• Court Holds Employer Must Pay Total Disability for Complex Groin Injury Without Second Injury Fund and Could Not Offer Surveillance Tapes Done Post Testimony
  • July 30, 2012
  • Law Firm: Capehart Scatchard P.A. - Mount Laurel Office
  • In the case of Marra v. Ryder Transportation Resources, A-5724-10T4 (App. Div. July 2, 2012), the Appellate Division affirmed a holding that the employer was solely responsible for total disability stemming from a groin injury that occurred 15 years ago.

    The petitioner, Gerard Marra, originally injured himself at work lifting a loading gate. On January 6, 1998 he underwent a left inguinal hernia repair, which was complicated by a nerve condition. That nerve condition resulted in what was termed an "exuberant scar formation" which entrapped the ilioinguinal nerve and caused burning in the testicle extending into the upper thigh, inner thigh with numbness, and an electric shock sensation in those areas. The condition is known as ilioinguinal syndrome.

    Petitioner had previously been a supervisor and mechanic. He was returned to work in April 1998 but was given work he could not physically perform and stopped working shortly after his return. He never worked again. He underwent a second surgery on the nerve on March 30, 2000. He had scarification that caused additional problems with the nerve. Petitioner received an award for his injury but the percentage is not noted in the opinion. However, Dr. Tiger only estimated 35% for the condition in 2000.

    The case was reopened in 2003 for additional disability. The petitioner had undergone a series of three injections into the nerve site. These injections proved more harmful than beneficial. Petitioner developed extreme testicular pain and nausea. He would have debilitating attacks of severe pain six times a month that lasted a day and a half. He was never free from discomfort. His pain management doctor put him on Lidoderm patches, Oxycontin, and Vicodin. His psychiatrist prescribed Neurontin, Welbutrin, Zoloft, Klonopin, and Provigil for depression related to the constant pain.

    Both petitioner and his wife testified at trial. His wife said her husband underwent a personality change, had little energy, was short-tempered and was in constant pain. Dr. Peter Crain, for petitioner, testified petitioner was 100% disabled on a neuropsychiatric basis. He conceded that petitioner had some prior injuries but said that these prior injuries (which were the basis of the Fund application) did not impair petitioner. Dr. Tiger, for petitioner, stated that petitioner had developed complex regional pain syndrome. He estimated 60% for the work injury and 100% overall considering prior conditions.

    Ryder produced Dr. Sidney Bender, a neurologist, who testified that petitioner could return to work with restrictions from a neurological standpoint. Dr. Arthur Canario also testified for respondent and said that petitioner was capable of working and should not be treating with opiates. Finally, Dr. Charles Semel, a psychiatrist, testified for respondent and stated that petitioner had a 2.5% psychiatric disability consisting of depression related to a chronic pain syndrome.

    The Judge of Compensation found petitioner was now totally and permanently disabled from his groin injury and assessed no liability against the Second Injury Fund. The effect of this decision was to assess life-time indemnity benefits against Ryder. Although petitioner did have prior awards for his hand and leg, the Judge found that the total disability status was due to the last compensable accident, not due to the combination of the groin and prior injuries. The Fund was therefore dismissed.

    Petitioner appealed and the Appellate Division affirmed the award of 100% total and permanent disability without the Fund, emphasizing that there was substantial evidence that petitioner's exuberant scarification had entrapped the nerve increasingly over time, accelerating petitioner's pain. The Court also noted that there was sufficient credible evidence to support the finding that petitioner suffered from chronic depression due to pain. The Court founnd no evidence to hold in the Second Injury Fund.

    Ryder also argued that the Judge of Compensation erred in not permitting the entry into evidence of a surveillance video done after petitioner testified. Ryder argued that the video would be important because it showed petitioner could do more than just change a light bulb, which was his assertion at trial. The Court held, "Belated surveillance tapes should not be admitted unless 'the employer can show that it was unaware, and could not have been aware, of the circumstances warranting surveillance before the hearing.'" Gross v. Borough of Neptune, 378 N.J. Super. 155 (App.Div. 2005). The Court said that Ryder had been well aware before trial that petitioner was claiming he could not work or engage in daily activities and should have done the surveillance well before trial.

    The case illustrates several key points for practitioners. The Second Injury Fund will fight applications for Fund benefits where it believes that the total and permanent disability status is due to the last compensable accident. Merely having some prior workers' compensation awards will not trigger Fund liability unless those prior awards can be shown clearly to have contributed to the total disability. Of equal importance is the finding that post-testimony surveillance cannot be introduced unless the employer can show that there was something new of which the employer had not been unaware until testimony.