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Burdens of Proof and the New Jersey Workers’ Compensation Second Injury Fund

June 1, 2017

Defense Digest, Vol. 23, No. 2, June 2017

By Robert J. Fitzgerald, Esq.*

Key Points:

  • The Second Injury Fund pays permanent-total disability benefits in certain workers’ compensation cases.
  • These benefits are not applicable when the final disabling medical condition is not from a work injury.
  • The petitioner always has the burden of proof in proving entitlement for Second Injury Fund Benefits.


The Appellate Division recently revisited a petitioner’s burden of proof for Second Injury Fund benefits in McLaughlin v. Active Disposal Service, Inc., 2017 N.J. Super. Unpub. LEXIS 173 (App.Div. Jan. 26, 2017). The petitioner in McLaughlin received a permanency award as the result of injuries he sustained to his left leg during a work-related accident that occurred in 1999. Additional injuries were suffered in 2000, and the petitioner received another partial-total award for lumbosacral and cervical injuries.

In 2005, the petitioner suffered injuries to his right arm as a result of a third work-related accident and filed a new petition. During the pendency of the 2005 claim petition, the petitioner filed an application to modify the 1999 and 2000 awards, claiming an increase in his permanent disability to his left leg and lumbar and cervical spines. Finally, in 2008, he filed an application for Second Injury Fund benefits, claiming his last compensable accident—in 2005—rendered him permanently and totally disabled.

The petitioner’s three cases were the subject of a consolidated trial before a Workers’ Compensation Judge, who heard testimony from the petitioner and his medical experts, Dr. Vijaykumer Kulkarni and Dr. Cheryl Wong. The respondent presented Dr. Robert Morrison. Following the hearing, the judge issued a detailed written decision in which he concluded the petitioner failed to sustain his burden of establishing an entitlement to a modification of the 1999 and 2000 awards.

The judge also found that the petitioner was not entitled to Second Injury Fund benefits because he “[b]ecame totally disabled as a result of his diabetic condition, not his lumbar, cervical, left knee or right elbow injuries.” Specifically, the judge noted that the petitioner was unable to continue working because he took insulin for his diabetes. Therefore, taking insulin barred his use of the commercial driver’s license that was essential to the performance of his job duties.

In his appeal, the petitioner argued that the judge’s rejection of his request for modifications of the 1999 and 2000 awards was not supported by credible evidence. However, the Appellate Division noted that the judge was presented with voluminous and conflicting testimony and evidence concerning the injuries that were the subject of the awards and their alleged progression. There was sufficient credible evidence supporting the judge’s determination that there was no increase in permanent disability to the petitioner’s left leg, for which he received the 1999 award, or to his lumbar or cervical spines, for which he received the 2000 award. The Appellate Division added that, giving due weight to the judge’s expertise and opportunity to view the witnesses and evidence, there was sufficient credible evidence supporting these determinations.

For the same reason, the Appellate Division also affirmed the denial of the petitioner’s application for Second Injury Fund benefits. Here, the judge found that the petitioner became totally disabled, but not as the result of a work-connected action or occupational illness but, rather, due to his diabetic condition. The Appellate Division noted that the burden of proof was on the petitioner to prove entitlement to Second Injury Fund benefits and that the petitioner failed to meet his burden.

As a side note, the Appellate Division emphasized that, for the first time on appeal, the petitioner sought reimbursement for medical expenses he incurred for treatment received at a Veteran’s Administration hospital. Citing long established precedent, the Appellate Division declined to consider this argument because it was not properly raised before the Division and did not involve jurisdictional or public interest concerns. Zaman v. Felton, 98 A.3d 503,519 (N.J. 2014); see also Nieder v. Royal Indem. Ins. Co., 300 A.2d 142, 145 (N.J. 1973).

While this case does not present any new concepts for Second Injury Fund benefits, it does remind us of the petitioners’ burden of proof for such benefits. In order for a petitioner to be eligible for these benefits, one or more pre-existing injuries or conditions must combine with a last compensable accident to render an individual permanently and totally disabled. If the last disabling condition was not the compensable work injury/condition, as in the McLaughlin case, then Second Injury Fund benefits are not applicable. Similarly, if the last compensable accident by itself renders an individual permanently disabled, regardless of the amount of prior disability, the Second Injury Fund is also not applicable. In practice, the Second Injury Fund considers a wide range of pre-existing conditions in evaluating entitlement to benefits. However, it also aggressively defends against those cases that do meet this basic criteria. Second Injury Fund claims are often the most complicated and extensive claims to litigate or resolve given the complexity of the statute. Employers often prepare to defend these anticipated claims long before the Second Injury Fund Petition is filed. If you have a severe injury case and you think that a claim for Second Injury Fund or total disability benefits may be down the road, speak with your defense counsel immediately. A little preparation now can save a lot of future benefit exposure.

*Bob is a shareholder in our Mt. Laurel, New Jersey office. He can be reached at 856.414.6009 or


Defense Digest, Vol. 23, No. 2, June 2017. Defense Digest 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. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2017 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact

Affiliated Attorney

Robert J. Fitzgerald
(856) 414-6009


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