What's Hot in Workers' Comp
Appellate Division Affirmed Increase in Permanency Despite Petitioner Declining Surgery
What’s Hot in Workers’ Comp, Vol. 30, No. 6, June 2026
June 8, 2026
Grasso v. Monmouth Cnty. Sheriff’s Dept., No. A-2392-24 (May 18, 2026)
In Grasso v. Monmouth Cnty. Sheriff’s Dept., Monmouth County Sheriff’s Department (MCSD) appealed from a workers’ compensation judgment awarding the petitioner an increase in permanent disability with fees and costs. By way of background, the petitioner worked as a corrections officer for MCSD when he injured his big toe on his right foot in 2016. He underwent surgery in 2019. An order approving settlement was entered in June 2021, for 27.5% of the right foot. In May 2022, the petitioner re-opened his case, noting he had an increase in pain and disability, and needed additional treatment.
The petitioner testified at trial that his toe started to swell and he began to limp again. He noted that his injury impacted his ability to participate sports and play with his children. After an MRI, a podiatrist indicated his only option was to fuse the toe surgically, but the petitioner did not wish to go forward with surgery. He believed that his prior surgery made him worse. Petitioner also presented Dr. Alan Nasar as his expert, noting the degeneration would worsen without surgery and that it was the most reliable option.
MCSD had Dr. Andrew Hutter testify, who found no material worsening in the petitioner’s condition, though he acknowledged degenerative progression. He believed the fusion surgery was a reasonable option.
In February 2025, the workers’ compensation judge issued an oral decision, noting the petitioner proved by a preponderance of the evidence that he was due an increase in permanent disability, to 35% of the right foot. The judge also addressed apportionment of fees and costs, delving into whether MCSD made any counteroffers to the petitioner’s demand. While MCSD argued its failure to make a counteroffer was reasonable based on the finding of no increase by Dr. Hutter, the judge noted its failure to do so as well as its insistence in trying the case was “not dealing in good faith.” The judge also indicated he did not blame the petitioner for rejecting surgery.
MCSD appealed, with the appellate division noting its standard to be deferential. The appellate division rejected MCSD’s argument that the judge erred in awarding an increase in disability when the petitioner rejected medical treatment. The appellate division noted that the judge had the opportunity to assess the petitioner’s credibility and reason for declining surgery. They also declined to address MCSD’s argument regarding a medical monitoring order, as it did not ask the judge for same in lieu of the increase in disability. Finally, the appellate division dismissed MCSD’s argument that the judge should have conducted a more detailed fact-finding hearing before issuing fees as it found no abuse of discretion.
