M.G. v. JLL, INC.

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0143-08T20143-08T2

M.G.,

Petitioner-Appellant,

v.

JLL, INC.,

Respondent-Respondent.

_____________________________________________________

 

Argued May 6, 2009 - Decided

Before Judges Cuff and Fisher.

On appeal from the Department of Labor, Division of Workers' Compensation, Claim Petition No. 95-019753.

Andrew T. Walsh argued the cause for appellant (Chamlin, Rosen, Uliano & Wither-ington, attorneys; Mr. Walsh, on the brief).

Richard J. Williams, Jr., argued the cause for respondent (McElroy, Deutsch, Mulvaney & Carpenter, attorneys; Michael J. Marone, of counsel; Mr. Williams and Joseph G. Fuoco, on the brief).

PER CURIAM

In this appeal we address whether the workers' compensation judge erred when he found no causal connection between back surgery performed on the petitioner and a work-related back injury that occurred nine years earlier. The compensation judge found that petitioner's work-related back injury had "plateaued" years earlier; that petitioner, who was HIV-positive, was hospitalized because of respiratory problems, which required intubation; and that, upon extubation, petitioner was found to be suffering from quadriparesis, which necessitated the surgery in question. The judge's finding of an inadequate causal connection between the work-related injury and the surgery in question is based on his application of correct principles of law and on evidence he was entitled to credit. Accordingly, we affirm.

The record reveals that petitioner suffered an injury to his cervical spine as the result of a work-related accident on December 16, 1994. In the workers' compensation proceedings that followed, petitioner received permanent disability awards on June 11, 1996, May 14, 2001, and August 1, 2005. The last of these orders approved a settlement in petitioner's favor for 80% partial total disability for the residuals of cervical herniations at C3-C4 and C6-C7; that order also recognized that the parties contested whether there was a "causal relationship" between the work injury and a surgical procedure performed by Dr. Jason Cohen on petitioner at Monmouth Medical Center on April 18, 2003 -- an issue reserved for a later date.

An evidentiary hearing took place on May 30 and July 28, 2008. During that hearing, the workers' compensation judge heard the testimony of Dr. Cohen, who was called by the petitioner, and the testimony of Dr. Cary Glastein, who was called by respondent.

In his findings, the judge recognized that Dr. Glastein had treated petitioner's back condition from 1995 until early 2002. Dr. Glastein described how petitioner's condition "fluctuated as is normal with herniated discs as the condition can get better and worse[,] on and off." Dr. Glastein explained how the condition had become "stable and that there was no need for surgery for the disc." The judge also found that petitioner had declined surgery on a number of occasions prior to 2002.

On March 17, 2003, petitioner presented to the emergency room at Monmouth Medical Center in respiratory distress, where he was diagnosed with severe bilateral pneumonia and hypoxia. Dr. Cohen acknowledged, and there is no dispute, that these respiratory problems resulted because petitioner was HIV positive. Petitioner remained hospitalized and, as his condition worsened, he was intubated in order to assist breathing.

In a report prepared at the time, Dr. Cohen explained the history leading up to the surgery in question. He indicated that petitioner "was able to walk and move his upper extremities without difficulty, just with some gait ataxia" prior to becoming "sick with pneumonia," and, to relieve his breathing difficulties, petitioner was intubated and, upon extubation, "found to be quadriparetic, could not move his right upper extremity other than some muscle twitches . . . [and] could move his left upper extremeity and his legs but only with difficulty." Dr. Cohen then stated:

An MRI of the cervical spine was obtained, which showed further progression of his C3-C4 disk herniation completely compressing the spinal cord with significant myelo-malacia cord edema. The patient was started on steroids, did not respond. Orthopedic consultation was obtained. The patient was evaluated, deemed necessary to undergo urgent spinal cord decompression to give him the best possible chance of any neurologic recovery.

Despite insisting there was a link between the C3-C4 disk herniation, which was caused by the work-related injury, and the need for the April 2003 spinal surgery, Dr. Cohen acknowledged in his testimony that he

fe[lt] the need for surgery was the insult [that] occurred to his spinal cord, okay. I can't tell you exactly what that was, whether that was the lack of oxygenation from the hypoxia or whether there was increased pressure that occurred during the intubation. One of those two things is the most likely cause that precipitated the need for surgery.

In his testimony, Dr. Glastein testified that petitioner was hospitalized in 2003 for a condition "very common in HIV-infected patients," and that at the time petitioner was "[t]otally ambulatory" in that he was able to walk and move his upper extremities without difficulty. According to Dr. Glastein, the need for the April 2003 surgery resulted from a complication of intubation and extubation, necessitated by petitioner's respiratory problems.

The judge found Dr. Glastein more credible because he had no vested interest in the outcome, whereas Dr. Cohen had an interest in securing payment of his $72,112 bill for the surgery in question. Based on Dr. Glastein's testimony, the judge concluded that:

[i]n order to treat his pneumonia which was caused or irritated by the HIV, which, of course, was not related to his workers' compensation case, petitioner was . . . intubat[ed] so that he could breathe. [Upon extubation], petitioner became paralyzed as a quadriplegic, and when that happened, then Dr. Cohen operated on the petitioner so that he could function and not be a quadriplegic. The intubation made the surgery necessary according to Dr. Glastein, and again, petitioner went to the hospital only because he had pneumonia and needed that treatment because of his HIV and not because of his prior condition for the herniated cervical disc.

As a result of his finding that the surgery was necessitated by complications in the treatment of petitioner's respiratory problems, which were not brought about by the workplace injury but by HIV, the judge entered an order in favor of respondent.

Despite petitioner's forceful arguments, we cannot agree that the judge's findings of fact were so "manifestly unsupported by or inconsistent with competent relevant and reasonably credible evidence as to offend the interests of justice," the standard that binds us in reviewing this matter. Lindquist v. City of Jersey City Fire Dep't, 175 N.J. 244, 262-63 (quoting Perez v. Monmouth Cable Vision, 278 N.J. Super. 275, 282 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995)).

Petitioner has also failed to persuade us that the judge's conclusion of law -- that there was an insufficient nexus between the work-related injury and the surgery in question -- was mistaken. In support, petitioner relies upon cases dealing with the aggravation of work-related injuries by other events. For example, petitioner has cited Randolph v. E.I. duPont de Nemours & Co., 130 N.J.L. 353, 354-55 (Sup. Ct. 1943), where the petitioner sustained a work-related eye injury for which he was prescribed dark glasses. The petitioner thereafter fell down stairs and then sought a determination that those injuries were the product of the work-related injury. The court held that the subsequent injury was compensable because "[t]he fall down the stairs . . . result[ed] [from] wearing the dark glasses, which, of course, was made necessary by the original accident." Id. at 356. See also Bisonic v. Halsey Packard, Inc., 62 N.J. Super. 365, 381-82 (App. Div. 1960) (finding compensable a cardiac condition upon proof that surgery to correct a hernia, which was caused by a workplace accident, caused the cardiac condition); Kelly v. Federal Shipbuilding & Dry Dock Co., 1 N.J. Super. 245, 247-48 (App. Div. 1949) (finding compensable injuries sustained in a fall, which resulted from the petitioner's losing his balance because he wore a leg cast as a result of a work-related injury).

Here, as the judge's findings indicate, petitioner did not require the surgery in question until he contracted pneumonia, was intubated for his respiratory distress, and then extubated. The pneumonia and the medical actions taken to address petitioner's respiratory problems were not caused by the work-related injury but because petitioner was HIV-positive. As a result, this case differs from Randolph, Bisonic and Kelly, among others, and is far more similar to McDonough v. Sears, Roebuck & Co., 130 N.J.L. 530 (E. & A. 1943), where the petitioner's workplace injury required that he wear alcohol-soaked bandages, which were then ignited by the petitioner's lighting of a cigarette. In McDonough, the Court determined that the burn injuries were not compensable because they resulted from "a wholly independent cause, in no way related to or connected with the original accident or the treatment thereof." Id. at 530-31. Here, petitioner's pneumonia and respiratory problems were the product of HIV; those problems warranted intubation, which brought about the need for surgery following extubation.

 
Affirmed.

The record reveals that M.G. passed away on April 21, 2005. Letters of administration were issued to his widow for the purpose of pursuing the matter at hand. Although no substitution of parties has occurred as required, see Rule 4:34-1(b), we proceed with the understanding that the matter is now properly being pursued by the petitioner's estate, and, to avoid any further confusion, we will simply refer to the appellant as "petitioner."

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2

A-0143-08T2

RECORD IMPOUNDED

May 21, 2009