Under what circumstances will a preexisting condition trigger Second Injury Fund involvement in a permanent total disability claim?

Petitioner was employed as a service clerk with the respondent, Verizon, where she was responsible for fielding phone calls from customers, resolving service issues, and typing repair orders. On January 18, 2003, the petitioner was typing at work when she experienced pain in her right index finger. She returned to work the following day during which time she noticed swelling and numbness of her entire right-hand, with pain and burning radiating into her right-elbow. The petitioner came under the care of a neurologist and continued working with Verizon with increasing work restrictions. In or about November of 2003, the petitioner began experiencing intense pain and burning throughout her upper and lower extremities and was diagnosed with reflex sympathetic disorder ("RSD"). Unable to continue working, the petitioner left the employ of Verizon on January 22, 2004, at the recommendation of her neurologist. The petitioner filed a claim petition against Verizon alleging permanent injury to her neck, right-arm and right-hand, RSD, and psychiatric residuals from her January 18, 2003, injury. She also filed a Second Injury Fund Verified Petition alleging that she was permanently and totally disabled as a result of her January 18, 2003, injury in conjunction with certain preexisting psychiatric disability. The petitioner’s Fund Petition contained medical records evidencing the petitioner’s history of physical, sexual and verbal abuse at the hands of her mother, father and husband; panic attacks and bouts of depression dating back to 1996 for which she continued to be prescribed anti-anxiety and anti-depressant medication; and a 33-day leave of absence from Verizon for stress following a dispute with neighbors. The petitioner received further counseling for stress following the onset of her RSD in 2003. At trial, numerous testifying physicians confirmed the petitioner’s diagnosis of RSD and its causal relationship to her work injury of January 18, 2003. Verizon’s psychiatric expert testified as to the petitioner’s preexisting adjustment disorder and indicated that it contributed significantly towards her permanent and total disability. A number of other testifying physicians, however, including one who testified on behalf of Verizon, as well as several of the petitioner’s non-testifying treating physicians, found that psychological factors likely played no part in the petitioner’s RSD and concluded that it was not medically probable that the petitioner’s prior psychiatric disability had any significant impact on her compensable RSD. At the close of evidence, the judge of compensation rendered an opinion finding that the petitioner suffered a compensable work-place accident on January 18, 2003, which led to the development of RSD and psychiatric residuals, rendering her permanently and totally disabled. The judge of compensation further found that the neurological disability of RSD alone, without regard to the petitioner’s preexisting psychiatric disability, was totally and permanently disabling. Accordingly, Verizon was held solely liable for the petitioner’s disability, and the petitioner’s Fund Petition was dismissed. On appeal, Verizon argued that the petitioner’s total and permanent disability was due to a combination of her underlying preexisting psychiatric disability and her RSD and, as such, the Fund’s liability should be implicated. In affirming the judge of compensation’s ruling, the Appellate Division relied on Walsh v. RCA/General Electric Corp., 334 N.J. Super. 1 (App. Div. 2000). In Walsh, the court addressed the interplay between an injured worker’s preexisting condition and his subsequent permanent and total disability. The Walsh Court held that: "[T]he Fund is liable when a preexisting condition combined with a work-related accident or disease renders a person totally and permanently disabled. By the same token, N.J.S.A. 34:15-95(a) exempts the Fund from liability 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." Based on the Walsh ruling, the Appellate Division concluded that the petitioner’s RSD alone resulted in her permanent and total disability. As the judge of compensation reasoned, “When a compensable accidental injury is the result of aggravation of a preexisting condition, the Fund is only liable where the compensable accidental injury causes permanent partial disability, which in conjunction with the preexisting condition leads to permanent, total disability.” Even though the petitioner suffered from a prior psychiatric condition attributable to her abusive relationships, the Appellate Division concluded that there was ample evidence that her RSD alone had so profound an impact upon her ability to function as to render her permanently and totally disabled from any type of gainful employment. “While the record does clearly indicate a psychological component to Petitioner’s RSD,” the Appellate Division commented, “the whole of the medical expert testimony seems to suggest that psychological factors did not play a role in the genesis or progress of the illness.”

Case Law Alert - 2nd Qtr 2010