Judge Awards $100,000 for 'Pinky-toe' injury

The employer provided workers’ compensation benefits to the claimant – compensation for time lost from work (temporary tootle disability benefit) and medical treatment. The claimant was returned to work “without restrictions” by his treating doctor on July 20, 1999 – about four months after the original accident. Instead of returning to work, the claimant sought additional medical treatment, which was not authorized. He never returned to the employment of any type, and obtained a Social Security Disability award, effective 2003.
Among the treatments the claimant underwent (at his own direction) was lumbar nerve blocks for “Reflex Sympathetic Dystrophy” in his left leg (know called ‘Complex Regional Pain Syndrome’). The claimant also underwent treatment for “involuntary nighttime movements” of his leg that interrupted his sleeping. The claimant was put on numerous medications, including codeine, Neurontin, Zanaflex, Clonazepam, Klonpin, Oxycontine, Valium, and Prozac. In 2003 he complained of depression and anxiety attacks and treatment for these conditions began.
At trial, the respondent portrayed the claimant as a malingerer – and even petitioner’s doctors agreed, although they differed as tot he extent of the malingering. While the employer’s doctor called the claimant’s behaviors “flagrantly acting out” the petitioner’s doctor described it as a “enormous psychogenic overlay.”
The Judge of Compensation found that the claimant did have a residual disability resulting from the original fractures and RSD, as well as depression. The Judge awarded temporary disability benefits from July 20, 1999 to August 13, 2004 (265 weeks). The employer appealed the award of temporary disability benefits, arguing that the claimant had not demanded payment of those benefits – in essence, arguing that the Judge of Compensation awarded wage replacement that was not asked for or demonstrated in the medical records.
The Appellate Court rejected the appeal – finding that the ‘expert’ doctors had testified that the claimant was ‘unable to work by reason of his injuries’ during the 265 week period and that the award of back-temporary disability benefits was appropriate.
Case: Mercado v. Atlantic States Cast Iron Pipe Co., A-2774-08T3, (App. Div. Decided April 19, 2010).

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