Schock v. Morristown Mem'l Hosp./atl. Health Sys., DOCKET NO. A-1658-09T2
| Decision Date | 02 July 2010 |
| Docket Number | DOCKET NO. A-1658-09T2,Claim Petition No. 2005-35837. |
| Parties | TINA SCHOCK, Petitioner-Respondent, v. MORRISTOWN MEMORIAL HOSPITAL/ATLANTIC HEALTH SYSTEMS, Respondent-Appellant. |
| Court | Superior Court of New Jersey |
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).
Before Judges C.L. Miniman and Fasciale.
On appeal from the New Jersey Department of Labor, Division of Workers' Compensation
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, 2007.1 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 bothlevels. 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 anda 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 inpatients 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, hernormal pain medication, and new arm pain.2 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, 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 herniationcould 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....
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