Appellate Court Confirms Standard of Review to be Considered When Examining Lower Court Decision on Compensability and Estimate of Permanency


Category: New Jersey

In the matter of Kevin Roy v Mardsen & Sons Electric, an employer appealed the decision of a Workers' Compensation Judge after the Judge granted an employee an increase from 22.5 percent up to 42.5 percent of partial total disability, or a 20 percent increase on a re-opened lower back injury claim.

The employee sustained a compensable injury on July 26, 2011, when he fell off a ladder at work. Authorized treatment was provided and the employee was diagnosed with two fractured lower back vertebrae (L1 and L2) and a bulging disc at L5-S1. The matter was resolved in 2012 for 22.5 percent of partial total disability. The employee then filed an application for review or modification arguing that his condition had worsened and his disability had increased. The employee underwent additional authorized treatment with diagnostic studies showing additional low back pathology with a recommendation for surgery. However, the employee declined surgery. The parties could not reach a settlement agreement and presented this matter for trial with only the testimony of the employee. Instead of having expert testimony, the medical treatment records and expert reports were submitted by agreement of the parties for the Court's consideration. This is commonly referred to as a "trial on reports." The Court entered a decision in January 2016, holding that the employee sustained his burden and found an increase of 42.5 percent of partial total disability less the prior award of 22.5 percent.

An appeal was filed by the employer claiming the record did not contain sufficient credible evidence to support the Court's decision that there was an increase in disability or that the increase was 20 percent. The Appellate Court reiterated its scope of review on appeal, stating that the review is limited to "whether or not the finding made could reasonably have been made on sufficient credible evidence present in the record." The Appellate Court found that the lower court's decision was supported by credible evidence noting that the Court found the employee's testimony to be "candid and credible" and also noting that the lower court was specifically asked to make its determination based on a review of the submitted medical evidence. Regarding the increased disability estimate, the Appellate Court relied on the expertise of the lower court judge to quantify the increase in disability.

Comment: As seen with other claims on appeal, the Appellate Court will not overturn or remand a matter for further consideration if the records contained sufficient credible evidence for the lower court judge to make a reasonable decision. In this matter the only testimony was that of the employee, whom the Court found credible. By basing the decision on a reasonable interpretation of the presented medical evidence and the employee's testimony, the Appellate Court made it clear that it would not second guess the lower court's decision. This case emphasizes how important submission of evidence is at trial.

For more information, please contact Robert R. Hanneman Jr. at or 856.779.7010.

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