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Appellate Court Orders Home Modifications to Be Paid by Comp Carrier but Reverses Court Order on Home Elevator

By on December 9, 2014 in Uncategorized with 2 Comments

There are few Appellate Division cases dealing with the requirements on an employer/carrier with respect to home modifications when an employee has suffered catastrophic injuries. For this reason, the decision in Loeber v. Fair Lawn Board of Education, A-1990-13T1 (App. Div. December 5, 2014) is important for practitioners in New Jersey.

Mr. Loeber was injured at work in November 2009 and became partially paralyzed requiring the use of a wheelchair. In October 2011, Loeber sought modifications to his home and vehicle, as well as psychiatric care.  The Board provided psychiatric care and resolved all issues with respect to his vehicle.  The Board also agreed to provide certain modifications to the home without the necessity of medical reports.  However, some of the requested modifications remained in dispute.

Trial began in the Division of Workers’ Compensation in 2013, and Loeber testified that he wanted the whole of his house, not just the first floor, to be accessible to him.  He sought access to the second floor, where his son’s bedroom was, as well as access to his basement, where he wanted to do woodworking.  Loeber offered an expert in home modifications who recommended expansion of the kitchen, raising the family room floor, and installing a life platform at the front door.  The expert admitted that he did not take cost into account.

The Board of Education produced a licensed occupational therapist as its expert.  She agreed with some of the recommendations of petitioner’s expert but disagreed with others.  She recommended that the workshop be built in the garage and the son’s bedroom be moved to the first floor.

The Board’s attorney wrote to petitioner’s attorney after petitioner’s expert testified.  Board counsel conceded that there was no need for medical testimony by petitioner that he needed to be in a wheelchair.  Counsel pointed out, however, that the Board was not waiving any need for expert testimony as to the issue of whether renovations are required to address the psychological effects of Loeber’s injury.

The Judge of Compensation visited Loeber’s home twice.  She found Loeber’s testimony to be entirely credible as to what he could and could not do.  On November 23, 2013, the Judge of Compensation rendered her decision stating that she found petitioner’s expert to be more credible and ordered the home modifications sought by Loeber.  Respondent appealed.

The Board of Education focused its appeal on four issues:

  1. installation of an elevator to take Loeber from the main floor to the second floor and basement;
  2. lifting the floor of the family room to provide better access to the kitchen;
  3. modification of the kitchen to permit Loeber to use it safely;
  4. reimbursement for the installation of a turn platform at the end of a wheelchair ramp leading to the rear entrance to the house.

The court reviewed the leading case in New Jersey on these issues, Squeo v. Comfort Control Corp., 99 N.J. 588 (1985).  The Supreme Court held that there was competent medical testimony supporting the need for the carrier to construct an apartment addition to Mr. Squeo’s home to relieve Mr. Squeo of his severe mental depression.  The Supreme Court cautioned that only an unusual case would warrant such extraordinary relief. The Court held that the apartment was necessary to address the psychological effects of petitioner’s injury, rather than his physical disability.  The Court added that cost of renovations was a legitimate consideration.

The Appellate Division observed that the Judge of Compensation found that Loeber’s “long-term mental health will be enhanced by having the ability to live in a barrier free home with his wife and preadolescent son.”  However, the court noted that there was no psychological testimony in this case. The court also noted that there was no analysis of cost.  Nonetheless, the Appellate Division largely affirmed the findings of the Judge of Compensation. “Having reviewed the record in light of the applicable law, we nevertheless conclude that the judge’s overall conclusions are supported by the record and applicable law with respect to all contested issues except the elevator.”

The Appellate Division affirmed the judge’s first-hand observations from her visit to Loeber’s home, namely that the existing ramp from the family room to the kitchen was dangerous, and that kitchen modifications were needed to allow Loeber to safely use the stove, cooktop, sink, and other parts of the kitchen.  The court cautioned that the Board must submit a plan for the renovations to Loeber, who should have a reasonable period of time to respond with alternatives.  Should the parties reach an impasse, those issues would be resolved by the Judge of Compensation.

On the issue of the home elevator, the court reversed the decision of the Judge of Compensation, noting that no expert testimony was offered by petitioner in support of his request for the elevator. While the elevator would appear to be beneficial, there is nothing in the record to demonstrate that it is ‘necessary’ and its cost ‘reasonable’ as those terms are used in Squeo.  Ibid. The compensation judge was required to reach a decision consistent with Squeo, which ‘cautioned’ that it is ‘only the unusual case that may warrant . . . extraordinary relief.’ Id. at 604.  Based on the current state of the law, as set forth in Squeo, and the present record, we cannot agree that Loeber demonstrated that the elevator was ‘necessary.’”

Although this case is unreported, it is crucial for practitioners to read because it is one of only a handful of appellate level cases dealing with catastrophic injuries.  In regard to the need for medical testimony, the court seems to draw a distinction between those renovations which pose a safety risk and those that address quality of life issues.  Regarding conditions that involve safety, danger or essential life functions, (ramps, access to stoves, preparing meals), no medical expert testimony was required.  The judge’s first-hand observations together with the conclusions of the home modification expert were sufficient.  But in respect to quality of life issues like the elevator, the court clearly felt that testimony from a medical expert, such as a psychologist or psychiatrist, would be required to address the psychological impact of the injury on the petitioner.


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.


There Are 2 Brilliant Comments

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  1. Nancy Alberici says:

    Just wondering how the responsibility of after construction costs of homeowners insurance, real estate taxes, upkeep would be addressed in this case. Please comment.

  2. Very interesting article and an important read for anyone in the practice area. There definitely is a clear distinction between safety, major life functions and quality of life enhancements by the court.
    Thank you,

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