Workers’ Comp Award Affirmed by Appellate Division in Unusual Appeal and Trial with Pro Se Petitioner


Category: New Jersey

In an unpublished decision by the Superior Court on September 30, 2021, the Appellate Division affirmed an Order from the Workers’ Compensation Judge (WCJ) finding a 25% permanent partial disability following a work-related motor vehicle accident. While the facts and the eventual decision to affirm were not terribly unusual in Morales v. Advanced Auto Parts, A-0557-20 (App. Div. Sep. 30, 2021) it was unusual that the petitioner proceeded pro se on appeal.

The facts of the case reveal that the petitioner sustained a head contusion, neck, and upper back strains. After failed conservative treatment, the petitioner underwent an anterior cervical discectomy and fusion on January 24, 2013. The petitioner was evaluated by 2 experts on behalf of the respondent. The expert neurologist, Dr. Lomazow, found no evidence of residual neurologic permanency. The orthopedist, Dr. Mercurio, found 15%, attributing 10% to the cervical spine and 5% to the lumbar spine.

Before the petitioner had an opportunity to be evaluated by her own experts, she was involved in a second motor vehicle accident unrelated to her employment on May 26, 2015. Only after this accident did the petitioner undergo evaluations with her own experts. The petitioner’s expert found an aggravation of both her neck and back as a result of this more recent accident.

The petitioner testified at trial. The parties waived testimony by the experts and submitted all reports into evidence. Ultimately, the Judge awarded 25% of partial total disability; 15% to the cervical spine and 10% to the lumbar spine. He felt that there were inconsistencies on examination and some exaggeration of the petitioner’s complaints. The Judge found the petitioner’s disability “greater overall” due to the subsequent 2015 accident.

On appeal, the pro se petitioner raised somewhat bizarre issues including the following:

  1. The WCJ did not consider her permanently disabled (this was rejected since the petitioner was able to return to work after the claimed accident);
  2. That her testimony was incorrectly translated by the interpreter (also rejected by the Court);
  3. That she was disabled as a result of the 2011 accident and not the 2015 accident (evidence contradicted by her own experts);
  4. That her attorney did not present all proofs relative to her disability (rejected by the Court with a submission of all appropriate medical records by her attorney);
  5. That outstanding hospital bills and her need for future medical treatment is still the responsibility of the employer. Also rejected since the evidence was clear that the petitioner suffered an aggravation of her neck and back as a result of the 2015 accident.

Ultimately, the Appellate Division gave deference to the decision of the WCJ as they are required to do noting that the decision was based upon substantial credible evidence in the record.

Comment: When a petitioner proceeds pro se, the proceedings in the litigation are often awkward and proceed in an unusual fashion. Here, the WCJ did an excellent job of evaluating and summarizing all medical records and the evidence. The WCJ is not bound by the opinions of the medical experts but can reach his or her independent conclusion based upon their years of experience. The finding that the petitioner’s disability is “greater overall” is significant in that the exposure for the respondent in the future is likely foreclosed. This is often a method of settling a case without proceeding under Section 20 of the statute (full and final settlement) when the petitioner is involved in a subsequent accident to the same parts of the body causing an aggravation of same. This case also emphasizes once again the deference the Appellate Division provides for the WCJ’s assessment of the evidence and credibility of the witnesses.

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