L.M. v. CHURCH & DWIGHT CO., INC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2617-06T22617-06T2

L.M.,

Petitioner-Respondent,

v.

CHURCH & DWIGHT CO., INC.,

Respondent-Appellant.

____________________________________

 

Argued December 17, 2007 - Decided

Before Judges Lintner and Sabatino.

On appeal from the New Jersey Department of Labor, Division of Workers' Compensation.

Nancy S. Freeman argued the cause for appellant (Freeman, Barton, Huber & Sacks, attorneys; Ms. Freeman and William P. Freeman, on the briefs).

Kevin Kovacs argued the cause for respondent.

PER CURIAM

Following a six-day trial, the Division of Workers' Compensation ("the Division") issued a final judgment on December 5, 2006 determining that petitioner, L.M., had sustained compensable total disabling injuries to her shoulders and hands of a permanent nature while employed at Church & Dwight Co., Inc. ("Church & Dwight"). L.M.'s injuries, which resulted in six separate surgeries, were found to have been causally related to her extensive and repetitive work on a computer at Church & Dwight over a seven-year period.

Based on the compensation judge's findings, the Division awarded L.M. 450 weeks of disability benefits, payable at $568 per week, subject to an offset for Social Security benefits. Church & Dwight now appeals the judgment on various grounds. We affirm.

I.

These are the pertinent facts adduced before the compensation judge. L.M. began working for Church & Dwight in December 1993 at the age of forty-six. She continued to work for the company full-time until March 2000. She then briefly worked on a part-time basis through May 2000, when her persisting injuries forced her to stop.

L.M. testified that she had not experienced any pain or problems in either of her shoulders or wrists, nor did she suffer any accident or injury to those areas, prior to the start of her employment with Church & Dwight in 1993. She did not suffer from any psychological or psychiatric problems before working for the company.

At the time she left Church & Dwight, L.M. had been an "assistant to the vice-president of logistics," a title which she had held for one-and-a-half to two years. L.M.'s duties in that position consisted of "build[ing] [E]xcel spread sheets and graphs," requiring her to work on her computer an estimated "99 percent" of the fifty to sixty hours that she worked each week. Immediately before serving in that assistant's job, L.M. worked for two-and-a-half years in the inventory control unit of a Church & Dwight subdivision. While in inventory control, L.M. worked fifty to fifty-five hours per week, spending "between 95 and 100 percent" of her time using a desktop computer. The record reflects that Church & Dwight did not supply L.M. with an ergonomic computer keyboard.

In the early part of 2000, L.M., who is left-handed, experienced stiffness and tightness in both of her shoulders. She initially attributed those sensations to "getting old" and to the "number of hours that [she] had been working." L.M. also felt numbness in both of her hands.

Soon thereafter, while driving to work one day in March 2000, L.M. had difficulty lifting her arms and hands. That afternoon, she informed her supervisor, Ken Colbert, that she was having trouble lifting her arms. She consequently sought treatment at the Princeton Orthopedic Group ("Princeton Orthopedic").

L.M. was first treated at Princeton Orthopedic on March 14, 2000, when she complained of "severe right shoulder and elbow pain[,] . . . which she relate[d] to use of a computer mouse." On that date, Dr. Harvey Smires noted that L.M.'s "right shoulder demonstrates a . . . mildly positive impingement sign and . . . [h]er right elbow demonstrates mild lateral epicondyle tenderness." On the advice of another physician with the medical group, Dr. Michael Palmer, L.M. had massage therapy for both shoulders, and also received five cortisone injections.

L.M. returned to Princeton Orthopedic on April 4, 2000, at which time Dr. Smires observed that she had "continued impingement." He administered another injection to L.M.'s right shoulder. The injection did not, however, eliminate L.M.'s symptoms. A subsequent MRI study of L.M.'s right shoulder, as interpreted by Dr. Smires, showed "supraspinatus tendonitis without significant impingement," although without a cuff tear. During the course of this treatment, Dr. Smires noted that L.M. had "describe[d] her computer work as exacerbating" her right shoulder pain. He also determined that L.M.'s right shoulder pain "is related to her work with a computer."

On June 26, 2000, Dr. Palmer observed that L.M. had "continued cervical myofascial pain with trigger points and median nerve entrapment causing her to have radiation of pain into her forearm and into her hand[, which] is certainly exacerbated by typing and repetitive movements of her fingers." When L.M. saw Dr. Palmer again on September 6, 2000, she told him that her symptoms had returned when she worked on the computer.

To address her continuing pain, L.M. underwent two right shoulder surgeries. The first surgery, performed by Dr. Jeffrey Abrams on October 18, 2000, involved an arthroscopy and debridement, subacromial decompression, and what is termed a Mumford procedure. Dr. Abrams's operative findings included a notation that L.M. had exhibited "[i]nflammatory changes exterior of the rotator cuff [and] superior labral tear without destabilization." Dr. Abrams diagnosed L.M. with right shoulder rotator cuff tendonopathy, acromioclavicular joint arthritis, and impingement syndrome.

The second right shoulder surgery, which involved a capsular shift procedure and labral repair, was performed by Dr. Matthew Garfinkel on July 11, 2001. Dr. Garfinkel diagnosed L.M. with right shoulder anterior instability.

In addition to these right shoulder problems, L.M. also was having difficulty with her left shoulder. The left shoulder pain and injury was first documented by Dr. Abrams after he examined L.M. on November 13, 2000. Subsequently, Dr. Garfinkel diagnosed L.M. with left shoulder anterior-inferior instability. These findings resulted in Dr. Garfinkel operating twice on L.M.'s left shoulder, on November 19, 2001 and again on July 22, 2002. The first surgery consisted of a capsular shift procedure. The second surgery included another capsular shift procedure and a shoulder arthroscopy.

L.M. also underwent surgeries on each of her wrists. The first surgery, performed by Dr. Raymond Decker, Jr., on November 2, 2000, involved a carpal tunnel release on L.M.'s right wrist. Thereafter, on April 11, 2003, Dr. Franklin Chen performed a carpal tunnel release on the left wrist.

Having endured these physical injuries and multiple surgeries, L.M. began to experience psychological problems. Unable to work, she felt "useless" and "depressed." She began treatment with a psychologist, Dr. David Winokur, and thereafter with a psychiatrist, Dr. Alexander Iofin. L.M. first saw Dr. Winokur once a week for several months for counseling sessions. She began seeing Dr. Iofin in the fall of 2003 and continued seeing him through the time of her trial testimony. The persisting depression caused L.M. to have sleeping problems, lose weight, feel afraid in crowds, and lose self-esteem. To treat these problems, Dr. Iofin prescribed several medications for her.

As noted, L.M. continued to work on a part-time basis for Church & Dwight through May 2000. Her husband visited her office and adjusted her chair so that the computer keyboard would be more level, but that adjustment resulted in only minimal improvement. L.M. tried to return to work in January 2001. However, she was unable to make it through a full work day, as she experienced tightness in her hands and shoulder swelling once she used a keyboard. Another person drove her home, and she never returned to the office.

L.M. filed a workers' compensation claim petition against Church & Dwight in January 2004. The company opposed the petition. The case was tried before Judge of Compensation John J. Tumulty, III, intermittently over six days in 2005 and 2006.

According to her trial testimony, L.M. continues to suffer from "puff[ing]" or "swell[ing]" in her shoulders, which leads to stiffness in her arms, five or six times per week. She still experiences numbness in her hands and wrists, as well as loss of arm strength. Although she had previously enjoyed recreational bowling, she no longer is able to do so. L.M. has been declared disabled by the Social Security Administration. As of the time of her trial testimony, she was receiving $1,100 monthly in Social Security benefits.

L.M. presented several medical experts at trial. She first called Dr. Vijaykumar Kulkarni, a Board-certified general surgeon. Dr. Kulkarni performed a permanency examination on L.M. on June 18, 2004. As described to Dr. Kulkarni, L.M. had worked for Church & Dwight "for approximately [seven] years and her job consisted of constant repetitive use of her upper extremities working on the computer all day, writing, and general office duties and, as a result, she developed pain in her left and right shoulders and left and right hands."

In pertinent part, Dr. Kulkarni diagnosed Moran with

repetitive and cumulative sprain and strain of the left shoulder with left shoulder instability and impingement syndrome and she was in post-operative status times two for capsular shift repair with residual synovitis of the left shoulder with loss of range of motion and power and function on the left shoulder.

The right shoulder it was similar repetitive and cumulative sprain of the right shoulder with rotator cuff tendinitis and acromioclavicular joint arthritis with impingement syndrome. She was in post-operative status times two for decompression and debridement and similar capsular shift procedure on the right side with loss of range of motion.

For the right and left wrist diagnosis was repetitive sprain of the right and left wrist with carpel tunnel syndrome and post-operative status for release of carpel tunnel.

With respect to the hands and wrists, Dr. Kulkarni specifically concluded in his post-examination report that L.M. suffered a "permanent orthopedic disability of 45% of the left hand, plus 45% of the right hand, plus 70% of total."

On direct examination at trial, Dr. Kulkarni opined that L.M.'s injuries were "related to her occupational exposure." He noted that, before working at Church & Dwight, L.M. had not previously suffered any trauma or injury to the relevant joints. This testimony was consistent with Dr. Kulkarni's written post-examination report, in which he had opined that L.M.'s "occupational exposure is the proximal cause of the complaints, physical findings, diagnosis and disability rating noted in the body of this report."

When pressed by defense counsel on cross-examination about causation issues, Dr. Kulkarni stated that L.M.'s shoulder injury was caused by "repetitive trauma." He acknowledged that other office tasks not involving the computer keyboard probably contributed to L.M.'s injuries, responding as follows to defense counsel's questions on that subject:

Q: In your opinion what is the mechanics of the onset of the shoulder pathology as it may have been caused by the operation of a keyboard?

A: It's not just that she was doing the keyboard operation, she was also doing the other office work which can cause sort of laxity of or stretching of the capsules of the joint.

Q: Then you would say that the . . . medical probability, the other office work whatever that may be was the fact or precipitating cause of pathology in the shoulder; is that true?

A: Yes.

Dr. Kulkarni also acknowledged that L.M.'s bowling could be a sufficient form of trauma to cause her shoulder pathology, "[i]f she was doing only the bowling and nothing else." Nevertheless, Dr. Kulkarni did not retract his ultimate conclusion that L.M.'s injuries were workplace-related.

Dr. Cheryl Wong also testified on L.M.'s behalf, as a Board-certified expert in both neurology and psychiatry. Dr. Wong interviewed and examined L.M. on June 18, 2004, at which time L.M. complained of problems with her shoulders, arms, hands, and fingers. L.M. also told Dr. Wong about feeling depressed and nervous, as well as experiencing crying spells, sleeping problems, and difficulties with her appetite.

Upon examining L.M., Dr. Wong found diminished deep tendon reflexes in both her biceps and brachioradialis. Dr. Wong also found "[d]ecreased light touch of pinprick and suprascapula nerves innervated by her shoulder and arms[;] . . . [m]otor strength weakness with both abduction . . . and adduction raising the arms back bilateral[; m]uscle strength weakness in the hands and problems with gripping and grasping with both [hands]."

Based on her neurological examination, Dr. Wong concluded that L.M. "had bilateral suprascapular nerve and axillary nerve neuropathy in each shoulder, status post surgery to each shoulder times two, estimated 50 percent of disability of [the] total." Dr. Wong also diagnosed L.M. with "[b]ilateral carpal tunnel syndrome, status post surgical release bilateral, estimated 35 percent for each hand, and major depressive disorder for her injury and her physical limitations and disability . . . estimated at 35 percent of [the] total."

Dr. Wong opined, within a reasonable degree of medical certainty, that L.M.'s injuries were related to "occupational exposure of both wrists and arms working at the computer relating to problems with shoulders and hands." Similarly, Dr. Wong noted in her post-examination report that "[t]he occupational exposure [at Church & Dwight] described [by L.M.] was the competent producing factor for the patient's subjective and objective findings."

On cross-examination, Dr. Wong was asked to identify the specific work activities that had caused L.M.'s shoulder problems. Dr. Wong responded:

[L.M.] did a lot of work on the computer. So, just by holding your arms up, if she didn't have an ergonomically built thing, just holding up the arms putting stress on the shoulder and doing that for a long period would cause problems in the shoulders as well.

Dr. Wong asserted that L.M.'s bowling could not have been the cause of the injuries to both of her shoulders, especially since L.M. had only bowled once per week.

Apart from these neurological findings, Dr. Wong also examined L.M.'s mental condition. That assessment led Dr. Wong to determine, again within a reasonable degree of medical certainty, that L.M. "developed major depression because of [her physical] problems," which Dr. Wong opined were caused by occupational exposure. Dr. Wong stated that L.M.'s "psychiatric problems [were] related to the occupational exposure, too."

Dr. Iofin also testified, via telephone, concerning L.M.'s psychological and psychiatric problems. Similar to Dr. Wong, Dr. Iofin opined that L.M.'s mood impairment, depression, and anxiety all stemmed from the significant amount of physical pain that she had experienced in her upper extremities, as well as the adjustment to her lifestyle that she was required to make after becoming unable to work.

Dr. A. Gregory McClure, an orthopedic physician who is Board-certified in independent medical examinations, testified on behalf of Church & Dwight concerning L.M.'s shoulder and hand injuries. Dr. McClure examined L.M. on October 4, 2004. He testified that "there was no spasm or crepitus in either shoulder," although he acknowledged there was restrictive motion. In particular, Dr. McClure criticized Dr. Garfinkel's findings of shoulder impingement, asserting that he could not have made "any objective determination regarding possible impingement and things like that," due to L.M.'s "shoulder guarding."

With respect to causation issues, Dr. McClure opined that he did "not believe that [L.M.'s] work place put the rotator cuff and shoulder capsular at risk for damage[,] given the nature of [her work] duties." Dr. McClure asserted that occupational duties requiring "overhead" motion, with one's arms held "above [ninety] degrees," would typically put a person at risk of rotator cuff or capsular injuries, but that such injuries would not typically be caused by computer data entry functions, in which the arms are not so positioned. He opined that a person who works on a computer would more typically complain of carpal tunnel syndrome. Alluding to certain research studies that have found no correlation between clerical work and carpal tunnel syndrome, Dr. McClure added that carpal tunnel syndrome is "not necessarily related to work."

Based upon his examination and review of L.M.'s numerous medical records, Dr. McClure determined that her overall condition "represented a [ten] percent partial total disability for the right shoulder[,] . . . a [twelve] percent partial total disability referable to the left shoulder[,] . . . five percent of permanent partial for the right hand and seven-and-a-half percent partial permanent disability for the left hand."

Dr. Waldon Holl, Jr., a Board-certified psychiatrist, testified as Church & Dwight's mental health expert. Dr. Holl examined L.M. on September 24, 2003. Although he diagnosed L.M. with schizophrenia, Dr. Holl stated that her schizophrenic condition could not be related to any work-related accident. In general, Dr. Holl opined that L.M. had no psychiatric disability that was attributable to her employment with Church & Dwight.

Having considered these proofs from the lay and expert witnesses, Judge Tumulty concluded, among other things, that it was "clear that the injuries to the petitioner's hands are directly related to her work exposure and that with regard to these injuries, the petitioner[] has met her burden of proof." Likewise, with respect to petitioner's shoulder injuries, the judge was satisfied that she had met her burden of proof, and that the opinions of Dr. Kulkarni and Dr. Wong, finding both L.M.'s shoulder and hand injuries to be work-related, were "more than credible."

The judge acknowledged Dr. McClure's observation that L.M.'s job duties did not involve heavy lifting or overhead work, "conditions which are generally associated with shoulder injuries." Even so, the judge was persuaded by the competing opinions of L.M.'s experts. He also found it significant that the problems with L.M.'s shoulders began to develop in 2000 at the same time that her wrist problems manifested.

The judge also was satisfied that L.M. met her burden with regard to the psychiatric aspect of her claim. In this regard, the judge found persuasive the opinions of Dr. Wong and of Dr. Iofin, the treating psychiatrist, attesting that "the cause[s] of the petitioner's depression and anxiety were her physical problems." The judge rejected Dr. Holl's contrary view, that L.M.'s present mental problems had resulted from her underlying schizophrenia, as "totally unsupported by any evidence."

With respect to the extent of disability, the judge noted that L.M. "has undergone six separate surgical procedures, has not worked since leaving the respondent, has continuing serious physical problems to both her wrists and shoulders and continues to receive psychiatric care." Consequently, the judge found L.M. "to be totally disabled within the meaning of the workers' compensation statute."

On appeal, Church & Dwight argues that (1) L.M.'s testimony was insufficient to support her burden of proving that her injuries were caused by her workplace functions; (2) L.M.'s medical experts presented inadmissible net opinions that were not grounded upon the record evidence; (3) the judge's decision was not adequately supported by articulated reasons based on the evidence; (4) the medical records and other hearsay evidence presented by L.M., although admissible in compensation court, were not competent legal proof that could be relied upon by the judge; and (5) Dr. McClure's testimony was the most credible on the issues of causality and should have been adopted by the judge.

II.

We begin our assessment of appellant's contentions by emphasizing our limited standard of review of factual determinations by compensation judges. The standard is whether the findings made by the judge of compensation could reasonably have been reached on sufficient credible evidence in the record, considering the proofs as a whole, giving due regard to the judge's opportunity to observe and hear the witnesses and to evaluate their credibility, and to the judge's expertise in the field of workers' compensation. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965); see also Perez v. Capitol Ornamental, 288 N.J. Super. 359, 367 (App. Div. 1996). In particular, a reviewing court must defer to the findings of credibility made by a judge of compensation, as well as to the judge's expertise in analyzing medical testimony. Kaneh v. Sunshine Biscuits, 321 N.J. Super. 507, 511 (App. Div. 1999).

Church & Dwight does not challenge that deferential review standard. However, it urges that a compensation judge must "make adequate findings of fact and give an expression of reasoning which, when applied to the found facts, [lead] to the conclusion" that the judge reached. Lister v. J.B. Eurell Co., 234 N.J. Super. 64, 73 (App. Div. 1989). The decision must contain more than a "mere cataloging of evidence followed by an ultimate conclusion of liability." Ibid.

As a claimant seeking workers' compensation benefits, L.M. had the burden of proving that her injuries "[arose] out of and in the course of employment [and were] due in a material degree to causes and conditions which are or were characteristic of or peculiar to a particular trade, occupation, process, or place of employment." N.J.S.A. 34:15-31a. She must show that "the alleged occupational exposure contributed to the resultant disability by an appreciable degree or a degree substantially greater than de minimis." Peterson v. Hermann Forwarding Co., 267 N.J. Super. 493, 504 (App. Div. 1993) (applying definition of "material degree" found in N.J.S.A. 34:15-7.2), certif. denied, 135 N.J. 304 (1994). This burden must be fulfilled "by a preponderance of the credible evidence." Akef v. BASF Corp., 305 N.J. Super. 333, 340 (App. Div. 1997). "The standard is one of reasonable probability; i.e., whether or not the evidence is of sufficient quality to generate a belief that the tendered hypothesis is in all likelihood the truth. The evidence must be such as to lead a reasonably cautious mind to the given conclusion." Lister, supra, 234 N.J. Super. at 72.

Applying these general precepts here, and upon our own independent review of the record as a whole, we are satisfied that Judge Tumulty's finding that L.M. sustained her burden of proof is indeed supported by substantial credible evidence. Close, supra, 44 N.J. at 599. We also conclude that the judge offered adequate reasons for his determination, and did not merely "catalogue" the proofs without any reasoned analysis. Lister, supra, 234 N.J. Super. at 73.

Church & Dwight principally takes issue with the judge's finding that the injuries to L.M.'s upper extremities were caused by her repetitive use of a computer keyboard at her work station. Tracking the contentions of its expert, Dr. McClure, Church & Dwight particularly challenges how L.M. could have developed shoulder injuries by working at her keyboard without lifting heavy objects or reaching over her head. It also points to Dr. Kulkarni's testimony on cross-examination, acknowledging that some other physical motion, apart from the use of the keyboard, probably contributed to L.M.'s shoulder problems.

Despite appellant's arguments, we remain persuaded that there is ample proof in the record to support the judge's determinations of causality. In reaching his conclusion, the judge relied not only on the testimony of Dr. Kulkarni, but also of Dr. Wong, L.M.'s expert neurologist. Both Dr. Kulkarni and Dr. Wong testified that, in their opinions, within a reasonable degree of medical certainty, L.M.'s injuries were caused by her occupational exposure. Those experts were found to be more credible by the judge than the defense expert, Dr. McClure.

Church & Dwight contends that the causation testimony of Dr. Kulkarni and Dr. Wong were improper net opinions, and should be accorded no weight. See Beadling v. William Bowman Assocs., 355 N.J. Super. 70, 87 (App. Div. 2002) (citing N.J.R.E. 703 and Buckelew v. Grossbard, 87 N.J. 512, 524 (1981)); see also Dwyer v. Ford Motor Co., 36 N.J. 487, 494 (1962). We disagree. Having considered the record as a whole, we are satisfied that these experts sufficiently explained the "why[s] and wherefore[s]" of their opinions, and did not offer just "mere conclusion[s]." Jimenez v. GNOC, Corp., 286 N.J. Super. 533, 540 (App. Div.), certif. denied, 145 N.J. 374 (1996). Both experts tied their opinions to the clinical information and operative findings of L.M.'s treating doctors and surgeons documented in the record, as well as to the patient's reported complaints and their own first-hand examinations.

Church & Dwight asserts that L.M.'s experts misunderstood the nature of her work duties, and that they mistakenly assumed that her job functions entailed lifting her arms over her head, apart from typing on a keyboard. Whether or not that is so, the overall force of their expert opinions is not eliminated by this nuance. The thrust of their opinions is that L.M. was injured by the repetitive use of her arms and hands, and in reaching those extremities out while she was at her work station. Whether L.M. was reaching her arms across her flat keyboard or was reaching them over her head, there is ample support in the record to justify the conclusion of causality. The judge did not have to accept Dr. McClure's specific opinion that L.M. had to reach her arms at least "above [ninety] degrees" for the injuries to have occurred. The judge had the prerogative to choose which portions of the experts' testimony were most persuasive. A "judge of compensation 'is not bound by the conclusional opinions of any one or more, or all of the medical experts.'" Perez, supra, 288 N.J. Super. at 367 (quoting Lightner v. Cohn, 76 N.J. Super. 461, 465 (App. Div.), certif. denied, 38 N.J. 611 (1962)). In addition, we agree with the judge that L.M.'s bilateral injuries were not explainable by her recreational bowling, there being no proof that she was an ambidextrous bowler.

Likewise, the judge's finding that L.M. suffered a workplace-related psychiatric injury, derivative of the physical damage to her upper extremities, is amply supported by the expert testimony of Dr. Wong and Dr. Iofin.

Further, the medical records and other hearsay documents in evidence, which were admitted at trial without any objection by Church & Dwight, serve to corroborate the testifying experts' findings. The experts were entitled to rely upon those records as proofs reasonably relied upon by others in their field. See N.J.R.E. 703. In sum, we are satisfied that the record as a whole adequately supports the compensation judge's decision.

Church & Dwight's remaining arguments lack sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).

 
Affirmed.

Because of the psychological proofs discussed herein, we refer to the respondent by her initials.

(continued)

(continued)

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A-2617-06T2

RECORD IMPOUNDED

January 30, 2008