Court Reviews Evidence to Support a Finding that the Petitioner was deemed Permanently and Totally Disabled due Solely to the Last Compensable Accident

Karen Vincent, Esq.
Karen Vincent, Esq.

On October 30, 2017, the Appellate Division of the Superior Court of New Jersey in D’Angelo v. Archdiocese of Newark, N.J. Super. App. Div. (per curiam) (22pp.) issued a written decision affirming a prior compensation judge’s ruling that the petitioner was permanently and totally disabled from the last accident.

The petitioner, Teresa D’Angelo, was employed as a school bus driver for the respondent, Archdiocese of Newark/Christ the King Preparatory Schools at the time of the accident. On November 28, 2011, while driving the school bus, she was hit by a stray bullet from an AK-47. The bullet lodged in to petitioner’s pelvis causing multiple internal injuries. The respondent accepted compensability of the claim and authorized the petitioner to submit to treatment. Petitioner underwent authorized surgery and treatment to the pelvis, hips, abdomen, lumbar spine and PTSD.
The case proceeded to trial to make a determination as to the nature and extent of petitioner’s permanent disability. During petitioner’s testimony, the petitioner confirmed that she had been involved in two prior motor vehicle accidents in 1999 and 2007 with injuries resulting to the cervical spine following the 2007 accident. She testified that she did not miss any time from work following these accidents. Additionally, the petitioner confirmed that she had prior treatment with a psychologist for issues of panic attacks and difficulty sleeping. She testified that this prior psychiatric treatment occurred approximately seven or eight years prior to this shooting accident.

Following petitioner’s direct testimony, the respondent sought to introduce testimony regarding petitioner’s prior medical treatment to determine whether there should be Second Injury Fund involvement. (see N.J.S.A 34:15-95 and Sexton v. Cty. Of Cumberland/Cumberland Manor, 404 N.J. Super. 542, 555, 962 A.2d 1114 (App. Div. 2009.) However, the judge disallowed the questioning, finding that there was no Second Injury Fund petition pending before the court and that it was not probative to “the nature and extent of petitioner’s permanent disability as it related to the compensable accident.”
Petitioner had two experts testify on her behalf: Dr. Cary Skolnick for orthopedic injuries and Dr. Peter Crain for neurologic and psychiatric disabilities. On direct, Dr. Skolnick confirmed that he examined the petitioner on November 4, 2013, where he opined that she was suffering from total disability. During cross examination, Dr. Skolnick was unable to define “reasonable degree of medical probability.” Dr. Peter Crain then testified that on December 18, 2013, he examined the petitioner. He advised that he found the petitioner totally disabled overall and apportioned 35% ppt for psychiatric disability and 25% ppt for neurologic disability. With respect to the psychiatric disability, Dr. Crain advised that although the petitioner had a history of prior panic attacks and anxiety, it had completely dissipated prior to the incident. On cross-examination, Dr. Crain was unable to identify the three types of disability set forth in the workers’ compensation statute.

Following each expert’s testimony, the respondent moved to strike petitioner’s expert testimony. The judge denied both motions.
Respondent presented Dr. Malcolm Coblentz for orthopedic defense and Dr. Erin Elmore for neurologic and psychiatric defense. Both testified that the petitioner was not totally disabled. Dr. Coblentz testified that the petitioner did not disclose her prior motor vehicle accidents. The respondent thus claimed fraud and moved for dismissal of the claim. This was denied as the judge found that the respondent had not moved to dismiss petitioner’s claim or suppress her defenses prior to trial and had therefore waived their discovery demand.

Ultimately, the judge found the petitioner to be permanently and totally disabled as a result of the shooting incident, and also assessed against the respondent an additional counsel fee to petitioner’s attorney for defense of various motions made during trial.

The respondent appealed the judge’s findings based upon: (1)There was insufficient credible evidence to support the compensation judge’s finding that petitioner was permanently and totally disabled based solely on the November 28, 2011 accident , and the compensation judge violated its due process rights by excluding evidence of petitioner’s treatment for a prior motor vehicle accident; (2) the testimony of petitioner’s medical experts was incompetent and should have been stricken from the record as net opinion, for failure to define pertinent medical/legal criteria, Allen requirements and (3) the compensation judge’s imposition of counsel fees was unjustified.

First, the Appellate Division failed to find any violation of due process rights by excluding evidence of petitioner’s 2007 motor vehicle accident. The compensation judge was correct in noting that neither party applied for Second Injury Fund benefits pursuant to N.J.S.A. 34:15-9. Also, there was no evidence that the 2007 accident prevented the petitioner from working at the time of the 2011 shooting accident. The compensation judge was also correct in excluding the evidence; as the 2007 motor vehicle accident involved injuries to the cervical spine, and the cervical spine was not alleged to be injured following the shooting incident.

Next, the Appellate Division confirmed the compensation judge’s denial in striking petitioner’s experts. The respondent argued that the doctors’ testimony was inadmissible as net opinions. The Court reasoned that “the net opinion rule is not a standard of perfection.” Townsend v. Pierre, 221 N.J. 36, 53-54, 110 A.3d 52 (2015). The Court held that an expert’s proposed testimony should not be excluded merely because it fails to account for some particular condition or fact which the adversary considers relevant. Ibid. When analyzing whether the experts’ testimony should be considered net opinions, the Court specifically found that there was no merit in respondent’s argument that their failure to properly define the legal term “reasonable degree of medical probability or certainty” was fatal to their testimony. The Court looked at Eckert v. Rumsey Park Assoc., 294 N.J. Super, 46,51, 682 A.2d 720 (app. Div. 1996) and advised that the expert does not have to specifically use magical words, but instead must be able to convey the meaning of “reasonable degree of medical certainty” when offering their opinion. The Court confirmed that both Drs. Skolnick and Crain expressed their respective opinions in terms of medical “probabilities” instead of impermissible “possibilities” and therefore understood the basic concept. The Court further noted that there was no authority that required the expert to define statutory terms, but rather be qualified to testify in their respective areas of expertise.

The respondent also argued that the compensation judge erred in finding permanent disability as petitioner’s experts failed to satisfy the Allen requirements. In Allen v, Ebon Servs. Int’l, Inc. 237 N.J. Super. 132, 567 A.2d 288 (App. Div. 1989), the Courts established requirements in finding the petitioner to be permanently and totally disabled. In that case, the judge merely found objective signed of substantial injury. When examining N.J.S.A. 34:15-36 and Perez v. Pantasote, Inc., 95 N.J. at 116, the petitioner must make a “satisfactory showing of demonstrable objective medical evidence of a functional restriction of the body.” In this present case, the judge, in her opinion, correctly included specific objective medical evidence upon which she based her decision, credibility findings and underlying law.

Lastly, in assessing a counsel fee against the respondent, the Court confirmed that the trial judge has the discretion to award reasonable counsel fees pursuant to N.J.S.A. 34:15-64.

The Appellate Division disagreed with the respondent and affirmed the compensation judge’s ruling.

Karen Vincent is an associate attorney at Lois LLC where she defends employers and carriers in New Jersey workers’ compensation claims. She can be reached directly at kvincent@lois-llc.com or 201-880-7213.