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Case History Document
Bird v Somerset Hills Country Club
Title: Decision in Bird v Somerset Hills Country Club STATE OF NEW JERSEY DEPARTMENT OF LABOR
|Entered By: Ira M Maurer/LymeNet||Date Created: 10/27/97|
|Document Type: Decision|
DIVISION OF WORKERS' COMPENSATION
MIDDLESEX COUNTY DISTRICT
C.P. # 94-034577
TEDDY W. BIRD,
SOMERSET HILLS COUNTRY CLUB,
For the Petitioner: ERIC S. LENTZ, Esquire
For the Respondent: FRED S. BRAUSE, Jr. Esquires
By: RANDOLPH S. BRAUSE, Esquire
MONCHER, LAWRENCE G., J.W.C.,
This claim petition was filed on September 7, 1994. A motion for medical and temporary disability was filed on December 7, 1994. Respondent's workers' compensation insurer filed an answering statement which disputed the claim, requested factual information, requested a physical examination, and a testimonial hearing. During the trial it the evidence showed that active curative treatment had concluded so the trial of the motion was converted to a trial on all issues. He filed a Second Injury Fund claim and the Fund has now been joined for further proceedings consistent with N.J.A.C. 12:235-7.2. Following the trial both counsel filed exceptionally well prepared and documented post trial briefs. They were excellent advocates for their client's cause, exploring fully all the evidentiary, factual, and legal issues. While it is certainly an enjoyable endeavor to try a case with such competent advocacy, choosing between the well reasoned versions of the case is difficult.
Mr. Bird is a 62 year old totally disabled former golf course grounds keeper. He seeks workers' compensation disability and medical benefits for Lyme disease which he claims he contracted as a consequence of an exposure to infected ticks at respondent's Somerset County Golf course. The claim petition reads as an occupational disease claim but was prosecuted on alternative theories of accident and occupational disease. Because of the latent nature of the appearance of the disabling feature of this disease, a classification of the claim as one for occupational disease is more appropriate than one for accident. In accidental injuries the worker or others are aware the traumatic event has occurred at a specific time and place, the injury or damage to the body is or its beginnings are readily apparent almost immediately after the event. Here, petitioner and his employer were totally unaware of the tick bite. The actual date or dates of infection remains in doubt. The proofs are that the bite occurred at least 3 to 6 months prior to the October 1992 diagnosis of Lyme disease and perhaps as early as a year earlier than that. Respondent disputes the medical diagnosis, denies the existence of an exposure or compensable accident or relationship of the medical problems to employment. In essence, it admitted employment and wage but put petitioner to his proofs on all issues. Respondent argued that if Mr. Bird has Lyme disease, the claim is barred by the jurisdictional issues of notice, knowledge, and timeliness of filing. It asserts the claim must be classified as one for an accident and thus barred by the two year limitation of N.J.S.A. 34:15-51.
Respondent refused to concede the reasonableness of the cost or the need for medical care. But, it presented no evidence to support its declared litigation policy on these issues. Respondent's expert, Dr. Sensakovic, testified the medical treatment was appropriate. Petitioner presented Ms. Bayes, a medical claims management expert, who displayed an unchallenged expertise in the medical claim management. Ms. Bayes' employer, Lincoln National Mutual Insurance Company, respondent's major medical insurer, paid most of the medical expenses. She had actual knowledge of the medical expenses and explained the careful professional review her company undertook to assure the medical expenses were medically appropriate and the amount was reasonable. Lincoln used a well documented data base plus medical reviews to assure that the services were medically appropriate and the charges were consistent with rates prevailing in this community. This is the same standard contained in N.J.S.A. 34:15-15. The respondent now does not dispute the reasonableness, causal connection to Mr. Bird's symptoms, cost or necessity of the medical treatment paid by Lincoln Mutual or the other insurer's. It no longer disputes the amounts expended by Mr. Bird for his deductible or coinsurance. One is left as to wonder why PMA, the compensation insurer, raised this as an issue when they certainly have access to the very same medical data base and similar medical review panels.
Petitioner relies on circumstantial evidence and inferences to establish the tick bite and its employment connection. There was no direct proof or knowledge of the specific date or occurrence of the actual tick bite which caused the infection. But the tick is so tiny it can bite the anatomy in an area not visibly accessible to the victim. No one disputes that the victim may be entirely unaware of the tick bite until signs of the disease appear. Here Mr. Bird had no knowledge of ever having the traditional bull's eye rash which appears after infection. But the medical proofs were that the bulls eye rash, while typical, is not universal. Based on Mr. Bird's history to the treating physician that he was experiencing the symptom of fatigue it is likely that Mr. Bird experienced the tick bite during the early spring of 1991 or 1992. This history appears in the contemporaneously recorded treating records of Dr. Weisenreider's office.
Petitioner relies on published epidemiological studies to support the opinion of his treating physician that the disease is employment related. The reported data shows that persons who work out doors in rustic environment such as exists at this specific golf course are 6 times more likely to contract Lyme disease. Mr. Bird claims that the enhanced risk arising from the peculiar nature and location of his employment duties at the golf course in Bedminster in the rustic hills of Somerset County is the probable source of the tick bite which caused his latent manifestation disease. His treating physician gave clear well supported and documented testimony to reach this conclusion.
The record includes reports of the parties forensic disability examiners, all of whom opined petitioner is not medically fit to return to work. Mr. Bird has been awarded social security total disability benefits effective September 1, 1994 at $970.20 per month. An award of permanent total disability benefits will be reduced by a reverse social security offset until Mr. Bird's 62nd birthday. See N.J.S.A. 34:15-95.5. A hearing with the attorney general representing the Second Injury Fund will follow this decision. This decision will address the question of compensability, causal connection, jurisdiction, and liability for medical expenses and provide for payment of interim weekly compensation benefits. For the reasons set forth in this decision, it decided that Mr. Bird is entitled to recover medical and disability benefits under the workers' compensation law. While this decision determines Mr. Bird shall receive temporary total disability benefits, the parties, including the Fund, shall have the opportunity to present proofs on the question of the proper date of termination of temporary disability payments and the extent of permanent disability owed by respondent and the liability of the Fund, if any. See N.J.A.C. 12:235-7.2 , et seq. Until that hearing disability benefits shall be paid as set forth in the Award section of this decision.
The witnesses called by petitioner were himself, Ms. Sandra A. Bayes, a representative of Lincoln National Insurance Company, respondent's major medical insurer which has paid most of the medical expenses incurred to date and John Weisenreider, M.D., a board certified internist who is petitioner's treating physician. Dr. Weisenreider testified two days and fully explained his course of treatment and reasons for his diagnosis, treatment and opinions. Respondent called John Sensakovic, M.D., a board certified internist with a sub specialty in infectious diseases as a forensic expert. Dr. Sensakovic opined on the question of exposure, causal relation and diagnosis but did not examine petitioner. He has authored papers but did not produce any of the papers he has written on Lyme disease.
The documentary evidence included the office records of the Dr. Weisenreider, consultations reports from Dr. Ruggerio-Weigel, reports of laboratory blood test analysis, major medical insurance policy, and medical expenditures made by Lincoln National, Met Life and Travelers Insurance companies. Recent medical investigation papers published in the American Journal of Epidemiology, American Journal of Public Health, Yale Journal of Biology and Medicine, JAMA, Science, The Academy of Medicine of New Jersey, and the American Journal of Medicine as well as the MMWR standards for diagnosis of Lyme disease were introduced into evidence. All of the journals are reputable, respected peer review medical journals. Respondent's expert participated in at least one symposium covered by the Academy of Medicine of New Jersey. Respondent contends that these learned treatises can not be considered by a compensation judge and can not be admitted into evidence unless relied upon by an expert. One thesis, the Longitudinal Study of Borrelia burgdorferi Infection in New Jersey Outdoor Workers, 1988-1991, published in the American Journal of Epidemiology, (1994) by The Johns Hopkins University School of Hygiene and Public Health, Vol. 139, No. 5 was cited by Dr. Weisenreider as supporting his opinion on relationship to the employment. Respondent's legal argument on this point is untenable. The formal hearsay rules of evidence, including N.J.R.E. 803 (C)(18), are not applicable to compensation trials, here, hearsay is admissible without the limits of the formal evidence rules. N.J.S.A. 34:15-56. See Gunter v. Fischer Scientific American, 193 N.J.Super. 688 (App.Div., 1984). Reliable medical publications have been used by courts for fact finding on critical litigation issues for many years. See Calabrese v. Trenton State College, 82 N.J. 321 (1980). One of the medical writings was relied on by the physician witnesses, one was a part of a symposium in which Dr. Sensakovic chaired. There could be no surprise on that publication, it appeared on his resume. All of the medical publications were exchanged between counsel during the trial. Petitioner requested the court to admit the treatises into evidence. Respondent was aware the court was considering taking the medical publications into evidence or in the alternative taking judicial notice. It objected on the grounds that the treatises were not properly presented in a technical sense, relied upon by an expert witness. Respondent had ample opportunity to respond with other medical publications or testimony or any other evidence which would support its position or diminish the findings relied on by petitioner. Respondent declined to present or to request the opportunity to present any further evidence beyond testimony of its forensic witness which advanced a different thesis based on a limited view of one recent study.
Compensation judges have been instructed to consider scientific literature and medical literature on issues of medical causation. Fiore v. Consolidated Freightways, 140 N.J. 452, 475, 476 (1995); Wiggins v. Port Authority of New York and New Jersey, 276 N.J. Super. 636, 644 (1994). Failure to consider these medical publications in this case would have been error and caused a grievous miscarriage of justice. If expensive expert witnesses were always required to testify on subjects which are well documented in scientific literature, it would defeat meritorious claims by placing the cost of prosecution beyond the means of disabled workers and when the literature favors a proposition advanced by an employer it would increase the cost of prosecution. A failure to admit learned treatises would deprive a worker of access to the facts to prove a case and increase the cost of employers when they wish to rely on respectable recorded medical knowledge. The Supreme Court has cautioned
Compensation judges should be particularly skeptical of expert testimony that supports or contests a finding of causation on the basis of reasoning inconsistent with prevailing standards. Hellwig v. J.F. Rast & Co., Inc., 110 N.J. 37, 54 (1988).
Review of current medical literature in peer review journals presents current thinking and prevailing medical standards while avoiding undue reliance on hired gun expert witnesses. There is no reason for not using treatises as evidence to meet part of the burden of proof. The burden of proof here, as in all Workers Compensation contested cases, is on the petitioner who must produce the evidence and persuade the trier of fact by a preponderance of the credible evidence of the existence of each element of the claim. Pollack v. Pino's Formal Wear & Tailoring, 253 N.J. Super. 397, 410-412 (App. Div. 1992), certif. den. 130 N.J. 6 (1992); Perez v. Pantasote, Inc., 95 N.J. 105, 118 (1984). The same evidential standard applies to the elements of the case on which respondent has the burden of proof. Fiore v. Consolidated Freightways, 140 N.J. 452, 479 (1995).
For petitioner to prevail he must establish a link between ... [the] disease and occupational conditions. Petitioner has the burden to prove this causal relation by a preponderance of the evidence. All that is required is that the claimed conclusion from the offered facts must be a probable or a more probable hypothesis. . . The test is probability rather than a certainty. . . . However, the evidence must be such as to lead a reasonably cautious mind to the given conclusion. 'The standard is one of reasonable probability; i.e., whether or not the evidence is of sufficient quality to generate a belief that the tendered hypothesis is in all likelihood the truth. It need not have the attribute of certainty, but it must be well founded in reason and logic, mere guess or conjecture is not a substitute for legal proof.' [Citations omitted.] Laffey v. City of Jersey City, 289 N.J. Super. 292, 303(App. Div. 1996).
Once the worker has met his burden of proof, the burden of proof on alternative factual propositions and legal conclusions which will exonerate or mitigate the employers liability shifts to the employer. Cf. Gulick v. H.M. Enoch, Inc., 280 N.J. Super. 96, 109 (App. Div. 1995). This allocation of the burden of proof to the respondent is consistent with the purposes of the compensation law to
shoulder on industry the expense incident to the hazards of industry; to lift from the public the burden to support those incapacitated by industry and to ultimately pass on to the consumers of the products of industry such expense. [Citations omitted.] Milos v. Exxon Co., USA, 281 N.J. Super. 194, 200 (App. Div. 1995).
While there are some limitations and balancing of interests in certain provisions of the compensation act, still, the Workers' Compensation Act is remedial social legislation designed to place the costs of accidental injuries which are work-connected upon employers who may readily provide for them as operating expenses. Secor v. Penn Service Garage, 19 N.J. 315, 319 (1955). Judges are directed to liberally appl[y] [its provisions] . . . to protect employees in the event of work-related injuries . . . Ibid. The Supreme Court has reiterated, as recent as last year, the Workers' Compensation Act is to be liberally construed in order that its beneficent purposes may be accomplished. Fiore v. Consolidated Freightways, supra., 140 N.J. at 465. This precept must be kept in mind as the various statutory issues are considered.JURISDICTION - NOTICE & TIME LIMITATIONSACCIDENT OR OCCUPATIONAL DISEASE Petitioner contends that for purposes of the period of limitations it matters not whether the claim is considered to be an accident or occupational disease, because under the facts of this case the injury is compensable and the claim timely. Respondent argues that this claim must be considered to be an accident claim and thus barred by the two year limitation period for accidents. If petitioner's claim is one for accidental injury, the claim is barred if not filed within two years of the injury or last payment of workers' compensation benefits. N.J.S.A. 34:15-41, 34:15-51. The limitation period for occupational disease differs. Cf. N.J.S.A. 34:15-34. If the claim is one for an accident, the petitioner must give notice to the employer of the occurrence of the injury within 90 days, unless the employer had knowledge of the occurrence. N.J.S.A. 34:15-17 & 18. The notice provisions for occupational disease are more liberal in that they start with disability or end of exposure. N.J.S.A. 34:15-33. The facts pertinent to this issue are few and not in significant dispute. In 1991, Mr. Bird first experienced fatigue which progressed until he saw Dr. Weisenreider in September 1992. The doctor ordered various blood tests. In October 1992, Mr. Bird was told by Dr. Weisenreider that he had Lyme's disease. Immediately, Mr. Bird told his supervisor, Mr. Dwyer, that he needed treatment for Lyme disease and was seeing Dr. Weisenreider's office. Treatment continued through 1995. Medical treatment was obtained and paid by a major medical insurance program where the insurer had the right to review medical appropriateness and reasonableness of the expenses. The insurer, Lincoln National Mutual Insurance Company, did review and approve the medical treatment and expenses. Presumably, the respondent did not report the injury to PMA, its workers' compensation insurer, until early 1994 when Mr. Bird began to loose time from work. Mr. Bird received TDB from the New Jersey Department of Labor for a period of 6 months from March 1994 until September 6, 1994. The compensation insurer refused to pay any compensation benefits. The issue of whether the claim filed within the time limitations of the act translates into whether the Division of Worker's Compensation has jurisdiction to hear this case. The statutes governing the jurisdictional time limits for filing compensation petitions and the time for giving notice of injury to employers for accidental injury and occupational disease differ. See N.J.S.A. 34:15-17, 18, 33, 34, 35, 41, & 51. The Court in Panzino v. Continental Can Co., 71 N.J. 298 (1976) stated the test for timeliness in a occupational disease cases is- when did the worker learn the nature of his impairment and when did he learn of its connection to the employment. This is not a case where the employee was aware of the injury or of the tick bite. Cf. Scheier v. Garden State Forge Co., 136 N.J. Super. 555 (App. Div. 1975). It is only by reason of the medical investigation of his treating physician and reasoning back from the positive lab test and consideration of the dates of symptom of fatigue in the medical history and treatment that there is an awareness of the approximate date of the tick bite. Respondent points to City of North Wildwood v. Cirelli, 131 N.J.L. 162 (E. & A. 1944) which instructs that an insect bite with a subsequent bacterial infection can be a compensable accident. Respondent's reliance on this case is misplaced. There the injury followed in a fairly close time sequence to the accident. When City of North Wildwood v. Cirelli was decided, most occupational diseases were not compensable. Five year later the compensation law was amended by L. 1949 c. 103 to extend compensable occupational disease coverage beyond a small number of specific diseases. The disease in City of North Wildwood v. Cirelli despite its clear employment connection, if not compensable as an accident, would not have been compensable. We are now in a more enlightened era where the legislature has expanded the coverage of the act to cover all occupational diseases which are to a material degree a consequence of conditions peculiar to the employment or work site. In modern times, the legislature and courts of this state decided to remedy the injustices which can arise from the way progressive and latent diseases show up long after the work event which is at the root cause of the disease and which do not cause disability until some time after the exposure. Reasoned solutions have been provided for his problem. Falcon v. American Cyanamid , 221 N.J. Super. 252 (App. Div. 1987); Mikitka v. Johns-Manville Products Corp., 139 N.J. Super. 66 (App. Div. 1976), Bucuk v. Edward A. Zusi Brass Foundry, 49 N.J. Super. 187 (App. Div. 1958), certif. den. 27 N.J. 398 (1958), and Bond v. Rose Ribbon & Carbon Manufacturing Co., 42 N.J. 308 (1964). Panchak v. Simmons Co., 15 N.J. 13, 12 (1954) mandate that notice or limitation periods for occupational disease do not run until the employee knows or ought to know that he has a compensable injury is still valid. The search here is to determine whether the facts of this case fall within the parameters of the legislative plan for dealing with latent manifestation illnesses. The statute governing time limits for bringing occupational disease compensation cases provides there is no statute of limitations on occupational disease cases unless the worker 1.) knew the nature of the disability and its relationship to the employment and 2.) filed the claim petition more than 2 years after obtaining the knowledge. See N.J.S.A. 34:15-34 which states
[T]here shall be no time limitation upon the filing of claims for compensation for compensable occupational disease . . . provided, however, that where a claimant knew the nature of the disability and its relation to the employment, all claims for compensation for compensable occupational disease . . . shall be barred unless a petition is filed in duplicate with the secretary of the division in Trenton within 2 years after the date on which the claimant first knew the nature of the disability and its relationship to the employment . . . in case a part of the compensation has been paid by such employer, then within two years after the last payment of compensation. . . . It is the express intention of the Legislature that, except in any case where claim is made for asbestosis, radiation poisoning, siderosis, anthracosis, silicosis, mercury poisoning, beryllium poisoning, chrome poisoning, lead poisoning, or any occupational disease having the same characteristics of the above enumerated diseases . . . the provisions of this section shall not be applied retroactively but shall be applied only to those employees who shall cease to have been exposed . . . subsequent to January 1, 1980. A payment or agreement to pay by the insurance carrier shall, for the purpose of this section, be deemed a payment or agreement by the employer. N.J.S.A. 34:15-34.
There is a commonality of latency between Lyme's disease and the characteristics of the latent manifestation diseases enumerated in N.J.S.A. 34:15-34. There is the element of delay between the contact or exposure and disability. In both there may be unawareness of the significance initial exposure or significance of the initial manifestation of the resulting disease. In both, there may be some inconvenience and discomfort or evidence of the condition early but disability or impairment does not become apparent until sometime latter. See Falcon v. American Cynamid, supra. The terms of N.J.S.A. 34:15-33 & 34 show the legislature is aware knowledge of causal relation may not be available until well after the initial contact with the causative agent. In this case, petitioner while experiencing some personal discomfort which prompted him to seek medical care, did not loose time from work because of disability until March 9, 1994. For purposes of this statute, Mr. Bird was not disabled in a temporary or permanent state until that date. If Mr. Bird's disease was a consequence of an occupational accident, it would be barred unless 1) the employer paid compensation benefits within 2 years of the accident which extended the statute of limitations or 2) the measuring date is the date of the manifestation of disabling symptoms and knowledge by the petitioner that the accident, i.e., the tick bite, had occurred. Under either alternative the claim if an accident is timely. The pertinent knowledge of the disease and its origins was not received by Mr. Bird until October 1992, the claim petition was filed on September 7, 1994. Medical treatment chargeable to the employer was paid by its major medical insurer within two years of the accident and continues to date. Sheffield v. Schering Plough Corp., (A-84-95), N.J. , (Aug. 9, 1996) at slip opinion 23-24. See also Milos v. Exxon Co., U.S.A., 281 N.J. Super. 194 (App. Div. 1994) aff'd o.b., 143 N.J. 333 (1966) which held that an employer funded program of medical monitoring for detection of progress of asbestos caused disease is considered a payment of workers' compensation benefits to toll the statute of limitations for filing a claim. Sheffield v. Schering Plough Corp., supra. does break new ground in avoiding disastrous consequences for workers who find themselves in the all too common quandary arising from different insurance plans paid for by the employer which are designed to provide a blanket of medical coverage but in truth may present a series of traps with one or more insurance company claiming the other coverage must provide the medical treatment. Frequently, the major medical insurer will not pay if the claim may be compensable. The compensation insurer, all too often, will not pay unless confronted with an opinion from its own forensic defense orientated consultant that the injury is compensable. Here the treating doctor and initial consultants retained by respondent offered an opinion that the injury was caused by an employment exposure. It was only when it consulted an expert in infectious disease did it obtain a factual medical defense. Here, the major medical insurers have paid benefits and seek reimbursement from the compensation insurer within the context of this case. N.J.S.A. 34:15-15.1. For the foregoing reasons, respondent's motion to dismiss the claim petition on the two year statute of limitations is denied. Both the accident and occupational disease statute require prompt notice to an employer of the injury unless the employer has knowledge of the injury or need for treatment. However, notice need not be given when the employer has actual knowledge of the injury or receives notice of the injury within time periods significantly shorter than the statute of limitation periods discussed above. In the case of accidental injuries the notice/knowledge date is 90 days. N.J.S.A. 34:15-17. Notice of occupational disease injuries must be given within the latter of 90 days of the contraction of the occupational disease disability or 5 months after termination of the occupational exposure. N.J.S.A. 34:15-33. See also N.J.S.A. 34:15-35. Here the record clearly discloses that the employer was told of the disease as soon as Mr. Bird was aware he had it. Whether the claim was brought as an accident or occupational disease claim, the notice testified to by Mr. Bird is timely. It is inconceivable that the legislature would require a worker to file a claim or give notice of an injury before the worker even knew he had been injured. He could not know he had been injured until the disease process was apparent and the diagnosis pronounced by the physician. Respondent knew Mr. Bird had Lyme's disease as soon as he knew of it. Mr. Dwyer, his supervisor, was never called to refute that fact. This failure of proof can not be explained in any manner favorable to respondent. Respondent offered no evidence to rebut Mr. Bird's testimony on this or any other issue. Interestingly, in 1994, well after the onset of Lyme's disease Mr. Bird was again bitten by a tick which was removed by Mr. Dwyer. No matter whether the occurrence of the tick bite was an accident or occupational disease, the employer had actual knowledge of the illness as soon as possible. When an employer has actual knowledge of the injury and the circumstances of the employment suggest a possible relationship, the employer has an obligation to investigate. Bollerer v. Elenberger, 50 N.J. 428 (1967). It elected to allow payment of its compensation obligation through its major medical insurers. The compensation insurer, PMA is bound by the conduct of the employer. Respondent's request to dismiss under a notice or knowledge defense is denied.EXPOSURE The statutory definition of
a. [T]he phrase "compensable occupational disease" . . . includes all diseases arising out 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.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. N.J.S.A. 34:15-31.
This definition of occupational disease was enacted by the 1979 Workers' Compensation Reform Law as a part of a legislative plan to contain compensation costs as a balance for increased disability benefits for serious injuries. Fiore v. Consolidated Freightways, 140 N.J. 452, 468 (1995). Previously it was only necessary to show the occupation was a contributing cause. Giambattista v. Thomas A. Edison, Inc., supra. Now it must be shown the disease was due in a material degree to the exposure. Peterson v. Hermann Forwarding Co., 267 N.J. Super. 493, 503-508 (App. Div. 1993), certif. den. 135 N.J. 304 (1994) and Kozinsky v. Edison Products Co. , 222 N.J. Super. 530 (App. Div. 1988). Further the employee must also show the exposure or condition was characteristic of or peculiar to the occupation, process or place of employment and the material cause of the occupational disease. Fiore v. Consolidated Freightways, supra. 140 N.J. @ 468-470. Resolution of the issue of whether the employment risk was the material cause of the disease depends on whether the proofs establish the compensable disease would not have occurred to the extent it did in the absence of the described employment exposure. See Fiore v. Consolidated Freightways, supra., at 473-477. If the condition would have occurred to the same extent with out the exposure, it is not compensable. If the work environment is no different than which the general public is normally exposed to, then the condition would not be peculiar to the employment. Laffey v. City of Jersey City, supra. If the occupational exposure was a real causative factor in bringing about the disease or its extent, the injury is compensable. Fiore, at 477. But even this definition of the work environment is one which must be considered in light of the remedial purpose of the compensation statute to assure that industry and not the general public assume the cost of personal injury due in a material degree to the particular work location and the contrary proposition that industry should not be burdened with costs not peculiar to the employment activity. Cf. Morris v. Hermann Forwarding Co., 18 N.J. 195, 197-98 (1955), Sheffield v. Schering Plough Corp., supra. at slip opinion 23-24. The epidemiological studies, especially the Environmental Risk and Prevention of Lyme Disease establish beyond any credible dispute that there is a substantially enhanced chance Mr. Bird would contract the causative agent of the Lyme's disease at work than away from work.
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. . . 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. [Emphasis added.] Longitudinal Study of Borrelia burgdorferi Infection in New Jersey Outdoor Workers, 1988-1991, published in the American Journal of Epidemiology, (1994) by The Johns Hopkins University School of Hygiene and Public Health, Vol. 139, No. 5, p. 504-512.
The other medical literature in evidence overwhelmingly supports the finding that Mr. Bird's Lyme Disease was contracted in his work environment. Petitioner presented six reports of medical investigations which support the finding of the work exposure. Dr. Weisenreider in his testimony produced the American Journal of Medicine, a National Clinical Conference on Lyme Disease, which contains a section entitled Environmental Risk and Prevention of Lyme Disease written by Dr. Durland Fish which points to the greater exposure risks of persons employed in an outdoors rustic environment. Dr. Weisenreider offered explicit testimony that the infection was probably the result of Mr. Bird's exposure working on the golf course. Dr. Sensakovic testified that he was the chairman of the symposium and participated as a member of a writing committee on Lyme Disease in New Jersey: A Practical Guide for New Jersey Clinicians, Published by the Academy of Medicine of New Jersey (1993). He did not bring to court his article or the publication hereafter referred to as the Guide. There does appear to be some apparent disagreement between the content of the published studies including those expressed in the portions of the Guide relied on by petitioner and the conclusions expressed here by Dr. Sensakovic in his testimony. A careful reading of all the evidence, including the content of the studies included in the literature demonstrates the correctness of the conclusion that there is a strong correlation between time and intensity of exposure and occurrence of Lyme disease. Thus the epidemiological risk factors associated with Lyme Disease validate the conclusion of the medical literature that outdoor workers who work in areas with infestations of the diseased ticks have a much greater chance of contracting Lyme disease than persons who reside in city like environs. Dr. Sensakovic testified he disagreed, he opined that based on other studies 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. He did not produce specific studies which contained sufficient empirical data to validate this thesis on the universal basis suggested by him. In the judgment of this court, the weight of the available literature and the very factors on which Dr. Sensakovic relies point to a contrary conclusion favorable to the epidemiological evidence relied on by petitioner. 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. Clearly, persons such as petitioner who spend significant time in the woods and rustic areas are exposed to an enhanced risk of contracting Lyme disease. It is likely that respondent did not cite the Guide because it did not support their litigation position. Dr. Weisenreider's testimony in that regard is also persuasive. The Guide suggests that persons with gardens have an exposure if their vegetable patch or flower garden are on the edge of the forest. Absent this factor of proximity, the enhanced exposure suggested by Dr. Sensakovic is absent. Similarly home lawns are not a significant risk area. Dear and furry animals are not daily visitors to home lawns. They are present in rural or wooded areas such as respondent's golf course. Dr. Sensakovic's failure to acknowledge these risk factors in the exposure aspects of his testimony gives one pause when evaluating his testimony on the question of whether Mr. Bird has Lyme's disease. Pertinent here is the following excerpt from the Guide.
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. [Emphasis added.] Guide at III-4.
Mr. Bird's description of the rustic forest like conditions of the golf course rough and wooded areas which surround the fairways, apple trees on the course, and shrubbery all fit the definition of the habitat of the animals which carry ticks infected with the Lyme disease bacteria. This golf course rough and woods are the home to deer and other furry inhabitants of rustic woods such as muskrats, beaver and possums. The animals and particularly the deer do wander on to the golf course. Respondent suggested that mice play an important role as a carrier and spreader of the tick into more sedate settled environments. Respondent could not explain away the fact that the white footed mice, no matter where they eventually go, pick up the infected deer tick in rural wooded areas which are home to ticks. The ticks feed on the deer where they pick up the infection. I There is no reliable evidence that the mice spread infected ticks in city like residential areas such as where petitioner resides. Even if the mice carry the ticks into such areas, there is no reliable explanation on how the tick would survive in a city street or on the grounds of a home in city like conditions. There is no data of infected persons with a city like exposure that in any way approach the numbers of persons exposed in the rustic wooded areas. Even the material relied upon by Dr. Sensakovic point to a rustic area for exposure to ticks. The locale of Mr. Bird's employment is not at all like the environment in which he and most people reside in this urban-suburban state. On the other hand, the nature of his work was such that he is outside, working in direct contact with the grasses and shrubbery in and about a forest like area for the full work day. Mr. Bird wore the company uniform of a t-shirt, hard hat and work pants. No precautions were required nor were any taken to limit or reduce exposure to insect bites. During the working day, much of his anatomy was exposed to potential tick bites. Mr. Bird was in daily contact for the full day with a work environment which was a potential source of Lyme disease infection. On the other hand, his home is south of Route 22, in a city like setting without deer sightings. Mr. Bird's time in his small backyard garden and lawn was of short duration and not a potential source of an infected tick bite. His testimony describing the location and work exposure and the environment of his every day life was not countered by respondent. It is accepted as true. Respondent presented no fact witnesses. It did not present co-employees or management, or other persons with knowledge of the specific environments. Its defense relied on one expert witness who testified on a hypothetical basis on the potential sources of exposure and standards for diagnosis of Lyme's disease. Dr. Sensakovic's testimony on this specific narrow issues differed from the weight of published studies. No witnesses and no evidence contradicted or suggested that Mr. Bird was not candid and truthful in any regard. Mr. Bird's testimony is found to be candid, believable and a valid factual base on which to base the findings of this case. Mr. Bird has seen deer on the course and described the damage the deer would cause to shrubbery and trees. Mr. Bird's daily activities for a full eight hour work day, 5 days a week, included grass cutting on the greens, fairways and less frequently the rough surrounding the course. He cleaned up damaged brush, fallen leaves and branches. He pruned and cleaned up shrubs, trees, brush in and about the course following damage by deer. During the season, he mowed grass on the fairways and greens daily, the rough once a week. Where ever the deer go they shed ticks, including ticks in the nymph stage when they are so small as to avoid detection or observation. The fact that he was unaware of the tick bite is not at all surprising considering the small size of the tick nymph in the springtime when he probably was infected. The studies of New Jersey, introduced into evidence, reveal the locale of his work is considered to be one of the predominant homes of infected ticks. His work environment, the outdoors in a rustic area, the hills of Bedminster of Somerset County, north of route 22, covers more than 260 acres. This environment, particularly the rough and areas frequented by the deer is one in which infected ticks thrive. Environmental studies, including studies at Earle Naval station, which is located in a similar rustic wooded area of Monmouth County with a high infestation of ticks, show that outdoor workers in such environments sustain many more tick infections than people in the population at large. A study of Westchester County, New York, residents relied upon by respondent to argue that the exposure is the same for people in the population at large in suburban areas is off the mark. While that area is to a degree rustic and similar to Somerset County, the analysis of the persons studied is inadequate. It does not break down the people by where they work or their activities in the outdoors. The infected population includes children who are likely to spend substantial time playing in the woods and rustic areas. The study contains no information that would show that the towns subject to the study were similar to the town and area where Mr. Bird lived and spent his off duty hours, nor did respondent offer any such evidence. Common sense, as well as the testimony offered here, establishes there is greater degree of exposure in time and extent of exposure to disease carrying ticks in areas such as this golf course than other areas. If not for his employment at this golf course, Mr. Bird is unlikely to have had an exposure to this disease. Looking at the nature of the source of this disease, it is highly probable the work exposure of this golf course maintenance worker is the source of his disease. In comparison, his potential exposure away from work is so minimal that it is non-existent. As an aside and not part of the fact finding in this case, one would have to be deaf and blind not to be aware of the constant warnings which abound in the media about the enhanced danger to tick bites in parks and golf courses in places such as Somerset County during the warmer months of the year. Returning to the facts of exposure, in 1994, well after onset of the disease, his supervisor, Mr. Meyers, removed a tick from him. While this tick had no involvement in the cause of his disease, it is a further indication that there was an exposure to ticks on these grounds. By contrast, Mr. Bird lives in Greenbrook, a city like suburban residential neighborhood, south of Route 22. There was no credible evidence that this area is subject to an enhanced exposure to ticks. Certainly the opportunity for exposure under respondent's evidence is so small as to be practically non-existent. Mr. Bird did have a dog which was taken for walks by his son. He did have a small lawn and a small flower and vegetable garden. There is no reason to believe his dog carried live ticks, let alone the one which bit him. His time on maintenance of his yard and garden was minor in comparison to the golf course work. His yard did not adjoin the forest and was not visited by deer or other wild animals which could carry infected ticks on to his property. There was no showing his property or the neighborhood was subject to infestation by mice which could be a host to the Lyme disease ticks. There was no showing mice, if present, would be in an environment ticks which it would deposit could live and later contact humans. The only proofs on this question were the general statement of Dr. Sensakovic that the mice are every where. Without specific studies of that area or other evidence of infestation it would be reaching to infer that mice in the area he frequented away from work created an environment of exposure to Lyme disease ticks. There is a significant difference in the potential opportunity to contact infected ticks in his work environment than which would occur for the population at large. The exposure required for a finding under N.J.S.A. 34:15-31 is present.MEDICAL DIAGNOSIS OF LYME'S DISEASE The text book definition of Lyme disease is that it
is a recurrent multi systemic disorder first reported in old Lyme, Connecticut, beginning with lesions of erythema chronicum migraine and followed by arthritis of the large joints, myalgia, malaise, and neurologic and cardiac manifestations. It is caused by the spirochete Borrelia borgdorferi with the vector [carrier and infectious agent] being the tick, Ixodes damming. Dorland's Medical Dictionary, 27 edition , at page 489
The only means of contracting the disease is a bite from an infected tick. The probability of Mr. Bird's exposure to infected ticks at work has been established. If he has Lyme disease, the probability is, he has it as a result of a tick bite at work. An exposure elsewhere is unlikely. Respondent urges the law requires that the diagnosis and work relation must be shown by a 75% percent likelihood. As noted earlier, that is not the legal standard. What is required is that the medical condition diagnosis must be established by a preponderance of the credible evidence, that is 51 percent, or more likely than not. See Perez v. Pantasote, Inc., supra.; Fiore v. Consolidated Freightways, supra. The relative weight of the evidence here favors a finding that the work exposure is several times more likely than any other causes. For the reasons discussed above, the likelihood of a personal exposure is remote. The next question is whether the medical proofs justify the conclusions of his treating physicians, Dr. Weisenreider and Dr. Ruggerio-Weigel or whether Dr. Sensakovic's opinion based on his review of Dr. Weisenreider's records is medically more probable. 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 Corp., 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). Still the factual basis of the treating physician must be presented and explained. The treating physician's conclusions must be shown to be justified by the facts of the case. If the opinion of the treating physician were accepted without question, then there would be no need for the common practice of obtaining a second opinion or consultation with specialists.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, 167 (E. & A. 1947). Dr. Weisenreider is a board certified internist with years of experience in a clinical setting. Dr. Ruggerio-Weigel, the infectious disease specialist to whom he referred Mr. Bird, is board certified and fully qualified and on the staff of Mountainside Hospital where Dr. Weisenreider has privileges. The qualifications of Dr. Sensakovic in infectious diseases is unquestioned. He has done significant work on Lyme disease, but the greater portion of his background, research and writing appears to be in the area of HIV infections. His article on diagnosis of Lyme disease stresses the importance of clinical findings and use of serology as confirmation of a diagnosis of Lyme disease. Still, Dr. Sensakovic disagreement with Dr. Weisenreider and Dr. Ruggerio-Weigel, is based solely on the reported serology testing. Dr. Sensakovic, although agreeing with the treatment and clinical steps taken by Dr. Weisenreider gave no weight to the treating physician's clinical findings and gave no consideration to the effects of the administered medications on serology. Here both physician witnesses looked to the latest available medical knowledge on the subject of diagnosis of Lyme disease. Clearly medical science is still on the upward portion of the learning curve on Lyme disease, but this does not mean a worker should be denied workers' compensation benefits on account of the limited extent of medical knowledge when he contracted the disease. Cf. Dwyer v. Ford Motor Co, 36 N.J. 487 (1962); Orvito v. Miller's Roofing Co 72 NJ Super. 233 (App. Div. 1962). Here the clinical symptoms weighed and considered by Dr. Weisenreider over a three year period of observation and treatment of Mr. Bird justified diagnosis of Lyme disease. The consultation record with Dr. Ruggerio-Weigel, an infectious disease specialist confirmed the diagnosis. The blood serology validated his diagnosis. A careful review of the record demonstrates that Dr. Weisenreider's diagnosis, treatment findings and opinion of employment relationship are more probable than Dr. Sensakovic's opinions. At the time of Dr. Weisenreider's initial treatment, Mr. Bird presented with severe fatigue. The doctor engaged in a process of differential diagnosis. He was looking for possible causes of the fatigue. He took reasonable steps to consider and eventually rule out the more common reasons for his symptoms. He considered endocrinologic explanations, Epstein-Barr syndrome, infections, a possibility of cancer malignancy as well as a psychiatric or psychological explanations. All the disease complexes suggested by Dr. Sensakovic as a possible source of Mr. Bird's problems were effectively ruled out by Dr. Weisenreider during the testing and treatment of Mr. Bird. The doctors explanation of his approach to Mr. Bird was not subject to criticism by respondent's expert. He only disagreed with Dr. Weisenreider's ultimate conclusion that the proper diagnosis was Lyme disease. Dr. Sensakovic did not supply a reasonable alternative. When the Dr. Weisenreider ordered testing, it was for the purpose of sorting out whether indicia of those diseases would become evident. He was treating a sick individual, he was not engaged in forensic medicine or planning to testify in a court proceeding. He weighed the significance of reported results. He decided the reported results were sufficient to direct treatment and decided not to expose Mr. Bird to further risks and inconvenience from invasive testing like sampling of spinal fluid. His testimony had the ring of sincerity, he impressed this court that he is a physician who did not hesitate to go back to the books to do the necessary research. He did not hesitate to turn his patient over to an infectious disease specialist. His contemporaneous office records document his careful scientific approach to the care of this patient. He did not over treat. He did not use insurance coverage as an excuse to build a bill. This court is not unaware of controversy in the treatment of Lyme's disease, the diagnosis of it in situations where it does not exist accompanied by prescription of unwarranted and expensive treatment. This did not occur here. Dr. Weisenreider's medical handling of the case was reviewed by the major medical insurer which accepted his diagnosis and treatment plan. It met the accepted treatment protocol. Dr. Sensakovic offered no criticism of the medical evaluation and treatment he only differed on the final diagnosis. Dr. Weisenreider is truly a physician who in the highest sense of his professional oath has attempted to do everything possible to help his patient. Dr. Weisenreider initially ordered a blood screen for multiple factors. These examinations were negative, with the exception ...that I did Lyme antibody titers andWestern Blot titers on the initial testing, which came back markedly positive. The blood test for the initial Lyme titer, the Doctor stressed, came back markedly positive and not equivocal. 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: 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. Mr. Bird's original lab work was performed by National Health Laboratories which produced positive results on multiple bands of both the IgG and IgM testing. As a result of the initial positive blood workup a spinal tap was performed and the spinal fluid was tested by Roche Laboratories was also found to be positive for the Lyme antibodies. 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. 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. In between the initial blood workup and the spinal fluid testing, Mr. Bird was placed on an outpatient prescription of the antibiotic Rocephin. Because Mr. Bird did not improve he was given a course of intravenous medication. Mr. Bird's fatigue continued to worsen. According to Dr. Weisenreider's records, it would come in waves. In December of 1993, Dr. Weisenreider referred Mr. Bird to an infectious disease specialist, Dr. Patricia Ruggeri-Wiegel. Her consultation reports of December 20, 1993; January 20, 1994; and March 10, 1994 were important for Dr. Weisenreider's handling of this case. 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. She ordered antibiotic treatment and additional serological testing. Unfortunately the oral and intravenous antibiotics did not improve Mr. Bird's condition. The literature shows this is not an unusual reaction when treatment is delayed too long after the initial infection. Since the infection here was at least 3 to 6 months, if not more prior to the start of treatment, his poor reaction to treatment is not surprising. 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. Because of the state of his disease, he was not enrolled in the program. Mr. Bird has now developed osteoarthritis symptoms related to and consistent with Lyme Disease. In May of 1995, Mr. Bird's blood again tested positive for Lyme disease antibodies. Dr. Weisenreider expressed his professional opinion that to a reasonable degree of medical probability, Mr. Bird's condition has progressed over the years and can now be described as a chronic fatigue syndrome as a result of neuralgic Lyme Disease with chronic fibromyalgia. On the other hand, Dr. Sensakovic offers a variety of possible diagnostic choices, most of which have been rejected by Dr. Weisenreider during clinical evaluation and testing. Dr. Sensakovic states that he can not conclusively attribute Mr. Bird's medical problems to Lyme disease because the serology testing and spinal fluid testing does not meet the current prevailing standards for diagnosis of Lyme disease. The MMWR standards have evolved with time, the latest version having been issued a few months after the last series of tests in May 1995. Dr. Sensakovic does not question the methodology of taking the samples nor does he contend the labs were deficient or the results unreliable. He concedes the positive test results met the standards for diagnosis of Lyme disease at the time of each testing. He could offer no reasonable explanation why a physician treating a patient at the time of the testing should reject test results which met the then prevailing MMWR standards. On close questioning by the court, Dr. Sensakovic eventually admitted that the May 1995 serology test results contained a sufficient number of positive bands to be considered diagnostic of Lyme disease. He rested his opinion that Mr. Bird did not have Lyme disease on the fact that the second spinal fluid testing in 1993 did not have the number of positive bands required by the new 1995 MMWR standards. In that regard I find Dr. Weisenreider's explanation of why he did not order a new polymerase chain reaction in the face of two strongly positive bands to be persuasive. Dr. Weisenreider's explanation of why he continued to hold to the diagnosis of Lyme disease is a reasonable one. The antibiotic treatment reduced the number of antibodies which crossed the brain-blood barrier. His explanations are more convincing than the post hoc, forensic opinion of Dr. Sensakovic on that same subject. A summary of the medical record shows that on June 20, 1991, Mr. Bird was noted to have a rash on his neck and on his pelvis. At that time the differential medical diagnosis was poison ivy and disseminated contact dermatitis. There is no further description of the rash and it is unknown if the rash was specifically associated with Lyme Disease. Mr. Bird denies knowledge of a tick bite. In October of 1991, Mr. Bird began to experience significant fatigue. Up to this time he had been seen by Dr. Caputo, Dr. Weisenreider's office associate. 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. 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 when 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. Mr. Bird received the diagnosis of Lyme disease on or about October 13, 1992 from Dr. Weisenreider. Mr. Bird then notified his employer that he had Lyme Disease. His medical treatment continued with oral and latter with intravenous antibiotic therapy which is all the medical profession has to offer. At the risk of being repetitious, the well documented and supported conclusions of Dr. Weisenreider are accepted by this court as establishing that Mr. Bird does have Lyme disease. The exposure proofs demonstrate that the work exposure to ticks in the rough and around shrubbery and trees at the Somerset Hills Country Club is the probable material source of the infection. Mr. Bird's Lyme disease is compensable.THE AWARD The weekly wage was $500 per week, so the compensation rate for total disability under N.J.S.A. 34:15-12 (a) & (b) is $350 per week. Temporary total disability is payable at $350 per week from March 9, 1994, the day Mr. Bird began to miss work on account of this disease. The initial payment of temporary disability is subject to a lien of the State of New Jersey for TDB paid from March 9, 1994 to September 6, 1994 in the net amount of $7,449.09 which shall be deducted from the award and paid directly to the State of New Jersey. The exact date on which temporary disability should terminate and permanent disability benefits would begin, is reserved until hearing of the Second Injury Fund claim. The weekly benefit rate for temporary total disability and the rate for total permanent disability is the same, 70% of wages subject to a maximum weekly rate based on a statutory formula applied to average factory wage for the year preceding the injury. N.J.S.A. 34:15-12 (a) & (b). The weekly rate of $350 is less than the maximum rate for both 1991 and 1992, the two years in which the bite is likely to have occurred. It is likely that temporary disability would end and permanent total disability would begin when either active medical care concluded or when his compensable disability is considered fixed and not subject to further improvement. It is appropriate to avoid both an overpayment and an underpayment of weekly disability benefits. The rate of weekly benefits shall be temporarily reduced to avoid the confusion which might result from interaction with the social security offset. See N.J.S.A. 34:15-95.5 & 42 U.S.C.A. 424, et seq. The court has confirmed with the New York regional office of the Social Security Administration that it awarded Mr. Bird disability benefits effective September 4, 1994 at $970.20 per month, his 80% percent A.C.E. is $1,781.40. As a consequence the reduced rate effective September 7, 1994 until further order of the court will be $187.20 per week. The parties are welcome to seek independent confirmation of the above information. This case is set down before me for a Second Injury Fund trial with the Attorney General on Monday, October 20, 1996 at 1:30 PM. Respondent is liable for the reasonable and necessary medical expenses incurred by Mr. Bird. The court has received adequate and satisfactory proof of the reasonableness and medical necessity of treatment paid for by Lincoln National Life Insurance which shall be reimbursed for $96,572.62 plus any other related medical expenses it may have paid since the submission of proofs. Met Life Insurance Company shall be reimbursed $2,067.04 and Travelers Insurance Company shall be reimbursed $637.71 for its expenditures. If respondent disagrees with the reasonableness of the amount of charges not previously reviewed in this court, it shall be afforded a hearing on its prompt request on notice to petitioner and the medical insurer. The necessity for such a hearing is doubted because, Dr. Weisenreider's justified the medical need for each service and P.A. has access to the same data bases as the other insurers to check whether the charges are within rates prevailing in the community. Mr. Bird shall be reimbursed for his out of pocket expenditures for deductibles and co-payments for expenditures which were covered by the major medical insurers: $273.29 on the Travelers items and $9,883.53 on the Lincoln National Life items, a total of $10,156.82. Respondent shall furnish necessary and reasonable medical care ordered by Dr. Weisenreider, who until further order of this court remains the authorized treating physician, for the consequences of Lyme disease. The doctor shall furnish respondent with periodic reports of the treatment plan being followed. Respondent shall have the right to periodic reasonable examinations by its consultant on treatment questions. If it disagrees with the treatment being furnished by Dr. Weisenreider, it shall either discuss it with the physician of file a motion with this court. Dr. Hermele, petitioner's expert for purposes of the Second Injury Fund application is allowed a fee of $200, payable one-half by each party. Dr. Weisenreider is allowed a fee of $250 for his report and $1,250 for his time of more than 6 hours devoted to his two appearances in this court. His testimony was critical to the success of petitioner's claim. The full fee of $1,500 is payable by respondent. Petitioner's attorney is awarded a fee of $19,500, payable by respondent for his thorough and effective advocacy. Counsel's experience and expertise was weighed along with the extensive thorough medical investigative effort and legal advocacy. Counsel's courtroom performance and his trial brief show that he devoted extensive time and skill to prosecution of this case. Mr. Bird is indeed fortunate to have retained a competent and devoted advocate. Applying the standards of Gromack v. Johns-Manville Products Corp., 147 N.J. Super. 131, (App. Div. 1977) the fee is set at $19,500 payable by respondent. The fee is based on the amount of medical treatment expenses obtained as a result of counsel's activities, future treatment, and the temporary disability award, which exceeds $100,000. At this point it is likely the only question is whether, the total permanent total disability shall be paid by respondent or whether the Second Injury Fund will be responsible for a portion of the total disability. The fee is set at the maximum amount which can be awarded without submission of an affidavit. The amount awarded here will be considered when fees are set at the end of the case. Petitioner's attorney shall submit an order which conforms to the terms of this decision on five days notice to respondent's attorney.Dated: September 16, 1996 Lawrence G. Moncher, J.W.C.
The Lyme Disease Network of NJ, Inc.
43 Winton Road
East Brunswick, NJ 08816