LOIS Associate Erica M. Fersch secured a favorable outcome in a New Jersey Workers’ Compensation reopener claim related to a 2018 date of accident. Under the original settlement, the Respondent was entitled to a 37.5% credit, which was reflected on the final 2024 settlement Order. During the pendency of the reopener, the Petitioner received authorized injections and various radiofrequency ablation treatments to the cervical and lumbar spine. At the conclusion of care, the Petitioner obtained an expert opinion from an IME doctor of an increase of permanent partial disability referable to the cervical spine, lumbar spine, and statutory right foot. The IME also apportioned to be 62.5% of permanent partial total referable to the cervical spine, 65% of permanent partial total referable to the lumbar spine, and 57.5% of the statutory right foot. By contrast, the Respondent’s expert found 0% increase in any prior apportionment of permanent partial disability.
Based on the extent and nature of treatment authorized under the reopener claim, the Petitioner’s demand remained firm at 66.6% of permanent partial disability for the cervical and lumbar spine (amounting to almost a 30% increase under the award, with Petitioner retaining reopener rights). The parties then requested a settlement conference with the Judge of Compensation for a value determination. In order to fully defend this claim, prior to the conference, Attorney Fersch diligently reviewed the authorized medical records and noted all reports which pointed to an improvement in the objective medical evidence. Fersch also directed subpoenas of the Petitioner’s current employment records which showed: (1) the Petitioner was actively employed in a similar role and performing, essentially, the same job duties as he was when he was originally injured in 2018; (2) the Petitioner missed one (1) day of work for each day of treatment and was able to return the day following each injection and/or ablation; and (3) the Petitioner’s treatment was not so invasive so as to cause him to miss his pre-planned vacation shortly after the last ablation appointment. At the conference, the Petitioner’s attorney advised the Court as to each authorized procedure, diagnostic test, and authorized medical appointment in support of his valuation of the claim.
The Judge was inclined to agree with Petitioner’s attorney’s position and recommend a 30% increase in the reopener. Attorney Fersch argued that the Petitioner’s treatment was not as invasive as the Petitioner’s attorney characterized it to be, that Petitioner was employed without issue in a similarly-situated position as his pre-injury job, and that the objective medical evidence actually showed improvement in the Petitioner’s injuries/conditions. As a result of Fersch’s arguments and presentation of the facts, the Carrier’s exposure was significantly reduced to a finding of a mere 12.5% increase in permanent partial disability for both the cervical and lumbar spine (50% permanent partial disability, credit 37.5%), with a Section 20 resolution of the right foot injury.
