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Hospital Defeats Occupational Claim By Filing Motion To Dismiss After Petitioner’s Case

By on December 2, 2016 in Claims, Compensability with 0 Comments

Diana Vernacchia worked as a housekeeper for Warren Hospital performing vacuuming and cleaning duties in the radiology department and hallways, dusting and cleaning the x-ray machines and diagnostic devices, and lifting and discarding biohazardous waste and linen bags weighing an average of 50 pounds each.  She filed an occupational disease claim alleging that she developed neurological problems with her left ankle, ganglion cysts, plantar fasciitis in both feet, lower back pain and fibromyalgia from her work duties.  Vernacchia also filed a claim saying that she was shocked while using the vacuum cleaner, which caused and aggravated similar injuries.

Petitioner produced two doctors on her behalf.  Dr. Maio, an expert in general surgery, testified that she examined petitioner four times.  She diagnosed various injuries including ankle sprains, disc bulges in her low back, and sprains of her knees and ankles. She said that repetitive micro-trauma and movements caused her injuries.

Dr. Waller, a primary care internal medicine practitioner, testified that her ongoing work activities caused burning sensations in her feet, stiffness in her neck and back, and tendonitis in her extremities.  He diagnosed petitioner with fibromyalgia which was aggravated by work activities and by the one incident involving electric shocks from the vacuum.  Both doctors conceded that petitioner had bilateral ankle pain and edema well before her employment but they contended that work duties aggravated her condition.

Respondent did not produce any medical experts.  Rather, respondent made a motion to dismiss the claims based on lack of proof.  The Judge of Compensation granted the hospital’s motion and entered an order of dismissal stating as follows:

Neither Dr. Maio nor Dr. Waller referred to any demonstrable objective medical evidence to support their assertions.  The medical witnesses merely asserted a probable contributory work connection without medical support.  I find the petitioner has failed to set forth one iota of proof regarding the compensability of her claim.  I find there was no competent evidence submitted relating multiple medical problems to her employment with Warren Hospital. 

The Appellate Division affirmed the dismissal of petitioner’s case even without testimony from respondent’s medical witnesses.  It said that it is not enough for a medical witness to simply say something is work related without providing medical support or medical literature.  The Appellate Division relied on a line of cases from the 1990s which emphasizes the importance of offering medical literature in occupational disease claims or scientific evidence establishing causation.  The Court added, “Also, in this case before us, neither expert witness explained which of petitioner’s work responsibilities may have resulted in her injuries, choosing, instead, to rely upon broad and conclusory averments untethered to the facts in the case. While petitioner testified about the walking, standing, lifting and pushing associated with her employment with respondent, her expert witnesses failed to show that her injuries were a consequence of her work based upon qualitative medical support.” 

There are many cases currently in the Division that contain similar vague allegations and vague diagnoses.  Several firms representing claimants file claims directly along the very same lines of this case. The rationale employed by the Judge of Compensation and Appellate Division in dismissing this case is pertinent to many other similar claims in the Division. Employers can defeat such claims by arguing the well established case law in New Jersey requiring proof in an occupational claim of scientific evidence or medical literature to establish a causal link to work.  For a medical expert to testify simply that a condition is work related is completely insufficient.  It is always the medical and scientific explanation that is more important than the mere conclusion on causation. This case can be found at Vernacchia v. Warren Hospital, A-4634-14T1, (App. Div. October 19, 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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