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Appellate Division Rejects Reopener of Psychiatric Award 18 Years Post Injury

By on January 18, 2018 in Awards with 0 Comments

It is challenging for a petitioner to relate an increase in disability or need for treatment to a relatively modest award that has remained unchanged for over a decade.  That was the situation in Batts v. Flag House, A-5616-15T4 (App. Div. January 16, 2018).   The case involved an award of 50% disability of the right foot and 10% psychiatric disability going back to 2003.  Petitioner was originally injured on April 2, 1998 when a forklift ran over his right ankle in the course of employment.

Petitioner reopened the case several times – but only with respect to the foot.  In 2007 his foot award was increased to 57.5%.  Five years later, his foot award was increased again to 60%.  But the psychiatric aspect was not increased.  It remained at 10%.

The same day petitioner received an increase to 60% of his foot, he filed a modification application along with a motion for medical and temporary disability benefits seeking psychiatric treatment.

At trial, petitioner testified that his increased level of depression was due to his foot injury.  He said that he developed intimacy issues with his wife leading to his divorce nine years earlier.  He also alleged that he gained 50 pounds and was diagnosed with depression following the accident.

Petitioner presented Dr. Devendra Kurani as an expert in psychiatry.  Dr. Kurani stated that petitioner’s divorce, lack of mobility, weight gain, hypertension, diabetes, unemployment, financial concerns, inability to socialize, and depression were all due to his 1998 accident.  Dr. Kurani said petitioner needed psychotherapy and medication.  Up to that point in time, petitioner had never been prescribed any psychiatric medication.

Respondent produced Dr. David Gallina, who agreed that petitioner had depression.  However, Dr. Gallina testified that the depression was not due to the work accident in 1998.  He felt that his obesity and loneliness were due to his divorce.   Respondent pointed out that petitioner had not had any psychiatric treatment throughout the life of his case and had not been prescribed psychiatric medications.

The Judge of Compensation ruled against petitioner.  The Judge noted that petitioner had never sought psychiatric treatment from 1998 to 2016.   Although his awards had been increased for the foot, his underlying foot condition had not changed all that much.  The Judge felt petitioner failed to link his divorce to the ankle injury in 1998.  According to the Judge, Dr. Gallina’s testimony made more sense in that petitioner made certain lifestyle choices which could account for his obesity.

Petitioner appealed and argued that res judicata principles applied and the Judge was bound by the prior acceptance of the psychiatric aspect of the case.  The Appellate Division disagreed:  “Thus, there is no basis for the assertion that petitioner had a right to have his psychiatric disability award increased because of a prior court order.”  The Appellate Division stated that petitioner simply failed to prove that his current depression was caused by his 1998 accident.

The case illustrates that employers can win reopener claims at trial.  The case was extraordinary in that petitioner was seeking psychiatric treatment after an accident going back to 1998 with no intervening psychiatric treatment.

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John H. Geaney

About the Author

About the Author:

John H. Geaney, an executive committee member and shareholder with Capehart Scatchard, 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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