Trial practice – new case

Many Second Injury Fund Cases end with a Judge of Compensation ruling that the Fund is dismissed from the case. This usually happens when the Judge determines that (a) the claimant is not totally disabled, or (b) the claimant was totally disabled as a result of the last accident alone, or (c) the claimant’s pre-existing conditions were not disabling.

In the case of Vassilatos v. Mercer Wrecking Recycling Corporation, decided July 2, 2008, the Appellate Judges (Judges Fuentes and Grall) reviewed whether the workers’ compensation judge made specific-enough findings as to whether two intervening accidents “caused or contributed” to the claimant’s permanent disability.

The claimant in Vassilatos suffered injury to his right ankle and leg. He received medical treatment and was released from treatment approximately one year after the accident. The claimant then suffered a number of subsequent accidents – including claims for falling due to the “bad leg giving out.” The claimant underwent multiple surgical procedures to both knees and both shoulders and treatment to his cervical, thoracic, and lumbar spine regions.

The Judge of Compensation decided that the claimant was totally disabled and ordered total disability compensation be paid by the employer at the time of the original accident. The Judge of Compensation acknowledged that the petitioner had sustained subsequent accidents, and the injuries ( for which the majority of treatment occurred after) but failed to parse out exactly what degree of disability was related to the subsequent incidents (Id. at page 13). The case was sent back to the Judge of Compensation by the Appellate Court for the Comp Judge to “articulate, with particularity, what effect the 1999 and 2000 accidents had on the petitioner’s physical and psychiatric well-being.”

The remand of this case will allow the Respondent employer to argue that the petitioner’s condition worsened by an intervening accident which was not “directly connected in a physical chain of physical causation with the compensable injury.” In Vassilatos the claimant re-injured himself slipping on “wet stairs” in his apartment building (for which he maintained a civil action).

Case: Vassilatos v. Mercer Wrecking Recycling Corporation, A-4952-4878-06T3 (App. Div. decided July 2 2008)(Judges Fuentes & Grall, unpublished as of blog date).

Greg Lois is the managing partner of LOIS LLC, a 19-attorney law firm dedicated 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 Lexis-Nexis New Jersey Workers' Compensation Practice Guide. Greg can be reached at 201-880-7213 or glois@lois-llc.com