Claims

One of the hallmarks of the New Jersey workers’ compensation system is that awards of partial permanent disability can be reopened for more medical, temporary or permanent disability benefits.  In this case, Rebecca Weston, a detective investigator for the Union County Prosecutor’s Office, received an award of 55% of partial total, 31% of which was attributed to her cigarette smoking.  She reopened the case in 2010 claiming that her chronic obstructive pulmonary condition (COPD) had worsened.

In 2011 Mrs. Weston passed away and her husband continued the litigation.  The Honorable Lenore Kramer Mohr, Administrative Supervising Judge of Compensation, found that the increase in petitioner’s pulmonary disability was due exclusively to continued cigarette smoking, not to work exposures. The Judge found that petitioner “never gave up smoking for any significant period of time and continued to smoke regularly until the time of her death.”  Mr. Weston appealed.

The Appellate Division said that the controlling test is “whether the work exposure substantially contributed to the development or aggravation of petitioner’s medical condition.” One of the key reasons for the affirmance in this case was that Mrs. Weston’s last exposure to environmental pollutants at work ended in the year 2000.  The Court concluded that this fact made it extremely difficult for the claimant to show material worsening from work exposures, given that she continued to smoke cigarettes.

There was apparently a dispute in testimony about whether Mrs. Weston stopped smoking in 2006 after she developed COPD but the Judge of Compensation did not believe Mrs. Weston’s testimony.

The Judge also credited the testimony of the employer’s medical expert that Rebecca’s COPD became worse due to her continued smoking.  The judge did not credit the testimony of petitioner’s medical expert, because he based his opinion on the factual assumption that Rebecca stopped smoking in 2006, and he overlooked what the judge found was clear evidence in Rebecca’s medical records that she had continued to smoke.  The judge found petitioner’s expert’s ‘conclusions based on his faulty assumptions were therefore flawed and unreliable.

This case can be found at Weston v. Union County Prosecutor’s Office, A-3578-13T4 (App. Div. October 23, 2015).

The reasoning here is compelling because the only harmful respiratory exposures after retirement were non-work-related cigarette exposures.   But the rationale of this case should not be limited to respiratory claims.  One can apply the same reasoning to orthopedic claims where an employee with an award of partial permanent disability for the back, for example, retires and later reopens the case.  If the employer can show that the worsening of the spine is due to physical exertion in a new job, not the original employment, the same result should follow.  Readers should also consider that the employer won this case because of diligent searching of medical records.  While the search for past and current medical records may seem tedious and expensive, many cases are won by detailed attention to entries in medical records such as the comments in these records about continued cigarette smoking.

Capehart Scatchard is a proud sponsor of Kids’ Chance of New Jersey, which is devoted to helping provide college scholarship funds to children whose parents have been seriously injured or killed in a work accident. John Geaney and Lora Northen are members of the Board of Kids’ Chance, and Carol Wright is an Advisory Committee Board member. Governor Chris Christie, in recognition of the work Kids’ Chance of New Jersey has done in awarding scholarships to children, has proclaimed Novermber 2 to November 6, 2015  Kids’ Chance Awareness Week. Click here to view the proclamation. If you are interested in helping to provide support for the scholarship fund, please contact the undersigned.

In part one we examined the law surrounding New Jersey occupational disease claims and trends in our state (see last week’s blog).  In this segment, we will explore strategies and tactics employers can take to win occupational disease claims.

Winning workers’ compensation claims depends more than any other factor on obtaining past medical history.  Experience teaches us that the vast majority of claimants who file back, neck, shoulder, leg, respiratory, and stress claims have had symptoms and treatment in the past, but often this information does not emerge and is not discovered until too late. This is particularly true in New Jersey where depositions are not permitted except in rare cases on motion, and where interrogatories are only allowed in occupational disease claims – and the questions are pre-printed and often irrelevant.  The single greatest reason that workers’ compensation benefits are overpaid is the failure to discover prior medical history.  In occupational disease claims, an employer will overpay virtually every case if the employer does not know what the employee does outside work and has done in the past and does not have an accurate picture of the employee’s health before the claim was filed.

It is imperative for the employer to identify the prior family doctor and get his or her records going back as far as possible.  That is true for all occupational orthopedic claims, respiratory claims, carpal tunnel claims and stress claims. As mentioned last week, the employer defeated the carpal tunnel claim in Huntoon only because respondent’s counsel insisted on obtaining prior family doctor records, which led directly to the statute of limitations defense.

Consider for a moment what the adjuster and defense attorney are looking for:

•  In respiratory claims, the family doctor records may contain the past smoking history, references to chronic cough or history of allergies.
• In carpal tunnel cases, the family doctor records may reveal diagnoses of conditions which are known to cause carpal tunnel syndrome: hypertension or diabetes, for example.
• In occupational orthopedic claims, the family doctor records may contain information about arthritic pain, joint pain related to weight gain, pain from over-exercising at the gym or in jogging, and treatment due to car accidents and slips and falls generally.
• In cancer cases, the family doctor records often refer to family history of cancer.

In addition to obtaining prior family doctor records, the adjuster and defense counsel should be writing to claimant’s counsel or filing supplemental interrogatories asking about the following:

• In respiratory claims: the name and address of allergists the claimant has seen in the past, plus skin testing results;
• In occupational hand claims, the name and address of rheumatologists and surgeons who have seen the claimant in the past;
• In occupational orthopedic claims, the name and address of any chiropractor whom the claimant may have seen in the past as well as location of any MRIs, EMGs or other objective studies.
• In occupational stress cases, the name and address of all prior psychologists, mental health counselors and psychiatrists.

Most defense lawyers around the country believe that there is no level playing field for employers when it comes to workers’ compensation. As far as discovery goes, New Jersey’s system is seriously tilted against employers.  While New Jersey has employer control of medical care, that fact is not of any consolation in an occupational disease claim because almost 100% of occupational disease claims are denied at the outset.  There are seldom any authorized treating records available. So adjusters and defense counsel have to be creative in conducting informal discovery.  Since the standard pre-printed form interrogatories do not focus on what employers need to know, adjusters and defense counsel must explore prior medical history informally, seek information about second jobs, prior and present hobbies, martial arts, sports and recreational activities, and inquire about hobbies like woodworking or crocheting in repetitive stress claims. When the claimant’s counsel will not cooperate, defense counsel should file a motion for supplemental interrogatories.

The tactics that help employers win occupational disease claims vary depending on the nature of the allegations.  Respiratory claims are particularly frustrating for employers because often they are brought like class actions with dozens of claimants filing petitions at once, almost none of whom have ever treated before for breathing-related complaints!  New Jersey has always had its share of plant closing cases, and these cases typically involve respiratory claims.  The good news is that employers can win the vast majority of these cases at trial.  The reason employers have the edge is that respiratory claims are unique in having objective data to support the defense.  Pulmonary function studies provide scientific information on lung function, and the tests are repeated to reveal if the claimant is not making a genuine effort to exhale or inhale. No matter what the claimant says of a subjective nature (short of breath, trouble sleeping, or coughing), pulmonary function studies provide reliable objective evidence which satisfies the standards of N.J.S.A. 34:15-36.

When an employer has to fight respiratory claims, whether in a mass filing following a plant closing or in an individual claim, the employer needs to retain board certified pulmonologists who do more than just spirometry.  The employer needs lung function and diffusion capacity studies in addition to spirometry because all of this information provides scientific proof of lung function.   In 90% of plant closing respiratory claims, the pulmonary function testing turns out to be normal.  Where the tests are abnormal, there is often an allergy history or cigarette smoking history.  A claimant can complain in testimony of shortness of breath but if the FVC and FEV1 parameters are normal, that fact will carry the day with the judge because this is objective evidence. Awards must be based on objective evidence of restriction of function under N.J.S.A. 34:15-36. Many cases have been decided in the past few years in favor of the employer on respiratory claims solely because the employer retained the better medical expert, who did spirometry, lung volume testing, and diffusion capacity testing.

Employers who must defend respiratory claims following plant closings should try to procure photos of the work environment, preferably video of the work environment, so that the defense expert and judge can see first-hand what the conditions really were like.  Claimants in plant closing respiratory claims tend to say the same things: “the atmosphere was dirty and dusty at all times, and I coughed a lot.”  But the photos and videos of the work premises can rebut these allegations.

One little known fact is that mild bronchitis is excluded from compensation in N.J.S.A. 34:15-36.  Many cases come down to complaints of a cough for which the employee has never treated.  Arguably, if this complaint is true, it is a condition of mild bronchitis, which is not compensable by law.

In any type of occupational disease claim, social media plays a major role because many claimants post information on Facebook or other sites that contradict their assertions in the workers’ compensation claim.  Ex:  employee in an occupational knee claim posts photos of recent 5k runs, or employee in occupational back claim posts photo of himself lifting 400 pounds at the gym.  Defense law firms often win many traumatic and occupational disease claims simply by doing social media searches.

Insurance carriers and third party administrators have access to ISO reports, and employers should re-run ISO searches periodically during the life of the case.  An ISO report will often lead to other accidents or claims which may independently explain the reason the claimant has certain symptoms.  In the case of Jackson v. Township of Montclair, No. A-2212-11T2 (App. Div. July 5, 2012), the employee denied any prior knee problems only for the adjuster to discover that one year before the workers’ compensation accident, the employee had injured his knee in a car accident and had the very same diagnosis at that time.  The employer eventually pressed successfully for a dismissal based on workers’ compensation fraud.

Collaboration among the employer team (department supervisor, HR, plant manager, claims professional, defense counsel, and others) will almost always lead to valuable information about the claimant.  For this reason, employers who actively get involved in the defense of claims have uniformly better results than employers who simply refer the entire defense to the carrier/TPA and defense counsel.  This point cannot be emphasized enough: no one knows more about the work conditions and the claimants than the management team.

When all the discovery has been completed, the choice of independent medical examiner is dispositive.  The entire investigation, prior medical information, surveillance or videos of the job must go to the expert along with an explanation of the legal standard under N.J.S.A. 34: 15-31.   Not enough time is spent on choosing the right medical expert.  Factors to consider include whether the medical expert supports his opinion with scientific articles or just generalizes on causation, whether the medical expert testifies well in court, and whether the medical expert is known to ask detailed past medical history and past hobbies/recreational activities. Occupational disease claims depend on science because the standard is whether the occupational disease is produced by causes that are characteristic of or peculiar to the occupation.  Hence, Dr. Kenneth Peacock will provide medical literature to support his opinion that a given activity – typing, for example – has not been shown to be linked to the development of carpal tunnel syndrome.  That sort of testimony is powerful both in the Division of Workers Compensation and in the Appellate Division.  The claimant’s doctor may say simply that typing caused the carpal tunnel syndrome condition, but if he or she cannot back that theory up with research or medical literature, the assertion is nothing more than a net opinion.  So clients and counsel should dialogue the choice of defense expert, and in that connection, the cheapest expert is generally the worst choice.

To sum up, occupational disease cases can be won consistently by the employer, particularly occupational respiratory and stress cases.  The case law is favorable in both areas of the law.  Respiratory cases can often be won just because the employer retained the best pulmonary expert in the region who does the full range of pulmonary function testing.  Stress cases can be won because every employee is under stress generally, and generic stress is not compensable. Further, stress caused by merited criticism is not compensable.   Occupational orthopedic claims involving the joints or upper extremities are more challenging for employers, but they can be won with strong collaboration among the defense team and with exhaustive past medical discovery.

This is a two part analysis of the defense of occupational disease claims in New Jersey workers’ compensation.  The first segment will focus on the proofs in occupational disease cases and why this practitioner believes that these kinds of claims will be filed increasingly in coming years.  The second segment will focus on how employers can win occupational disease claims.

After the New Jersey Workers’ Compensation Act was reformed in 1979, occupational disease was defined in such a way that there are really four proofs that a claimant must make to prevail in compensation court, and language was inserted in N.J.S.A. 34:15-31 which provided some level of protection for employers.  While some practitioners believe it is easier for a claimant to win an occupational disease claim than a traumatic claim, this argument ignores the fact that there are additional proofs in an occupational claim that do not exist in a traumatic claim.

Both types of claims must satisfy the following two standards:

• An occupational disease as well as a traumatic injury must arise out of the employment;
• An occupational disease as well as a traumatic injury must occur during the course of employment;
• However, in an occupational disease claim, the claimant must also prove that the illness was produced by causes which are characteristic of or peculiar to the trade, occupation, or place of employment.
• Further, the claimant must show that work contributed in a material degree (not a minor degree) to the illness.

The statute also says, “Deterioration of a tissue, organ or part of the body in which the function of such tissue, organ or part of the body is diminished due to the natural aging process thereof is not compensable.”  If an employer can prove the condition is due to the natural aging process, the employer wins.

After the 1979 Amendments took place, employers began to test the new provisions of the law in response to an enormous number of occupational respiratory claims filed in the 1980s.  These claims were often filed by pipefitters or shipyard workers and generally involved exposure to asbestos, leading to a variety of asbestos-related diseases.  By the mid-1980s into the late 1990s, firefighters, police officers and factory workers around the state began to file thousands of occupational respiratory claims.  These respiratory claims constituted the single largest group of occupational disease claims in the Division of Workers’ Compensation at this point in time.

Employers began to litigate these respiratory cases in the 1990s leading to fairly strong case law for respondents, particularly Laffey v. City of Jersey City, 289 N.J. Super. 292 (App. Div.), certif. denied, 146 N.J. 500 (1996).  Laffey stressed that courts should not focus just on the petitioner’s own description of the work environment as dusty and dirty, but on evidence of articles, treatises, and medical studies that prove a link between exposure to fumes and dust to complaints of shortness of breath and coughing.  Employers began to win a high percentage of trials, and the volume of such claims declined because the science often was not there to support the claim.

The next big wave of occupational claims occurred in the 1990s with occupational carpal tunnel claims.  These claims have also recently tailed off in volume for different reasons:  first, ergonomic changes in the workplace have created safer work environments for those who use their hands throughout the day.  Secondly, the New Jersey Workers’ Compensation Act continues to undervalue hand injury claims such that a hand injury is worth 2.45 weeks per percentage while an injury to the trunk is worth 6 weeks per percentage.

The single most devastating case to occupational carpal tunnel claims was Huntoon v. Borough of Clementon, No. A-0956-09T3 (App. Div. July 28, 2010).  That case barred the claim of a clerical worker who filed a claim petition in 2007 alleging carpal tunnel syndrome from continuing typing and paper work.  The respondent’s attorney obtained prior family doctor records which showed in 2004 that petitioner already had a diagnosis of carpal tunnel syndrome. Even though she continued to allege exposures contributing to her illness through 2007, the Judge of Compensation held that the claim petition was time barred because petitioner did not file within two years from when she knew her condition and thought it was work related.  The Appellate Division affirmed. Because of this case, the statute of limitations remains a powerful defense to many occupational disease claims.

Enter the most recent wave of occupational disease claims, which began to form in the past five years.  Some law firms began fairly recently to market occupational disease claims or repetitive stress injuries through print and radio spots, specifically targeting older workers who may have problems with their shoulders, spine, legs and arms. These claims involve allegations that such medical conditions are a result of decades of repetitive work activities.  Prior to 2010, these claims had been occasionally filed in New Jersey but in recent years, the filings are dramatically increasing.  Clever law firms have recognized that employees are working later in life and longer than in the past. The so-called aging workforce is an enormous market in New Jersey and in other states for occupational disease claims of the upper extremities and spine.  This trend is here to stay for economic reasons: folks are working later and longer because they have to in order to survive.  One can expect that occupational disease claims for upper extremities and the spine will constitute an ever rising percentage of formal petitions in the coming years.

What is the main weapon that claimants use to advance occupational claims for the shoulder, spine, arms and legs?  It is the MRI.  The MRI study has probably cost employers nationally in workers’ compensation billions of dollars over the years because employers inevitably end up paying for normal age-related changes. The MRI is a study which provides a fairly accurate and clear picture of the body part:  a partial or full tear, a herniated disc, a torn meniscus or ligament, etc.  But it cannot date the finding or indicate whether the finding on MRI is age related or is the result of years of repetitive physical activity, whether at work or in the gym.  As Dr. Kenneth Peacock has said, “One can look at an oak tree and know that it did not spring up overnight.”  That is true, and employers know intuitively that they are often being asked to pay for normal age related changes on MRI, but the problem is that there is no medical science that can clarify when and why certain abnormalities are found in joints or disc spaces. One cannot simply argue to a judge of compensation that every bulging disc is preexisting and unrelated to physical exertion. Costs also limit the ability of respondents to counter a positive MRI.  For example, seldom does a doctor treating a right shoulder claim for a partial tear order an MRI of the asymptomatic left shoulder to compare the findings in the shoulders.  If this were done, one would often find that both shoulders have identical partial tears due to aging.  But this would be expensive and problematic.

So how does a doctor tell the difference between a joint problem that is caused by a worker who repetitively does a physical task and a joint problem that is caused by the natural aging process? If technology cannot solve the problem, then defense counsel must step in with the help of strong expert witnesses who can provide good medical literature and studies.  Discovery is crucial for employers, and it remains this practitioner’s belief that employers can win occupational disease cases only if they perform aggressive prior discovery.  In the next segment, the focus will be on the steps employers must take to successfully defend such cases, beginning with getting prior family doctor records from as far back as possible.  Without such records it is next to impossible to determine whether the medical condition is preexisting or produced by non-work activities or age-related changes.  Defending occupational disease claims without prior discovery is like picking horses at the race track based on names: you will only win by accident.

Frank Ascione worked for U.S. Airways at Newark Liberty International Airport as a fleet service agent since 1981.  He handled baggage and drove equipment to push back planes.  He would work in the “bag room,” transporting baggage to and from the plane.  He assisted in de-icing of planes about 20 times in his career and worked with a chemical named glycol.  He said the diesel tugs he drove released smoke that would enter the cab of the tug, leaving a heavy soot on the floor of the vehicle.  It was often hard to breathe, and sometimes he would have to stick his head out the window for fresh air.  Sometimes the baggage conveyor belt would jam, requiring him to crawl into the system to remove baggage.  When that would happen, dirt, dust and asbestos would fall on him.  He also was exposed on occasion to clouds of smoke emanating from the engine while unloading the plane.

Petitioner brought a claim for pulmonary injuries against U.S. Airways.  At trial he testified that he had a lack of energy, although he still worked for the company and took overtime.  He complained of a cough and shortness of breath which prevented him from exercising or playing sports.  He admitted to a history of heart problems and had a cardiac catheterization in 2009.

Dr. Malcolm Hermele testified for petitioner as an expert in internal medicine, although he admitted he is not board certified in pulmonology.  He testified that x-rays of petitioner’s chest showed damaged alveoli which could be caused by exposure to fumes, dust and pulmonary irritants.  He did concede that petitioner’s excessive weight could be an independent cause of fatigue and shortness of breath.  Losing weight, he admitted, would help petitioner reduce his symptoms.  Dr. Hermele said petitioner suffered from chronic bronchitis and probably restrictive pulmonary disease caused or aggravated by work exposures.  He estimated 35% permanent partial disability.

Dr. Benjamin Safirstein, a board certified pulmonologist, testified that petitioner’s physical exam was “pretty normal.”  He said that the first set of pulmonary functions studies were entirely normal.  He had no obstruction, restriction or impairment in diffusion.  One of the key factors in this case was that Dr. Safirstein did more extensive pulmonary function testing than Dr. Hermele did.  Dr. Safirstein performed spirometry, lung capacity and diffusion testing, while Dr. Hermele only did spirometry.  According to Dr. Safirstein, spriometry alone is only preliminary and cannot be used to diagnose pulmonary diseases.  Another point of contention between the experts was the x-rays, which were completely normal according to Dr. Safirstein.

Dr. Safirstein performed a second pulmonary function test in late 2012, which showed a mild decline in the vital capacity parameter of petitioner’s lung volumes.  He attributed this decline to lack of effort on the part of petitioner in performing the test and his excessive weight, or cardiac enlargement.  He did admit that petitioner would qualify as having bronchitis, but did not believe that this condition was due to work.  As for petitioner’s shortness of breath, that could be caused by any number of conditions, including morbid obesity and an enlarged cardiac silhouette suggestive of cardiac disease.

The Judge of Compensation ruled for petitioner and awarded 7.5%.  U.S. Airways appealed.  It argued that the Judge of Compensation failed to make critical findings concerning the conflicting testimony of the medical experts in this case.  The court said, “A workers’ compensation judge should ‘carefully explain why he or she considered certain medical conclusions more persuasive than others.’” Smith v. Montgomery nursing Home, 327 N.J. Super. 575, 579 (App. Div. 2000).  The court said the judge failed to articulate her reasons for making discretionary decisions.  In a key statement the court said:  “This court has reversed decisions from judges of compensation when a decision merely recounts the highlights of the expert testimony without making any conclusions.”  What the court meant is that it was not enough for the judge to simply discuss the testimony of the experts: since their testimony conflicted, she needed to make credibility findings.

The court observed that Dr. Safirstein’s testing was superior to that of Dr. Hermele.  All Dr. Hermele measured is air flow, not lung volumes.  More testing was needed to confirm an abnormality, according to Dr. Safirstein.  “As noted, the judge failed to fully explain why she rejected the findings and conclusions of Dr. Safirstein, and credited those of Dr. Hermele.”  The court remanded the case for the judge to make specific and detailed findings as to expert witness credibility and determine whether petitioner has proven “by suitable medical evidence that the employment exposure did indeed cause or contribute to the disease . . . [and] that the employment exposure substantially contributed to the development of the disease.”

This case can be found at Ascione v. U.S. Airways, A-5049-12T1 (App. Div. April 10, 2014).

Anthony DiFabrizio worked for US Airways since 1985 at both Newark Airport and LaGuardia Airport.  At Newark Airport he loaded and unloaded baggage from planes, trucks and conveyor belts, as well as driving equipment to push back planes from ramp areas.  At LaGuardia he worked from 1995 to 2008 doing similar work. He also worked two years in the freight facility, which he described as stuffy.  From 1999 to 2008 he drove trucks to push back planes and directed planes. As of the time of the court decision he was still working for US Airways but had returned to Newark Airport.

In 2001, DiFabrizio started to feel short of breath and noticed that he could not exercise or play sports to the same degree he had been able to in the past. He saw his doctor for upper respiratory conditions and took some medication for a viral infection. However, he was able to do his job and volunteer for overtime work.  He never sought treatment from an allergist or pulmonologist.

DiFabrizio was examined as part of his workers’ compensation case by two experts:  Dr. Malcolm Hermele for petitioner and Dr. Benjamin Safistein for respondent.  Dr. Hermele interpreted his chest x-ray as showing “increased interstitial markings” indicative of restrictive disease. He also diagnosed chronic bronchitis, estimating an impairment of 35%.  Dr. Hermele relied on a 2001 article from OSHA regarding the negative health effects of exposure to diesel exhaust.  That article did not refer to any other substances that DiFabrizio claimed exposure to.

For his part, Dr. Safirstein found petitioner’s physical exam to be normal.  He noted that petitioner denied shortness of breath and a cough, which would negate the diagnosis of chronic bronchitis.  He said the x-ray of the chest was normal and his pulmonary function testing was just shy of normal.  Unlike Dr. Hermele, Dr. Safirstein was board certified in pulmonary medicine.  Further, Dr. Safirstein performed more extensive pulmonary testing, while Dr. Hermele only performed spirometry.

Notwithstanding these significant differences between the experts, the Judge of Compensation awarded petitioner 5% permanent partial disability.  US Airways appealed and argued that the evidence did not support the award.

The Appellate Division said that where two experts have diametrically opposed views, it is crucial for the Judge of Compensation to explain why he or she favored one expert over the other.  The court said that in this case there was no such explanation.  The Appellate Division commented on the more thorough examination by respondent’s expert.  “While Dr. Hermele performed lung function tests that measured only spirometry, Dr. Safirstein administered additional tests including diffusion analysis, which he termed ‘the most important test that anyone can have in lung function.”  Dr. Safirstein said that doing spirometry alone is not enough because sprirometry is only preliminary in nature and cannot be used to diagnose restrictive pulmonary disease.

The court also noted the specific standards that a claimant must meet in an occupational disease claim. It reversed the decision of the compensation judge and remanded the case. “On remand, the judge of compensation must make detailed findings and determine on the present record whether DiFabrizio has proven ‘by suitable medical evidence that the employment exposure did indeed cause or contribute to the disease . . [and] that the employment exposure substantially contributed to the development of the disease.’”

The case illustrates a number of lessons for practitioners.  In respiratory claims, it is particularly important to retain board certified experts who do the complete testing that is necessary to establish either an obstructive or restrictive impairment.  The abbreviated testing by petitioner’s expert put petitioner at a disadvantage. Moreover, science matters in occupational claims:  simply saying one is exposed to various pulmonary irritants is seldom enough without some scientific support linking the alleged exposure to the particular medical condition.

This case can be found at DiFabrizio v. US Airways, A-1497-12T4 (App. Div. November 20, 2013).

Of what significance is it when a claimant who has been treating with a cardiologist for decades files a pulmonary claim but never produces the cardiologist to testify? That was the key issue in Donato v. Jersey City Municipal Utilities Authority, A-5984-11T4 (App. Div. August 21, 2013).

John Donato worked for the JCMUA from 1961 to 1974 and again from 1986 to 1999.  He worked both as a clerk and a vehicle maintenance supervisor, supervising the maintenance of cars, trucks, dump trucks, and vacuum trucks.  He was exposed to soot and whatever else workers brought back from the sewer plant, as well as diesel fumes and dust.  In addition, the property where petitioner worked had apparently been contaminated with chromium during the ownership of a prior owner and was now being monitored by the Department of Environmental Protection.

In 2004, petitioner was diagnosed with pulmonary disease.  He produced an expert, Dr. Malcolm Hermele, who said petitioner had a 75% partial permanent disability for probable bronchitis, restrictive pulmonary disease, small airways disease and COPD.  He said overall petitioner was totally disabled.  He could not distinguish whether petitioner’s breathing problems were due to pulmonary or cardiac causes.

Petitioner had been treating with a cardiologist for 23 years.  He himself testified that he thought his breathing difficulties were related to his heart condition.  He admitted that he had never treated with a pulmonary doctor even though he noticed that his breathing problems were worsening since 1988.

Dr. William Kritzberg testified for respondent.  He said that the pulmonary function testing he performed on petitioner did not reveal a mild obstruction in pulmonary capacity.  He felt that petitioner’s pulmonary symptoms were due to heart surgery, drugs used for his heart, and his body weight.  He also said that any chromium exposure would not affect pulmonary performance.

The Judge of Compensation noted that respondent’s expert was board certified in internal medicine but petitioner’s expert held no board certifications.  She also said that she drew an adverse inference from the failure of petitioner to produce the certified copy of the records of the treating cardiologist, have Dr. Hermele review them, or produce the cardiologist to testify.

Said records would have reflected any complaints petitioner had concerning his breathing.  It is quite simply implausible that petitioner has the conditions Dr. Hermele diagnosed and that petitioner’s treating cardiologist never referred petitioner to a pulmonologist for treatment (petitioner repeatedly testified that he never received any pulmonary treatment).  Certainly, petitioner’s treating cardiologist of 23 years was in the best position to opine as to whether Donato’s symptoms were due to his severe heart condition or due to a pulmonary condition.  That petitioner’s cardiologist never referred petitioner for pulmonary treatment or prescribed pulmonary medicine leads the court to conclude that petitioner’s complaints are not ‘due in a material degree’ to his occupational exposure at the JCMUA.  He was sent to Dr. Hermele by his attorney for a permanency evaluation, not for treatment.

The Appellate Division agreed.  It said,

Given petitioner’s more than two-decade history of heart disease, those records and the opinions of the treating cardiologist in relation to petitioner’s claim that his pulmonary condition was causally related to the workplace, rather than his heart disease, were highly relevant and probative.  It was petitioner who bore the burden of presenting the requisite proofs to establish his claim. . . Thus, the fact that petitioner’s treating cardiologist, as a witness, or his cardiologist’s treatment records may have been equally available to both parties did not preclude the judge from ‘making a negative inference from the fact that petitioner never produced a certified copy of the records from his treating cardiologist or had Dr. Hermele review said records as part of his evaluation.’

On a separate, but equally important issue, the Appellate Division disagreed with the petitioner’s argument that respondent violated N.J.S.A. 34:15-64 by compensating Dr. Kritzberg far in excess of the statutory maximum of $400 for his evaluation and $400 for his trial testimony.

We construe the language of the statute as limiting the fees that may be charged by an evaluating or treating physician in order to maximize the recovery on behalf of an injured worker.  Therefore, the limitation on chargeable fees is intended to protect petitioners.  Moreover, even if we were to construe the statute as limiting fees chargeable by medical experts as applying to respondents’ experts, as well as petitioners’ experts, any violation should not result in the exclusion of the report on that basis alone.  Petitioner presented absolutely no evidence before the compensation judge to support his contention that if there are no limitations placed upon fees charged by respondents’ experts, respondents will be able ‘to afford to bring a more qualified expert to court to offer opinions.’

 This case is one that practitioners should turn to when trying occupational disease claims.  The rules for discovery in the Division of Workers’ Compensation are somewhat lacking, and this case points out the importance of getting prior treating records, even if there is no particular rule that requires prior records to be produced. The outcome of this case turned on a complete failure of discovery in obtaining prior cardiology records and forwarding them to the experts.

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This blog article was researched and written by John H. Geaney, a member of the executive committee and equity partner at the law firm of Capehart Scatchard. The content of the this article is intended to provide general information on the topic presented, and is offered with the understanding that the author is not rendering any legal or professional services or advice. This article is not a substitute for legal advice. Should you require such services, retain competent legal counsel.

Appellate Division Affirms Decision of Judge of Compensation on Making an Adverse Inference From Failure of Petitioner to Produce Treating Cardiologist in Case

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