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Defense Digest

Appellate Division Affirms Increased Permanency Award Despite Petitioner’s Refusal of Recommended Surgery

Defense Digest, Vol. 32, No. 3, September 2026

September 30, 2026

by Gabrielle L. Winter

Key Points:
• A refusal of recommended treatment does not automatically preclude an increased permanency award on a re-opener claim.
• Objective medical evidence remains essential in re-opener claims. Petitioners must still prove a material increase in disability through objective findings, not subjective complaints.
• Credibility findings carry significant weight on appeal. The Appellate Division will defer to a workers’ compensation judge’s supported factual and credibility determinations, making them difficult to overturn.
• Respond promptly to requests for settlement authority to facilitate meaningful negotiations and minimize the risk of increased attorney’s fees and costs.

Can a petitioner obtain an increased permanency award while refusing recommended surgery? According to the Appellate Division's recent unpublished decision in Grasso v. Monmouth County Sheriff's Department, 2026 N.J. Super. Unpub. LEXIS 1029 (N.J. Super. App. Div. May 18, 2026), the answer is yes. The decision is important as respondents often cite a petitioner’s refusal of treatment as evidence that no material increase in disability has occurred.

Jason Grasso, a corrections officer employed by the Monmouth County Sheriff’s Department, injured his right great toe while attempting to break up an inmate altercation in 2016. After undergoing surgery in 2019, he resolved his claim in 2021 for an award of 27.5% permanent partial disability of the right foot. Less than one year later, Grasso filed an application for review or modification, alleging increased pain and disability. Subsequent MRI imaging showed degenerative changes within the toe, and the authorized treating podiatrist recommended a fusion surgery. Grasso declined the procedure, testifying that he believed the prior surgery had worsened his condition and that he feared the proposed fusion would further impair his ability to play with his children and continue working as a corrections officer.

At trial, petitioner’s orthopedic expert testified that objective MRI findings demonstrated progressive degeneration since the original award and that the condition would continue to worsen absent surgery. Respondent’s orthopedic expert acknowledged the progression of degenerative changes reflected on the MRI, but nevertheless concluded there had been no material worsening in permanent disability since the original award.

The workers’ compensation Judge found petitioner had established a material increase in disability supported by objective medical evidence and increased the award to 35% permanent disability of the right foot.

The Judge also assessed increased attorney's fees and costs against the employer after finding that the respondent failed to extend any settlement offer, which the Judge viewed as a failure to “negotiate in good faith”.

On appeal, the employer principally argued that petitioner should not receive an increased permanency award after refusing recommended surgical treatment. The Appellate Division rejected that argument and affirmed the increased award, emphasizing both the reasonableness of the petitioner’s decision and the deference afforded to factual findings made by the workers’ compensation judge.

Relying upon N.J.S.A. 34:15-23, Robinson v. Jackson, 184 A. 811, 812 (E. & A. 1936) and Lorenc v. Chemirad Corp., 179 A.2d 401, 412-413 (N.J. 1962), the court reiterated that an employee’s refusal of surgery does not automatically justify reducing or denying benefits. Rather, the inquiry is whether the refusal was reasonable under the circumstances.

Here, the workers’ compensation judge credited the petitioner's testimony regarding his increased functional limitations, his belief that the prior surgery had failed, and his reasonable fear that undergoing an additional surgery could jeopardize both his employment and quality of life. Because credibility determinations and factual findings are entitled to substantial deference on appeal, the Appellate Division declined to disturb those findings.

Finally, the Appellate Division affirmed the award of attorney’s fees and costs, concluding the judge did not abuse his discretion after finding respondent failed to “negotiate in good faith” by declining to make any settlement offer before trial. Although attorney's fees are commonly allocated on a 60/40 split, workers’ compensation judges have discretion to deviate from that practice based on the circumstances of the case.

Grasso reinforces several important principles governing re-openers and provides valuable guidance for evaluating permanency exposure.

First, objective medical evidence remains critical. Subjective complaints alone are not enough. Petitioners continue to bear the burden of proving, through objective medical evidence, a material increase in disability since the prior award. MRI findings, diagnostic studies, changes in physical examination findings, and documented functional loss remain significantly more persuasive than increased subjective complaints alone.

Second, a petitioner's refusal to undergo recommended surgery is not dispositive when evaluating increased permanency. Respondents should not assume that declining recommended treatment will automatically limit exposure. Rather, the relevant inquiry is whether the refusal was objectively reasonable under the circumstances.

Third, develop a complete record. Defense experts should be asked to address more than whether permanency has increased. When there has been no increase, experts need to explain why. When surgery has been recommended, experts should explain: whether the proposed procedure offers a reasonable likelihood of improving function; the expected risks and recovery; whether refusing surgery materially contributes to ongoing disability; and whether any worsening is attributable to the original work injury, normal aging, or unrelated degeneration. A well-developed expert opinion assists respondents in their arguments and also provides workers’ compensation judges with a fuller record when evaluating both the reasonableness of refusing treatment and whether a petitioner has met the burden of proving increased disability.

Fourth, the Appellate Division repeatedly emphasized the highly deferential standard afforded to compensation judges. Once a workers’ compensation judge makes supported credibility determinations and factual findings, reversal on appeal becomes difficult.

Finally, maintain active communication regarding settlement authority. While the Workers' Compensation Act does not define "good-faith" settlement negotiations, Grasso illustrates that a court may consider the absence of any settlement offer when exercising its discretion to assess attorney's fees and costs. Promptly providing settlement authority, even where the claim remains disputed, allows defense counsel to engage in meaningful negotiations and helps reduce the risk of a higher fee award.

In summary, Grasso serves as an important reminder that the focus remains on whether the petitioner has established a material increase in disability through objective medical evidence and whether the refusal of treatment is reasonable under the circumstances. The decision also highlights the substantial deference afforded to workers' compensation judges' factual and credibility determinations and demonstrates the importance of timely settlement authority to facilitate meaningful negotiations and reduce the risk of increased attorney's fees and costs.

Gabrielle is an Associate in our Mount Laurel, NJ office. She can be reached at (856) 414-6057 or GLWinter@mdwcg.com.

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