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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.

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U.S. Supreme Court Decides Key Issue Regarding Interstate Freight Broker Liability

Freight brokers are intermediaries.  They connect shippers of goods with trucking companies that transport those goods.  Freight brokers match a load of freight with a trucking company and oversee the logistics of the transportation. For a number of years there has been a division among the Federal Circuits regarding the potential liability of freight brokers when the trucking companies that they retain for interstate loads are involved in accidents.  At the center of this division was the Federal Aviation Administration Authorization Act of 1994 (FAAAA).  Some Federal Circuit Courts have held that state law negligent hiring claims against freight brokers were preempted by the FAAAA .  Other Federal Circuits Courts have held that even if preemption applied, the “safety exception” in the FAAAA saved state law negligent hiring claims from federal preemption.  On May 14, 2026, the U.S. Supreme Court addressed the conflict in Montgomery v. Caribe Transport II, LLC, et al, No24-1238. In that case freight broker C.H. Robinson selected Caribe Transport to haul an interstate load. The commercial truck driver employed by Caribe Transport allegedly caused an accident and the plaintiff, Montgomery, was seriously injured. Montgomery brought an action against the driver, Caribe Transport and C.H. Robinson. The allegation against C.H. Robinson was that it negligently retained Caribe Transport when it knew, or should have known, that it was an unsafe company. The Seventh Circuit Court of Appeals held that Montgomery’s claims against C.H. Robinson were preempted by the FAAAA. The plaintiff appealed to the U.S. Supreme Court.  The U.S. Supreme Court’s decision focused primarily on the safety exception in the FAAAA.  That provision provides that the FAAAA preemption “…shall not restrict the safety regulatory authority of a State with respect to motor vehicles.” C.H. Robinson argued, as freight brokers historically have, that their function was not “with respect to motor vehicles” because they do not own trucks or employ drivers. They are merely intermediaries, connecting entities who need freight moved with entities who can do that job. Therefore, C.H. Robinson argued that preemption applied, not the safety exception. The U.S. Supreme Court did not accept that argument. The Court focused on the meaning of the phrase “with respect to” in the safety exception. The Court held that it means “referring to”, “concerning” or “regarding”. Therefore, writing for a unanimous Court, Justice Barrett concluded that “[r]equiring C.H. Robinson to exercise ordinary care in selecting a carrier therefore “concerns” motor vehicles—most obviously, the trucks that will transport the goods. So, Montgomery’s negligent-hiring claim falls within the FAAAA’s safety exception, which saves it from preemption.” Justice Kavanaugh, in his concurring opinion, noted the effect this ruling may have on freight brokers and their insurers throughout the country: Importantly, the Court's decision today should not be read to mean that brokers will routinely be subject to state tort liability in the wake of truck accidents. As even plaintiff's counsel stressed, brokers should be able to successfully defend against state tort suits if the brokers have acted reasonably and arranged transportation with reputable trucking companies. Tr. of Oral Arg. 27-29. In plaintiff's counsel's words, the brokers "just have to hire carriers that actually have a reasonable policy," and "the broker is not going to have a problem if it's asking the hard questions of the carrier." Id., at 42, 45. In addition, the proximate-cause requirement in typical state tort law should help protect brokers from excessive liability. Id., at 25. That said, the brokers rightly caution against naivete. In the real world, as the brokers forcefully respond, state tort law can be unpredictable, and the costs to brokers of litigation and insurance may be significant even when brokers prevail in lawsuits. Moreover, the costs of litigation and insurance, as well as the costs of brokers' conducting more substantial inquiries into trucking companies, will cascade through the economy and be paid in part by American consumers in the form of higher prices. The concerns expressed by the brokers are legitimate and weighty. The key point here is that freight brokers can no longer claim they are protected from negligent retention claims by the FAAAA (in cases involving interstate transportation). The challenge will be to determine what is considered ”reasonable efforts” used by brokers when retaining transportation companies. 

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PA Middle District Dismisses Claims Against School District and its Superintendent, Principal, Special Education Director, and Classroom Teacher

A five-year-old special education student was enrolled in the Wyoming Valley West School District and attended the State Street Elementary School during the 2024-2025 school year. The student refused to clean up classroom toys at dismissal. When his teacher allegedly grabbed him by the wrist to walk him back to his seat, the student dropped to the floor and began crying. The teacher then allegedly grabbed the student by the ankle and dragged him across the floor. Following an investigation, criminal charges were not advanced by the county DA, and the school permitted the teacher to return to the classroom. The student’s parents sued, lodging thirteen legal counts under both state and federal law, which sought monetary damages from the teacher, the school district, the superintendent, the principal, and the director of special education. The plaintiff’s 42 USC 1983 claims were dismissed as to the school district for failure to allege a policy or custom violation, and the failure to alleged deliberate indifference in the failure-to-train context. As to the superintendent, building principal, and special education director, the Section 1983 claims were also dismissed for failure to allege personal involvement on the part of the individuals. Regarding an equal protection claim asserted against all defendants, the motion to dismiss was also granted for a failure to advance a plausible equal protection claim, holding that “plaintiffs' single-act allegations do not include a factual basis to even infer that the act was motivated by discriminatory animus rather than some other non-discriminatory impulse.” The court further dismissed the plaintiff’s negligence-based claims including negligence against the teacher and district administrators, NIED, and vicarious liability under the Political Subdivision Tort Claims Act (PSTCA). The federal claims under the IDEA, Section 504, and the ADA were also dismissed in various respects. The IDEA claim was dismissed against all defendants with prejudice for failure to exhaust administrative remedies. The Section 504 claims against the individual defendants were also dismissed with prejudice, as districts, not individuals, are the recipients of federal funds under Section 504. However, the Section 504 and ADA claims were dismissed without prejudice as to defendant Wyoming Valley West, and the plaintiff was permitted leave to amend.

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