When an employer authorizes a knee repair surgery, could it be liable for an eventual total knee replacement when there is evidence of pre-existing degenerative arthritis? It has often been assumed by a claimant’s counsel that the employer is responsible for the total knee replacement, especially if the claimant was asymptomatic before the work injury. However, this was recently dispelled by the Appellate Division in Wake v. Twp. of Toms River.

Jan Wake initially filed a workers’ compensation claim for a right knee injury in 2008. He underwent surgical removal of the posterior horn and middle portion of the lateral meniscus. The court entered an Order Approving Settlement in terms of the statutory right leg for an “acute exacerbation of bi-compartmental degenerative joint disease.” Wake later filed an Application for Review or Modification of a Formal Award, also known as a Re-Opener Claim Petition. At issue was whether the Township of Toms River was responsible for a total knee replacement.

Wake’s expert opined that Toms River was responsible for the total knee replacement because the authorized surgery removed almost all of the shock absorber between the two arthritic bones. In the expert’s opinion, this materially exacerbated Wake’s pre-existing arthritis. Wake further argued that the language of the Order Approving Settlement held Toms River responsible for the total knee replacement.

Toms River’s expert concluded that the need for a total knee replacement was causally related to the petitioner’s pre-existing degenerative arthritic condition, not the work injury. He added that Wake “would be suffering from the same symptomology had the work-related injury not occurred.” The expert’s opinion was consistent with the authorized surgeon’s opinion.

The Judge of Compensation agreed with the respondent’s expert’s findings that Wake’s condition was related to ongoing degeneration of a “very serious” arthritic condition instead of the work incident. Accordingly, the Judge of Compensation dismissed the case with prejudice, which Wake appealed.

With Re-Opener Claim Petitions, the Appellate Division observed that the petitioner has a “burden of proving by a preponderance of the evidence not only the fact of increase but also that it is causally related to the original accident and resulting injury.” Noting its limited scope of review, the Appellate Division affirmed the Judge of Compensation’s holding that the petitioner was not entitled to additional benefits.

What It Means to You

While Wake does not create new case law, it is a helpful reminder that authorized surgery does not automatically determine compensability of subsequent treatment for arthritis of the same body part. The petitioner must establish that the surgery exacerbated the arthritis. In practice, a claims professional should request a narrative report as to causal relationship when a doctor recommends a procedure commonly used to treat arthritis, including total knee replacements, for example.