Notable Wins by Capehart Scatchard

Client: New Jersey Sports & Exposition Authority

Case Tried by Prudence M. Higbee, Esq.

**Results may vary depending on your particular facts and legal circumstances**

The Petitioner alleged that on August 14, 2009, while working at her part-time job as an usher/ticket-taker, she was struck by the closing doors of a freight elevator causing her to fracture her left femur.  The compensability of this claim was accepted.  Since the parties were not able to agree on the calculation of petitioner’s average weekly wage, trial commenced on the issues of whether petitioner’s wages from her part-time job with NJSEA should be reconstructed to reflect a full-time work week and whether she is capable of maintaining full time employment.  At trial we maintained the position that an award of permanent disability must be based on petitioner’s actual earnings and hours and that the petitioner’s earning capacity was not diminished by this accident.

Petitioner testified at trial that she was hired by the New Jersey Sports and Exposition Authority as a part-time usher and ticket taker.  Petitioner testified that she would work approximately six hours on Saturday, Sunday and depending on the time of year, maybe one other day during the week.  This is typical for any part-time usher/ticket-taker. Petitioner’s duties as an usher included frequently performing seat checks, which required her to walk up and down the stadium steps repeatedly. Petitioner’s duties as a ticket checker required her to stand in one spot for approximately three hours while checking tickets. Of significance, Petitioner stood the entire time during her six hour shift.

At trial, the petitioner conceded that she was never given any permanent work restrictions by the treating physician.  She also agreed that she would return to a full time position if one was offered to her.  In fact, she testified to applying for numerous full time positions and receiving unemployment benefits following her discharge from treatment.  By receiving unemployment benefits she repeatedly certified that she was ready, willing and able to work.

At trial, petitioner’s medical expert conceded that although most petitioners he evaluates have a loss of permanent function, a majority return to work.  Although petitioner’s expert testified that an assessment of permanent disability involves an assessment of petitioner’s level of function, he conducted an inadequate and cursory investigation into petitioner’s recreational activities and job duties. Specifically, he testified that he was unaware of important details concerning petitioner’s return to work, her active lifestyle that included daily walks and swims, and her ability to perform household maintenance including cutting the grass for her parents.

Respondent’s medical expert testified that petitioner was capable of working on a full-time basis.  He based his opinion on the review of the medical records, including the treating physicians and the physiotherapy notes, diagnostic studies, which revealed the fracture had healed and the objective examinations.  Specifically, he noted the treating physician cleared petitioner for part-time work with restrictions in April 2010 and approximately one month later, on May 5, 2010, petitioner was cleared to resume work.

Respondent’s medical expert further testified that petitioner’s left leg condition had improved following a second surgery.   He based his opinion on the review of the medical records, including the treating physicians and the physiotherapy notes and diagnostic studies, which revealed the fracture had healed and the objective examinations.  Specifically, he relied upon a therapy note indicating that petitioner was able to move her left leg more after having the hardware removed as well as a report for the treating physician who discharged petitioner on June 10, 2014 without noting any restrictions.

Our trial brief highlighted the fact that an award of permanent disability must be based on petitioner’s actual earnings and hours.  We also emphasized the petitioner’s discharge from treatment without permanent restrictions, her collection of unemployment benefits certifying that she was ready, willing and able to work, her demonstrated return to her job and perform household chores and even her own admission during trial that her earning capacity was not diminished.

The Court denied the petitioner’s request to reconstruct these wages.   The Judge of Compensation predicated this conclusion on the lack of credible evidence in the record to support a finding that the petitioner has a permanent diminution of full-time wage earning capacity and is unable to work on a full-time basis because of her disability.  The Court agreed with our position and found the petitioner earned an average weekly wage of $106.19 at the time of the August 14, 2009 work accident.  These part-time wages gave rise to a capped permanency rate of $74.33.  By not having to reconstruct the wage respondent saved thousands of dollars.  For example, 35 percent of partial total at a reconstructed wage of $570 is $75,810.00. However, at the actual wage of $106.19, 35 percent of partial total is only $15,609.30.  As you can see, winning on this issue is huge!