Claims

Motions for medical and temporary disability benefits are urgent matters that are treated as such by Judges of Compensation.  Because injured workers are not receiving benefits, motions for medical and temporary disability benefits require all parties to work swiftly to prepare for court hearings.  In the case of Capel v. Township of Randolph, A-1315-18T1 (App. Div. October 10, 2019), the employer never got a chance to argue its defense due to the failure to comply with administrative rules.

Mr. Capel filed a claim petition alleging an injury on May
21, 2018.  He alleged injuries to his
neck, back and left shoulder while lifting logs at work.  Respondent filed an answer in which it did
not deny an injury to the shoulder or back but did deny an injury to the neck.

Respondent sent petitioner to treat with Dr. Sayde, who
opined that petitioner needed left shoulder surgery related to the
accident.  Respondent declined to approve
the surgery and then sent petitioner for a second opinion with Dr. Montgomery,
who also recommended left shoulder surgery. 
When surgery was declined,  Capel
filed a motion for medical and temporary disability benefits on October 9,
2018.  The Motion sought approval of
surgery, appropriate counsel fees, and sanctions for delay in paying temporary
disability benefits.

The Judge of Compensation set the hearing for November 9,
2018.  Under the administrative rules,
respondent was required to file a response to the motion rebutting the
allegations by October 30, 2018.  The
answering statement was filed late on November 8, 2018, the day before the
hearing.  In the responsive papers,
respondent alleged that petitioner actually injured himself in his other job at
Samaritan Inn, a homeless shelter where petitioner was living. 

The Judge of Compensation evaluated the papers on both
sides.  The Judge noted the delay in
timely filing of the answering statement to the motion as well as deficiencies
in the opposing papers.  The Judge of
Compensation ruled in favor of petitioner based on the failure to meet the filing
deadlines and the failure to file appropriate certifications. Counsel for the
Township then sought reconsideration, which was also denied.  The Judge of Compensation noted that instead
of submitting certifications required by the rules, defense counsel submitted a
two-page letter raising various arguments. In that letter defense counsel conceded
that two doctors had recommended shoulder surgery.  Defense counsel argued that petitioner lived
for free at Samaritan Inn, a homeless shelter, in exchange for work, and
counsel submitted handwritten time sheets for April 9, 2018 through June 23,
2018 of work allegedly performed at Samaritan Inn.  The Judge observed that there was no
explanation of how these materials were prepared, who prepared them and or
whether they were admissible in evidence.   

As part of the motion for reconsideration, defense counsel also submitted certifications of the claims adjuster and Scott Wagner, a co-worker in the Township’s Department of Public Works. The certification of the adjuster violated court rules by being unsigned. Neither document included the required language stating, “I certify that the foregoing statements made by me are true.  I am aware that if any of the foregoing statements made by me are willfully false, I may be subject to punishment.”  See R. 1:4-4(b).

In addition, defense counsel submitted six unsigned
statements by co-workers dated November 5, 2018.  These statements also lacked the specific
verification required for certifications in lieu of oath.  For these reasons, the Judge of Compensation
refused to vacate her prior order in favor of petitioner.

Respondent next appealed to the Appellate Division and
argued that the Judge of Compensation should have relaxed the rules to allow
respondent to go to trial on the motion. 
The Appellate Division held, “In
the absence of any competent evidence in opposition to Capel’s claim that the
left shoulder injury arose out of and in the course of his employment by the
Township while lifting logs on May 21, 2018, there was no need to conduct a
plenary hearing or basis to deny the MMT.”

In an interesting comment, the Appellate Division said that both N.J.A.C. 12:235-1.2 and Rule 1:1-2 permit relaxation of the rules to secure a just determination or to avoid injustice, but the Court said that movants who seek relaxation of the rules “bear a heavy burden.”  In this case, the Court noted that the defense motion papers were “woefully late, one of the certifications was unsigned, both certifications lacked the required verification language, and the other submissions were deficient.” Finally, the Court commented that there is no rule in the Division of Workers’ Compensation regarding motions for reconsideration.  Such motions are within the discretion of the court.   The Court said:

R]econsideration should be limited to those cases ‘in which either 1) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence.  D’Atria v. D’Atria, 242 N. J. Super. 392, 401 (Ch. Div. 1990).

This case represents a wake-up call for employers, adjusters and defense lawyers on the importance of responding to motions for medical and temporary disability benefits in a timely fashion and submitting affidavits or certifications that meet the rules.   In this case, one will never know whether the respondent had a valid basis to argue that the petitioner really injured himself at another job because the respondent lost the case before the trial ever started. 

Answering statements for motions for medical and temporary disability must rebut the allegations of the claim in order for defense to get to trial on the motion.  Submitting certifications or affidavits of individuals with particular knowledge that an injury did not occur at work is vitally important, but such certifications should be signed and contain proper verification language.  The rules provide that employers have 30 days to respond to a motion for medical and temporary disability benefits if the motion is filed with the Claim Petition, but if the motion is filed after the Claim Petition has been filed, respondent has only 21 days to respond.  When such motions are received, the defense team should begin work right away in preparing the defense to the motion.  It takes time and effort to interview witnesses and obtain appropriate certifications.

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There are a large number of petitions for permanent partial
disability benefits filed each year in New Jersey for scars and serious
lacerations.  It is important for
practitioners to understand that injuries due to scars are subject to
completely different proofs from all other physical injury claims in New
Jersey. 

The main difference between a scar case and every other physical injury case is that there is no requirement for a claimant to prove restriction of bodily function.  Even if the scar has absolutely no impact on the function of one’s hand, arm or body part, the petitioner can receive an award.  In fact, it is uncommon that a scar injury has an impact on bodily function.  The operative test is that a scar injury case must be substantially disfiguring to receive an award. What is or is not substantially disfiguring is in the eye of the beholder.  Certainly if one looks at the injury and no scar is visible at all, that injury would not meet the test of substantial disfigurement, and no award would be made. Yet all other kinds of injuries in New Jersey require proof by objective evidence of a restriction of the function of the body or its member organs.

Given that the test is essentially how disfiguring the scar
looks, these kinds of cases may not even need an evaluation by a physician,
although the practice statewide seems to favor getting IMEs.  In many instances, it is more helpful to ask
the injured worker to come to court so that the lawyers, and sometimes the
Judge of Compensation, can view the scar if it is on the face, hands or arms.  When the location of the scar is more private,
or the claimant is uncomfortable having it viewed in person, a current photograph
can be just as helpful or a description by a doctor in a medical report can
suffice.

When it comes to viewing a scar and determining whether it is disfiguring, a Judge of Compensation, claim adjuster or a lawyer is equally qualified to make the same determination as a physician on whether the scar looks substantially disfiguring.  One does not need a medical degree to answer the following:  Is it a raised scar? Is it uneven or bumpy?  Is it discolored? Does the skin appear to be keloidal in nature? These are observations that anyone can make in assessing whether a scar is substantially disfiguring.  In fact, this practitioner has found that many doctors who do IMEs on scar injury cases mistakenly focus on assessing functional loss because they do not realize that in scar cases functional loss is not required under N.J.S.A. 34:15-36. 

Because scars take a long time to heal and because collagen
breaks down slowly at the site of the wound, the scar may fade significantly
over a long period time.  For this
reason, it is not wise in serious scar injury cases for respondents to rush to
get an IME soon after the injury.  Often
scars improve markedly one year or more after the initial injury.   It is
often startling to see how different the injury site looks at the time of the
work incident versus how it looks one or two years later.

Practitioners often debate whether a scar should be compensated based on where it is located on the body or whether the injury is more psychological in nature and therefore should be compensated as a partial total injury.  For instance, should a very unsightly scar on one’s hand be compensated in terms of the hand (one percent equals 2.45 weeks) or should it be compensated under partial total (one percent equals six weeks)?  The answer is that this it depends on whether the petitioner is having psychiatric problems in relation to the appearance of the scar.  An IME with a psychiatrist would be necessary to make the argument that the injury should be compensated in whole or in part under partial total with more weeks.  The defense, in this instance, would need an IME with its own psychiatrist.

The best advice for employers in handling serious scar cases is not to try to settle the cases early on and to make sure that whenever possible, the defense counsel or court adjuster has an opportunity to view the scar at or near the time of settlement.  In a significant percentage of cases, the IME is really unnecessary because, as noted above, the test is simply whether the scar appears to be disfiguring.

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The case of Kirandeep Kaur v. Garden State Fuels, Inc. and Woodbury Gulf, A-2135-17T1 (App. Div. April 12, 2019) presents some interesting legal issues.  The facts begin with the tragic death of Surinder Singh, who was shot and killed during the course of his employment at Woodbury Gulf LLC. 

In 2014 Singh’s widow, Kirandeep Kaur, filed a dependency
claim petition in workers’ compensation. The gas station was uninsured for
workers’ compensation at the time of her husband’s death. Mr. Goyal and Mr.
Saini were the sole members of the Woodbury Gulf LLC. 

In 2015 Kaur sued Woodbury Golf civilly alleging that the
station’s negligence led to the death of her husband.  She amended that suit in 2017 to add a claim
against Mr. Goyal. 

On March 28, 2016, petitioner settled her workers’
compensation dependency claim petition for $150,000.  She said that she understood that the Section
20 settlement was final and that she could not return for further workers’
compensation benefits.  Petitioner
received mostly deferred payments from the two members of the LLC:  $30,000 up front followed by $5,000 each
month for 24 months.  The Order recited that
the settlement was not a complete and absolute surrender and release of any and
all rights of petitioner’s dependents under Section 13.  This was important because the petitioner and
decedent had two young children.

The Judge of Compensation did not sign the 2016 order but
waited until 2018 when all payments had been made.  Counsel reappeared on April 13, 2018, and the
Judge again commented that this Section 20 settlement did not contemplate a
release of decedent’s dependents’ rights. 

Meanwhile in her civil law suit, Kaur made some interesting
arguments:

1. She
   argued that she could sue Woodbury civilly because the gas station’s insurance
   had lapsed.  She contended that this was
   akin to an intentional wrong, thereby exempting her from the fundamental rule
   that neither an employee nor an employee’s dependents can sue the employer.
2. She
   also argued that payments under a Section 20 are not recognized as workers’
   compensation payments for any purpose other than for insurance rating purposes,
   so a civil suit should be permitted.

The motion judge ruled for Woodbury LLC and its members, holding that the civil law suit was barred.  Kaur appealed.  The Appellate Division devoted a good deal of analysis to Section 20 settlements.  It said, “A Section 20 settlement bars a subsequent lawsuit against the paying employer as it would be unfair to hold the employer liable for both common law damages and workers’ compensation liability,” citing Hawksby v. DePietro, 165 N.J. 58 (2000). 

The Court also seemed to suggest that a Section 20 settlement amounts to an implied acknowledgement that a claimant’s disability is work related, citing the Sperling case for this concept. For these reasons the Appellate Division affirmed the ruling that petitioner and her children could not sue her husband’s employer or the members of the LLC. 

As for the failure of Woodbury to maintain insurance for its
own employees, the Court pointed out that this was potentially either a
disorderly person offense or a fourth-degree crime, depending on whether the
actions were willful.  Nonetheless, the
Court ruled, “Their failure to maintain
insurance did not alter the effect of the Workers’ Compensation bar, especially
since plaintiff took advantage of the Act’s statutory scheme to obtain benefits
under the Section 20 settlement.”

Importantly, the Court confirmed that consent of the workers’ dependents must be obtained for a Section 20 settlement that purports to waive dependency benefits.  In sum, the Court held that the two minor children were entitled to bring a dependency claim of their own against Woodbury Gulf and the members of the LLC.  The Court cited the Kibble case for the proposition that “a Section 20 settlement between the employer and a claimant ‘cannot extinguish the rights of those who do not participate, or do not have the opportunity to participate in a settlement.’”

The case is helpful in understanding that it does not really matter whether the workers’ compensation claim is resolved under an order approving settlement with reopener rights or a Section 20:  in either case, the claimant and his or her dependent cannot bring a civil action against the employer since the exclusive remedy is workers’ compensation.

The post Can A Dependent Settle A Dependency Claim By Section 20 And Then Sue The Uninsured Employer? appeared first on NJ Workers' Comp Blog.

In an important reported decision, and one of first impression at the Appellate level, the Court in Collas v. Raritan River Garage, A-3103-17T4, (App. Div. July 19, 2019), held that the Judge of Compensation was correct in basing the counsel fee of petitioner on petitioner’s life expectancy, not limited to 450 weeks, as has been the practice in the New Jersey Division.

For many decades, judges of compensation have awarded counsel fees in dependency cases on a 450-week period, even though dependent spouses receive benefits until their death, unless they should remarry.  Counsel in Collas argued that basing the fee on the life expectancy of the dependent spouse makes more sense.  The Judge of Compensation reviewed two places in the statute where 450 weeks is referenced.  First N.J.S.A. 34:15-12(b) provides in total disability claims that compensation shall be for a period of 450 weeks, at which time compensation payments shall cease unless the employee shall have submitted to such physical or educational rehabilitation as may have been ordered by the rehabilitation commission, and can show that because of such disability it is impossible for the employee to obtain wages or earnings equal to those earned at the time of the accident.”   Otherwise the statute makes clear that total disability benefits continue beyond 450 weeks.

The other statute that discusses 450 weeks appears in N.J.S.A. 34:15-13 pertaining to dependency claims. That section states that “This compensation shall be paid, in the case of the surviving spouse, during the entire period of survivorship or until such surviving spouse shall remarry and, in the case of other dependents, during 450 weeks …If a surviving spouse remarries before the total compensation is paid, he or she is entitled to a payment of 100 times the amount of the weekly compensation immediately preceding the remarriage, whichever is lesser.  The statute makes clear that a dependent child may receive dependency benefits throughout attendance at a full-time college or university but no later than age 23.  The so-called marriage penalty does not apply to the surviving spouse of a deceased member of the state police or member of a fire or police department or force who died in the line of duty.

Raritan River Garage argued that it has always been the accepted practice in the Division to base the counsel fee of the prevailing dependent on a 450-week period.  Further, Garage argued that it is speculation to pay a counsel fee on an amount of years beyond 450 weeks because the spouse may remarry or die.  The Judge of Compensation disagreed and asked the following rhetorical question:  “Is a previously legislatively mandated 450-week period less speculative in terms of calculating [Collas’] true award than the life expectancy tables published in the court rules?”

The Appellate Division agreed that using life expectancy tables is no more speculative than using a 450-week period.  The Court also observed that there is no link in Section 13 governing dependency awards to the section of the statute governing counsel fees in N.J.S.A. 34:15-64.  That section authorizes the Judge of Compensation to award a counsel fee to a successful petitioner’s attorney “not exceeding twenty percent of the judgment.”

The Appellate Division also noted that the 450-week period does not distinguish whether a surviving spouse is 20 years old or 60 years old.  In this case, Ms. Collas had a life expectancy of 12.7 years.  The Court did not hold that the life expectancy calculation must always be used.  “We determine only that the use of the table method was a reasonable option utilized by the judge.  We recognize that using the table method will, in many cases, increase the potential size of a fee award.  We thus caution against a reflexive application of a twenty-percent award without full analysis.”

Attorney Rick Rubenstein, who argued this case successfully in the Appellate Division, was interviewed following this decision.  He addressed two issues that many practitioners are now considering in light of the Collas decision.  One is whether acceleration of one-third payments when there is a very large third party recovery in a dependency case should also be based on the life expectancy of the dependent spouse.  Mr. Rubenstein said that he believes that the logic of Collas would extend to this situation.  He noted that payments of one third to a dependent where there is a large third party recovery are not technically payments of compensation but rather contribution to counsel fees. If the counsel fee to a dependent spouse is based on the life expectancy of the dependent, the argument would be that the return of the counsel fee to the dependent spouse would be analyzed in the same manner.

The other issue which Mr. Rubenstein addressed is whether the rule in Collas may be applied by future courts to total disability claims.  He said it is possible but less likely than the decision in Collas. “Courts will likely see a distinction between the marriage penalty in Section 13, and the re-employment offset in Section 12, both on practical grounds and public policy grounds. There is no public policy promoting remarriage, or marriage, for that matter. There IS a public policy favoring rehabilitation and re-employment. That public policy is reflected in the base period of 450 weeks absent from the dependency statute, and also reflected in the “contingent” nature of 12(b) benefits. 12(b) is contingent upon no active income, qualification upon examination, and lack of rehabilitation which is an ‘aim’ of the Act.”                 

This decision is certainly a significant one for practitioners and will require employers, carriers and third party administrators to amend the traditional calculation of reserves for counsel fees in dependency cases.

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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.

The post Petitioner Failed To Show Her Worsened Disability On Reopener Related Back to Her 1999 Work-Related Motor Vehicle Accident with Sprint PCS appeared first on NJ Workers' Comp Blog.

It can be challenging to prove that a fairly common cancer occurring frequently in the general population is work related.  The case of Proscia v. Advanced Biotech, A-3017-17T2 (App. Div. April 26, 2019) offers interesting guidance on how an injured worker can prove such a case.  

Frank Proscia worked for Advanced
Biotech (AB) from 2005 until 2013.  The
company manufactures and sells natural flavor ingredients.  During his employment, there was occasional
flooding in his work site in Paterson, N.J. 
When that occurred, he would wear waders to walk through space to secure
manufacturing materials, which included drums filled with chemicals.  He would examine and sample many containers
when they arrived and supervised pouring of chemicals by others.  His desk was 15 feet away from the sealed-off
storage room where drums of chemicals were stored.

Petitioner testified that there
were multiple spills of hazardous chemicals over the years he worked at
AB.  The chemicals would adhere to his
skin and clothing.  There was one spill
of acetic acid in February 2011. That caused petitioner to be hospitalized on
account of breathing problems at work. 
He left AB in October 2013.  Two
years later, petitioner was diagnosed with colorectal cancer, and he filed a
claim petition alleging that his work exposures either caused or contributed to
the cancer.

A key fact in this case was that the expert for each side agreed that
there were about 1,000 chemicals to which petitioner was likely exposed, and
several of those chemicals were suspected carcinogens. 

The petitioner’s expert testified
that Acetaldehyde and Diacetyl are carcinogenic, and they were two of the
chemicals to which petitioner was exposed. 
In fact, petitioner’s expert said that Acetaldehyde is a Class One
carcinogen.

Petitioner’s expert provided statistical information on colorectal cancers, noting that 11 to 15 percent of such cancers are related to workplace chemical exposures.  The expert added that petitioner, who was 42 years of age at the time, could not return to work due to his stage three or four cancer.  He said that his cancer was not yet at maximal medical improvement and petitioner required more treatment. 

AB’s expert disputed the testimony
that Acetaldehyde causes cancer.  AB’s
expert said that there were no studies establishing such a causal
relationship.  The Court noted that respondent’s
expert was an oncologist.  The Court
noted that petitioner’s expert was qualified in the field of environmental and
occupational health medicine.  Respondent’s
expert did agree that some of the chemicals to which petitioner claimed
exposure were carcinogenic. 

The Judge of Compensation found
that it was more probable than not that petitioner’s exposure on the job caused
his cancer.  The Judge ordered further
temporary disability benefits as well as further medical treatment. AB
appealed. 

The Appellate Division first
observed that petitioner did not have to prove direct causation; aggravation or
exacerbation of a condition is sufficient.  
The Court also commented that the Judge of Compensation is in the best
position to weigh the credibility of the expert’s testimony.  “He
could, at his option, decide to give petitioner’s expert testimony greater
weight than the expert who testified on behalf of AB.” For these reasons,
the Appellate Division affirmed the ruling in favor of petitioner.

Petitioner had several key
advantages at trial. First, the experts agreed that some of the chemicals to
which petitioner was exposed were carcinogenic. 
Second, petitioner proved by his testimony that he had likely exposure
to certain chemicals. Respondent did not present lay testimony disputing
anything petitioner said on exposure.  That left no real dispute that there was
serious exposure to chemicals.

The Judge of Compensation seemed to accept that the two named chemicals were carcinogenic.  There was nothing in the Appellate Division record showing that respondent offered medical articles debunking any relationship between Acetaldehyde and cancer.  Under these circumstances, petitioner made out a very strong case.  For respondent to win in a difficult case like this, its expert needed to offer into evidence persuasive scientific evidence based on medical literature establishing that there is no known causal relationship to colorectal cancer.  Alternatively, respondent needed to contest the alleged exposure through lay testimony. 

In a difficult case like this, the best argument that respondent had was that its expert was far more qualified than that of petitioner to give an opinion on causation, as only respondent’s expert was an oncologist. There is nothing in the appellate decision addressing that point, however, so it is hard to tell if that was argued.

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It is a remarkable coincidence that the three cases that best explain entitlement to permanent partial disability benefits in New Jersey all involve claimants with the last name of Perez.  The most important of the three Perez cases is Perez v. Pantasote, 95 N.J. 105 (1984). This case addressed the key statutory definition in N.J.S.A. 34:15-36, which provides:

‘Disability permanent in quality and partial in character’ means a permanent impairment caused by a compensable accident or compensable occupational disease, based upon demonstrable objective medical evidence, which restricts the function of the body or of its members or organs;

This case stands for the proposition that subjective complaints alone are not sufficient to meet the standard for an award of partial permanent disability.  Hence the emphasis on objective tests such as MRIs, x-rays, EMGs, CT scans, pulmonary function testing and other similar studies.  The Perez principle was next applied to psychiatric disability claims in Saunderlin v. E. I. DuPont Co., 102 N.J. 402 (1986).  Even in psychiatric claims, the emphasis is on more than just recapitulating the complaints and statements made by the injured worker.  The Supreme Court said that psychiatric experts should include observations of physical manifestations of the symptoms related by the injured worker.

The next two Perez cases dealt with the remaining aspects of the test outlined in N.J.S.A. 34:15-36.  The first was Perez v. Monmouth Cable Vision, 278 N.J. Super. 275 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995).  This case focused on the following language in the statute:

Included in the criteria which shall be considered shall be whether there has been a lessening to a material degree of an employee’s working ability.

The Court rejected an interpretation of the above language which would require an injured worker to prove in every case a lessening to a material degree of working ability.  The Court said that the claimant can obtain an award of permanent partial disability by proving either a substantial impairment of non-work activities or a lessening to a material degree of working ability.  It is an either/or test.  In this case the employee complained of loss of grip strength, pain in the wrist while playing with his children, diminished ability to play volleyball and not being able to do as much weightlifting as in the past.   The Court held that these complaints were sufficient to meet the test of having an impairment of the ordinary pursuits of life.  Petitioner did not need to prove work impairment to get his award.

Perez v. Monmouth Cable Vision is very important for two reasons:  one, it shows that an employee with objective evidence of permanent partial disability who gets back to work doing the same job can still receive an award of permanency if he or she can prove a substantial impairment of the ordinary pursuits in life.  Two, it shows that the threshold required by the employee for testimony about impairment of the ordinary pursuits of life is not particularly high.

The third case is Perez v. Capitol Ornamental, 288 N.J. Super. 359 (App. Div. 1996).  The petitioner in this case suffered a herniated disc.  He worked as a farm laborer in Puerto Rico before doing landscaping and construction in the U.S.  After he had his laminectomy surgery, he continued to have back problems and applied to the Division of Vocational Rehabilitation for job training.  He was out of work for years and could not find work.  Respondent’s evaluating physician estimated 12.5% permanent partial disability but stated at trial that he did not consider petitioner’s employment problems when he provided his estimate.

The Judge of Compensation awarded 32% permanent partial disability, which was much less than what the petitioner thought he was entitled to.  The Judge wrote, “ . . . the award which I presented in my opinion was determined on a basis and with the purpose of being consistent with similar injuries previously presented to me for disability determination.”  The Appellate Division took this comment to mean that the Judge of Compensation had not really considered the difference between a person with a spine surgery who gets back to work and a person with spine surgery who cannot return to work.  It reversed the decision because the percentage of the award to Mr. Perez should have taken into account the severe impact on petitioner’s working ability.

Perez v. Capitol Ornamental makes an important contribution to the workers’ compensation formula for permanent partial disability by establishing a principle that cases should be valued higher where the injury causes a career change or career loss as compared to cases where no such career loss occurs.

Together the three Perez cases delineate the basic requirements for an award of permanent partial disability:  1) objective medical evidence of restriction of function; plus either 2) a substantial impairment of non-work activities or 3) a lessening to a material degree of working ability.

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