Occupational claim denied where doctor testifies that complaints are not uncommon for similarly aged persons

James P. Paoli, Esq.

DeJesus v. UPS (2015 N.J. Super. Unpub. LEXIS 1790)
Decided July 27, 2015
 
Pursuant to the Appellate Division’s findings,  the Petitioner’s occupational claim was dismissed and a portion of his specific accident claim was dismissed. The Petitioner filed a claim petition against his employer alleging injury to his cervical spine as well as to his ribs as a result of an accident that occurred. Simultaneously, the Petitioner filed a claim alleging that that his cervical spine was injured as a result of his occupational duties as a truck driver.
 
Subsequently, the Petitioner filed a Motion for Medical and/or Temporary Disability Benefits seeking treatment for his cervical spine under both claim petitions. Relying upon a medical report authored by Dr. Clifford Schob, the employer filed an Answer opposing the Motion and asserting that the Petitioner’s cervical spine was not injured in the accident and that the Petitioner’s occupational exposure also did not cause the injury to the Petitioner’s cervical spine. Ultimately, a trial was conducted and the J.W.C. determined that the Petitioner did not sustain an occupational or accidental injury to his cervical spine.
 
In upholding the lower court’s decision, the Appellate Division confirmed that the J.W.C. appropriately dismissed the occupational claim and the cervical spine portion of the specific accident claim, as there was sufficient evidence to support the J.W.C.’s findings. In particular, the Petitioner was unable to sustain his burden of proof with respect to either claim. With respect to the specific accident claim, the J.W.C. relied upon Dr. Schob’s findings that the Petitioner did not initially complain of neck pain following the accident and, further, that the Petitioner’s intermittent neck complaints were not uncommon in the general population for similarly aged persons. Finally, the Appellate Division was convinced that the J.W.C. appropriately relied upon Dr. Schob in finding that the Petitioner’s cervical spine complaints were not causually related to his occupation. 

Home Modificiations: It is the Unusual Case that Warrants Extraordinary Relief

By James P. Paoli, Esq.

On December 5, 2014, the Appellate Division addressed whether an employer must provide home modifications for an employee in Loeber v. Fair Lawn Board of Education, A-1990-13T1 (App. Div.). The employee was involved in a work-related accident in November 2009, which resulted in partial paralysis and confinement to a wheelchair. In October 2011, the employee requested home modifications along with psychiatric care. The employer agreed to provide psychiatric care along with only some of the requested home modifications. In 2013, the Division of Workers’ Compensation held a trial to address the employee’s request for the remaining modifications.

Click link for a printable version – Home Modifications- It Is The Unusual Case That Warrants Extraordinary Relief.pdf

Appellate Court Affirms Sanction And Attorneys Fees For Employer’s Failure To Abide By Court Order

In Pschunder-Haaf v. Synergy Home Care of South Jersey, a petitioner filed a claim petition asserting that a work place accident caused injures to her spine, neck, and head. The Judge of Workers’ Compensation ordered the employer to provide medical and temporary disability benefits. An Order was entered on September 7, 2010, permitting treatment with Dr. Cervantes and continuing temporary wage benefits until the petitioner was returned to work or a light duty position was accommodated.

The employer failed to pay the medical benefits and also terminated the petitioner’s temporary disability benefits. The judge eventually entered two Orders to Enforce the September 2010 Order. The employer continued its ongoing refusal to provide treatment and, eventually, two more Orders were entered requiring the employer to provide medical and/or temporary disability benefits. An amended claim petition was filed alleging derivative injuries.

Eventually, a hearing took place at which time the judge issued an oral decision in February 2014 compelling the employer to provide medical treatment for primary and derivative injuries and pay temporary disability benefits. A Motion for Reconsideration filed by the employer was denied and sanctions were entered against the employer in the amount of $5,000 and $10,000, $7,500 in attorneys’ fees, and $5,654.10 in reimbursement for expenses.

The employer appealed, contending that the amended claim petition was procedurally deficient, that the February 2014 Order went against the weight of the evidence and that the imposition of sanctions and award of fees were erroneous.

The Appellate Court rejected the employer’s argument that the claim petition was procedurally deficient. With respect to the employer’s contention that the judge’s decision was against the weight of the evidence, the Appellate Court reviewed “whether the findings reasonably could have been reached on the basis of sufficient credible evidence in the record, with due regard to the agency’s expertise.” In confirming that the J.W.C.’s findings were supported by credible evidence, the Appellate Court was satisfied with the J.W.C.’s reliance on the medical records, evidence, and testimony. As cited by the Appellate Court, the J.W.C. found that the petitioner’s expert, Dr. Craig Rosen, testified more credibly than the employer’s expert, Dr. Maslow. In fact, the J.W.C. stated that Dr. Maslow’s testimony was insulting to the court as it “flagrantly flies in the face of the medical records and reports.”

Finally, the Court considered the award of sanctions, fees, and costs ordered by the J.W.C. As set forth in N.J.A.C. 12:235-3.16(h)2, a judge of compensation is permitted to institute fines and penalties. The Appellate Court affirmed the J.W.C.’s imposition of the $5,000 sanction and attorney fees. However, the Appellate Court remanded the portion of the $5,654.10 award as the J.W.C. did not provide an explanation for requiring reimbursement. In addition, the Appellate Court remanded the $10,000 sanction as the Court found that the J.W.C. abused her discretion by awarding a sanction in excess of the Division’s rules which permits a fine of $5,000 for continued noncompliance. The Court did note, however, that a sanction could be imposed, if warranted, pursuant to N.J.A.C. 12:235-3.16(h)2.

General Internist’s Vague Recommendations Result in Denial of Motion for Medical and/or Temporary Disability Benefits

In Amedeo v. UPS, the Appellate Division focuses on the Petitioner’s reliance upon a report authored by a general internist in denying the Motion for Medical and/or Temporary Disability Benefits. By way of background, the Petitioner had a work-related injury which ultimately settled in 2012 for injuries to his right hip and lower back. Four months after settling the case, the Petitioner filed an application for review or modification of the prior award and requested treatment to his right hip. In response, the Respondent scheduled the Petitioner for an evaluation with Dr. Corona, who determined that the Petitioner was at maximum medical improvement. 

As a result of the Petitioner’s ongoing failure to appear in Court, the Respondent filed a Motion to Dismiss in July, 2013. An answer to that Motion was filed by the Petitioner along with a Motion for Medical and/or Temporary Disability Benefits based upon Dr. Brustein’s report recommending that the Petitioner seek out other specialists for his hip condition.

On October 4, 2013, the matter was listed and the Petitioner’s attorney did not attend, but instead sent another attorney to cover the matter. The Petitioner was not present. At the hearing, the Judge of Compensation dismissed the Petitioner’s Motion for Medical and/or Temporary Disability Benefits due to insufficient medical proofs. More specifically, the Judge found that the Petitioner’s Motion and supporting documentation did not meet the requirements of N.J.A.C. 12:235-3.2(b)2. In particular, Dr. Brustein’s report failed to specifically identify the type of treatment being sought. The Judge of Compensation emphasized that Dr. Brustein was not an orthopedic surgeon; rather, he practiced internal medicine and the proposed areas of treatment were outside his area of expertise. Ultimately, the Judge of Compensation dismissed the Motion for Medical and/or Temporary Disability Benefits in order to give the Petitioner the opportunity to submit sufficient support for his Motion.

The Petitioner then appealed asserting that the judge abused her discretion in dismissing the Motion for Medical and/or Temporary Disability Benefits. In affirming the Judge of Compensation’s holding, the Appellate Court determined that the Petitioner failed to provide adequate evidence to support a prima facie case in support of his Motion. In particular, the Appellate Court determined that Dr. Brustein’s report did not give rise to the specificity required for the Judge of Compensation to evaluate the Motion. 

Home Modifications- It Is The Unusual Case That Warrants Extraordinary Relief

Date: 01/01/2015
Publication: Website
CooperLevenson Publication: Website
Summary: On December 5, 2014, the Appellate Division addressed whether an employer must provide home modifications for an employee in Loeber v. Fair Lawn Board of Education, A-1990-13T1 (App. Div.). The employee was involved in a work-related accident in November 2009, which resulted in partial paralysis and confinement to a wheelchair. In October 2011, the employee requested home modifications along with psychiatric care. The employer agreed to provide psychiatric care along with only some of the requested home modifications. In 2013, the Division of Workers’ Compensation held a trial to address the employee’s request for the remaining modifications.
Article: Home Modifications- It Is The Unusual Case That Warrants Extraordinary Relief.pdf

Workers Compensation and Permanent Partial Total Award

If a workers compensation petitioner suffered injuries during the course of his employment he would, upon presentation of appropriate proofs, be entitled to a permanent partial total award. Then, if petitioner’s condition continued to deteriorate, he would have a right to file an Application for Modification and, in some cases, benefit from a totality award. In the past, carriers would always be entitled to a credit for prior monies paid, dollar for dollar, as it related to the ultimate totality recovery. Then, of late, the petitioner’s Bar began to successfully argue that a totality award was much different than benefits received via a permanent partial total award and, in many cases, that the carrier making payment pursuant to the permanent partial total award would not be entitled to a credit for the prior benefits paid. This has been a hotly contested issue for some time. Judge Calderone has now clarified the issue within his Directive dated 11/21/13 wherein he confirms that a carrier making payment in the past via a permanent partial total award does have the right to secure a dollar for dollar credit from an ultimate totality award.

Workers Compensation and Permanent Partial Total Reward.pdf

Case Law Update: Patrick Switzer v. Connectron Inc.

This case involves a reversal by the Superior Court on respondent’s Motion to Dismiss.

Petitioner filed an occupational claim against Connectron where he had been employed as a punch press operator from l987 until 5/93. Petitioner alleged that position required repeated trauma to both hands and wrists which caused carpal tunnel syndrome. He first “learned” of his alleged injury when he experienced pain and numbness but became aware it was work related in May l994 after he was laid off by Connectron and began working for a new employer, Capitol Ornamental Concrete Specialties. He was sent to a physician on May 3, l994 after injuring
his left wrist while shoveling during the course of employment.

Switzer v Connectron Inc (JimP).pdf

Case Law Update: Danuta Rosinski v. General Motors

Respondent appeals from a final determination by the Workers Compensation court who found petitioner was entitled to death
benefits because her husband died while on special mission. The central issue raised on appeal is whether the decedent was engaged
in the direct performance of his duties when he suffered a heart attack while waiting outside the hotel in which he was staying after a fire alarm.

We affirm the lower court decision for the following reasons:

Decedent was a union representative and was scheduled by his employer to attend a training session on April 21, l998, along with other employees, in Michigan. Travel arrangements were made through a company who contracted with respondent who also paid for
his room, car rental and transportation.

Rosinski v General Motors.pdf