Workers' Compensation: Fracture of Silicone Breast Implant Held Not to be Compensable

In an unpublished decision, the NJ Appellate Division upheld the dismissal of a workers' compensation claim for the repair of a ruptured breast implant.

A middle school teacher of autistic children was kicked in the left breast by a student. The implants were eleven years old, and the teacher was suffering from a significant amount of weight gain and lupus. The trial court concluded that the petitioner's medical expert reviewed the MRI report improperly and performed a Lackluster evaluation" of the worker. The court concluded that the cause of the accident was not the trauma of the accident but rather a valve failure of the implant precipitated by weight gain or lupus.

CREDIBILITY
The judge analyzes the credibility of the two expert witnesses, Dr. Volshteyn and Dr. Friedlander, in the context of their differing diagnoses of Salomone’s condition. The judge finds Dr. Friedlander’s testimony more credible because she bases her conclusions on “objective information,” including the MRI report and Salomone’s prior medical records. Dr. Volshteyn’s conclusions are based on the incorrect assumption that Salomone has silicone implants.

BURDEN OF PROOF
The burden of proof in this case lies with Salomone to establish that the recommended surgery is causally related to the work incident. The judge finds that Salomone fails to meet this burden because Dr. Volshteyn’s testimony regarding the need for surgery is not supported by objective evidence. Dr. Friedlander’s testimony is that the implant is intact and not ruptured.

In conclusion, the court found that the plaintiff did not meet the burden of proof to show that the recommended surgery was causally related to the work incident. This was because the judge found the testimony of the plaintiff's expert witness less credible than the testimony of the defendant's expert witness. The defendant's expert witness based her conclusions on objective evidence, while the plaintiff's expert witness based his conclusions on an assumption unsupported by the evidence.

Salomone v. Spectrum360, Docket No. A-710-23, June 24, 2024.

Recommended Citation: Gelman, Jon L., Fracture of Silicone Breast Implant Held Not to be Compensable, www.gelmans.com (06/26/2024)

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ORDER NOW

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*Jon L. Gelman of Wayne, NJ, is the author of NJ Workers’ Compensation Law (West-Thomson-Reuters) and co-author of the national treatise Modern Workers’ Compensation Law (West-Thomson-Reuters). For over five decades, the Law Offices of Jon Gelman 1.973.696.7900
jon@gelmans.com has represented injured workers and their families who have suffered occupational illnesses and diseases.