Appellate Division Affirms Award of Medical and Temporary Benefits, Rejects Employer’s Res Judicata and Collateral Estoppel Arguments in Workers’ Compensation Surgery Dispute
The respondent, Andersen/Silver Line Windows, appealed a decision that granted the petitioner’s motion for medical and temporary benefits. On July 16, 2020, the petitioner was injured lifting glass while working for the respondent. He was referred by his primary care doctor to a specialist, who performed two emergent cervical spine surgeries. As such, the respondent denied compensability.
The petitioner filed a motion for medical and temporary benefits in November 2020. After a plenary hearing, the workers’ compensation judge found the first surgery in October 2020 (C5-6 anterior decompression and fusion) compensable, but not the second surgery in April 2021 (C2-T1 posterior fusion). Both experts agreed that the October 2020 surgery was necessary and a result of the work incident. Therefore, the court awarded temporary disability benefits.
However, the experts disagreed on the necessity of the second surgery. The petitioner’s doctor indicated it was necessary due to persistent problems. The respondent’s expert opined it was related to the petitioner’s pre-existing degenerative conditions. The judge found the respondent’s expert more credible, especially noting the second surgery was not emergent, and, at that point, the petitioner should have allowed the respondent to take over control.
The October 2023 decision directed the respondent to authorize the petitioner to return to his doctor to provide all recommended treatment, pay for the first surgery and provide temporary disability benefits. The petitioner’s doctor then recommended a third surgery (C7-T1 anterior discectomy and fusion). The respondent opposed, noting the second surgery was not compensable. The petitioner moved to enforce, and trial was held before a second judge.
Both doctors confirmed the third surgery was medically necessary. Thus, the only issue was whether it was related to the first or second surgery. The petitioner’s doctor opined the third surgery would revise the first surgery. However, the respondent’s expert opined the third surgery was to address the failed fusion from the second surgery and that there was no issue at C7-T1 at the time of the incident. As such, the third surgery was not causally related. During cross-examination, he did concede that extending the anterior fusion would provide the petitioner with better stability.
The petitioner also testified as to his limitations and his worsened condition since the accident and two surgeries. The judge found all of the witnesses credible but gave the petitioner’s doctor more weight as he had evaluated the petitioner multiple times. The judge also found the respondent’s expert not credible because his resume omitted that he participated in a publication targeting adjusters and defense attorneys.
The respondent argued the October 2023 ruling was re judicata and collaterally estopped the petitioner from arguing that the second surgery was compensable. However, the judge rejected this argument, noting the respondent failed to show that the third surgery was completely unrelated to the incident.
The respondent appealed. After reviewing the standard of review, the Appellate Division affirmed. A comment was added to address the res judicata and collateral estoppel arguments, noting they did not apply because the issue in the second trial was different than the prior trial.
What’s Hot in Workers’ Comp, Vol. 29, No. 11. November 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.