PENNSYLVANIA WORKERS’ COMPENSATION
CASE SUMMARIES
6/7/2022 – 6/29/2022
EXCLUSIVITY
Samantha Riemenschneider, Admin. of the Estate of David Scott Macleary v. D. Sabatelli, Inc. & Anthony Sabatelli
Superior Court of Pennsylvania – Published Opinion
Decided June 7, 2022
Issue:
Whether the trial court erred as a matter of law in granting Employer’s Preliminary Objections as to the Exclusivity Provision of the Workers’ Compensation Act?
Background:
David Scott Macleary sustained fatal injuries when the brakes failed on a dump truck he was operating, and it began to roll. Macleary was acting at the time within the course and scope of his employment with the Employer and received workers’ compensation benefits through his employer on the day he died. Samantha Riemenschneider, as the administrator of the Estate of David Scott Macleary, instituted this suit asserting counts for negligence and wrongful death, naming employer as a defendant. Riemenschneider argued that her wrongful death suit was permissible, notwithstanding the Workers’ Compensation Act’s exclusivity provision, because she was not within the class of individuals entitled to bring a claim under the Act. She pointed out that children of decedents are eligible for workers’ compensation benefits only if they are “less than 18 years of age, are disabled until the period of disability ends, or, if the child is in school, until the child reaches the age of 23,” and none of those conditions applied here. The trial court determined that the exclusivity provision barred this suit and sustained the preliminary objections.
Holding:
The Court engaged in statutory interpretation to determine the applicability of the exclusivity provision. Riemenschneider did not allege that any language of the Act is ambiguous and should be construed in her favor, much less that the plain language of the Act permits her suit. The Act plainly states that it provides compensation to children of deceased employees, albeit only if they meet certain requirements. Riemenschneider’s claim, as the child of a deceased employee, falls squarely within the purview of the Act. However, the exclusivity provision bars the instant suit. The employee received benefits under the Act on the day of his death. In contrast, Riemenschneider is not an employee, and does not belong to a “class of employees,” but to a potential class, whom the Act purposefully excludes from recovery. The limitation on beneficiaries is one of the tradeoffs embodied in the Act.
Affirmed
IMPAIRMENT RATING EVALUATIONS
Vincent Sicilia v. API Roofers Advantage Program (Workers’ Compensation Appeal Board)
Commonwealth Court of Pennsylvania – Published Opinion
June 7, 2022
Issue:
Whether the WCJ erred as a matter of law in constraining the IRE review solely to the earlier accepted descriptions of Claimant’s work injuries?
Background:
Claimant sustained work-related injuries in 1999, when he fell from a ladder on a worksite. Employer accepted Claimant’s work injuries as a lumbar strain and a left knee contusion. The work-related injury was later expanded to include additional physical and psychological diagnoses. The work injury was again expanded on additional occasions thereafter. In October 2019, Employer filed a petition seeking a modification of Claimant’s indemnity benefits from total to partial as of August 1, 2019, based upon an Impairment Rating Evaluation (IRE), which considered the accepted work-related injuries. The result was 25% total impairment. However, the clinical summary portion of the IRE report included diagnoses secondary to the accident beyond those described in the prior decisions of the assigned WCJs. Employer asked the IRE reviewer for an addendum to the report including the whole person impairment rating based upon the diagnoses listed in the clinical summary. The IRE addendum assigned a whole person impairment rating of 45%, putting claimant past the 35% threshold for modification. The WCJ found that the later injuries, that had not been subject to review in court could not be considered.
Holding:
The majority, in a 2-1 split Commonwealth Court decision, determined that a workers’ compensation judge’s review of a claimant’s impairment rating evaluation should have considered work injury-related diagnoses that the claimant received after his initial injury determination. The decision reinstated claimant’s total disability benefits, reversing the Board which affirmed the WCJ’s modification of his compensation status to partial disability. Under the majority’s interpretation, the Pennsylvania Supreme Court’s decision in Duffey II grants physician-evaluators a large amount of discretion in establishing what diagnoses stem from work-related injuries and therefore supports their reversal of the WCAB decision. Claimant argued this precedent disputes the WCJ’s determination that the prior injury descriptions in previous WCJ decisions dictate what may be considered in the IRE. The Commonwealth Court majority agreed, holding that the WCJ’s analysis did not grant the evaluating physician adequate discretion. The Court held that there is no authority supporting the argument that such adjudications have preclusive effect on the IRE physician-evaluator. The only reason proffered for discrediting the additional diagnoses was that they had not been previously found by other WCJs. The WCJ erred as a matter of law in constraining the IRE review solely to the earlier accepted descriptions of Claimant’s work injuries.
The dissenting judge argued that the WCJ had been correct to discount later diagnoses since impairment evaluations hinge on an adjudicated injury being static. Further, the dissent disagreed with the idea that the judge improperly discounted parts of the doctor’s findings, arguing that the judge decided that the doctor’s testimony regarding the later injuries was not credible at that the WCJ’s express discrediting of the IRE physician’s testimony supports her ultimate decision to grant employer’s modification petition.
Reversed and remanded by a 2-1 Majority
Angela DiPaolo v. UPMC Magee Women’s Hospital (WCAB)
Commonwealth Court of Pennsylvania – Published Opinion
Decided June 13, 2022
Issue:
Whether Act 111’s provisions allowing employers to credit previously paid benefit weeks violate either due process or due course of law principles contained in the Pennsylvania Constitution?
Background:
Claimant sustained a work-related injury in 2008. Employer issued a Notice of Compensation Payable and began paying Claimant temporary total disability (TTD) benefits. In 2011, Claimant underwent an IRE which returned a 6% impairment rating based on the Sixth Edition of the AMA Guides. Employer filed a Notice of Change in Benefit Status based on the 2011 IRE, and Claimant’s benefit status was changed to temporary partial disability (TPD) as of the date of the 2011 IRE. Based on the Protz cases, Claimant sought reinstatement of her TTD status, which was granted as of February 19, 2016. Thereafter, the General Assembly enacted Act 111 of 2018. Based on Act 111, Employer requested that Claimant undergo another IRE, which she ultimately did in 2019. After the 2019 IRE returned an impairment rating of 23% Employer filed a modification petition seeking to change Claimant’s status to TPD.
Holding:
The due process requirement with respect to both prospective and retroactive aspects of legislation is a legitimate legislative purpose furthered by rational means. A vested right in this context is something more than a mere expectation based upon an anticipated continuance of existing law. It must have become a title legal or equitable to the present or future enforcement of a demand, or a legal exemption from a demand made by another. Due course of law protections arise from Article I, Section 11 of the Pennsylvania Constitution and has a distinct meaning in the Remedies Clause and provides an independent guarantee of legal remedies for private wrongs by one person against another, through the state’s judicial system. The Court has consistently held that Act 111 does not abrogate or substantially impair a claimant’s vested rights in workers’ compensation benefits because there is no right to ongoing TTD status. The claimant is not without recourse, because Act 111 specifically provides that a claimant placed in partial disability status based on an IRE may challenge the change in his or her status by either presenting a subsequent IRE reflecting a 35% or more impairment rating or establishing through litigation that his or her earning power has decreased. Act 111’s credit provisions clearly express an intent to apply to prior-injured claimants. An accrued cause of action and an award of workers’ compensation benefits are not equivalent; workers’ compensation benefits, even once awarded, have always been subject to modification. Moreover, the Court explained that the amendment did not violate due process principles because after balancing the interests of claimants and employers, the amendment amounted to a rational means of implementing a legitimate legislative purpose. Claimant has not established a vested right in her post-Protz-pre-Act 111 TTD status. She therefore has not met the requirement for relief under either due process or due course of law principles. Further, Act 111’s restoration of the IRE process does not violate the “reasonable compensation” aspect of Article III, Section 18 of the Pennsylvania Constitution.
Affirmed
Martin Harold v. Abate Irwin, Inc. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided June 13, 2022
Issue:
Whether Act 111 violated Claimant’s Due Process rights or the “reasonable compensation” requirement under the Pennsylvania Constitution?
Background:
Claimant sustained a work-related injury. Claimant underwent an IRE on November 12, 2019 (2019 IRE), which returned a 10% impairment rating based on the Sixth edition of the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides). Employer filed a modification petition seeking to change Claimant’s benefit status from TTD to TPD as of the date of the IRE. Claimant raised and preserved constitutional challenges to Act 111. The WCJ granted Employer’s petition and modified Claimant’s status to TPD as of the date of the 2019 IRE. The Board affirmed.
Holding:
A vested right in this context is something more than a mere expectation based upon an anticipated continuance of existing law. Claimants did not automatically lose anything by the enactment of Act 111, which simply provided employers with the means to change a claimant’s disability status from total to partial by providing the requisite medical evidence. The claimants’ interest in having his claims adjudicated based on the state of the law before the amendment was enacted was not a vested right, but rather a mere expectation based upon an anticipated continuance of existing law. The Courts have never held that any IRE preceding the Protz cases was automatically erased in its entirety, including the weeks of benefits paid by employers for claims arising prior to Act 111. Claimant has not established a vested right in his post-Protz-pre-Act 111 TTD status. He therefore has not met the requirement for relief under either due process or due course of law principles. Further, IREs are generally viewed as a more cost-efficient method of modifying a claimant’s benefits compared to alternatives. The Court has not found IREs to be inherently unreasonable as an alternative means for employers to modify a claimant’s status from TTD to TPD, and the Courts have previously rejected arguments that IREs are inherently unreasonable because they do not depend on a showing by an employer of a claimant’s resumed earning power. Act 111’s provisions granting employers credit for previously paid benefit weeks does not violate either due process or due course of law principles. Further, by reenacting the IRE process, Act 111 does not violate the “reasonable compensation” aspect Article III, Section 18 of the Pennsylvania Constitution.
Affirmed
MODIFICATION/TERMINATION OF BENEFITS
Franklin MONTANO v. ADVANCE STORES COMPANY, INC (WCAB)
Commonwealth Court of Pennsylvania – Published Opinion
Decided June 27, 2022
Issue:
Whether the work injury has again affected claimant’s earning ability, or was he terminated for “bad Faith” willful misconduct?
Background:
Claimant sustained injuries to his back and right shoulder when boxes of windshield washer fluid fell on him while in the course and scope of his employment as a general laborer in the warehouse of Employer. Claimant returned to work in a modified-duty position as a trainer with Employer. Employer issued a medical-only Notice of Compensation Payable (NCP) for a work-related injury of an upper back area strain/tear with noted right shoulder pain. Claimant was later discharged from his employment with Employer based on his job performance as a trainer. Claimant filed the Reinstatement Petition seeking the reinstatement of temporary total disability (TTD) benefits for his work-related injuries because he was terminated while on modified duty because of work injury related medical restrictions. Both Claimant and the employer’s witness confirmed that claimant would have continued to work had he not been fired. The Employer’s witness testimony and an HR Report outlined the bases for Claimant’s termination, i.e., that he continued to submit incomplete paperwork and signed off that they were done, and after several conversations, thereby falsifying information. The WCJ found the Report to be credible evidence and it constitutes substantial competent evidence supporting the WCJ’s finding of bad faith on Claimant’s part underlying the termination of his employment with Employer. The WCJ found that Claimant was totally disabled for a period of time, due to his work-related back surgery after which he was capable of performing the light-duty job for Employer from which he was legitimately discharged.
Holding:
A claimant who has established a partial disability due to a work-related injury should generally continue to receive partial disability benefits by virtue of his loss in earnings capacity, even though subsequently discharged from employment, because the loss in earnings capacity remains extant. Whether the same claimant may receive total disability benefits depends upon whether the employer can demonstrate that suitable work was available or would have been available but for circumstances which merit allocation of the consequences of the discharge to the claimant, such as claimant’s lack of good faith. Employer’s purported failure to follow its progressive discipline policy does not compel the award of TTD benefits because it in no way affects the WCJ’s finding of bad faith on Claimant’s part. The unemployment concept of “willful misconduct” is not the standard in workers’ compensation, which goes by the lesser “lack of good faith” standard, which Employer was able to meet in this case. Claimant may not collaterally attack the WCJ’s determination of his bad faith precluding the award of workers’ compensation benefits under the Act by injecting standards applicable to the award of unemployment compensation benefits under the Unemployment Compensation Law. Employer’s purported failure to follow its progressive discipline policy does not affect the WCJ’s determination, supported by substantial competent evidence, that suitable work was available or would have been available but for circumstances which merit allocation of the consequences of the discharge to the claimant, such as claimant’s lack of good faith.
Affirmed
Overbrook Golf Club v. Mark Scott (Workers’ Compensation Appeal Board)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided June 17, 2022
Issue:
Whether the WCJ and the Board erred in determining that Claimant’s TTD benefits should be reinstated effective the date of the claimant involuntary discharge from employment?
Background:
The WCJ modified Claimant’s benefits to temporary partial disability benefits based on available light duty work from July 25, 2017, through November 18, 2017. The WCJ found that the modified duty job ceased to be available on and after November 19, 2017, when Employer terminated Claimant’s employment. Accordingly, the WCJ reinstated Claimant’s TTD benefits as of that date. Importantly, the WCJ found that claimant’s expert credibly testified that as of November 13, 2017, Claimant was not physically able to perform any type of work, including the position offered by Employer on July 25, 2017. That position ceased to be available when Employer terminated Claimant’s employment on November 19, 2017.
Holding
The WCJ and the Board did not misapply the burden of proof on the petitions and did not err in reinstating Claimant’s benefits effective November 19, 2017. Once a claimant has refused an available job in bad faith, the employer’s obligation to show job availability ends and the claimant must show a worsening of his medical condition to be granted a reinstatement to total disability. In the present case, the WCJ did not base Claimant’s reinstatement on claimant’s expert’s credited opinion. Rather, the WCJ based the reinstatement on the lack of availability of the position, which, in and of itself, does not support a restoration of Claimant’s TTD benefits. Therefore, the WCJ applied the wrong burden of proof in the reinstatement of Claimant’s TTD benefits. However, the WCJ had a basis for reinstating Claimant’s TTD benefits on the basis of claimant’s expert’s credited testimony that Claimant was unable to perform any work. Thus, even though the wrong burden of proof was applied, the court affirmed the reinstatement of Claimant’s TTD benefits because Claimant proved a worsening of his condition. Further, the WCJ’s finding that claimant’s expert was credible was not inconsistent with the WCJ’s reinstatement of benefits as of November 19, 2017, rather than November 13, 2017, the date claimant’s expert took Claimant off work. There is no dispute that the WCJ reinstated Claimant’s benefits on the basis of claimant’s expert’s credited testimony. As of November 13, 2017, Claimant was not able to work at any job. This credited opinion established that Claimant’s condition worsened and that he could no longer work in any position as of November 13, 2017.
Affirmed
Mary Ellen Borrell v. Faith Christian School Assoc. of Monroe Co., Inc. & Brotherhood Mutual Insurance Company (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Decision
Decided June 24, 2022
Issues:
Whether substantial competent evidence supported the WCJ’s finding that Claimant’s continuing symptoms are attributable to arthritis that existed prior to Claimant’s work injury? Whether the employer’s expert failed to address the accepted injury?
Background:
Claimant sustained a work-related injury when she stepped on a ball and twisted her left knee. Employer issued a medical-only notice of temporary compensation payable, accepting Claimant’s injury as “a left knee strain.” Employer subsequently filed a Termination Petition, contending that Claimant had fully recovered from her work-related injury as of the date of its independent medical examination (IME). Employer’s expert concluded that the work-related injury caused a left-knee medial meniscal tear, and thus, the arthroscopic surgery was a work-related surgery. He pointed out that, at the time of her surgery, Claimant had fairly substantial arthritic change in the knee, but that the work injury did not cause any exacerbation of arthritis of a material nature, and that any future treatments that Claimant receives to her left knee would not be attributable to her work-related injury. The WCJ determined that Employer sustained its burden of proving that Claimant had fully recovered from her work injury.
Holding:
Employer’s Termination Petition was based on its expert’s opinion that Claimant had fully recovered from a left knee medial meniscal tear. The termination of Claimant’s benefits was not based on the grounds that Claimant had a continuing disability that was no longer work related, but on the basis that Claimant’s work-related injury had ceased and, therefore, that she was no longer disabled for purposes of the Act. The record contains substantial competent evidence to support the WCJ’s finding that Claimant’s continuing left knee pain is attributable to arthritis that existed prior to Claimant’s work injury. Because the WCJ found that Claimant’s left knee pain was not related to her work injury based on the credited medical evidence, termination of benefits was proper. The employer’s expert’s opinion that Claimant had fully recovered from a left knee medial meniscal tear sufficiently encompassed the accepted injury, a left knee strain, because it is much more severe, medically speaking, than the accepted injury. Therefore, it was not improper to grant the termination.
Affirmed
JUDICIAL DISCRETION
Kurtis Stover v. Don’s Performance Corner, Inc. (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided June 27, 2022
Background:
Claimant was allegedly injured on his first day of work with the employer when, while lowering a transmission, the jack gave out, causing the transmission to fall and momentarily pin his head against the frame of the Jeep. He was able to extricate himself, sustaining a laceration and other injuries. Claimant went to lunch after this incident and upon his return, employer fired him. Employer’s witness testified that Claimant did not mention any workplace injury until 8 days later, when he called to report a possible concussion and back injury. Claimant’s expert opined that Claimant’s alleged work injury resulted in an aggravation of a pre-existing lower back condition, although he admitted that he had no knowledge of Claimant’s medical history or any past treatment he had received for chronic back problems; his sole basis for his opinion was Claimant’s self-described medical history and account of the work injury. He conceded that, if Claimant misrepresented the mechanism of injury, he would be compelled to change his opinion on causation. Employer’s expert conducted a comprehensive review of Claimant’s medical history, as expressed in various hospital records and notes of treatment. He also physically examined Claimant and concluded he possessed normal strength and range of motion for his age, with the exception of some limitation to his back extension. He opinioned Claimant did not suffer any work injury. The WCJ concluded that no compensable work injury was sustained. The claimant filed the appeal pro se.
Issues:
Whether the WCJ’s credibility determinations were reasoned within the meaning of Section 422(a) of the Act?
Holding:
Claimant devoted a substantial portion of his brief to asserting new evidence and an array of new causes of action against Employer. The Court could not consider new theories of relief or evidence not presented in the proceedings below. The WCJ’s decision was a reasoned one. The WCJ explained why he found Claimant incredible. These observations suffice to support the WCJ’s rejection of Claimant’s testimony. Further, when a witness testifies live before a WCJ, the WCJ may deem that witness credible or incredible based on observations of the witness’s in-person demeanor.
Affirmed
HEARING LOSS
Dennis Carlson v. General Electric Company (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided June 28, 2022
Issue:
Whether the WCJ erred in crediting employer’s expert’s opinion that Claimant’s hearing loss was not occupationally induced because it developed in the latter part of his 40-year career with Employer?
Background:
Claimant filed a claim petition alleging that he suffered a compensable hearing loss because of exposure to hazardous occupational noise that caused a binaural hearing loss of more than 10%. Employer denied that Claimant’s hearing loss was work related, alleging that Claimant had not been exposed to noise levels in excess of 90 decibels, at least 3 days a week, for 40 weeks in a 12-month period. By decision dated July 27, 2020, the WCJ found that Claimant did not suffer occupationally induced hearing loss. The WCJ credited employer’s expert’s testimony that Claimant’s hearing loss was not occupationally induced because it developed in the latter part of his 40-year career with Employer.
Holding:
The WCJ did not allow an age-related deduction from Claimant’s binaural hearing loss, in contravention of the law. There is no presumption that Claimant’s binaural hearing loss in excess of 10% was due to his exposure to occupational noise. Claimant had the burden to establish a causal relationship between his hearing loss and his occupational noise exposure. Here, the WCJ accepted Employer’s medical evidence, and rejected Claimant’s medical evidence, and the WCJ is the arbiter of fact and witness credibility. To meet his burden, a claimant must prove that his hearing loss was caused by his employment. Claimant’s hearing loss did not appear until 27 years after Claimant was exposed to the most hazardous occupational noise while working in Building. Further, Claimant’s hearing loss accelerated in the last 3 to 5 years of employment when his occupational noise exposure was reduced. The WCJ concluded that Claimant’s hearing loss was not caused by noise exposure at work but did not find an age-related hearing loss. While Claimant did establish that he had binaural hearing loss, the WCJ rejected Claimant’s causation theory, thereby precluding Claimant from meeting his burden. The WCJ’s credibility determination was not arbitrary and capricious or so fundamentally dependent on a misapprehension of material facts, or so otherwise flawed, as to render it irrational. The WCJ has exclusive power over questions of credibility and weight to assign the evidence. Substantial evidence in the record supports the WCJ’s findings of fact.
Affirmed
NEW JERSEY WORKERS’ COMPENSATION
CASE SUMMARIES
6/1/2022-6/30/2022
COVERAGE
Garden State Equity 1 LLC, et al v. United States Liability Insurance Co.
Superior Court of New Jersey, Appellate Division
No. A-1824-20; 2022 WL 1816245
Decided: 6/03/2022
Background:
Plaintiffs, Garden State Equity 1 LLC (Garden State) and New Town Investments, LLC (New Town) appeal from two February 1, 2021 orders which granted defendant, United States Liability Insurance Co. summary judgment.
An employee of one of New Town’s contractors was severely injured while working on one of plaintiff’s properties. The employee filed a demand for workers’ compensation benefits against New Town, which was forwarded to the defendant, and then denied. Defendant cited a policy exclusion (L-500) which applied to all claims and suits by any person or organization for damages because of bodily injury, including damages for loss of services and care, and “any claim under which insured may be held liable under any Workers’ Compensation Law.” The injured employee sued plaintiffs and sought damages for his injuries. Defendant continued to deny coverage. The parties both filed summary judgment motions following discovery.
Plaintiffs argues that L-500 did not apply because there were two more specific exclusions, L-278 and L-532, which they argue were controlling and restored coverage excluded under L-500. Plaintiffs argued that the court should read the policy holistically and that a lay person reading the policy would not know there was no coverage for the worker’s injury. Judge Beacham rejected plaintiff’s arguments and found that L-500 was the more specific exclusion, and dismissed plaintiff’s waiver and estoppel arguments.
Holding:
The court stated that pursuant to the Cypress Point case, courts examine insurance policies to determine whether it provides an initial grant of coverage, and if so, whether any of the exclusions precludes coverage. If an exclusion applies, the court then determines whether an exception to an exclusion applies to restore coverage. The court stated that “[a]n insurance policy will not be deemed ambiguous merely because the parties offer conflicting interpretations.”
The court held that the L-500 exclusion clearly applied to the claims asserted by the injured employee and that the policy was not ambiguous. Therefore, the court held that summary judgment was properly granted in favor of the defendants.
Affirmed
CREDIBILITY DETERMINATIONS
Lindell v. W.H. Industries, Inc.
Superior Court of New Jersey, Appellate Division
No. A-1815-20; 2022 WL 1763624
Decided: 06/01/2022
Background:
Laurie Lindell (petitioner) appeals a decision dismissing her workers’ compensation claim petitions with prejudice. Petitioner worked for W.H. Industries beginning in 1999. She worked in an office with duties related to accounts payable, HR, workers’ compensation, imports and exports, and purchasing. These tasks required use of a calculator, computer, and making notes on paper.
In 2001, petitioner was hit by a car, causing her right hand to go through the windshield. She was diagnosed with right hand reflex sympathetic dystrophy (RSD). In 2009, petitioner filed two claim petitions alleging she had injured her right hand at work in accidents on June 27, 2007 and September 14, 2007. She then filed another claim petition, alleging she injured her right hand at work on August 12, 2009. She stopped working after this incident and alleged the incident aggravated her RSD. Each workplace incident involved the steel door that separated petitioner’s office from “the floor” being opened onto her right hand. Respondent admitted all three accidents arose out of the course of employment and paid all authorized medical bills.
On September 15, 2015, petitioner was hit by a car while riding her bicycle. Despite having an appointment with her doctor, Dr. Freedman, 8 days later, she did not tell him about the bike accident. In 2016, petitioner had a cervical fusion and a lumbar surgery. Again, she did not tell Dr. Freedman about these surgeries even though she saw him 8 days after the neck surgery and the day before the lumbar surgery. Dr. Freedman concluded that petitioner on numerous occasions had filled prescriptions for controlled substances from other providers while he was treating her, and had he known about the other prescriptions, he would have reduced or eliminated the medications that he prescribed.
Dr. Freedman was called as a witness, as well as petitioner’s expert, neurologist Stephen Dane. Dr. Dane testified that when he saw the petitioner in 2017, she did not tell him about the surgeries she had after the bike accident, and many of her complaints could have been a result of the cervical fusion. Respondent used a neurologist, Charles Effron, as its expert. Dr. Effron concluded that petitioner did not have RSD and there was no permanent disability as a result of the 2009 work injury.
The compensation judge dismissed all three claim petitions, finding the petitioner not credible, and going into great detail about her reasons for that determination. The judge found petitioner’s failure to disclose the bike accident to Drs. Freedman, Dane, and Effron, coupled with lying on the stand about never having prescriptions filled by doctors other than Dr. Freedman irreparably damaged petitioner’s credibility.
The judge dismissed the claim petitions regarding the 2007 work incidents because the entirety of petitioner’s testimony was about her functional status after the 2009 accident, and all of the permanency evaluations took place after the 2009 accident. The judge dismissed the claim petition regarding the 2009 accident, stating that not one doctor opined petitioner was totally disabled, and she presented no expert testimony that she was incapable of working. Petitioner appealed.
Holding:
The court held that because the judge’s decision was supported by sufficient credible evidence present in the record, it affirmed. The court stated it would not disregard the judge’s assessment of petitioner’s credibility, especially in a case in which the treating doctor and expert witness relied extensively on petitioner’s subjective complaints.
The court stated that petitioner was really arguing that because respondent paid her medical bills in connection with the work accidents and made temporary disability payments after the 2009 work accident, the judge had to determine that she was partially permanently disabled as a result of those accidents. The court held that all medical treatment provided under the statute is without prejudice and does not mean there is a partial permanent disability.
Affirmed
ABUSE OF DISCRETION
Ripp v. County of Hudson
Superior Court of New Jersey, Appellate Division
No. A-2972-20; 2022 WL 1815296
Decided: 6/03/2022
Background:
Louis Ripp injured his back in a work accident on February 11, 2013 while he worked for the County of Hudson as an assistant chief engineer/boiler operator. Ripp applied for workers’ compensation benefits, and received temporary disability benefits and medical benefits, before he was declared permanently disabled in 2016.
On January 26, 2021, the judge of workers’ compensation (JWC) entered an order approving a settlement of $365,100. It is undisputed that the County was to pay him $173,480 within 60 days of the entry of the Order. Ripp filed a motion to enforce the Order, as the County had not made the required payments. Ripp did receive the full payment amount due to him on April 12, 2021, sixteen days late. Ripp requested simple interest on the payment and an additional 25% assessment for unreasonable payment delay. The JWC ordered the County to pay an additional $43,370 within 60 days finding that the delay was unreasonable. The County now argues that the JWC abused her discretion in imposing an excessive assessment under the circumstances.
Holding:
The court held that the legislature in N.J.S.A. 34:15-28.2 chose not to specify what is a presumptively unreasonable delay in payment of settlement proceeds under an order entered by a JWC. The court then stated that the legislature intended to leave to the JWC’s discretion what constituted an unreasonable payment delay by leaving it undefined in the statute.
The court held that it was legal error for the JWC to consider litigation delays in deciding an appropriate remedy under the statute as no payments were due to Ripp until the JWC entered the order. The County did not dispute that it failed to pay Ripp in a timely fashion, but gave various excuses for that delay, which the JWC considered, and to some degree accepted as reasonable. Nevertheless, the JWC imposed the maximum statutory penalty for a delay of 16 days.
The court therefore concluded that the JWC mistakenly exercised her discretion in this matter, and they vacated the order and remanded it for reconsideration of an appropriate additional assessment for the minimal delay.
Reversed and remanded