MARIA COLEMAN v. ASSOCIATED PODIATRIC PHYSICIANS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5030-06T55030-06T5

MARIA COLEMAN,

Petitioner-Respondent,

v.

ASSOCIATED PODIATRIC PHYSICIANS,

Respondent-Appellant.

________________________________

 

Argued January 22, 2008 - Decided

Before Judges Lintner, Parrillo and Graves.

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

Christopher M. Campanaro argued the cause for appellant (Romando, Tucker, Zirulnik & Sherlock, attorneys; Mr. Campanaro, of counsel and on the brief).

Arthur H. Kravitz argued the cause for respondent (Stark & Stark, attorneys; Mr. Kravitz, on the brief).

PER CURIAM

Respondent, Associated Podiatric (Associated), appeals from a Division of Workers' Compensation order awarding temporary medical benefits to petitioner, Maria Coleman. Specifically, the Workers' Compensation judge found that Coleman's bilateral carpal tunnel syndrome was causally related to her repetitive job duties performed while in Associated's employment. Associated contends that the judge's conclusions were: (1) not supported by the evidence; (2) based upon an inadmissible net opinion given by Coleman's expert; and (3) predicated on an preliminary EMG report rather than the raw data. We reject Associated's contentions and affirm.

Coleman was hired by Associated in April 2005, as a podiatric medical assistant. Prior to that time, Coleman was employed at H&R Block, where she performed data entry and customer service support 35-40 hours per week. Coleman's duties at Associated included rubbing lotion on and massaging the feet of patients, assisting patients in taking off and putting on their shoes, scrubbing out whirlpool baths after patients had finished using them, sweeping the examination rooms, taking out the trash, developing x-rays, and filing charts and other paperwork.

In August 2005, Coleman began to experience problems with her hands. She consulted her family physician, Dr. Clinton Ogolo, who gave her medication and referred her for an electromyography (EMG) and nerve conduction velocity (NCV) study. An EMG/NCV was performed at Capital Health System on September 16, 2005. Ogolo referred Coleman to Dr. Thomas Bills, an orthopedic surgeon, who examined her on January 18, 2006. Bills reviewed the EMG/NCV study. He reported that it confirmed bilateral carpal tunnel syndrome, mild on the left hand and moderate on the right hand. Bills noted that Coleman reported "that she [had] started a new job in April" and that it involved "a lot of repetitive motion." On the basis of the history provided by Coleman, Bills advised her "that there was a possible cause and [effect] relationship between her carpal tunnel syndrome and her work-related activities." Shortly after her visit with Bills, Coleman reported her condition to Associated. Associated's owner called Bills, who advised that Coleman had permission to return to work despite her condition. Associated altered Coleman's hours, giving her less work time.

Coleman filed her claim petition on February 8, 2006, and continued to work for Associated until June 2006, when she was fired for failing to return to work as scheduled following a vacation. On February 27, 2006, Coleman was examined by Elliot L. Ames, D.O., at Associated's request. On March 1, 2006, Dr. Ames issued a report diagnosing Coleman with "[b]ilateral carpal tunnel syndrome, the right greater than the left." "In terms of causal relationship," he wrote:

I would find causal relationship [of the carpal tunnel syndrome to employment with Associated] only if there is no history of thyroid disease. The patient reported a questionable history of elevation of her thyroid function studies. If this proves to be the case, upon review of records from her family physician, then causal relationship would not be established with any degree of medical certainty. There are no other risk factors other than the possibility of thyroid disease. If her thyroid studies were negative, then I would find causal relationship. (Emphasis added.)

Ames did not perform any subsequent examinations of Coleman, however, he wrote two additional reports. The first was dated May 1, 2006. He wrote that "the thyroid profile performed on November 9, 2005 was normal. Therefore it [did] not appear that thyroid disease [was] a factor." He requested a copy of the EMG performed in September 2005. However, in the second report, dated August 28, 2006, Ames reported that a December 8, 1999, laboratory study found "a low free T3-4 index" with respect to Coleman's thyroid function. Ames concluded that "[t]he laboratory studies did show evidence of low thyroid function which is a risk factor." He noted, "[a]dditionally there is obesity . . . another risk factor for Carpal Tunnel Syndrome." He concluded that he was "unable to establish causal relationship with any degree of medical certainty."

In September 2006, Coleman began working for Delaware Valley Pediatrics as a receptionist 27 hours per week, checking patients in and out and verifying the information patients filled out on various medical forms, as well as doing some light filing. She used a computer to perform many of her daily work functions.

Coleman filed her application for medical and temporary benefits on September 7, 2006. In support of her claim, she was evaluated by David Weiss, D.O. In a report dated November 14, 2006, Weiss set forth Coleman's medical history, reviewed her complaints, her prior medical reports, and the EMG/NCV report. Weiss found that Coleman presented "with a classic case of a cumulative and repetitive trauma disorder manifesting itself as a bilateral carpal tunnel syndrome," and because "she has failed conservative care . . . [she] should be scheduled for an open bilateral carpal tunnel release" to be performed by her treating orthopedic surgeon.

Testimony was taken over the course of four hearings. Coleman described her job duties with Associated, which included sweeping out examination rooms twice per day, helping elderly patients take off and put on their shoes and socks, rubbing lotion onto and massaging patients' feet, assisting patients into the whirlpool bath, and scrubbing the tub after they had finished. She also helped develop x-rays taken at the practice and was often required to carry several heavy metal trays, used to develop x-rays, up and down the stairs.

Coleman described her symptoms, as well as the limitations on her daily activities. She confirmed on cross-examination that she had worked for H&R Block full-time, where she used a mouse with both hands, prior to her employment with Associated, but denied having symptoms prior to August 2005.

Associated's principle and three of Coleman's coworkers testified that Coleman overestimated the amount of work that she performed while employed by Associated.

Testifying on behalf of Coleman, Weiss confirmed his diagnosis of "cumulative and repetitive trauma disorder . . . with bilateral carpal tunnel syndrome confirmed by EMG and ACMC studies." He opined that the "job-related functions that [Coleman] performed . . . [were] contributing factor[s] for her developing . . . carpal tunnel syndrome." In his opinion, her job related functions contributed over fifty percent to her carpal tunnel syndrome because none of the other various causes of carpal tunnel syndrome were present. Weiss narrowed the causal connection to Coleman's employment, based upon the absence of other risk factors, including hypothyroidism, pregnancy, ganglion cysts, uremic syndrome, and hereditary peripheral neuropathy.

On cross-examination, Weiss admitted that he had not seen the "hard copy" raw data from the EMG/NCV study, but had only reviewed the report in making his conclusions. Although he conceded that hyperthyroidism is a contributing factor to carpal tunnel syndrome, he noted that borderline hypothyroidism is "not even enough to render treatment, which means [Coleman is] not symptomatic [and] if she's not symptomatic" then he did not "know if borderline would really venture into the arena for carpal tunnel." Although Weiss confirmed that there were no medical studies specifically linking job activities of podiatric medical assistants with carpal tunnel syndrome, he indicated that he based his opinion on Coleman's description of her job activities, a textbook entitled Current Occupational and Environmental Medicine authored by Dr. Joseph LaDouns, as well as his review of Bills' assessment.

Ames testified as an expert witness for Associated. He stated that he diagnosed Coleman with "bilateral carpal tunnel syndrome, right greater than the left and also early osteoarthritis of the right trapeziometacarpal joint." He further indicated that he had not received the raw data from the EMG/NCV, but diagnosed Coleman with carpal tunnel syndrome based upon his own clinical examination and the EMG report. Ames conceded that he "would find causal relationship" between Coleman's carpal tunnel syndrome and her employment "only if there was no history of thyroid disease." He stated that because Coleman "had reported to [him] a questionable history of elevation of her thyroid function studies . . . [he] felt that if in fact there was abnormality in the thyroid function studies, then causal relationship could not be established."

Ames testified that he could not establish a causal relationship with any degree of medical certainty. He explained that there were three major risk factors for developing carpal tunnel syndrome based upon work, specifically, repetition, force, and posture. He testified that Coleman's description of her job duties did not involve any of those factors. Based upon his examination and review of the medical records, he concluded that "there is no causal relationship that can be established." He also opined that her job-related activities did not aggravate, accelerate, or exacerbate a preexisting condition. Ames testified, as did Weiss, that there were no specific studies involving podiatric medical assistants. On cross-examination, Ames admitted that the lab test performed in November 2005 showed normal thyroid function.

On May 7, 2007, the judge rendered his decision from the bench. He credited Weiss's testimony "that the repetitive job duties performed by . . . Coleman while in [Associated's] employ caused the carpal tunnel syndrome and found it more persuasive than [Ames'] view that there is no relationship between [Coleman's] work activities and her hand problems." In reaching his conclusion, the judge pointed out the contradiction between Ames' report, which concluded he would find causal relationship if thyroid studies were negative, and his later report and testimony. Finding that Coleman met her burden of proof, the judge noted that there was no evidence in the record that Coleman suffers from thyroid disease.

Associated contends, essentially, that the judge's factual findings were not supported by adequate credible evidence in the record. In support of its contention, Associated first asserts that because both experts confirmed that there were no specific studies correlating the activities of podiatric medical assistants with carpal tunnel syndrome, there was no reliable scientific methodology or explanation on which Weiss based his opinion that Coleman's condition was causally related to her job activities. In the same vein, Associated asserts that because there were no specific studies referenced, Weiss's testimony amounted to a net opinion. Finally, relying on Brun v. Cardoso, 390 N.J. Super. 409 (App. Div. 2006), Associated maintains that the judge improperly relied upon evidence of an EMG/NCV report in reaching his decision.

We reject Associated's assertion that the judge improperly considered the EMG/NCV report as devoid of merit. The EMG/NCV report was never admitted into evidence. Instead, both doctors reviewed the report, which they took into consideration in arriving at their opinions. We pointed out in Brun, that "while a physician could be questioned about the report of another doctor that he had taken into consideration in formulating his opinion, N.J.R.E. 705, the report of the non-testifying doctor could not itself be admitted in evidence 'in the absence of an independent basis of admissibility.'" Id. at 423 (quoting Day v. Lorenc, 296 N.J. Super. 262, 267 (App. Div. 1996)). Moreover, both experts agreed that Coleman suffered from carpal tunnel syndrome, with the right hand being greater than the left hand, thus confirming the diagnosis made by the EMG study. The disagreement arose respecting causal relationship. Finally, contrary to Associated's argument, the judge did not rely on the EMG study in reaching his conclusion. Rather, he found Ames' testimony that the carpal tunnel syndrome was not caused by Coleman's job activities unpersuasive in light of his contradictory opinion in his first two reports and the negative November 2005 thyroid study.

A claimant seeking workers' compensation benefits for an occupational disease has 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. "Material degree" is defined as "an appreciable degree or a degree substantially greater than de minimis." N.J.S.A. 34:15-7.2. Thus, a claimant must establish 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 v. J.B. Eurell Co., 234 N.J. Super. 64, 72 (App. Div. 1989).

Our scope of review is limited. Generally, we are bound to those findings of a compensation judge that "could reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole," and having due regard for the judge's opportunity to hear witnesses, assess their credibility, and the agency's pertinent expertise. Manzo v. Amalgamated Indus. Union Local 76B, 241 N.J. Super. 604, 609 (App. Div.), certif. denied, 122 N.J. 372 (1990) (citing Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)); see also Brower v. ICT Group, 164 N.J. 367, 376 (2000) ("We are bound by the factual findings of the compensation judge."); Lister, supra, 234 N.J. Super. at 72-74 (discussing petitioner's burden and standard of proof, and standards governing compensation court decisions and appellate review). "Deference must be accorded the factual findings and legal determinations made by the Judge of Compensation unless they are 'manifestly unsupported by or inconsistent with competent relevant and reasonably credible evidence as to offend the interests of justice.'" Lindquist v. City of Jersey City Fire Dep't, 175 N.J. 244, 262 (2003) (quoting Perez v. Monmouth Cable Vision, 278 N.J. Super. 275, 282 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995)).

Associated's arguments essentially impugn Weiss's testimony regarding causal relationship. However, the record reflects that Weiss based his opinion on Coleman's description of her job activities, clinical information, an accepted medical textbook, as well as his review of Bills' assessment and the EMG report.

Ames' initial concession conditioning his finding of a causal relationship on Coleman's thyroid studies, together with his subsequent acknowledgement that Coleman's November thyroid profile was normal, eliminated thyroid disease as a factor and provided additional support for the judge's conclusion. Ames' concession as to causal relationship, notwithstanding his later recantation based upon a purported 1999 thyroid test, directly contradicted his later testimony that the types of activities performed by Coleman did not involve factors that could link her condition to her employment.

We are satisfied that Weiss' conclusion regarding causal relationship, which was somewhat bolstered by Ames' opinion in his initial reports, was "based on a sound, adequately-founded scientific methodology involving data and information of the type reasonably relied on by experts in the scientific field." Id. at 262 (quoting Rubanick v. Witco Chem. Corp., 125 N.J. 421, 449 (1991). Contrary to Associated's argument, Weiss' opinion did not amount to a net opinion. Consideration of the record as a whole convinces us that Weiss sufficiently explained the whys and wherefores of his opinion. We are likewise satisfied, based upon our review of the entire record, that that the judge's findings were supported by substantial credible evidence in the record. Close, supra, 44 N.J. at 599. Accordingly, we need not intervene.

Affirmed.

The spelling of Dr. Ogolo's name varies in the record. We use the most commonly found spelling.

(continued)

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A-5030-06T5

 

February 6, 2008