DENISE TORRES v. VERIZON COMMUNICATIONS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2777-08T3

DENISE TORRES,

Petitioner-Respondent,

v.

VERIZON COMMUNICATIONS,

Respondent-Appellant,

and

SECOND INJURY FUND,

Respondent-Respondent.

_____________________________________

December 7, 2009

Argued November 10, 2009 - Decided

Before Judges Carchman, Parrillo and Lihotz.

On appeal from Department of Labor, Division of Workers' Compensation, Claim No. 2003-23032.

Stephen T. Fannon argued the cause for appellant (Capehart & Scatchard, P.A., attorneys; Ian G. Zolty, on the briefs).

Kenneth A. DiMuzio, Sr., argued the cause for respondent Denise Torres (Hoffman DiMuzio, attorneys; Mr. DiMuzio, on the brief).

Cheryl B. Kline, Deputy Attorney General, argued the cause for respondent Second Injury Fund (Anne Milgram, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Kline, on the brief).

PER CURIAM

Appellant Verizon Communications (Verizon) appeals from a decision of the Workers' Compensation Court: (1) finding petitioner Denise Torres 100% permanently and totally disabled as a result of a compensable accident arising out of and during the course of her employment; and (2) dismissing petitioner's claim against respondent Second Injury Fund (Fund). We affirm.

Denise Torres began working for Verizon as a 411 operator in 1998, when she was twenty-seven years old. Within the year, she was promoted to service assistant, and in November 1999, to repair service clerk. In this position, she was primarily responsible for fielding phone calls from customers needing phone service, attempting to resolve their service problems, and typing reports and repair orders.

On January 18, 2003, petitioner was at work, typing, when she felt a pain and noticed swelling in her right index finger. The next day her right middle and index fingers, thumb, hand and wrist were swollen. The tips of her thumb and index and middle fingers were numb. She went to work that day and experienced pain up to her elbow.

Torres continued working, typing with her left hand and leaving early when permitted. On March 7, 2003, she moved to the front desk, a job that did not require typing. However, the pain and swelling continued. She also developed a burning sensation and by November 2003, the pain and burning gradually spread throughout her upper, and eventually to her lower, extremities. Unable to continue working, Torres left employment on January 22, 2004, on the advice of her treating neurologist, Dr. Gabriel Tatarian.1 Thereafter, she moved to Florida in April 2005 because she can only wear minimal clothing as her skin burns when she is dressed. According to Torres, her condition continues to date. Since moving to Florida, Torres receives authorized pain management treatment from her physician, Dr. Michael Gutman, on a monthly basis.

On July 17, 2003, Torres filed a claim petition against Verizon alleging permanent injury to her neck, right arm, right hand, reflex sympathetic dystrophy (RSD) and psychiatric residuals from typing on January 18, 2003.2 On October 3, 2006, Torres filed a claim petition against the Fund alleging that she was totally and permanently disabled as a result of the compensable events alleged in the verified petitions in conjunction with certain pre-existing disabilities.

Trial on these matters took place over seven days from January 15, 2008 to October 14, 2008. According to the testimony adduced therein, Torres first presented for treatment on January 28, 2003, one week after she first experienced the "stabbing pain" while typing. She was originally diagnosed with carpel tunnel syndrome. However, when a cortisone shot aggravated her symptoms, it was determined that she was not suffering from that condition. After a series of referrals and treatments, including occupational and physical therapy, which did not prove successful, Torres underwent six ganglion block injections into the right side of her neck, with no resulting relief. In fact, following the injections, the pain in Torres' hand and arm traveled to her right shoulder.

As a result, Torres was referred first to Dr. Tatarian, with whom she treated from November 9, 2003 to June 3, 2004, and then to world-renowned RSD specialist Dr. Robert Schwartzman at Hahnemann Hospital. RSD/Complex Regional Pain Syndrome (CRPS) is a neurovascular condition that causes pain in various parts of the body due to constriction of the blood vessels, atrophic changes (weakening), color change, coldness, hair loss, swelling, irregular sweating, and sometimes bone loss. The condition is often caused by minor traumas, including repetitive strain injuries or carpal tunnel syndrome. Although difficult to accurately diagnose through medical testing (i.e., magnetic resonance imaging (MRI), x-ray, electromyography (EMG), or CAT scan), the condition is clinically corroborated by visual and tactile observation namely skin discoloration, sweating, sensitivity to touch, swelling and temperature variation.

When Dr. Tatarian first saw Torres on January 23, 2004, he originally diagnosed her with CRPS, but "thought it was suspect" because she had no history of trauma and her symptoms began suddenly from an activity she had been performing for years on a regular basis, and also because ordinary treatments had been unsuccessful. He did, however, observe Torres guarding her right hand as well as a blue color in that hand. In his final report of September 9, 2004, Dr. Tatarian concluded that Torres was totally disabled as a result of chronic pain syndrome small fiber neuropathy although he could not directly relate the condition to her work on January 18, 2003.

By the time Torres first saw Dr. Schwartzman in December 2004, the pain was in her upper extremities as well as her legs and feet. Dr. Schwartzman recommended IV Lidocaine and Ketamine treatment. As a result, Torres received Lidocaine injections from February 7 to 12, 2005, which temporarily relieved the burning sensation for about two weeks. When the burning resumed, Dr. Schwartzman recommended Ketamine treatment because of the severe nature of her condition, but because it was not covered by her insurance, Torres did not undergo the treatment.

Torres did not receive any further medical treatment in New Jersey before moving to Florida. There, on August 17, 2005, she came under the care of Dr. Michael Gutman, a psychiatrist and neuropsychiatric pain management specialist. Dr. Gutman opined that Torres was suffering from a work-related injury "that eventually led to a CRPS condition," primarily focusing on the right hand and arm, but having progressed to Stage 4, with symptoms of pain in all extremities. Although EMGs and MRIs were normal, Dr. Gutman based his diagnosis of RSD not only on Torres' consistent complaints over a five-year period, but as well on the objective medical findings of other treating physicians who observed typical symptoms of color changes and burning pain, and his own clinical observations of objective RSD symptoms, including mottling (blotching) of the skin.

Dr. Gutman found no evidence of malingering or functional overlay, exaggeration or magnification. He also reviewed RSD specialist Dr. Schwartzman's records and confirmed his diagnosis of generalized CRPS was the same as RSD. Dr. Gutman concluded that Torres is permanently and totally disabled, stating "[i]t's 100 percent probable that [her condition is] going to worsen and a 0 percent [probable] that it will be cured." While he also found a psychological component to Torres' CRPS, Dr. Gutman opined that psychological factors did not play a role in the "genesis or progress of the illness."

Gutman's diagnosis of RSD was confirmed by three of the four other testifying physicians, including one who testified on behalf of Verizon, as well as several of her non-testifying treating physicians, including Dr. Robert Dalsey, Dr. Schwartzman and Dr. Willa Greenberg. Most notably, Dr. Edward H. Tobe, an expert in neurology and psychiatry who evaluated Torres on April 12, 2006, testified that he diagnosed her with CRPS Type 1, which is often referred to as RSD. He based this diagnosis, in part, on Torres' exhibition of the objective symptoms of CRPS:

[H]er right hand appeared somewhat clawed. There was marked allodynia [pain in response to stimulus]. Coolness . . . of the right hand compared to the left. There was swelling of the right hand. The right hand and forearm appear more ashen than the left . . . . Marked dryness is noted of both lower extremities below the knee.

Dr. Tobe concluded that Torres was totally and permanently disabled from this condition, which he found, to a reasonable degree of medical certainty, to be work-related. He further explained, in this regard, that Torres had been typing and using repetitive hand motions for a long period of time and symptoms first appeared while she was typing. Although he also diagnosed Torres with a pre-existing dysthymic disorder (chronic depression), Dr. Tobe opined that Torres' total and permanent disability was neurological and based on her RSD, which resulted from a work injury.

Even Dr. James Hewitt, a psychiatrist, who testified on behalf of Verizon, diagnosed Torres with "chronic pain disorder with medical and psychological features." Torres presented to Dr. Hewitt in April 2006 with atypical RSD. At the time, he also diagnosed her with a pre-existing adjustment disorder and that both disorders "causally relate to the work injury on January 18, 2003" and contributed to her total disability. According to Dr. Hewitt, the fact that Torres' RSD symptoms present atypically, as demonstrated by her functioning in the surveillance videos, "points to a greater psychiatric role in her total disability." Thus, Dr. Hewitt opined that fifty percent of Torres' disability was related to her CRPS and fifty percent was related to her psychiatric disability.

The only testifying physician who opined otherwise was Dr. Stephen Vanna, a neurologist, who found the CRPS diagnosis uncertain because he observed no objective symptoms of the disorder. He also found that Torres' condition resulted in no disability and had no causal connection to any workplace occurrence. Rather, Dr. Vanna opined that Torres' past history of physical and sexual abuse enhances her medical condition, and that there is "[a]n emotional trauma that's causing her to exaggerate her complaints."

At trial, Torres testified that she is in constant pain and experiences a burning sensation, sometimes in only parts of her body and sometimes all over. She is currently on numerous pain medications. She has good days and bad days, but is generally up all night and sleeps during the day. Torres has to rely on her husband to take care of household chores, and has trouble showering and going outside in the sun, as these activities aggravate her condition. Torres has gained weight, and her face is scarred from a medication she was taking. She is currently depressed and has contemplated suicide.

Torres also testified about her history of abuse. Her mother always was and continues to be physically and verbally abusive. She was sexually abused by her father; her stepfather also attempted to touch her inappropriately; and her husband too is physically and verbally abusive.

Torres also has a history of psychiatric issues. She has had panic attacks and has been prescribed anti-anxiety medications and antidepressants as early as 1996. After her husband cheated on her in 1996, she received marriage counseling. In 2001, she took a 33-day leave of absence for stress after a dispute with neighbors. Torres again received counseling for stress in 2003, after the onset of her symptoms.

At the close of evidence, on December 16, 2008, the workers' compensation judge rendered an oral decision finding that Torres suffered a compensable workplace accident on January 18, 2003, that led to the development of RSD/CRPS and psychiatric residuals, which rendered her permanently and totally disabled.3 The judge further found that the neurological disability of RSD/CRPS alone, without regard to the compensable psychiatric disability, was totally and permanently disabling. Accordingly, respondent Verizon was held solely liable for petitioner's disability, and the Fund claim was dismissed.

In his ruling, the judge found it significant that in the treating medical records of numerous physicians, not one doctor mentioned or suggested any malingering or credibility issues with regard to Torres' presentation. Since her compensable injury, she has been in constant pain and has severe limitations, for which she has been prescribed eleven daily medications. The judge also found that Torres' total disability was supported by her current authorized treating physician, Dr. Gutman, as well as the testimony of Dr. Hewitt and Dr. Tobe.

As to finding no Fund liability, the judge relied principally on the testimony of Dr. Gutman, who opined that psychological factors played no part in Torres' CRPS, and on the testimony of Dr. Tobe, who concluded that it was not medically probable that Torres' prior psychiatric disability had any impact on her compensable CRPS. Even though Torres suffered from a prior psychiatric condition attributable to her abusive relationships, the judge found that her CRPS alone, as opined by Dr. Tobe, had so profound an impact upon her ability to function as to render her totally and permanently disabled from any type of gainful employment.

On appeal, appellant raises the following issues for our review:

I. THE DECISION OF THE JUDGE OF COMPENSATION THAT RSD CAN EXIST WITHOUT OBJECTIVE SIGNS OR IF THE OBJECTIVE SIGNS SURFACE ONLY ON A PERIODIC BASIS SHOULD BE OVERTURNED AS IT IS BASED UPON A MISAPPLICATION OF THE CURRENT LAW IN WORKERS' COMPENSATION.

II. IF THIS COURT FINDS THAT PETITIONER'S RSD IS A COMPENSABLE CONDITION THEN THE DECISION OF THE JUDGE OF COMPENSATION THAT RESPONDENT IS SOLELY LIABLE FOR THE PETITIONER'S TOTAL AND PERMANENT DISABILITY IS BASED UPON A MISAPPLICATION OF N.J.S.A. 34:15-95.

A. PETITIONER WAS SUFFERING FROM A

PRE-EXISTING PSYCHIATRIC DISABILITY PRIOR TO AND DURING HER EMPLOYMENT WITH RESPONDENT.

B. IF PETITIONER IS TOTALLY AND PERMANENTLY DISABLED, IT IS DUE TO A COMBINATION OF HER UNDERLYING PRE-EXISTING PSYCHIATRIC DISABILITY AND HER COMPENSABLE CONDITION.

After considering these arguments in light of the record and applicable law, we affirm.

We begin by recognizing the limited nature of our review, which "is the same as that on appeal in any nonjury case [that is] 'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record,' considering 'the proofs as a whole,' 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) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). Due regard is given to the compensation judge's expertise and his "opportunity . . . [to] hear[] the witnesses [and] judge[] their credibility . . . ." Ramos v. M & F Fashions, 154 N.J. 583, 594 (1998) (internal citations omitted).

Under the Workers' Compensation Act (Act), N.J.S.A. 34:15-1 to -142, an employer is liable to an employee for disabling injuries sustained "by accident arising out of and in the course of employment." N.J.S.A. 34:15-7. The petitioner, of course, has "the burden of proof to establish all elements of [the] case. Thereafter, the burden to defeat [petitioner]'s claim and establish contrary facts and legal conclusions exonerating the employer or mitigating liability shift[s] to the employer." Bird v. Somerset Hills Country Club, 309 N.J. Super. 517, 521 (App. Div.), certif. denied, 154 N.J. 609 (1998).

Although not defined in the statute, an "accident" is "'an unlooked for mishap or an untoward event which is not expected or designed.'" Brunell v. Wildwood Crest Police Dep't, 176 N.J. 225, 236 (2003) (quoting Klein v. N.Y. Times Co., 317 N.J. Super. 41, 44 (App. Div. 1998) (internal citations omitted)). Furthermore, the petitioner must show both medical and legal causation. Lindquist v. Jersey City Fire Dep't, 175 N.J. 244, 259 (2003).

[P]roof of medical causation means proof that the disability was actually caused by the work-related event. Proof of legal causation means proof that the injury is work connected. It is sufficient in New Jersey to prove that the exposure to a risk or danger in the workplace was in fact a contributing cause of the injury. That means proof that the work related activities probably caused or contributed to the employee's disabling injury as a matter of medical fact. Direct causation is not required; proof establishing that the exposure caused the activation, acceleration or exacerbation of disabling symptoms is sufficient.

[Id. at 259 (internal citations omitted).]

On this score, even if a petitioner's disability developed from a pre-existing condition, it does not follow that the disability did not arise "out of the employment." See Sexton v. County of Cumberland/Cumberland Manor, 404 N.J. Super. 542, 555 (App. Div. 2009). "[E]mployees are 'not disqualified under the requirement that the injury arise out of the employment where the pre-existing condition is aggravated, accelerated or combined with the pre-existing disease or infirmity to produce the disability . . . .'" Ibid. (quoting Verge v. County of Morris, 272 N.J. Super. 118, 126 (App. Div. 1994)).

A petitioner must also show a disability. Burnell, supra, 176 N.J. at 237. Pursuant to N.J.S.A. 34:15-36:

"Disability permanent in quality and total in character" means a physical or neuropsychiatric total permanent impairment caused by a compensable accident or compensable occupational disease, where no fundamental or marked improvement in such condition can be reasonably expected.

In Perez v. Pantasote, Inc., 95 N.J. 105 (1984), the Supreme Court established a two-prong test to determine whether a petitioner has demonstrated a permanent disability under the statute.

[T]he employee must first prove by demonstrable objective medical evidence a disability that restricts the function of his body or its members or organs. Second, he must establish either that he has suffered a lessening to a material degree of his working ability or that his disability otherwise is significant and not simply the result of a minor injury.

[Id. at 118.]

"[A] subjective complaint of pain or discomfort without accompanying 'demonstrable objective medical evidence,' N.J.S.A. 34:15-36, does not satisfy a petitioner's burden of proving the existence of partial-permanent disability." Colon v. Coordinated Transp., Inc., 141 N.J. 1, 9-10 (1995) (emphasis added). So, for example, tests showing a diminution in a petitioner's range of motion, standing alone, are insufficient to meet the standard. Id. at 4.

"Unlike permanent partial disability, a finding of permanent total disability cannot be made unless the injured person cannot be reasonably expected to make a fundamental or marked improvement. To be final, the diagnosis must be made at a time when it may be presumed that the disability has become permanent." Ramos, supra, 154 N.J. at 597. "[U]nlike partial permanent disability, a necessary prerequisite for total permanent disability is the inability to work because of the compensable injury or illness." Portnoff v. New Jersey Mfrs. Ins. Co., 392 N.J. Super. 377, 388 (App. Div.), certif. denied, 192 N.J. 477 (2007)(emphasis added).

Furthermore, where there is evidence of a pre-existing condition, it is the interplay between the pre-existing condition and the petitioner's subsequent total permanent disability, as defined by the statute, that implicates the Fund's potential liability. "The Fund is liable when a pre-existing condition combined with a work-related accident or disease renders a person totally and permanently disabled." Walsh v. RCA/Gen. Elec. Corp., 334 N.J. Super. 1, 6 (App. Div. 2000). By the same token, N.J.S.A. 34:15-95(a) exempts the Fund from liability "[i]f the disability resulting from the injury caused by the person's last compensable accident in itself and irrespective of any previous condition or disability constitutes total and permanent disability."

"[T]o the extent any specific pre-existing injury or condition has been aggravated, activated or accelerated by the later compensable accidental injury the employer will be liable for the disability caused by the compensable injury including any aggravation, activation or acceleration." Zabita v. Chatham Shop Rite, 208 N.J. Super. 215, 222 (App. Div.), certif. granted, 107 N.J. 45 (1986), appeal dismissed, 107 N.J. 139 (1987). When a compensable accidental injury is the result of aggravation of a pre-existing condition, the Fund is only liable where the compensable accidental injury causes permanent, partial disability, which in conjunction with the pre-existing condition leads to permanent, total disability. Id. at 222-23. In that event, the Fund is liable only for that portion of the disability attributed to the pre-existing condition. Ibid.

Governed by these principles, we are satisfied the judge's findings and conclusions are supported by sufficient credible evidence in the record and comport with the applicable law. His eighty-six page oral decision demonstrates a comprehensive, discerning, and thoughtful review of all the medical testimony as well as of petitioner's testimony. It is clear to us that the judge made credibility determinations not only as between competing experts, but also within each expert's own testimony, to which we defer. Zahner v. Pathmark Stores, Inc., 321 N.J. Super. 471, 476 (App. Div. 1999).4 He accepted some opinions and rejected others, and he appropriately noted when his conclusions were supported by other evidence in the record. Finally, without deciding whether such proof is required, see N.J.S.A. 34:15-36; Perez, supra, 95 N.J. at 116, we simply note record evidence of objective symptoms of RSD/CRPS clinically observed by at least eight of Torres' treating and evaluating physicians. In short, we are convinced that the judge's findings and conclusions of law were supported by sufficient credible evidence in the record, and we find no basis to disturb them. Sheffield v. Schering Plough Corp., 146 N.J. 442, 461 (1996); R. 2:11-3(e)(1)(A).

Because we affirm the judge's decision that petitioner's work-related accident alone resulted in her permanent total disability under the statute, we also affirm his dismissal of the claim petition against the Fund. See Walsh, supra, 334 N.J. Super. at 6 (noting that the Fund is only "liable when a pre-existing condition combined with a work-related accident or disease renders a person totally and permanently disabled"); N.J.S.A. 34:15-95(a).

A

1 In March 2004, Torres began receiving Social Security disability benefits.

2 On July 23, 2003, Torres filed another claim petition, no. 2003-23459, alleging the same injuries as a result of occupational conditions, namely repetitive typing from March 16, 1998 to present.

3 The second petition of July 23, 2003, alleging an occupational claim, was dismissed because petitioner failed to meet her burden of proof. All of the physicians who found that petitioner suffers from a compensable permanent disability also found that this disability related to the events on January 18, 2003, and no evidence was submitted showing otherwise.

4 For example, the judge found that Dr. Tatarian's opinion that Torres' condition was not work-related was not credible as it contradicted his prior medical reports, one of which stated that her condition "may be triggered or exacerbated by minor repetitive trauma such as typing." Dr. Vanna similarly opined that petitioner's condition was not work-related but admitted that typing at work caused the onset of her symptoms. As the judge noted, Dr. Vanna's testimony demonstrated a lack of familiarity with the concepts of "accident" and "causation" as related to a workers' compensation claim.

The judge also found Dr. Tatarian's change of opinion at trial that Torres was not permanently and totally disabled based on the surveillance video to be not credible, because he so testified without reviewing her medical records from the previous four years.