Prata v. Banner Pharmacaps, Inc.

809 A.2d 832, 355 N.J. Super. 155, 2002 N.J. Super. LEXIS 444
CourtNew Jersey Superior Court Appellate Division
DecidedNovember 19, 2002
StatusPublished

This text of 809 A.2d 832 (Prata v. Banner Pharmacaps, Inc.) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Prata v. Banner Pharmacaps, Inc., 809 A.2d 832, 355 N.J. Super. 155, 2002 N.J. Super. LEXIS 444 (N.J. Ct. App. 2002).

Opinion

The opinion of the court was delivered by

PARKER, J.A.D.

This is an employer’s appeal from a workers’ compensation judgment in favor of the employee for seven and one-half percent permanent partial disability resulting from low back strain. The judgment amounted to $5,940, plus $800 in doctors’ fees and $1,000 in counsel fees.

[157]*157The facts elicited during the compensation court hearing indicate that the petitioner had been employed as a packaging inspector by respondent for seventeen and one-half years. Her job responsibilities included lifting parcels weighing about thirty pounds. She left employment with respondent in April 1997 and began working for American Vitamin Products, Inc. (Intergel) on July 7, 1997, doing the same work she had done with respondent. When she applied for her position at Intergel, she claimed that her health was “excellent,” that she had no physical or mental condition which would limit her ability to work at Intergel, and that her medical history involved nothing more than “checkups.”

In September 1997, however, she filed a petition against respondent, claiming “injury to pulmonary and internal system, eyes, ears, back[,] upper and lower extremities[,] pulmonary[,] interna^,] opthalmologicalU otolarynologieal[,] and ortho in nature with neuro and neuropsych complications.”

In December 1997, when she was three months pregnant, she was examined by Dr. Jack Haberman, who found “a flattening of the lumbar curve ... [and] diffused hardness and tenderness of the paravertebral musculature of the lumbo dorsal, lumbar and lumbo sacral region.”

On February 1, 1999, after her baby was born, she was examined by Dr. David E. Gross on behalf of respondent. Dr. Gross found normal spinal curvatures, no swelling or spasm anywhere, normal neck and trunk motions and “no finding for any permanent orthopedic disability resulting from this alleged exposure.”

On July 18, 2000, petitioner underwent an independent evaluation at the University of Medicine and Dentistry of New Jersey (UMDNJ). During that examination, for the first time, she told physicians that her symptoms began in 1996, a year before she left her employment with respondent. The report from the UMDNJ examination stated:

Ms. Prata is a 38-year-old woman, employed in the pharmaceutical industry for the last 20 years, who is complaining of 2 distinct symptom constellations. One involves neck, upper back and upper chest pain which she is concerned may be [158]*158associated with an injury that occurred at work 4 years ago. Further complaints involve dizziness and some ataxia and electrical sensations in her head which have been occurring over the last approximately 19 years, which she believes may be associated with her exposure to solvents including alcohol and Naphtha at Banner Pharmacaps____She is able to work at her present job as a packaging supervisor without any impairment ____ Her condition appears to be a muscular strain.
Concerning her dizziness and ataxia, ____ [a]t the present time she has no determinable impairment.

Petitioner testified at the February 6, 2001, workers’ compensation hearing that “[a]bout two years ago, the pain in [her] leg [got] worse. So I thought [it] was not the problem from work. But the problem now, it’s from my back; the leg hurts because I have a problem in my back.” Petitioner attributed the problem to her employment with respondent. She testified that she visited a doctor for the pain and received an injection two years ago. She received another injection one year ago, but since then had no further treatment. In response to her attorney’s question as to whether the pain interfered with her work in any way, she responded, “I couldn’t write ---- for ... about two months.” When asked whether the condition caused any problem at home, petitioner responded that five months before when she was washing clothes and hanging them up, she experienced pain in her arm. She testified further that when she cleans the house she can only move furniture a little bit and her “husband has to do ____ [t]hings like that____”

The evidence included three medical evaluations: the December 1997 report by petitioner’s physician, Dr. Haberman; the February 1999 report by respondent’s physician, Dr. Gross; and the July 2000 report from the independent examination at UMDNJ. The judge of compensation rendered an oral decision on March 20, 2001, in which he found “the petitioner’s testimony [ ] credible ... as well as the doctors[’] as reflected in their reports.” He went on to conclude that “any pulmonary disability ... resolved itself and thus is not a permanent injury.” With respect to the orthopedic claim, however, he found “that the petitioner suffered a permanent disability of 7-k percent resulting from a back strain.”

[159]*159Apparently, the judge based his decision on petitioner’s testimony that “she did lifting at work for the entire time period that she worked for respondent[.][S]he did relate a particular incident of back strain, but the date of same is not clear. She believes that her back is getting worse. The pain in her back remains when lifting and moving. The pain goes down her right leg.”

In this appeal, respondent argues:

POINT I
THE PETITIONER FAILED TO ESTABLISH PERMANENT IMPAIRMENT OF HER LOW BACK AND RIGHT LEG BY DEMONSTRABLY OBJECTIVE MEDICAL EVIDENCE.
POINT II
THE PETITIONER FAILED TO ESTABLISH PERMANENCY, AND THEREFORE SHE WAS NOT ENTITLED TO AN AWARD FOR PERMANENT DISABILITY BENEFITS.
POINT III
THE DIVISION OF WORKERS’ COMPENSATION DID NOT HAVE JURISDICTION TO ENTER AN AWARD FOR PERMANENT PARTIAL DISABILITY IN PETITIONER’S FAVOR FOR AN ACCIDENT.
POINT IV
THE DECISION OF THE TRIAL COURT IS LEGALLY DEFECTIVE IN THAT IT FAILS TO ADDRESS IN ANY WAY WHATSOEVER THE ADDITIONAL PRECONDITIONS OF N.J.S.A 34:15-36 FOR AN AWARD OF PERMANENT PARTIAL DISABILITY.

Respondent initially contends that N.J.S.A. 34:15-36 requires a finding of permanent impairment based upon demonstrable objective medical evidence, which restricts the function of the body or its members or organs. Perez v. Pantasote, Inc., 95 N.J. 105, 469 A.2d 22 (1984). In Perez, the Court held that “objective medical evidence is understood to mean evidence exceeding the subjective statement of the petitioner.” Id. at 116, 469 A.2d 22.

In Saunderlin v. E.I.DuPont Co., 102 N.J. 402, 508 A.2d 1095 (1986), the Court reiterated and re-emphasized its holding in Perez that the determination of permanent partial disability can no longer rest upon petitioner’s subjective complaints. In Saunderlin, the Court stated, “[I]n no event will a medical doctor’s mere ‘parroting’ of the patient’s statement be sufficient.” Id. at 416, 508 A.2d 1095.

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Related

Allen v. Ebon Services Intern., Inc.
567 A.2d 228 (New Jersey Superior Court App Division, 1989)
Saunderlin v. E.I. Dupont Co.
508 A.2d 1095 (Supreme Court of New Jersey, 1986)
Perez v. Pantasote, Inc.
469 A.2d 22 (Supreme Court of New Jersey, 1984)
Close v. Kordulak Bros.
210 A.2d 753 (Supreme Court of New Jersey, 1965)

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Bluebook (online)
809 A.2d 832, 355 N.J. Super. 155, 2002 N.J. Super. LEXIS 444, Counsel Stack Legal Research, https://law.counselstack.com/opinion/prata-v-banner-pharmacaps-inc-njsuperctappdiv-2002.