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,

Allocation among several employers

When an employee is totally disabled as a result of a long string of employments which cumulatively injured him, New Jersey law holds that the employer last on the risk’ pays the full freight for the claimant’s award. This doctrine, known as the ‘Bond Doctrine’ after the Court’s decision establishing it in Bond v. Blue Ribbon Co., is a common sense approach to those cases where all of the employments probably contributed to the overall disability.

In Nolan v. Kleinknecht Electric Co., A-5347-03T3, decided April 17, 2009 (not yet published as I blog this) the petitioner was a union electrician who held a long list of employments. (As a brief aside – it always seems that it is union contractors that file these types of claims because they often have dozens of employers over the years, have no personal loyalty/affinity toward any of them, and the union hall keeps a track of the employers which facilitates filing post-retirement occuputional disability claims easy-gl). Following the fashion, and nearing retireent age, Nolan filed a claim against all of his prior employers alleging that his work duties left him no permanently and totally disabled.

Unlike the typical case, Nolan actually experienced and reported an actual specific injury to his left shoulder (in 1998) and filed a claim against AMP Electric in which he recovered about $25,000 (approximately 27.5% PPT).

Nolan went back to work. eventually working for Kleinknecht Electrical in 2000. In 2001, he was told his spine was compromised and required treatment to avoid permanent effects. In September 2001 the claimant began surgical treatment for disc herniations, and never returned to work.

At Trial, the claimant presented Dr. Martin Riss (a general practitioner) who opined that “although the petitioner’s work for Kleinknecht [the “last” employer] did not involve heavy lifting or construction work, it nonetheless contributed substantially to the deterioration of his back and to his ultimate disability.” Dr. Riss described the work as “the straw that broke the camels back.”

The Judge of Compensation believed Dr. Riss and apportioned all disability against Kleinknecht, despite the fact that the claimant had received prior medical treatment for his low back while working for previous employers. In essence, the Judge of Compensation relied solely on the ‘Bond Doctrine’ and found all of the petitioner’s alleged disability was the result of the last employment.

The Appellate Court found that the reliance on ‘Bond’ was a mistake. Instead, the Court stated that “in the context of a progressive condition, the final employer ‘can no longer be held subject to the entire risk f liability for total disability when it is established by competent evidence that there is previous measurable [which then may not be total] disability.'” The Appellate Court here is citing the rule in Levas v. Midway Sheet Metal, a case I discuss at lenght in my book.

The case was remanded for proceedings consistent with the Apellate Court’s findings.

‘Odd Lot’ Thrown Out in Thomas v. Board of Education

Illiteracy;
Inability to speak English;
Low intelligence;
Lack of formal education;
Low job skill transferability;
Lack of training.
Other.
‘Odd Lot’ claims have one other prerequisite: before the ‘Odd Lot’ doctrine can be triggered, the claimant’s disability relative to the work accident must be at least 75% of total. That is to say, the physical disability must be significantly (and nearly totally) disabling by itself. This reduces the opportunity for fraud and abuse by litigants who would “trump up” their alleged ‘personal handicaps.’ Also, in a state with a large illiterate/non-English-speaking worker population (New Jersey released ‘official’ state figures last week admitting to at least 500,000 undocumented foreign nationals living and working in New Jersey) the potential for abuse of the ‘Odd Lot’ provision is present.
In a March 4, 2009 decision, the Appellate Court found that the petitioner in Thomas v. Newark Board of Education had no grounds to appeal based on the Judge’s refusal to apply the ‘Odd Lot’ doctrine and find him totally disabled. In Thomas, the claimant alleged that all of his prior work experience was in heavy manual labor jobs and that he lacked job skills.
The Comp Judge refused to listen to that argument, and found the claimant only 22.5% disabled, and so the ‘Odd Lot’ doctrine was not applied.

EEOC in Trouble

The ruling stems from a grievance filed in 2006 and involving overtime disputes going on for six years. Specifically, the EEOC routinely offered days off instead of issuing overtime. The EEOc stated that employees were ‘requested’ to take time off to ‘balance out’ overtime worked.
EEOC employee asserted that the ‘requests’ were really fiction and that after being pressured to work longer hours no additional pay was provided.
No word as of yet from the arbiter as to whether the EEOC is going to be fined. AN EEOC spokesman stated that the overtime practices were going to be ‘reviewed.’

Appellate Division weighs in on Commercial Premises Liability Coverage Issues

The facts of Campbel were founded on two slip-and-fall accidents in the parking lot of a surgery center. Under its lease, the surgery center agreed to name the landlord as an additional insured on its general liability policy, which it did. Under the lease, the landlord was required to maintain the parking lot, including snow removal. It was undisputed that the plaintiffs were both patients of the surgery center and were injured due to slipping on ice in the parking lot.

The Appellate Division reviewed four of its prior published opinions in this area, in an effort to determine whether the surgery center’s carrier was obligated to defend and indemnify the landlord. Ultimately, the court found that the plaintiffs’ activities “arose out of” the surgery center’s use of the premises, thereby bringing the landlord within the center’s policy. Quite frankly, this was not a surprising result, given the court’s prior decisions. However, the court went on review the two policy types and determined that the center’s insurance policy was not a “true” excess policy, but rather a “primary insurance policy with an excess insurance clause.” The court then examined the the “other insurance” clauses of both policies The tenant’s policy, issued by Lexington Insurance company, mandated that if other insurance applied to the loss, the other insurance must pay first. Thus, according to its terms, the tenant’s Lexington policy only provided excess coverage to additional insureds. An examination of the language of the landlord’s own Maryland Casualty policy revealed that it was to be excess over any other primary insurance providing coverage for damages arising out of premises for which the insured had been added as an additional insured. The Campbel court concluded that since by its terms the tenant’s policy only afforded the landlord excess coverage, there was no other primary insurance available. Therefore, the condition limiting the coverage of the landlord’s own policy was not met and that policy must provide primary coverage.

WHY IS THIS IMPORTANT? This decision can be viewed as a significant roadblock at efforts to tender landlord’s defenses to tenants and their insurers for fall-downs which arise out of a tenant’s use of the premises. Tompkins, McGuire, Wachenfeld & Barry, LLP routinely counsels both property owners and tenants, as well as their insurers, on matters of general liability and insurance coverage. We would be happy to discuss the facts of your particular case as they might be affected by this new decision.

This entry contributed by: Joseph K. Cobuzio and Jared P. DuVoisin

Defending Employers