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Inex Graham worked for the Port Authority of New York and New Jersey. She began her employment in June 1987 as a toll collector. She was injured in 1989 when she slipped and fell while working at the Holland Tunnel. She received an award in 1993 of 30% partial permanent disability for her left leg and 12.5% for her low back.
On September 11, 2001, petitioner was attending a training session on the sixty first floor of the North Tower of the World Trade Center. After the American Airlines plane struck the building, she walked down the stairs to safety. Outside she was told to “run for her life.” She scraped her knee but walked safely away before the building collapsed. She was covered in white ash and reached a center where others helped clean her up. She was transported to University Hospital in Newark where she was decontaminated and sent home. She never returned to work.
Petitioner filed a claim petition alleging orthopedic and psychiatric injuries from the events of September 11th. She alleged that she injured her back with left radiculopathy while running for her life, and she alleged psychiatric injuries from the day’s events, particularly from witnessing a co-worker being crushed in an ambulance as the tower fell.
Petitioner produced two experts at trial: Dr. Vin Gooriah and Dr. Morris Horwitz. Respondent produced Dr. David Gallina. Its orthopedic report of Dr. Philip Keats was introduced into evidence by agreement of the parties.
The Judge of Compensation awarded petitioner 75% of partial total on a psychiatric basis and 10% for her orthopedic claim with a credit of 5% for a prior low back sprain. Neither party was aware of the prior 1993 workers’ compensation judgment at the time. The Port Authority sought reconsideration after it became aware of the prior award, arguing that the two awards together gave petitioner 113% of partial total disability. The Judge thereafter reduced the award to 75% of partial total with a credit of 12.5%.
The Port Authority appealed on several grounds, including the failure of the Judge to properly credit the prior award. The Appellate Division faulted the Judge of Compensation for not explaining why Dr. Gooriah’s testimony on the psychiatric aspect of the case was given credence over Dr. Gallina’s testimony. Dr. Gooriah only saw petitioner once on October 1, 2007, while Dr. Gallina saw petitioner three times: June 10, 2004, February 15, 2005, and September 28, 2006. He opined that petitioner had a 5% disability on a psychiatric basis; Dr. Gooriah opined that petitioner had a 75% disability.
The Court said: “In accepting Dr. Gooriah’s recommended disability of seventy-five percent, the court made no findings and gave no explanation as to how it arrived at the figure. The court simply restated Graham’s complaints, and concluded that the award is ‘fully supported by the testimony of Dr. Gooriah, by the petitioner’s testimony concerning her inability to function both at work and a normal life pursuits.’”
In the opinion of the Appellate Division, Dr. Gallina had the benefit of three exams and was able to chart petitioner’s progress. “When Dr. Gallina saw Graham in 2005, he noted that ‘she had really substantially improved.’” He attributed the improvement to psychological counseling she had received. “Finally, Dr. Gallina remarked that the medication prescribed by Graham’s psychiatrist had helped to calm down some of the anxiety she had been experiencing. Dr. Gallina’s assessment after his second evaluation of Graham was that she had demonstrated ‘considerable functional improvement although she still indicated that she had some symptoms.’”
The Court observed that Dr. Gallina still found petitioner had PTSD in his last exam but it was in partial remission. Petitioner had no signs of depression, was able to drive a car, go to restaurants, go shopping, and her sexual libido had improved. In a crushing admission at trial, Dr. Gooriah admitted that he could not state whether petitioner had improved more than three years after he examined her because of the lapse in time since his examination. “Clearly, Dr. Gooriah could not present a reliable opinion based on objective medical evidence as to whether Graham showed improvement or regressed, as he only saw her on one occasion.”
The Appellate Division reversed and remanded and reminded practitioners that an expert opinion on partial permanent disability must be supported by a recent medical examination.
This case may be found at Graham v. The Port Authority of New York and New Jersey, A-5419-11T3 (App. Div. March 12, 2014). It is an unusual case because the Appellate Division seldom reverses a Judge of Compensation on the amount of disability. This was not a dispute about whether petitioner had psychiatric disability from work: the issue was how much disability she had. The key to the victory by defense counsel was in skillfully highlighting the greater familiarity which Dr. Gallina had with the petitioner over Dr. Gooriah, and also in highlighting specific activities which petitioner was able to engage in as of the last examination by Dr. Gallina. By contrast, Dr. Gooriah merely parroted petitioner’s complaints, leaving the Judge very little basis to adopt Dr. Gooriah’s opinion as being more credible.