Appellate Review in Workers’ Comp – United Airlines

Submitted by Workers Compensation attorney, Jeffrey Hark

This blog discusses an appeal by United Airlines of a final judgment of the Division of Workers’ compensation, Huesser v. United Airlines, decided July 14, 2014. The petitioner-respondent was an employee who after seven years as a flight attendant, injured her left shoulder and lower back when her in-flight seat collapsed. Later in 2008 she injured her right shoulder when helping to lift a carry-on suitcase. She underwent four surgeries to attempt to correct the problem and endured intensive pain management. The petitioner testified and so did her husband in order to corroborate her testimony.

Physician Reliability in Workers Compensation Appeal

At the first trial the only issues were the nature of the permanent disability and the extent. The main issue on appeal was the reliability of the physicians who testified. The petitioner’s own physician claimed that at the time of the trial her permanent partial disability had increased from 15% to 60% while the respondent’s physician only observed an increase of 2.5%. The trial judge made findings based on the different testimony. Appellate review of workers’ compensation findings is limited to determining whether those findings could reasonably been reached given the evidence submitted, but deference is given to the trial judge’s findings of witness credibility. This is because compensation courts are experts at hearing and understanding medical expert testimony and are therefore in a better position to determine credibility. Thus, appellate review is not a chance to re-argue facts. Unless a respondent can prove that a trial judge has abused their discretion in finding the facts and credibility it is not the place of appellate review to question the trial judge on these matters.

Compensable Occupational Injuries

N.J.S.A. 34:15-36 defines disability that is permanent in quality and partial in character as “a permanent impairment caused by a compensable accident or compensable occupational disease, based upon demonstrable objective medical evidence.” The combination of medical records, witnesses and the physical nature of working as a flight attendant all showed that the injury in this case met that definition. United also contended that the trial judge should have considered the fact the petitioner returned to work for the airline after the injuries. However whether one does or doesn’t return to work is not a factor in the definition of N.J.S.A. 34:15-36. What must be shown is that the employee can prove by demonstrable objective medical evidence that a disability restricts a function of their body, and that their working ability has been lessened. For these reasons the Appellate Division affirmed the findings of the trial judge.