What are the statutory criteria for imposing Second Injury Fund liability in a workers’ compensation matter?

On February 4, 1999, the petitioner, the director of construction for the respondent, was seriously injured when he was involved in a motor vehicle accident which occurred during the course of his employment. As a result of this accident, he sustained a disc herniation at L4-5 requiring three surgical procedures, including a hemi-laminectomy with bilateral nerve root decompression and fusion, re-exploration and posterolateral fusion with implementation of a bone growth stimulator and subsequent removal of the bone growth stimulator. The petitioner underwent lengthy courses of physical therapy, pain management and psychological counseling for severe depression and anxiety. Despite his extensive treatment, the petitioner was left with chronic L5-S1 radiculopathy and bilateral foot drop, as well as constant pain in his back, legs, right foot and left thigh. He was unable to ambulate without a cane and required daily pain medications that adversely impacted his cognitive functioning and general mental state. On April 15, 2005, the petitioner filed a claim with the Division of Workers' Compensation. Thereafter, the petitioner filed a verified petition with the Second Injury Fund (the "Fund"), alleging that he was permanently and totally disabled as a result of his work-related motor vehicle accident in combination with certain pre-existing disabilities, namely, a herniated disc at L5-S1 for which he underwent surgery in 1994, as well as post-traumatic stress disorder ("PTSD") relating to his service during the Vietnam War. At trial, the judge of compensation acknowledged the petitioner's pre-existing low back pathology and PTSD but found that neither condition, according to the petitioner’s own testimony, limited his ability to work. Further, none of the medical experts who testified on behalf of either the petitioner or the respondent were able to unequivocally establish that the petitioner’s prior low back injury or PTSD resulted in any pre-existing partial permanent disability as is required to implicate the Fund. As the judge of compensation noted, the record was devoid of evidence establishing that the petitioner's pre-existing conditions caused a "material lessening of [his] working ability or an impairment in his carrying on the ordinary pursuits of life." Accordingly, the judge of compensation found that the petitioner was permanently and totally disabled as a result of his February 4, 1999, motor vehicle accident alone and dismissed the petitioner's claim against the Fund. The respondent appealed. In affirming the judge of compensation's ruling, the Appellate Division relied on the statutory criteria for imposing Fund liability as set forth in N.J.S.A. 34:15-95. In relevant part, N.J.S.A. 34:15-95 provides that: "[C]ompensation payments . . . shall be made to persons totally disabled, as a result of experiencing a subsequent permanent injury . . . when such persons had previously been permanently and partially disabled from some other cause; provided, however, that no person shall be eligible to receive payments from the Second Injury Fund . . . if the disability resulting from the injury caused by the person's last compensable accident in itself and irrespective of any previous condition or disability constitutes total and permanent disability." Analyzed in light of these principles, the Appellate Division found that the judge of compensation's findings and conclusions were based on sufficient credible evidence in the record and by applicable law. In examining the record, the Appellate Division found compelling the petitioner's own testimony describing his working ability before the compensable accident. In relevant part, the petitioner testified that following his low back surgery in 1994, he had returned to work without any difficulty and for several years thereafter travelled 100,000 miles per year and worked 55 to 70 hours per week, conducting inspections of construction sites which required climbing and other strenuous activities. The petitioner testified that he remained an avid outdoorsman, both hunting and fishing routinely. The petitioner also testified that despite suffering from PTSD from the Vietnam War, he took no medication, nor did his PTSD cause him either mental or physical impairment at work. As the Appellate Division emphasized, none of the medical experts who testified at trial could give an opinion that there was either a material lessening of the petitioner's working ability or an impairment in carrying on his ordinary pursuits of life before the compensable automobile accident of February 4, 1999. To the contrary, the petitioner’s own testimony suggested that his pre-existing injuries had no impact on his ability to function normally either at home or work. Consequently, the Appellate Division concluded that the judge of compensation was correct in finding that the respondent failed to establish that either the petitioner’s pre-existing low back injury or PTSD resulted in any partial permanent disability requiring an apportionment of liability to the Fund.

Case Law Alert - 2nd Qtr 2011