JOANA FEITEIRA, Petitioner-Respondent v. KEEBLER CORPORATION

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2912-06T32912-06T3

JOANA FEITEIRA,

Petitioner-Respondent,

v.

KEEBLER CORPORATION,

Respondent-Appellant,

v.

SECOND INJURY FUND,

Respondent-Respondent.

______________________________

 

Submitted February 25, 2008 - Decided

Before Judges S.L. Reisner and Gilroy.

On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition No. 1998-7122.

Pietras Saracino Smith, L.L.P., attorneys for appellant (Benjamin F. Smith, of counsel; Jennifer C. Martin, on the brief).

Law Offices of Gill & Chamas, L.L.C., attorneys for respondent Joana Feiteira (William P. Mikita, Jr., on the brief).

Anne Milgram, Attorney General, attorney for respondent Second Injury Fund (Lewis Scheindlin, Assistant Attorney General, of counsel; Dolores M. McNamee, Deputy Attorney General, on the brief).

PER CURIAM

Keebler Corporation (Keebler) appeals from a December 21, 2006 final judgment of the Workers' Compensation Court finding Keebler's employee, petitioner Joana Feiteira, totally and permanently disabled as a result of a compensable injury. Because we find that the decision of the Workers' Compensation judge was supported by substantial credible evidence, we affirm.

I

Petitioner, a machine operator, was injured at work on February 26, 1997, when she slipped on cookie crumbs on the floor, hit her head and was knocked unconscious. She suffered injuries to her shoulder, back and neck. According to petitioner, in 1997, after four months of unsuccessful physical therapy, she had shoulder surgery. The surgery left her dominant right arm useless. At the Workers' Compensation hearing, the judge observed on the record that petitioner's right arm was swollen, was "drastically blue" in color and appeared to be painful, and petitioner's right hand was much colder than her left hand. Petitioner also testified that she suffered severe shooting pains in her neck, and a feeling like "pins and needles" throughout her body, severe enough that at times she could not wear clothing. Her ability to walk was limited, and she suffered from psychiatric problems.

At Keebler's urging, petitioner returned to work in 1997, but she was not able to do anything and stopped working after a few weeks. She has not worked since then. In 1999, she had neck surgery, which was not helpful in relieving her pain. After that, she had surgery to insert a dorsal column stimulator, and she had nerve block injections. Petitioner's husband corroborated her testimony concerning the extent of her disability.

During petitioner's testimony, Keebler's attorney showed portions of a surveillance video purporting to show petitioner using her right arm. The judge discounted much of the video, indicating on the record that the video either was unclear or did not show what counsel claimed it showed.

Dr. Theodora Maio examined petitioner and diagnosed her as having sustained "multi-level disc herniations" to her cervical spine, restricted range of motion of her shoulder, "an impingement syndrome, a rotator cuff tendonitis," and "complex regional pain syndrome (RSD)" of the right arm "with marked loss of range of motion." She also diagnosed "right sciatic neuralgia" as a result of a disc bulge at L-5. According to Dr. Maio, all of the injuries were attributable to the fall on February 26, 1997, including an aggravation of a pre-existing back injury from 1992. She noted that prior to the 1997 accident, petitioner "had been able to work and was functional." In addition to petitioner's physical limitations, Dr. Maio testified that wearing a Duragesic patch containing pain medication "can alter mental capabilities." Dr. Maio testified that as a result of all of her injuries, petitioner was 100% disabled.

Petitioner also presented testimony from Dr. Bruce Johnson, who was board certified in neurology and psychiatry. He examined petitioner in 2001 and 2004. He diagnosed her as having "right suprascapular and auxilliary nerve neuropathy" following her shoulder operation, and RSD of the "right upper extremity," as well as cervical radiculopathy. Dr. Johnson explained that RSD

is a neurological disorder affecting the parasympathetic nerve chain, which is next to the spinal cord, which controls the diameter of vessels, therefore, circulation.

He also explained that RSD could cause skin and muscle changes, wasting of the muscles and could spread from the hand to the shoulder. He testified that a person with RSD

can have good days and bad days. Sometimes people seem to function okay for a day and then usually the worst days are worse than the better days. So that to the person who hasn't seen a lot of RSD, it can look like a person is malingering, and that is not my experience.

According to Dr. Johnson, the "classical signs" of RSD include "extreme sensitivity to light touch . . . bluish tint to the skin. Weakness [and] swelling." RSD is "very debilitating" and the physical limitations it imposes frequently also result in depression. He attributed the RSD to petitioner's 1997 fall at work and the subsequent surgery. He attributed her severe depression to "the accident and the RSD." He diagnosed petitioner as 100% disabled as a result of the RSD and the depression. He testified that either condition alone would also result in 100% disability. While some pre-existing disability could be attributed to her 1992 lower back injury, Dr. Johnson testified that he could not apportion it. However, petitioner would be 100% disabled due to the RSD, even without the back injury.

Keebler presented testimony from a psychiatric expert, Dr. David Scasta. He initially diagnosed petitioner with severe major depressive disorder with psychotic features and panic disorder. He believed it was "accident related" and caused a 30% disability. However, because petitioner was very melodramatic in her presentation and appeared to have a "histrionic personality," he recommended to the insurer that she be placed under surveillance to determine if she was exaggerating her symptoms.

Dr. Scasta testified that he had seen defendant's reports of the surveillance videos and still photos taken from the videos, but he had not seen the videos themselves. He concluded that there was an element of malingering or exaggeration in petitioner's claims. However, he admitted that if the reports of the videos were incorrect, it "may very well change my opinion." He also testified that, because of petitioner's underlying histrionic and anxious personality, physical injuries would have a magnified psychological effect on her.

Keebler also presented testimony from Dr. Kenneth Peacock, an expert in orthopedic surgery. He evaluated petitioner between August 1997 and May 2004. He diagnosed her as having 12 1/2% disability due to her lumbar spine injury; however, he attributed only 1% of that to the prior 1992 injury. He also found 12 1/2% disability due to her cervical spine, and 7 1/2% due to her right shoulder. However, after seeing still photos taken from the surveillance videos he reduced his evaluation of the neck and lumbar spine to 10% disability each. He continued to believe that only 1% of her disability was pre-existing. He did not believe she had RSD.

Dr. Leonard Eisenberg, a neurologist, also testified for Keebler. He examined petitioner and found no neurologic symptoms in her back, neck or shoulder, including no diagnosis of RSD. He based the latter diagnosis in part on the fact that petitioner's right arm was not as sensitive to touch as he would have expected it to be. However, he admitted that when he examined her, she was wearing a Duragesic patch and was taking Oxycontin, both of which were used to relieve pain. While he testified that her left arm seemed more sensitive than her right arm on that day, an observation allegedly inconsistent with RSD of the right arm, he admitted that at the time he examined her she had a broken left wrist.

II

In a comprehensive oral opinion placed on the record on August 28, 2006, Judge Dietrich credited the testimony of petitioner and her experts. She found petitioner to be a "very credible" witness, and she concluded that respondent's surveillance videos did not prove fraud.

I was particularly impressed by the videos of the petitioner driving because it was evident that although she could drive a short distance, she was incapable of making the purchases by herself. She took someone with her who in fact pushed the cart and made the purchases, and loaded the car.

She found Dr. Eisenberg not credible and "disingenuous" in his testimony that petitioner did not have RSD. Judge Dietrich accepted the diagnosis of petitioner's experts that she had RSD. The judge also relied on her own observations of petitioner's right hand on the two occasions that she testified.

[Petitioner's] hand was blue. Her fingers were swollen. They were like sausages, and I could tell a difference in temperature of the right hand which was colder than the left.

The judge concluded that due to "orthopedic, neurological and neuropsychiatric problems," petitioner was "100 percent totally and permanently disabled causally related to the accident of February 26, 1997."

Judge Dietrich noted that although petitioner was injured in 1992 and received some treatment for that injury, she thereafter returned to work "and was working full time at the time of her accident." The judge cogently explained why the Second Injury Fund did not belong in the case, due to the minimal prior injury to petitioner's lower back in 1992 (estimated by Dr. Peacock at only 1%), the primary role of the neck and shoulder injuries in petitioner's disability, and the inability of the psychiatric witnesses to quantify any prior psychiatric problem. She concluded that all of petitioner's 100% disability was attributable to the 1997 accident.

III

On this appeal, Keebler raises the following points for our consideration:

POINT I: THE TRIAL COURT'S DECISION MUST BE REVERSED BASED UPON THE STANDARD OF REVIEW ON APPEAL IN WORKERS' COMPENSATION CASES.

POINT II: THE COURT ERRED IN FINDING THE PETITIONER TO BE TOTALLY AND PERMANENTLY DISABLED AS A RESULT OF THE FEBRUARY 26, 1997 ACCIDENT.

POINT III: IF THE PETITIONER WAS PROPERLY FOUND TO BE TOTALLY AND PERMANENTLY DISABLED THE COURT ERRED IN NOT INCLUDING THE SECOND INJURY FUND AS RESPONSIBLE FOR AT LEAST A PORTION OF THE OVERALL FINDING OF TOTAL DISABILITY AS THE PETITIONER CLEARLY HAD ORTHOPEDIC, NEUROLOGICAL AND PSYCHIATRIC DISABILITY THAT PRE-EXISTED THE FEBRUARY 26, 1997 ACCIDENT.

A. The Petitioner Clearly Had Pre-Existing Orthopedic And Neurological Disability.

B. The Petitioner Had Pre-Existing Psychiatric Disability.

C. The Second Injury fund Should Be Responsible For At Least A Portion Of The Trial Court's Overall Finding Of Disability.

Having reviewed the record, including the entire trial transcript, we conclude that these arguments are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), and we affirm substantially for the reasons stated in Judge Dietrich's comprehensive oral opinion. We add the following comments.

Our review of Judge Dietrich's decision is limited to determining whether it was supported by substantial credible evidence. Close v. Kordulak Brothers, 44 N.J. 589, 599 (1965). We conclude that her decision is amply supported by the record. We find no basis in this record to disturb the judge's credibility determinations with respect to petitioner and her expert witnesses. See Id. at 599; De Angelo v. Alsan Masons, Inc., 122 N.J. Super. 88, 89-90 (App. Div.), aff'd o.b., 62 N.J. 581 (1973). In light of the expert testimony that petitioner was totally disabled by the RSD and related symptoms caused by the 1997 accident, as well as by the major and severe depression attributable to that physical disability, Judge Dietrich correctly rejected Keebler's efforts to implead the Second Injury Fund. See N.J.S.A. 34:15-95(a).

Affirmed.

 

On appeal, we permitted Keebler to implead the Second Injury Fund, which also filed a brief.

While Dr. Scasta suspected fraud, he was unable to explain why, if petitioner's goal was to profit from her injuries, she did not file a workers' compensation petition in connection with the 1992 work-related injury to her low back.

(continued)

(continued)

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A-2912-06T3

March 14, 2008