Subsequent employer held liable for aggravation: the Singletary case
Friday, May 08, 2009 Filed in: New
Jersey|
Workers
Compensation| Causation|
Appellate
Practice| Trial
Proofs|
Self
Insured
This entry discusses a recent Appellate decision
where the court found that subsequent employment DID
aggravate a prior comp injury. Contrast this decision
with
Zrno, another recently decided case on
'subsequent' injury.
The petitioner in Singeltary v. WaWa, A-5723-07T3, App. Div. decided April 23, 2009 (published version not available as I blog this) worked in a convenience store for 20 years. In 1992 and 2001 she was injured in work-related slip-and-falls involving her cervical spine. At the time of the incidents, AIG was the carrier. In 2002, WaWa became self-insured for workers' compensation purposes in New Jersey. In 2006 the claimant was told she needed a cervical fusion surgery.
The question was: Who was to pay? AIG or WaWa?
The petitioner in Singeltary v. WaWa, A-5723-07T3, App. Div. decided April 23, 2009 (published version not available as I blog this) worked in a convenience store for 20 years. In 1992 and 2001 she was injured in work-related slip-and-falls involving her cervical spine. At the time of the incidents, AIG was the carrier. In 2002, WaWa became self-insured for workers' compensation purposes in New Jersey. In 2006 the claimant was told she needed a cervical fusion surgery.
The question was: Who was to pay? AIG or WaWa?
The date of manifestation (2006) clearly falls during
the 'self insured' period. The last incident
involving the cervical spine (2001) clearly falls
into the period where AIG was 'on the risk.' (Also
note the claimant received an award of 45% PPT with a
credit of 30% for the prior 1992 cervical spine
injury in 2003).
A trial on causation was held. The claimant's neurosurgeon testified that "Singletary's work duties from January 2002 forward aggravated and accelerated the underlying pathology at C4-5 resulting in her need for surgery." The Doctor also testified that if the claimant had stopped working or taken a sedentary job after the 2001 accident, she probably would not have needed surgery.
The Judge of Compensation ruled that the work duties from 2002 onward had indeed worsened the claimant, and that WaWa (as a self insured) was responsible for her medical bills, compensation for time lost from work, and award of permanent disability.
The Appellate Panel affirmed the Judge's decision, stating that there was credible medical evidence int he record to support the finding that the injuries were causally related to the petitioner's work after 2002. The Panel specifically stated "this is not a case where the subsequent employment 'merely cause[d] pain from pre-existant conditions to be manifested' . . . rather, Singletary suffered additional [new] physical insult every day she worked at WaWa due to the heavy lifting and other stressful tasks required by the job."
This decision has similar facts but reaches the exact opposite conclusion as the Court did in Zrno, discussed in my blog. What was the difference/ Two things: (1) First, the claimant in Singletary had an easier time showing a worsening because she was actually getting invasive surgical treatment where the claimant in Zrno was taking Tylenol every other week; and (2) the medical proofs in Singletary are so much more compelling. There is a big difference when a credible, treating neurosurgeon (like Dr. Dellasotta in the Singletary case) is on the stand providing an opinion of causation as opposed to hired experts (always the same ones, it seems) trotted out in the Zrno case.
A trial on causation was held. The claimant's neurosurgeon testified that "Singletary's work duties from January 2002 forward aggravated and accelerated the underlying pathology at C4-5 resulting in her need for surgery." The Doctor also testified that if the claimant had stopped working or taken a sedentary job after the 2001 accident, she probably would not have needed surgery.
The Judge of Compensation ruled that the work duties from 2002 onward had indeed worsened the claimant, and that WaWa (as a self insured) was responsible for her medical bills, compensation for time lost from work, and award of permanent disability.
The Appellate Panel affirmed the Judge's decision, stating that there was credible medical evidence int he record to support the finding that the injuries were causally related to the petitioner's work after 2002. The Panel specifically stated "this is not a case where the subsequent employment 'merely cause[d] pain from pre-existant conditions to be manifested' . . . rather, Singletary suffered additional [new] physical insult every day she worked at WaWa due to the heavy lifting and other stressful tasks required by the job."
This decision has similar facts but reaches the exact opposite conclusion as the Court did in Zrno, discussed in my blog. What was the difference/ Two things: (1) First, the claimant in Singletary had an easier time showing a worsening because she was actually getting invasive surgical treatment where the claimant in Zrno was taking Tylenol every other week; and (2) the medical proofs in Singletary are so much more compelling. There is a big difference when a credible, treating neurosurgeon (like Dr. Dellasotta in the Singletary case) is on the stand providing an opinion of causation as opposed to hired experts (always the same ones, it seems) trotted out in the Zrno case.
