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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

Result

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Result

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blue facade of a hospital sign against blue sky

Result

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Thought Leadership

Pennsylvania Supreme Court Holds Self-Referral Prohibition Does Not Cover Prescriptions Written by Physicians with Ownership Interests in Dispensing Pharmacies

700 Pharmacy v. Bureau of Workers’ Compensation Fee Review Hearing Office (State Workers’ Insurance Fund); Nos. 97, 98, 99, 100, 101 MAP 2024; decided June 16, 2026; by Justice Mundy.   In this case, Drs. Miteswar Purewal and Shailen Jalali, treating physicians for workers’ compensation claimants, wrote prescriptions for various medications that were filled by 700 Pharmacy. The worker’s compensation insurer refused to pay for the prescriptions on the basis that they were illegal self-referrals under the Act. 700 Pharmacy subsequently filed fee review applications with The Bureau of Workers’ Compensation Medical Fee Review Office. At a fee review hearing, both physicians stipulated they had a financial interest in the pharmacy.  The physicians argued that the Anti-Referral Provision of the Act does not bar self-referrals on prescription drugs and pharmaceutical services, since the provision does not specifically identify prescription drugs. The Fee Review Hearing Officer rejected this argument and found that prescriptions for medications are prohibited under the “goods or services” language included in the provision. 700 Pharmacy appealed to the Commonwealth Court, and the court affirmed, agreeing with the Hearing Officer’s interpretation of “goods and services” as encompassing prescriptions. 700 Pharmacy appealed to the Supreme Court.  The Supreme Court reversed the decisions of the Hearing Officer and the Commonwealth Court, holding that the term “goods and services” in the Anti-Referral Provision of the Act did not include prescriptions. According to the Court, “goods and services” was not a catch-all, but simply explanatory as to the eight enumerated categories in the provision. The provision (Section 306(f.1)(3)(iii)) reads, in pertinent part: Notwithstanding any other provision of law, it is unlawful for a provider to refer a person for laboratory, physical therapy, rehabilitation, chiropractic, radiation oncology, psychometric, home infusion therapy  or diagnostic imaging, goods or services pursuant to this section if the provider has a financial interest with the person or in the entity that receives the referral. The Court said that if the General Assembly wanted to specifically include prescription drugs and pharmaceutical services in the Anti-Referral Provision, they would have done so. They pointed out that prescription drugs and pharmaceutical services were included by the legislature in Section 306 (f.1)(3)(vi) of the Act as to reimbursement, and claimed that their omission from the Anti-Referral Provision supports the conclusion that those services are not included in the Anti-Referral Provision’s self-referral prohibition.

News

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Thought Leadership

Perlmutter Provides Predictability for Punitive Damages Claims in Florida

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First, it held that a “trial court must consider the evidentiary showing by all parties at the hearing on the motion to amend, that is, evidence ‘in the record’ and evidence ‘proffered by the claimant.’”  376 So. 3d at 33. Second, the Fourth held that it “interpreted section 768.72(1) and (2) to require the trial court to make a preliminary determination of whether a reasonable jury, viewing the totality of proffered evidence in the light most favorable to the movant, could find by clear and convincing evidence that punitive damages are warranted.  Id. at 34 (underscoring in the original). In making these conclusions, the court cautioned trial courts that the “preliminary determination” analysis did not entitle the trial court to decide whether the evidence is clear and convincing and noted that the trial court should not weigh evidence and should not determine witness credibility. Id. The Florida Supreme Court accepted jurisdiction and answered the certified question in the negative. It quashed the decision below and remanded the case for application of the following standards: The trial court should consider only the evidence identified or proffered by the claimant; it should not entertain an evidentiary counter-submission from the opponent. The trial court should consider whether a reasonable person could conclude based on the claimant’s evidence, that the defendant committed “intentional misconduct” or “gross negligence” as defined in section 768.72(2) or section 768.72(3). The trial court must review the request for punitive damages in the context of the underlying claims. The trial court should not apply the clear and convincing standard of proof in reviewing the sufficiency of the evidence at the pleading stage. The trial court does not act as a fact-finder; the trial court must not weigh the claimant’s evidence—it cannot decide the truth of the matter. The trial court must consider the record evidence and the proffered evidence in the light most favorable to the plaintiff, but the allegations in the proposed amended complaint are not themselves evidence. Perlmutter, SC2024-0058 at 13-15 (emphasis added). In explaining these standards, the Court interpreted the text of the statute and compared it to a related statute which governs punitive damages in the nursing home context. The nursing home statute expressly calls for evidentiary submissions by “the parties” and expressly tells the trial court to determine whether there is a reasonable basis to believe the claimant could satisfy the “clear and convincing evidence” standard at trial. Id. at 17-18 (comparing the text of section 768.72(1), Florida Statutes, with section 400.0237, Florida Statutes). Without that express language in section 768.72, the statute could not be applied in the same manner. With these standards specially delineated for the trial courts, the Court is “confident that its interpretation of section 768.72(1) will not frustrate the effectiveness of the statute in accomplishing the Legislature’s textually evident purposes.” Id.  at 22 (cleaned up). This remains to be seen. While Perlmutter provides predictability and clarity for trial courts when reviewing the evidentiary submissions in support of a punitive damages claim, the decision will not likely impact the numbers of punitive damages motions filed. Rather, these new parameters will change the way claims are defended, reminiscent of a time when rulings on punitive damages were only subject to certiorari review and appellate courts were limited in reviewing procedural errors. This decision will likely deflate the level-playing field that Florida Rule of Appellate Procedure 9.130(a)(3)(G) addressed by allowing appeals of orders granting and denying punitive damages amendments. Further, Perlmutter may have impliedly created a call to action for the Legislature to amend section 768.72(1) in the same manner it amended section 400.0237 to allow the courts to analyze “admissible evidence submitted by the parties” and determine at a hearing whether there is a reasonable basis to believe the claimant at trial would be able to demonstrate by “clear and convincing evidence” that the recovery of punitive damages is warranted. Until then, defendants must adjust their strategies. To adapt to these new standards, defense practitioners will need to tailor their strategy for defending punitive damages claims since they can no longer submit a counter-proffer or urge a court to apply the clear and convincing standard at the pleading phase. Instead, defendants will need to attack the deficiencies in the claimant’s pleadings and proffer. If the trial court fails to serve as a gatekeeper, and does not apply the above standards, then defendants can pursue an interlocutory appeal under Rule 9.130(a)(3)(G). If a nonfinal appeal is taken, then defendants should move to stay any intrusive financial discovery while the appellate court analyzes the issues on appeal. Finally, defendants should utilize Florida Rule of Civil Procedure 1.510 to serve as a screening device to allow the trial court to analyze all evidence and prevent nonmeritorious punitive damages claims from proceeding to a jury.

Thought Leadership

Unanimous New Jersey Supreme Court Holds That Personal Emails of Public Employees and Officials are Subject to OPRA

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Portrait of Thomas Glassman. Text: Joining our Cincinnati Office as a Shareholder in the Casualty Department

News

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Result

Unanimous Verdict Obtained in a Medical Malpractice Matter in Bergen County, New Jersey