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Town Wins Workers’ Comp Case by Proving Employee Engaged in Fraud in not Revealing Prior Medical Condition

By on July 12, 2012 in Key Defenses with 0 Comments

The Judge of Compensation and Appellate Division found that the employee was entitled to no benefits based on his violation of the New Jersey Fraud Act

In Johnnie Jackson v. Township of Montclair, A-2212-11T2 (App. Div. July 5, 2012), the claimant injured his knee while moving large boxes of books at the Montclair Public Library on August 4, 2008.  He immediately stopped working and went to Mountainside Hospital where a brace was put on the right knee.  He was seen by a number of physicians thereafter.  An MRI of the right knee done on August 28, 2008 showed a tear of the posterior horn of the medial meniscus.  Petitioner underwent arthroscopic surgery on September 18, 2008 to repair the meniscal tear.

When the claimant saw Dr. Hatfield shortly after his accident, there was no indication whether he had any prior knee injuries.  When he saw Dr. Mendes, the doctor wrote that he “denied any history of knee injuries or pain in the past.”  When he saw Dr. Colizza, the doctor noted that he “denied any problems with respect to his right knee prior to his work injury.”

Contrary to his assertions to these doctors, the claimant had been involved in an automobile accident on April 13, 2007 and treated with a surgeon, Dr. Vizzone, who ordered an MRI and diagnosed a “tear of the posterior horn of the medial meniscus” and “a partial tear of the anterior cruciate ligament.”  Petitioner was told he would need knee surgery but he did not undergo the surgery.  He did, however, bring a law suit, and he signed answers to interrogatories on December 15, 2008 stating that the injuries he suffered in the car accident “are considered to be permanent” and “continue to limit his activities” and “cause great pain on a daily basis.”  He said in these answers that he suffered pain and discomfort while working, bending, lifting, sitting, and sleeping.

The Township of Montclair referred petitioner to Dr. Carl Mercurio for an IME.  Dr. Mercurio stated that petitioner’s knee problem was causally related to the work injury in August 2008 but that he was aware of a prior car accident and would like to see those records. After he received the records of the car accident, Dr. Mercurio concluded that the work injury only caused a sprain and strain and that the tear of the medial meniscus had already been there before the work injury.  He amended his initial report and opined that petitioner’s 7.5% disability of the leg was all due to the car accident, not the work injury.

Trial ensued in this case.  When the claimant testified he said that prior to the work injury in 2008 his knee had been “feeling great.”  He was confronted with answers to interrogatories in the civil law suit and said that some of his answers had been wrong and he signed them without knowing what they were. He also said he did not recall being told that he had a tear in his knee after the car accident.  He later admitted that Dr. Vizzone had in fact told him he needed surgery for his knee from the car accident. He said he had no idea why Dr. Hatfield, Dr. Mendes and Dr. Colizza had no knowledge of the prior car accident and knee injury.

The petitioner’s expert, Dr. Tiger, was also shown the prior car accident records and admitted that Dr. Colizza had not been given an accurate history of petitioner’s prior knee injury.  He said that without an accurate history, the treating doctors would have been confused on causation.

The Township filed a motion to dismiss the petitioner’s claim for violating N.J.S.A. 34:15-57.4, the New Jersey Fraud Act.  The Honorable Nilda Hernandez, Judge of Compensation, dismissed the case, finding that petitioner made material omissions which constituted “fraudulent conduct.”  She also ordered that petitioner repay temporary disability benefits in the amount of $17,497.71 as well as costs of surgery in the amount of $892.33.  He was permitted to keep $3,262.86 for temporary disability compensation for a sprain of the knee.

Petitioner appealed and argued that the Judge of Compensation erred in not finding that petitioner sustained a permanent injury at work.  He also argued that the Judge relied on impermissible hearsay evidence.  The Appellate Division rejected all these arguments and affirmed the dismissal of the case.  The Court noted that there was ample evidence to support the Judge of Compensation’s finding that petitioner was not trustworthy.  In particular, the Appellate Division noted that petitioner explicitly denied suffering any knee injury prior to the work accident.

The case is an important reminder that the New Jersey Fraud Act can be invoked when a claimant is not forthcoming about prior relevant medical history.  Material omissions or misstatements by either party in a workers’ compensation proceeding may be actionable under the Fraud Act.

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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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