State News : New Jersey

Reopener petitions abound in New Jersey, but seldom does an injured worker seek on reopener to move an award of 30% permanent partial disability to total and permanent disability benefits.  That was the issue in Camarena v. Sprint PCS, A-2205-17T2 (App. Div. June 24, 2019). 

Ms. Camarena obtained an award of 30% permanent partial disability in 2003 arising from a work-related motor vehicle accident dating back to 1999.  The award was for a bulging disc at C6-7 and disc protrusions at L4-5 and L5-S1.  Camarena later reopened the award and sought total and permanent disability benefits with the Second Injury Fund.  Capehart and Scatchard partner, Michelle Duffield, argued successfully that petitioner’s subsequent increased disability was not related to the 1999 work accident but to subsequent non-work injuries.

There was no dispute that petitioner’s condition clearly worsened in the years following the 2003 award.  The dispute centered on what caused the worsening.  Petitioner admitted to having a car accident in July 2002 but claimed that she only injured her knee at that time.  Respondent obtained medical records from that accident and proved that petitioner treated for her neck and back after the 2002 accident. 

In 2004 petitioner suffered a serious fall from her knee giving out.  She obtained a new cervical MRI, which showed a new herniation in the neck, leading to a discectomy and fusion surgery at C5-6.  She fell again in 2007 and reinjured her low back.  A new MRI showed an L4-5 disc herniation and an L5-S1 disc herniation.  In 2007, she had a revision surgery on her neck.  In 2008, she fell again, leading to another cervical MRI. At the time of trial, she needed a health aide 40 hours per week during the day and 12 hours a week at night.

The petitioner’s expert testified that he knew about the right knee injury from the 2002 car accident, but he was unaware that petitioner complained about her neck and back from that accident and had a 2004 MRI showing a new disc herniation in her neck.  Respondent’s expert testified that petitioner’s worsening condition related to the subsequent car accident and subsequent falls from her knee injury sustained in the 2002 car accident. 

The Hon. George H. Gangloff, Jr. dismissed petitioner’s claim against Sprint PCS and against the Second Injury Fund.  Judge Gangloff found that there was a contradiction between petitioner’s description that she only injured her knee in the 2002 car accident when compared with the actual medical records documenting spine complaints.  The judge reviewed the medical records carefully and noted that the petitioner had several non-work injuries after the 1999 workers’ compensation injury. 

Petitioner appealed and argued that she was totally disabled from a worsening of the 30% award entered in 2003.  However, the Appellate Division pointed out that petitioner’s own orthopedic expert had mistakenly believed that the 2002 car accident only involved the petitioner’s knee.  Nor did the petitioner’s expert know much about the subsequent 2004 fall.  The Court held, “The 2002 motor vehicle accident was an independent intervening cause.  As a result of that injury in 2004, her knee later gave out causing her to fall and again worsen her injuries – for reasons unrelated to the 1999 incident.  The 2002 motor vehicle accident and her numerous falls were clearly intervening independent causes which broke the chain of causation from the 1999 accident to the present.”

This case underscores why it is so important for employers, carriers, third party administrators and self-insured entities to focus on subsequent health records in reopener cases.  Even in serious reopener cases, there is sometimes a rush to arrange a reexam in order to reach closure without spending the time and effort on discovery and investigation into interval activities and injuries.  In this case, the subsequent investigation saved the employer a great deal of money.  Respondents are well advised to order a new ISO and ask on reopener interrogatories about subsequent work and non-work injuries as well as subsequent surgeries. This case points out that the medical records are often more accurate than a petitioner’s recollection of an old injury. While petitioner stressed that the 2002 car accident was a knee injury, — and it primarily was — the records showed treatment to other parts of the body as well.

-----------------

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.