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Petitioner’s Expert’s Findings in Physical Exam Constituted Objective Evidence to Support Increase on Reopener from 35% to 45%

By on April 7, 2017 in Awards with 0 Comments

The New Jersey statute permits claimants who receive an order approving settlement to reopen claims for additional medical, temporary or permanent disability benefits.  In Holowchuk v. O’Sullivan Menu Publishing, A-5235-14T3 (App. Div. April 6, 2017), the petitioner, Robert Holowchuk, injured his low back lifting two, five gallon drums of chemicals in 2007.  He received an award of 35% for herniated discs at L3-S1 with radiculopathy.

In 2013 Holowchuk moved to reopen his award of partial permanent disability.  He testified at trial that he was unemployed for some time after the settlement but got a job in 2013 for seven months delivering small car parts.  He was laid off from that job and then got another job working 30 hours a week using computer files to set up printing plates for press runs. He did very little lifting in that job.  He testified that his sleep and marital relations both suffered and the numbness in his left foot spread to his entire foot and calf.  He also said he regularly experienced a dropped left foot.

Petitioner’s original expert reexamined petitioner and found on the physical exam increased lack of flexion and restriction on straight leg raising.  The doctor noted a flattening of the normal curvature of the petitioner’s spine and chronic spasm.   She noted that the petitioner’s lower lumbar musculature was harder than it was at the start of the examination.  The doctor took note of petitioner’s complaints that he could no longer do lifting, bending or twisting and would likely need ongoing pain management.  There was no mention of any comparison between old MRIs and new studies, leaving the reader to question whether any new studies were done.  As a result of her examination, petitioner’s expert found an increase of 10% from 75% partial permanent disability to 85%.

Respondent’s expert found no objective proof of worsening.  He noted that petitioner had been recommended for potential surgery in 2013 but it did not take place.  The respondent’s doctor conceded that petitioner had 15 to 20 degrees less range of motion on the left in a straight leg raise compared to the last exam in 2010.

The Judge of Compensation awarded an increase to petitioner of 10%, which was the estimated increase from the expert for petitioner.  For someone with maximum rates, that would amount to approximately $43,000.

Respondent appealed and argued that there was no demonstrable objective evidence supporting an increased award.  The Appellate Division noted petitioner’s testimony that his pain was no longer stable and had sharpened and become more frequent.  The Court also noted the complaint about a dropped left foot.  The most interesting part of the decision is the Appellate Court’s acceptance of the argument that range of motion testing by petitioner’s expert satisfied objective medical evidence:

Petitioner’s expert found objective evidence to confirm those complaints, marked flattening of the lumbar curves, muscle spasm across the flanks, gluteal, posterior thigh and iliac crest areas on both sides and appreciable hardness of the muscles of petitioner’s lower lumbar area following manipulation.

 The Appellate Division noted that the Judge of Compensation refused to put this case through on a Section 20 basis.  The Court affirmed the reasoning of the Judge of Compensation and held that the record supported the findings of the Judge of Compensation that the physical exam of petitioner’s expert satisfied the objective medical evidence requirement.

The case challenges some prior unreported cases that seemed to suggest that range of motion testing is variable and not truly objective. Had there been subsequent MRIs that appeared identical to prior MRIs, it would have interesting to see whether the same result would have been reached.

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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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