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What's Hot in Workers' Comp

The New Jersey Appellate Division affirms two decisions: A win for each side.

Pilone v. Cnty. of Middlesex, Docket No. A-1676-19, (Appellate Division, Decided Mar. 15, 2021) and Soto v. Exclusive Coachworks, Inc., Docket No. A-2331-19, (Appellate Division, Decided Apr. 12, 2021)

June 1, 2021

by Kiara K. Hartwell

In Pilone v. Cnty. of Middlesex, the petitioner appealed the dismissal of her workers’ compensation claim. The Appellate Division affirmed the Judge of Compensation’s decision, finding her injury was not compensable based on the premises rule. The petitioner, an assistant prosecutor, had an office located a block away from the prosecutor’s main office. The petitioner regularly walked between these two offices. On March 21, 2017, she met a colleague in front of the main office to walk to a donut shop to discuss a case and meeting with a victim-witness later that day. She fell on the sidewalk and was taken by ambulance to a hospital.

She filed a workers’ compensation claim, and the respondent confirmed she was an employee, but that her injury did not arise out of and in the course of employment. In a bifurcated trial, the judge first addressed if the injury was compensable. The petitioner argued it was common practice to meet colleagues outside the office to discuss cases and, in this case, she intended to grab some coffee, and she testified that she “probably” brought her file to discuss with her colleague. Her colleague testified they were meeting to discuss how to approach a victim-witness.

In a written decision, the judge found the petitioner’s injury was not compensable as it did not arise out of and in the course of employment. The petitioner appealed, contending the judge should have recognize the special mission exception to the “premises rule.”

The Appellate Division reviewed de novo as the petitioner only challenged the Judge of Compensation’s legal conclusions. The premises rule limits an employer’s liability to areas that the employer controls, such as by ownership, maintenance or exclusive use. It is a fact-sensitive inquiry to determine if an injury is compensable during ingress or egress to work. The petitioner argued her frequent travel between the offices, the courts, etc. was required by her job. However, in rejecting her argument, the Appellate Division noted the respondent had no control over the sidewalk where the petitioner fell. In addition, the Appellate Division pointed out the petitioner failed to prove the respondent directed her to have her meeting in the donut shop. The Appellate Division declined to contradict public policy that an employer is only liable for injuries that occur in employer-controlled areas.

In Soto v. Exclusive Coachworks, Inc., the respondent appealed an order by a Judge of Compensation, requiring it to pay for the petitioner’s knee replacement and temporary disability benefits. The Appellate Division affirmed, confirming the judge’s finding of a causal relationship between the work accident and the need for treatment based on Dr. Horowitz’s opinions.

On October 3, 2017, the petitioner was struck by a hammer on the inside of his left knee while employed by the respondent as an auto repairman. He saw Dr. Innella, and after obtaining an MRI, Dr. Innella recommended an arthroscopic procedure. The workers’ compensation carrier had the petitioner evaluated by two orthopedists, Dr. Nordstrom and Dr. Colizza. Both agreed arthroscopic surgery was necessary and causally related to the October 3, 2017, incident. Dr. Colizza performed the arthroscopic surgery in July 2018. The petitioner’s condition did not improve, and Dr. Colizza initially opined the work injury and surgery “accelerated” the need for a total knee replacement.

However, after review of prior medical records, he changed his opinion. The petitioner had undergone left knee surgery after a 1995 incident. He also suffered another injury to his left knee in 2009 as a result of a motor vehicle accident and had undergone an arthroscopy and partial meniscectomies in 2010. The petitioner saw Dr. Innella for a second time and in 2011, he opined the petitioner “may need a knee replacement.” After 2011, the petitioner had no treatment to his left knee until the October 3, 2017, incident.

In April 2019, a motion for medical and temporary benefits was filed, seeking the knee replacement surgery and temporary disability benefits. During the four-day trial, testimony was taken of the petitioner and two experts. On behalf of the petitioner, Dr. Horowitz testified that he evaluated him in January 2018 and February 2019. He stated that Dr. Innella’s opinion that the petitioner “may need a knee replacement” was not a definitive diagnosis. He also found the petitioner’s condition could have been aggravated in the nine months between the injury and surgery. After reviewing the records, he opined there was a causal relationship between the injury and need for total knee replacement.

On the other hand, Dr. Colizza testified for the respondent, noting his opinion changed on causation after reviewing prior medical records. Specifically, he opined that the petitioner’s need for the knee replacement was a result of his osteoarthritis and pre-existing injuries of 1995 and 2009. Afterwards, the judge issued an order for the respondent to provide the knee replacement and temporary disability benefits from the date of the surgery. In doing so, the judge noted the petitioner had an arthritic left knee at the time of the work incident, but that the employer takes an employee as he/she is found. The respondent acknowledged the 2017 incident resulted in a work injury and that its expert, Dr. Colizza, confirmed the nine months without treatment and surgery possibly aggravated the osteoarthritis. In finding Dr. Horowitz’s opinion more credible, the judge reasoned it was probable the work injury and nine months without treatment accelerated the need for the total knee replacement, though it was not the sole reason.

The respondent appealed, contending the judge should have weighed Dr. Colizza’s opinions more, as he was the treating doctor, rather than Dr. Horowitz’s. The Appellate Division disagreed, noting the Workers’ Compensation Judge is in the best position to weigh the credibility of experts as the trier of fact and the decision was well-supported by the record. In this case, both experts agreed the petitioner needed a total knee replacement; that as a result of the 2017 incident, he required arthroscopic surgery, at a minimum; and his underlying arthritis was exacerbated by the 2017 incident. The Appellate Division found no basis to disturb the judge’s finding that Dr. Horowitz was more credible than Dr. Colizza.

 

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 © 2021 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.

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.

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.