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Township is not Responsible for Surgery Sought by Police Officer Where Work Accident was not Proven to be the Cause for Low Back Surgery

By on May 14, 2012 in Uncategorized with 0 Comments

Hugh McNeil was a long-time police officer for the Township of South Brunswick.  On April 3, 2010, McNeil responded to an emergency call.  He was wearing his bulletproof vest and gun belt and said that he hurriedly exited his vehicle, feeling pain in his back.  He said he might have hit the steering wheel but was not sure.  Later that day he went to the hospital for treatment and reported the incident to his supervisor.

Respondent and PMA Insurance Company accepted the accident and began to pay for benefits consisting of physical therapy and temporary disability.  Petitioner received epidural cortisone injections.  He saw a surgeon who had treated him in the past for his long-standing back problem, and the surgeon recommended surgery.

Respondent arranged an IME with Dr. Francis DeLuca, who examined on May 20, 2010. Dr. DeLuca opined that the petitioner had a long history of low back problems with prior herniated discs and prior surgery in the mid-1990s.  In his opinion the need for surgery was completely unrelated to the incident on April 3, 2010. Dr. DeLuca said that the mechanism of the injury in turning the body to exit the vehicle was not consistent with the pathology on MRI.  Respondent therefore terminated benefits.

Petitioner filed a motion for medical and temporary disability benefits and a claim petition seeking permanent disability benefits. He testified, along with his expert, Dr. Cary Skolnick, who said that the petitioner twisted his back in exiting the vehicle and that motion produced an extrusion at L5-S1 with radiation pain.  On cross examination of Dr. Skolnick, the doctor admitted that he did not have petitioner’s prior 2002 medical information, had not reviewed a prior permanency report of Dr. Kenneth Peacock from 2006, or the 2007 MRI, which suggested petitioner already had a herniated disc at L5-S1 with impingement on the S-1 nerve root. Dr. Skolnick admitted to seeing the MRI for the first time in court when he testified.

The Honorable Arcides Cruz, Judge of Compensation, wrote a 12-page decision dismissing the petitioner’s case, and petitioner appealed.  The Appellate Division affirmed in McNeil v. Township of South Brunswick, A-0777-11T1 (App. Div. May 9, 2012).  The court focused on whether the action of exiting the vehicle hurriedly was the “causal origin” of petitioner’s back condition.  The court stated petitioner must show “whether it is more probably true than not that the injury would have occurred during the time and place of employment rather than elsewhere.”  Howard v. Harwood’s Restaurant Co., 25 N.J. 72, 83 (1957).

The court noted in this case that McNeil had suffered back injuries in 1990, 1994, 1995, 1996, 1997, 2002 and 2004.  His last workers’ compensation award totaled 40%. The court affirmed Judge Cruz’s reasoning that Dr. DeLuca’s testimony was more credible than that of Dr. Skolnick, since Dr. Skolnick’s statements were inconsistent with the prior treating records of Dr. Miller, who had treated petitioner since 2002 intermittently.  Further, the court found that the records of Dr. Miller contradicted the testimony of petitioner that he had no prior numbness in the leg with radicular pain until after the accident of April 2010.  The records showed a previous history of such complaints.

Here, following review of the extensive medical records presented at trial and the opinion testimony of Drs. Skolnick and DeLuca, the compensation judge concluded that McNeil’s back injury had resulted from an ongoing and unresolved pathology that was progressively getting worse.  We defer to that reasonable-based conclusion.

For these reasons, the court affirmed the dismissal of the case.  This matter was handled by the undersigned on behalf of the Garden State Municipal Joint Insurance Fund.

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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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