MARIANNE RUSSO v. SCOTT SCHAFFER, DMD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A-2950-12T4

A-2973-12T4

A-2977-12T4

MARIANNE RUSSO, A-2948-12T4

A-2949-12T41

Petitioner-Appellant,

v.

SCOTT SCHAFFER, DMD,

Respondent-Respondent.

_____________________________

MARIANNE RUSSO,

Petitioner-Appellant,

v.

ELITE DENTAL COSMETICS,

Respondent-Respondent.

_____________________________

MARIANNE RUSSO,

Petitioner-Appellant,

v.

DR. JOHN J.K. CHOI,

Respondent-Respondent.

________________________________________________________________

August 8, 2014

Submitted May 13, 2014 Decided

 

Before Judges Espinosa, Koblitz and O'Connor.

 

On appeal from the Department of Labor, Division of Workers' Compensation, Docket Nos. 2007-1880, 2007-1893, 2007-1890, 2007-1891, 2007-2187, and 2007-23848.

 

Ramp, Renaud & Hlavenka, LLC, attorneys for appellant (Edward J. Ramp, of counsel; Jeffrey Zajac, on the brief).

Law Offices of Linda S. Baumann, attorneys for respondent Scott Schaffer, D.M.D. (A-2269-12 and A-2973-12) (Venus I. Trifari, on the brief).

 

Rotella & Soriano, attorneys for respondent Scott Schaffer, D.M.D. (A-2950-12) (Gerald D. Rotella, on the brief).

Galen W. Booth, attorney for respondent Scott Schaffer, D.M.D. (A-2977-12).

 

John J. Hoffman, Acting Attorney General, attorney for respondent Second Injury Fund (A-2948-12) (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Linda Lockard-Phillips, Deputy Attorney General, on the brief).

 

Emmi & Emmi, P.C., attorneys for respondent Dr. John J.K. Choi (A-2949-12) (Hal H. Neeman, on the brief).

 

PER CURIAM

Petitioner Marianne Russo worked as a dental hygienist for three different dentists from 1991 through 2007 and filed six separate claim petitions with the Division of Workers' Compensation, alleging she was totally and permanently disabled. She appeals from a judgment entered by a judge of workers' compensation that found her only compensable claim to be for her right carpal tunnel syndrome and rejected her claim of total and permanent disability. We affirm.

The petitioner in a workers' compensation case must prove both legal and medical causation, Lindquist v. City of Jersey City Fire Dep't, 175 N.J. 244, 258-59 (2003), "by a preponderance of the probabilities." Perez v. Monmouth Cable Vision, 278 N.J. Super. 275, 282 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995). "[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." Lindquist, supra, 175 N.J. at 259 (citation omitted). "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." Lesniewski v. W.B. Furze Corp., 308 N.J. Super. 270, 279 (App. Div. 1998).

Russo worked for Dr. Scott Schaffer from August 1991 through March 2005. In her claim petitions against him,2 she alleged that, as a result of her employment, she suffered left and right carpal tunnel syndrome, right shoulder disability, anxiety, and depression. She also filed claim petitions against Elite Dental Cosmetics (Elite), where she worked for Dr. Mercedes Porro from September 2005 to May 25, 2007, and Dr. John J.K. Choi, for whom she worked from January to May 25, 2007. The six petitions were consolidated for the purposes of trial.

Russo's duties as a dental hygienist included the following: reviewing patient histories and charting existing dental needs; providing oral hygiene instructions; performing prophylaxis and scaling and root planing under anesthetic; placing antimicrobial long-term medicaments subgingivally; applying preventatives and top sealants; placing matrix bands; taking, developing, and interpreting radiographs; scheduling appointments; and answering the phone. She testified that the nature of her work required her to use her "hands with pinch force on the instrument to remove . . . plaque and calculus, coronal and apical to the gum line and that requires basically constant flexion and extension of the wrist [and] the shoulder, abduction and prolonged periods of static postures."

Russo alleged that she began having problems with her right wrist two or three years after she started working for Dr. Schaffer. She sought treatment with Dr. Thomas Nucatola, a rheumatologist who had diagnosed her with fibromyalgia, and who gave her cortisone injections, medications, and a splint for the wrist pain.

In March 2005, Russo left her employment with Dr. Schaffer, and in June 2005, she began working part-time for Dr. Porro at Elite in two offices, Edison and Elmwood Park. Russo testified that her depression and anxiety got worse during her employment with Elite because her pain increased and "there were some problems that developed in [her] relationship with Dr. Porro which made [her] feel very depressed and sad." Eventually, she only worked in the Edison office.

While she was working for Dr. Porro, she also worked for Dr. John J.K. Choi from January 2007 through May 24, 2007. Her employment with Dr. Porro ended on May 25, 2007. Russo described her last day: Dr. Porro "was just screamin' at me because I was workin' for Dr. Choi like I was selling secrets to the Russians." Russo claimed that Dr. Choi and his patients in the waiting room heard Dr. Porro screaming at her.

When asked what was the cause of all her stress, anxiety, and depression at the time, Russo testified,

Working for years with pain, having it get worse, pushing myself to work. You know what it's like to work with pain all the time not sleeping? I worked as long as I could and the increase in the emotional stress . . . when I was trying to do the very best I could . . . for that practice. I had a lot . . . invested in it myself, okay? And I felt humiliated.

 

Russo acknowledged that she suffered depression and anxiety before she started working for Dr. Porro. However, the combination of the stress and the pain increased with her employment at Elite. She testified that the termination of her relationship with Elite and with Dr. Porro "exacerbated" her depression and anxiety, stating she was "devastated" and "humiliated" by Dr. Porro's treatment in discharging her in front of patients. Her employment terminated by Dr. Porro, Russo left her employment with Dr. Choi on May 25, 2007, and never returned to work.

Russo's psychiatrist, Susan Blank, M.D., began treating her for depression approximately seven years earlier, in July 2000. Dr. Blank saw Russo a few times for the initial sessions, which then decreased to once every two or three months for about four or five years. At the end of 2005, Dr. Blank began to see her much more frequently, eventually every other week, because the pain in her wrist and arm worsened and spread up to her shoulder to the point that she could barely raise her arm. Dr. Blank opined,

the work caused the pain and, I believe, the injuries, and as a result, her depression secondary to the injuries was, in a way, secondary to work. And accepting the prospect of having to give this up, which is something she loved, that contributed tremendously to her depression as well.

 

In May 2008, Russo, Elite, and Dr. Choi entered into a consent order in which Elite and Dr. Choi agreed to authorize Dr. Joseph Barmakian to provide necessary treatment to Russo that was causally related to her employment with those parties and to provide temporary disability benefits to Russo.

On May 29, 2008, Dr. Barmakian diagnosed Russo with cervical spondylosis, right shoulder impingement syndrome, right elbow lateral epicondylitis, and bilateral carpal tunnel syndrome. He recommended physical therapy for the right shoulder, an MRI scan of the cervical spine,3 an elbow strap for the right elbow, and right carpal tunnel release. Russo underwent surgery for right carpal tunnel release on July 11, 2008, and received physical therapy through December 11, 2008.

A surveillance video taken approximately two and one-half months after her surgery showed Russo shopping, carrying packages, lifting large plants with her hands, and gardening without much difficulty.

Dr. Barmakian discharged Russo on December 8, 2008, based on the results of an examination, his review of the videotape,4 and a functional capacity evaluation. He opined that Russo had reached "the maximal medical improvement from care and that no further curative treatment is indicated." He cleared her to return to work without restrictions. However, after she received additional treatment from Dr. Barmakian and an MRI was taken in 2011, Dr. Barmakian opined that her symptoms had worsened and that she needed further treatment "to the right shoulder including injection, physical therapy, and possible surgical decompression of the shoulder." He also noted that she continued to require treatment for her cervical spondylosis.

Russo presented testimony from an expert in psychiatry and neurology, Vin Gooriah, M.D., and an expert in orthopedics, Arthur Becan, M.D.

Dr. Gooriah opined that Russo suffered from a neuropsychiatric disability of "65% of partial total," and a neurologic disability of "55% permanent partial of total for right plexopathy with CRPS [chronic regional pain syndrome]; 40% to each statutory hand for Carpal tunnel syndrome; 15% of partial total for Cervical Myofascial pain with migraine headache; and 15% of partial total for Lumbar Myofascial Pain Syndrome." Dr. Gooriah concluded, "Considering all factors and limitations in her social and occupational activities, as an industrial unit, Mrs. Marianne Russo is considered totally and permanently disabled."

Dr. Gooriah diagnosed Russo as having "major depressive disorder secondary to her occupational exposures [and] anxiety disorder secondary to the occupational exposures." He identified the stressors that contributed to this condition as "[n]umber one, it was the pain in itself causing the depression. . . . She [] wasn't employed, she had financial stresses." He testified that his opinion was unaltered by the fact that Russo was first treated for depression in 2000.

Russo's expert in orthopedics, Dr. Becan, admitted he had no specific knowledge of the work that Russo performed as a dental hygienist, had not read any literature regarding the work, and had not viewed the surveillance video. Still, he opined that Russo sustained a work-related injury and that "the duties of employment [were] the competent producing factor for [her] subjective and objective findings." He listed those impairments as follows:

1. For the cervical spine, 57 1/2% of partial total due to residuals of herniated C4-C5, C5-C6, and C6-C7 discs confirmed on MRI with right cervical radiculopathy confirmed on EMG/NCV study.

 

2. For the lumbar spine, 45% of partial total due to residuals of degenerative disc disease with a right L5-S1 radiculopathy confirmed on EMG/NCV study.

 

3. For the right shoulder, 42% of partial total due to residuals of a subacromial impingement syndrome with rotator cuff tendinopathy confirmed on MRI.

 

4. For the right elbow, 27 1/2% to the right arm due to residuals of a medial and lateral epicondylitis of the right elbow.

 

5. For the right wrist, 37 1/2% to the right hand due to residuals of a carpal tunnel syndrome necessitating carpal tunnel release.

 

6. For the left wrist, 27 1/2% to the left hand due to residuals of a left carpal tunnel syndrome.

 

7. For the right upper extremity, 37 1/2% to the right arm due to a complex regional pain syndrome.

 

Joseph Corona, M.D., an expert in orthopedics and orthopedic surgery, testified on behalf of Dr. Choi. Dr. Corona opined that Russo had a disability estimated at 5% partial total based on right carpal tunnel syndrome requiring surgical management. Dr. Corona opined that "permanency is stated totally without respect to cause because of the chronicity of her problem and because of the complicating hypothyroidism." Dr. Corona found no permanent disability with respect to her left hand and right shoulder. After viewing the September 23, 2008 surveillance video, Dr. Corona testified that the video reinforced his initial opinion because Russo appeared to be making full functional use of her right arm.

Charles D. Semel, M.D., a psychiatrist retained by Elite, examined Russo and prepared a written report that was received in evidence. Dr. Semel opined that Russo suffers from major depressive disorder, "parallel [to] her increasing orthopedic difficulties and loss of physical function rendering her unable to work." With regard to her relationship with Dr. Porro, Dr. Semel wrote,

The interaction with Dr. Porro is described as upsetting and further intensifying her feelings of upset. This interaction appears to be minimal in impact compared to the chronic pain syndrome that continues to affect her 24 hours a day, seven days a week. So too, the limitations imposed by her orthopedic changes principally from fibromyalgia render her physically disabled. Her disability does not lie in the psychiatric area and the depressive reaction long preceded the upset at the end of her work with Dr. Porro. Her depressive illness is causally unrelated to the workplace but is related to her chronic medical and orthopedic elements of dysfunction and pain.

 

In her written decision, the judge noted that Dr. Becan was the only witness offered by Russo to prove that her orthopedic disabilities were work related. The judge found his testimony to be a "net opinion" that was "based on very little knowledge of the petitioner's occupation or alleged injuries." The judge cited specific examples of Dr. Becan's testimony that reflected an "obvious lack of knowledge as to specifically what the petitioner did with her body during the course of her employment." She noted further that Dr. Becan testified as to conditions being causally related to the employment that differed from what Russo alleged in her claim petitions. Observing that "the reasons and mechanics of a medical witness' assertion are more important than the assertion," the judge found that Dr. Becan's lack of knowledge "and his lack of explanation as to how and in what manner the employment caused the disability leave an irreparable void in the proofs." She concluded she could give no weight to Dr. Becan's opinion.

The judge found other evidence in the record to support Russo's claim of orthopedic disabilities. All the examining doctors found objective evidence of the right carpal tunnel syndrome. Dr. Barmakian, the authorized treating doctor for Russo, opined that the right carpal tunnel syndrome was related to her employment. Russo testified that she continues to have a burning sensation in her right wrist, a weak grasp, and problems with fine dexterity. The judge also noted that Elite and Dr. Choi had entered into a consent order to pay for treatment for carpal tunnel syndrome, including surgery,5 and provided for more than thirty weeks of temporary disability.

The judge concluded that the carpal tunnel syndrome in the right hand was work related but that Russo had failed to show that her other physical complaints were work related. She found Russo entitled to disability for the right carpal tunnel syndrome to the extent of 20% of the right hand, which resulted in a total of $9310, and allocated 60% of that amount to Elite and 40% to Dr. Choi.

Turning to Russo's claim of psychiatric disability, the judge found no psychiatric disability related to a hostile workplace or the distress caused by her last day of work. She focused then on the contention that Russo suffered from depression and anxiety in part because of her chronic pain and explicitly "accept[ed] the diagnoses of Dr. Blank and Dr. Gooriah that petitioner is suffering from depression and anxiety as a result of chronic pain." The judge stated plaintiff had "myriad physical problems" for which she has been treated since 1993, including fibromyalgia, which Russo testified "makes you pretty much hurt everywhere." However, the judge noted the only compensable condition proven was right carpal tunnel syndrome, and "[t]here is no evidence that petitioner's pain as a result of her carpal tunnel [syndrome] has materially contributed to the chronic pain which is causing her anxiety and depression." Accordingly, the judge dismissed Russo's claim for psychiatric disability.

The judge entered four judgments of dismissal as to Dr. Schaffer. Due to the absence of a finding of total disability, Russo's claims regarding the Second Injury Fund were dismissed.

In her appeal from these judgments, Russo presents the following arguments:

POINT I

 

THE COMPENSATION JUDGE COMMITTED PLAIN ERROR BY APPLYING THE GOYDEN[6] PSYCHIATRIC INJURY STANDARD, A STANDARD WHICH APPLIES TO "MENTAL-MENTAL" CASES, AND NOT THE INSTANT CASE, WHERE THE PHYSICAL DISABILITY PRECEDED AND CAUSED THE PETITIONER'S MENTAL DEPRESSION.

 

POINT II

 

UNDER THE LINDQUIST STANDARD APPLICABLE TO PHYSICAL DISABILITIES AND SUBSEQUENT MENTAL DEPRESSION, THE RECORD BELOW DEMONSTRATES THAT THE PETITIONER SATISFIED HER BURDEN OF PROOF WITH RESPECT TO HER CLAIM FOR PERMANENT TOTAL DISABILITY.

 

POINT III

 

THE DISMISSAL OF THE PETITIONER'S CLAIMS AGAINST THE SECOND INJURY FUND SHOULD BE REVERSED.

 

POINT IV

 

ALTERNATIVELY, THIS MATTER SHOULD BE REMANDED TO THE COMPENSATION COURT FOR FINDINGS OF FACT AND CONCLUSIONS OF LAW UTILIZING THE APPROPRIATE LEGAL STANDARDS.

After considering these arguments in light of the record and applicable legal principles, we are unpersuaded that any argument has merit and are satisfied that Points III and IV lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Our review of judgments in workers' compensation cases is limited to "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." Lindquist, supra, 175 N.J. at 262 (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)); see also Kovach v. Gen. Motors Corp., 151 N.J. Super. 546, 549 (App. Div. 1978) ("It must be kept in mind that judges of compensation are regarded as experts."). We therefore defer to both 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.'" Perez, supra, 278 N.J. Super. at 282 (quoting Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 484 (1974)); see also Close, supra, 44 N.J. at 599 (stating that "in the case of agency review, we give due regard also to the agency's expertise where such expertise is a pertinent factor").

I

We first consider Russo's challenge to the judge's determination that the only physical injury that was work related was her right carpal tunnel syndrome. Dr. Becan was the only witness offered by Russo to prove that her orthopedic disabilities were work related.

Workers' compensation provides for compensation to employees for injuries caused "by any compensable occupational disease arising out of and in the course of [their] employment." N.J.S.A. 34:15-30. "Compensable occupational disease" includes

all diseases arising out of and in the course of employment, which are 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. 34:15-31(a) (emphasis added).]

 

The term "a material degree" is defined as "an appreciable degree or a degree substantially greater than de minimis." N.J.S.A. 34:15-7.2; Fiore v. Consol. Freightways, 140 N.J. 452, 473-74 (1994). In determining whether there is a nexus between the injury or disease and the occupational hazards, "[c]ompensation judges should be particularly skeptical of expert testimony that supports or contests a finding of causation on the basis of reasoning inconsistent with prevailing medical standards." Hellwig v. J.F. Rast & Co., 110 N.J. 37, 54 (1988).

Plaintiff bore the burden of proving that her alleged disabilities were causally related to occupational conditions by a preponderance of the evidence. Laffey v. City of Jersey City, 289 N.J. Super. 292, 303 (App. Div.), certif. denied, 146 N.J. 500 (1996). However, the only witness Russo presented to prove that her orthopedic injuries were work related was Dr. Becan. As we have noted, the judge found he had "very little knowledge of the petitioner's occupation or alleged injuries," rendering his testimony a net opinion. The judge cited specific aspects of Dr. Becan's testimony that supported this conclusion. Her conclusion that his testimony could not be relied upon to determine what orthopedic injuries were work related was supported by the record and is, therefore, entitled to our deference. Bellino v. Verizon Wireless, 435 N.J. Super. 85, 94-95 (App. Div. 2014).

After excluding Dr. Becan's testimony, the judge relied upon the agreement of all examining doctors that there was objective evidence of right carpal tunnel syndrome, Russo's own testimony, and Dr. Barmakian's opinion regarding a nexus to conclude that the right carpal tunnel syndrome was work related. She also explained why evidence that Elite and Choi had paid for treatment for other claimed injuries was insufficient to show employment had contributed to their causation to a material degree. This conclusion, too, was supported by sufficient evidence in the record to merit our deference.

II

We next turn to Russo's challenge to the dismissal of her psychiatric disability claim.

Russo argues that the judge erred in applying the test articulated in Goyden to her claim that her depression was compensable. She states that her "fundamental claim" was "for physical disabilities and subsequent mental depression caused by the physical disabilities." Russo contends that because her claim was not a so-called "mental-mental" or "stress" workers' compensation case, Goyden was inapplicable. This argument lacks merit because, after rejecting the hostile workplace basis for Russo's psychiatric disability claim, the judge explicitly evaluated the claim of psychiatric disability based on the chronic pain that was related to her employment. In addition, contrary to Russo's contention that the judge applied a standard requiring proof that employment was the most significant cause of Russo's psychiatric disability, the record shows that the judge evaluated the evidence to determine whether there was proof that employment contributed in a material degree to her illness.

Noting Dr. Gooriah's opinion that Russo suffered depression and anxiety in part because of her chronic pain, the judge reviewed the records of Dr. Nucatola, Russo's rheumatologist who had been treating her since 1993 for fibromyalgia and chronic fatigue syndrome. The judge noted,

On her first visit she gave a history of 9 days of lower extremity pain. She reported that she had Raynaud's phenomenon, Morton's neuroma of the left foot, endocarditis, cervical cancer status-post conization and numerous other gynecologic procedures. She was already showing minor osteoarthritic changes in her hands and feet, and lumbosacral [degenerative] disease with some sciatic involvement on the right side. In December 1993 Dr. Nucatola diagnosed fibromyalgia. She has been taking [X]anax and other psychiatric medication since the early 1990's. . . .

 

There were also records that petitioner had migraine headaches, cervical herniated discs, cervical myofascial pain, and lumbar myofascial pain.

 

Having accepted the diagnoses of Russo's treating psychiatrist and expert that she suffers from "depression and anxiety as a result of chronic pain," the judge reasoned,

The only compensable condition however is right carpal tunnel syndrome. Petitioner's chronic pain is clearly a result of her myriad physical problems for which she has been treated by a rheumatologist as far back as 1993 when she was 36 years old. In fact according to her own testimony on July 5, 2011 . . . the fibromyalgia pretty much makes you hurt everywhere. There is no evidence that petitioner's pain as a result of her carpal tunnel has materially contributed to the chronic pain which is causing her anxiety and depression.

 

[(Emphasis added).]

 

This analysis fully comports with the standard applied in both Lindquist, supra, 175 N.J. at 281, and Laffey, supra, 289 N.J. Super. at 304. The judge found that Russo failed to show that her employment contributed in a material degree to her orthopedic and psychological conditions and did not require her to prove that working as a dental hygienist was the most significant cause of her diseases. Lindquist, supra, 175 N.J. at 281. As in Laffey, the judge properly denied awarding disability other than the right carpal shoulder syndrome, finding that Russo failed to show the conditions surrounding her work environment were peculiar to her employment and failed to demonstrate with objective medical evidence that her depression and anxiety were related to the work environment. Laffey, supra, 289 N.J. Super. at 304.

III

Russo also argues that the judge erred in dismissing all claims as to Dr. Schaffer by analyzing this case in the scope of the Goyden standard and noting that the "key to this case . . . is the relationship between petitioner and Porro." Russo has misinterpreted the judge's analysis.

Finding that Russo is entitled to disability for the right carpal tunnel syndrome to the extent of 20% of the right hand, the judge concluded that, pursuant to Bond v. Rose Ribbon & Carbon Mfg. Co., 42 N.J. 308 (1964), the last employer is responsible for payment of the disability. In Bond, the Court acknowledged that it is impossible to pinpoint the triggering date of activation or inception in retrospect where "an employee is exposed to work conditions which activate or cause a progressive occupational disease, and the existence of such disease remains undisclosed and unknown over a period of time," especially "where the employment under such work conditions was under the aegis of successive employers or insurance carriers." Id. at 311. The Court held,

To avoid the morass into which litigation would be pitched were apportionment required, and to eliminate the recognized unsatisfactory nature of any such attempted ascertainment, we conceive that the most workable rule and that most consistent with the philosophy and public policy of the Workmen's Compensation Act is to hold liable that employer or carrier during whose employment or coverage the disease was disclosed as above noted, i.e., by medical examination, work incapacity, or manifest loss of physical function.

 

[Ibid. (emphasis added).]

Further, the judge factually distinguished this case from Levas v. Midway Sheet Metal, 337 N.J. Super. 341 (App. Div. 2001), which held that the workers' compensation judge must determine the extent of the partial permanent disability at each and every alleged manifestation. The judge noted, "In this matter, there is no evidence that petitioner's disability became manifest, arrested and fixed during prior employments, and therefore the Bond rule applies."

Here, Russo left her employment with Dr. Schaffer in March 2005. Subsequently, she worked for Dr. Porro of Elite and Dr. Choi until May 2007. There was no medical testimony or evidence presented to allow for apportionment of any disability to prior employment "which is fixed, arrested and definitely measurable." Giagnacovo v. Beggs Bros., 64 N.J. 32, 38 (1973). Thus, it was proper for the judge to conclude that "[a]s the last employment was concurrent, the permanent disability award will be divided between Elite and Choi."

Affirmed.

 

 

1 These appeals originally calendared back-to-back are consolidated for purposes of opinion only.

2 Russo filed four claims against Dr. Schaffer because he was insured by several different insurance companies over the years of Russo's employment.

3 The MRI result reflects degenerative findings at C4-5 through C6-7 with mild neural foraminal narrowing and no frank disc herniation or cord compression.

4 In a letter dated October 14, 2008, to a claims analyst at Rochdale Insurance Company, Dr. Barmakian wrote,

The activities observed on this videotape indicate that the right shoulder impingement syndrome does not appear to be a functional problem for her. In fact, when visualizing these activities, I could not distinguish which arm was the affected arm and had to refer back to her medical chart to make sure that it was the right arm that I was to observe.

5 Although Elite and Dr. Choi also paid for minimal treatment to Russo's right shoulder, left wrist, and right elbow at the same time as the carpal tunnel treatment, the judge found insufficient evidence to conclude that those conditions were work related. Moreover, she commented on the surveillance videotape taken on September 23, 2008, in which Russo was seen purchasing about twenty to thirty large chrysanthemum plants, loading them into her vehicle without assistance, and then reaching overhead to water them at home.

6 Goyden v. State Judiciary, 256 N.J. Super. 438, 445-46 (App. Div. 1991), aff'd o.b., 128 N.J. 54 (1992).