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Case History Document



Bird v Somerset Hills Country Club
Entered By: Ira M Maurer/LymeNetDate Created: 10/27/97
Document Type: Other
Title: Petitioner's Brief in Support of Claim for Worker's Compensation Benefits
40
PRELIMINARY STATEMENT
The Petitioner, Teddy W. Bird, has brought this motion for medical/temporary benefits before the Division of Workers' Compensation asserting that he developed Lyme Disease in the course of his employment.
Whether the case is looked upon as a specific incident or accident (See City of North Wildwood v. Cirelli, 131 N.J.L. 162 (N.J. E & A, 1944) Exhibit 1, or as a result of an occupational exposure (See Fiore vs. Consolidated Freightways, 104 N.J. 452 (1995)), it is asserted that Mr. Bird's injuries are compensable and that this Court should direct the payment of temporary disability and medical benefits together with statutory penalty in accord with N.J.S.A. 34:15-28.1. During the course of the trial, the Court has indicated that it will consider the issue of the extent of disability subsequent to a determination of causal relationship. According to all medical examinations as of today's date, Mr. Bird is presently unable to work and has recently been awarded Social Security Disability Benefits. See Exhibit 2.


















PROCEDURAL HISTORY
A Claim Petition was filed before the Division of Workers' Compensation on September 7, 1994. (See Exhibit 3). Thereafter, on or about September 11, 1994, a Notice of Motion for Temporary and Medical Benefits was filed with the Division of Workers' Compensation. (See Exhibit 4).
The Respondent did not answer the Claim Petition in a timely manner and a fax was sent on or about November 21, 1994 to the PMA Insurance Company informing them of the extent of medical bills which were outstanding and paid by the major medical carrier. (See Exhibit 5). Included in the fax to the insurance carrier for the Respondent were reports from Dr. Patricia Ruggeri-Weigel and Dr. John Weisenreider, the treating physicians, stating their opinions that Mr. Bird's Lyme Disease was related to his work, and therefore arose out of and in the course of his employment with the Respondent.
Subsequently, on December 7, 1994, the Office of Fred Brause filed an Answer to the Claim Petition and Answering Statement to the Motion for Temporary and Medical Benefits. ( See Exhibit 6).
On December 8, 1994, an Amended Motion for Medical/Temporary and the Entry of Default was filed. (See Exhibit 7).
Thereafter, Petitioner's attorney submitted a Certification in Support of Motion for Medical and Temporary signed by Teddy Bird on or about December 14, 1994. (See Exhibit 8).
On December 7, 1994, Occupational Interrogatories were served upon the Petitioner. The Interrogatories were answered and returned on or about December 14, 1994. (See Exhibit 9).
On February 27, 1995, Respondent's attorney filed an Amended Answer to the Claim Petition. (See Exhibit 10).
Petitioner was examined by Dr. Sanford Lewis on the behalf of the Respondent on January 18, 1995 and the doctor issued a report on February 10, 1995. (See Exhibit 11). Dr. Lewis is a Diplomate of the American Board of Internal Medicine. Dr. Lewis states in his report: Petitioner was further examined on the behalf of the Respondent by Dr. Peter Blumenthal on April 10, 1995 (See Exhibit 12). According to Dr. Blumenthal: On May 30, 1995, following the completion of the medical examinations for the respondent and the exchange of medical discovery, the trial of the Motion commenced.
On October 2, 1995 after the completion of the testimony of the Petitioner the Respondent faxed to the office of Petitioner's attorney the report of Dr. John Sensakovic. Dr. Sensakovic prepared his report solely upon a review of medical records, and never examined the Petitioner Dr. Sensakovic in his report of September 22, 1995, contrary to the reports of every other treating and examining doctor, denied that Mr. Bird suffered from Lyme Disease and asserted that if Mr. Bird did have Lyme Disease it was not "clearly attributable to the patient's employment as a grounds keeper" Apparently Dr. Sensakovic is unaware that the standard of proof in a noncriminal matter is not a "clearly attributable" standard but by a preponderance or greater weight of evidence..
Petitioner, in addition to moving for medical and temporary benefits also moves for a statutory penalty for the Respondent's failure to pay temporary and medical benefits in a timely manner. N.J.S.A.34:15-28.1.



STATEMENT OF FACTS
Petitioner Ted Bird was born on July 18, 1934.
He commenced his employment with the Respondent, Somerset Hills Country Club located in Bernardsville on or about March 1989. T All references to transcript testimony of Mr. Bird is to 6/20/95 unless otherwise stated.. 3 at lines 18-20.
The Petitioner described his job functions in the following manner:
Mr. Bird described the makeup of the golf course as approximately 260 acres

Petitioner described the wildlife at his job site in the following manner: Mr. Bird described the deer exposure in the following manner:
Mr. Bird's work at the golf course depended upon the season.
Mr. Bird described the manner in which the golf course was mowed using rotary mowers or walking mowers. With the mowers involved he would walk the course behind the mower.
Mr. Bird's attire at the golf course was the company short-sleeved T-shirt with emblem, hard hat, and generally Levi's or Dockers. T 17.
On or about March 12, 1991, Petitioner became a patient of Dr. Joseph Catapano and Dr. John Weisenreider. (See trial exhibit P. 1 in Evidence, medical records of Dr. Weisenreider.) On the initial patient workup of March 12, of 1991, Mr. Bird indicated in the initial patient questionnaire: Approximately in October of 1991, the Petitioner, according to his physician's medical records and the Petitioner's testimony, began to experience fatigue. Prior to the Petitioner being diagnosed with Lyme Disease, he was unaware of any tick bite. Subsequent to the diagnosis of Lyme Disease Mr. Bird's Supervisor, Bob Dwyer, discovered a tick on Mr. Bird and removed it from him. T. 23-7.
On June 20, 1991, Mr. Bird was noted to have a rash on his neck and on his pelvis. The differential diagnosis included poison ivy and disseminated contact dermatitis. There is no further description of the rash and it is unknown if the rash was associated with Lyme Disease.
On or about September 29, 1992, Mr. Bird was examined by Dr. Weisenreider. At that time he gave a history of fatigue for one year. See Exhibit 14. Dr. Weisenreider commenced a laboratory workup on Mr. Bird. Included in the tests required for narrowing of the differential diagnosis were multiple blood tests. In the interim Mr. Bird was seen on October 7th and he was noted to be tired all the time and his left and right legs were weakened. On October 13, 1992, Mr. Bird had a positive Lyme titer. See Exhibit 15.
According to Mr. Bird, he was diagnosed with Lyme Disease on or about October 13, 1992 by Dr. Weisenreider. Following his diagnosis Mr. Bird notified his employer of the fact that he had Lyme Disease.
Mr. Bird testified as to the location of his residence and his non-work activities. Mr. Bird resides south of Route 22 in Greenbrook, New Jersey. According to his testimony, he has never seen deer in the area of his residence or south of Route 22 in Greenbrook. T 30-lines 10-12. Mr. Bird further testifies that he has an eight foot cyclone fence because he owns a dog. T 31-5.
Mr. Bird denied having any hobbies between 1989-1992 which would have exposed him to Lyme disease, including jogging or hunting. He cited as his recreational activities one or two trips to Atlantic City with his wife. T31 lines 3-6. Mr. Bird further denied fishing in wooded areas, or golfing, although he acknowledged walking the Somerset Golf Course approximately two or three times with his brother-in-law. Mr. Bird did admit that he would occasionally do some gardening in his back yard, consisting of "some flower bushes and we grow a few vegetables" T32-14.
At the time of Dr. Weisenreider's initial treatment, Mr. Bird presented with severe fatigue. This symptom required Dr. Weisenreider to render a differential diagnosis for this condition. Dr. Weisenreider initially ordered a blood screen for multiple factors. These
examinations were negative, with the exception "...that I did Lyme antibody titers and
Western Blot titers on the initial testing, which came back markedly positive" T18 lines 4-12. The blood test for the initial Lyme titer, the Doctor stressed, came back markedly positive and not equivocal. The initial serology test consisted of a Western Blot test;(according to the doctor) it would detect antibodies as specific components of the organism. T. 19 line 6-7. Following the initial serology tests, Dr. Weisenreider ordered more specific blood testing. The doctor described these tests and the development of antibodies in the following manner: Mr. Bird's original labwork was performed by National Health Laboratories and thereafter Roche Laboratories performed spinal fluid testing. The initial examination produced positive results on multiple bands of both the IgG and IgM testing. Petitioner's diagnosis of Lyme disease was initially reported to Petitioner's employer, Bob Dwyer, in October of 1992. Mr. Dwyer filed with the department of Labor and Industry an accident report indicating date an accident of March 14, 1994 resulting from a tick bite. See Exhibit 16.
As a result of the initial positive blood workup a spinal tap was performed and the spinal fluid was tested and was also found to be positive for the Lyme antibodies. T.24 lines 10-11. At the time of the taking of the spinal fluid, the IgMs were negative, which indicated that Mr. Bird had been infected for at least three months prior. Dr. Weisenreider testified that the basis for his ability to time the disease was the fact that the IgM positive titer would generally disappear within the first three to six months as the initial "acute" antibodies were replaced by IgG antibodies. T.24 lines 17-24.
In between the initial blood workup and the spinal fluid testing, Mr. Bird was tested for chronic Epstein-Barr virus syndrome and mononucleosis as well as being placed on an outpatient prescription of the antibiotic Rocephin. Thereafter, Mr. Bird, as a result of having no response to the oral antibiotic, received intravenous medication. T.25. Following the initial antibiotic treatment Mr. Bird's condition and fatigue continued to worsen. According to Dr. Weisenreider's records, it would come in waves.
Thereafter, Dr. Weisenreider continued to prescribe antibiotics by intravenous drip. Approximately in December of 1993, Dr. Weisenreider referred Mr. Bird to an infectious disease specialist, Dr. Patricia Ruggeri-Wiegel. See Exhibit 17 for her consultation reports of December 20, 1993; January 20, 1994; and March 10, 1994.
According to her consultation reports, Dr. Ruggeri-Wiegel reported that Mr. Bird had "developed a recent memory loss which had been progressing over the last several months" and he had complaints of extreme fatigue and drowsiness.
Antibiotic treatment was again prescribed, as was additional serological testing by Dr. Ruggeri-Wiegel. Over the next several months, Mr. Bird received both oral and intravenous antibiotics. These treatments did not improve his condition.
On or about December 6, 1994, Dr. Ruggeri-Wiegel called the office of Dr. Weisenreider and informed him that she had run out of treatment options and would be referring Mr. Bird to the Robert Wood Johnson University Hospital for possible enrollment in a clinical protocol for the treatment of Lyme Disease.
Mr. Bird has, according to Dr. Weisenreider's medical records, developed osteoarthritis symptoms related to Lyme Disease. He now complains of pain in his right shoulder. See T. 63 lines 12-15.
According to Dr. Weisenreider, Mr. Bird is not able to work, inclusive of sheltered employment due to his level of fatigue. T69-19-20.
In May of 1995, Mr. Bird again tested positive for Lyme disease antibodies. According to Dr. Weisenreider, to a reasonable degree of medical probability, Mr. Bird's condition has progressed and can be described as a chronic fatigue syndrome as a result of neuralgic Lyme Disease. Further, in the post-infectious process, Mr. Bird has developed chronic fibromyalgia. T. 74.




Review of Medical Exhibits
During the course of the motion for medical and temporary, the medical records of the Petitioner's physicians Drs. Weisenreider and Ruggeri-Wiegel were placed into evidence. The records of both doctors demonstrate the diagnosis of Lyme Disease.
On April 28, 1994 Lauren E. Dize, Account Claims Representative, of the PMA Group wrote to both Drs. Weisenreider and Patricia Ruggeri-Weigel requesting "conclusive evidence" relating the Lyme Disease to the employment. See Exhibit 18.
Both doctors, upon request of the insurance carrier for the Respondent, indicated affirmatively that the Petitioner had Lyme Disease and that the Lyme Disease was related to his employment. On May 5, 1994, Dr. Patricia Ruggeri-Weigel wrote to Lauren E Dize of the PMA Group, the insurance carrier for the Respondent:
As per our conversation of 4-29-94, I am enclosing Mr. Teddy Bird's medical records. As you know, he is being treated for Lyme Disease. The patient works full time on the golf course at Somerset Hills Country Club. The patient has no risk factors for contracting Lyme Disease i.e., (he does not play golf, he is not a hunter, he does not jog through the woods or go to the beach). With this in mind, and the fact that he works full time on a golf course at Somerset Hills Country Club where the incidence of Lyme is very high, it is my professional opinion that his Lyme Disease is work related. If you have any questions, please feel free to contact me.
Sincerely, Patricia Ruggeri-Weigel."
Dr. Weisenreider provided a similar opinion to the PMA Group.
Dear Ms Dize: In support of office records previously sent to your office, I would like to state for the record that I believe Mr. Bird's Lyme Disease to be work related. This is based upon an occupational risk and lack of other risk factors for contracting the disease. If you have any further questions or need for clarification of any issues related to this case, please feel free to contact me.






REVIEW OF MEDICAL LITERATURE
The medical literature in evidence overwhelmingly supports the assertion that Mr. Bird's Lyme Disease is related to his work environment and exposure. In support of petitioner's case, the Plaintiff offered six articles which would support the proposition of the work exposure and generally described Lyme Disease. Dr. Weisenreider in his testimony produced one additional journal, the American Journal of Medicine, a National Clinical Conference on Lyme Disease, and more specifically a section entitled , "Environmental Risk and Prevention of Lyme Disease", written by Dr. Durland Fish. See Exhibit 19 In addition to this article, the expert for the Respondent, during his testimony, indicated that he participated as a member of a writing committee and as an advisor to an article entitled "Lyme Disease in New Jersey: A Practical Guide for New Jersey Clinicians." (improperly cited in Respondent's expert's resume, hereinafter referred to as the Guide). As a result of the improper citation, it was impossible to have the journal at court at the time of the doctor's direct and cross examination. However, it was ordered produced by the Court. See Exhibit 20.
Contrary to the testimony of Respondent's expert, including the publication in which he was a participant, all articles are in agreement on the epidemiological risk factors associated with Lyme Disease. According to Respondent's expert testimony, an outdoor work environment is not a significant risk factor for Lyme disease, while the location of residence and ownership of household pets are primary risk factors. Petitioner asserts that a review of the medical literature and the underlying data does not support the position of the Respondent's expert.
According to the epidemiology section of the Guide, the subsection entitled, People at Risk: lists "Children, Outside workers, Outside activities Hunting, Camping, Hiking, Gardening" as being at risk for Lyme Disease, and again contrary to Dr. Sensakovic's trial testimony, people at risk for Lyme Disease include the following: Clearly, according to the epidemiology section of the Guide, an article in which respondent's expert was a participant, Mr. Bird's occupation as a maintenance worker places him at an increased risk. It is shocking that Dr. Sensakovic did not acknowledge this risk at the time he testified.
Again, contrary to Respondent's doctor's sworn testimony in Court, the Guide asserts that residential lawns are not prime locations for the transmission of Lyme Disease. Dr. Sensakovic listed the Guide on his C.V. and during his testimony as a publication written in part by him pertaining to Lyme Disease. As noted earlier, in this brief due to the fact that the publication was incorrectly cited it was not available to be used at the time of the doctor's cross-examination. The Court Ordered the Respondent to produce the articles Dr. Sensakovic participated in producing to allow the attorney for the petitioner the opportunity to either continue the cross-examination of the Respondent's expert, or in the alternative to offer the material in evidence as prior inconsistent statements. According to the Guide section entitled, Where can one expect to find the tick-Know areas of high risk: wooded areas, border areas, and brush:
A review of the factual description of Mr. Bird's testimony of the golf course--rough areas, verges of the greens, sandtraps, creeks, streams and the adjoining wooded areas, and fairways-- the presence of deer clearly would place him at a high risk. Further, a review of Mr. Bird's testimony regarding his own residence would reveal it to be relatively risk free of Lyme Disease due to the absence of deer (the traffic barrier of Route 22) and the existence of an eight foot cyclone fence. Clearly, Dr. Sensakovic's testimony was contrary to the Guide.
During his direct and cross-examination, Dr. Sensakovic disagreed with all other epidemiological studies admitted into evidence.
During the Motion hearing, the following other articles were discussed See Exhibit 21 for articles, the articles were also marked as P-7 for ID:

· Schwartz, Brian S.; Goldstein, Michael D.; and Childs, James E.; Longitudinal Study of Borrelia burgdorferi Infection in New Jersey Outdoor Workers, 1988-1991, American Journal of Epidemiology, Copyright 1994 by The Johns Hopkins University School of Hygiene and Public Health, Vol. 139, No. 5, p.p. 504-512.

· Schwartz, Brian S., MD, MS; Goldstein, Michael D., MD, MPH; and Childs, James E., ScD., Antibodies to Borrelia Burgdorferi and Tick Salivary Gland Proteins in New Jersey Outdoor Workers, American Journal of Public Health, December 1993, Vol. 83, No. 12, p.p. 1746-1748.

· Goldstein, Michael D., MD, MPH; Schwartz, Brian S., MD, MS; Friedmann, Craig, MD; et als., Lyme Disease in New Jersey Outdoor Workers: A Statewide Survey of Seroprevalence and Tick Exposure", American Journal of Public Health, October, 1990, Vol. 80, No. 10, p.p. 1225-1229.

· Bowen, Stephen G., MD., MPH; Schulze, Terry L., Ph.D; and Parkin, Willilam L., DVM, DrPH, Lyme Disease in New Jersey, 1978-1982, The Yale Journal of Biology and Medicine 57 (1984), p.p. 661-668.

· Bowen, Stephen G., MD, MPH; Griffin, Marie, MD; Hayne, Charles, DO; et als., Clinical Manifestations and Descriptive Epidemiology of Lyme Disease in New Jersey, 1978 to 1982, JAMA, May 4, 1984, Vol 251, No. 17, p.p. 2236-2240.
Both Dr. Weisenreider and Dr. Sensakovic cited to Dr. Fish's article in the American Journal of Medicine and the discussion of epidemiological risk factors during their respective testimony. See Exhibit 19. A detailed review of this article supports the opinion of Dr. Weisenreider, and reveals the internal conflicts of Dr. Sensakovic's testimony.

During the course of Dr. Sensakovic's direct testimony, the Court asked the following questions:
Dr. Sensakovic cited in support of his hypothesis that residential exposure was a higher risk factor that occupational exposure, apparently the studies by Durland Fish performed in Westchester County, New York.
Both on direct and cross-examination, Dr. Sensakovic emphasized the Westchester County, New York study of ticks. At no time did Dr. Sensakovic discuss or review with the Court the underlying studies that were cited and contained in footnote No. 25 of the Fish article.
Footnote No. 25, more properly cited as "Ticks Parasitizing Humans in a Lyme Disease Endemic Area of Southern New York State. Am. J. of Epidemiology; 128: 1146-52 (See Exhibit 22), is an extremely limited study. According to the authors: A review of the study indicates that only 126 ticks were examined. Age group evaluations of the tick bite victims were known in 82 instances for the bite of the Ixodes dammini tick and 25 bites of the Dermacentor variabilis tick, for a total number of 107. Reviewing this data would indicate that Children 0-9 in age were 45 in number and in ages 10-19 an additional 17. On the other end of the spectrum individuals ages 70 and above numbered 3. Therefore the total number of tick bite victims, in age groups where occupations would be relevant numbered 42. See Exhibit 22 Table 2, at p. 1149 According to the study the male/female ratio was approximately 61/56. The study does not indicate the number of either employed, and/or the location or type of employment. Contrary to Dr. Sensakovic's opinion, the authors do not in their conclusions address the work environment, but stresses the need "to protect young children and teenagers from tick bites. Supra at p.1151.
The raw data contained in Journal article, referred to in Footnotes 26 of the Fish article were also apparently overlooked by Dr. Sensakovic. (See Exhibit 23). During the Court's questioning of the respondent expert, Dr. Sensakovic commented on the data contained in the articles: Footnotes 26 correlates with a journal article, discussing the preferred habitat of ticks and risk of tick and Lyme Disease exposure in a recreational setting . Footnote 26 entitled , "Potential for Exposure to Tick Bites in Recreational Parks in a Lyme Endemic Area", Am. J. Public Health 1989;79:2-15 answers the question, raised by the Court in the affirmative, of whether "... ticks in recreational areas can constitute a significant public health threat." See Exhibit 23, at p. 12.





















THE PETITIONER HAS LYME DISEASE
Petitioner asserts that he suffers from Lyme Disease. Plaintiff was initially diagnosed with this condition by his treating physician, Dr. John M. Weisenreider. The diagnosis was based upon both a clinical review of the petitioners' symptoms, and serology.
The phrase, differential diagnosis , is defined by Stedman's Medical Dictionary 24th ed. as the "determination of which of two or more diseases with similar symptoms is the one from which the patient is suffering. Clearly, it is incumbent for a treating physician to make a differential diagnosis in order to prescribe medication and other modalities of treatment. In the case at bar, Drs. Weisenreider and Ruggeri-Weigel, were required to make a diagnosis in order to treat the petitioner.
The Court during the cross-examination of Dr. Weisenreider questioned the doctor extensively on his differential diagnosis of Lyme Disease in view of changing lab values, and other potential causes. A careful review of this testimony clearly shows the detail, and depth of the treating doctor's analysis in reaching a diagnosis for the petitioner. Later in this brief the issue of the weight a treating doctors diagnosis should be given is discussed in detail.
During the cross-examination of Dr. Weisenreider, he was questioned about a positive blood titer performed by Dr. Patricia Ruggeri-Wiegel for mononucleosis. Dr. Weisenreider excluded mononucleosis as a possible cause: negative. T.23-1 to T23-20

During the testimony of both experts they were questioned on the blood serology standards set forth in the MMWR. The MMWR is a weekly publication of the U.S. Department of Health and Human Services/Public Health Service and the Center for Disease Control and Prevention. See Exhibit 24. Both Dr. Weisenreider and the expert for the Respondent agreed that the MMWR serology standards are currently considered as "standard". T (1/16/96) 87 at lines 9-22. Respondent's expert, although not accepting Mr. Bird's blood test results as being diagnostic of Lyme Disease, conceded that according to the present national standard the tests would be interpreted as being positive for Lyme Disease. T.90 line 8-9.
Clearly, a review of the testimony of Dr. Weisenreider establishes to a reasonable degree of medical probability the diagnosis of Lyme Disease. This diagnosis is further supported by the fact that the petitioner's blood data interpretation remains positive under the recently announced standards set forth in the MMWR. Dr. Sensakovic conceded to the Court's questioning and being confronted with the published data that the petitioner's last blood study of May 1995 was positive for the Lyme Disease. In the case at bar, petitioner has had three separate blood evaluations, and two spinal fluid evaluations for Lyme Disease. Dr. Sensakovic, although questioning the evaluation of serologic data for the diagnosis of Lyme Disease, conceded that the designated positive titers set forth in the August 11, 1995 Morbidity and Mortality Weekly Report (MMWR), Vol.44 No. 31 are to be considered as "standard". According to the MMWR, "Serum samples from persons with disseminated or late-stage LD [Lyme Disease] almost always have a strong IgG response to Borrelia burgorferi antigens.", See Exhibit 24 at p. 591.
The standards contained in the August 11, 1995 MMWR were drafted at the Second National Conference on Serologic Diagnosis of Lyme Disease held on October 27-29, 1994 and jointly sponsored by the Association of State and Territorial Public Health Laboratory Directors, CDC, the Food and Drug Administration, and the National Committee for Clinical Laboratory Standards
According to MMWR, "that IgG immunoblot can be considered positive if five of the following 10 bands are present 18 kDa, 21 kDa, 28 kDa, 30 kDa, 39 kDa, 41 kDa, 45 kDa, 58 kDa, 66 kDa, and 93 kDa." A review of the blood titer criteria drawn by Dr. Weisenreider consistently was positive under both the individual laboratories criteria and criteria of the MMWR standards.
Further, the initial spinal fluid data also meets the standard expressed in the MMWR. In addition to meeting the MMWR standard, the Spinal Fluid study test of March 31, 1993, although interpreted as negative according to the new MMWR standard was considered as "equivocable' under the then existing laboratory standard. See Table 1.
TABLE ONE: COMPARISON OF SEROLOGY OF BLOOD AND SPINAL FLUID
ACCIDENT/OCCUPATIONAL EXPOSURE
It is difficult to cubby hole this litigation as an injury sustained either by way of accident or occupational exposure. Petitioner asserts that under either model of liability, petitioner has sustained his burden of proof under the existing case law.
ACCIDENT
The term accident is not formally defined by in the New Jersey Workers' Compensation Statute. A definition is provided through case law.
In City of North Wildwood v. Cirelli, 129 N.J.L. 302, (N.J.Sup. 1943) 35 A.2d 893, aff'd 131 N.J.L. 162, (E. & A. 1944) the Court set forth the salient facts: The Supreme Court of New Jersey concluded: In the case at bar, Petitioner asserts that he sustained Lyme Disease. The only known route of the disease is the bite of a tick. Petitioner asserts that under the holding of City of North Wildwood the tick bite which caused the Lyme Disease can be classified as an "accident". Petitioner further asserts that is uncontroverted that the respondent's place of business was in an endemic area for tick exposure. (Clearly, more than his residence which was protected by an 8 foot fence, and the traffic barrier of Route 22), and in a heavily wooded area.
According to the Fish article (Exhibit 19 at 4A-6S):Clearly common sense dictates against equating the risk of a child, who spends his/her working hours out of doors in their backyard with a individual who works eight hours per day on a golf course. Under City of North Wildwood, the Ccourt found that an insect bite could be the causative element for an accident. In the case at bar, Petitioner was bitten by a deer tick, and has developed Lyme Disease.
Our statute does define the term Occupational Disease.
NJSA 34:15-31, "Compensable occupational disease" defined

a. For the purpose of this article, the phrase "compensable occupational disease" shall include 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. (Emphasis added.)

b. Deterioration of a tissue, organ or part of the body in which the function of such tissue, organ or part of the body is diminished due to the natural aging process thereof is not compensable.

In Fiore v. Consolidated Freightways, 140 N.J. 452(N.J. 1995) , the Supreme Court of New Jersey established standards of proof in a claim arising from occupational exposure. The Court initially discussed the 1979 amendments to the Compensation Act. The Court in Fiore adopted a three prong standard of proof in a claim asserting occupational disability. A recent decision of the Appellate Division incorporated the Fiore three prong standard, Whritenour v. Township of West Milford, A-1883-94T5 (January 2, 1996), Exhibit 25 Factually in Whritenour, petitioner-decedent, was a janitor between 1980-1991. He "was required to clean rooms, clean, strip and wax floors; and clean windows. Petitioner worked in all areas of the school including the maintenance department, the boiler room, and the lobby." In 1985 the school had an asbestos removal. During that period the area in which the asbestos was being removed was curtained off. Petitioner described the working conditions during this period of time as "dusty". Petitioner smoked one and a half to two packs of cigarettes daily for thirty-four years and quit in January 1991. The petitioner ultimately developed cancer. The Judge of the Division of Worker's Compensation found compensability, noting "I find that the petitioner, as a school custodian, is in a large class and this kind of exposure has been peculiar to his occupation and place of employment" supra at p. 5. The Appellate Division affirmed the award of dependency benefits.
In the case at bar, the literature cited presents an overwhelming picture of the work related exposure of an outdoor worker to Lyme Disease. Even Dr. Sensakovic concedes the possibility of exposure to Lyme disease at the Respondent's premises During the course of his cross-examination Dr. Sensakovic was questioned on the concept of the burden of proof., and medical probability. "My understanding of the term is the conclusion that would be come to reasonably by the majority of practitioners in a particular area.: T.84-85. ..."Well, I think for reasonable medical probability in the things that I address, I am talking about usually 75, 80 percent of the individuals practicing in that given field at that level of expertise would make agreement." Clearly, the standard of proof asserted by the Respondent doctor is contrary to the standard applied in civil and administrative actions. .
Under New Jersey law, it is not relevant whether the Court considers the tick bite as an accident or as an occupational disease. Regardless of the cubbyhole, the incident must "arise from", and "in the course of the employment". Recently in Porter v Elizabeth Board of Education 281 NJ Super 13, 18-19 (App. Div 1995), the Court held: In Porter a teacher allegedly injured his arm while waving to students. The Court stated:
Accepting the holding and analysis of City of Wildwood, supra, and accepting Petitioner's argument that it was more likely than not that the tick bite responsible for transmission of the disease occurred at work, Petitioner was "exposed to a greater hazard than were members of the general public." City of Wildwood at 545-546.
NJSA 34:15-31, the occupational section of the statute, also utilizes the language of "arising out of and in the course of employment, which are due to a natural degree to causes and conditions which are characteristic of or peculiar to a particular trade, occupation or place of employment."
In the case at bar, the Somerset Country Club is in a prime location for Lyme Disease. The Country Club is predominantly wooded with large sections bordering the golf course of the brush and rough which, according to all literature, is a perfect breeding ground for the ticks which transmit Lyme Disease.
Mr. Bird's job required him to be exposed to the danger of tick bite during virtually his entire working day. The clearing of trees and leaves, the mowing of lawns, greens and fairways, trimming bushes and other job functions characteristic of a golf course attendant are peculiar to his employment and place of employment.
By analogy to the factory worker at Johns Manville, who owned his own home with asbestos insulation and was exposed to asbestos at home and work, to accept Respondent's argument it would be impossible for a Court to find compensability since exposure could occur both at work and residence. However, "common sense" would dictate that the work environment would be a sufficient factual basis for a finding of compensability.
In the case at bar, both treating doctors by elimination of risk factors have shown and/or testified that the work environment was the "more likely" location for Mr. Bird's tick exposure and bite. During his testimony Dr. Weisenreider affirmatively responded to a hypothetical the causal relationship of the work environment to the Lyme Disease. Following the hypothetical question, the Court asked Dr. Weisenreider to explain, why he maintained this opinion: Dr. Weisenreider was again questioned on the issue of relationship of the employment to the tick bite in the context of his letter to PMA Insurance: In Gilligan v. International Paper Co., 24 N.J. 230,235-6 (1957) Jusitice Jacobs addressed the social policy and remedial nature of the Compensation Act and ruled: Even Dr. Sensakovic conceded to the Court's questioning that "common sense" would dictate that the more likely source of the tick bite would be the work environment than a residence. T. 59-17. Dr. Sensakovic then testified that field data disagreed with common sense. It is interesting to note that respondent's expert rejected multiple studies of serologic and clinical diagnosis which asserted that occupational exposure was a substantial risk factor, asserting that he disagreed with the underlying data.



WEIGHT OF EVIDENCE/BURDEN OF PROOF/ RULES OF EVIDENCE
Our courts have consistently held that a treating physician in a Workers' Compensation case 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. Bober v. Independent Plating Corn., 28
N.J. 160, 167 (1958); DeVito v. Mullen's Roofing Co., 72 N.J. Super. 233, 236 (App. Div. 1962); Celeste v. Progressive Silk Finishing Co., 72 N.J. Super. 125, 143 (App. Div. 1972). Furthermore, our courts have also consistently held that where medical testimony is in conflict, the greater
weight is to be given to the treating physician. Pelliarino v. Monahan McCann Stone Co., 61 N.J. Super. 561, 577 (App. Div. 1959), aff'd. 33 N.J. 73 (1960); Bisonic v. Halsey Packard. Inc., 62 N.J. Super. 365, 382 (App. Div. 1960); Abelit v. General Motors Corp., 46 N.J. Super. 475, 480 (App. Div. 1957); Mewes v. Union Building & Construction Co., 45 N.J. Super. 88, 94 (App. Div. 1957); Bialko v. H. Baker Milk Co., 38 N.J. Super. 169, 171 (App. Div. 1955).
In Bober, supra at 174, the Supreme Court of New Jersey reversed and reinstated an award of compensation for an occupational injury.
The Court evaluated the weight to be given to expert testimony of a treating physician and an examining physician. The Court further evaluated the burden of proof to be utilized.
On the issue of giving greater weight to a treating physician, the Supreme Court of New Jersey ruled:
In the case at bar, although his article on diagnosis stresses the importance of "clinical" findings and use of serology as confirmation, Dr. Sensakovic never examined the patient and disagrees with Dr. Weisenreider, the treating doctor, who made the differential diagnosis on the basis of the clinical exams and confirmed the diagnosis by serology.
According to Dr. Sensakovic, the burden of proof is 75 to 80%. Perhaps Dr. Sensakovic felt that the burden of proof was by the "conclusive" standard utilized by the PMA claims representative. See Exhibit 18. During the course of his cross-examination Dr. Sensakovic was questioned on the concept of the burden of proof and medical probability. "My understanding of the term is the conclusion that would be come to reasonably by the majority of practitioners in a particular area." T.84-85...."Well, I think for reasonable medical probability in the things that I address I am talking about usually 75, 80 percent of the individuals practicing in that given field at that level of expertise would make agreement." Clearly, the standard of proof asserted by the Respondent doctor is contrary to the standard applied in civil and administrative actions.
In Bober, the New Jersey Supreme Court ruled: In Celeste v Progressive Silk Finishing Co, 72 NJ Supra 125 122-143 (App. Div 1962) at 142 the Appellate Division of the issue of the burden of proof ruled:
In Orvito v. Miller's Roofing Co. 72 NJ Super 233 (App Div 1962), the Court cites to Chief Justice Weintraub's opinion in Dwyer v. Ford Motor Co. 36 NJ 487, 178 A.2d 161 (1962),
In the case at bar, both treating doctors have opined that Mr. Bird had Lyme Disease, and that it was more likely than not related to his employment. The basis of the diagnosis was supported by both their clinical examinations and blood testing.
It is axiomatic that a Workers' Compensation Judge is not strictly bound by rules of evidence and procedure. However, at the same time, a Workers' Compensation Judge must respect and insure due process and fundamental rights of the litigants. Jasaitis v. City of Paterson, 48 N.J. Super. 103, 109 (App. Div. 1957), aff'd. 31 N.J. 81 (1959). As noted in 82 Am.
Jr. 2d Workers' Compensation, Sec. 477, pp. 235-236:
In Gunter v. Fischer Scientific American, 193 N.J.Super 688,691 (App.Div., 1984) the Court noted:
During the course of the trial, both experts referred to and relied upon medical journals, and other writings in support of their opinions. Also, during cross-examination the experts were confronted with various articles. Petitioner moves that all Journals, although technically hearsay, should be admitted into evidence. Petitioner further moves that this Court accept as affirmative evidence the article which Dr. Sensakovic is listed as a contributor (Exhibit 20, "Guide", and Footnote nos. 25-26 of the Fish article; in lieu of recalling the Doctor to the stand and confronting him with the apparent contradictions.
Recently our Supreme Court, in Jacober by Jacober v. St. Peter's Medical Center 128 N.J. 475,495-497 (N.J. 1992) has modified prior case law on the use of Learned Treatises. According to N.J.S.A.34:15-28.1. Delay or refusal in payment of temporary disability compensation; penalty: In the case at bar, in March 1993 Petitioners employer filed a notice of accident with its insurance carrier. The carrier requested and received the medical records of the treating physicians. Both, doctors agreed in their diagnosis and both related the disability to the employment. Between March 1993 and the receipt of the report of Dr. Sensakovic in October 1995 the carrier had no basis to deny medical treatment and temporary disability.
The carrier's bad faith is clearly demonstrated when one considers that Dr. Sanford Lewis found the petitioner totally disabled at the time of the exam, suffering from the residuals of Lyme Disease, and could not state that the condition did not arise from the course of his employment.
The carrier's refusal has pushed the petitioner and his family to the verge of bankruptcy. Petitioner asserts that that it is irrelevant whether or not the carrier had any reason for its failure to pay temporary and medical bills. In Amorosa v. Jersey City Welding & Mach. Works 214 N.J.Super. 130, (App.Div. 1986) Petitioner-employee Frederick Amorosa appealed from a post-judgment order of the Division of Workers' Compensation (Division) denying his motion for interest pursuant to N.J.S.A. 34:15-28 and a penalty and legal fees pursuant to N.J.S.A. 34:15-28.1 on a judgment he recovered in the Division against respondent-employer Jersey City Welding & Machine Works. The Court set forth the factual background: In Amorosa the Appellate Division rejected a "good faith defense" to the statutory penalty provision of the act.

























DAMAGES: MEDICAL BILLS AND OTHER LIENS

Two liens have been filed todate in the case at bar. The liens are as follows:
· TDB See Exhibit 26.
· Lincoln National Insurance Company. See Exhibit 27.
Further medical payments have also been made by the Metropolitan Life Insurance Company, and the Travelers Insurance Company. See Exhibit 28. It is not known to what extent the travers payments represent, payment of the deductible and/or co-pay. The present medical carrier is Met Life.
TABLE TWO-MEDICAL EXPENSES AND COSTS

Petitioner called as a fact witness a representative of Lincoln National Insurance Company to describe the manner the medical bills were reviewed, and the claim process. During the course of Ms. Baye's testimony the Court requested her to supply a detailed analysis of the medical payments. This information was recently faxed to the office of the Petitioner's attorney and is attached as Exhibit 29.


















CONCLUSION


For the above stated reasons this Court should award the Petitioner Temporary, and medical benefits together with statutory penalty.


Dated: February 9, 1996 ________________________________
Eric S. Lentz

The Lyme Disease Network of NJ, Inc.
43 Winton Road
East Brunswick, NJ 08816
http://www.lymenet.org/