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Employers always struggle with this dilemma: if a claimant receives an award for knee surgery related to a repair of a torn meniscus, does that mean that future knee treatment for arthritis in the knee must be the responsibility of the employer? This issue arises often when the subject at issue is a possible total knee replacement. The case ofWake v. Township of Toms River, A-5876-13T2 (App. Div. September 16, 2015) provides guidance.
The petitioner, Jan Wake, received an award for the knee following a surgery to remove the posterior horn and the entire middle portion of the lateral meniscus. Petitioner had preexisting arthritis in the knee. The award that was entered in court referred to the work accident causing an “acute exacerbation of bi-compartmental degenerative joint disease.” Several years later the petitioner reopened the case seeking further treatment related to arthritic problems in the knee.
Petitioner argued that the language of the prior order in referring to an “acute exacerbation of bi-compartmental degenerative joint disease” required the Township to accept future knee treatment because the language meant that the underlying condition of arthritis had been worsened. Petitioner’s expert said that the removal of the posterior and lateral meniscus removed all of the shock absorbers between the two arthritic bones. That materially exacerbated petitioner’s preexisting arthritis.
Respondent’s expert disagreed. He said that the petitioner’s need for knee treatment is causally related to the prior degenerative arthritic condition and not the work related injury. The expert further said that petitioner “would be suffering from the same symptomology had the work-related injury not occurred.”
The Judge of Compensation, the Honorable Ronald Allen, held that petitioner’s knee condition was degenerative in nature and agreed with respondent’s expert that the deterioration in the knee was due solely to advancing arthritis unaffected by the meniscal repair surgery. The Judge dismissed the claim petition and petitioner appealed.
The Appellate Division affirmed the dismissal of the case:
It is well settled that a worker seeking benefits based upon increased incapacity bears the ‘burden of proving by a preponderance of the evidence not only the fact of increase but also that it is causally related to the original accident and resulting injury.’
The Appellate Division found that there was sufficient credible evidence to support Judge Allen’s reasoning.
This case is important for employers and defense practitioners because it is widely assumed that if someone with an arthritic knee has work-related surgery to repair a meniscal tear, this automatically means the employer must pay should the knee condition decline and require a total knee replacement. But total knee replacement is generally due to severe arthritic conditions, not meniscal tears. Petitioner has the burden of proving that the surgery to repair the meniscus in some way contributed to the worsening of the arthritic condition. In this case, the language of the prior award did not help the employer because it referred to an acute exacerbation of bi-compartmental degenerative joint disease. Nonetheless, the employer won no doubt in part to solid testimony from its expert.
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.