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Appellate Division Affirms Large Award to Airline Employee

By on January 12, 2015 in Uncategorized with 1 Comment

It is very difficult to appeal a Judge of Compensation on the level of permanency awarded following trial.  That lesson can be seen in Huesser v. United Airlines, A-5959-12T3, (App. Div. July 14, 2014).

Elaine Huesser worked as a flight attendant for United Airlines since 1998.  She suffered her first injury on September 28, 2005 when her flight seat broke, causing her to fall and injure her left shoulder and lower back.  That case settled in March 2009 for 42.5% of partial permanent disability, apportioned 27.5% for the left shoulder and 15% for the low back.

The second injury occurred on September 28, 2008, when petitioner suffered a massive rotator cuff tear of the right shoulder while lifting a suitcase into an overhead compartment.  She had four surgeries following this incident, culminating in a shoulder replacement procedure.

Huesser reopened the first award and sought an increase in permanency.  She had invasive pain management treatment , including lumbar injections and lumbar nerve ablations after the initial award was entered.  Both the reopener claim and the right shoulder claim were tried to conclusion before the Judge of Compensation, with the only issue being the nature and extent of permanency.

The job of flight attendant was demonstrated to be very physical, with occasional lifting of up to 75 pounds, pushing metal carts weighing 250 pounds, lifting bins of sodas, reaching to close overhead bins, lifting luggage, and opening and closing heavy flight doors.  Huesser testified that she returned to work in November 2010 after two years of treatment following her four right shoulder surgeries.  She had seniority with United Airlines, which permitted her to avoid some of the heavy lifting duties.  She became a purser, a job which involved lifting lighter bags and doing more supervisory work.  Eighty five percent of the time she did not have to do the very heavy lifting, but the remaining 15% of the time she still did some of the physical tasks, which she would perform in pain.  She said she learned to compensate for the pain in her right shoulder and adjusted the way she did things.

At the time of her testimony, petitioner said she had constant pain in her mid to lower back which had worsened since her testimony at the time of her first award for the 2005 accident.  The pain had begun to travel down to the left and right sides of her buttocks.  Her sleep was deleteriously affected.  Her husband testified that she no longer cooked, cleaned or gardened.

Respondent produced two employees who said that petitioner was never written up for being unable to perform her job, and she never complained about inability to do her job duties.

Petitioner’s expert, Dr. Gaffney, testified that her level of disability increased since the original award.  He raised his estimate of disability for her back by 45%.  Dr. Tobias, petitioner’s expert for the right shoulder, said she had a disability of 75%.

Respondent’s expert, Dr. Zazzo, increased his disability on the back by 2.5% and left shoulder.  He estimated 33% disability for the right shoulder, and he increased that percentage at trial to 38.5%.

The Judge of Compensation found an increase of 10% in the low back, meaning that her award for the 2005 accident was 52.5% credit 42.5% ($52,035), and he awarded petitioner 45% on her right shoulder ($120,150), which was only marginally higher than the very high estimate of respondent’s expert, Dr. Zazzo.   Respondent appealed both judgments, contending that they were not based on adequate and credible evidence.  The Judge of Compensation found no increase on the left shoulder.

The appellate division dispensed with the argument that the Judge of Compensation had not considered the fact that petitioner had not complained about her job duties since returning to work in November 2010.  The court noted that her seniority allowed her to avoid some of the heavier tasks and noted that she simply worked in pain.  The court also rejected the notion that the mere fact that petitioner successfully returned to work negated such high awards.  It cited N.J.S.A. 34:15-36: “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.”

In the end, the appellate division deferred to the expertise of the Judge of Compensation in finding the correct level of disability.  “We recounted in detail the compensation judge’s findings and conclusions because they demonstrate a comprehensive and thoughtful review of all of the testimony and evidence presented.  The judge made credibility determinations and clearly set forth the basis for his findings and conclusions.  We find the judge’s determinations of disability are supported by the weight of the evidence.”

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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:

    Its hard to see why this case was tried, and why this decision was appealed.

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