New Jersey: No Modification to Award 18 Years After Loss

Joe Jones, Esq.
Joe Jones, Esq.
The New Jersey Appellate Division just handed down a decision in Larry D. Batts v. Flag House, a case that although not precedent for other courts to follow (the decision was an unpublished decision under Docket No. A-5616-15T4, January 16, 2018), discusses two important things:

  • A decision by a workers’ compensation Judge supported by substantial credible evidence will be generally upheld as substantial deference is given to their decisions as the trier of fact. This is a common theme in many Appellate decisions but an important one to note when you are making a record in a trial.
  • When an original case settles under an Order Approving Settlement involving more than one body part (arm and back, neck and psych, etc.) and the first re-opener is filed and settled with an increase to one of the original body parts but remains silent as to the other body parts, the second re-opener may include an increase in disability to the other body part that was not increased in the prior re-opener OAS (of course the petitioner still has to prove an increase in permanency!).

In Larry D. Batts v. Flag Ship, petitioner claimed injury to his right foot as well as psychiatric disability for chronic depression and anxiety disorder as a result of an accident that occurred on April 2, 1998 while at work when a forklift ran over his right ankle. The original case settled under an Order Approving Settlement awarding the petitioner 50% of the right foot for orthopedic disability and 10% of partial total for psychiatric disability.

The petitioner filed a an application for review and modification (a re-opener) and received an increased award of 57.5% of the right foot. The OAS was silent as to any increase in psychiatric disability. In 2016, the petitioner then filed another re-opener application and received an increased award of 60% of the right foot. This OAS was also silent as to any increase in psychiatric disability. The day after he settled his second re-opener, the petitioner filed yet another re-opener application seeking an increase in psychiatric permanency and additional psychiatric treatment by way on a Motion for Medical and Temporary Disability Benefits.

Testimony at trial.

The Motion proceeded to trial. The petitioner made some incredible assertions at trial. He testified that his divorce years earlier was caused by the accident as he could not have sex with his wife as a result of his foot injuries. He also claimed he gained 50 pounds and had diabetes as a result of the accident. The petitioner presented his expert witness, Dr. Devendra Kurani, who, although not a treating physician, gave his opinions based upon a review of the medical records. Dr. Kurani testified that the petitioner’s divorce, lack of mobility, weight gain, hypertension, diabetes, unemployment, financial problems, inability to socialize and depression were all attributed to the accident.

The respondent presented the testimony of Dr. David Gallina. Dr. Gallina testified that he agreed with Dr. Kurani’s assessment that the petitioner was depressed and even that he needed further treatment but attributed the depression to the petitioner’s loneliness due to his divorce and his weight gain, not the accident.

The Decision at Trial.

The Judge ultimately agreed with the respondent doctor and denied petitioner’s Motion for Medical and Temporary Disability Benefits. In rendering his decision, he noted that the petitioner’s claims that his divorce and weight gain were attributed to the accident were not credible. The Judge also found it significant that the petitioner did not seek any psychiatric treatment (authorized or unauthorized) for the 18 years in between his original accident and this last re-opener.

The Appeal.

The Appellate Division gave substantial deference to the Judge who presided over the trial. It determined that “all of the factual determinations made by the workers’ compensation judge were supported by substantial credible evidence in the record.” The petitioner made an additional argument on appeal that the Judge precluded an increase in psychiatric disability simply because the prior two re-opener orders did not increase the psychiatric component of the case and therefore he was unable to request one in this re-opener. The Appellate Division rejected this argument and held that “the two modifications to petitioner’s initial award did not address the initial ten percent psychiatric disability award; they only dealt with the petitioner’s right foot….the Judge did not determine petitioner had no right to increase his psychiatric disability award…the judge merely concluded petitioner did not prove that his current depression was caused by an accident that occurred 18 years ago.”

Practical advice.

There are several takeaways for us as respondent attorneys when reviewing this case:

  • Significant deference is given to the workers’ compensation judge presiding over the trial – this is well known but it never hurts to be reminded of it.
  • On the first re-opener application, savvy respondent counsel would have tried to shut down the psychiatric component of the case perhaps by offering a de minimis Section 20 on that aspect of the case (the respondent attorney in Batts might have tried this on both re-openers and the Petitioner or Judge simply might not have agreed or allowed it).
  • Silence as to an increase in disability as to one aspect of the case does not mean a future request for an increase in disability is waived . . . again, we would advise not remaining silent but rather shutting down all aspects of a claim not being increased under an OAS with Section 20 money so that issue does not come back years later with petitioner requesting more treatment or money.

Joseph is a Partner at Lois LLC where he defends employers and carrier in New Jersey workers’ compensation claims. He can be reached directly at jjones@lois-llc.com or 201-880-7213.