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Eighteen-Foot Fall from Ladder Did Not Aggravate Preexisting Back Condition

By on January 31, 2014 in Key Defenses with 0 Comments

Remi Beausejour had problems with his lower back dating back to 2006, when he injured his back at work.  He had pain in his back, and down through his right leg.  An MRI showed degenerative disc disease and a disc herniation at L3-4 and L4-5 levels.  He also experienced radiculopathy at the time, and was discharged from treatment four months post injury.

Beausejour suffered a second low-back injury in January 2008, and another on September 17, 2009.  Both injuries required treatment to the lower back.  After the September 2009 incident, he was unable to sit due to the extreme pain.

An MRI was performed on September 28, 2009, showing a small right paracentral annular tear and disc herniation at L1-2, with bulging discs at L2-3 and L3-4, and a disc herniation at L4-5 with lumbar radiculopathy.  He required epidural injections at this time, and was out of work for three weeks. The last injection occurred in November 2009.

The accident which was the subject of this case occurred on December 2, 2009, when Beausejour fell 18 feet from a ladder and fractured his left ankle. Beausejour had an EMG in 2010, which revelaed acute L5-S1 radiculopathy.  He contended that this fall at work aggravated his preexisting lower back condition.  A new MRI was ordered on January 17, 2011, which ultimately showed much the same findings as the 2009 MRI.

At trial two orthopedic experts testified.  Dr. Lance Markbreiter compared the 2009 MRI with the 2011 MRI and said that there was no significant change and no traumatic findings.  He felt that the degenerative changes on the MRI were what one would have expected given the two-year gap in dates of the studies. Dr. Markbreiter felt that there would have been much more pathology on the 2011 MRI if the fall from the ladder had actually produced a back injury.  He felt that petitioner’s lower back complaints would have been the same regardless of the fall.

Dr. Cary Skolnick testified for petitioner.  He said that the fall in 2009 aggravated and exacerbated petitioner’s preexisting lumbar degenerative disc disease.

The Honorable Watson Berich, Judge of Compensation, held that Dr. Markbreiter’s testimony was more persuasive, in part because he had been petitioner’s treating doctor after the 2009 fall.  In contrast, Dr. Skolnick had only seen petitioner on one occasion for an IME.  Judge Berich found that there was no demonstrable, objective medical evidence of any aggravation of the petitioner’s preexisting condition, and therefore dismissed the claim petition.

Petitioner appealed to the Appellate Division, which noted that a petitioner in an aggravation case must provide proof of both legal and medical causation.  “Medical causation means the injury is a physical or emotional consequence of work exposure” and “that the disability was actually caused by the work-related event.”  (citations omitted).  The court added that generally an opinion of a treating doctor is entitled to greater weight than that of an evaluating doctor on causation.  For these reasons the Appellate Division affirmed the dismissal of petitioner’s claim petition for partial permanent disability.

This case provides guidance on the term “aggravation.”  The Judge of Compensation clearly appreciated that this term means more than just “more pain.”  Since the MRI findings were exactly the same after the fall as before the fall, it was very difficult for petitioner to prove aggravation.  The case also illustrates the advantage given generally to treating doctors over IME doctors.

This case can be found at Beausejour v. Chamberlin Plumbing & Heating, Inc., A-1459-12T4, (App. Div. January 29, 2014).

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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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