Melanie Norton v. Aon Service Corp.
October 5, 2022
CategoriesRes Judicata Medical Evidence Medical Evidence Res Judicata
Summary from the Troubh Heisler Attorneys
In Norton v. Aon Service Corp., Dec. No. 22-32, Ms. Norton suffered a work related neck injury with psychological sequela on March 1, 2006. A 2012 decree awarded total incapacity benefits based on a combination of physical and mental disabilities. In 2015 Aon filed a petition for review relying on a Dr. Barkin psychological 312 IME and a Dr. Donovan physical 312 IME. Dr. Barkin concluded that Ms. Norton suffered from an underlying personality disorder that was not significantly worsened by the injury but the ALJ rejected that opinion based on the res judicata effect of the 2012 decree. Dr. Donovan opined that the effects of the physical injury had resolved but this was rejected because the doctor failed to undertake a comparative analysis. The resulting 2015 decree left the employee on total incapacity. In the current litigation, Aon filed another petition for review with 312 IME’s completed again by Drs. Barkin and Donovan. Both doctors opinions remained unchanged. The ALJ found these 312 IME medical opinions were not based on change in circumstances and were insufficient to overcome the res judicata effect of the prior decree.
On appeal Aon argued the ALJ erred by not finding the facts that Ms. Norton no longer treats with her osteopath, her prescription medications are more helpful than in 2015 and that doctors opined that she may benefit from a return to employment as sufficient to establish a change in medical circumstances. The App. Div. disagreed because Aon invites the board to undertake the comparative medical evidence analysis itself. ALJ’s are not medical experts. Comparative medical evidence must be undertaken by expert medical witnesses. Further, because Aon did not meet it burden to establish partial work capacity its labor market evidence could not be used to show a change in medical circumstances.