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What's Hot in Workers' Comp

Appellate Division Affirms 74% Disability Award in Custodian’s Workers’ Compensation Case

Brooks v. Rutgers, the State Univ. of N.J., No. A-1013-23 (August 7, 2025)

September 1, 2025

by Kiara K. Hartwell

In Brooks v. Rutgers, the State University of New Jersey, the Appellate Division upheld a workers’ compensation judge’s decision finding the petitioner 74% permanently disabled as a result of his custodial work for Rutgers. Rutgers had appealed, challenging the causal relationship between the petitioner’s job duties and his medical conditions, while the petitioner cross-appealed, arguing he should have been deemed 100% disabled. Deferring to the trial judge’s credibility determinations and reliance on expert testimony, the court affirmed the award, rejecting Rutgers’ claim of error and declining to disturb the judge’s assessment of disability.

By way of background, a full trial took place, including testimony from the petitioner, treating doctors and experts. The petitioner worked for Rutgers as a custodian between 2000 and 2013, before he was terminated for being physically unable to perform his duties. The petitioner then filed a workers’ compensation claim, alleging various injuries due to occupational exposure. While the parties resolved the pulmonary aspect of the claim, the petitioner filed a Verified Petition against the Second Injury Fund. 

Before working for Rutgers, the petitioner received two prior workers’ compensation claims, one for his low back (sprain with possible bulging discs) and one for his bilateral hands (bilateral carpal tunnel release). He also had prior surgeries on each knee decades earlier and noted learning disabilities. 

The petitioner testified to his job duties at Rutgers, including housekeeping, cleaning bathrooms, and hauling garbage, etc. While he admitted to prior health issues, he testified that his conditions worsened after working at Rutgers. He received injections to his low back and eventually underwent right knee replacement. The petitioner did not wish to give up his job at Rutgers, but a disability retirement was suggested and, eventually, was sent a letter of termination. He then applied for a disability retirement pension and Social Security Disability, receiving both after being found totally disabled.

Dr. Lamb testified that the petitioner could work in a modified duty capacity but felt uncomfortable releasing him to full duty due to his pain. Dr. Peacock testified as Rutgers’ expert, noting a lack of causal relationship between his job and his medical conditions. On the other hand, Dr. Horwitz, an expert in forensic medicine, testified for the petitioner, opining that his job duties caused the petitioner to be permanently and totally disabled. 

In November 2023, the workers’ compensation judge issued a written decision, finding the petitioner to be very credible, and relied on the doctors’ testimonies to find his job aggravated the petitioner’s pre-existing conditions. The judge found 74% disability, apportioning for the bilateral hands, bilateral legs, and lumbar spine with credit for pre-existing injuries to all except the left leg. The judge also dismissed the claim against the Second Injury Fund.

Rutgers appealed, arguing the judge erred in finding causal relationship. The petitioner cross-appealed, arguing the judge erred in not finding him totally disabled. 

The Appellate Division noted its scope of review was limited to determining whether the judge did not misuse her discretion and providing her deference in her assessment of the experts. The Appellate Division also indicated that Dr. Horwitz’s opinion was not a net opinion and that the judge did not only rely on his opinion. The Appellate Division found this case turned on the work specifically performed by the petitioner and that scientific data did not need to be presented in every case. Dr. Horwitz’s opinion was based on the findings in taking the petitioner’s testimony into account. The Appellate Division also deferred to the judge’s determination of the degree of the petitioner’s disability and affirmed the order. 

 

What’s Hot in Workers’ Comp, Vol. 29, No. 9, September 2025, is prepared by Marshall Dennehey 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 © 2025 Marshall Dennehey, 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

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The plaintiff filed a claim for damage as a result of Hurricane Ian. It claimed damages were over $24 million, but the carrier accepted partial coverage and paid $8,307.49 for secondary components. The carrier found hurricane damage to the building, but it was below the insurance policy’s $3.6 million deductible. The plaintiff sued for breach of the insurance policy. The carrier argued in a motion for summary judgment that plaintiff could not recover replacement cost value (RCV) because the property repairs had not been effectuated. The policy provided for RCV, but only after the repairs were completed. The carrier argued that because the repairs were not completed, the plaintiff was not entitled to RCV damages. The plaintiff argued the carrier could not withhold the actual cost value (ACV) due, which was the main allegation of the lawsuit, then fault it for not making the repairs to unlock the RCV. The United States District Court for the Middle District of Florida rejected the carrier’s argument, finding that when an insurer allegedly breached the policy by withholding coverage, it could not hide behind a repair-contingent provision to block the insured from RCV damages at trial. The court found the issue to be whether the contractual language designed to preclude certain coverage until after repairs are completed barred an insured from seeking those damages at trial when repairs were not complete. The court noted the Eleventh Circuit had not resolved this issue and neither side pointed to a definitive answer from the Florida Supreme Court. The court reasoned that it must look to the Sixth District Court of Appeal (6th DCA), which is the court which would have heard this case if it was in state court. The court noted the 6th DCA recently addressed this issue in Universal Prop. & Cas. Ins. Co. v. Rodriguez, 427 So. 3d 676 (Fla. 6th DCA 2026). The Rodriguez Court found that a breach of contract action is designed to adjudicate not only whether the contract was breached, but also evaluate the damages incurred had the breach not occurred, which the Rodriguez court found to be recovery of the RCV. This court also noted basic Florida contract principles compelled the same result, as a material breach frees the nonbreaching party to suspend its own performance and can demand the full benefit of its bargain, including RCV damages. Finally, the court found the distinction between a full denial and partial denial did not compel a different result. It found the policy required the carrier to acknowledge coverage and pay ACV for all covered damages, and the failure to do that is a material breach, entitling the insured to all of the damages available under the contract, which included the RCV.

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Appeals Court Reverses Trial Court Order Awarding Attorney’s Fees Due to Lack of Evidence to Support Fee Awarded

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