Opinion
DOCKET NO. A-2830-11T3
02-28-2013
EDWARD KOVALCIK, Petitioner-Respondent, v. CAPITAL HEALTH-FULD, Respondent-Appellant.
Patrick W. Conner argued the cause for appellant (Law Office of Monique T. Moran, attorneys; Mr. Conner, on the brief). John G. Devlin argued the cause for respondent (Devlin, Cittadino & Shaw, P.C., attorneys; Mr. Devlin, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Fasciale.
On appeal from the Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition No. 2011-8967.
Patrick W. Conner argued the cause for appellant (Law Office of Monique T. Moran, attorneys; Mr. Conner, on the brief).
John G. Devlin argued the cause for respondent (Devlin, Cittadino & Shaw, P.C., attorneys; Mr. Devlin, on the brief). PER CURIAM
Respondent Capital Health-FULD (Capital) appeals from a January 19, 2012 workers' compensation court order granting to petitioner Edward Kovalcik medical and temporary benefits. Capital contends that the workers' compensation judge made insufficient findings to support his conclusion that Kovalcik's April 2011 back surgery was reasonable, necessary, and related to a work-related injury. We disagree and affirm.
Capital employed Kovalcik as a maintenance mechanic. In February 2011, while repairing a door, Kovalcik twisted to pick up a screw and injured his low back. Dr. Lee Buono, a neurosurgeon employed by Capital, arrived at the location of the accident and witnessed Kovalcik "on the floor writhing in pain." It is undisputed that Kovalcik has a history of back pain.
Kovalcik's back pain started in the 1990s. He suffered pain from a back injury in 1996, received conservative treatment, and also underwent a lumbar laminectomy. In 2001, he suffered back pain from another accident, and in August 2010, Kovalcik began experiencing pain from his buttock down to his left leg. In August 2010, he underwent an MRI of his low back, which showed "[s]ciatica with pain in the left leg radiating to left foot."
After the February 2011 accident, Capital authorized Kovalcik to receive treatment from Dr. Virginia Gaskel. She ordered an MRI of his low back, which was performed in March 2011, compared that MRI with the August 2010 MRI, and concluded that Kovalcik's back problems after the February 2011 accident were pre-existing. She diagnosed his injury as a low back sprain/strain and recommended that he receive physical therapy. She also advised him that he could seek additional treatment from Dr. Ariel Abud, the neurosurgeon who had performed the lumbar laminectomy in the 1990s.
In March 2011, Kovalcik returned to perform "light" work duties and he consulted with Dr. Abud. Dr. Abud compared the August 2010 and March 2011 MRIs, noted only spondyltic changes, and diagnosed Kovalcik with a recurrent herniation. Dr. Abud concluded that Kovalcik might be a candidate for future surgery if he continued suffering from back pain. The doctor also acknowledged that "multiple courses of physical therapy have not helped him."
In April 2011, Kovalcik consulted with Dr. Buono, who reviewed the MRIs and diagnosed Kovalcik with degenerative disc disease. He concluded that Kovalcik could either live with the pain or undergo back surgery. Dr. Buono then treated Kovalcik for his back pain, and in April 2011, Dr. Buono performed a lumber fusion "to fix the end plate changes." In May 2011, Dr. Buono performed a second operation to reposition a screw in Kovalcik's back.
After surgery, Kovalcik filed an application for temporary disability insurance (TDI) benefits from the State. In April 2011, he filed a certification of contested workers' compensation claim and sought reimbursement from Capital after his TDI entitlement ended.
The workers' compensation judge conducted a trial over four days between October 2011 and January 2012. Kovalcik testified and produced Dr. Buono as an expert in the field of neurosurgery. Capital produced Dr. Joan O'Shea as an expert, also in the field of neurosurgery. The primary contested issue during the trial was whether the April 2011 surgery was causally related to the February 2011 accident.
Kovalcik testified that his August 2010 pain was different than the pain he experienced after the February 2011 accident. He explained that in August 2010, his pain was in his left leg and "a little bit" in his left buttock. He testified that in 2010, he did not have pain "in the central back," and that his symptoms subsided after he received physical therapy. Kovalcik explained that the pain from the February 2011 incident was in his "central back," and "nothing whatsoever" like his previous pain, and that after he received physical therapy, his pain "wasn't getting much better . . . [he] didn't feel hardly any better at all." Kovalcik testified that he did not want to delay the surgery because he "still couldn't stand up straight, [he] was unable to do any of [his] daily duties, [and he] was on light duty at work up until they released [him]." After the May 2011 surgery, Kovalcik received a "set of spinal shots" for his continued pain.
Dr. Buono testified that when a patient has endplate changes on a disc, a small twist or bending can cause endplate fractures. According to Dr. Buono, when comparing the August 2010 and March 2011 MRIs, he noticed a much "brighter" signal in the latter, indicating end plate edema. Based on the signals, he concluded that Kovalcik suffered fractures that were not present in the August 2010 MRI, and opined that the February 2011 incident triggered the need for surgery.
Dr. Buono explained that you cannot actually see endplate fractures in an MRI; instead, bright signals indicate endplate edema.
Dr. Buono also stated that he relied primarily on Kovalcik's own account of his medical history, and he reviewed Kovalcik's "films and x-rays." Dr. Buono noted that he does not rely on a radiologist's or a general practitioner's interpretation of an MRI because as the neurosurgeon, their interpretations have no bearing on his decision to perform surgery. He stated that Dr. Abud treated Kovalcik in 2010 for primarily radicular pain, whereas he treated Kovalcik for mechanical back pain.
Dr. O'Shea testified about Kovalcik's "long history of lower back problems." According to Dr. O'Shea, Kovalcik was having the same back problems before the February 2011 incident. In interpreting the August 2010 MRI, Dr. O'Shea stated that it showed a "longstanding degenerative change[] in multiple bones in his lower back . . . with some endplate changes, edema in the endplates." She noted that a 1997 MRI showed "basically" the same changes as seen in the August 2010 and March 2011 MRIs, that is, "disc herniations . . . as well as degenerative disc disease . . . with bone spurs, some stenosis there."
Kovalcik had an EMG in September 2010. Dr. O'Shea noted that the EMG showed "problems with a left L5 acute and chronic radiculopathy" as well as "some sensory problems with his nerves into his left leg."
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Dr. O'Shea concluded that Kovalcik's back pain and April 2011 surgery were not related to the February 2011 incident; instead, the condition was pre-existing. In her opinion, Kovalcik suffered a temporary lumbar sprain/strain. As such, she explained that Kovalcik should have received physical therapy and epidurals for at least six months before having surgery.
On cross-examination, Dr. O'Shea conceded that she observed some endplate changes from the August 2010 and March 2011 MRIs. She testified that:
Q: Based on the preoperative diagnosis contained in [Dr. Buono's] operative report, is it your opinion that Dr.
Buono should not have done the surgery that he did?
A: No. But[,] I would not have done the surgery at this time on this patient. This is a reason to do surgery . . . only after proving that these are the discs that need to be fused by a discogram, by continued conservative therapy, facet blocks, epidurals, and the time that the patient might actually get better and avoid surgery like this.
Q: Okay. So it is now your opinion that the diagnosis by Dr. Buono contained in the preoperative section of his narrative or his operative report indicates a condition that would be appropriate for this type of procedure?
A: It can be, yes. I've done surgeries with this preoperative diagnosis and this type of surgery. But again, not for this patient at this time, in my opinion.
[(Emphasis added).]
On January 19, 2012, the judge rendered an oral opinion, found Dr. Buono's testimony more credible than the opinions offered by Dr. O'Shea, and granted Kovalcik medical and temporary benefits. The judge stated:
[Kovalcik] was examined by Dr. [Buono], who testified. Dr. [Buono] at least impressed me with his version.
[H]e said he could tell from the end of the bones in the MRI that there were minute fractures and that [Kovalcik] needed more surgery. He did the surgery. . . . Dr. [Buono] was also a witness to the accident
because he stumbled on [Kovalcik] who was lying on the ground. . . . [Dr. Buono] noticed him laying on the ground. He didn't know him. He wasn't the doctor at that time. He stepped over him coming in the building.
. . . .
Dr. O'Shea testified for [Capital]. I was impressed with her testimony too. I think she's pretty good as a doctor. Although, I'm buying Dr. [Buono]'s testimony that he needed the operation. Dr. O'Shea . . . indicat[ed] that sort of the rules for surgeons are that they shouldn't do the operation without waiting six months. Dr. [Buono] did not wait six months but he did it before that and that he shouldn't have done it then. She testified about the end plates as shown in the MRI. She said that she didn't see anything unusual. Dr. [Buono] said he saw on the end plates that the bright area that showed him that there were microfractures which caused the need for the surgery.
I'm satisfied of the different positions that this is more credible to me. That the surgery was necessary and, therefore, done.
I'm satisfied that this was a work accident and that he did need treatment.
. . . .
[Capital] should pay temp[orary benefits] for the appropriate time that [Kovalcik] should have been out.
On February 16, 2012, the judge denied Capital's motion for a stay. The judge stated:
I'm satisfied from the testimony that I heard, that I believe Dr. Buono's testimony about the endplate fractures that he visualized on the MRI[,] and I thought that that was more credible, more believable than [Capital's] doctor, so I used that to say that he should do the surgery. I'm satisfied that I was right to believe in Dr. Buono, that [Kovalcik] needed surgery. . . . I still think it was more credible that Dr. Buono should have done the surgery.
On appeal, Capital argues that:
I. THE WORKERS' COMPENSATION COURT ERRED WHEN IT HELD PETITIONER'S SURGERY WAS RELATED TO THE FEBRUARY 2011 INCIDENT.
II. THE WORKERS'COMPENSATION COURT ERRED WHEN IT FOUND THE SURGERY WAS REASONABLE AND NECESSARY UNDER THE CIRCUMSTANCES.
In workers' compensation cases, the scope of review 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.'" Sager v. O.A. Peterson Constr., Co., 182 N.J. 156, 163-64 (2004) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). The "appellate court may not 'engage in an independent assessment of the evidence as if it were the court of first instance.'" Id. at 164 (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). This court accords deference to a compensation judge's legal determinations and findings of fact "unless they are 'manifestly unsupported by or inconsistent with competent relevant and reasonably credible evidence as to offend the interests of justice.'" Lindquist v. City of Jersey City Fire Dep't, 175 N.J. 244, 262 (2003) (quoting Perez v. Monmouth Cable Vision, 278 N.J. Super. 275, 282 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995)).
We begin by addressing Capital's argument that the compensation judge failed to sufficiently explain that the April 2011 surgery was causally related to the February 2011 accident. Capital contends that the judge did not adequately analyze Kovalcik's history of back pain or treatment after the February 2011 accident. Our review of the record demonstrates otherwise.
Here, the judge heard testimony from Kovalcik and two competing experts, which covered Kovalcik's extensive history of injuries as well as the experts' interpretation of those injuries and MRIs. The judge found Dr. Buono's account more credible. See De Vito v. Mullen's Roofing Co., 72 N.J. Super. 233, 236 (App. Div.) (indicating that "a treating physician is in a better position to express an opinion as to cause and effect than one making an examination in order to give expert medical testimony"), certif. denied, 37 N.J. 222 (1962). Kovalcik's chief complaint in August 2010 was pain in his left leg, while his primary complaint after the February 2011 incident was central back pain. Additionally, Dr. Buono testified that the brighter signal from the March 2011 MRI indicated greater edema than in pre-incident MRIs. He opined that a small twist or bending could cause the type of trauma that Kovalcik suffered.
We also reject Capital's contention that the workers' compensation judge erred by concluding that the April 2011 surgery was reasonable and necessary.
"Under the New Jersey Workers' Compensation Act, N.J.S.A. 34:15-1 to -128 (the Act), an employer is required to provide necessary medical treatment to a worker injured in the course of employment." Univ. of Mass. Mem'l Med. Ctr., Inc. v. Christodoulou, 180 N.J. 334, 344 (2004) (citing N.J.S.A. 34:15-15). Moreover, "the medical services received by the employee must be necessary for treatment of the injury, and the fees for such services must be reasonable." Id. at 345 (citing N.J.S.A. 34:15-15). "If the workers' compensation court finds the injury compensable and the medical services reasonable and necessary, the employer is responsible for the expenses incurred by the employee for the treatment of the injury." Ibid. (citing N.J.S.A. 34:15-15). The expense must be "shown to be reasonable and necessary by sufficient competent medical evidence." Squeo v. Comfort Control Corp., 99 N.J. 588, 599 (1985). "[I]n determining what is reasonable and necessary, the touchstone is not the injured worker's desires or what he thinks to be most beneficial. Rather, it is what is shown by sufficient competent evidence to be reasonable and necessary to cure and relieve him." Id. at 606. The "claimant bears the burden . . . to establish his claim." Id. at 599. Against this standard, we see no error.
According to Dr. Buono, the surgery was a necessary treatment for Kovalcik's injury. See Christodoulou, supra, 180 N.J. at 345. Both surgeons, Dr. Abud and Dr. Buono, opined that Kovalcik would require surgery if his problems continued or his condition did not improve. Dr. O'Shea conceded that she would not have ruled out surgery for Kovalcik, and that she had performed surgery on similar patients. Kovalcik testified that his back pains continued, and he was unable to return to regular work duty. The surgery was aimed to remedy Kovalcik's centralized back pain, which Dr. Buono concluded was related to the February 2011 incident. As a result, there is sufficient credible evidence in the record to support the findings of the workers' compensation judge that the surgery was reasonable and necessary.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION