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Court Finds That Severe Neck Pathology Was Not Due To Occupational Activities But Rather To The Natural Aging Process

By on June 28, 2016 in Claims, Uncategorized with 0 Comments

Lois Scafuri filed three workers’ compensation claims alleging occupational exposures as a sales assistant caused her severe neck pathology.  She worked at the Short Hills Mall for two employers: Sisley Cosmetics and Neiman Marcus Group.  She later worked for Bloomingdale’s/Macy’s in the same capacity.  All three employers denied her claims asserting that her neck pathology was simply the result of the natural aging process.

Scafuri did actually have a truamatic accident on August 3, 2005 when she slipped in the stockroom and struck her head on a metal shelving unit.  She did not, however, file a workers’ compensation claim and obtained treatment on her own.  She claimed that she was afraid she would be fired had she filed a claim at that time.  An MRI done five months after the fall revealed cervical spondylolisthesis and a disc protrusion at C3-4 with compression of the spinal cord at C4-5.  She had a cervical fusion at C4-5 and C5-6.

In November 2006 she was diagnosed with myelomacia, which is a softening of the spinal cord.  Six months later she left Sisley Cosmetics and Neiman Marcus Group to work for Bloomingdale’s/Macy’s, and she only worked there until November 2007. Her neck continued to worsen and she had another fusion surgery in December 2007. She filed for and received Social Security Disability benefits.

Not until June 2008 did she bring her occupational claims against her three employers, but by then it was too late to file for the specific accident in 2005.   She claimed that doing make-up applications, facials, packing and unpacking boxes, and lifting boxes containing small cosmetics caused or aggravated her neck condition.  Respondent Bloomingdale’s produced witnesses from the same department disputing the physical nature of the job.  The Judge of Compensation ruled that her work activities did not contribute to her disability under N.J.S.A. 34:15-31, the occupational provision of the New Jersey statute.  The judge also did not accept petitioner’s testimony that she would do overhead lifting in violation of her doctor’s orders.

Petitioner appealed and the Appellate Division reviewed the testimony of the experts as well as the lay witnesses.  The Court noted that Dr. Alexander Vaccaro did give an opinion favorable to petitioner but also conceded that petitioner had a progressive disability.  Although petitioner at first denied having prior neck problems, she admitted that she filed a workers’ compensation claim for her neck against Macy’s in 1993 and had lumbar spondylosis since age 19.  The Court also deferred to the Judge of Compensation in finding that Dr. Charles Effron’s testimony for respondent was more credible than that of Dr. Vaccaro for petitioner in stating that there was nothing petitioner did at work that was any different that what she would do outside work.  Dr. Effron insisted that petitioner’s condition was age related.

The Appellate Court affirmed the Judge of Compensation on the dismissal of all three claim petitions as well as petitioner’s claim petition against the New Jersey Second Injury Fund.  This was a significant ruling because petitioner would certainly have been found totally disabled had she prevailed on her occupational aggravation claim.  The case shows the importance of a key provision in Section 31, which states: “Deterioration of a tissue, organ or part of the body in which the function of such tissue, organ or part of the body is diminished due to the natural aging process thereof is not compensable.”  It also shows how important it is for respondents to produce their own witnesses at trial and not just allow petitioner to constitute the only lay witness in the case.  This case can be found at Scafuri v. Sisley Cosmetics, USA, Inc., A-2065-14T3 (App. Div. June 24, 2016).

 

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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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