ALICE LUSTER-TARRANT v. HELENE FULD MEDICAL CENTER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6288-04T56288-04T5

ALICE LUSTER-TARRANT,

Petitioner-Respondent,

v.

HELENE FULD MEDICAL CENTER,

Respondent-Appellant.

_______________________________________

 

Argued May 15, 2006 - Decided June 16, 2006

Before Judges Yannotti and Miniman.

On appeal from the Division of Workers' Compensation, C.P. No. 1997-031046.

Francis T. Giuliano argued the cause for appellant.

John R. Lanza argued the cause for respondent (Lanza & Lanza, attorneys; John E. Lanza, on the brief).

PER CURIAM

On or about October 26, 2000, petitioner Alice Luster-Tarrant filed a application with the Division of Workers' Compensation for review or modification of an award entered on October 19, 1998. Respondent Helene Fuld Medical Center appeals from the judgment entered in favor of petitioner on June 17, 2005. We affirm.

We briefly summarize the evidence presented at the trial of this matter. Petitioner is a licensed pediatric nurse and, in the relevant period, was employed by respondent. On May 19, 1992, petitioner sustained an injury to her lower back while attempting to restrain a patient. Ariel Abud, M.D. (Abud) diagnosed a herniated disc at the L4-L5 level of plaintiff's spine and on June 15, 1992, Abud performed a laminectomy and discoidectomy to address that condition.

On July 17, 1992, an MRI of petitioner's lumbar spine was performed and in his report concerning the test, Stephen Joffe, M.D. (Joffe) stated that the MRI showed a "mild obsceration of the epidural fat anterior to the thecal sac," which could represent fibrosis or a "minimal residual disc protrusion." Joffe reported that the MRI showed no large disc herniations but there was some epidural soft tissue obscuring the interface between the L4-L5 disc space and the thecal sac, which he said probably was post-operative granulation. Joffe noted that a minimal residual protrusion of the disc might be present but because of a lack of contrast in the MRI, he could not distinguish between these possibilities.

Petitioner filed a workers' compensation claim in respect of the 1992 injury. The matter was settled and an order approving settlement was entered on December 16, 1994. The order sets forth a finding that petitioner had a 30% permanent partial disability, orthopedic in nature. The order provided a credit to respondent of 12-1/2% for a pre-existing low back condition which was attributable to a prior automobile accident that was not work-related.

Petitioner suffered another work-related injury on December 22, 1995, while restraining a child undergoing a spinal tap procedure and petitioner filed another claim respecting that injury. The parties resolved the claim and an order for judgment was entered on October 19, 1998. The order stated in pertinent part:

37-1/2% of permanent partial total disability, orthopaedic in nature for status post-traumatic injury to lumbosacral spine in the postoperative state for discectomy at L4-5 now with a re-injury showing posterior disc herniation at L4-5 with indentation of the dura leaving residuals of myositis, fibromyositis and neurosensory changes, with credit for 30% for a pre-existing low back condition.

In the summer of 2000, petitioner began to experience pain and other symptoms in her low back. Petitioner thereafter filed an application pursuant to N.J.S.A. 34:15-27 for modification of the October 19, 1998 award. The statute permits an award to be modified within two years from the date when the claimant last received payment "on the ground that the incapacity of the injured employee has subsequently increased." Ibid. Hearings on the petition were held on July 26, 2004, September 27, 2004, December 23, 2004, and January 31, 2005.

Petitioner testified that in 2000, after she began to experience pain in the low back, her family physician prescribed medication, physical therapy and rest. Petitioner stated, however, that the pain "continued to intensify." Petitioner's family doctor referred her to Francis J. Pizzi, M.D. (Pizzi), who performed surgery to petitoner's lumbar spine on May 3, 2001, specifically removal of the L4-L5 disc on the right and lysis of epidural adhesions.

In July 2001, petitioner started to experience pain down her legs. She returned to see Pizzi, who ordered a myelogram. The test was performed on or about August 26. Petitioner stated that, during the procedure, she began to have increased pressure and pain in her cervical spine. Petitioner asserted that she had never had any illness in the cervical spine and had never complained to any physician nor sought treatment for any problem in that part of her body.

After the myelogram, petitioner began to have intense pain down both arms and in her neck. Petitioner sought emergency care at a hospital and she was referred to Pizzi. An MRI was performed of the cervical region of the spine. Petitioner underwent surgery, specifically fusions of the C5, C6 and C7 vertebrae with a titanium plate and screws. Petitioner testified that she continues treating with Pizzi and is on medication for the pain in her neck, back, arm and shoulder. Petitioner also takes antidepressants and medication to help her sleep.

Petitioner presented testimony from Edwin A. Turner, Jr., M.D. (Turner), who was qualified to testify as an expert in occupational medicine and orthopedics. Turner prepared reports concerning petitioner on March 17, 1998, December 14, 2001 and March 19, 2003. In the first report, Turner opined that petitioner initially suffered an injury to the lumbosacral spine which had resulted in surgery at the L4-L5 level of the spine. Turner found that petitioner sustained a "re-injury" in December 1995, which resulted in a posterior disc herniation at L4-L5 "with indentation of the dura leaving residuals of myositis, fibromyositis and neurosensory changes."

Turner testified that petitioner's present condition was related to the disability that was described in the October 19, 1998 order approving settlement. Turner said that when he evaluated petitioner in November 2001, he found a worsening of her low back condition. Turner said:

Well, from the disability, the diagnosis the first time was status post traumatic injury to the lumbosacral spine in the post-operative state for discectomy at L4-5. Now with re-injury showing posterior disc herniation at L4-5 with indentation of the dura, leaving residuals of myositis, fibromyositis and neurosensory changes.

Following that report [petitioner] had additional surgery and the diagnosis was:

Status post-traumatic injury to the lumbosacral spine in the post-operative state for discectomy L4-5 requiring reoperation for epidural scarring recurring disc with epidural fibrosis, lateral facet hypertrophy with lumbar stenosis and requiring removal of the additional L4-5 discs, laminectomy, lysis of the epidural adhesions with an operative scar now four inches in length. Myositis, fibromyositis but significant neurosensory changes. Altered gait. Range of motion, power and function.

Turner further testified that he evaluated petitioner again in February 2003. He stated that petitioner had undergone a myelogram and as a result began to experience severe neck pain. Pizzi found that the ongoing neck problems required surgery, which involved cervical discectomies at C5-C6 and C6-C7, leaving residuals of myositis, fibromyositis and neurosensory change. These disabilities were in addition to petitioner's lumbar problems.

Turner was asked whether the condition that he diagnosed and recorded in his report dated March 19, 2003 "related to the condition and disability described in the October 19, 1998 order approving settlement." Turner replied:

I am not aware of what is in an order approving settlement because I am not [privy] to those documents. However, I believe that each of these incidents from the very first, from her initial injury which required surgery the first time, the complication that followed that; namely, the back and then the complication namely the myelogram leading to the neck problems are all totally related to the initial event and unfortunate complications of that event.

On cross-examination, Turner was asked whether the "second operation" had been "directly caused by problems arising out of the first operation." The doctor's reply was, "Yes and that's what the doctor so stated. It was due to the epidural scarring. And epidural scarring would not have occurred without the previous operation." On re-direct, Turner stated that the operation he had been referring to was the surgery referred to in his 1998 report, which was the surgery performed in June 1992.

Plaintiff also presented testimony from Bruce Johnson, M.D. (Johnson), who was qualified to testify in the field of neurology and psychiatry. Johnson prepared reports dated March 20, 1998, December 17, 2001 and March 20, 2003. In the first report, Johnson noted that petitioner had sustained an injury to her lower back in 1992, which resulted in surgery. Johnson stated that petitioner injured her lower back in December 1995, when she was restraining a patient. Petitioner complained of low back pain, stiffness and soreness, as well as pain and numbness radiating down both legs. Johnson identified the work-related injuries of December 22, 1995 as the cause of petitioner's disability.

Johnson testified that since he examined petitioner in 1998, her disability had increased. Johnson explained that in 2001 petitioner had surgery for a "recurrent disc" and then experienced pain in both of her legs. In addition, petitioner "continued to have depression and was taking antidepressant medications." Johnson stated that he evaluated petitioner in 2001 and concluded that her neurological impairments had increased. He performed a psychiatric evaluation of petitioner. Johnson noted that the antidepressant medications were having some effect but petitioner was still depressed. Johnson found a bilateral L5 radiculopathy and depression.

Johnson additionally stated that he again evaluated petitioner in 2003. This evaluation focused primarily upon petitioner's neck symptoms. Prior to the evaluation, petitioner had surgery on her neck and she had residual nerve dysfunction following the surgery. Johnson said that the treating doctor had come to the conclusion that the myelogram was the cause of petitioner's cervical problems.

Johnson was asked whether petitioner's cervical injury was related to the low back injury which resulted in the order approving settlement on October 19, 1998. He replied:

Well, with reasonable medical certainty I feel that because of the back injuries and the treatment of the back injuries, it caused claimant to have neck symptoms requiring neck surgery for the reasons that the treating doctor stated, namely, hyperextension of the neck plus a radiculitis or infection in the neck area due to the dye that was injected.

Johnson also stated that petitioner was still suffering from depression.

Johnson was asked whether he had an opinion as to whether the disabilities he diagnosed were related to the "condition and disability" set forth in the October 19, 1998 order of settlement. Johnson replied:

With reasonable medical certainty I feel that the neurological and psychiatric diagnosis that I arrived at were causally related to the December 22nd incident where she was restraining a patient[.] [S]he felt pain in her lower back necessitating two surgeries.

Johnson added that petitioner's condition had worsened since the October 19, 1998 order had been entered. He noted that petitioner had required surgery in the back and in the neck and she required continuing antidepressant medication as well as significant pain medication. The conditions, he said, were related to the incident of December 22, 1995.

On cross-examination, Johnson was asked whether there was a tendency "for the disc levels adjacent to where the surgery was [performed] to deteriorate causing further back problems?" Johnson replied:

It's possible. It don't know if that's what happened here. I think that during a surgery, you know, they don't take out the whole disc. They just take out a part of the disc. There's a tendency for some of the remaining disc to extrude itself again is what I think happened here, same disc came out again because it wasn't taken. If you take out the whole thing then you destabilize the spine.

Johnson also was asked whether the second surgery to the back was related to the first surgery to the back. In response, he said:

Yes, I think that the first surgery was not completely successful and further changes in the back including extensive scarring or [what] they call epidural fibrosis which is another condition which is very painful, and that necessitated further surgery so I think it's a continuum, yes.

At the trial, respondent presented testimony from Frederick J. Gordon, M.D. (Gordon), who testified as an expert in orthopedic surgery. Gordon prepared reports concerning petitioner dated March 26, 1998, November 22, 2001 and August 4, 2003. Gordon concluded in his March 26, 1998 report that the December 22, 1995 incident resulted in "symptoms which would appear to be an aggravation of a preexisting condition that was also reportedly work related." In his November 22, 2001 report, Gordon stated that there was a causal relationship between petitioner's herniated disc and her back problems. He wrote that there had been a progression of symptoms related to the injury that petitioner sustained on May 19, 1992 at work.

Gordon testified that after he examined petitioner in 1998, she had surgery to her back and to her neck. Gordon asserted that the 1995 incident was a "back sprain or strain with perhaps maybe a little bit of radiculitis." He believed that it occurred "most probably" because of the underlying disc problem for which petitioner had surgery in 1992. The relationship, he said, "goes back to the 1992, the original disc herniation." He explained:

Well, once you have a herniated disc and especially an operation on your back, you always have a tendency or a weakness, and it is much more probable that you are going to injure yourself again than somebody who has never had a structural problem. So I felt that [petitioner] did have a disc problem in 1992. I think she was more vulnerable to having more problems from her back, especially if she got herself into a position that was perhaps uncomfortable.

On cross-examination, Gordon admitted that the report of the MRI taken of petitioner's lumbar spine after the June 15, 1992 surgery stated that no large disc herniations were seen. In addition, Gordon admitted that in his March 26, 1998 report, he attributed some disability to the December 22, 1995 incident. He conceded that this was a "separate injury."

Gordon also agreed that the report of an MRI of petitioner's lumbar spine taken on January 24, 1996 stated that petitioner had a mild posterior disc herniation at the L4-L5 level, with an indentation of the dura. Gordon asserted that he had not seen the report of the 1996 MRI. However, it appears that Gordon was mistaken in his testimony because he did refer to the 1996 MRI in his November 22, 2001 report.

Gordon added that petitioner's cervical injury was due to the myelogram, which was directly related to the 1992 incident and had nothing to do with the 1995 incident. Gordon asserted:

If [petitioner] had never had the 1992 incident she never would have had the cervical myelogram, because she never would have had that CAT scan/myelogram [which was] done prior . . . to the onset of her cervical symptoms.

Gordon reiterated his view that petitioner did not suffer a re-injury or herniated disc to the L4-L5 area as a result of the 1995 accident. He stated, "I can find no evidence of that."

On re-direct, Gordon stated that in the May 2001 surgery, the doctor removed scar tissue. He said that when surgery is performed, scar tissue develops. Gordon asserted that "one of the main problems with back surgery is . . . the development of scar tissue around nerves, nerve roots and that is one of the reasons a lot of people get recurrences." According to Gordon, the scar tissue removed in 2001 was from the 1992 surgery. Gordon stated that, if petitioner had not had the 1992 surgery, she would not have had the subsequent surgery, the myelogram or the cervical problem.

Respondent also submitted two reports prepared by Allen S. Josephs, M.D. (Josephs), which were based upon his neurological and psychiatric evaluations of petitioner. In his January 18, 2002 report, Josephs stated that it was "really unclear" whether petitioner sustained an "actual injury" to her back in December 1995. Josephs said that he could find no evidence of an additional permanent neurologic or neuropsychiatric disability. In his August 26, 2003 report, Josephs stated that there was evidence of multilevel cervical spondylosis with ridging, particularly at the C5-C6 and C6-C7 levels of the spine. There may be "some associated disc disease" but it appeared to Josephs "to be primarily bony in nature." Josephs also found that petitioner was suffering from "some degree of adjustment disorder with depressed mood" but he said it was largely related to marital difficulties.

The judge of compensation issued a written opinion dated June 17, 2005. The judge noted that that the October 19, 1998 judgment resolving petitioner's claim stated that the 1995 accident had resulted in a re-herniation of the disc at the L4-L5 level of the spine. The judge stated that the January 24, 1996 MRI confirmed the re-injury. The condition in petitioner's low back had deteriorated in the two-year period after entry of the October 19, 1998 judgment. The judge found "that petitioner's present low back disability is the direct result of a worsening of the re-herniated disc she suffered after the 1995 accident. [Petitioner's] cervical disability derives from the treatment for the low back." Judgment was entered in favor of petitioner on June 17, 2005 and this appeal followed.

Respondent argues that the judge's findings are not supported by substantial credible evidence. Respondent asserts the judge erred in rejecting Gordon's opinion that petitioner's present disability is related to the 1992 injury rather than the 1995 accident. Respondent contends that, in this case, the judge did not have the option of accepting the testimony of petitioner's experts because those witnesses purportedly gave testimony agreeing with Gordon's opinion.

Where, as here, an appeal is focused entirely upon the findings of fact made by a judge of compensation, the scope of our review is limited. The judge's findings are binding on appeal if they are based on sufficient credible evidence in the record, considering the evidence in its entirety, "with due regard to the opportunity of the one who heard the witnesses to judge of their credibility." Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)(citing State v. Johnson, 42 N.J. 146, 162 (1964)). Having reviewed the record as a whole, we are convinced that there is sufficient credible evidence in the record to support the judge's critical finding that petitioner's present disability is the "direct result" of the injury that petitioner sustained on December 22, 1995.

We reject respondent's assertion that the evidence presented at trial could only have led the judge to conclude that petitioner's present disability was related to the workplace injury that petitioner sustained on May 19, 1992. As Gordon candidly conceded in his testimony, the MRI taken in July 1992 after petitioner's first surgery did not show any large disc herniation. An MRI study taken in January 1996, after petitioner's December 1995 injury, showed a mild posterior disc herniation at the L4-L5 level, with indentation of the dura. The MRI reports certainly support an inference that petitioner sustained a re-injury to her low back in December 1995 and her condition after 1998 was a worsening of the disability attributable to that event, as does the sudden onset of symptoms after the December 1998 injury.

The settlement of petitioner's claim arising out of the December 1995 injury also reflects an agreement by the parties and the finding by the judge that petitioner sustained in the December 1995 incident "a re-injury showing posterior disc herniation at L4-5 with indentation of the dura leaving residuals of myositis, fibromyositis and neurosensory changes." Moreover, Turner stated in his 1998 report that petitioner had sustained a re-injury to the area of her spine where surgery had been performed in 1992. Johnson stated in his reports and in his testimony that petitioner's present disability was due to the re-injury that occurred in December 1995.

We recognize that in their testimony Turner and Johnson both noted a connection between petitioner's present condition and the 1992 injury and surgery. But these comments cannot be viewed in isolation, and must be considered along with the rest of their testimony and the reports that were admitted into evidence. In our view, the record supports the judge's determination that, whereas petitioner injured her lower back in 1992 and had surgery to address that condition, she sustained a re-injury to the lumbar spine in 1995 and petitioner's resulting disability had "subsequently increased." N.J.S.A. 34:15-27.

Affirmed.

 

(continued)

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A-6288-04T5

June 16, 2006