The NJ Appellate Division Affirms Increased Disability on a Reopener and a Full Fee Shift

The New Jersey Appellate Division’s recent decision in Grasso v. Monmouth County Sheriff’s Department reaffirms a crucial protection for injured workers who file applications to review and modify former awards: the right to refuse recommended surgery without forfeiting an increased disability award, when that refusal is reasonable under the circumstances. The case also serves as a strong rebuke to employers who refuse to negotiate reopener claims in good faith, signaling that compensation judges retain broad discretion to shift attorney fees onto employers who force petitioners to trial without meaningful settlement engagement.

The Workplace Injury and the Reopener

Jason Grasso, a corrections officer with the Monmouth County Sheriff’s Department (MCSD), injured the great toe of his right foot in 2016 while attempting to stop an altercation between inmates. After undergoing reconstructive surgery in 2019, including metatarsophalangeal joint ligament repair and metatarsal bone grafting, Grasso settled his claim in 2021 for 27.5% permanent partial disability of the right foot.

Less than a year later, in May 2022, Grasso filed an application for review or modification under N.J.S.A. 34:15-27, citing increased pain, mounting disability, and the need for further treatment. He testified that his toe swelled during the day, he had begun limping again, and his ability to play sports and engage in activities with his children was impaired. A new MRI revealed “significant degenerative changes” at the first metatarsophalangeal joint, and a podiatrist recommended fusion surgery as the “only option.”

Grasso declined. He testified he believed the first surgery had made things worse, not better, and that he feared whether fusion would let him continue performing his job duties.

The Court’s Rationale

The Appellate Division affirmed the workers’ compensation judge’s award of an increase to 35% permanent disability, and the imposition of all medical and counsel fees on the employer, on three principal grounds.

1. A Deferential Standard of Review

Citing Ripp v. County of Hudson, 472 N.J. Super. 600 (App. Div. 2022), and the Supreme Court’s reaffirmation in Hager v. M&K Construction, 246 N.J. 1 (2021), the court emphasized the compensation court’s expertise and its irreplaceable opportunity to hear live testimony. Appellate review is “limited to whether the findings made could have been reached on sufficient credible evidence present in the record,” quoting Hersh v. County of Morris, 217 N.J. 236 (2014) (in turn quoting Sager v. O.A. Peterson Construction Co., 182 N.J. 156 (2004)). Findings will be disturbed only when “manifestly unsupported by or inconsistent with competent, relevant, and reasonably credible evidence as to offend the interests of justice.” McGory v. SLS Landscaping, 463 N.J. Super. 437 (App. Div. 2020) (quoting Lindquist v. City of Jersey City Fire Dep’t, 175 N.J. 244 (2003)).

2. The Refusal-of-Treatment Doctrine

On the central question of the refusal of surgery, the court applied N.J.S.A. 34:15-23 and the foundational rule of Robinson v. Jackson, 116 N.J.L. 476 (E. & A. 1936), which the Supreme Court reaffirmed in Lorenc v. Chemirad Corp., 37 N.J. 56 (1962). The employer’s right to compel medical or surgical treatment is, in the court’s words, “not, of course, an absolute one.” It is circumscribed by the employee’s “correlative right” to avoid “peril to life, however slight, and undue risks to health, and anguish that goes beyond the bounds of reason.” An employee’s refusal is unreasonable only if the proposed treatment is free from danger and extraordinary suffering and, according to the best medical or surgical opinion, offers a reasonable prospect of restoration or relief from the disability.

Critically, the court reiterated that the reasonableness of a refusal “is one of fact.” The compensation judge found Grasso credible and accepted that his fear, rooted in the deterioration he attributed to the prior surgery, was reasonable. Even MCSD’s own expert, Dr. Hutter, conceded the recent MRI showed progression from mild degeneration to “moderate to severe degenerative changes.” The Appellate Division noted that the same standard has long been applied in personal-injury mitigation cases, citing Albert v. Monarch Federal Savings & Loan Ass’n, 327 N.J. Super. 462 (App. Div. 2000), and Cannon v. New Jersey Bell Telephone, 219 N.J. Super. 304 (App. Div. 1987).

The court refused to consider MCSD’s appellate argument that the judge should have ordered “medical monitoring” rather than awarding increased disability, because that alternative was never proposed below. Alloco v. Ocean Beach & Bay Club, 456 N.J. Super. 124 (App. Div. 2018).

3. The Fee Award and “Not Dealing in Good Faith”

On attorney fees, the court applied abuse-of-discretion review. DeSanctis v. Borough of Belmar, 455 N.J. Super. 316 (App. Div. 2018) (quoting Rendine v. Pantzer, 141 N.J. 292 (1995)); see also Wear v. Selective Insurance Co., 455 N.J. Super. 440 (App. Div. 2018); Flagg v. Essex County Prosecutor, 171 N.J. 561 (2002); Ferolito v. Park Hill Ass’n, 408 N.J. Super. 401 (App. Div. 2009); Masone v. Levine, 382 N.J. Super. 181 (App. Div. 2005); Horne v. Edwards, 477 N.J. Super. 302 (App. Div. 2023). Under N.J.S.A. 34:15-64(a), a judge of compensation may award counsel fees of up to twenty percent of the judgment. Quereshi v. Cintas Corp., 413 N.J. Super. 492 (App. Div. 2010); Collas v. Raritan River Garage, Inc., 460 N.J. Super. 279 (App. Div. 2019). Where there has been “undue delay in the recognition of liability,” the judge may shift a higher proportion onto the employer. Alvarado ex rel. Velez v. J & J Snack Foods Corp., 397 N.J. Super. 418 (App. Div. 2008).

The compensation judge found MCSD’s refusal to make any counteroffer, over the course of more than a year, despite an existing settlement demand and the judge’s own recommendation, “not dealing in good faith.” Indeed, the judge observed that in ten years on the bench, this was the first time a respondent “did not even convey an offer.” He rejected any suggestion that the absence of a counteroffer was reasonable simply because the employer’s expert returned a zero-increase opinion, noting that a “zero increase” from a respondent’s doctor is “very common” on a reopener. The Appellate Division saw no abuse of discretion in the resulting full fee shift.

How Workers’ Compensation Doctrine Frames the Analysis

The decision sits squarely within the policy architecture of the New Jersey Workers’ Compensation Act, N.J.S.A. 34:15-1 to -147. Three doctrinal threads run through it.

1. The reopener statute, N.J.S.A. 34:15-27, allows petitioners to seek modification of a prior award upon proof of material worsening. Grasso confirms that objective medical evidence — here, comparison MRIs showing progression — combined with credible lay testimony about functional decline can satisfy that burden, even when the comparator surgery has not produced the hoped-for result.

2. The refusal-of-treatment statute, N.J.S.A. 34:15-23, gives employers a tool: they may petition the Division to order treatment at their expense and seek modification of an award if the worker refuses without justification. But the statute does not give employers a veto over a worker’s bodily autonomy. The Robinson rule, now nearly a century old, balances that autonomy against the duty to mitigate.

3. The fee statute, N.J.S.A. 34:15-64(a), reflects what the Quereshi court called “the underlying philosophy of the workers’ compensation remedy that relies on prompt recognition of an employer’s responsibility for workplace injuries and prompt payment of benefits.” When an employer stalls, refuses to negotiate, or forces an unnecessary trial, the fee-allocation tool reallocates the cost of that intransigence.

Impact on Petitioners Who File to Review and Modify Former Awards

For petitioners filing applications under N.J.S.A. 34:15-27, Grasso is meaningful in several practical respects.

First, it reinforces that a worker can decline a recommended surgery, particularly one with risks the worker reasonably fears or that follows an earlier surgery the worker believes worsened the condition, without giving the employer a free pass to limit the disability award. The reasonableness inquiry is fact-bound, credibility-driven, and entitled to substantial deference on appeal.

Second, it clarifies that an employer who wants the worker to undergo treatment must, if necessary, invoke the statutory mechanism set forth in N.J.S.A. 34:15-23 below. It cannot manufacture alternative theories, such as “medical monitoring,” for the first time on appeal.

Third, it puts respondents on notice that stonewalling settlement negotiations on a reopener may expose them to a full fee shift. The compensation judge’s discretion to assess good-faith negotiation, and to penalize its absence by allocating attorney fees and costs against the employer, has now been blessed by the Appellate Division on facts where the respondent simply refused to make any counteroffer at all.

For the petitioner’s bar, the practical lessons are clear: document settlement demands meticulously, develop the objective medical record (here, the comparison MRIs were decisive), and present credible testimony explaining why a recommended procedure is being declined and why prior treatment did not provide lasting relief.

For employers and carriers, Grasso is a caution: a respondent’s expert who returns “zero increase” on a reopener — what the compensation judge called “very common” — will not, standing alone, justify refusing to negotiate. Without a counteroffer, a tried case may end with full fees, full costs, and an increased award.

Grasso v. Monmouth County Sheriff’s Department, No. A-2392-24, 2026 WL 1378130 (N.J. Super. App. Div. May 18, 2026) Unpublished Decision

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).

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