Appellate Division Rejects New Jersey Worker’s Applications for Modification of Workers’ Compensation Award
Dec 6, 2019
Pennsauken, NJ (Law Firm Newswire) December 06, 2019 – An Appellate Division of the Superior Court of New Jersey considered a judge’s denial of an employee’s applications to modify a workers’ compensation settlement award and found sufficient evidence to support the rejection.
A New Jersey statute permits an employee to file an application to reopen a formal workers’ compensation award or an order approving a settlement. The employee must file the application within two years of the last workers’ compensation payment. The employee must show their incapacity increased after the award or settlement.
A man injured his back on October 16, 2009, and December 11, 2009. He and his employer settled the claims for 66.67 percent partial permanent disability. The employer received a credit of 27.5 percent for the man’s preexisting condition.
On June 15, 2013, 15 months after the approval of the settlement, the employee filed applications for modification of the award. He testified that his back pain and disability became worse after the settlement. The man relied on the testimony of two experts, an independent medical examiner and an expert in neurology and neuropsychiatry. The employer introduced reports of the treating physician who performed the man’s spinal surgeries.
The medical examiner testified that the man’s permanent disability was 90 percent in 2011 and increased by 20 percent in 2014. During cross-examination, the employer’s attorney questioned the doctor about his 2011 examination, which demonstrated restrictions on the man that were worse than at the 2014 examination. The injured man’s other expert stated that his percentage of disability was the same in 2011 and 2014.
A workers’ compensation judge dismissed the employee’s applications for modification. The judge found no objective medical evidence to corroborate his subjective complaints of pain. The judge compared the treating physician’s 2012 and 2014 clinical examinations of the man and concluded that the range of motion tests did not show a substantial worsening of his back condition.
In a decision released on April 10, 2018, the Appellate Division found the evidence sufficiently supported the judge’s decision.
An exception to an employee’s right to reopen a previous award is when the settlement waives the employee’s right to future benefits. For example, a Section 20 settlement providing for a lump sum will contain a waiver provision.
If a medical condition becomes worse after a workers’ compensation award or settlement, employees may be able to reopen their case and get more benefits. It is best talk to a workers’ compensation lawyer at Petrillo and Goldberg at 856.249.9295 or visit https://www.petrilloandgoldberg.com.
Petrillo & Goldberg Law
6951 North Park Drive
Pennsauken, NJ 08109
19 South 21st Street
Philadelphia, PA 19103
70 South Broad Street
Woodbury, NJ 08096
Phone: 856-486-4343
Fax: 856:486-7979
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