Cases involving aggravation of preexisting conditions are quite common in workers’ compensation and are often complex. Adequately addressing such claims requires obtaining the pre-accident medical treatment records and obtaining expert opinion on whether the work accident aggravated the prior condition. Donald Smith v. H & H Transportation, Inc., No. A-3568-21 (App. Div. December 20, 2023) presents a scenario in which two highly qualified spine surgeons disagreed on whether there was aggravation caused by the work injury.
The facts were not disputed. Mr. Smith was injured in a motor vehicle accident on January 7, 2017 while driving a tractor trailer. Years before this accident, he was treated for his back, starting in 2005. Again in 2009 he received treatment for his back. A CT scan was done of the mid-back in March 2016 revealing degenerative changes.
After the January 2017 work accident, petitioner saw Dr. Anthony Parks, who ordered an MRI, which showed a “right sided herniated disc at T7-8.” Dr. Parks suggested a second opinion, which took place with Dr. Ryan Cassilly, an orthopedic surgeon at Garden State Orthopedics. Dr. Cassilly received the previous 2016 CT scan and compared that result to the new MRI in 2017. He felt that the petitioner’s disc abnormalities at T7-8 were not related to the January 2017 motor vehicle accident because the disc was calcified and because the bone spurs between the vertebra had fused, suggesting to Dr. Cassilly that petitioner had a long-standing degenerative condition. Dr. Cassilly concluded that there was no need for further causally-related treatment. Respondent then terminated medical and temporary disability benefits.
On his own, petitioner saw Dr. Gregory Przybylski, a neurosurgeon, who reviewed the 2017 MRI. Dr. Przybylski believed that petitioner suffered from radiculopathy related to the protrusion at T7-8. He recommended a CT guided selective nerve block at T7-8. Dr. Przybylski performed five spinal surgical procedures over the next 28 months, including a fusion procedure.
Petitioner filed a motion for medical and temporary disability benefits. When asked whether he had told the three physicians involved in this case about his prior medical history, he insisted that he had done so but asserted that all three doctors failed to record the history in their reports. The Judge did not credit this testimony. All three doctors testified that petitioner never revealed to them his prior medical history.
The case focused mostly on the testimony of Dr. Cassilly, who performed respondent’s IME, and Dr. Przybylski, who performed multiple surgical procedures on petitioner. Dr. Cassilly said that he saw no spinal cord compression and viewed the 2017 MRI as showing “multiple osteophytes or bone spurs coming off his thoracic spine.” He said that these findings were not a result of any acute injury but were degenerative. He also opined that the five surgeries were not a result of any acute injury and were not related to the 2017 motor vehicle accident. The two main points Dr. Cassilly emphasized were:
- The 2016 (pre accident) CT scan showed that the herniated disc at T7-8 was “fully calcified” well before the 2017 accident.
- The size of the bone spurs at T7-8 had not changed at all.
Dr. Przybylski admitted that he had not reviewed the 2016 CT scan when he first testified on the issue of causation. After he reviewed the 2016 CT scan, he retracted his opinion that the 2017 work accident caused the calcified disc and agreed with the opinion of Dr. Cassilly on this issue. Nonetheless, Dr. Przybylski maintained that petitioner’s symptoms were worsened by the 2017 accident and required the five surgical procedures. The main point that he raised was that petitioner’s condition improved following the nerve block procedure. That led him to conclude that the 2017 accident had caused a nerve injury.
The Judge of Compensation was faced with two conflicting opinions on causation from two well respected board-certified spine surgeons, one who performed an IME on causation and need for treatment, and the other who operated on petitioner’s spine on an unauthorized basis. The issue at hand was whether the 2017 accident aggravated the petitioner’s pre-accident condition at T7-8. The Judge found that Dr. Cassilly’s opinion was “credible, logical and consistent, both medically and factually.” She concluded that the medical records indicated “evidence of long-standing degenerative etiology rather than acutely post-traumatic” injury. In the opinion of the Judge of Compensation, there was no aggravation, exacerbation, or acceleration of the petitioner’s underlying condition because the 2016 CT scan and 2017 MRI showed essentially the same findings.
The Appellate Division affirmed the decision of the Judge of Compensation for all the reasons cited by the Judge of Compensation in her opinion. The Court first observed case law that states that an employer takes the employee as the employer finds the employee, with all preexisting conditions that may exist. The Court added, “the injury is not compensable if a preexisting condition is its sole cause,” citing Sexton v. Cnty. of Cumberland/Cumberland Manor.
In weighing the experts’ opinions, the Appellate Division noted that Dr. Przybylski changed his position on the issue of prior calcification of the disc once he saw the 2016 CT scan. Dr. Cassilly arguably had been in a better position to opine on causation because he did review the 2016 CT scan at the time of his examination and report.
This is one of the best cases to read in years to understand the legal standard of aggravation in workers’ compensation. The Judge of Compensation focused on whether there was any objective medical evidence of change in the preexisting medical condition caused by the work accident. That is the legal standard in New Jersey. Quite apart from what the injured worker may say, when the medical studies are essentially the same pre- and post-accident, aggravation is not likely to be found. Dr. Przybylski conceded that the studies were essentially the same once he learned about and reviewed the prior 2016 CT scan, but he offered an after-the-fact analysis that if petitioner improved from a nerve block, then the work accident must have injured the nerve. This argument failed to impress the trial and appellate courts. The other interesting aspect of this case is that the opinion of the one-time IME physician on causation carried the day over the opinion of the surgeon who performed five spinal surgical procedures.
Practitioners, employers, and adjusters regularly analyze the issue of aggravation of a preexisting condition, and the process can be quite challenging. Each year there are literally thousands of cases in New Jersey that turn on this very issue of aggravation. Getting all the prior medical records is a major challenge, particularly in New Jersey, because our state allows no interrogatories in traumatic injury claims. New Jersey also permits no depositions of the petitioner, except in extraordinary circumstances. Obtaining past medical history depends heavily on what is asked in the medical examination. But what if the doctors write that they asked about prior treatment history, but petitioner denied any prior medical treatment to the injured body part? How does the employer or carrier then find out about prior treatment? That is exactly what happened in this case. All three doctors testified that petitioner denied any prior mid-back treatment. For his part, petitioner insisted that he told the doctors about his prior back treatment, but they all failed to record in their reports what he told them.
It is not stated in this opinion how the respondent managed to obtain the prior treating records at issue. We only know from reading the opinion that somehow the records were obtained, thereby allowing the issue of aggravation to be addressed in detail by the Judge of Compensation and Appellate Division. Getting the prior records is not the end of the process. Once the prior medical records are received, they must be provided to the medical expert, who then thoroughly reviews them along with all post-accident medical records, examines the petitioner carefully and opines on whether the work accident caused objective changes to the preexisting medical condition. This process may sound easy but in practice it is far more difficult than it sounds. It takes a lot of time and effort to do this right.
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