervention as a result of the crush. Petitioner complained of burning in the left foot. It was noted there was discoloration and pain with regard to at least one of the doctor's evaluations. Petitioner indicated while in court she was unable to ambulate using that foot because of pressure and all times she was relying on a four-prong cane. We do have the testimony with regard to wheelchair for assistance with regard to walking. She also indicated that any pressure of the foot bothered her, the foot was sensitive to touch, including such things as being able to even show her foot to the Court.

As far as the petitioner with regard to credibility, [petitioner's attorney] has thoroughly reviewed all points of the petitioner's testimony, doctor's testimony, with regard to the ambulation issue, there are other issues with regard to the petitioner's testimony that still leaves the Court with credibility issues, credibility concerns. The lumbar spine was set forth by the petitioner as an injury as a result of this incident. It was not until later testimony on cross-examination that the petitioner's prior history was revealed that there had been prior lumbar injury.

In addition, the lumbar spine, in the initial record, there were no complaints indicated on March 9, 2001. However, early on in petitioner's treating records, specifically on or about April 27, 2001, which is one month after the incident, petitioner begins complaints about -- petitioner has complaints about the lumbar spine. The petitioner seeks treatment with Dr. Boyjian and Dr. Boyjian was unaware with regard to complaints that she had with regard to regional pain syndrome, also known as RSD. Dr. Boyjian in his notes set forth that the petitioner initially [was] being tested for -- his note indicates RSD --but Dr. Boyjian came here and testified. I find Dr. Boyjian's testimony to be the most persuasive both in his credibility and in response to the questions regarding his notes as to why complex regional pain syndrome is written as if it were a diagnosis that the petitioner or anyone is being treated for a fracture. The diagnosis treated multiple types for a fracture, yet in the end it's found there wasn't a fracture, just because the doctor's notes indicated that, that's what the treatment was based on, evaluations didn't determine there was a fracture.

Dr. Boyjian made it clear he had not concluded that the petitioner had RSD. The only doctor that sets that forth is Dr. Cataldo with certainty to this Court that it was his opinion that the petitioner suffered from RSD issues.

[PETITIONER'S ATTORNEY]: Your Honor, respectfully, I believe it's very clear that Dr. Tobe testified over and over again that that was his conclusion.

THE COURT: Orthopedically.

[PETITIONER'S ATTORNEY]: That's correct.

THE COURT: Dr. Cataldo's practice as he testified to, however Dr. Cataldo's function in this case, and the feeling that this Court has with him, this is an evaluator, his examination was not for treatment purposes, it was on two occasions for evaluation purposes. Although compared to Dr. Boyjian, who is technically the authorized physician. Dr. Boyjian was there for treating purposes, authorized or not, Dr. Boyjian was a treater earlier on than Dr. Cataldo.

Dr. Cataldo's examination did not reveal atrophy of the lower extremities of the petitioner, nor did he determine such RSD symptoms, that may be considered indications of RSD. Although as petitioner's counsel noted, there are there is no true test or conclusive test, Dr. Cataldo had indicated that certain changes which were not noted. Petitioner's counsel was right to point out that Dr. Tobe also indicated RSD. This Court does not find his conclusion being RSD conclusive. The petitioner was here to testify and much of the Court's opinion is based upon not only doctor's testimony, but the petitioner's testimony, her complaints and the assessment of the Court's credibility of the petitioner.

Dr. Tobe and Dr. Holl did testify the petitioner had psychological or psychiatric overlay, be it anxiety, be it depression, but not all doctors concluded it was a result of the injury of March 9th, 2001. With regard to the testimony of Dr. Cataldo, I did not find his testimony to be credible with regard to this matter. He eliminated by his testimony certain permanent orthopedic and psychiatric disabilities. He also indicates that there may be further testing and he also concludes that the petitioner disability was totally as a result of this incident.

Dr. Tobe saw the petitioner I believe on two occasions, while the Court appreciates his testimony, it's not conclusive to the Court that it was related to the March 9th, 2001 incident. I did find that the petitioner did suffer from a crush injury, did have a fracture to her foot, and did undergo the surgical procedure. The petitioner is entitled to an award of 60 percent of the statutory left foot, there was objective medical findings as to that injury, as to the petitioner's functional limitations.

On appeal petitioner argues that the judge failed to properly consider or review evidence that supported a finding of right leg disability due to overcompensation from a left leg disability and the effects of RSD, a lumbar spine disability, and a psychiatric disability. She also argues that there were "inappropriate ex-parte communications between the judge and respondent's attorney that may have had an impact on the decision rendered by the judge," and that petitioner was denied a fair trial. We reject these final two points as without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E). Turning to petitioner's attack on the sufficiency of the evidence, we conclude that no basis has been demonstrated to justify overturning the judge's ruling.

Our review is limited "to a determination of whether the findings of the judge of compensation could reasonably have been reached on sufficient credible evidence present in the whole record, after giving due weight to his expertise in the field and his opportunity of hearing and seeing witnesses." De Angelo v. Alsan Masons, Inc., 122 N.J. Super. 88, 89-90 (App. Div.) (citing Jackson v. Concord Co., 54 N.J. 113, 117-18 (1969)), aff'd o.b., 62 N.J. 581 (1973). Therefore, if the judge's conclusion is supported by substantial credible evidence, "a court may not substitute its own judgment for the [judge's] even though the court might have reached a different result." Raso v. Ross Steel Erectors, Inc., 319 N.J. Super. 373, 380 (App. Div.), certif. denied, 161 N.J. 148 (1999). We will not disturb "the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974).

 
While petitioner's medical evidence was quite persuasive, as is the comprehensive review of that evidence on appeal, our careful examination of the record does not demonstrate that the judge went outside of her boundaries in resolving the clear conflicts in the medical evidence in favor of respondent. It is simply not our position in the judicial scheme to reevaluate this evidence and reach an opposite conclusion, one that we might have reached if we were sitting as triers of the facts. Indeed, that conclusion is underscored by the fact that a substantial amount of the medical opinion evidence was based on petitioner's subjective complaints to the doctors, and the judge did not accord great credibility to petitioner. In light of our limited standard of review, we find no rational basis on which to overturn the judge's findings which rejected the vast majority of petitioner's claims.

Affirmed.

(continued)

(continued)

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A-1476-04T3

February 6, 2006