Full Service Law Firm in Mt. Laurel Township, NJ | Capehart Scatchard

causation

Plaintiff Yireika De La Rosa went to defendant LA Gypsy restaurant with a friend.  She drank half a beer and went to the restaurant’s restroom.  As she approached the restroom, she noticed maintenance staff spraying a blue liquid, which smelled like ammonia, onto the floor.  Plaintiff passed through the area, felt she could not breathe and began to run towards the front of the restaurant, ultimately falling to the ground and suffering injuries.  The issue in De La Rosa v. LA Gypsy, 2025 N.J. Super. Unpub. LEXIS 2521 (App. Div. Dec. 5, 2025) was whether the plaintiff had met her burden to show defendant breached any duty of care to her and whether she presented any facts tending to prove a causal relationship between her inhalation of fumes from the blue liquid and her fall outside the restaurant.

According to plaintiff, when she smelled the liquid, “she thought she was going to die.”  After exiting the restaurant, she passed out and fell to the ground.  After she woke up, she felt pain in numerous parts of her body.  There were no warnings in front of the bathroom as the staff person was cleaning the floor.  Plaintiff could not recall whether there was a descriptive label or other mark identifying the substance of the spray bottle which contained the blue liquid that the employee was using to clean the floor.

After the incident, plaintiff went to the emergency room.  She ultimately had neck and back surgery due to her injuries.

Plaintiff named Dr. Elkholy as an expert witness.  According to his report, plaintiff suddenly became dizzy and collapsed, due to inhaling ammonia in a closed restaurant that was not anticipated.  He attached an article to his report, confirming the toxic side effects of the sudden presence of ammonia wherein same is unanticipatedly inhaled.  He opined that it was a foreseeable consequence that an individual will suddenly experience a medical calamity, dizziness, and collapse.  He further opined that plaintiff’s cervical and lumbar injuries were all related to this incident at the restaurant.

Plaintiff had sued the defendant restaurant for negligence.  After completing discovery, the defendant restaurant filed for a summary judgment dismissal, which was granted. 

The trial court found that the expert’s report was not probative on the question of causation.  The judge noted that there are a lot of other facts that could have helped support the fact that the blue liquid was ammonia.  The trial court judge found that the plaintiff’s expert did not identify what contents were in the spray bottle or what substances were discovered in plaintiff’s body afterwards which could have caused her to faint or collapse.  Even assuming that the substance was ammonia, the court held that the presence of ammonia in the hallway leading to the bathroom and the eventual collapse of plaintiff was insufficient to show that ammonia caused plaintiff’s collapse.

This summary judgment dismissal was appealed.  The Appellate Division noted that there was no dispute that the defendant restaurant owed a duty of care to plaintiff as a business invitee, nor that plaintiff fell outside the restaurant and suffered injuries.

The issue was whether defendant breached any duty of care to her, as well as whether plaintiff offered any material facts to prove a causal relationship between the fume inhalation from the blue liquid and a fall outside.

Under New Jersey law, the Appellate Division noted that a business owner was required to guard against any dangerous conditions on the property that the owner either knows about or should have discovered and to conduct a reasonable inspection to discover any latent dangerous conditions. 

The Court stated that plaintiff offered no competent evidence, other than her own testimony, to establish what the blue liquid substance she observed was, its composition, whether defendant’s cleaning staff sprayed the blue liquid in a proper manner and the size and ventilation of the hallway where she observed the liquid.  The plaintiff failed to proffer any testimony that it was unreasonable for the defendant’s staff to use the blue liquid or how its use created a dangerous condition.  The Appellate Division noted that the plaintiff failed to depose defendant or any of its employees to ask what kind of solution the cleaning staff used on the date of the accident.

Hence, even giving plaintiff all reasonable inferences, the Court determined that plaintiff had failed to meet her burden to show a genuine issue of material fact which would tend to prove that defendant breached its duty of care through its cleaning personnel improperly using an unidentified blue liquid.  Plaintiff’s own testimony about the presence of ammonia in the hallway was unsupported by facts and represented self-serving testimony which would be insufficient to defeat summary judgment.

Next, the Court considered whether the plaintiff had proved proximate causation.  The Court noted that to prove proximate cause, plaintiff bears “the burden to introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result.”  Expert testimony on the topic of proximate cause would be necessary when it is outside a juror’s common knowledge.

Plaintiff argued that her expert, Dr. Elkholy, rendered an opinion that established a nexus between plaintiff’s collapse and the blue liquid that was sprayed.  The Appellate Division disagreed.  Dr. Elkholy failed to conduct any testing of the restaurant, did not review any records of the composition of the blue liquid, and reviewed  no toxicological reports of plaintiff after her exposure to the blue liquid.

Thus, the Court found that the plaintiff’s expert had no factual basis to reach any conclusions about what plaintiff was exposed to, for how long, or how and if it affected her in any way.  Without evidence of what the blue liquid consisted of and a toxicology report to show what plaintiff had inhaled, the Appellate Division found that Dr. Elkholy’s opinion was without foundation and was a net opinion.  Hence, without an expert to prove causation, plaintiff’s claim could not survive summary judgment.

Thus, the Court determined that plaintiff had failed to meet her burden to show defendant breached any duty of care to her, nor did plaintiff meet her burden to prove proximate cause.  The Appellate Division affirmed the trial court’s order, granting summary judgment and dismissing the lawsuit.

Plaintiff Hellen Bayer was in an automobile accident with defendant Michael Roman on November 22, 2017.  The parties contested the severity of the accident, but plaintiff alleged to have suffered injuries to her neck and back.  The issue in Bayer v. Roman, 2024 N.J. Super. Unpub. LEXIS 2605 (App. Div. Oct. 25, 2024) was whether plaintiff’s personal injury claim should have been subject to a summary judgment dismissal due to her failure to present medical testimony apportioning her injuries between her preexisting condition, injuries suffered from the 2017 accident, as well as potential injuries suffered in a subsequent April 2018 automobile accident.

At her deposition, the plaintiff claimed that the force of the impact was a 9 out of 10.  However, she acknowledged that the damage to her car was minimal, and it did not require repairs.  It was her testimony at depositions that her head struck the back of the seat twice, really hard, and that she also felt the impact to her left leg.  She was taken by ambulance to a local hospital where she complained of neck pain, radiating into her left arm with numbness and tingling into her left shoulder.  It was noted that three months previously, she had spinal fusion surgery at L4-L5.

As it turned out, back in December 2014, plaintiff had been diagnosed with a disc herniation at L3-L4 with degenerative disc changes at L5-S1.  Plaintiff had underwent lumbar spinal fusion in August 2017 before her auto accident with defendant Roman.

Plaintiff was also in a subsequent automobile accident in April 2018 when a car she was driving was struck from behind by a car traveling about 40-50 miles per hour.  As a result of the impact, plaintiff struck her head on the seat back.  She treated at a hospital with complaints of headache, neck pain, back pain and new right sided pain and tingling.   

Plaintiff received medical treatment for both her neck and back, as well as treatment for TMJ.  Her orthopedic surgeon, Dr. Meese, noted that plaintiff had been treating for her neck and back from a prior motor vehicle accident but that the 2017 accident exacerbated the pain in her neck and back, causing an acute exacerbation of cervical and lumbar radiculopathy. 

Plaintiff also obtained treatment from a dentist, Dr. Robert Federman for TMJ syndrome.  He noted that she had no preexisting history of dental injuries and concluded that the motor vehicle accident of 2017 was the probable cause for all of her injuries to her TMJ and related teeth. 

Finally, plaintiff treated with Dr. Cohen, who summarized her prior medical records and related her problems to her November 2017 accident.  He performed a Polk analysis (a comparison analysis of injuries from successive accidents) and opined that she had an aggravation and worsening of her preexisting lumbar fusion surgery after the 2017 accident and now suffered a new injury at the L4-5 level. 

However, neither of the reports of Drs. Federman or Cohen referenced the April 2018 accident. But, Plaintiff only claimed personal injuries for the November 2017 accident and did not file a lawsuit regarding the April 2018 collision.

Defendant did not retain a medical expert.  However, defendant did obtain an accident reconstruction expert and a biomechanical expert.  The biomechanical expert opined that plaintiff’s “claims of injury or enhancement of any preexisting condition resulting from the November 22, 2017 accident are inconsistent with the minimal severity of this incident.”

At the end of discovery, defendant filed for a summary judgment, claiming that the record was devoid of any credible evidence that he caused the accident.  He argued that his expert reports demonstrated that plaintiff’s injuries could not have occurred based upon the forces resulting from this type of accident.  Further, he argued that plaintiff’s experts failed to apportion the injuries between the present accident and her preexisting condition, or the present accident and subsequent accident.

The trial court judge granted the motion, dismissing the lawsuit.  The court “was persuaded plaintiff was unable to prove the accident was the proximate cause of her injuries.”  The trial court judge relied upon the uncontested opinion of the defendant’s biomechanical expert that plaintiff’s injuries could not have been caused by this accident.  Further, the trial court noted that the plaintiff’s medical experts failed to explain why the injuries could not have been caused by the later accident and it noted that a Polk analysis was required to prove causation at this stage of the litigation.  Hence, the trial court granted summary judgment because “no rational fact finder could find in plaintiff’s favor on the issue of causation.”

The Appellate Division reversed.  It noted that plaintiff bears the burden of proving defendant’s negligence and that the defendant’s negligence was the proximate cause of the plaintiff’s injury.   It further noted that “a plaintiff seeking recovery for an injury caused by successive accidents must apportion damages between each responsible party.”  The burden to allocate damages is placed on the party in the best position to present evidence.  Hence, the Appellate Division found that “in successive accident cases where a plaintiff seeks to recover from the original tortfeasor, the plaintiff must prove comparative medical evidence ‘to isolate the physician’s diagnosis of the injury or injuries’ attributable to that tortfeasor’s negligent contact.”

But, the Court found that “whether a claimed injury is an aggravation of a preexisting injury, although possibly relevant on the issue of causation at the time of trial, is not an element of proof plaintiff must satisfy at the summary judgment stage.”  The Appellate Division noted that where an aggravation of injuries is claimed, plaintiff’s own testimony may satisfy that burden of establishing sufficient evidence to present a jury question.

Applying these principles, the Appellate Division found that the trial court judge erroneously determined a Polk analysis was required to defeat summary judgment.  Plaintiff had alleged that her injuries were attributable to the November 22, 2017 accident, which did not worsen after the April 2018 collision.  The Court found that plaintiff could testify at trial about the injuries that she allegedly suffered in the November 22, 2017, accident and to the extent to which both accidents, if at all, exacerbated her preexisting condition.  She does retain the burden of proving her injuries were attributable to the first accident.  It would be up to a jury to decide the weight to ascribe the omission of the April 2018 accident from her experts’ reports.

Further, the Appellate Division also found that there were genuine issues of material fact which precluded summary judgment on medical causation.  Plaintiff had testified at deposition as to the severity of the impact which caused her head to strike the seat back.  Although the defendant presented a biomechanical expert that the force was minimal and caused little damage to plaintiff’s vehicle, plaintiff’s failure to proffer a biomechanical or accident reconstruction expert “may be considered by the jury when assessing plaintiff’s proofs, including her testimony.”  However, the Court found that the facts were not so one-sided that defendant was entitled to prevail as a matter of law.

Hence, the Appellate Division reversed and remanded the matter back to the trial court for further proceedings.

Plaintiff Tony Polite was involved in two automobile accidents within thirty days.  The first accident occurred on May 15, 2019, and the second one occurred on June 16, 2019.  Plaintiff claimed to have injured his neck, back, left shoulder, and right knee in the first accident and alleged that those injuries became significantly worse following his second accident.  The issue in Polite v. Kahn, 2024 N.J. Super. Unpub. LEXIS 1699 (App. Div. July 18, 2024) was whether plaintiff had provided sufficient proofs to show that the second accident aggravated his pre-existing injuries from his first accident.

In plaintiff’s May accident, he was t-boned from the driver’s side, causing his vehicle to hit a telephone pole.  He suffered injuries to his cervical spine, lumbar spine, left shoulder, and right knee.  He filed a lawsuit against the driver Estell Norman.  One month later on June 16, 2019, he was in a second car accident in which he was injured by defendant Airshad Kahn’s vehicle.  It caused his chin to strike the steering wheel and his right knee to strike under the steering wheel.  He filed the within lawsuit against defendant Kahn.  These two lawsuits were consolidated and discovery ensued.  He claimed that his symptoms from the first accident became significantly worse following his second accident.

Plaintiff treated with a chiropractor (Dr. Funiciello) who prepared a narrative report.  The chiropractor attributed a direct causal link between plaintiff’s injuries and the May accident.  He also opined that his exacerbations were due solely to the severe injuries to his neck and back following the accident in May 2019.  Thereafter, he settled the Norman matter (the first accident).

Plaintiff then obtained chiropractic treatment with Dr. Wael Elkholy for the injuries suffered in the June accident.  His complaints were of his neck, left shoulder, lower back and right knee.

Following the close of discovery, defendant Kahn filed a motion for summary judgment, arguing that plaintiff had not established his injuries were caused by the June accident or that the June accident exacerbated his injuries from the May accident.   Plaintiff relied on the treatment records from Dr. Elkholy and opposed the motion. 

Before the motion was heard, plaintiff returned to Dr. Elkholy to treat his persistent low back pain.  He obtained a second MRI which now showed a new disc herniation at L4-5 and L5-S1 and a new thecal sac decompression at L4-5 was recommended and was subsequently performed in July 2022.  Plaintiff provided a supplemental certification with these additional medical records.  However, the treatment records from Dr. Elkholy did not causally relate plaintiff’s injuries to the June accident, nor did they state that there was exacerbation of his injuries from the May accident.

The trial court judge granted the defendant’s motion for summary judgment.  The judge found that there was a “complete absence of any report showing either causation or exacerbation from the second accident.”  The injuries from the first accident were severe and the judge found they were still severe when the second accident occurred.  He held that the “lack of any reference to a causal connection between the second accident to the plaintiff’s injuries is fatal to the plaintiff’s case.” 

This decision was appealed.  Plaintiff argued that there should be a reversal because of the inference of fact weighed in his favor, which would permit a jury to find his injuries were caused by the June accident.

The Appellate Division rejected that argument.  It found that there can be no inference drawn from the plaintiff’s treatment records and diagnostic tests related to the June accident.  The progress notes did not state that the June accident was the cause of plaintiff’s injuries.  Further, plaintiff submitted no expert report or proof that the injuries he suffered were caused by the June accident.

Even though there was a lack of proof, plaintiff argued that the June accident aggravated his pre-existing injuries from the May accident.  He pointed to the June 2022 MRI which showed two new disc herniations when compared to the May 2019 MRI.  However, neither Dr. Elkholy’s treatment records, nor Dr. Funiciello’s narrative report attributed any portion of plaintiff’s injuries to the June accident.

 Hence, the Appellate Division found that plaintiff failed to show an aggravation of pre-existing injuries.  The Court further noted that plaintiff failed to produce any comparative evidence regarding his injuries from the May and June accidents.

 In conclusion, the Appellate Division found that the plaintiff could not show the causation element of his negligence claim concerning the June accident.  Because plaintiff failed to establish proximate causation, defendant was entitled to summary judgment.  Thus, the Appellate Division affirmed the trial court decision dismissing the lawsuit.

The decedent Alice Trainor fell while attending the defendant’s adult day health care services.  The 89-year-old Alice fell while walking towards the bathroom at the defendant’s facility, suffered injuries, and ultimately passed away.  The issue in Estate of Alice Trainor v. Active Day of Brick, 2024 N.J. Super. Unpub. LEXIS 552 (App. Div. Apr. 3, 2024) was whether the plaintiff was required to provide expert testimony as to the causation of Alice’s injuries to be able to pursue a claim for personal injuries.

The decedent, Alice Trainor, with vascular dementia, was attending adult day health care services at defendant’s Active Day of Brick’s facility.  She began walking towards the bathroom at the facility when another participant in the program attempted to help her.  However, defendant’s activities manager, Kellie Piaskowski, intervened and proceeded to assist Alice towards the bathroom.  She was attempting to guide her there.  Alice was shuffling her feet somewhat and tripped over her feet.  Alice fell flat down to the floor and banged her face.  She was taken by ambulance and treated for her injuries.  A few weeks later, she was found unresponsive, and her condition deteriorated.  She ultimately passed away within two months after the incident.

Her Estate filed a lawsuit against the facility, arguing that the defendant facility had a duty to provide Alice with a safe environment but failed to do so.  The defendant moved for a summary judgment, arguing that the plaintiff’s claims failed because plaintiff did not have a medical expert to support plaintiff’s case.  The trial judge agreed with that argument, finding that plaintiffs had not provided an expert medical opinion asserting a causal relationship between the alleged negligence and the injuries Alice suffered. The judge granted the motion, dismissing the case and this appeal ensued.

Plaintiffs argued that there was a State mandated ratio of 9-1 (patient to staff ratio) and that Medicaid required a ratio of 5-1.  However, the defendant maintained a 30-1 ratio of patients to staff.  Plaintiffs argued that, because of the extreme imbalance between patients and caregivers, the finder of fact could rely on the theory of res ipsa loquitur to infer defendant’s lack of due care and, hence, negligence.  The trial judge had rejected this theory, stating that “under any stretch of the imagination,” this was not a res ipsa loquitor case.

Plaintiffs argued upon appeal that the medical causation was not in question and the jury does not need an expert to determine whether defendants’ 30-1 patient to staff ratio was a gross deviation from the standard of care.  The Appellate Division rejected that argument.

The Appellate Division noted that the doctrine of res ipsa loquitur, if applied, would allow a finder of fact “to infer with the defendant’s lack of due care only when three elements of the doctrine had been satisfied:

a)         The occurrence itself ordinarily speaks negligence;

b)         The instrumentality was within the defendant’s exclusive control; and

c)         There is no indication in the circumstances that the injury was the result of the plaintiff’s own voluntary act or neglect.

The Court noted that to satisfy this res ipsa loquitur standard, “plaintiffs would need to demonstrate that an 89-year-old falling while being assisted by a caregiver ‘itself ordinarily bespeaks negligence’; the environment was in ‘defendant’s exclusive control’; and ‘there was no indication in the circumstances that the injury was the result of [Alice]’s own voluntary act or neglect.’”  The Appellate Division found that the plaintiff was not able to satisfy any of these elements. 

Further, the Court explained that res ipsa loquitur only fills in a gap in plaintiff’s negligence claim with the respect to a breach of duty of care and not as to the causal relationship between a breach and the injury suffered.  The causal relationship is what the trial judge found was missing.  The Appellate Division noted that the jury would have no means of judging whether defendant’s purported short staffing or the staff member who helped Alice was the proximate cause of Alice’s injuries.

The appeals court agreed with the trial court’s conclusion that “a lay jury is insufficiently knowledgeable of the specifics of elder care and assistance to competently determine whether any purported short-staffing or Piaskowski’s helping Alice to the bathroom was the cause of Alice’s injuries.”  Thus, the Appellate Division affirmed the trial judge’s decision that, lacking expert testimony to that effect, the defendant must prevail as a matter of law. 

Plaintiff Artherine Price was at the Quaker Bridge Mall on May 10, 2018, when she twisted her ankle in the parking lot of the Mall.  She claims that she fell in the crosswalk while walking from her parked car to enter the store and sued the Mall defendants for her injuries.  The issue in Price v. Quaker Bridge Mall, LLC., 2024 N.J. Super. Unpub. LEXIS 591 (App. Div. April 10, 2024) was whether the plaintiff’s claim should be dismissed due to her failure to identify the exact cause of her injury.

Plaintiff testified that her ankle twisted, and she almost fell as she was in the crosswalk.  She could not identify the exact location of where the incident occurred within the crosswalk.  She also testified that she never saw anything in the crosswalk, before or after the incident that caused her to twist her ankle.  Even after the incident, when she returned to the crosswalk with the security guard, she was unable to point to the specific spot where the incident occurred.  The best she could state was that the incident occurred in an area where the pavement was cracked.  Hence, she believed that the cracked or broken pavement caused her to twist her ankle.

The Mall defendants filed for a summary judgment dismissal based upon the plaintiff’s deposition testimony.  The trial court judge found that there was no dispute that plaintiff was injured in the Mall’s parking lot.  However, the issue was that plaintiff could not establish causation.  Even when she went to the location a few days later and took photographs, she was unable to identify any particular cause.  Because the mere happening of an accident was insufficient to establish negligence, the trial court judge granted defendants’ summary judgment motion.

The plaintiff appealed that decision to the Appellate Division.

Upon appeal, Plaintiff acknowledged that her deposition testimony had inconsistencies regarding causation and that a jury could conclude at trial that such inconsistencies adversely affected her credibility.  Plaintiff argued that they did not provide a basis for the trial court judge to disregard her testimony and grant defendant’s summary judgment.

The Appellate Division noted that proximate causation is a basic element of tort law.  The court stated that “[to] establish causation a plaintiff must prove the defendant’s act or omission was both the factual and proximate cause of his or her injury.”  It would be the factual cause if, but for the event, the injury probably would not have happened.

Here, the Appellate Division was convinced that defendants were entitled to a judgment as a matter of law.  The Court noted “that [t]he judge’s factual findings were supported by substantial evidence in the record and reveal there is no dispute of fact regarding causation.”  The Court further pointed out that plaintiff was unable to establish that “but for” defendants’ actions or omission she would not have twisted her ankle because she cannot establish what condition caused her to twist her ankle. 

Accordingly, the Appellate Division found that she failed to make a showing sufficient to establish causation, which is an essential element of her case.  Therefore, the Court agreed that defendants were entitled to summary judgment and affirmed the trial court decision, dismissing her lawsuit. 

Practical Advice in New Jersey Workers’ Compensation

Pursuant to N.J.S.A. 34:15-12(d), “if previous loss of function to the body, head, a member or an organ is established by competent evidence, and subsequently an injury or occupational disease arising out of and in the course of an employment occurs to that part of the body, head, member or organ, where there was a previous loss of function, then the employer or the employer’s insurance carrier at the time of the subsequent injury or occupational disease shall not be liable for any such loss and credit shall be given the employer or the employer’s insurance carrier for the previous loss of function and the burden of proof in such matters shall rest on the employer.”

Essentially, this provision provides that if an employee has a prior relevant injury which resulted in prior loss of function to the same body part injured in the work injury, Respondent is entitled to a credit (which results in money off the overall Award) for the prior injury or pre-existing disabling medical condition. Of particular note, the burden rests on Respondent to demonstrate and prove a prior injury and prior loss of function. Proper medical and factual discovery and investigation is extremely important in this regard, as evidence of prior functional loss can save Respondent from incorrectly paying for, and assuming liability for, pre-existing issues.

Respondent must demonstrate through medical discovery and medical records that the employee has a prior, relevant medical issue and that the prior issue was disabling in order to successfully argue for a credit. It is most helpful when an accurate and detailed history is taken from the employee at the outset of treatment following a work injury.

In some situations, the credit entitlement is easier to demonstrate, and not all prior issues are necessarily applicable to Respondent’s credit entitlement.

Below are hypothetical situations where Respondent may, or may not, be in a position to argue for a credit on permanency.

Scenario 1: Robert has a work injury of January 1, 2022 to the lumbar spine and a lumbar spine MRI shows herniations at L3-L4 and L4-L5. Robert has a prior workers’ compensation Award for 15% partial total from a work accident of January 5, 2019 for the lumbar spine for a bulge at L4-L5.

Here, Respondent is entitled to a credit for the prior bulge at L4-L5. The credit is likely to be 15% partial total for this aspect/ level of the case, as the prior workers’ compensation Award was for 15% partial total for the lumbar spine for a bulge at L4-L5.

This can result in significant savings to Respondent, as for example, an Award of 30% partial total at 2022 rates is $62,568.00. An Award of 30% partial total, credit 15% partial total is $37,026.00.

Scenario 2: Charlie has a work injury of January 1, 2022 to the lumbar spine and a lumbar spine MRI shows herniations at L3-L4 and L4-L5. Robert has a prior non-work related injury to the lumbar spine, and a prior MRI revealed a prior bulge at L4-L5.

This is similar to Scenario 1, other than the fact that Charlie’s prior injury was not work related, and there is no prior workers’ compensation Award for this prior injury. However, Respondent is still entitled to a credit, which is somewhat more negotiable than the credit applied in Scenario 1, for Charlie’s prior issues in the lumbar spine and at L4-L5.

Scenario 3: Peter has a work injury of February 14, 2022 where he injures his right shoulder, neck, and right arm. Prior to the work injury, on December 24, 2021, petitioner underwent a right shoulder surgery. Other than the prior right shoulder surgery, petitioner has had no prior medical issues or injuries.

Here, Respondent is entitled to a credit as to the right shoulder aspect of the claim. Regarding the neck and right arm, if Peter truly has no relevant prior history, Respondent is not entitled to a credit for these aspects of the claim.

Employers should keep in mind that potential credit entitlement can depend on a number of factors including length of time since any prior injuries or issues, strength of any medical evidence documenting prior issues, and prior functional loss. There does not need to be a prior workers’ compensation Award, or any prior settlement, for Respondent to successfully argue for a credit entitlement.

However, it remains important to be sure that prior discovery, medical records, information, and investigation obtained by Respondent is provided to Respondent’s medical experts and examiners so that the defense experts can properly assess prior issues and accurately apportion treatment/ permanency to the accident and to pre-existing issues, if applicable. It is also important for Respondent’s experts need to take a detailed history of the employee during the examination in order to determine any pre-existing issues and properly assess causation. Without a medical expert opining as to the existence of pre-existing issues and their current disabling effect, it can be much more difficult to argue for a credit. Providing the discovery to Respondent’s experts is just as important as Respondent obtaining the discovery. In order to successfully argue for a credit for a prior issue, in most cases, Respondent needs to proffer a medical opinion discussing the pre-existing disabling injury or medical issue.

Capehart Blogs

Subscribe to Blog Updates

Categories