What's Hot in Workers' Comp
The New Jersey Appellate Division affirms two decisions: A win for each side.
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.
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