Workers' Compensation: Credibility Wins, Silence Forfeits

Lawhon v. County of Monmouth shows why a judge’s credibility findings stick and why unraised issues vanish on appeal.

A workers’ compensation appeal is won or lost long before the briefs are written. It is won or lost in the courtroom, on the record, before the judge who watches the witness testify. The Appellate Division’s October 14, 2026, decision in Lawhon v. County of Monmouth, No. A-3070-24 (App. Div. Oct. 14, 2026) (unpublished), is a compact lesson in three rules every practitioner should keep in mind: credibility findings carry enormous weight, appellate review is narrow, and an issue not raised below is an issue lost.

The Facts

Jason Lawhon, a heavy equipment operator for the County of Monmouth, injured his low back on October 4, 2021, lifting a five-gallon pail onto a truck. This was not his first back injury. A 2013 work accident had led to a spinal fusion and a prior award of 22.5% of partial total, which was reopened and increased to 31% only months before the 2021 accident.

After the 2021 accident, his treatment escalated sharply: two additional lumbar fusions, facet injections, epidurals, a discectomy, a trial spinal cord stimulator, and finally a permanent implant. He kept working full duty for the County and, to make up for his wife’s lost income, took a part-time job at Home Depot.

The only trial issue was the nature and extent of permanent disability. Petitioner’s expert, Dr. Alan Nasar, found disability of 50% of partial total over and above the prior 31% award for the lumbar spine, plus 30% for the thoracic spine. The County’s expert, Dr. Kenneth Peacock, found 10% of partial total and attributed only 2½% to the 2021 accident. The judge of compensation entered an award of 55% of partial total with a 31% credit for the prior award, a figure that landed between the two experts.

Credibility: The Judge Who Watched the Witness

The County attacked the award on two fronts. First, it argued that the complaints in this claim overlapped with those in the 2013 claim (lifting limits, Aleve, trouble with stairs, poor sleep, household chores) and that the judge never sorted out which disability belonged to which accident. Second, it introduced surveillance video of petitioner working, hoping to undercut his testimony.

Neither attack succeeded because of credibility. The judge found petitioner credible. He described working slower, tiring faster, avoiding twisting and bending, needing help from co-workers he never needed before, constant pain “present every hour of the day,” sleep broken into hour-long intervals, a $5,000 bed that did not help, and an inability to bend over to brush his teeth. The judge also accepted as reasonable his explanation for taking the second job: he needed to support his family.

The surveillance video is the most practical lesson in the case. The judge did not simply note that the County had offered a video. He compared what it showed with what the petitioner said he could not do and concluded that the video did not depict the petitioner doing anything he testified he could not do. Surveillance only impeaches when it contradicts the testimony. Footage of a worker doing what he admits he can do proves nothing.

The Depth of the Trial Court’s Review

What makes the result appeal-proof is the depth of the judge’s seventeen-page opinion. The judge found both experts credible, then explained, with specific reasons, why he found Dr. Nasar more credible:

• The “suspect” benign exam. Given multiple fusions and ongoing pain management, the judge found it suspect that Dr. Peacock reported no lumbar spasm, a negative straight leg raise, and no tenderness.

• Inconsistency with the lay testimony. Parts of Dr. Peacock’s account of petitioner’s abilities did not square with petitioner’s own credible testimony.

• Clinical currency. Dr. Peacock’s curriculum vitae showed he had not practiced as a treating physician “beyond 1995.”

• Recency of examination. Dr. Nasar had examined petitioner more recently and was better positioned to assess permanency.

The judge also noted that Dr. Peacock attributed most of the disability to “unrelated causes” that he never explained. An expert opinion that apportions without explanation is an easy target.

The judge then walked through the two-part test of Perez v. Pantasote, Inc., 95 N.J. 105 (1984), which implements the Legislature’s 1979 goal of separating minor injuries from serious, compensable disability, a theme the Appellate Division echoed in Schorpp-Replogle v. New Jersey Manufacturers Insurance Co., 395 N.J. Super. 277 (App. Div. 2007). The judge found demonstrable objective medical evidence, including significant loss of motion, diminished sensation and weakness in both legs, and an MRI showing a significant injury that required two invasive surgeries. He found a material lessening of working ability. And, for good measure, he made alternative findings on the impairment of petitioner’s ordinary pursuits of life under Perez. That belt-and-suspenders approach left the County nothing to attack. The panel rejected the overlap argument because the judge had expressly considered the prior disability, prior symptoms and limitations, and current symptoms and limitations.

The Appellate Ceiling: A Narrow Scope of Review

The panel restated the familiar standard. Review of compensation decisions is “decidedly deferential,” in recognition of the compensation court’s expertise and its “valuable opportunity” to hear live testimony. Ripp v. County of Hudson, 472 N.J. Super. 600, 606 (App. Div. 2022) (quoting Hager v. M&K Construction, 246 N.J. 1, 18 (2021)). The question is only whether the findings could have been reached on sufficient credible evidence in the record. Hersh v. County of Morris, 217 N.J. 236, 242 (2014) (quoting Sager v. O.A. Peterson Construction Co., 182 N.J. 156, 164 (2004)). Findings are reversed only if “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, 452-53 (App. Div. 2020) (quoting Lindquist v. City of Jersey City Fire Department, 175 N.J. 244, 262 (2003)). Legal conclusions are reviewed de novo under Hager, but that is cold comfort to an appellant whose real complaint is about how the judge weighed the evidence.

In practice, the appellate court does not re-try the case. It does not re-weigh which expert was more persuasive, and it does not second-guess a credibility call made by the judge who saw the witness. When the trial judge explains the reasons, as this one did, the award is all but insulated from reversal.

Use It or Lose It: Preserving the Record

The quietest part of the opinion may be the most important. In footnote 1, the County argued that the judge failed to address whether petitioner’s Home Depot job aggravated his injury, an intervening-cause theory that could have shifted part of the disability away from the County. The panel refused to consider it because the County never raised it before the judge of compensation, citing State v. Sims, 466 N.J. Super. 346, 361 (App. Div. 2021), and Fuhrman v. Mailander, 466 N.J. Super. 572, 596 (App. Div. 2021).

That is the long-standing New Jersey rule of Nieder v. Royal Indemnity Insurance Co., 62 N.J. 229, 234 (1973): appellate courts decline to consider questions not properly presented below when an opportunity to raise them existed, unless they go to jurisdiction or concern matters of great public interest. A secondary-employment aggravation defense is neither. If a respondent believes outside work contributed to the disability, it must develop that theory at trial with cross-examination, records from the second employer, and an expert who actually addresses it. Raising it for the first time in an appellate brief is too late.

What This Means for Workers’ Compensation Claims

• Credibility is the case. The injured worker’s testimony, detailed, specific, and consistent with the medical evidence, carried the day. Prepare clients to describe concrete before-and-after changes at work and in daily life.

• Surveillance must contradict, not merely depict. Employers and carriers should match footage to the specific limitations claimed. Video of permitted activity can strengthen the worker’s credibility rather than damage it.

• Second jobs are not automatically fatal. A worker who keeps working, even taking on a second job out of financial need, can still prove a material lessening of working ability under Perez.

• Prior awards require careful proof. When there is an earlier award, both sides should squarely address apportionment on the record. Here the judge did, and the respondent’s overlap argument failed.

• Expert quality matters. An unexplained apportionment, a benign exam that does not fit the surgical history, and a stale clinical background all gave the judge reasons to discount the respondent’s expert.

• Build the record at trial. Every defense, including intervening or superseding causes, must be raised, developed, and argued before the judge of compensation. The Appellate Division will not do it for you.

• Ask for detailed findings. Counsel on both sides benefit from a reasoned opinion. A thorough decision protects a good award, and the absence of findings is often the only realistic ground for a remand.

A Note on Precedential Value

Lawhon is unpublished and, under Rule 1:36-3, is not precedential and binds only the parties. Its value lies in how clearly, it applies settled, published authority to a common fact pattern: a reinjured back, a prior award, dueling experts, and a surveillance video.