LymeNet Law Pages
Case History Document
Bird v Somerset Hills Country Club
Title: Petitioner's Brief in Support of Claim for Worker's Compensation Benefits40
|Entered By: Ira M Maurer/LymeNet||Date Created: 10/27/97|
|Document Type: Other|
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:
...there is sufficient evidence for a diagnosis of Lyme disease in this patient. He has not yet responded fully and there is no way of knowing, of course, how long this will take. Not all patients are cured... As of the present time the patient appears to be totally disabled as a result of the illness, but this does not necessarily mean that this will be a permanent situation especially since the Lyme titer is now negative. The tick which causes Lyme disease can be found in any outdoor area. This would include the Somerset Hills Country Club, the area where the patient lives, places where he may have gone on weekends, etc...
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.
The patient now has clinical syndrome that has sometimes been termed post-Lyme fatigue, not like the chronic fatigue syndrome associated with elevated antibody titers against the Epstein- Barr. Neither the Epstein- Barr associated chronic fatigue nor the post-Lyme fatigue is clearly understood and no treatment is available for either condition. ...
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:
I cut the greens and the tees with a walker
mower. I cut the fairways and the rough with
the riding machines. I cut the verges of the
greens, tees, sandtraps, creeks with a weed-
whacker, and I cut various areas of brush
with brushhogs, which is a weed-whacker
device, chain saws and chippers which we
used chippers in the winter. I rode a little machine
to repair the sandtraps, and in the Fall, we picked
up the fallen limbs and raked up leaves and
things. It was again cutting the grass and main-
tenance of the golf course. (T5-30-95) 4 at lines 14-23.
Mr. Bird described the makeup of the golf course as approximately 260 acres
Very rough terrain ... It has some streams running
through it and some lakes, a lot of trees but it is generally
pretty hilly. T. 4 lines 17-21.
Of the 260 acres only part of the course is developed
which would consist of the fairways, greens, trees, what
we actually used to play golf. The rest of it is wooded
land. T. 6 at lines 10-12.
Petitioner described the wildlife at his job site in the following manner:
Mr. Bird described the deer exposure in the following manner:
We have the woodchucks, squirrels, deer, ducks, geese,
chipmunks, birds. I think there's a little bit of everything.
Fish in the pond, beavers. There's beavers there. I even
saw a coyote or two out of there. T. 6 at lines 15-18.
Q. Okay. When you say deer, how many deer have you
observed on the course? Is it one or two or is it more
A. There is a lot of deer there in the Fall when the apples
are there. They come over to eat the apples. And
I've seen them 30 or 40 at a time.
Judge: They come on the golf course?
A: They come among the golfers and eat the apples.
Judge: You have apple trees on the golf course?
A: Nice ones. The land was formerly owned by Mr. Oldcott (phonetic) who did a lot of development in Bernardsville,
and he had his house on the golf course, and when the golf course was built, his house was either burned down or removed.
Q. Now, other than the apples that the deer eat, did you observe them eat anything else on the golf course area?
A. I've seen deer browsing through the woods. I don't know what all they ate, acorns or whatever. They eat some of the flowers, the shrubs around the clubhouse. We had to put wiring, fencing around it, to keep them away from that, from damaging the shrubs.
Q. Did you ever see evidence of that?
A. Oh, yes. We've been asked to put up the wire, protection, by the people that ran the clubhouse, because they were damaging it, and I've seen the damaged bushes, yes.
Q. And what did they look like? How did you distinguish it was a deer as opposed to somebody else eating it?
A. Well, they actually eat the leaves and part of the branches, and they generally come out in the evening to feed, but primarily we wanted to put up the fence because people at the club told us to because they were destroying the club.
Judge: What height were the leaves?
A. These shrubs varied, rhododendrons, different types.
Judge: I don't know what that means. Ground level or some other height? You tell me.
A: I didn't pay that much attention to it. I know they were eating them and we had to put up the wire. Some of the shrubs went up to five or six feet, and I guess they ate what they could reach. (T7;T8, Lines 1-23)
Mr. Bird's work at the golf course depended upon the season.
Each ... every winter you had to clean up after the winter's
damage and get the course ready. You'd have to repair
and wash down areas. I think generally it's about the
same every year, the cleanup. The Committee meets and
decides which trees they want to take out each winter and
those trees are removed, there may be some new ones put in place and the old ones taken out of another place.
Q. So that would be the month of March.
A. March. March is cleanup.
Q. What would you do in April?
A. April. The grass is growing, we're getting the course
ready. We're trimming the brush along the - like I
said we're trimming out the ditches where water runs
through different places, washed out areas. We're
putting in roads, fertilizing. The superintendent has
a shifting through the spray for insects and various
things, but April we're busy getting the course ready ...
Q. Now after April we're going to go to May, June and
A. After April, once the grass is growing well, there is
generally cutting, cutting everyday. Cutting the
fairways every other day. Cut the greens everyday.
Cut the roughs, 200 acres, once a week. (T6-20-95),
T10 at line 4 to T11 at line 15.
Q. Now as we go into the Fall year, what functions did you
have on the golf course, if any?
A. In the Fall there was -- one of the biggest things was getting rid of the leaves. The leaves start coming down.
Q. And what would you do relative to the leaves, and how
would you remove them?
A. With my men, the rough cutting machine, I chop them up quite a bit and then I would have these huge blowers
that would blow them to the side. If we were blowing
them off in a chopped up position there wasn't as much
as blowing them in a whole. And I think that was the
biggest thing in the Fall, was getting rid of the leaves.
Q. What other job functions did you have in the Fall?
A. The course was still open up through October. In fact
we had players come in November and December even,
and we'd have to keep the course in condition for the
players to play, so generally we did the same thing we
did the rest of the year, we just didn't have as much
grass to cut in the Fall, it didn't grow as fast.
T20, line 21 to T21, line 16.
Q. What would you do in the Winter?
A. In the Winter we would go through all of the equipment
and recondition it, clean it, paint it, and repair roads,
remove a lot of trees, dead trees, which were marked
for removal or trees that were in the way, repair the
building, paint. We added a lot of parts to our building
and there was always construction going on in the
Winter. The most important thing was to repair the
equipment and get it in condition for the Spring.
Q. Between March of 1989 and approximately October of
1992 did you have occasion to clear any of the lands
either at the golf course or adjoining the golf course?
A. We cleared -- we removed trees continuously. We
would even do that in the middle of the year if one
was damaged by lightning or if one fell, the wind
blew it over. Trees were always removed when they
were in the way. Most of it was done in the Winter,
but that was a year round job, and particularly in
the Spring and Summer when the brush along the
creeks and the verges became a problem, that had
to be removed. T21, line 23 to T22, line 20.
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.
Q. Now, when you would do the lawn maintenance or
the greens maintenance - I have to use the right vernacular - what type of equipment would you use?
A. Well, for the greens and tees we used a walking mower.
Q. When you say a walking mower, would that be the same
type I would use at home or is it a special type?
A. Yes. We walk behind it.
Judge: You walk behind it, but it's not the same kind you use at home. He's thinking of those little reel things.
A. Not a rotary. It's a reel type, it picks up the grass as we cut it.
Judge: You use more than the old-fashioned mowers that we used when we were kids to cut our own grass.
A. They were very good.
Judge: But they don't have that anymore -- is that what you use?
A. Yes. We cut everything with reel mowers except the rough.
Judge: But you're using it with a bag, aren't you?
A. For the greens and tees it's a reel mower, 16 inches long, every day.
Q. And when you would do this, what position would your body be in behind the mower?
A. You walk it just like a regular mower. It's self-propelled.
Q. And you would be walking throughout the course?
A. Yeah, you go down and you come back 'cause you cut -- cut the entire green. T. 12, lines 16-25; T. 13.
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.
Get tired quicker than I used to. May have heart murmur. Have occasional heart flutter. Very rarely. Heart may race if situation dangerous, like near traffic accident. See Exhibit 13.
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
...in looking at possible causes of fatigue, from what I considered, some of the more common reasons which I considered, i.e., endocrinologic explanations, infections, infection explanations, a cancer malignancy possibility as well as a psychological reason. When I directed my lab evaluation, it was for the purpose of sorting out whether any of these things would become evident or help me if you will. T. 17-19 to T.18-1. All references to the Transcript of Dr. Weisenreider are from November 14, 1995 unless otherwise stated.
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.
Well, if, for example, your child develops measles or chickenpox, the body will initially respond with an acute antibody called an IgM antibody and subsequently with large antibodies called IgG antibodies. So when you evaluate a patient, the labs will sometimes do a screening, what they used to call a Lyme Elisa. Like, if the patient is initially negative, the Western Blot is really the confirmation for detecting bands, if you will, confirmation that you're not dealing with an equivocal or false positive screen test. The lab does IgG and IgM antibodies that are specific antigens of the antibodies. T.19 lines 10-21
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.
On the basis of the information above, one would predict that the people most at risk for getting LD (Lyme Disease) would be those who spent the most time out of doors, in the "at-risk" environment and this is true. Adventuresome and exploring children get Lyme disease more often than sedentary people. Twenty-five percent of cases in New Jersey between 1978 and 1987 were children below the age of ten (Table 5). Telephone linesmen, people involved in forestry or other maintenance work in endemic areas, as well as people whose hobbies involve being in such places like hunters, campers, and hikers are also at increased risk. If your gardening is done some place where there are lots of deer or your vegetable patch is located next to brush or scrub on the verge of forest you are also at risk. See Exhibit 20. Emphasis added.
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:
Throughout its life cycle, the tick depends on the mammalian host for meals. The most common hosts are mice and deer, although a variety of other animals can serve as hosts as well. Therefore, areas where there are a lot of deer (you will not see the mice), are probably at risk; the sight of deer munching on your azaleas was once heartwarming, but no longer. However, we now know that Lyme Disease occurs even in areas without deer; other medium to large size animals substitute as the primary host for animal ticks. If your lawn is separated from the forest by only a little brush, then the border between your forest and the property is a prime area for ticks, suspended on grass and shrubs, as noted above. (Modern developers have taken great pride in providing a natural environment and saving as much of the forest as possible. By scalloping plots out of the forest, they have maximized the very border niche preferred by ticks and mice and thereby have deposited new homeowners in an optimal environment for Lyme Disease). If you want to walk in the woods, the most likely areas for tick residents would be the areas immediately adjoining deer paths. The deer "shed " ticks as they walk these paths, the eggs are laid, and the ticks live in this area; ticks do not wander very far and may never see much more than a few yards of the world unless carried elsewhere by a bird, dog, deer, or human.
Considering the above, it is obvious that a neat lawn in suburbia, not near a forest is not a major risk area unless it is an area frequented by deer. In general, however, lawns are a hostile environment for ticks as the ticks are more likely to dry out without shade and ground leaf clutter to protect them. A lawn in an urban area is also not an area of concern. It is the more rural areas which are at the most risks, and one can easily learn which areas are the hot spots of LD. Despite the figures (Table 2), one cannot generalize about an entire county any more than one can generalize about an entire state. There are areas of Ocean and Monmouth counties which represent centers of Lyme Disease, but other areas which are relatively free of the disease. Local conditions will dictate this variation and it is worthwhile for the practitioner to keep track of changes in endemnicity in his or her areas. See Exhibit 20, Guide at III-4
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.
According to this article, "Outdoor workers have an elevated risk of Lyme Disease. This risk has been defined in several cross-sectional studies and a few longitudinal studies of relatively short duration. The longitudinal studies of the disease performed to date have generally assessed clinical Lyme Disease or the presence of antibody to Borrelia burgdorferi, the causative agent, at two points separated by 6-12 months and have focused mainly on populations at risk by virtue of area of residence. " The article further states, "Outdoor workers have been reported to have a four-to sixfold elevation in risk of clinical Lyme Disease or seropositivity for antibodies to B. burgadorferi." At p. 504. The longitudinal study also compared the risk of pet ownership which was not a major risk factor.
· 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.
The article states in its introductory paragraph, "Outdoor workers have been found to have an elevated risk of Lyme Disease. In 1988, we reported on a population of outdoor workers in New Jersey with an overall seroprevalence of antibody to Borrelia burgdorferi, the causative agent of Lyme disease, of 8.1%(56 out of 689 workers had at least one positive serologic test). Workers in this population who reported exposure to ticks on the job had a fivefold elevated risk of infection." In the second longitudinal study in New Jersey, there the overall risk increased from 8.1% to 18.7% overall risk to state outdoor workers. See p. 1747.
· 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.
The authors report and cite to other studies "A 1982 comparison of outdoor versus indoor workers at Naval Weapons Station Earle revealed a five-fold higher cumulative incidence rate for Lyme Disease among outdoor workers. Finally, a recent study by Smith , et al , of 414 outdoor workers in southeastern New York state revealed a Lyme Disease seroprevalence of 6.5% among these employees. This was 5.9 times higher than the seroprevalence of a comparison group of anonymous blood donors from the same region." At page 1228.
· 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.
This journal reports again on the data at the Naval Weapons Station in Earle. It further provides a better description of the Earle test. "We divided persons at the base in 1981 into several categories based on occupation or presumed reason for being exposed to ticks at NWSE. The number of persons employed at the base in each occupation who worked indoors or outdoors was determined for Lyme Disease was calculated for each occupation and for all persons with indoor jobs and outdoor jobs. An indoor job was defined as one in which all of the person's day was spent in an office; outdoor movement between offices was confined to paved or lawn areas. An outdoor job was one in which the person regularly worked in woods, brush, and tall grass away from lawns and paved areas."
· 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.
According to the epidemiological comment, " The epidemiologic characteristics of Lyme disease in New Jersey reflect the fact that tick exposure is required for transmission. The male-to-female sex ratio was 1.9:1. Some of the excess in men is occupationally related. Thirty-two of the 117 patients (27%) were men with outdoor occupations. Among these are military personnel who are outdoors for training and other official duties, camp counselors, and state and county health, forestry, wildlife and vector control personnel. The concentration of cases among the 20- to 40-year age group also reflects these occupations as well as outdoor recreational activity in this age group."
Landscape and Risk
Forested landscapes where deer and other forest dwelling mammals are abundant set the stage for Lyme disease risk, but
not all such landscapes represent risk. Because I. scapulans is
still expanding its range both in the Northeast and upper Midwest,
the present geographic distribution of Lyme disease risk is not
stable. Areas currently endemic for Lyme disease can be identified
by the presence of I. scapularis on hunter-killed white-tailed deer and antibodies to B. burgdorfen in unvaccinated domestic dogs. Human
case reports are helpful, but they do not always coincide
with endemic risk because of travel histories and misdiagnosis.
The distribution of risk within known endemic areas can be
characterized further by specific landscape features. Proximity
to forest patches capable of supporting populations of deer is
generally a good indicator of risk in endemic areas. This risk be
modified by local landscape characteristics that influence the
potential for the introduction and survival of ticks. Wooded
residential landscapes and associated edge (ecotone )areas
were found to have three to six times as many nymphal deer
ticks as ornamental plantings or lawns.
Lawns have relatively few ticks even in highly endemic
communities, but those few ticks that survive in this less
favorable environment may pose the greatest risk to human
residents. A study of I. scapularIs bites acquired by people
living in Westchester County, New York, revealed that 69%
of victims were bitten at home, compared with 4% at work, 9%
at recreational activities, and 8% at all other locations (e.g.,
school, hunting)  Footnotes "25," will be discussed in greater detail with a detailed analysis on the underlying journal data . Apparently Dr. Sensakovic bases his supposition of residential exposure mainly on this study.. The peridomestic nature of Lyme disease in the large suburban metropolitan areas of the Northeast is unquestionably
responsible for its high prevalence in this region.
The risk of acquiring Lyme disease from recreational or
occupational activities is less well studied. Exposure to forested areas where Lyme disease is endemic is an obvious risk for naturalists and hikers, and studies of many recreational parks in the Northeast have found deer ticks to be prevalent. [26,27] In communities with high peridomestic risk, it is difficult to attribute Lyme disease to occupational or recreational activities because relatively few cases are associated with a specific tick bite. A known tick bite is a relatively poor predictor of Lyme disease, because only 1-3% of reported tick bite incidents result in disease. In contrast, 86% of persons with Lyme disease are unaware of the causative tick bite. Clearly, exposure to ticks is a more important determinant of risk than are
specific incidents of tick bite.
Pets may contribute to the risk of Lyme disease in endemic
areas. Ownership of a cat was associated with Lyme disease
before it was proven to be tick borne, and surprising numbers
of I. scapularis nymphs have been found on cats entering
the home after roaming outside in a highly tick-infested area
Dogs are also excellent hosts for I. scapularis. Moreover,
dogs have been found to be reservoirs of infection for B.
burgdorferi, but their importance as a source of infected
nymphs in the peridomestic environment has not been
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.
THE COURT: People usually live fairly close to where they work too, don't they?
THE WITNESS: I guess it's hard to tell today. I think in the relevant study they certainly did because most of those were military personnel. I am not too certain about the EPA. I don't think that was looked at in that study.
THE COURT: Actually I was wondering, Doctor, what I am most interested in, I shouldn't say most, what I am interested in as a Compensation Judge is the specifics of the individual's exposure. Now, I don't know if that is that important to you as a physician, but when you are talking about the people having an exposure where they live what is it that they are doing when they are exposed?
THE WITNESS: There is reasonable data to show that from residential exposure you don't have to do a whole lot. You can play with your dog after the dog was running around in the back yard and brought the larva into the house, and that's sufficient to get infected. You could go out in your backyard. and walk around the edges and the shrubbery and be unfortunate enough to brush up against the bush where there are larva and get bitten. You don't have to go out of your way to get exposed in those counties where there is a high prevalence of infected ticks.
THE COURT: What you have from what you have just told me, Doctor, from the person doing those activities very likely will have more time on the golf course walking around the leaves and the edges and the trees and the brushes than he would walking around his property or playing with his dog at home. He is doing one eight hours a day, and the other for something less than eight hours a day, is that right?
THE WITNESS: Well, common sense might suggest that... T58-2 to 59-18
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.
It is important to note that the results of this study relied solely on attached ticks being discovered by persons who later submitted them for identification. The results are therefore biased because the study contains only those victims (or their parents) who were aware of tick bites and concerned about tick identifications. Conclusions drawn from these results should be viewed in light of these conditions. Exhibit 22, at 1148. [Emphasis added]
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.
Judge: Do the numbers of the data that you reviewed, is this covering people who work in the outdoors for a living, grounds keepers, landscapers specifically as a category?
A: Groundskeepers specifically and golf course workers specifically as a category were not singled out. People who worked in outdoor environments were looked at in the Westchester study.. .. .T.54-24 to T.55-9.
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.
Judge: Doctor, would you change your diagnosis for a patient that had been under your treatment, due to the standards to interpret the lab tests had changed, over a period of time?
A: ... The historical basis, from my point of view -- at the time Mr. Bird was seen, the lab criteria was defined at that time. The last definition of the National Health Lab, in the clinical setting of his complaints, did the laboratory serology. Both of his blood and spinal fluid. Did it in anyway jell with the clinical entity of Lyme disease? Based upon the clinical and serological testing, I had enough evidence to support antibiotic intravenous therapy. And at that time, I say yes.
THE JUDGE: Today?
A: Today, I think we have positive blood serology that still confirms that Mr. Bird had Lyme disease. But by definition his spinal fluid, IgM Western blot didn't fit the current changed criteria. He has two bands present, not five. Now inherently there is, they are a lot of problems with the serology testing for Lyme's disease, unquestioned. If you have a persistently, consistent positive on the blood, from what is written in the literature, you have a pretty good case. That the patient doesn't have a false positive serology for Lyme disease. When you get into the issue of spinal fluid he was dizzy, a little more dizzy because patients on antibiotic, which may cross -the blood brain barrier, may defect the antibiotics, not because they are active infections in the spinal fluid or the brain, but you are reducing the blood that has crossed into the central nervous system by way of this blood brain barrier. The serology of the spinal fluid can vary from test to test. The technical issue about Western blot testing, and I am no lab research physician, they are some technical issues about bands clumping together on Western blot testing and certain P destinations that are close to each other may actually all clump together. And you may just interpret it as P30 presence, where actually it is P29, 30, 31 et cetera. I would conclude, in my own mind, that the original serology that was done was consistently and persistently positive for his blood. The spinal fluid may not meet the later criteria that became effective, for us in clinical use, in June. It may have been decided upon a few months earlier. But I think that in my mind -- the basic issue is, did Mr. Bird have Lyme disease. I don't think that anyone at the moment disagrees, and I have had the privilege of reading consultations that were provided to me from other physicians, to confirm that. And I am not just talking about the physician I sent the patient to. I don't think anything argues that Mr. Bird had Lyme disease. The question that seems to come to light here is -are Mr. Birds symptoms due to Lyme disease? Does Mr. Bird have active Lyme disease? At this point in time, my personal feeling is Mr. Bird got his definitive course of the antibiotic therapy that would adequately treat Lyme Disease, Arthritis Lyme Disease, Heart Lyme Disease. What he is left with now is this post Lyme disease syndrome, that is defined in the literature on Lyme Disease. And I brought that the last time with me. There is an article from the same magazine, the American Journal of Medicine from a Dr. Siegel of New Brunswick about persistent complaints. And in essence, what that article and others have suggested, are that patients that have Lyme disease, even if there is no active central nervous system infection, there is a post infection syndrome that can occur in patients who have had Lyme disease, more than just the early stage. Patients present with a rash, that's a symptom of early Lyme Disease, and that is due to perhaps some autoimmune mechanism. Like a patient with rheumatoid arthritis the joint process and autoimmune process are like that of patients who have had Lyme Disease. This is similar to fibromyalgia syndrome or a term which is called, in medical literature as encephalitis which is cognitive in brain disjunction, and no active disjunction in the central nervous section of the brain. These patients may complain of fatigue, and achiness of the joints. They may have most of what Mr. Bird has complained of including some memory loss or memory problems and not have the active disease infection anymore. But it's a consequence of the infection, which according to the literature means the autoimmune process may damage the central nerve system, and how long this takes to evolve is unknown. It's a lot of controversy about the issues of what's some people call chronic. This particular article may feel that it does exist. It does occur after Lyme Disease, and I still think Mr. Bird had Lyme Disease. I can't tell you what stage of Lyme disease, based on the serology that we did at that time. In other words, looking back at the changing criteria, what would I have done with Mr. Bird if he walk in my office now, and we went through the same symptoms complaints and spinal tap results. I think, in my own mind, I would have still given him -- committed him to antibiotic therapy and said you got your treatment course here. There is a lot the controversy. There is a lot of gray zones. Perhaps it all might have been answered in the original polymerase chain reaction test. The first spinal tap had been done, quite frankly when I got the call from the Ph.D who ran the lab at our institution and when he had submitted the spinal fluid results. He had order a polymerase chain reaction test, and when the interpretation came back positive, I felt at that time, there was no need to do another polymerase chain reaction test, which would have cost in the vicinity of $400 to $600, if it was done. The legal issues of his spinal tap being positive may have been clearer, but based upon the criteria that we now have to interpret the spinal as equivalent and equivocal. He had two major bands that are still positive. T.(11/28/95) 6-25 to T.11-22....
Judge: Doctor, is it my understanding the course of this disease manifest itself, up front with that bulls eye type rash?
JUDGE: Not always.
A: A rash can be there and the patients may not see it because it is in a location that they didn't look for. And it can comes and goes.
JUDGE: So the disease may manifest itself and the patient doesn't know. The patient may or may not have symptoms, correct?
A: They are some patients who skip the early manifestations of Lyme disease and show up with, if you will, the next stage, yes. And then there is --we have some periods where people frequently have minor or no symptoms and the disease come back later with a vengeance. They may have symptoms that they are not attributing to be significant enough for certain periods of time. In other words, I feel a little more tired lately. I am working harder or not sleeping or giving it another reason. I feel achy, yes I am 50, I am 60, I have a little rheumatism. They may have symptoms but they might not correlate it altogether until the symptoms become significant enough that they know something is really wrong here. I can't get my head off the pillow. I have no energy. They may have the symptoms but they were mild and they didn't know how to attribute the symptoms to the problem.
JUDGE: Is the medical society on the learning cuff of this disease?
A: Yes, absolutely. I don't think the jury is in, if you want to use that expression, on the disease.
JUDGE: But if I understand your testimony, so far today, that even with the new standards, most recent standards based on your clinical observation and the test results that you do have, you would reach the same conclusion and prescribe the same treatment?
A: Yes, I think so. As a matter of fact, I am sure, yes.
JUDGE: ... How can I be sure this problem isn't the manifestation of some malaria or something?
A: Actually, we didn't get into that, unfortunately, I didn't have the time to go over my charts, but there were other lab test which I have considered because I was quite skeptical myself. And the notes that I made, read basically - I wrote down I am having trouble attributing this man's problems to Lyme disease, until proven otherwise. I did malaria smears, we did several kinds of unusual infection evaluations and blood cultures and even test that would make his Western blots be falsely positive and they all came out negative. I think, if you will, that I became a believer, if you want to use that term, by way of what he had, and by way of exclusions. Also I think from assessing the patient over a couple years. That was my first encounter when he came in with this. I even tried a couple times putting him, Mr. Bird on some non-drowsiness anti-depressant to see if Mr. Bird got better without getting into psychiatric consultations. At that time he had absolutely no response to the new courses of non-drowsiness anti-depressant, and dealing with Mr. Bird over the last several years, I think it is my opinion that Mr. Bird is generally an individual who wants to work. I don't believe he is a malingerer, and I don't think this is a psychiatric illness issue. I think that Mr. Bird had Lyme disease and I think that in reviewing the literature, the literature is consistent with the fact that the literature believes that, that entity does exist.
JUDGE: These conclusions that you have just expressed to me, was this part of your necessary thought process and handling this patient over this period of time. Or is it just your impression of the person as a person?
A: No, I think this is part of the decision- making process. I have to think of every possible diagnosis, if you want to use that term, so I can best help the patient. If the patients is chronically fatigue because they are depressed, and I miss that and I don't use the appropriate therapy, I am not treating the patient appropriately. T.13-12 to T. 17-2
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
Q. In your opinion it's just Lyme's disease?
... There are criteria to suggest that a patient has an on going viral infection with Ebstein Barr virus. But from my nderstanding of the literature it takes more, it takes more than that, it takes more than the antibody to be positive. To find this chronic Ebstein Barr virus issue. My interpretation of this result and the one's that I did, is that Mr. Bird's Ebstein Barr virus at some point in time in his life, he had mononucleosis. This does not fit Ebstein bar virus cause chronic fatigue syndrome, according to literature. That is certainly suggested and discussed as one of the alternatives. Does his serology fit that picture, not in my mind, at least.
A. Serology is necessarily consistent with that.
Q. And he tested negative for CMV?
Q. I don't can't pronounce it properly, so I'll call itCMV?
A. He was also tested for a lot of other things, but they were all
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.
Judge: And he had five of them present if you look at the line above, two lines above that on the report it mentions that are in there.
Q. Doctor [Sensakovic], that would be based one upon the criteria of the MMWR?
A. This would be positive for seroprevlaence, yes, it would.
Q. Doctor, based upon the latest studies by the Center for Infectious Diseases in Atlanta that would be a positive test?
A. According to that interpretation this blood tests seropositive, that is correct. T. 90 lines 1-14.
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 FLUIDACCIDENT/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:
On August 5, 1940, decedent was in the employ of the City of North Wildwood as a life guard. In accordance with his prescribed duties he was clad in the regulation apparel of the municipal life guards, consisting of trunks and jersey, which left the arms, [129 N.J.L. 303] shoulders and legs exposed, and he was on duty from nine in the forenoon to five in the afternoon. Between two and three o'clock in the afternoon of that day, so clothed, while sitting in the performance of his duty on the life guard stand, he was bitten on the left forearm by an insect, probable by one of the many greenheaded flies that had been brought in by a west wind and were at the time infesting the beach front. He slapped his arm, contemporaneously remarked that something had stung him and began scratching at a red spot that almost instantly developed. The arm became inflamed and much swollen. Within two days suppuration had reached the point that, upon pressure, pus discharged without incision. Cirelli became worse, suffered from chills and fever, had severe pains in the groin and was taken, on August 23, to the Atlantic City Hospital. Despite hospitalization and medical treatment he died on September 24 from staphylococcemia, a pus condition which follows the introduction of staphylococcus bacteria into the blood stream. It was the opinion of competent medical witnesses, which we accept as correct, that the point of entry of the staphylococci was the weakened skin tissue at the locus of the insect bite. Death was the result of the insect bite. City of Wildwood at 29 A.2d 544,545
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.
...that "where the puncture is caused without the person's knowledge or forewarning and by a foreign agency not within the person's control the act may properly be deemed an accident. Therefore, we find the insect bite to have been an accident." The Court further ruled that "the accident occurred in the course of the [129 N.J.L. 304] decedent's employment. We are of the view that it also arose out of the employment. We are not persuaded otherwise by the suggestion that it was only by chance that the insect did not bite someone in the vicinity who was not a life guard or that there were doubtless other insects prepared to inflict themselves upon individuals in the neighborhood regardless of employment. There was, we think, a causal connection between the decedent's employment and the accident. Decedent was held to that spot by his duty; he could not seek shelter. It may be deemed a matter of common knowledge that a life guard at a bathing beach has his station, his point of free observation, from which he is to keep in view persons who are bathing and swimming; he has not the freedom of one not so limited to seek, at will, relief from tormenting insects by a plunge in the waves. The decedent was obliged by the terms of his employment to wear a garb which left his body vulnerable to insect bites. He was not at liberty, immediately the incident occurred, to leave his position to apply a corrective lotion. Thus, by limitation of movement, be required move of dress and by hours of service the decedent was, because of his employment, exposed to a greater hazard than were members of the general public. Kauffeld v. G. F. Pfund & Sons, 97 N.J.L. 335, 116 A. 487. His situation was different, in various respects material to the problem, from that of one not hedged about, as he was, by the stress of employment.
We do not understand that an accident, to arise out of an employment, must be such as could not have happened to one not in that employment. Matthews v. Township of Woodbridge, 183 A. 150, 14 N.J.Misc. 143, affirmed 117 N.J.L. 146, 187 A. 374. The bite of an insect may, we think, quite as readily be regarded as a risk incident to the employment of a guard at a bathing beach as the freezing of the fingers or the blowing of dust in the eyes may be regarded as a risk incident to the employment of a policeman. Campanile v. Asbury Park, 118 N.J.L. 480, 193 A. 819. It is enough that the proofs show that the employment contributed to the injury or death. Ciocca v. National Sugar Refining Co., 124 N.J.L. 329, 12 A.2d 130, In our opinion the proofs herein do so show. City of North wildwood at 545-546.
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.
Experiments with deer exclosure by fencing have significantly decreased the risk of Lyme Disease by reducing the abundance of nymphs up to 80%, Such fences must be permanent and either 8 feet in height or electrified. Deer must be excluded for at least 2 years before significant benefit is achieved...
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.
The 1979 amendments modified section 31 in three ways. First, the Legislature deleted the pre-existing definition of occupational disease that included diseases "due to the exposure of any employee to a cause thereof arising out of and in the course of employment." Ch. 29, Sec. 2, N.J.S.A. 34:15-31 (1949), amended by N.J.S.A. 34:15-31 (1979) (emphasis added). The purpose of the deletion was to ensure that employers would be liable solely for those diseases "characteristic of and peculiar to a particular employment...." Senate Labor, Industry and Professions Committee, supra, at 2.
As one writer explains, the practical effect of the revision is best presented by an example. If an employee contracted pneumonia as a result of working in a freezer as a packer, the condition would be a compensable occupational disease because it would be due to a cause which is peculiar to the employment. If the same employee contracted pneumonia as a result of incidental exposure to a fellow employee with pneumonia, however, this might not be compensable because the condition may not be due to a condition characteristic of or peculiar to the employment. [Fred Kumpf, Occupational Disease Claims Under the Workers' Compensation Reforms, 12 Seton Hall L.Rev. 470, 473 (1982).]
Second, the Legislature added subsection b, which restricts compensability by providing: "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." N.J.S.A. 34:15-31b. Subsection b further restricts compensability by "excluding from compensability degenerative changes due to the natural aging process...." Senate Labor, Industry and Professions Committee, supra, at 2.
Third, the Legislature redefined a "compensable occupational disease" both to restrict and broaden coverage. The new definition restricted coverage by requiring that the disease be "due in a material degree" to "causes or conditions ... peculiar to the place of employment." In effect, the "material degree" standard imposes on a claimant a burden to "show a greater nexus between the malady and the employment." Kumpf, supra, 12 Seton Hall L.Rev. at 473.
The amendment broadens coverage by adding the phrase "peculiar to the place of employment." This addition "[e]xpand[s] the definition of 'compensable occupational disease' to include diseases due in a material degree to conditions characteristic of the place of employment." Statement, Senate Amendments to Senate Committee Substitute for Senate No. 802, at 2 (adopted Dec. 3, 1979). The expanded definition includes claims that result not only from a particular trade, but also from a particular place of employment. For example, a teacher who develops asbestosis from working in a classroom[659 A.2d 445] with a flaking asbestos ceiling would be covered under section 31. See Steven L. Lefelt, Workers' Compensation in New Jersey: A Critique of S-802, 104 N.J.L.J. at 425 (Nov. 15, 1979).
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
Consequently, we believe we best effectuate the legislative intent by holding that a petitioner claiming an occupational ...disease must show causes or conditions characteristic to the occupation or place of employment that substantially contributed in a material way to the disease. To satisfy the standard, a petitioner claiming occupational ... disease must fulfill three requirements. First, as section 31 provides, the petitioner must show that the disease is due in "a material degree" to causes "arising out of the workplace and that are or were characteristic of or peculiar to a particular trade, occupation, process or place of employment." 1B Larson, supra, Sec. 41.64(c) at 7-479.
Second, the petitioner must prove "by suitable medical evidence that the employment exposure did indeed cause or contribute to the disease--especially in the light of the competing claim of the smoking to be the causal agent." 1B Larson, supra, Sec. 41.64(c) at 7-479. We doubt that the Legislature, when enacting section 7.2, contemplated that employers should compensate employees for coronary disease caused substantially by a lifetime of smoking or other personal-risk factors and immaterially by occupational exposure. Thus, a petitioner asserting an occupational ...disease claim must show that the work exposure exceeds the exposure caused by the petitioner's personal-risk factors.
Third, the petitioner must show that the employment exposure substantially contributed to the development of the disease. An occupational exposure substantially contributes to the development of coronary-artery disease when the exposure is so significant that, without the exposure, the disease would not have developed to the extent that it caused the disability resulting in the claimant's incapacity to work. Rutledge, supra, 301 S.E.2d at 370.
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.
To meet the standard, a petitioner must satisfy a three-part test. First,... the petitioner must show that the disease is due in a material degree to causes arising out of the workplace and that are or were characteristic of or peculiar to a particular trade, occupation, process or place of employment. Second the petitioner must prove by suitable medical evidence that the employment exposure did indeed cause or contribute to the disease-especially in light of the competing claim of the smoking to be the causal agent.... Third, the petitioner must show that the employment exposure substantially contributed to the development of the disease.
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:
PROXIMATE CAUSE (ARISING IN THE COURSE OF BUSINESS)
In Porter a teacher allegedly injured his arm while waving to students. The Court stated:
It is clear that an injury suffered during the course of work
does not per se entitle an employee to the benefits of the
Workmen's Compensation act, as it must also appear that the
injury arose out of the employment. Spindler v. Universal
Chain Corp., 11 NJ 34, 38-39, 93 A.2d 171 (1952) (citing
Seiken v. Todd Dry Dock, Inc., 2 NJ 469, 1949)
The accident occurred when the Petitioner, in the course of his work, attempted to get the attention of students who were boisterous in the rear of his room, and in waving his arm to get their attention, he injured his neck.
The judge then went on to indicate that he found it to be an accident within the statutory and case law because "[w]hile the activity may have been expected, the result was unanticipated, and this satisfies the definition of an accident."
It was insufficient for the judge merely to make a determination that an accident had occurred. The question is whether or not that accident was compensable within the contemplation of the Workmen's Compensation Act. NJSA 34:15-7. Simply stated, the accident must both arise out of and in the course of Petitioner's employment. Spindler, supra, 11 NJ at 38-39, 93 A.2d 171; see Howard v. Harwood's Restaurant Co., 25 NJ 72, 83, 135 A2d 161 (1957).
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:
A: Well, the literature, -- if I may, the literature essentially says, proximity to forest patches capable of supporting populations of deer is generally a good indicator of
risk... And they further indicate three to six times --
well, three to six times as many nymph-stage ticks -
that's the tiny head of a pin, is in that kind of environment as opposed to an ornamental planting or lawn environment which would be Mr. Bird's home. The article here does not specifically address maintenance workers on golf courses. There are no studies of occupational -- I'm not aware of occupational risks, specifically to people who work on golf courses, but essentially his risks would be higher on a golf course working 40 hours a week there, than in an ornamental planting and lawn environment, which is basically our homes. Three to six many times ticks are found in the work environment than in the home environment. Being exposed to work at 40 hours a week and probably an hour a week at home mowing the lawn, the laws of probability point to the direction of work to me. T.86-16 to T.87-18.
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:
Q. You were asked to comment to PMA Insurance Company, the compensation carrier to Mr. Bird, on the causal relationship?
Q. Why did you tell them, based on your opinion, Mr. Bird's Lyme disease was work related?
A. ...I felt that his--I felt that his risk for exposure to the offending agent was greater by way of location and duration of exposure to Lyme disease at work as opposed to his exposure in his home environment. T94-221 to T95-6
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.
The Workmen' s Compensation Act is remedial legislation designed to place the costs of accidental injuries which are work-connected upon employers, who may readily provide for them as operating expenses. It provides for compensation for injury 'by accident arising out of and in the course of' the employment, R.S. 34:15--1, N.J.S.A.; an accident is said to arise out of the employment when it results from a risk reasonably incidental thereto (Geltman v. Reliable Linen & Supply Co., 128 N.J.L. 443, 446, 25 A.2d 894, 139 A.L.R. 1465 (E. & A.1942)); and it is said to arise in the course thereof when ' it occurs while the employe is doing what a man may reasonably do within a time during which he employed, and at a place where he may reasonably be during that time.' Bryant, Adm'x v. Fissell, 84 N.J.L. 72, 77, 86 A. 458, 460 (Sup.Ct.1913). An idiopathic collapse is not compensable simply because it occurred at the place of work during working hours (Henderson v. Celanese Corp., 16 N. J. 208, 108 A.2d 267 (1954)); but it is compensable if it was causally related to the employee' s work. Spindler v. Universal Chain Corp., 11 N.J. 34, 93A.2d 171(1952). The burden of proving that the employee' s injury was work connected is on the claimant (Green v. Samson & Brown Construction Co., 14 N.J. 66, 101 A.2d 10 (1953)); but the proof may be circumstantial rather than direct and the test is probability rather than certainty. Spindler v. Universal Chain Corp., supra, 11 N.J., at page 39, 93 A.2d 171. Indeed, where the collapse is unwitnessed and the employee' s lips are sealed by death, courts throughout the country show understandable readiness to accept meager showings of compensability. See Macko v. Herbert Hinchman & Son, 24 N.J.Super. 304, 307, 94 A.2d 690 (App.Div.1953); 1 Larson, Workmen's Compensation Law 96, 102 (1952).
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:
Manifestly, these opposing medical opinions cannot be considered apart from the factual framework of the entire case. Their probative force must be evaluated by a number of factors. In the process of evaluation, a criterion of recognized significance is the greater opportunity of a treating physician, as compared with a doctor who conducts a single examination in order to become an expert medical witness, to know, understand, and decide upon the producing cause of the patient's condition. Fusco v. Cambridge Piece Dyeing Corp, 135 NJL 160, 162, 50 A.2d 870 (EPA 1947). Supra at 167.
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:
A petitioner is not required to prove his claim to a certainty. It is sufficient if the evidence establishes with reasonable probability that the employment caused or proximately contributed to the condition of disease of which he complains. Ciuba v. Irvington Varnish and Insulator Co., 27 NJ 127, 139, 141 ,A.2d 761 (1958). Supra at 168.
The burden of proof is on the Petitioner to justify an award for compensation. In determining whether petitioner has sustained the burden of proof the qualify of the evidence required is probability rather than certainty. The burden is sustained if the tendered hypothesis is based upon the preponderance of probabilities. Epps v Gold, 32 NJ 344, 160 A.2d 810 (1960), affirming 61 NJ Super. 355, 361, 160 A.2d 19 (1952); Gilbert v Gilbert Machine Works, Inc., 122 NJL 533, 538, 6 A.2d 213 (Sup Ct 1939). This is of particular application when a medical problem is presented, opinions concerning which can only be based upon the degree of medical knowledge available to members of the medical profession at the time their opinions are voiced. Page v Federated Metals Division, 71 NJ Super. 59, 176 A.2d 290 (App.Div. 1961). Furthermore, it is sufficient for purposes of the Workmen's Compensation Act that the employment be a necessary factor leading to the injury, not its sole or proximate cause. Cierpial v Ford Motor Co., 16 NJ 561, 56, 109 A.2d 666 (1954).
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),
The judicial philosophy recently enunciated by our Supreme Court in Dwyer v. Ford Motor Co, 36 NJ 487, 178 A.2d 161 (1962), liberally interprets the scope of industrial compensation and is not limited to heart cases. Here, as there, we have questions unresolved by the science of the medical profession. It is apparent from the evidence adduced from the experts that the cause of Lichen planus is not know with certainty, and 'research men continue to look for organisms and irritants that may be causing the lesions.' We adopt, as applicable to the pending litigation, the language of Chief Justice Weintraub in his concurring opinion in the Dwyer case:
'When the possibility of causal connection is accepted, we cannot deny relief in all cases simply because science is unable decisively to dissipate the blur between possibility and probability. In such circumstances judges must do the best they can, with the hope their decisions square with the truth, and with a willingness to consider in succeeding cases whatever contribution scientific advances may offer.
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:
The procedure before a compensation commission is ordinarily of a summary and informal character. The technicalities of common-law practice and procedure are usually abolished or ignored. The fact that such agency is not bound by the rules of evidence applicable to Court trials, or the technical rules of procedure, does not invalidate its proceeding, provided the substantial rights of the parties are not infringed. The elementary and fundamental principles of judicial inquiry are not, however, to be disregarded. In respect to its authority to hear,
adjust and determine claims for compensation the powers of the agency are generally regarded as judicial in nature and in the exercise of such power it should pursue the same general course of conduct that other judicial officers would exercise in adjudicating upon rights of citizens. Accordingly, while the practice is direct and flexible in order to adapt the remedy to the needs of the particular case, substantial compliance with the procedural requirements is generally regarded as essential to the validity of an award.
In Gunter v. Fischer Scientific American, 193 N.J.Super 688,691 (App.Div., 1984) the Court noted:
With respect to the type of evidence that may be admitted at a
hearing on a compensation claim petition N.J.S.A. 34:15-56 provides that, 'exclusive of ex parte affidavits ... the official conducting the hearing shall not be bound by the rules of evidence.'' The purpose of this section was to simplify the nature of proof that can be offered without regard to technical exclusionary rules of evidence. Thus, hearsay evidence need not be excluded, although the ultimate award must be based on legally competent evidence. Gilligan v. International Paper Co., 24 230, 236 131 A.2d 503 (1957).
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:
Under that new learned-treatise rule, a text will qualify as a "reliable authority" if it represents the type of material reasonably relied on by experts in the field. See Evid.R. 56(2); Rubanick v. Witco Chemical Corp., 125 N.J. 421, 449-53, 593 A.2d 733 (1991); Ryan v. KDI Sylvan Pools, Inc., 121 N.J. 276, 287, 579 A.2d 1241 (1990); cf. McComish v. DeSoi, 42 N.J. 274, 282, 200 A.2d 116 (1964) (safety codes are admissible as substantive evidence when they reflect generally-recognized industry standards). Recently, we noted that in determining reliability "[t]he focus should be on what the experts in fact rely on, not on whether the court thinks they should so rely." Ryan, supra, 121 N.J. at 289, 579 A.2d 1241. When a text's reliability is in doubt, trial courts should conduct Rule 8 hearings, either before or during trial, to determine whether the text qualifies as a learned treatise. Trial courts will also be expected to exercise discretion to prevent juries from being inundated with learned treatises. However, we do not anticipate that the new rule will lead to the "battle of the books" predicted by defendants. Indeed, plaintiffs in this case sought to use only one text and two articles in cross-examining the defense experts despite the defense's uncontested assertion that fifty-three textbooks and articles express views on the subject of umbilical catheterization. Attorneys have a strong incentive to focus the factfinder's attention on the most reputable and most comprehensible learned treatises that support their positions rather than to overwhelm the factfinder with references to as many treatises as possible.
The new learned-treatise rule also allows experts to introduce learned-treatise statements on direct examination if they relied on them in forming their opinions. Although that practice marks a sharp break with Ruth, it is consistent with the liberalized approach to expert testimony reflected by the amendment of Evidence Rule 56(2) in 1982. Under that rule, experts can testify about an opinion based on inadmissible facts or data "[i]f of a type reasonably relied upon by experts in the particular field in forming their opinions or inferences upon the subject." Pursuant to Evidence Rule 56(2), our courts have permitted experts to testify about statistical evidence they relied on if the evidence is adjudged sufficiently reliable. See State v. Harvey, 121 N.J. 407, 431, 581 A.2d 483 (1990) (on retrial State expert who relied on Source Book of Forensic Serology could testify regarding the percentage of blacks with a certain genetic marker in their blood type if the "State can show that that book and figure are considered authoritative in the forensic-serology community"), cert. denied, --- U.S. ----, 111 S.Ct. 1336, 113 L.Ed.2d 268 (1991); Mauro v. Owens-
Fiberglas, 225 N.J.Super. 196, 206, 542 A.2d 16 (App.Div.1988) (expert could testify about statistical data " 'of a type reasonably relied upon by experts' in the field of pulmonary disorder"), aff'd sub nom. Mauro v. Raymark Indus., 116 N.J. 126, 561 A.2d 257 (1989).
DAMAGES AND 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.
If a self-insured or uninsured employer or employer's insurance carrier, having actual knowledge of the occurrence of the injury, or having received notice thereof such that temporary disability compensation is due pursuant to R.S. 34:15-17, unreasonably or negligently delays or refuses to pay temporary disability compensation, or unreasonably or negligently delays denial of a claim, it shall be liable to the petitioner for an additional amount of 25% of the amounts then due plus any reasonable legal fees incurred by the petitioner as a result of and in relation to such delays or refusals. A delay of 30 days or more shall give rise to a rebuttable presumption of unreasonable and negligent conduct on the part of a self-insured or uninsured employer or an employer's insurance carrier.
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:
The facts necessary to resolve the issues raised on appeal are not in dispute. On June 6, 1979, after working for respondent for 34 years, petitioner terminated his employment because of occupational injuries and a work-related heart attack. On March 19, 1981, petitioner filed a claim against respondent for workers' compensation benefits. On January 29, 1985, following a contested hearing, the Judge of Compensation (Judge) awarded petitioner (1) temporary disability benefits for the period of June 8, 1979 to December 7, 1979, at the rate of $156 per week for a total of $4,056; (2) compensation benefits for 100% of total permanent disability for his occupational injuries and the work-related heart attack [518 A.2d 531] in the total sum of $70,200; and (3) an allowance for future medical treatment and medication for these conditions. Respondent did not appeal from that judgment.
Despite petitioner's numerous demands, respondent failed to remit the payments mandated by the judgment. Consequently, on April 22, 1985, petitioner filed a motion for the award of interest pursuant to N.J.S.A. 34:15-28 and the imposition of a penalty and legal fees pursuant to N.J.S.A. 34:15-28.1. Respondent did not file any responsive papers. On May 29, 1985, 120 days after the entry of the judgment and prior to the Judge hearing the motion, respondent paid petitioner the moneys due under the judgment. At the June 26, 1985 hearing, respondent offered no explanation for the delay in making payment. Nonetheless, the Judge declined to award petitioner interest on the judgment. The Judge reasoned that because respondent had viable defenses, the 45-day period for the appeal had to be subtracted from the 120 days between the date of the judgment and the date of payment thereof to determine whether the three-month threshold for awarding interest under N.J.S.A. 34:15-28 had been met. He also suggested that it might be appropriate to subtract the 30-day statutory period referred to in N.J.S.A. 34:15-28.1 from the 120 days when calculating the actual time that payment was withheld. Without stating which method of tabulation he relied upon, the Judge decided that the delay in payment was not unreasonable given the prevailing practice in the New Jersey insurance industry of taking from three to ten weeks to pay even settled judgments.
In Amorosa the Appellate Division rejected a "good faith defense" to the statutory penalty provision of the act.
Similarly, the Judge held that the sanctions authorized by N.J.S.A. 34:15-28.1 should not be imposed in this instance. The Judge concluded that the statute applies "only to the unreasonable or negligent delay or refusal to pay temporary compensation," not to a case "fully litigated in which there are viable defenses." The Judge also determined that the delay in payment was not "unduly unreasonable" because there was a question as to whether sufficient facts had been presented to establish medical causation.
N.J.S.A. 34:15-28.1 mandates the imposition of a penalty of 25% of the amount of any temporary disability compensation due a petitioner plus the reasonable legal fees incurred by him when a self-insured employer or an employer's insurance carrier is unreasonable or negligent in delaying or refusing to pay temporary disability compensation due or in delaying denial of a claim for such compensation. See Harbatuk v. S & S Furniture Systems Insulation, 211 N.J. Super. 614, 629, 512 A.2d 537 (App.Div.1986). The plain intent of the statute is to ensure the prompt payment of temporary disability compensation to disabled workers....
Moreover, our interpretation of N.J.S.A. 34:15-28.1 comports with the purpose behind temporary disability benefits. We view temporary disability payments to disabled workers as a partial substitute for their weekly paychecks. Therefore such payments should be made promptly. Because of the delay which results when a case is contested, the disabled worker's need for the prompt payment of temporary disability benefits is especially urgent after a final adjudicated award. In such instances, the employee has had to do without a weekly stipend for a longer period than when an employer does not contest the worker's right to such benefits after notice is given pursuant to N.J.S.A. 34:15-17. It is therefore imperative, in contested cases, to discourage additional and unnecessary delay in the payment of temporary disability benefits, and we hold that N.J.S.A. 34:15-28.1 should be applied to that end.
Additionally, the legislative history underlying N.J.S.A. 34:15-28.1 tends to support our view. The two reports cited in the legislative history are the Report of the New Jersey Workmen's Compensation Study Commission (1973) (Study Commission Report) and the Final Report and Recommendations on the Investigation of the Workmen's Compensation System by the New Jersey State Commission of Investigation (1974) (Commission of Investigation Report). These reports recommended the imposition of a penalty for unreasonable delays in paying temporary disability compensation because of the frequency of such delays and their adverse economic impact on disabled workers. The 1973 Study Commission Report, in part, pointed out:
One of the most shocking situations which prevails in New Jersey's workmen's compensation system is the delay which is often encountered in the payment of an injured worker's ... compensation benefits for temporary disability. [Id. at 24].
The report further explained that:
Delays in delivering temporary disability benefits have been cited as one of the major defects of our present system and as one of the causes of the permanent partial problem. No mechanism for directing payment exists since the statute merely provides that after the waiting period, temporary disability shall be paid. N.J.S.A. 34:15-16.
The existing penalty provision is discretionary and can apply only when lawful compensation is withheld for 3 months or more. N.J.S.A. 34:15-28. Obviously, 3 months without wages is enough to bankrupt most employees. Understandably, it is during the time when an employee is not receiving temporary benefits that he feels most neglected[518 A.2d 534] and resentful of his employer. A system to insure rapid and prompt delivery of temporary disability benefits in contested as well as uncontested cases is crucial to the well-being of workers. [Id. at 60 (Emphasis supplied) ].
The 1974 Commission of Investigation Report likewise recognized the gravity of the disabled worker's plight and recommended the adoption of N.J.S.A. 34:15-28.1, stating:
In order to insure prompt payment of temporary disability to disabled workers, statutory provision should be made for imposition of sanctions upon respondent employers or their insurance carriers who, through indifference or neglect, delay in initiating disability payments or in continuing those payments. Temporary disability payments to disabled workers are a partial substitute for their usual weekly paychecks. Therefore, temporary disability checks should be given the same priority by an employer as he would in rendering the normal paychecks. Petitioners should not have to pry out temporary disability payments from employers of [sic] their insurance carriers. Abuses in this area must be ended.
The foregoing legislative history confirms our holding that N.J.S.A. 34:15-28.1 is applicable in this case. Petitioner therefore had the right to seek the imposition of the penalties provided therein for respondent's 120-day delay in paying the temporary disability compensation portion of the judgment. Contrary to the Judge's view, the presumption of unreasonable and negligent conduct on the part of respondent by not paying the award within the 30-day period was not overcome. Respondent offered no explanation whatsoever for delaying payment. The fact that there may have been a question of medical causation in and of itself is not sufficient to overcome the statutory presumption. Moreover, the prevailing industry practice, upon which the judge relied in determining that respondent's conduct was reasonable, must give way to the clear legislative policy expressed in N.J.S.A. 34:15-28.1 that temporary disability benefits be paid in 30 days.
Accordingly, that portion of the order which denied the imposition of a penalty and legal fees under N.J.S.A. 34:15-28.1 is reversed and the matter is remanded. The Judge is to impose upon respondent the statutory penalty of 25% of the temporary disability compensation award of $4,056 due under the judgment plus reasonable legal fees incurred by petitioner as a result of and in relation to such delay in payment.
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.
Q. Now, based upon your company's policy as far as payment of customary and usual, how much in medical bills did your company pay?
A. We paid $96,572.62.
Q And was that based upon the customary and reasonable expenses for this area?
Q. And was that reasonable and based upon your company's standards and the insurance industry's standards also being reasonable and necessary for this diagnosis?
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