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Court Holds Employer Must Pay Total Disability for Complex Groin Injury Without Second Injury Fund and Could Not Offer Surveillance Tapes Done Post-Testimony

By on July 23, 2012 in Compensability with 0 Comments

In the case of Marra v. Ryder Transportation Resources, A-5724-10T4 (App. Div. July 2, 2012), the Appellate Division affirmed a holding that the employer was solely responsible for total disability stemming from a groin injury that occurred 15 years ago.

The petitioner, Gerard Marra, originally injured himself at work lifting a loading gate.  On January 6, 1998 he underwent a left inguinal hernia repair, which was complicated by a nerve condition.  That nerve condition resulted in what was termed an “exuberant scar formation” which entrapped the ilioinguinal nerve and caused burning in the testicle extending into the upper thigh, inner thigh with numbness, and an electric shock sensation in those areas.  The condition is known as ilioinguinal syndrome.

Petitioner had previously been a supervisor and mechanic.  He was returned to work in April 1998 but was given work he could not physically perform and stopped working shortly after his return.  He never worked again.  He underwent a second surgery on the nerve on March 30, 2000.  He had scarification that caused additional problems with the nerve.  Petitioner received an award for his injury but the percentage is not noted in the opinion.  However, Dr. Tiger only estimated 35% for the condition in 2000.

The case was reopened in 2003 for additional disability.  The petitioner had undergone a series of three injections into the nerve site.  These injections proved more harmful than beneficial.  Petitioner developed extreme testicular pain and nausea.  He would have debilitating attacks of severe pain six times a month that lasted a day and a half.  He was never free from discomfort.  His pain management doctor put him on Lidoderm patches, Oxycontin, and Vicodin.  His psychiatrist prescribed Neurontin, Welbutrin,  Zoloft,  Klonopin, and Provigil for depression related to the constant pain.

Both petitioner and his wife testified at trial.  His wife said her husband underwent a personality change, had little energy, was short-tempered and was in constant pain.  Dr. Peter Crain, for petitioner, testified petitioner was 100% disabled on a neuropsychiatric basis.  He conceded that petitioner had some prior injuries but said that these prior injuries (which were the basis of the Fund application) did not impair petitioner.  Dr. Tiger, for petitioner, stated that petitioner had developed complex regional pain syndrome.  He estimated 60% for the work injury and 100% overall considering prior conditions.

Ryder produced Dr. Sidney Bender, a neurologist, who testified that petitioner could return to work with restrictions from a neurological standpoint.  Dr. Arthur Canario also testified for respondent and said that petitioner was capable of working and should not be treating with opiates.  Finally, Dr. Charles Semel, a psychiatrist, testified for respondent and stated that petitioner had a 2.5% psychiatric disability consisting of depression related to a chronic pain syndrome.

The Judge of Compensation found petitioner was now totally and permanently disabled from his groin injury and assessed no liability against the Second Injury Fund.  The effect of this decision was to assess life-time indemnity benefits against Ryder. Although petitioner did have prior awards for his hand and leg, the Judge found that the total disability status was due to the last compensable accident, not due to the combination of the groin and prior injuries.  The Fund was therefore dismissed.

Petitioner appealed and the Appellate Division affirmed the award of 100% total and permanent disability without the Fund, emphasizing that there was substantial evidence that petitioner’s exuberant scarification had entrapped the nerve increasingly over time, accelerating petitioner’s pain.  The Court also noted that there was sufficient credible evidence to support the finding that petitioner suffered from chronic depression due to pain.  The Court founnd no evidence to hold in the Second Injury Fund.

Ryder also argued that the Judge of Compensation erred in not permitting the entry into evidence of a surveillance video done after petitioner testified.  Ryder argued that the video would be important because it showed petitioner could do more than just change a light bulb, which was his assertion at trial.  The Court held, “Belated surveillance tapes should not be admitted unless ‘the employer can show that it was unaware, and could not have been aware, of the circumstances warranting surveillance before the hearing.’” Gross v. Borough of Neptune, 378 N.J. Super. 155 (App.Div. 2005). The Court said that Ryder had been well aware before trial that petitioner was claiming he could not work or engage in daily activities and should have done the surveillance well before trial.

The case illustrates several key points for practitioners.  The Second Injury Fund will fight applications for Fund benefits where it believes that the total and permanent disability status is due to the last compensable accident.  Merely having some prior workers’ compensation awards will not trigger Fund liability unless those prior awards can be shown clearly to have contributed to the total disability.  Of equal importance is the finding that post-testimony surveillance cannot be introduced unless the employer can show that there was something new of which the employer had not been unaware until testimony.

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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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