Appellate Division’s Affirmance Of A Respondent Verdict Restates The Oft-Forgotten Concept That An Injury Does Not Automatically Result In An Award Of Disability
On June 1, 2022 the Appellate Division decided the case of Lindell v. W.H. Industries, Inc., A-1815-20. This decision affirmed the dismissal with prejudice of three separate Claim Petitions filed by petitioner for incidents of June 27 and September 14,2007 and August 12,2009. All three claims alleged injuries to her right hand. Previously, in 2001, petitioner had been struck by a car while crossing a street, causing her right hand to go through the car’s windshield, resulting in a diagnosis of Reflex Sympathetic Dystrophy (now more widely known as Complex Regional Pain Syndrome, CRPS), and surgeries to the hand and other treatment. She was still receiving treatment to the hand from the 2001 automobile accident at the time of the June 27, 2007 accident. She alleged the three work accidents aggravated the RSD. She stopped working after the 2009 accident.
Respondent admitted the workplace accidents of June 2007 and August 2009 arose out of and in the course of employment. Treatment was authorized and paid for. Following the 2009 accident respondent paid 128.28 weeks of temporary disability.
Petitioner continued to see an authorized physician at least through September 1, 2015. At that time the doctors’ office notes indicated she had a mild swelling in her right hand. Then, on September 21, 2015 she was hit by a car while riding a bicycle. She continued to see the authorized physician for the hand injury but she did not tell the physician about the bicycle accident despite sustaining serious injuries which required a cervical fusion and lumbar surgery. The physician was not told about the bicycle accident until 2017. There was also an issue with petitioner receiving controlled pain medications from other physicians. Because of credibility and causal relationship issues the claim proceeded to trial.
Respondent stipulated that as to the claims regarding the June 27, 2007 and August 12, 2009 accidents, the “sole remaining issue (was) the nature and extent of any permanent disability” petitioner had sustained in those accidents.
The testimony was conducted over four days, and included both medical experts and the petitioner’s testimony. Petitioner’s testimony presented serious credibility issues, and medical testimony revealed significant issues as to petitioner’s entitlement to permanency benefits.
In her verbal decision the Judge dismissed all three claim petitions, finding petitioner failed to sustain her burden of proof. With respect to credibility, the Judge concluded “given the extent of lying and misrepresentation in this case, the court as a trier of fact completely rejects all of (petitioner’s) testimony.”
In many cases, such a rejection of petitioner’s testimony would end the case right there. However, the Judge realized the need to analyze, despite petitioner’s testimony, whether the medic al testimony satisfied the statutory definition of a disability as enacted in the 1979 Amendments to the Workers Compensation Act and as interpreted by subsequent decisions. The Judge found that the medical testimony did not, in fact, meet the standard required to show a permanent injury.
The provision of the Act in issue here defines partial permanent disability as follows:
“Disability permanent in quality and partial in character” means a permanent impairment caused by a compensable accident or compensable occupational disease, based upon demonstrable objective medical evidence, which restricts the function of the body or of its members or organs; included in the criteria which shall be considered shall be whether there has been a lessening to a material degree of an employee’s working ability. Subject to the above provisions, nothing in this definition shall be construed to preclude benefits to a worker who returns to work following a compensable accident even if there be no reduction in earnings. Injuries such as minor lacerations, minor contusions, minor sprains, and scars which do not constitute significant permanent disfigurement, and occupational disease of a minor nature such as mild dermatitis and mild bronchitis shall not constitute permanent disability within the meaning of this definition.(Section 36).
Citing Perez v. Pantasote, Inc., 95 N.J. 105 (1984), the Judge noted that the 1979 amendments were enacted “to eliminate awards for minor partial disabilities, to increase awards for the more seriously disabled, and to contain the overall cost of workers’ compensation.” Further citing Perez, the judge noted the Supreme Court articulated a two-part test a petitioner must meet to merit compensation under the Act: “The first essential that must be met is a satisfactory showing of demonstrable objective medical evidence of a functional restriction of the body, its members or organs…(T)he next issue is determining whether the injury is minor or is serious enough to merit compensation.” As noted in Perez, the first prong requires more than just subjective statements. A significant criterion is a material worsening of an employee’s working ability. As to the second prong, a Judge may consider “whether there has been a disability in the broader sense of impairment in carrying on the ‘ordinary pursuits of life.’” In other words, it is not the fact of an injury, or the amount of temporary disability paid, or the nature of the injury or surgery involved which should determine if an award should be made. Rather, a deeper analysis as presented by Perez must be used.
This author (not the judge) feels that this Appellate Panel “got it;” that is, the panel sensed that all too frequently awards of permanency are made today based on the happening of an accident, treatment, and complaints of limitation to permanency evaluators, even where, for example, petitioner has returned to work full duty. (Note: I make a distinction between full duty and no reduction of earnings as per the above-cited section of the Act.) I believe the panel had this in mind when this final paragraph of the decision was written:
“What petitioner is really arguing is that because respondent paid petitioner’s medical bills in connection with the worksite accidents and made temporary-disability payments to her after the 2009 worksite accident the judge had to determine she was partially permanently disabled as a result of those accidents. But that is not the law. As the judge recognized, “[b]eing paid medical and temporary disability benefits is markedly different from a determination that you have a partial permanent disability. All medical treatment provided under the statute is without prejudice and does not mean that there is a partial permanent disability.” See N.J.S.A. 34:15-15 (“The mere furnishing of medical treatment or the payment thereof by the employer shall not be construed to be an admission of liability.”). Respondent never stipulated petitioner was partially permanently disabled after the work-site accidents. Affirmed”
So? What do you think? Too little attention given to Section 36 & Perez? All those in favor say aye!
If you have any questions, comments or concerns about this topic or other issues related to your worker’s compensation needs, please feel free to contact any member of the workers’ compensation group here at Brown & Connery, LLP via email or call 856-854-8900. Also, please visit the Brown and Connery website at www.brownconnery.com to learn more about our legal services.
By: Alfred Vitarelli, Associate at Brown & Connery, LLP