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What's Hot in Workers' Comp

The Appellate Court affirms denial of petitioner’s motion for treatment, finding she failed her burden to prove the treatment would relieve her symptoms and improve her ability to function.

Martone v. Cmty. Med. Ctr., No. A-2739-19 (App. Div. Dec. 29, 2021)

February 1, 2022

by Kiara K. Hartwell

The petitioner appealed a workers’ compensation order denying her motion for medical treatment. The Appellate Division affirmed, noting the workers’ compensation judge’s findings were supported by the record.

On November 15, 2013, the petitioner fell and injured her right knee. Between March 2014 and February 2015, the petitioner underwent three procedures to her right knee, including a total right knee replacement, a bilateral knee manipulation under anesthesia and a right knee arthroscopy. She was unable to continue working after some time due to ongoing pain and medication. She also treated with Dr. J. Yanow, a pain management specialist, from August 2015 to January 2016 after unsuccessful anesthetic blocks to several nerves.

The petitioner saw Dr. Z. Post for a second opinion exam. Dr. Post took x-rays and found her knee replacement was well-placed. Because the petitioner continue to complain of pain, she underwent a right revision of the total knee replacement, scar revision and manipulation under anesthesia by Dr. A. Mark, the authorized surgeon. This did not alleviate her pain, so she underwent a revision of the tibial component of the total knee replacement and synovectomy in December 2016.

She also saw other orthopedic surgeons for independent exams, each noting she was a poor candidate for further surgeries due to multiple failed surgeries. The petitioner saw another pain management specialist in February 2017, who found her to be manipulative and “volitive” toward obtaining high amounts of pain medication. On April 21, 2017, Dr. Mark discharged the petitioner, noting he could not offer any further curative treatment.

In August 2017, the petitioner returned to Dr. Post, who had not reviewed Dr. Mark’s notes or operative reports from 2016. Dr. Post found the petitioner would be a candidate for revision of the right knee, and Dr. Alan Nasar, who evaluated the petitioner in May 2018, agreed. The petitioner then filed a motion for medical benefits in October 2018, using Dr. Nasar’s report. Due to the extensive history and treatment, the workers’ compensation judge ordered a one-time need-for-treatment exam. As such, Dr. M. Sidor evaluated the petitioner in March 2019 and found no need for additional treatment. 

The petitioner returned to Dr. Post in April 2019, who again found her to be a candidate for total right knee reconstructive surgery. The claimant used his report to file an additional motion. The employer opposed, noting the petitioner was at maximum medical improvement per Dr. Mark and Dr. Sidor. All three doctors testified at trial.

Dr. Post stated that, while he was willing to operate, he could not guarantee the surgery would cure the petitioner and admitted it could worsen. Dr. Mark testified there was a low chance of success for further surgeries as the petitioner had no evidence of problems with her artificial knee, had arthrofibrosis and pain management was not effective. Dr. Sidor opined that further surgery would likely result in bone loss, that there could be possible infection and that she could be worse afterwards.

In the subsequent opinion, although the Workers’ Compensation Judge found all three doctors were credible, he disagreed with Dr. Post’s opinion that the location of the implant was the cause of the pain. Instead, the judge agreed with Dr. Sidor’s opinion that her pain was due to fibrosis and noted risk concerns with another surgery. The judge also accepted Dr. Mark’s opinion that further surgery would create additional arthrofibrosis, contribute to more pain and inability to move. He entered an order denying the motion for medical treatment, as he did not feel there was “any reasonable likelihood surgery would help.”

The petitioner appealed, arguing the judge improperly denied her treatment that Dr. Post recommended, despite finding him credible. However, the Appellate Division disagreed, finding the petitioner failed her burden to prove the treatment would “probably relieve petitioner’s symptoms and thereby improve [her] ability to function.” Hanrahan v. Twp. of Sparta, 284 N.J. Super. 327, 336 (App. Div. 1995). In addition, the petitioner had undergone six right knee procedures, which did not help, and Dr. Post, along with various other doctors, found her pain was out of proportion. The petitioner also contended the judge erred by giving greater weight to Dr. Sidor than Dr. Post. The Appellate Division found the judge reviewed the records and expert testimonies in finding the petitioner had arthrofibrosis, diagnosed by all three doctors. This made for potential poor success in future surgery and recovery.
 

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.

Firm Highlights

Thought Leadership

WCJ Improperly Refused to Conduct C&R Hearing and Erroneously Required Settlement of All Pending Petitions

In this case, the claimant sustained injuries in the course and scope of her employment as a registered nurse. The employer acknowledged the injury by a Notice of Compensation Payable (NCP).  Subsequently, a Workers’ Compensation Judge (WCJ) expanded the description of injury. The employer then filed a Termination Petition, alleging the claimant was fully recovered from the injuries. Providers filed Utilization Review (UR) Petitions, challenging UR determinations finding their chiropractic treatment to be not reasonable and necessary. A settlement of the claim was eventually reached, and the employer filed a Petition to Seek Approval of a Compromise and Release (C&R) Agreement. The C&R outlined that the agreement fully resolved all future workers’ compensation claims except for the termination and UR Petitions. Briefs were filed and one day later, the WCJ issued an Interlocutory Order which stated if instructions were not followed regarding filing of a C&R, a settlement hearing date would not be given. The employer complied with the order, and filed the C&R. Subsequently, the WCJ notified the parties that the C&R must resolve all issues in the petitions, or would not be entertained. A settlement hearing was never held, and the WCJ then issued a decision, granting the Termination Petition and dismissing the UR Petitions. The WCJ also said that the Petition for Approval of a C&R was dismissed without prejudice, as the issues in the Termination and UR Petitions went to a decision. The claimant appealed to the Workers’ Compensation Appeal Board (Board). The Board granted the claimant’s appeal, finding that the WCJ violated the requirement of Section 449 that an expedited hearing be held when a Petition for Approval of a C&R is filed.  The Board further held that it was legally incorrect for the WCJ to insist that the C&R resolve all issues raised by the pending Petitions. The Board remanded the case to a new WCJ, and Employer appealed to the Commonwealth Court. The court affirmed the Board and held that the WCJ erred, as a matter of law, by refusing to hold an expedited hearing within 30 days, once the Petition for Approval of a C&R was filed.  The court noted that the language of Section 449(b) is mandatory, and a settlement hearing is not discretionary or dependent on a party’s separate request for a stay, or whether the record has been closed. The court further rejected Employer’s argument that the case should not be remanded to a new WCJ for a new decision on the termination and and UR Petitions, as the Board passed no judgment on whether the C&R Agreement resolved the termination and UR Petitions, and left it for the WCJ to decide in connection with the Petition for Approval of a C&R.

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Result

Statutory Employer Immunity Upheld

In this construction accident case that resulted in a $5 million verdict, the Supreme Court of Pennsylvania upheld the Statutory Employer Doctrine, which immunizes general contractors and other contractors on construction sites when certain elements are satisfied.

Result

$1.09 Billion Products Liability Verdict Overturned

In this products liability crashworthiness case, the Superior Court of Pennsylvania reversed a Philadelphia jury verdict of $1.09 billion, the largest verdict ever overturned by a PA appellate court.  The court ordered a new trial based on deficient jury instructions, clarified important aspects of crashworthiness law, and confirmed that so-called standard jury instructions may be incompatible with Pennsylvania law. 

Event

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Thought Leadership

Appellate Division Reversed Trial Judge's Orders Granting a Plaintiff's Section 40 Summary Judgement Motion

In Haskins v. Casey, et al., the plaintiff Dane Haskins worked for defendant Ekornes, Inc. (Ekornes) as a material handler. In June 2021, he filed a workers’ compensation claim petition for benefits due to a left shoulder injury in December 2020. He then resolved his workers’ compensation claim in November 2022 under an Order Approving Settlement. In January 2023, he filed a lawsuit against Ekornes and later amended to add additional claims and name other defendants, including the Ekornes president, chief financial officer, and director of human resources. In May 2025, a second amended complaint alleged that after he filed the workers compensation claim, Ekornes placed him on leave under the Family and Medical Leave Act (FMLA), denied his request for a work accommodation, and ultimately terminated him from employment in December 2021. He pleaded several causes of action asserting violations of the New Jersey Law Against Discrimination (LAD) as well as fraudulent concealment and wrongful discharge. The plaintiff then moved for partial summary judgment, seeking an order enforcing Section 40 of the Workers’ Compensation Act (WCA) as well as summary judgment on his FMLA claims. The defendants opposed the motions and cross-moved for summary judgment on the FMLA claims. After arguments, the court entered an order in December 2025, denying the FMLA motion and cross motion and granting the plaintiff’s Section 40 motion. In the order, the court permitted the plaintiff to pursue compensatory damages at trial in connection with the bodily injury claim. The court also allowed the plaintiff to present evidence of any workers’ compensation benefits to support his claim. The court then denied the defendant's subsequent reconsideration motion in February 2026. The defendants that appealed the Section 40 aspect of the orders. In reviewing the appeal de novo, the Appellate Division rejected the plaintiff's argument that the work-related injury arose out of his discrimination claims under the LAD. The plaintiff argued that he should be able to pursue a personal injury claim as a part of his LAD claim, noting that the employer’s compensation carrier would be able to assert a lien against any recovery against his LAD claims. In distinguishing between the Richter vs. Oakland Board of Education, 246 N.J. 507 (2021) case, in which the Court found that any recovery would be subject to a Section 40 lien as the allegation was that the defendants failed to accommodate her pre-existing diabetic condition, which resulted in bodily injury. In this case, the Appellate Division indicated that there was no bodily injury caused by Ekornes’ failure to accommodate a pre-existing disability. Rather, the shoulder injury was a result of a workers compensation claim, for which he received appropriate benefits previously. The Appellate Division noted that if the plaintiff was successful in proving his LAD claims, he would be entitled to damages caused by the discriminatory discriminatory conduct such as lost wages and emotional distress damages and that there will be no Section 40 lien. In addition, the Appellate Division disagreed that the petitioner could present evidence about and seek damages for his shoulder injury at trial. Although the petitioner argued that a defendant who retaliated against an employee for filing a workers’ compensation claim should not benefit from the exclusivity provision of the WCA, the Appellate Division noted that the Legislature did not include this type of scenario in the statue nor did any of the case law recognize this type of claim as a remedy. As such, the Appellate Division reversed the December 2025 order granting the the plaintiff’s Section 40 summary judgment motion as well as the February 2026 reconsideration motion order. The Appellate Division noted that they did not intend to limit the plaintiff in his pursuit of his other claims on under the LAD, FMLA, and workers’ compensation retaliation causes of action.

Result

$19 Million Medical Malpractice Verdict Overturned

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Thought Leadership

Commonwealth Court Reaffirms the Constitutionality of Act 111's IRE Provisions

In this case, the claimant sustained a work injury of January 6, 1994, which was acknowledged by Notice of Compensation Payable (NCP). After the claimant’s receipt of 104 weeks of temporary total disability benefits, the employer filed a Request for an Impairment Rating Examination (IRE). The IRE was performed in May 2023 and the IRE physician found that the claimant had a 5% whole person impairment, under the AMA Guides. The employer filed a Petition based on the IRE results, and the Petition was granted by the WCJ. During litigation, the claimant argued that the IRE provisions of Act 111 (Section 306(a.3) of the Act) were not applicable to her injury, since it predated June 24, 1996, the date Act 57 went into effect, and that the IRE provisions were unconstitutional. The Workers’ Compensation Judge (WCJ)) granted the Petition and the Board affirmed. On appeal to the Commonwealth Court, the claimant argued that Act 111 violated the nondelegation doctrine and that its retroactive application to the claimant’s injury was unconstitutional. The court rejected the arguments on the basis that they had already found the same arguments without merit in multiple, prior cases. The court also addressed an argument made by the claimant that Act 111 was procedurally defective under the Pennsylvania Constitution because it was only considered on two days in each House after having undergone amendments and reassignments. The court noted that the Pennsylvania Constitution requires every bill to be considered on three different days in each House. The claimant maintained that, according to the legislative history, the bill did not receive three separate days of consideration from each House when it was assigned a new bill number. The court pointed out, however, that the bill number, H.B. 1840 remained constant and was considered on three occasions by the House. Further, the court concluded that minor amendments to the bill were germane to its original subject, which was to modify the Act’s IRE process, in accordance with Protz II.