Jason Lawhon v. County of Monmouth

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3070-24 JASON LAWHON, Petitioner-Respondent, v. COUNTY OF MONMOUTH, Respondent-Appellant. _________________________ Argued September 16, 2026 – Decided October 14, 2026 Before Judges Mayer and Zazzali-Hogan. On appeal from the Division of Workers' Compensation, Department of Labor and Workforce Development, Claim Petition No. 2021-24792. Anne M. Hammill-Pasqua argued the cause for appellant (Capehart & Scatchard, PA, attorneys; Anne M. Hammill-Pasqua, on the brief). Charles M. Crocco argued the cause for respondent (Nelson Fromer Crocco & Jordan, attorneys; Charles M. Crocco, of counsel and on the brief). PER CURIAM In this workers' compensation case, the only issue at trial was the nature and extent of petitioner Jason Lawhon's permanent injury. Ultimately, the judge entered judgment for 55% partial disability with a credit of 31% from a prior work-related injury, which was somewhere between the experts' calculations. The workers' compensation judge found petitioner and the competing experts to be credible but found petitioner's expert to be more credible. In his seventeen- page opinion, the judge made detailed findings of fact based upon sufficient credible evidence. We affirm. I. Petitioner injured his back on October 4, 2021, while lifting a five-gallon pail onto a truck during his course of employment with respondent County of Monmouth (County). At that time, he was employed as a heavy equipment operator. He remained employed in that position on a full duty basis and worked an additional twenty (20) hours a week at Home Depot. Petitioner began working part-time at Home Depot in around 2023 to make ends meet because his wife lost her job. The judge found his explanation reasonable regarding why petitioner was working a second job despite his injury in order to support his family and make up the lost income. A-3070-24 2 Prior to the 2021 incident, petitioner had injured his back at work in 2013 and had a prior partial compensation award of 22.5% for that lumbar injury. Only a few months before this accident, the award was reopened in July 2021, which resulted in an increased award of 31% for a permanent partial limitation. He did not, however, have any work-related restrictions. According to the County, the complaints in petitioner's disability application related to the 2013 accident significantly overlapped with his complaints in this application. The alleged overlap included the inability to lift over 100 pounds, taking Aleve for pain, trouble walking and climbing stairs, sleep issues and difficulty performing household chores. The County contends that the judge did not distinguish which disabilities were attributable to the 2013 accident versus the 2021 accident. Petitioner had spinal fusion surgery after the 2013 accident. After the 2021 accident, he underwent two additional lumbar fusions, lumbar facet injections, lumbar epidurals, and a lumbar discectomy. He also had a trial cord stimulator and eventually a permanent cord stimulator implanted. The workers' compensation judge noted petitioner required significant treatment and pain management after the 2021 accident unconnected to the 2013 injury. A-3070-24 3 In comparing his ability to work before and after the 2021 accident, petitioner testified he works slower and fatigues faster and attempts to avoid twisting and bending. Prior to the 2021 accident he was able to lift up to 100 pounds. While describing his Home Depot job responsibilities, petitioner testified he refrains from lifting anything heavy, takes items from a shelf and places them in a cart, and then he pushes to the front of the store for customer pickup. He also receives assistance from co-workers, which he did not need prior to the 2021 accident. Petitioner works at the County and Home Depot in constant pain which "is present every hour of the day." He did not, however, complain of constant pain prior to the 2021 injury. He went from becoming uncomfortable after sitting for a half hour and standing for an hour to being unable to sit or stand without pain. Similarly, although he could walk up to a quarter mile on a good day and less on a bad day before, he is unable to walk without pain now. Petitioner also testified about his inability to enjoy ordinary activities of daily living after the 2021accident. Since the accident, he sleeps only for hour long intervals before the pain wakes him. He also purchased a $5,000 bed to help him sleep better but to no avail. Additionally, he no longer goes out with friends; attends the gym or participates in fishing and crabbing. He testified he A-3070-24 4 cannot even bend over to brush his teeth. Further, petitioner explained he went from taking two Aleve pills every night and medication during the day as necessary, to taking two to three Tylenol two to three times daily. While there may be overlap between petitioner's pre-2021 and post-2021 limitations, his testimony supports a material and significant deterioration in his condition after the 2021 accident.1 Most importantly, the judge found petitioner's testimony to be credible. Although the County introduced a surveillance video showing petitioner performing tasks at work in an attempt to discredit him, the judge concluded it did not show petitioner doing any tasks he testified he cannot do. Therefore, the County's surveillance evidence did not undermine petitioner's credibility. During expert testimony, both medical experts agreed petitioner sustained a permanent disability but differed regarding the severity of his injury. In assessing the experts' testimony the court first compared their diagnoses. As noted by the judge, petitioner's expert Dr. Alan Nasar found petitioner suffering from: 1 To the extent the County contends that the workers' compensation judge failed to address whether his work at Home Depot aggravated his injury, the County never raised this issue before the judge. We decline to consider arguments not presented to the trial court. See State v. Sims, 466 N.J. Super. 346 , 361 (App. Div. 2021); Fuhrman v. Mailander, 466 N.J. Super. 572 , 596 (App. Div. 2021). A-3070-24 5 aggravation of pre-existing lumbar disc disease, lumbar sprain, lumbar disc herniation L5-S1, lumbar radiculopathy, status post L5-S1 posterior decompression with fusion and instrumentation, nerve root impingement with scar tissue at L5-S1, and status post thoracic laminectomy for implantation of thoracic dorsal column stimulator, insertion of pulse generator and fluoroscopy. Dr. Nasar concluded that petitioner sustained permanent disability to the extent of 50% partial total over and above the prior award (31% of partial total) for the lumbar spine, and 30% partial total for the thoracic spine, and that the injuries were caused by the 2021 accident. This reflected an increase of 50% from the prior compensation award. In contrast, the County's expert Dr. Kenneth Peacock concluded that petitioner had degenerative arthritis, degenerative disc disease and disc protrusion. He found that petitioner sustained permanent disability at 10% of permanent partial total, of which he attributed 2 ½ % of permanent partial total to the 2021 accident. He believed that the remainder was due to unrelated causes, which he did not explain. Although the judge made clear that he found both experts to be credible, he found Dr. Nasar to be more credible for several reasons. First, considering petitioner's prior surgeries and post-2021 pain management, the judge found it "suspect" that Dr. Peacock reported a benign examination with no lumbar spasm, A-3070-24 6 negative straight leg raising test, and no tenderness to the lumbar spine. Second, the court also raised concerns that some of Dr. Peacock's testimony regarding petitioner's abilities or lack thereof was inconsistent with petitioner's own testimony. Third, the judge noted that Dr. Peacock's curriculum vitae indicated that he never practiced medicine as a treating physician "beyond 1995 during his hospital appointments." Lastly, because petitioner's expert had examined him more recently, petitioner's expert was in a better position to assess permanency. II. "Our review of decisions from the workers' compensation court are decidedly deferential" in recognition of "'the compensation court's expertise and the valuable opportunity it has had in hearing live testimony.'" Ripp v. County of Hudson, 472 N.J. Super. 600 , 606 (App. Div. 2022) (quoting Hager v. M&K Constr., 246 N.J. 1 , 18 (2021)). Accordingly, our review in workers' compensation cases is generally "limited to whether the findings made could have been reached on sufficient credible evidence present in the record . . . ." Hersh v. Cnty. of Morris, 217 N.J. 236, 242 (2014) (quoting Sager v. O.A. Peterson Constr., Co., 182 N.J. 156, 164 (2004)). We reverse a compensation judge's findings only if "they are 'manifestly unsupported by or inconsistent with A-3070-24 7 competent relevant and reasonably credible evidence as to offend the interests of justice.'" McGory v. SLS Landscaping, 463 N.J. Super. 437 , 452-53 (App. Div. 2020) (quoting Lindquist v. City of Jersey City Fire Dep't, 175 N.J. 244, 262 (2003)). "[W]e review the court's legal findings and construction of statutory provisions de novo." Hager, 246 N.J. at 18. In 1979, our Legislature amended the New Jersey Workers' Compensation Act (the Act), N.J.S.A. 34:15-1 to -147, "to eliminate awards for minor partial disabilities, to increase awards for the more seriously disabled, and to contain the overall cost of workers' compensation." Perez v. Pantasote, Inc., 95 N.J. 105, 114 (1984); see also Schorpp-Replogle v. N.J. Mfrs. Ins. Co., 395 N.J. Super. 277, 296 (App. Div. 2007) ("A central objective the Legislature accomplished through the 1979 amendments is the elimination of minor injuries not worthy of compensation from serious workplace-induced disabilities . . . ."). In Perez, our Supreme Court articulated a two-part test a petitioner must meet to merit compensation under the Act: "The first essential that must be met is a satisfactory showing of demonstrable objective medical evidence of a functional restriction of the body, its members or organs . . . . [T]he next issue is determining whether the injury is minor or is serious enough to merit compensation." 95 N.J. at 116 . The Court in Perez stated that "[m]aterial A-3070-24 8 lessening of an employee's working ability is a significant, although not necessarily controlling, criterion in making this determination." Ibid. Relying in part on N.J.S.A. 34:15-7.2C, the Court defined material degree as "an appreciable degree or a degree substantially greater than de minimums." Ibid. The Court also determined that the second component refers to an employee's capability to perform work duties, as differentiated from disability in the broader sense to carry on the 'ordinary pursuits of life.'" Id. at 117 . If there has been an appreciable impairment of the ability to work, the "lessening criterion has been satisfied and the claim is compensable." Ibid. If there has been no finding of an appreciable impairment, "then the inquiry must move on to other criteria" such as "whether there has been a disability in the broader sense of impairment in carrying on the 'ordinary pursuits of life.'" Ibid. The Court explained what kind of conditions would be deemed minor and therefore, not compensable, including a "minor sprain, minor laceration, minor contusion, mild dermatitis or mild bronchitis -- is not compensable." Ibid. Therefore, a condition that does not impair an employee's working ability will be compensable only if it is serious enough to interfere substantially with other aspects of the employee's life." Ibid. III. A-3070-24 9 In this case, the workers' compensation judge properly determined petitioner satisfied the Perez requirements. First, there was a satisfactory showing of demonstrable objective medical evidence supporting petitioner's testimony that his functioning had decreased including "significant loss of range of motion in flexion, extension, lateral tilting and lumbar twisting, and diminished sensation and weakness in both legs." As explained by the judge, Dr. Nasar also referenced an MRI, which revealed a "significant" lumbar spine injury that required two invasive back surgeries, and he recited in detail petitioner's symptoms, tests that were performed and his own findings and diagnoses. There was also a material "lessening of his working ability and to a greater extent permanent impairment in carrying out his ordinary pursuits of life." The judge found that the second injury resulted in more difficulty, if not an impossibility, performing tasks such as lifting, twisting, bending, walking, standing and sitting. He noted that petitioner now needed assistance from co- workers. Because there was an appreciable impairment of the ability to work, petitioner has satisfied Perez. We therefore reject the Court's assertion that the judge failed to distinguish between petitioner's complaints from his 2013 and 2021 injuries. The judge made clear that he considered petitioner's disability, A-3070-24 10 prior symptoms and limitations as well as current symptoms and limitations. He explained why there was a substantial increase in permanency even though petitioner may now work more frequently. Even if the judge had found there was no appreciable impairment, he considered the last factor under Perez, which examines how an injury has affected the employee's ordinary pursuits in life. Specifically, the judge found petitioner experienced a decrease in enjoyment of activities such that he no longer socializes or frequents the gym and experiences increased pain performing simple tasks such as sitting, standing or even brushing his teeth. Based upon the foregoing, we are satisfied that the judge's conclusions were supported by and consistent with competent, relevant and credible evidence. Affirmed. A-3070-24 11