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Appellate Court Defers to Compensation Judge on Assessment of Partial Permanent Disability

By on June 23, 2014 in Uncategorized with 1 Comment

One of the most challenging aspects of New Jersey workers’ compensation practice is estimating the level of permanent partial disability, particularly in a system in which the evaluating physicians have such disparate estimates.  The New Jersey Division of Workers’ Compensation does not use AMA Guidelines, which makes it even harder to reconcile widely diverging medical opinions on disability percentage.  Clients often ask whether there is a guide to how much each type of injury is worth, and the answer is no.  Is a two-level herniated disc with fusion procedure properly valued at 30%, 35%, 40%, 50% or higher? That can make a big difference because 30% at 2013 rates equals $48,564, and 50% equals $165,300.  Clients also ask how does one reconcile a case where the respondent’s expert estimates 5% and the petitioner’s expert estimates 60%?

The answer is that it depends on the individual case and the restrictions that the employee has at work or outside workEach case must be viewed on its own merits.   Has the employee returned to the same job?  Is the employee able to participate in sports, chores or hobbies that he or she used to enjoy?  The important point for practitioners to realize is that a tremendous amount of discretion is vested in the Judge of Compensation because of his or her expertise, and seldom if ever is a judge reversed on the assessment of the proper level of disability.

A case in point is Blake v. City of Asbury Park, A-1551-12T1 (App. Div. June 20, 2014).  Both parties disputed the judge’s assessment of disability but both parties agreed there was disability.  Petitioner felt that the judge should have assessed total disability, and respondent felt that the judge awarded percentages of disability that were too high.

Dennis Blake worked for the city as a police officer.  In 2002, he injured his right shoulder arising from work and had surgery.  He received an award of 15% permanent partial disability.  In 2005 he reinjured the same shoulder effecting an arrest and had a second surgery.  One question in the case was how much disability petitioner was left with following his second surgery.

In 2006, petitioner responded to a crime scene of a shooting.  He was upset in part because he knew the victim, who sustained gunshot wounds to the face.  His superior officer told him to “suck it up.”  After this incident, petitioner began abusing alcohol.

Later in the year in November 2006 petitioner responded to the scene of a gunshot suicide.  He knew this victim as well and became depressed.  His physician prescribed an anti-depressant and diagnosed post-traumatic stress disorder.  Petitioner resigned from his employment a month after this incident and was also examined by a psychiatrist on the same day.  The psychiatrist recommended extensive treatment, and petitioner treated for four months.

Petitioner filed three workers’ compensation claims:  one for the right shoulder, another for overuse of the left shoulder, and a third for his psychiatric disorder.  He also applied for Second Injury Fund benefits asserting that he was totally disabled.

Various experts testified in the case, and the Judge of Compensation awarded petitioner 37.5% credit, 15% for the right shoulder and 42.5% for psychiatric injuries.  Both parties appealed.

The Appellate Division noted that the Judge of Compensation found petitioner to be credible and observed that the judge must evaluate the testimony of witnesses and doctors according to their demeanor and qualifications, as well as trustworthiness.  The Judge did not find respondent’s expert, Dr. Holl, to be credible because there was no evidence to support Dr. Holl’s statement that petitioner’s psychiatric problems were from a prior personality disorder.  The judge did, however, find Dr. Gooriah, petitioner’s psychiatric expert, to be credible.  Nonetheless, the judge did not agree with Dr. Gooriah that petitioner had a 65% psychiatric disability.

In the end, the judge did not believe petitioner made out a case for total and permanent disability but made fairly substantial awards of partial permanent disability.  The judge did not award total disability because the judge believed that with adequate psychiatric treatment, petitioner could return to work.  The Appellate Division found that there was sufficient credible evidence to support the judge on this finding.

The disparity in orthopedic estimates was also notable.  Dr. Krengel estimated a 70% disability for the right shoulder, while Dr. Allen estimated 10%, half preexisting.  The judge assessed the orthopedic disability at 37.5%, which the Appellate Division accepted as supported by the evidence.  No disability was found for the left shoulder.

The Appellate Division simply stated, “We conclude that the judge’s award was neither excessive nor inconsistent with the credible evidence.” The main lesson in this case is that appellate courts will defer to the judge of compensation on assessments of permanent disability because of the judge’s expertise.  In most cases in New Jersey, there is a gross disparity in the estimates of disability between the parties’ experts, but judges deal with such disparities daily.  The Appellate Division will bow to the expertise of the Judge of Compensation when it comes to assessing the percentage of disability.

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About the Author

About the Author:

John H. Geaney, a shareholder and co-chair of Capehart Scatchard's Workers' Compensation department, began an email newsletter entitled Currents in Workers’ Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates.

Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers. The manual is distributed by the New Jersey Institute for Continuing Legal Education (NJICLE). He also authored an ADA and FMLA manual as distributed by NJICLE. If you are interested in purchasing the manual, please contact NJICLE at 732-214-8500 or visit their website at www.njicle.com.

Mr. Geaney represents employers in the defense of workers’ compensation, ADA and FMLA matters. He is a Fellow of the College of Workers’ Compensation Lawyers of the American Bar Association and is certified by the Supreme Court of New Jersey as a workers’ compensation law attorney. He is one of two firm representatives to the National Workers’ Compensation Defense Network. He has served on the Executive Committee of Capehart Scatchard for over ten (10) years.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School. He has been named a “Super Lawyer” by his peers and Law and Politics. He serves as Vice President of the Friends of MEND, the fundraising arm of a local charitable organization devoted to promoting affordable housing.

Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Trenton, New Jersey. The firm represents employers and businesses in a wide variety of areas, including workers’ compensation, civil litigation, labor, environmental, business, estates and governmental affairs.

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There is 1 Brilliant Comment

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  1. Daniel Lynn says:

    I agree with your assessment that ” it depends on the individual case and that …. Each case must be viewed on its own merits.” I would add that often times, it also depends upon who the judge is and what court you’re in. This is valuable information that a defense attorney can provide to the client. To me, this case also illustrates the risk that employers can have in litigating a case simply over “how much” disability will be awarded. I don’t know if this case was tried because the Petitioner was insisting on perm total, but if not, it can be a risky proposition to try a case when all you’re giving the judge is a choice between awarding “some” partial permanent disability or “more” partial permanent disability to an admittedly injured worker.

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