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It is challenging for a petitioner to relate an increase in disability or need for treatment to a relatively modest award that has remained unchanged for over a decade. That was the situation in Batts v. Flag House, A-5616-15T4 (App. Div. January 16, 2018). The case involved an award of 50% disability of the right foot and 10% psychiatric disability going back to 2003. Petitioner was originally injured on April 2, 1998 when a forklift ran over his right ankle in the course of employment.
Petitioner reopened the case several times – but only with respect to the foot. In 2007 his foot award was increased to 57.5%. Five years later, his foot award was increased again to 60%. But the psychiatric aspect was not increased. It remained at 10%.
The same day petitioner received an increase to 60% of his foot, he filed a modification application along with a motion for medical and temporary disability benefits seeking psychiatric treatment.
At trial, petitioner testified that his increased level of depression was due to his foot injury. He said that he developed intimacy issues with his wife leading to his divorce nine years earlier. He also alleged that he gained 50 pounds and was diagnosed with depression following the accident.
Petitioner presented Dr. Devendra Kurani as an expert in psychiatry. Dr. Kurani stated that petitioner’s divorce, lack of mobility, weight gain, hypertension, diabetes, unemployment, financial concerns, inability to socialize, and depression were all due to his 1998 accident. Dr. Kurani said petitioner needed psychotherapy and medication. Up to that point in time, petitioner had never been prescribed any psychiatric medication.
Respondent produced Dr. David Gallina, who agreed that petitioner had depression. However, Dr. Gallina testified that the depression was not due to the work accident in 1998. He felt that his obesity and loneliness were due to his divorce. Respondent pointed out that petitioner had not had any psychiatric treatment throughout the life of his case and had not been prescribed psychiatric medications.
The Judge of Compensation ruled against petitioner. The Judge noted that petitioner had never sought psychiatric treatment from 1998 to 2016. Although his awards had been increased for the foot, his underlying foot condition had not changed all that much. The Judge felt petitioner failed to link his divorce to the ankle injury in 1998. According to the Judge, Dr. Gallina’s testimony made more sense in that petitioner made certain lifestyle choices which could account for his obesity.
Petitioner appealed and argued that res judicata principles applied and the Judge was bound by the prior acceptance of the psychiatric aspect of the case. The Appellate Division disagreed: “Thus, there is no basis for the assertion that petitioner had a right to have his psychiatric disability award increased because of a prior court order.” The Appellate Division stated that petitioner simply failed to prove that his current depression was caused by his 1998 accident.
The case illustrates that employers can win reopener claims at trial. The case was extraordinary in that petitioner was seeking psychiatric treatment after an accident going back to 1998 with no intervening psychiatric treatment.
John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at firstname.lastname@example.org.