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Court Rejects Petitioner’s Request For Shoulder Surgery on Second Reopener

By on August 9, 2016 in Awards, Compensability with 0 Comments

Just because an employer accepts an injury to a body member as part of an award does not mean that all future treatment to that body member will be found work related.  That is the rule in Daniel v. United Airlines, No. A-1252-14, 2016 N.J. Super. Unpub. LEXIS 1816 (App. Div. August 2, 2016).

Petitioner, Ancelot Daniel, injured his neck and shoulder in November 2006 which led to a settlement of 22.5% for the neck. The award was increased to 30% credit 22.5% in 2010 for the neck along with a sprain and strain with labral tear of the right shoulder.  Petitioner then filed a second reopener seeking surgery to the shoulder for the alleged labral tear. Petitioner next filed a motion for medical and temporary disability benefits leading to testimony by petitioner and two experts.

Petitioner, age 59 at the time of trial, described his job, which was quite physical.  He loaded and unloaded passengers’ bags at a conveyor belt where the bags are stored in the airplane.  He would go inside the aircraft, get on his knees, pick up bags and put them on a belt. He said his shoulder kept getting more painful as time went on.  He also experienced numbness and tingling, which had not existed at the settlement of the first reopener in 2010.  He said that he could no longer throw bags using his right hand and took over-the-counter medication daily.  He kept working because no doctor recommended that he stop working.

Dr. Theodora Maio testified for petitioner that petitioner’s pain was more severe and persistent than the last time she saw petitioner.  He had numbness radiating down the arm into his fingers. She agreed with Dr. Jaffe, petitioner’s treating surgeon, that shoulder surgery was necessary.  Dr. Maio thought petitioner had a tear of the labrum and related it to the original 2006 accident.  On cross examination she admitted that without an EMG she could not say whether the tingling and numbness were coming from petitioner’s neck or shoulder. She further admitted that shoulder surgery would not be indicated for the numbness and tingling.

The key to respondent’s case was the fact that United’s expert, Dr. Arthur Canario, performed an x-ray showing that petitioner had bursitis in the shoulder.  When asked about bursitis, Dr. Maio conceded that petitioner might have bursitis, but she did not back off her opinion that he also had a tear.  Dr. Canario testified that petitioner’s range of motion in the right shoulder was the same as in the left.  He said that the shoulder MRI showed only a possible tear, but he maintained that all petitioner really had was a sprain of the shoulder and bursitis.  His clinical examination found no evidence of a labral tear, notwithstanding the MRI showing a possible tear. Dr. Canario confirmed the bursitis diagnosis with x-rays done in his office, showing “a calcific bursitis.”  He said that injections would be a first step but that bursitis generally happens spontaneously and idiopathically.  There was no known cause in this case, and the bursitis was not related to the 2006 work injury.

The Judge of Compensation denied petitioner’s motion for medical and temporary disability benefits.  The judge found that petitioner’s likely diagnosis was bursitis, not a tear, and that the bursitis was not work related.  The judge also noted that the numbness and tingling were not from the shoulder, and more likely from the neck.  It was significant that petitioner’s expert never saw the x-ray films done by Dr. Canario as it put Dr. Maio at a major disadvantage.

On appeal petitioner argued that the judge should have disregarded Dr. Canario’s opinion because he did not make a comparison between petitioner’s complaints in 2010 versus 2014.  The Appellate Division rejected this argument because Dr. Canario was not testifying about whether there was an increase in disability, but only whether the need for surgery was work related.  The court said those are two different issues.  “That said, we point out the issue before us does not involve a determination on petitioner’s application for modification of the OAS; rather, the issue before us involves the denial of petitioner’s motion for medical and temporary benefits.  Significantly, the motion was limited to petitioner’s attempt to obtain medical treatment for his right shoulder; it was not a claim for modification of the previous OAS based on increased incapacity caused by the compensable injuries to both his shoulder and cervical spine.”

This decision is a useful one for practitioners.  The result could have been vastly different had petitioner brought in the actual surgeon who was treating the petitioner’s shoulder. The opinion of a treating doctor is given more weight than that of an examining doctor.  Without the opinion of the treating doctor, the Judge of Compensation was left with an opinion from an IME physician who never saw the x-rays which revealed bursitis.

The case also underscores that a motion for surgery on a reopener may involve different issues than simply an application on a reopener to obtain a higher award.   In this case, petitioner apparently thought he lost the right to proceed for a modification of his award when he lost the motion.  “We note there appears to be some confusion among the parties as to whether the denial of petitioner’s motion for medical and temporary benefits somehow disposes of his application under N.J.S.A. 34:15-27 for the modification of a previous OAS.  Absent considerations not apparent from the record before us, we fail to discern how that could be so.”  The court clearly suggested that petitioner still had the right to proceed with a request for modification of his prior award, even though he lost the motion for treatment.

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John H. Geaney

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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