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Misuse Of The Term “Aggravation” Causes Huge Overpayments In Workers’ Compensation

By on April 9, 2015 in Key Defenses with 2 Comments

SCENARIO ONE: An employee has a preexisting arthritic knee condition that his personal physician says will require imminent knee replacement. Three months later this employee steps off a truck at work and feels pain in the knee.  He reports the incident to his employer, who sends him for treatment.  The doctor orders an MRI, stating that he feels that the employee needs a total knee replacement. The doctor writes that this incident “aggravated” the prior knee condition.

SCENARIO TWO: An employee has suffered with severe back pain for many years, treating unsuccessfully with many surgeons, and has been informed she will have to live with the pain or get surgery. The employee is pushing a cart at work one day and feels pain in her back.  She sees a workers’ compensation doctor, who orders an MRI, which shows extensive spondylolisthesis.  The doctor states that this incident “aggravated the back condition.”  The employee now agrees to undergo fusion surgery.

Should the employer be paying tens of thousands of dollars for surgery and eventual permanency in these two scenarios? These are very common occurrences, but is there a common understanding of the term “aggravation?”  Does it mean one thing to doctors and another thing to workers’ compensation practitioners? In this writer’s experience, doctors often mean something completely different than attorneys.  One thing is clear:  if the treating doctor says that the work incident aggravated a prior condition, the Judge of Compensation will require the employer to pay for surgery and for permanency.

So the ultimate answer in both scenarios above depends on what the legal definition of “aggravation” is.  In both cases, the employee had been told of the need for surgery before any incident at work.   If the authorized doctor means that the work activity simply caused “more pain” on a temporary basis with no real change in the underlying condition, then no, the employer should not be paying for surgery or permanency.  Nonetheless, employers pay for these kinds of surgeries over and over again because the treating doctor says that work “aggravated” the prior condition.

There are two main reasons that workers’ compensation costs are overpaid in New Jersey, and for that matter, in most states: one is the lack of understanding of the legal definition of “aggravation,” and the other is the failure to take a detailed past medical history. A good explanation of what aggravation means comes from the case of Peterson v. Hermann Forwarding Co., 267 N.J. Super. 493 (App. Div. 1993), certif. denied, 135 N.J. 304 (1994)

In the Peterson case, the employee suffered a traumatic accident on October 1, 1982 getting out of his truck.  He missed a month of work and could no longer return to work with his company, which had ceased operations.  He obtained employment four months later with another trucking company.  He drove back and forth to New Jersey, stating that “empty trailer bouncing” caused his right leg to get numb.  He said he had to bend down in a squat position, which hurt his back.  He also said his neck would stiffen up as well.  He left this company, Mid-Florida, because the hours were too long.  Then he worked for four more trucking companies.  The last trucking company he worked for was Yellow Freight, where he worked only six days.  He ultimately found that the pain levels were intolerable, so he stopped working in June 1984 and never worked again.  He brought claims against all the trucking companies, and the Judge of Compensation found that the last employer was responsible for total disability because the work there aggravated his prior back condition.

On appeal the Appellate Division reversed, stating that all the areas of the body which hurt petitioner while working in these subsequent employments were the same areas he originally injured in 1982. “Clearly, because of his pre-existing conditions, petitioner’s work activities at the subsequent employment caused him to suffer greater pain than he would have experienced had he remained sedentary.  However, an employer is not required to compensate an employee for pain.  There must be proof of a work related injury or condition resulting in permanent disability.”

The court also added the following:  “While the work efforts of petitioner in this case may be considered strenuous by some, they were not unusual for petitioner’s line of work.  It was what he would have been able to do but for the October 1982 accident.” Another case which clarifies the need for objective evidence of worsening to satisfy the definition of aggravation is Kozinsky v. Edison Products Co., 222 N.J.Super. 530 (App. Div. 1988).

While Peterson was an occupational aggravation case, the logic that the court employed is important to appreciate.  The pain petitioner was complaining of at trial was the pain he had experienced all along, and there had been objective change over the years.  N.J.S.A. 34:15-36 only requires an employer to pay partial permanent disability if the work injury produces objective changes which either cause a lessening to a material degree of working ability or a substantial impairment of non-work activities.

Practitioners should ask doctors not whether the work conditions “aggravated” the prior condition but whether there is any objective change from the prior condition — or just a temporary increase in pain.  In other words, if one compares the prior MRI with the new MRI, and there is no change, there is no aggravation.  There may be some temporary increase in pain, but pain is subjective.  If there is a difference in the MRI results showing a worsening of the condition, then the employment activities will be found to have aggravated the prior condition.

As a practical matter, anyone who has a long-standing painful back or knee condition knows that almost any physical activity can cause a temporary increase in pain.  For a person with an advanced arthritic knee condition, even the act of walking can cause swelling and pain.  But a temporary increase in pain is not aggravation under the law.  Employers end up picking up enormous medical and indemnity costs mainly because treating doctors misunderstand the legal definition of aggravation, causing general health care costs to be passed through workers’ compensation.

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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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There Are 2 Brilliant Comments

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  1. Great examples and analysis of the misused word “aggrevation” for treating doctors. I will be using this analysis with my medical consulting programs

  2. Ruth L. Light MD says:

    The proper word is “exascerbation” which means temporary increase in pain (subjective) or decrease in range of motion or other objective sign. This is taught in “Occupational Medicine 101” or the equivalent.Employers need to know that if board-certified occupational medicine physicians are used, this mistake will not be made.

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