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What's Hot in Workers' Comp

New Jersey Appellate Court affirms permanent disability award found in workers’ compensation order in pro se appeal.

Morales v. Advance Auto Parts, No. A-0557-20 (App. Div. Sept. 30, 2021)

January 3, 2022

by Kiara K. Hartwell

A pro se petitioner appealed a workers’ compensation order awarding 25% permanent partial-total disability. The Appellate Division affirmed, substantially for reasons laid out by the Workers’ Compensation Judge, and only added a few comments.

In September 2011, the petitioner was driving a company car when she was involved in a motor vehicle accident. At the hospital, she was diagnosed with a head contusion and neck and upper back strains. After failing conservative treatment, she underwent an anterior cervical discectomy and fusion in January 2013. Subsequently, she returned to work for the employer, but continued to complain of back pain, limiting her ability to drive. She was found disabled by Dr. A. Taha from September 5, 2013, to November 15, 2013, for her back pain. The petitioner then became self-employed.

The petitioner underwent two independent medical exams, one with Dr. S. Lomazow in November 2014 and another with Dr. C. Mercurio in April 2015. Dr. Lomazow found no neurological permanency, whereas Dr. Mercurio found 10% permanent disability to the cervical spine and 5% for the lumbar spine.

In May 2015, the petitioner was involved in another motor vehicle accident—unrelated to her job—for which she claimed her cervical and lumbar spine pain was exacerbated and her headaches more severe. In April 2018, she was evaluated by her expert, Dr. V. Kulkarni, who opined the petitioner’s cervical and lumbar spines were aggravated by the 2015 accident and found 65% permanent disability for the cervical spine and 45% for the lumbar spine. Dr. Kulkarni could not apportion disability for the two accidents. The petitioner also saw Dr. C. Wong, who found 27.5% neurological disability from all causes and 25% psychiatric disability from all causes.

In February 2020, the petitioner, represented by counsel and with a Spanish interpreter, testified about her complaints after the two accidents. She noted she presently receives treatment from a psychologist, psychiatrist and pain management specialist. In March 2020, the parties waived testimony by the experts and stipulated their reports into evidence. Subsequently, due to the COVID-19 pandemic, the judge’s decision was delayed. In August 2020, the judge rendered an oral opinion, noting credibility issues with the petitioner and inconsistencies by Dr. Mercurio, leading the judge to find the petitioner was exaggerating some complaints.

The judge indicated that the petitioner was not evaluated by her experts until after the 2015 accident and that neither provided any apportionment of disability from the two accidents. The judge found 15% permanent disability for the cervical spine and 10% for the lumbar spine, for a total of 25% permanent disability, orthopedic in nature. He also noted the overall disability was greater due to the subsequent and unrelated 2015 accident. The petitioner appealed.

The Appellate Division noted substantial deference was given to factual findings and legal determinations unless “manifestly unsupported by or inconsistent with competent relevant and reasonably credible evidence so as to offend the interests of justice.” Based on same, the Appellate Division affirmed, largely for the reasons provided by the Judge of Compensation. In response to some of the petitioner’s arguments, the Appellate Division found no merit, including the argument that the judge did not consider her permanently disabled; her testimony was incorrectly translated; she was disabled from the 2011 accident, not the 2015 accident; her attorney did not present all proofs; and she had outstanding medical bills.

With regard to her argument that the 2011 accident caused her disability, not the 2015 accident, the Appellate Division noted the evidence “clearly showed” aggravation from the 2011 accident. Also, the Appellate Division indicated the Judge of Compensation considered the 2015 aggravation and correctly determined her disability from the 2011 accident. With regard to the translator argument, the Appellate Division confirmed this was argued for the first time on appeal—that she was “forced” to testify in Spanish and the translation did not match her actual testimony. However, the Appellate Division found no issue with the interpreter. Finally, the Appellate Division briefly addressed the outstanding medical bill argument, noting the judge was made aware of the Social Security award and third party settlements and that no outstanding bills were presented during trial.
 

What’s Hot in Workers’ Comp is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2022 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.

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