Aggravation of prior disabling condition: new case law for the defense

Instead, the claimant alleged that his employment at Wegmans “aggravated” and worsened his pre-exitsing disability, which was actually related to the compensable workers’ compensation injury the claimant experienced while working for Wakefern. Wegmans, of course, argued that it was not responsible for any aggravation of the prior disabling condition caused by the prior employment.

The Judge of Compensation found that the new job ‘aggravated’ the injury from the prior employment, and because of that awarded the claimant disability benefits.

The Appellate Panel (Axelrod and Lihotz) disagreed.

This case is blog-worthy because the logic applied by the Appellate Court should be used in any case where an ‘aggravation’ is alleged against a subsequent employer.

First: the facts. Claimant Ivo Zrno accepted a settlement of 27.5% PPT for an April 13, 2000 back injury sustained while working for Wakefern. At the time of the accident, the claimant worked in a supermarket as a ‘selector’ for Wakefern. In April 2001 the claimant took a job with Wegmans, also a supermarket, as a selector for 40 hours per week. In 2004 Zrno filed worker compensation claims against Wegmans and a ‘re-opener’ claim against Wakefern (remember: he had already accepted about $25,000 to settle his case against Wakefern).

The claim against Wegman alleged that “occupational exposures” (no specific injury) caused “injury to his lumbar spine.” Wegmans filed an Answer denying any such injuries.

At Trial, Zrno testified that his back pain had worsened as a result of his subsequent employment with Wegmans and that his pain had gotten “stronger.” However, claimant admitted that his “treatment” consisted of taking Tylenol “approximately every other week for pain.” The claimant also testified that in terms of injuring himself at his new job “I cannot say I remember one day I injured myself or had something bad happen to me which I would remember . . . I cannot say that because I do not remember that.”

Following this testimony, Zrno presented his paid expert doctors who testifie dthat his condition was “much worse’ than before his job at Wegmans.

The Workers’ Comepnsation Judge awarded this claimant $24,027.00 (approximately 32$ PPt with a credit for the prior award of 27.5% PPT).

The Appellate Division, exercising its limited jurisdiction to redress judicial mistakes where a comp judge rules in a way “manifestly unsupported by or inconsistent with competent relevant and reasonably credible evidence so as to offend the interests of justice.” [quoting the Supreme Court in Rova Farms Resort v. Investors, Ins. Co. of Am., 65 N.J. 474 (1974) – the first time I have seen the App Div quote Rova to establish the standard of review in NJ –gl] overturned the ruling of the Judge of Compensation.

In short, the Appellate Panel relied on the ruling in Peterson v. Hermann Forwarding Co., 267 N.J. Super. 493 (App. Div. 1993) cert den. 135 N.J. 304 (1994). Finding that causation was the issue, the Panel stated: “although the work at Wegman’s may have caused more pain that the claimant would have felt if he just remained sedentary, ‘the subsequent employment was performed without the intervention of additional trauma or physical insult.'” The Panel found insufficient medical evidence of any trauma or physical insult to the claimant’s low back while working for Wegmans,

Greg Lois is the managing partner of LOIS LLC and dedicates his practice to defending employers and carriers in New York and New Jersey workers' compensation claims. Greg is the author of a popular series of "Handbooks" on workers' compensation, and is the co-author of the 2016 & 2017 Lexis-Nexis New Jersey Workers' Compensation Practice Guide. Greg can be reached at 201-880-7213 or glois@loisllc.com