The small details matter. A petitioner will always have problems at trial when there is very little congruence between the allegations contained on the claim petition and the statements which petitioner gave to the employer and treating doctors at the time of the accident. That is the message in the case of Makins v. Palace Rehab & Care Center and Premier Cadbury, LLC, A-2263-23, A-2276-23 (App. Div. April 24, 2025).
Petitioner was a certified nursing assistant (CNA) who provided essential care to patients. She injured her back in 2013 while working for Palace Rehab with pain and numbness into her right leg. She received an award in that case and reopened that award on June 12, 2018.
On June 19, 2018, petitioner, who was then working for Premier Cadbury, filed two additional claim petitions. The first claim petition alleged an injury on February 11, 2018, which aggravated her low back with pain into her legs while “picking up a resident.” In the second claim petition, she alleged that she injured her back, left knee and left hip picking up a patient on June 8, 2018. Cadbury denied both claims, and the case proceeded to trial. The parties agreed to a bifurcated trial. That meant that the case would be tried on the issue of the occurrence of an accident and causal relationship without medical experts necessarily testifying.
During the first date of trial, petitioner said she did not remember whom she reported the first incident to but later she said she told her supervisor, whose name she did not recall. She said she was lifting a patient when something happened to her low back. She admitted to finishing work the day of the alleged injury on February 11, 2018. She worked the next two days. She then went to a hospital on February 14, 2018, and stayed home two days, returning to work on light duty before resuming full duty.
The petitioner’s version of the second alleged incident on June 8, 2018 was similar. She said she was lifting a patient, putting her on a toilet, when she felt sharp pain in her back. She also said that she bent down to pick up a box of tissues that the patient dropped but then she fell to the floor, striking her back and left hips. She said she told a nurse who entered the room what had occurred. She recalled signing an incident report but claimed she had not read the incident report because she was in too much pain. She said Susan, who completed the incident report, told her to see her family doctor. She was referred to an orthopedist, who gave her an injection. She was then referred to Dr. Kepler, a surgeon. She also had two visits with Concentra, which were arranged through her employer.
Cadbury’s counsel focused heavily during trial on numerous inconsistencies in this case:
1) The incident report of February 16, 2018, which was signed by a supervisor but not by petitioner, contained a handwritten response to the question about how the incident happened: it read “overall strain on back – did not occur with just [one] resident.” Defense counsel asked petitioner to comment on this description. The judge observed that during her response, “petitioner’s head went down, she would not make eye contact with respondent attorney, she did not speak for a period that was uncomfortable, shrugging with [a] lack of expression.” She then said she did not recall making that statement.
2) Regarding the alleged incident on June 8, 2018, petitioner admitted that she signed the incident report but said that she had not read it. She denied ever saying the words contained in the report: “Employee was simply walking, passing out trays and performing routine duties when she felt sharp pain in her left hip like a dislocation – now has radiated to lower back.” Petitioner testified, “This didn’t happen like this.”
3) Petitioner was shown a document entitled “Workers’ Compensation – First Report of Injury or Illness.” She said she did not agree with the description on that document, namely: “Employee was simply walking, passing out trays and performing routine care when she felt a sharp pain in her left hip/lower back.”
4) Petitioner was also shown notes from a physician’s assistant in the orthopedic practice for her June 13, 2018 appointment. She did not agree with the description: “[The patient] states that she has been having low back pain for approximately a month. She states that a few [sic] last week at work when she was in a standing position, her leg gave out and she did not fall. She states that her knee has been feeling painful as well.”
5) Petitioner also disagreed with a statement contained in a June 14, 2018 appointment at Concentra: “Patient states that as she was walking her left leg gave out, she was able to prevent herself from falling, she states she sat down and rested and later in the day the same thing happened again. She reports since then she has been experiencing lower back pain, left knee and left hip pain. She states that her left knee appears to slip out of place and she is unable to resume regular activity until it returns to a normal position. She reports a history of arthritis to the back. She denies slipping, tripping or other mechanics of injury.”
6) Petitioner also disagreed with the note from a Concentra doctor in her June 18, 2018 appointment where the physician described her as having a “preexisting condition.”
7) Petitioner also was shown a note from her orthopedic physician at her July 2, 2018 appointment. The doctor wrote that petitioner had “a history of chronic recurrent lower back pain for many years” and “severe osteoarthritis of her left knee.” The doctor also wrote that petitioner denied any specific injury and admitted that her symptoms began “insidiously.” Petitioner did admit that she had preexisting problems but did not recall this specific discussion.
8) Petitioner also did not recall the history contained in an IME performed at Cadbury’s request which referenced a prior August 8, 2017 incident when petitioner felt pain while helping a 200-pound patient get off a toilet. Petitioner did not recall being examined by the doctor and did not recall that particular history. In fact, she disagreed with that description of a 2017 injury.
On examination by the attorney for Palace, (the first employer), petitioner did agree with a statement by Dr. Kepler in his May 21, 2019 report that she suffered two injuries at Cadbury on February 11, 2018 and June 8, 2018, both of which aggravated her back and leg pain.
Cadbury produced two witnesses: a Director of Nursing in 2018 and an Executive Assistant and Supervisor for the front desk. These witnesses testified to the procedures that Cadbury followed for reporting an injury at work. The first witness testified that the information on the First Report of Injury Form came from the information on the Incident Report. The second witness testified that she created the incident report for the alleged February 11, 2018 accident based on what petitioner had reported to her.
The Judge of Compensation admitted into evidence over objection from petitioner’s attorney the incident reports and the Workers’ Compensation First Report under the Business Records exception to hearsay. The Judge permitted the petitioner on the final day of trial to bring in a doctor to challenge impeachment evidence but petitioner declined to do so. Certain documents were introduced into evidence by all parties, and the Judge of Compensation rendered a decision finding that … “petitioner failed to prove by a preponderance of the evidence that her injuries were causally related to the alleged accidents at Cadbury.” The Judge dismissed both claim petitions with prejudice. The Judge also noted that he did not give the First Report of Injury Form any weight in arriving at his decision. He specifically stated that he found petitioner not to be credible.
Petitioner appealed and raised several issues. The first issue pertained to petitioner’s competence to testify. Petitioner was asked by the judge at the outset of testimony whether she was under the influence of anything that would interfere with her ability to testify. She said no. Then her own attorney asked her if she was under the influence of medications. She said yes, that she was taking oxycodone and muscle relaxers which affected her memory. She also said she was suffering from memory issues related to Long Covid. The Appellate Division commented, “The problem with that argument is that petitioner and her counsel chose to have her testify, fully aware of what medication she had taken and her Long Covid condition and their potential effects on her memory. Nothing in the record indicates petitioner or her counsel asked the judge for an adjournment…” The Court also noted that petitioner initially told the Judge of Compensation that she was not under the influence of anything that would cloud her judgment. Furthermore, the Appellate Court noted that the Judge of Compensation focused more on “the differences in her demeanor when she testified about facts that were in her favor and when she testified about facts that were not in her favor.”
The next issue on appeal was the decision to bifurcate the trial. Counsel for petitioner challenged the trial judge’s decision to bifurcate the trial because it contended that this may have prevented petitioner from producing testimony from her treating physicians. The Appellate Court said there was no error in bifurcating the trial because neither party objected to this approach. The Court also noted that the Judge of Compensation allowed petitioner to bring in medical testimony on the final date of trial but petitioner’s counsel declined. The Appellate Court commented that in this case the judge found that petitioner was not credible in her claims that work accidents happened.
The last argument on appeal was that the Cadbury incident and first reports should not have been admitted into evidence because they did not meet the test of a business record under N.J.R.E. 803 (c)(6). Counsel also argued that petitioner was denied due process when Cadbury did not produce the author of the incident report. The Appellate Court noted that the Judge of Compensation gave no weight to the First Report of Injury Form. The Court also noted, “… [A] Judge of Compensation is not bound strictly by the Rules of Evidence, see N.J.S.A. 34:15-56, and may admit documents into evidence without authentication testimony,” citing Lindquist v. City of Jersey City Fire Dept., 175 N.J. 244 (2003). The Court also observed that petitioner did admit that she signed the first page of the June 8, 2018 incident report, “which contained a description of the purported accident that did not match the description petitioner gave on her claim form or in her testimony.” Finally, the Court commented that all counsel in the case consented to the admission of certain documents into evidence; hence there was no due process violation.
The dilemma for petitioner in this case was the inability to overcome the inconsistency between the allegations in her claim petitions and the contrary statements in the incident reports and doctors’ notes close in time to the alleged accidents.
