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Appellate Division Reverses Award of 47.5% for Unoperated Low Back Condition

By on October 6, 2017 in Awards with 0 Comments

Rarely does the Appellate Division reverse a Judge of Compensation when the only issue is the extent of permanent partial disability.   The case of Van Artsdalen v. Fred M. Schiavone Construction, No. A-3392-15T1, 2017 N.J. Super. Unpub. LEXIS 2516 (Oct. 5, 2017) is that rare example.

The petitioner, Mr. Van Artsdalen, was injured on January 26, 2012 in a fall at work while carrying 60-70 pounds of plywood.  He saw a doctor after work and then again two days later.  He attempted to return to work the next day but was unable to do so because there were no work assignments available.  He did go back to work on January 30, 2012 but could not finish his shift on account of severe back pain.  Petitioner obtained an MRI and received physical therapy and pain management.  He was cleared to return to work on May 5, 2012.  He did not return to work initially because there were no assignments.  Finally, he returned to work on July 12, 2012 and continued through September 2012 when he retired.  He testified that he could no longer take the pain and therefore retired at the age of 53.  He did admit to having chiropractic treatment in 1992 and symptoms of low back treatment in 2008.

In 2013 petitioner had another MRI and then filed a petition in the Division of Workers’ Compensation.  He received more pain management and an epidural injection.  He never treated again after September 2014. He never had any surgery to his spine.  Petitioner testified at trial that he had difficulty lifting things, bending over while getting dressed and performing household chores.  He was subject to sudden onset of sharp pain, particularly in the groin area.  He used over-the-counter medications and ice.  Sometimes the pain interfered with his sleep and often prevented him from doing heavy lifting of objects.  He did admit that he was able to perform most daily activities including household chores and driving his grandchild to and from school.

The parties agreed to submit the expert reports into evidence without having the experts testify.  Dr. Gaffney for petitioner estimated 52.5% based on petitioner’s lack of relief from epidural injections.  He diagnosed “chronic pain and lumbar fibromyositis syndrome” and noted “restriction of function.” The Judge stated that “it was understood that surgery could not be wisely undertaken in Van Artsdalen’s condition to obtain an optimum result bettering his condition.”  However, there was apparently no testimony to the effect that surgery could not be performed, and Dr. Gaffney’s report did not spell this out.   The Judge also stated that the petitioner’s condition “simply was inoperable due to his condition of multiple levels impeded in his lumbar spine.  Therefore, his disability rating is construed as worse than one who could obtain relief from a procedure or operation.”

Dr. Maletsky’s report was also admitted into evidence without testimony by the doctor on behalf of respondent.  Dr. Maletsky found 2% permanent partial disability.  Dr. Maletsky noted that petitioner had x-rays of his spine in 2008, four years before the accident, but the Judge of Compensation found Dr. Maletsky’s report was not as credible as that of Dr. Gaffney because in part he did not address the fact that petitioner had multiple levels of discs which were impaired.  She found that Dr. Maletsky did not “adequately address petitioner’s increased symptomology as being related to the last work incident.”

The Judge awarded 47.5% permanent partial disability or $153,900.  Schiavone appealed and argued principally that the judge’s conclusions were not supported by the record.  The Appellate Division first acknowledged the expertise of the Judge of Compensation in awarding disability.  However, in this case the Appellate Division found two areas where the Judge of Compensation drew conclusions that were not supported by the record.  “[W]e are constrained to vacate the judgement and remand for reconsideration as we conclude there was no evidence to support the findings that Van Artsdalen’s injury was inoperable or that he took few days off during his years of employment.”   The Court added that “neither Van Artsdalen nor the experts stated these facts or opinions, nor was there any other evidence presented from which the judge could have logically inferred them.”  For these reasons the award was reversed.

This case would not have been reversed had there been evidence in the record that petitioner did not take time off in the past and had been advised that his condition was inoperable.  Both petitioner’s attorney and respondent’s attorney took risks when they did not produce the live testimony of their experts.  Through live testimony petitioner’s attorney could have focused on whether the back condition was inoperable, thereby giving the Judge of Compensation support in the record for her conclusion.  Respondent’s expert could have cross examined effectively on petitioner’s prior condition and alternative explanations for why petitioner was never advised to have surgery on his spine.  This was simply a case where the sparse record did not support some of the conclusions of the Judge of Compensation, and that was mainly due to the failure to bring in the experts.  Without that testimony, 47.5% seemed extremely high for an unoperated back condition.

The lessons learned are to bring in experts when trying cases and only try cases on reports where there is very little money at stake and there are no real issues of causation.



About the Author

About the Author:

John H. Geaney, a shareholder and co-chair of Capehart Scatchard's Workers' Compensation department, began an email newsletter entitled Currents in Workers’ Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates.

Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers. The manual is distributed by the New Jersey Institute for Continuing Legal Education (NJICLE). He also authored an ADA and FMLA manual as distributed by NJICLE. If you are interested in purchasing the manual, please contact NJICLE at 732-214-8500 or visit their website at www.njicle.com.

Mr. Geaney represents employers in the defense of workers’ compensation, ADA and FMLA matters. He is a Fellow of the College of Workers’ Compensation Lawyers of the American Bar Association and is certified by the Supreme Court of New Jersey as a workers’ compensation law attorney. He is one of two firm representatives to the National Workers’ Compensation Defense Network. He has served on the Executive Committee of Capehart Scatchard for over ten (10) years.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School. He has been named a “Super Lawyer” by his peers and Law and Politics. He serves as Vice President of the Friends of MEND, the fundraising arm of a local charitable organization devoted to promoting affordable housing.

Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Trenton, New Jersey. The firm represents employers and businesses in a wide variety of areas, including workers’ compensation, civil litigation, labor, environmental, business, estates and governmental affairs.


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