TINA SCHOCK - v. MORRISTOWN MEMORIAL HOSPITAL/ATLANTIC HEALTH SYSTEMS Respondent-

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1658-09T21658-09T2

TINA SCHOCK,

Petitioner-Respondent,

v.

MORRISTOWN MEMORIAL

HOSPITAL/ATLANTIC

HEALTH SYSTEMS,

Respondent-Appellant.

____________________________

 

Argued May 12, 2010 - Decided

Before Judges C.L. Miniman and Fasciale.

On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, Claim Petition No. 2005-35837.

Stephen T. Fannon argued the cause for appellant (Capehart & Scatchard, P.A., attorneys; Mr. Fannon, of counsel; Maria L. Winters, on the brief).

Robert F. Hoyt argued the cause for respondent (Hoyt & Hoyt, P.C., attorneys; Mr. Hoyt, on the brief).

PER CURIAM

Respondent Morristown Memorial Hospital/Atlantic Health Systems (the Hospital) appeals from a November 18, 2009 order of the Division of Workers' Compensation granting petitioner Tina Schock's motion for medical and temporary disability benefits. After hearing testimony from Schock and two physicians and considering all the evidence, Judge Hutton found Schock's C4-5 and C7-T1 disc herniations to be related to a July 29, 2005 work accident and ordered the Hospital to provide medical treatment and pay temporary disability benefits from November 9, 2006 through February 17, 2007. We affirm.

The question before the compensation judge was whether the C4-5 and the C7-T1 disc herniations were caused by the July 29, 2005 work accident or a December 5, 2007 slip-and-fall accident. It was undisputed that earlier C5-6 and C6-7 disc herniations were caused by the work accident.

On July 29, 2005, Schock suffered a work-related injury while attending to a patient as an emergency room nurse. She went to the emergency room on August 1, 2005 with complaints of severe pain to her left arm and neck, and then sought conservative treatment over the next four months with Dr. Giordano. A magnetic resonance imaging (MRI) on August 13, 2005 demonstrated herniations at C5-6 and C6-7. Ultimately, Dr. Giordano recommended an anterior cervical disc fusion at both levels. However, Schock sought a second opinion from a neurosurgeon, Dr. John J. Knightly.

On November 21, 2005, Dr. Knightly performed a minimally invasive partial hemilaminectomy foraminectomy on the left on C5-6 and C6-7, providing relief to Schock's arm but not her neck. Thereafter, Schock received physical therapy and pain management treatment, but did not improve. In September 2006, Dr. Knightly recommended that Schock undergo a cervical fusion because she had weakness in her right arm. She also continued to have severe pain in her neck and arm. The fusion was delayed three months from November 9, 2006, to February 15, 2007, first because the anesthesiologist canceled the surgery and then because Schock suffered from unrelated asthma. Even though she could not work because of her neck disability, her temporary disability benefits were suspended until February 15, 2007, when the fusion was performed. It is undisputed that Schock subsequently developed swallowing problems related to the neck fusion. In June 2007, Schock was seen by Dr. Knightly relative to the swallowing problems and she continued to suffer from neck and arm pain.

Ten months after the neck fusion surgery, in December 2007, Schock slipped and fell on a driveway. She was diagnosed by the nurse practitioner with cervical spondylosis with myelopathy and a shoulder contusion. No medical tests were ordered, and she was instructed to call if the symptoms persisted. The compensation judge found Schock's testimony credible that she received no treatment except pain medication and heat for the contusion sustained in the fall.

Because she continued to have difficulty swallowing, Schock was admitted to Overlook Hospital and saw a new ear, nose, and throat (ENT) doctor, who ordered an MRI of her neck on April 15, 2008 and performed a video fluoroscopy of her throat. The radiologist at Overlook interpreted the MRI as showing "status post anterior spinal fusion of C5 and C7." There were no interval changes from the August 7, 2007 film and no abnormal intraspinal enhancement. Schock's ENT physician and Dr. Knightly were provided with copies of this report. Dr. Knightly ordered another MRI which was performed on July 7, 2008, and was also compared to the August 7, 2007 MRI. This radiologist found a right side foraminal disc herniation at C7-T1 but noted that C3-4 and C4-5 were unremarkable.

The cause of the C7-T1 disc herniation was disputed at trial. Dr. Knightly, who testified first, opined that the cervical fusions were a contributing factor in the development of the herniation at C7-T1, documented on July 7, 2008, because it was adjacent to the cervical fusions, a finding seen in patients with fusions. He also noted there was no herniation above the fusion on this MRI, but on an MRI performed on February 2, 2009, Schock had another disc herniation at C4-5 and some foraminal degeneration at C3-4. He also opined that the cervical fusions were a contributing factor in the development of the C4-5 herniation. He noted, "Adjacent level instability can clearly be associated with her previous surgery."

Dr. Knightly made no note of Schock's slip and fall until the day before he testified, when he saw it mentioned in an independent medical examination (IME) report. He acknowledged on cross-examination that a slip and fall on ice on a driveway could potentially be a competent cause for a disc herniation. However, if the slip and fall caused the C7-T1 herniation, Dr. Knightly opined that it would have shown up on the April 15, 2008 MRI. A traumatic herniation would happen in fairly close proximity to the fall. Because she had no evident herniation until July 7, 2008, he opined that it was caused by the fusion.

Dr. James G. Lowe, on the other hand, opined on behalf of the Hospital that the C7-T1 herniation was caused by the December 2007 slip and fall because Schock had new symptoms immediately after the fall in a different part of her right arm into the fifth digit, consistent with a C7-T1 herniation, such as increased pain in the neck not controllable by Vicodin, her normal pain medication, and new arm pain. However, Dr. Lowe did not have the April 15, 2008 films or report and admitted that a review of them might change his opinion on causation. He did acknowledge that spontaneous adjacent disc herniations can occur even years after a fusion.

Subsequent to their testimony, the parties provided both experts and an independent neuroradiologist, Dr. Andrew H. Shaer, with the April 15, 2008 films and asked them to issue supplemental reports. Dr. Shaer reported on March 6, 2009. He interpreted the films as demonstrating a very small central protruding disc herniation at C4-5 resulting in mild thecal sac impingement and a small right paracentral protruding disc herniation at C7-T1 resulting in mild thecal sac impingement with the herniated disc material extending into the right neural foramen at that level with likely impingement upon the right C8 nerve root. He also reviewed the July 7, 2008 films and found the C4-5 disc herniation stable, whereas the C7-T1 herniation had increased mildly.

Dr. Lowe issued his supplemental report on March 19, 2009. He agreed that the herniation at C7-T1 demonstrated on the April 15, 2008 films was slightly smaller than the one shown on the July 7, 2008 films. He found minimal bulging of the C4-5 disc. Dr. Lowe noted that he saw no reason to change his opinion on causation. He found the April 15, 2008, films to further substantiate his opinion with regard to the causal relationship between the fall and the C7-T1 herniation.

Dr. Knightly reviewed the MRI films and concluded in his April 30, 2009 supplemental report that the there was a "very small and difficult to see" disc herniation at C7-T1. He saw "no evidence of significant disk herniation or distortion to the root" on image 25 of the axial contrast-enhanced study. He also noted, "There are some osteophytic changes in the foramen. On some of the sagittal views, there is a question of a possible small disk herniation, though again I see very little evidence of this on the axial views." He did not further opine on causation but expressed that he would be happy to speak with the judge if she had any questions.

The compensation judge placed her decision on the record on October 26, 2009. In accepting the testimony of Dr. Knightly, she found that the C7-T1 and C4-5 herniations were caused by adjacent disc instability and were causally related to the work accident. The judge accepted Schock's testimony that she received virtually no treatment for the slip-and-fall accident, and found that Dr. Lowe agreed that an adjacent disc herniation could occur within months after the fusion. She found it significant that Dr. Lowe agreed that a patient is more susceptible to injury because of a prior fusion. Relying on the August 7, 2007 MRI, the judge found that the C4-5 herniation was related to the work accident.

In finding that the slip-and-fall accident did not constitute an intervening event, the judge explained that "[w]hen the primary injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury likewise arises out of the employment unless it is as a result of an independent intervening . . . cause attributable to the claimant's own intentional conduct." The judge did not find that Schock's slip-and-fall accident was "attributable to [her] own intentional conduct."

In awarding temporary disability benefits from November 9, 2006 through February 14, 2007, the compensation judge found that Schock was "not voluntarily non-compliant, but rather, the surgery could not be performed because of a medical problem." She acknowledged that the surgery had also been canceled by the anesthesiologist. This appeal followed.

The Hospital argues on appeal that there was no evidence in the record to find a causal connection between the work accident and the C7-T1 disc herniation. Specifically, the Hospital contends that the compensation judge failed to address Dr. Lowe's supplemental report, failed to draw a negative inference from Dr. Knightly's alleged unwillingness to address the impact of his review of the April 2008 MRI films on his opinion, and failed to find that the slip-and-fall accident was an intervening event breaking the chain of causation. The hospital also argues that ordering temporary disability benefits was in error because Schock was not able to proceed with the fusion due to an unrelated medical condition.

Our scope of review is limited. Generally, we are bound to those findings of a compensation judge which "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 "with due regard to the agency's expertise when such expertise is a pertinent factor." Manzo v. Amalgamated Indus. Union Local 76B, 241 N.J. Super. 604, 609 (App. Div.) (citing Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)), certif. denied, 122 N.J. 372 (1990); see also Brower v. ICT Group, 164 N.J. 367, 376 (2000)("We are bound by the factual findings of the compensation judge."); Lister v. J.B. Eurell Co., 234 N.J. Super. 64, 72-74 (App. Div. 1989) (discussing petitioner's burden and standard of proof and standards governing compensation court decisions and appellate review).

We first address the Hospital's arguments that the judge failed to consider the supplemental report of Dr. Lowe, and failed to draw a negative inference since Dr. Knightly allegedly refused to opine about causation after he reviewed the April 2008 MRI films. The Hospital relies, in part, on these two arguments to conclude that there is no evidence in the record to support the judge's decision on causation. We disagree.

At the end of the judge's opinion, the judge discussed the supplemental reports of Drs. Knightly, Lowe, and Shaer. The judge said, "I had these." Each was admitted into evidence without objection. In acknowledging that the supplemental reports were in her file for several months, the judge said, "I reviewed all records and all reports and testimony that were in the file." Clearly, the judge had the reports and considered them. There is nothing in the record to suggest that Dr. Knightly refused to address any questions asked of him. Dr. Knightly's supplemental report was written after he reviewed the April 20, 2008 MRI. He never refused to opine further about causation; in fact, he states, "I hope this information clears up any questions. Please don't hesitate to contact me if I can be of any further assistance. I would be happy to talk to [the judge] if she has any further questions." A negative inference was unwarranted.

There is sufficient credible evidence in the record as a whole to support the causation findings of the compensation judge. She found the testimony of Schock and Dr. Knightly credible. She found the testimony of Dr. Lowe equivocal. She considered the supplemental reports of Drs. Knightly, Lowe and Shaer. After reviewing the April 20, 2008 MRI, Dr. Knightly found the C7-T1 disc herniation to be very small and difficult to see. In image number twenty-four, he saw no significant herniation or distortion of the root. There was virtually no treatment for the slip-and-fall accident, and Dr. Lowe agreed that an adjacent disc herniation could occur within months after the fusion. Dr. Lowe agreed that a patient is more susceptible to injury because of a prior fusion. Relying on the August 7, 2007 MRI, the judge found that the C4-5 herniation was related to the work accident. There is sufficient credible evidence to support the finding that the previous neck surgeries and fusion created instability of the spine leaving Schock susceptible to further herniations "whether spontaneous or arising out of trauma."

We now turn to the Hospital's argument that the slip-and-fall accident constituted an intervening cause breaking the chain of causation. We disagree.

The compensation judge correctly found that the slip and fall did not constitute an intervening cause. The leading worker's compensation law treatise, Larson's Workmen's Compensation Law, provides the guidelines to be followed when analyzing the so-called second injury. In introducing his discussion on the range of compensable consequences, Larson states, "When the primary injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury likewise arises out of the employment, unless it is the result of an independent intervening cause attributable to claimant's own intentional conduct." Arthur Larson, Larson's Workmen's Compensation Law, Chapter 10 Scope (2009). Regarding compensable injuries increasing vulnerability, Larson says:

[E]ven if the employment-weakened member does not actually cause the subsequent accident, it may render the results of that accident compensable if the weakness made the limb more susceptible to refracture. The same principle has been applied to hearts, backs, and knees made more vulnerable by the compensable injury, to burn scars increasing the risk of cancer, and to recurrence of hernia.

In these and various related cases[,] the second injury appears to have been purely accidental, and no substantial question of independent intervening cause based on the claimant's conduct has figured in the decision.

[Id. at 10.06(2) (footnotes omitted).]

This court has adopted this rule. In Amey v. Friendly Ice Cream Shop, 231 N.J. Super. 278 (App. Div. 1989), we stated:

[C]ompensability can be defeated by a certain degree of employee misconduct, and . . . that degree is something beyond simple negligence, and can best be described as an intentional violation of an express or implied prohibition in the matter of performing the act.

 
[Id. at 284 (internal quotations omitted).]

Here there is no evidence that the slip and fall was a result of Schock's intentional conduct or anything other than simple negligence.

Lastly, the Hospital argues that the judge erred by awarding temporary disability benefits from November 9, 2006 through February 17, 2007 because the delay in proceeding with the fusion was due to Schock's asthma flare-ups. We disagree.

We have held previously that:

The Workers' Compensation Act is social legislation and is liberally construed to accomplish its beneficent purpose of providing coverage to as many workers as possible. Employers take their employees as they find them, with all of the pre-existing disease and infirmity that may exist. Accordingly, employees 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 for which compensation is sought.

[Sexton v. County of Cumberland/Cumberland Manor, 404 N.J. Super. 542, 555 (App. Div. 2009) (internal citations and quotations omitted).]

Schock cites N.J.S.A. 34:15-12 for the proposition that temporary disability benefits are payable while she is out of work, until such time as a treating physician states she is able to resume work, or has reached maximum medical improvement. There is no evidence that she was able to return to work during the three-month delay of the fusion surgery. Nor is there any evidence that she was at maximum medical improvement at that time.

While we were unable to locate any New Jersey case directly on point, other jurisdictions have held that when treatment for the original work related injury is delayed due to unrelated conditions, the claimant was entitled to continued disability benefits during the entire period. See Thomas v. Burggraf Restoration, 31 P.3d 402, 405 (Okla. Civ. App. 2001) (the employer was required to continue paying total temporary disability benefits while the claimant's surgery was delayed due to his low-platelet count, a non-work-related condition); Workmen's Comp. Appeal Bd. v. Chamberlain Mfg. Corp., 336 A.2d 659, 661-62 (Pa. Commw. Ct. 1975) (holding that the employer had not met its burden of proving that the claimant's failure to undergo surgery, due to his unrelated, portal cirrhosis condition that rendered surgery impracticable, was unreasonable or that his disability was no longer casually related to his compensable injury); Orr v. Elastomeric Prods., 474 S.E.2d 448, 449 (S.C. Ct. App. 1996) (finding that although claimant's pregnancy indirectly prolonged the period during which she was unemployable, it did not change the fact that it was her work-related injury, not the pregnancy, than initially rendered her unable to work); Wood v. Fletcher Allen Health Care, 739 A.2d 1201, 1205-06 (Vt. 1999)( claimant was due continued disability benefits even though her pregnancy delayed work-related surgery; original injury, not pregnancy caused the need for surgery).

The compensation judge correctly ordered continued temporary disability benefits from November 9, 2006 through February 17, 2007, "the period of time when [Schock] was unable to proceed with an authorized anterior fusion at C5-6 and C7 because of asthma flare-ups unrelated to the work accident." Schock did not refuse treatment, there is no evidence that she was able to return to work or that she was at maximum medical improvement during the brief delay in her neck surgery. Her asthma condition was temporary and beyond her or her doctor's control.

 
Affirmed.

The November 18, 2009 order does not resolve all the claims because the motion judge said she was reserving the issue of "back temp" for her final decision. We treat the appeal of temporary benefits as a final judgment and therefore appealable as of right. Della Rosa v. Van-Rad Contracting Co., 267 N.J. Super. 290, 293-94 (App. Div. 1993).

This new arm pain was based on Dr. Lowe's examination of Schock, not specific medical notes made at the time of her fall.

(continued)

(continued)

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A-1658-09T2

July 2, 2010