Opinion
DOCKET NO. A-4634-14T1
10-19-2016
DIANA VERNACCHIA, Petitioner-Appellant, v. WARREN HOSPITAL, Respondent-Respondent.
DeMasi & Williams, attorneys for appellant (J.Scott DeMasi, on the brief). Ann Debellis, attorney for respondent (David P. Kendall, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is only binding on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Kennedy and Gilson. On appeal from the Division of Workers' Compensation, Department of Labor and Workforce Development, Docket No. 2003-34717. DeMasi & Williams, attorneys for appellant (J.Scott DeMasi, on the brief). Ann Debellis, attorney for respondent (David P. Kendall, on the brief). PER CURIAM
Petitioner Diana Vernacchia appeals the dismissal of her workers' compensation claim petition. The workers' compensation judge held that she failed to present sufficient evidence demonstrating that her injuries were causally related to her employment. We affirm.
I.
Respondent Warren Hospital employed petitioner as a housekeeper in the radiology department from November 4, 2002, to June 4, 2003. Prior to her employment, petitioner underwent a Warren Hospital Health Evaluation, which included a physical examination and retention of petitioner's medical history. Upon completion, the examining physician pronounced petitioner "OK for work."
During her employment, petitioner's duties included vacuuming and cleaning the radiology department; including the main hallways; dusting and cleaning the x-ray machines and other diagnostic devices; and disposing of biohazardous waste and linen bags. The linen bags, filled with bathrobes and towels, weighed an average of fifty pounds each, and petitioner was responsible for lifting them into a cart for transport and laundry.
On or about January 29, 2003, a vacuum operated by petitioner shocked her above the left ankle, when sparks emitted from the bottom. She reported the incident to her shift supervisor, who subsequently advised the housekeeping manager.
On September 30, 2014, petitioner stated that she was shocked on her left ankle; however, all medical reports indicate the shock occurred to petitioner's right ankle.
Two days later, after experiencing increased pain in her feet and ankles, petitioner consulted her family physician. The physician noted that six months prior to petitioner's employment, she also complained of bilateral ankle pain with edema. Following this visit on January 31, 2003, petitioner was given Naprosyn, a non-steroidal anti-inflammatory drug for pain, and she resumed work thereafter.
On June 4, 2003, after being placed on temporary disability due to plantar fasciitis, petitioner stopped working for respondent. Petitioner was not officially removed from the payroll until approximately September 9, 2003, at which time she received a termination letter stating that her extended absence was cause for termination.
On October 27, 2003, petitioner filed a workers' compensation claim petition, seeking benefits for occupational injuries that resulted from her exposure to radiation and constant standing during her employment at Warren Hospital. In her various petitions, petitioner claimed to have sustained a host of injuries as a consequence of the "shock" she received while using the vacuum cleaner. These include (1) hypothyroid, orthopedic, and neurological injuries to her left ankle with lateral ganglion cysts; (2) spurs and plantar fasciitis in both feet; (3) lower back pain;(4) neuropsychiatric injuries; and (5) fibromyalgia.
At trial, petitioner detailed her daily work-related responsibilities, but attributed her myriad physical ailments to the January 29, 2003 vacuum incident:
PETITIONER: Every doctor I go [to] I am telling the doctors what happened at the hospital because before that accident with the vacuum, I never have any of those symptoms.Petitioner also acknowledged that the x-ray machines were turned off during cleaning, and therefore, did not emit any radiation.
COUNSEL FOR RESPONDENT: Well, ma'am, so you're telling me that when you were pushing the vacuum on that day and some sparks came out from the bottom of the vacuum cleaner that that's now [causing] headaches, pain in your ankles, it's causing back pain, it's causing swelling, it's causing fibromyalgia, it's causing every complaint that you're complaining of now, that's the reason, for the incident. Is that correct?
PETITIONER: I believe this trigger[ed] something in my body [and it] is causing all those problems because I never had any of those symptoms, those problems with my health before.
Theodora Maio, M.D., and Leon H. Waller, D.O., testified on petitioner's behalf. Dr. Maio, admitted to testify as an expert in general surgery, conducted four separate examinations of petitioner. Based upon her assessment, Dr. Maio diagnosed petitioner with "sprains and strains of the bilateral wrists with carpal tunnel syndrome, secondary to repetitive cumulative trauma." With regard to petitioner's lower back, Dr. Maio diagnosed "sprains and strains with disc bulge at L4-5, secondary to repetitive cumulative trauma." As to petitioner's knees and ankles, she diagnosed "sprains and strains, secondary to repetitive cumulative trauma, with loss of range of motion, power, and function."
Dr. Maio testified these diagnoses were causally related to petitioner's employment with respondent, and said that repetitive movements led to the development of small micro-traumas. As a result, the body attempted to heal these damaged areas, causing scar tissue. Dr. Maio testified that on June 4, 2003, the date petitioner stopped working at Warren Hospital, she was not capable of physical labor.
Following direct-examination, when asked by the compensation judge whether the sparks from the vacuum incident could have caused all the injuries described by petitioner, Dr. Maio responded negatively. Dr. Maio continued, "[i]f they were sparks, I would expect a local reaction, local pain, but unless she actually had an entry and an exit from an electric shock that went through the body, no. I would not expect all of this to be due to that."
Dr. Waller, a primary care internal medicine practitioner, testified that petitioner complained of chronic muscle and joint pain, which generally worsened with activity. Petitioner presented with pain in her chest wall and a burning sensation in her feet, stiffness in her neck, and tendonitis in her extremities. Petitioner also suffered from chronic fatigue and had difficulty performing basic daily tasks, according to the physician.
Dr. Waller testified that petitioner was suffering from "arthralgias, myalgias, plantar fasciitis, tendonitis and episodes of cardiac palpations which were the result of her work injury of October 2003 and the use of non-steroidal inflammatory drugs, Celebrex and Vioxx." Dr. Waller diagnosed petitioner with fibromyalgia, which was "aggravated, exacerbated, accelerated by her work injury of 1/29/03." He expressed that these various diagnoses were in fact causally related to the work petitioner performed at Warren Hospital; however, he never specifically testified how the injuries resulted from her daily work-related activities.
On cross-examination, when asked whether the sparks from the vacuum incident could have caused all the injuries described by petitioner, Dr. Waller responded negatively. Dr. Waller continued, "[n]o, the electrical shock wouldn't account for all her subsequent injuries." At the conclusion of Dr. Waller's testimony, the hospital moved to dismiss the claim, arguing that petitioner did not meet her burden of proof on the allegations made in her petition. The judge granted the hospital's motion and entered an order for dismissal with prejudice, and reasoned,
Neither Dr. Maio nor Dr. Waller referred to any demonstrable objective medical evidence to support their assertions. The medical witnesses merely asserted a probable contributory work connection without medical support. I find the petitioner has failed to set forth one iota of proof regarding the compensability of her claim. I find there was no competent evidence submitted relating petitioner's multiple medical problems to her employment with Warren Hospital.
Specifically, the compensation judge noted petitioner's belief that all of her injuries were directly attributable to the electric shock, even though the medical records submitted into evidence and the direct testimony of petitioner's expert witnesses did not bear out those assertions. Further, the judge emphasized that petitioner's medical history confirmed bilateral ankle pain and edema prior to employment with respondent, and the absence of evidence supporting a causal relationship between her work-related activities and plantar fasciitis. Lastly, while Dr. Waller cited medical studies linking fibromyalgia to the prescription drug Celebrex, petitioner offered no evidence that she took that medication over time. In rejecting petitioner's medical evidence, the judge relied upon Dwyer v. Ford Motor Co., 36 N.J. 487, 494 (1962), stating, "the mere assertion of a reasonably probable contributory work connection by a medical witness cannot justify an award."
This appeal followed.
II.
On appeal, petitioner argues that the compensation judge erred by finding that she did not present sufficient evidence to show that her injuries were causally related to her employment with respondent. Petitioner contends that the judge's decision was not supported by sufficient credible evidence in the record and should be reversed. We disagree.
It is well-established that a petitioner seeking workers' compensation benefits generally must prove both legal and medical causation when those issues are contested. Lindguist v. City of Jersey City Fire Dep't, 175 N.J. 244, 259 (2003). To establish causation, an employee must satisfy a two-part test by producing evidence to establish both (a) legal causation, and (b) medical causation. Ibid. Medical causation means the injury is a physical or emotional consequence of work exposure. Ibid. Stated another way, proof of medical causation means proof that the disability was actually caused by the work-related event. Ibid. (citing Hone v. J.F. Shea Co., 728 P.2d 1008, 1011 (Utah 1986)). Proof of legal causation means proof that the injury is work connected. Kasper v. Board of Trustees of Teachers' Pension and Annuity Fund, 164 N.J. 564, 591 (2000) (Coleman, J., concurring).
On appeal, the standard of review is also well-settled. In workers' compensation cases, the scope of appellate 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." Lindguist, supra, 175 N.J. at 262 (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)).
Deference is given to the factual findings and legal determinations made by the compensation judge unless they are "manifestly unsupported by or inconsistent with competent relevant and reasonably credible evidence as to offend the interests of justice." Perez v. Monmouth Cable Vision, 278 N.J. Super. 275, 282 (App. Div. 1994) (quoting Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 484, (1974), certif. denied, 140 N.J. 277 (1995)). Moreover, a reviewing court must give due regard to the special expertise of the workers' compensation judge. Sager v. O.A. Peterson Constr., Co., 182 N.J. 156, 164 (2004) (citing Close, supra, 44 N.J. at 599). However, we do not defer to the judge's interpretation of the law. Sexton v. Cty. of Cumberland/Cumberland Manor, 404 N.J. Super. 542, 548 (App. Div. 2009) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
An appellate court may not "engage in an independent assessment of the evidence as if it were the court of first instance." State v. Locurto, 157 N.J. 463, 471 (1999). Findings of fact made by a trial judge "are considered binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, supra, 65 N.J. at 484. Accordingly, if in reviewing an agency decision, we find sufficient credible evidence in the record to support the agency's conclusions, we must uphold those findings, even if we might have reached a different result. In re Taylor, 158 N.J. 644, 657 (1999) (citing Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988)); See also Sager, supra, 182 N.J. at 164-69 (where the Court found the testimony of the petitioner's on-site supervisor to constitute sufficient credible evidence in the record supporting the compensation judge's conclusions).
Having reviewed the record before the workers' compensation judge in light of the principles of law governing our review, we conclude that the judge's finding that that petitioner's injuries were not causally related to her employment, were reasonably reached on sufficient credible evidence present in the entirety of the record. Therefore, we affirm.
Petitioner sought to establish causation through two expert witnesses, Dr. Maio and Dr. Waller; however, the records provided and the testimony of these witnesses failed to provide "any demonstrable objective medical evidence to support their assertions." As the compensation judge here explained, "[t]he medical witnesses merely asserted a probable contributory work connection without medical support." Compensation judges must 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., Inc., 110 N.J. 37, 54 (1988).
Compensation cannot be justified when a medical witness merely asserts a "reasonably probable contributory work connection" with no medical support. Laffey v. Jersey City, 2 89 N.J. Super. 292, 306 (App. Div. 1996). "The absence of any objective medical or scientific evidence establishing a causal link between petitioner's place of employment and a claimed occupational disease will usually be fatal to the petitioner's workers' compensation case." Magaw v. Middletown Bd. of Educ., 323 N.J. Super. 1, 13 (App. Div. 1999) (citing Wiggins v. Port Auth., 276 N.J. Super. 636, 644-45 (App. Div. 1994)).
With respect to her claims of radiation exposure, petitioner acknowledged that the x-ray machines were turned off during any cleaning. Therefore, there was no evidence that the x-ray machines produced the harmful radiation alleged in the initial claim petition. Next, petitioner testified that she believed her physical complaints were directly attributable to the vacuum spark incident on January 29, 2003. However, both Dr. Maio and Dr. Waller definitively stated that this was not a likely medical result. Thus, despite her "belief" to the contrary, none of petitioner's physical complaints were causally related to this specific incident.
Additionally, it is uncontested that prior to emigrating from Poland, petitioner lived approximately seventy-eight miles from the Chernobyl disaster and received government administered Iodine tablets — a fact not included in Dr. Maio's expert reports or his testimony. --------
Notwithstanding petitioner's testimony about the vacuum incident, Dr. Maio and Dr. Waller also failed to establish a causal connection between petitioner's orthopedic injuries, such as her plantar fasciitis, carpel tunnel, and pain in her knees, hips, and lower back, and her daily work-related duties. Here, as in Laffey v. City of Jersey City, although Dr. Maio and Dr. Waller both declared that petitioner's injuries were causally related to her employment, they failed to provide "objective medical or scientific evidence" establishing this link. Laffey, supra, 289 N.J. Super. at 304. In Laffey, this court reversed the compensation judge's earlier decision awarding a petitioner permanent partial disability for pulmonary disease, finding that the petitioner did "no more than offer subjective characterization about his work environment." Id. at 306. The petitioner, asserting a compensatory connection between his duties and exposures as a police officer and his pulmonary disease, failed "to provide quantitative evidence concerning the level of pollution he was exposed to, the component elements of the pollution, or the duration of exposure in any measurable manner." Ibid. Specifically, the petitioner's expert witness produced no evidence of any "articles, treatises or medical studies that link exposure to fumes from vehicles, furnaces, landfills, or fires to petitioner's ailments." Ibid.
Also, in the case before us, neither expert witness explained which of petitioner's work responsibilities may have resulted in her injuries, choosing, instead, to rely upon broad and conclusory averments untethered to the facts in the case. While petitioner testified about the walking, standing, lifting, and pushing associated with her employment with respondent, her expert witnesses failed to show that her injuries were a consequence of her work based upon qualitative medical support. Petitioner's medical history also indicated that just prior to her employment with respondent, petitioner sought medical treatment for bilateral ankle pain with edema.
Additionally, while Dr. Waller testified that petitioner's employment caused, or at least accelerated, her fibromyalgia, he offered no explanation of how this was medically possible. Rather, Dr. Waller engaged in a lengthy and detailed colloquy with the judge about why he believes fibromyalgia exists, rather than how and why it manifested in petitioner. The compensation judge succinctly encapsulated this testimony, stating, "[w]hen specifically asked to explain the physiology as it [the fibromyalgia diagnosis] related to work, he [Dr. Waller] fails to do so and leads into statements that it is a central nervous system dysregulation."
In Wiggins, supra, a petitioner claimed exacerbation of pre-existing multiple sclerosis as a result of employment related exposure to certain chemicals and extreme temperatures. 276 N.J. Super. at 638-39. However, in reversing the compensation court's award, this court held that the "petitioner did not provide any objective medical or scientific evidence establishing a causal link between chemical exposure and temperature variations and the exacerbation of his multiple sclerosis." Id. at 644. Moreover, the "petitioner offered no evidence respecting the extent of his exposure to chemicals other than a general description that he was required to use some chemical each day." Id. at 645. Here, while Dr. Waller provided significant insight into the existence and development of fibromyalgia generally, he failed to connect petitioner's specific employment related activities, such as her cleaning, dusting, and vacuuming, with the manifestation of her individual illness.
Furthermore, Dr. Waller indicated that part of his fibromyalgia diagnosis was based on petitioner's claim that she took Celebrex. However, as the compensation judge explained, "the petitioner was never prescribed Celebrex from any doctor at Warren Hospital," and she "never testified that she took Celebrex as a medication." The only time Celebrex is even mentioned in petitioner's treating records, is a hearsay statement contained within a letter from Dr. Zelaznicka to Dr. Grusso, dated July 17, 2003. Therein, Dr. Zelaznicka states that she evaluated petitioner, diagnosed her with plantar fasciitis, and adds that petitioner indicated she was taking Celebrex. No additional information is provided specifying who prescribed Celebrex, the dosage, or even when petitioner began taking the medication.
Consequently, given the failure of proof of causation, petitioner did not establish a prima facie claim.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION