Robert Fergola v. ND Paper

Insurance Company

Liberty Mutual Insurance

Date Decided

February 8, 2024

Panel Members

Bryan Chabot

Evelyn Knopf

Katherine Gatti Rooks


Pre-Existing Injury


File Size

165 KB


Summary from the Troubh Heisler Attorneys

Robert Fergola v. ND Paper- The Appellate Division affirms granting a petition of award on a 5/1/21 low back injury by holding the ALJ did not conflate the Celentano requirements of first determining the existence of a work injury and then whether the work injury significantly aggravated a pre-existing condition under sec. 201(4). In Fergola, the employee worked at the Rumford Paper mill since 1989, and had sustained an acute back injury in 1993. He returned to full duty. In May 2021 he developed symptoms of numbness and tingling down his leg to his foot without any acute event. Dr. Agren performed a L5-S1 fusion surgery. At issue was Dr. Agren’s testimony that the employee’s work aggravated his preexisting condition. The ALJ granted the petition for award.

On appeal ND Paper argued Dr. Agren’s testimony went only to the second prong of Celentano and was insufficient to establish the existence of a gradual work injury in the first place. The Appellate panel disagreed. Dr. Agren’s testimony was competent evidence to establish a gradual back injury. The fact testimony may be relevant to the sec. 201(4) analysis does not render it irrelevant to the initial determination of whether a gradual injury occurred.

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