State News : New Jersey

Diana Vernacchia worked as a housekeeper for Warren Hospital performing vacuuming and cleaning duties in the radiology department and hallways, dusting and cleaning the x-ray machines and diagnostic devices, and lifting and discarding biohazardous waste and linen bags weighing an average of 50 pounds each.  She filed an occupational disease claim alleging that she developed neurological problems with her left ankle, ganglion cysts, plantar fasciitis in both feet, lower back pain and fibromyalgia from her work duties.  Vernacchia also filed a claim saying that she was shocked while using the vacuum cleaner, which caused and aggravated similar injuries.

Petitioner produced two doctors on her behalf.  Dr. Maio, an expert in general surgery, testified that she examined petitioner four times.  She diagnosed various injuries including ankle sprains, disc bulges in her low back, and sprains of her knees and ankles. She said that repetitive micro-trauma and movements caused her injuries.

Dr. Waller, a primary care internal medicine practitioner, testified that her ongoing work activities caused burning sensations in her feet, stiffness in her neck and back, and tendonitis in her extremities.  He diagnosed petitioner with fibromyalgia which was aggravated by work activities and by the one incident involving electric shocks from the vacuum.  Both doctors conceded that petitioner had bilateral ankle pain and edema well before her employment but they contended that work duties aggravated her condition.

Respondent did not produce any medical experts.  Rather, respondent made a motion to dismiss the claims based on lack of proof.  The Judge of Compensation granted the hospital’s motion and entered an order of dismissal stating as follows:

Neither Dr. Maio nor Dr. Waller referred to any demonstrable objective medical evidence to support their assertions.  The medical witnesses merely asserted a probable contributory work connection without medical support.  I find the petitioner has failed to set forth one iota of proof regarding the compensability of her claim.  I find there was no competent evidence submitted relating multiple medical problems to her employment with Warren Hospital. 

The Appellate Division affirmed the dismissal of petitioner’s case even without testimony from respondent’s medical witnesses.  It said that it is not enough for a medical witness to simply say something is work related without providing medical support or medical literature.  The Appellate Division relied on a line of cases from the 1990s which emphasizes the importance of offering medical literature in occupational disease claims or scientific evidence establishing causation.  The Court added, “Also, in this case before us, neither expert witness explained which of petitioner’s work responsibilities may have resulted in her injuries, choosing, instead, to rely upon broad and conclusory averments untethered to the facts in the case. While petitioner testified about the walking, standing, lifting and pushing associated with her employment with respondent, her expert witnesses failed to show that her injuries were a consequence of her work based upon qualitative medical support.” 

There are many cases currently in the Division that contain similar vague allegations and vague diagnoses.  Several firms representing claimants file claims directly along the very same lines of this case. The rationale employed by the Judge of Compensation and Appellate Division in dismissing this case is pertinent to many other similar claims in the Division. Employers can defeat such claims by arguing the well established case law in New Jersey requiring proof in an occupational claim of scientific evidence or medical literature to establish a causal link to work.  For a medical expert to testify simply that a condition is work related is completely insufficient.  It is always the medical and scientific explanation that is more important than the mere conclusion on causation. This case can be found at Vernacchia v. Warren Hospital, A-4634-14T1, (App. Div. October 19, 2016).

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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 jgeaney@capehart.com.