Gatekeeping Scientific Evidence Post-2023

Analyzing Special Master Wolfson's Comprehensive Framework for Expert Testimony Admissibility

The Admissibility of Scientific Evidence: A New Evidentiary Standard

The New Jersey Supreme Court has adopted a new evidentiary standard to evaluate the admissibility of scientific evidence. While expanding the guidelines to consider Daubert factors in determining the admissibility of expert testimony, the Court did not embrace the full body of Daubert case law as applied by 39 other state and federal courts. Daubert v. Merrill Dow Pharms., Inc. 509 U.S. 579 (1973), N.J.R. Evid. 702.

GAO Report on Adding Cancers to WTC Covered Conditions

Next week marks the anniversary of the terrorist attacks on the United States including the World Trade Center. The program for medical surveillance and compensation continues to proceed to benefit first responders and those in the immediate area of the New York City attack on 9-11.
Today's post is shared from cdc.gov

The World Trade Center (WTC) Health Program was established by the James Zadroga 9/11 Health and Compensation Act of 2010 (Act), and is administered by the National Institute for Occupational Safety and Health (NIOSH). The Program provides medical monitoring and treatment at no cost for enrolled responders at the WTC and related sites in New York City, Pentagon, and Shanksville, PA. It also provides services for enrolled survivors who were in the New York City disaster area. Health conditions, such as types of cancer, can be added to the list of WTC-related covered conditions after a valid petition has been received and the scientific evidence for causation by exposures at the attack sites is analyzed.

In September of 2011, the Administrator of the WTC Health Program, Dr. John Howard, received a petition from nine New York members of Congress asking him to consider adding cancer to the List. The Administrator reviewed the petition and requested the advice of the WTC Scientific/Technical Advisory Committee (STAC), which provided recommendations to add specific types of cancer. After reviewing the STAC’s recommendation, evaluating the available science, and considering public comment on a proposed rule, in 2012 the Administrator published a final rule which added certain types of cancer to the List and explained the approach used to add the types of cancer.

Recently, the U.S. Government Accountability Office (GAO) evaluated the World Trade Center Health Program’s approach to adding cancers to the List [see:http://www.gao.gov/products/GAO-14-606]. The GAO found that the Administrator used a hazard-based, multiple-method approach to determine whether to add cancers to the WTCHP list of covered conditions for which treatment may be provided. Experts who participated in a meeting held by GAO indicated that the Administrator’s approach was reasonable but could be improved. The GAO reports:

• According to these experts, a hazard-based approach focuses on identifying whether particular “hazards”—sources of potential harm—are associated with certain health conditions, and does not attempt to quantify the risks of developing those health conditions. The Administrator’s approach used four methods to determine whether there was an association between a September 11 exposure and a specific cancer, and thus, whether to add that cancer to the list.
• The experts considered the approach reasonable given the WTCHP certification process for enrollees to obtain coverage for treatment for a condition on the list, the lack of data related to exposure levels and risks, and the use of similar approaches by previous federal compensation programs.
• The experts indicated the approach could have been communicated more clearly. For example, the description of the approach in rulemaking did not clearly articulate how decisions would be made when evidence under one method supported adding a cancer type to the list, and evidence under a different method did not. The Administrator noted that this omission was an oversight. Since the Administrator plans to use the same approach in future cancer-related decision making, the absence of a clear description can lead to questions about the credibility and equity of the program.
• According to the experts, an independent peer review process similar to that used in other federal compensation programs could improve the approach. According to the Administrator, this was not feasible due to time constraints imposed by law. A process through which an independent party assesses the validity of the information upon which decisions are being made and that rationales for decisions are clearly described could help ensure the credibility of the Administrator’s approach.

NJ Court Sets the Evidentiary Proof Standard for a Pulmonary - Cardiovascular Claim

A NJ Workers' Compensation Court affirmed the dismissal of a pulmonary claim ruling that the evidence presented was lacking, and that the statutory limitations of expert medical fees do not act to the detriment of the injured worker in the proof of a workers' compensation claim.

"In her written opinion, the compensation judge found the testimony of Dr.Kritzberg more credible than that of Dr. Hermele. The judge found that petitioner's counsel “trie[d] to make it appear that petitioner presented to Dr. Hermele on his own for treatment. That is simply not true. Petitioner's counsel sent petitioner to Dr. Hermele. Dr. Hermele did not treat petitioner.” Additionally, of great significance to the compensation judge was the fact that petitioner had been treating with a cardiologist for twenty-three years, testified that he believed his breathing difficulties were related to his heart condition, and had never been treated for any pulmonary condition, despite testifying that his pulmonary complaints worsened in 1988, while continuing to work for respondent for eleven more years. The judge inferred that petitioner's cardiologist never referred him to a pulmonary specialist for treatment.

The Court also held that an "adverse inference" could be drawn when the injured worker does not offer supporting medical records into evidence to prove a claim.

"The compensation judge drew an adverse inference “from the fact the petitionernever produced a certified copy of the records from his treating cardiologist orhad Dr. Hermele review said records as part of his evaluation[,]” noting that Dr.Hermele readily admitted “there is a relationship between the heart and thelungs.”

Furthermore, the medical evidence presented at the time of trial, support the lack of causal relationship of a pulmonary medical condition caused by a pre-existing cardiovascular condition, rather than an independent pulmonary condition cause by exposure to industrial air pollution.

"Critical for the court were the chest x-rays taken of the petitioner which
showed that he did not have bi-lateral flattening of his diaphragm. If he
truly had pulmonary disease unrelated to his heart condition[,] you would expect
to find bi-lateral flattening of the diaphragm. Only the left side of petitioner's diaphragm was flattened[,] which is to be expected since both doctors
agreed petitioner has cardiomegaly (enlargement of the heart).....

The COVID-19 Advisory Board and the Future of Workers’ Compensation

Today, the Biden-Harris Transition announced the formation of the Transition COVID-19 Advisory Board, a team of leading public health experts who will advise President-elect Biden, Vice President-elect Harris, and the Transition’s COVID-19 staff. The Transition COVID-19 Advisory Board will be led by co-chairs Dr. David Kessler, Dr. Vivek Murthy, and Dr. Marcella Nunez-Smith. Dr. Beth Cameron and Dr. Rebecca Katz are serving as advisors to the Transition on COVID-19 and will work closely with the Advisory Board.

Congressional Leaders Push CDC and OSHA to Address Aerosol Transmission of COVID-19

Congressional leaders wrote a letter to the Biden administration urging the Centers for Disease Control and Prevention (CDC) and the Occupational Safety and Health Administration (OSHA) to update ventilation and respiratory protection guidance and standards to address aerosol transmission of the COVID-19 virus.

Health Care Experts Discuss a COVID Second Wave

How do we know when the second wave is starting? What should we expect? These are only two of the questions Dr. Chad Kessler, National Program Director for VHA Emergency Medicine, asked during a recent COVID in 20 interview with VA Infectious Disease and Epidemiology wizards, Michael A. Gelman, M.D., Ph.D., and Gio Baracco, M.D., from James J. Peters VA Medical Center in the Bronx, New York and Miami VA Healthcare System in Miami, Florida respectively.

Sleep Experts Say Bosses Should Let Their Employees Take A Nap At Work To Boost Productivity

Today's post was shared by Work Org and Stress and comes from www.medicaldaily.com

Sleep at Work Experts say employees should be allowed to take a nap at work. Reuters Todays' post is shared from medicaldaily.com Fatigue is inevitable during any long work day, and sometimes coffee is just not enough to get most people through their midday slump. British sleep experts are now saying that bosses should allow their employees a nap during the day and the option to make their own schedule to help increase productivity. Millions of people fail to get enough sleep during their week and are forced to compensate over the weekend when their work has already suffered. “It’s best to give your brain downtime,” Vincent Walsh, professor of human brain research at University College London told Cheltenham Science Festival. “I have a nap every afternoon. It’s only since the industrial revolution we have been obsessed with squeezing all our sleep into the night rather than having one or two sleeps through the day.” A recent study conducted by the Centers for Disease Control and Prevention’s National Institute of Occupational Safety and Health revealed that around 41 million American workers are not getting the seven to nine hours of sleep recommended by the National Sleep Foundation. Sleep deprivation is putting these people and their co-workers in danger of serious injury or death. Walsh says our obsession with sleeping only at night may be hindering our ability to be more creative. Most of our creative thoughts come to us during periods of relaxation when the brain makes new...

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Verdict: $2 Billion -- Herbicide Occupational Exposures - The Next Wave of Serious Compensation Claims

A jury in California has awarded a couple $2 Billion as a result of cancer contracted after using RoundUp manufactured by Monsanto. This is the 3rd verdict in a row in a series of trials against the pesticide manufacturer.

An Abnormal Hurricane Season is Still Predicted

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Credibility Beats Credentials

A Costco worker quit, wrote “personal reasons” on the form, and still collected temporary disability benefits. The Appellate Division affirmed on August 12, 2026.

The New Jersey Appellate Division has affirmed an award of open temporary total disability benefits and court-ordered medical treatment to a part-time Costco employee who resigned his job almost a year after his authorized surgeon discharged him at maximum medical improvement. The decision, Munoz v. Costco, Docket No. A-3829-24, decided August 12, 2026, is unpublished and is not precedential under Rule 1:36-3. Its practical reach, however, is considerable, because it turns entirely on two things that decide most contested New Jersey compensation cases: which doctor the judge believes, and whether the employer papered the file.

The Facts

Ricardo Munoz injured his right knee in January 2022 while helping a customer lift a generator into a pickup truck. He reported the injury immediately. He was diagnosed with a right knee medial meniscal tear and extensive chondromalacia of the patellofemoral trochlear groove. Dr. Daniel Richmond, the authorized surgeon, performed an arthroscopic medial meniscectomy on May 19, 2022, cleared Munoz for light duty on June 2, and returned him to full duty effective July 12, 2022.

Full duty did not hold. On July 15, Munoz reported that his knee swelled after a couple of hours of work. On August 2, he reported persistent swelling and worsening symptoms after five hours. Both times Dr. Richmond recommended that he continue working full duty, and he was discharged from care.

On September 29, 2022, Munoz resigned. The company resignation form recorded his reason for leaving as “personal reasons.” Costco's human resources representative testified that Munoz never mentioned the knee and instead said a family member was ill and he could not commit to being at work.

Munoz told a different story under oath. He testified that the knee would “blow up” during his shift, that afterward he could not climb the steps to his home or go food shopping, that he asked about a less physical position, and that he called the compensation adjuster repeatedly seeking further treatment and never received a return call. He did not look for other work after leaving. He testified he had intended to stay at Costco for years.

Three Doctors, Three Stories

Dr. Richmond, the authorized treating surgeon, opined that the grade IV chondromalacia was pre-existing and unrelated, that the injury arose from “normal lifting activities,” and that there was no aggravation or acceleration of the underlying patellofemoral degenerative joint disease. On cross-examination, he conceded that Munoz had no prior right knee complaints or treatment, that the chondromalacia was diagnosed only after surgery, and that the degenerative disease became symptomatic only after the return to full duty.

Dr. Gerardo Goldberger, examining for the petitioner, testified that the arthroscopy itself aggravated the degenerative joint disease by changing the mechanics of the knee, and that Munoz was limited to modified sedentary work. He recommended therapy, injections, and eventually total knee replacement.

Dr. Frederick Song, the neutral examiner selected by the court, testified that while he could not say definitively that the medial compartment surgery worsened the pre-existing patellofemoral arthritis, the injury likely exacerbated the pain and activated symptoms in that compartment. He offered the formulation that carried the case: any surgery by definition exacerbates arthritis, because the muscles are weakened by the surgery.

Credibility Was the Whole Case

The judge of compensation found all three experts credible in the general sense, then found Dr. Richmond's causation opinion the least persuasive. That distinction is the heart of the decision, and it is worth understanding precisely why the treating surgeon lost.

The judge identified four specific defects, none of them about credentials:

•      Internal inconsistency. Dr. Richmond insisted there were no work restrictions related to the meniscal tear even though Munoz had performed the job without difficulty before the accident.

•      Concession on cross. He ultimately agreed with the treatment recommendations regardless of cause, which undercut the sharp causation line he had drawn in his written addendum.

•      An unaddressed question. He never addressed continued acceleration of the arthritic and degenerative process attributable to the surgery itself.

•      A mischaracterized mechanism. He described the event as a “normal lifting incident” when the testimony described a twisting injury, with the petitioner's foot planted as he lifted a heavy object into a truck.

The judge also declined to be distracted by transcription errors in Dr. Goldberger's report, accepting the explanation that the physician's accent had produced typing errors in dictation. That is the ordinary work of a fact finder, and it is exactly the work an appellate court will not redo.

The Appellate Division reached for the settled rule in Bellino v. Verizon Wireless, 435 N.J. Super. 85, 95 (App. Div. 2014): a judge of compensation is not bound by the conclusional opinions of any one or more, or all, of the medical experts, is considered to have expertise in weighing competing medical testimony, and commits no reversible error by giving more weight to one physician than another.

Layered on top is the deferential standard of review for agency action. An agency determination is sustained unless it is arbitrary, capricious, or unreasonable, or lacks fair support in the record. See Melnyk, 241 N.J. 31, 40 (2020); Saccone, 219 N.J. 369, 380 (2014); Russo, 206 N.J. 14, 27 (2011). The burden of showing otherwise rests on the party challenging the action, Lavezzi v. State, 219 N.J. 163, 171 (2014). Combine Bellino with that standard and a credibility finding in the Division becomes close to unreviewable.

The Temporary Disability Ruling

The harder question was money. Costco argued that Munoz voluntarily resigned, was not under active treatment when he did so, and therefore removed himself from the workforce. The compensation judge rejected that framing on three grounds.

First, the resignation was not voluntary in any meaningful sense. The judge found Munoz extremely credible and found that his “personal reasons” were that he could not tolerate the pain. He had asked about lighter work and was told, in substance, that he was in sales, and that ended the discussion. Under Harbatuk v. S & S Furniture Systems Insulation, 211 N.J. Super. 614, 624 to 625 (App. Div. 1986), an employer must offer light duty work in order to terminate temporary disability benefits. Costco did not.

Second, the gap in treatment was the respondent's doing. Once Dr. Richmond discharged him, there was no reason for Munoz to keep asking, and the employer would not provide care that would let him function. See N.J.S.A. 34:15-15; Benson v. Coca Cola Co., 115 N.J. Super. 585 (Law Div. 1971), remanded, 120 N.J. Super. 60 (App. Div. 1972). The unreturned adjuster calls mattered.

Third, all three experts, including the authorized treating surgeon, agreed the petitioner could not work full duty. Applying Cunningham v. Atlantic States Cast Iron Pipe Co., 386 N.J. Super. 423, 432 (App. Div. 2006), the judge awarded temporary disability retroactive to the September 29, 2022 resignation date and continuing until Munoz is returned to full duty status by Dr. Song, who was designated the court-ordered treating physician, or as otherwise provided by statute.

Read the exposure. The award runs from September 2022, through a knee arthroplasty that has not yet been performed, and through post-operative recovery. That is nearly four years of accrued temporary disability at the date of this decision, on a part-time claim that the carrier believed had closed in August 2022.

How This Changes Claims Handling

Nothing in Munoz is new law. That is the point. The decision is a compact demonstration of how existing New Jersey doctrine converts routine claims-handling shortcuts into open-ended liability.

Resignation paperwork is not a defense

A checkbox reading “personal reasons,” completed by a manager rather than the employee, proved worth nothing against sworn testimony the judge believed. Employers who want an exit document to carry evidentiary weight need the employee's own words, in the employee's handwriting, with a specific question about whether the departure is related to a work injury and a specific answer.

An undocumented light duty offer does not exist

Harbatuk is nearly forty years old and still decides cases. If the employer cannot produce a written offer of modified work, with a job description and a date, temporary disability does not stop. “He never asked” is not the standard. “We offered” is.

Silence from the adjuster becomes evidence

Unreturned calls did not merely look bad. They supplied the legal predicate for the petitioner to obtain treatment elsewhere and for the judge to find that the respondent, not the petitioner, caused the treatment gap. Every unanswered voicemail in a claim file is a future exhibit.

The authorized treating physician gets no thumb on the scale

Carriers routinely treat the authorized surgeon's causation opinion as the file's controlling document. Munoz is a reminder that in the Division it is one opinion among several, evaluated for internal coherence and fidelity to the record. Here the treating surgeon's opinion was undone not by a competing credential but by his own concessions and by an addendum that got the mechanism of injury wrong.

The surgery itself can be the aggravating event

The petitioner's theory was not that the accident wrecked the cartilage. It was that authorized treatment for an admitted injury altered the mechanics of the knee and lit up an asymptomatic degenerative condition. That theory converts a routine arthroscopy on a compensable meniscal tear into responsibility for a total knee replacement. Practitioners on both sides should expect to see it again.

The court-appointed neutral is the decisive witness

Dr. Song was appointed by the court, examined once, and was described as the clearest and most impressive witness. Where a judge appoints a neutral, the parties should treat that examination as the most consequential event in the case and prepare the record accordingly.

Asymptomatic does not mean absent, and it does not mean safe

Dr. Richmond's most candid observation was that this kind of job may not be well tolerated by someone with extensive patellofemoral degenerative disease. That observation, intended to defeat causation, instead framed the aggravation theory. Pre-existing pathology that has never caused a symptom is precisely the pathology an employer takes as it finds it.

Key Takeaways

1.     Credibility, not credentials, decides contested causation. The judge of compensation may credit a one-time court-appointed examiner over the authorized treating surgeon and will be affirmed for it.

2.     Bellino remains the operative rule. The compensation judge is not bound by any expert's conclusions, and preferring one physician over another is not a ground for reversal.

3.     Appellate review is narrow. The arbitrary, capricious, or unreasonable standard means the fight over causation is won or lost on the Division record, not on appeal.

4.     A resignation form does not end the claim. Where the judge finds the departure was compelled by pain, the resignation is not a voluntary withdrawal from the workforce and temporary disability runs from the resignation date.

5.     Harbatuk requires an actual offer. Temporary disability does not terminate unless the employer offers light duty work. The offer should be written, specific, and dated.

6.     A discharge at maximum medical improvement is not a permanent closure. When the employer stops providing care that would restore function, the petitioner may treat elsewhere and recover the cost.

7.     An authorized surgery can independently aggravate a pre-existing condition. The mechanical consequences of treatment are a distinct and viable causation theory.

8.     Get the mechanism right. An expert report that recharacterizes a twisting injury as ordinary lifting invites the judge to discount the entire opinion.

9.     Answer the phone. Unreturned adjuster calls supplied both a legal predicate and an unflattering narrative.

10.   The decision is unpublished. Under Rule 1:36-3 it binds only these parties and is not precedent, but it is a reliable map of how these arguments are received.

Cases Cited

1.     Munoz v. Costco, No. A-3829-24 (N.J. Super. Ct. App. Div. Aug. 12, 2026) (unpublished)

2.     Bellino v. Verizon Wireless, 435 N.J. Super. 85 (App. Div. 2014)

3.     Harbatuk v. S & S Furniture Sys. Insulation, 211 N.J. Super. 614 (App. Div. 1986)

4.     Cunningham v. Atlantic States Cast Iron Pipe Co., 386 N.J. Super. 423 (App. Div. 2006)

5.     Benson v. Coca Cola Co., 115 N.J. Super. 585 (Law Div. 1971)

6.     Benson v. Coca Cola Co., 120 N.J. Super. 60 (App. Div. 1972)

7.     Melnyk v. Bd. of Educ. of Delsea Reg'l High Sch. Dist., 241 N.J. 31 (2020)

8.     Saccone v. Bd. of Trs., Police & Firemen's Ret. Sys., 219 N.J. 369 (2014)

9.     Russo v. Bd. of Trs., Police & Firemen's Ret. Sys., 206 N.J. 14 (2011)

10.   Lavezzi v. State, 219 N.J. 163 (2014)

11.   Allstars Auto Grp., Inc. v. N.J. Motor Vehicle Comm'n, 234 N.J. 150 (2018)

12.   In re Stallworth, 208 N.J. 182 (2011)

13.   In re Herrmann, 192 N.J. 19 (2007)

14.   In re Vey, 124 N.J. 534 (1991)

Sources

1.     Munoz v. Costco, No. A-3829-24, 2026 WL 2330191 (N.J. Super. Ct. App. Div. Aug. 12, 2026) (unpublished), slip opinion

2.     New Jersey Courts, Unpublished Appellate Court Opinions (listing Munoz v. Costco, Aug. 13, 2026)

3.     N.J.S.A. 34:15-15, Medical and hospital service

N.J.A.C. 12:235-3.2, motions for temporary and medical benefits, and Rule 1:36-3, unpublished opinions, are cited in the opinion and are referenced above without separate hyperlinks.

Recommended Citation

Jon L. Gelman, Credibility Beats Credentials, WORKERS' COMPENSATION (workers-compensation.blogspot.com), Aug. 14, 2026, https://workers-compensation.blogspot.com/2026/08/credibility-beats-credentials.html.

About the Author

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).

Blog: Workers' Compensation

LinkedIn: JonGelman

LinkedIn Group: Injured Workers Law & Advocacy Group

Author: “Workers' Compensation Law” West-Thomson-Reuters

Blue Sky: jongelman@bsky.social

Substack: https://jongelman.substack.com/

© 2026 Jon L Gelman. All rights reserved.

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