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Thursday, August 22, 2013

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).....

Additionally the compensation limits paid to an injured workers' medical expert the Court held, do not limit the injured workers' ability to obtain qualified medical experts, it actually protects the injured worker from overcharging.
"We construe the language of the statute as limiting the fees that may becharged by an evaluating or treating physician in order to maximize the recoveryon behalf of an injured worker. Therefore, the limitation on chargeable fees isintended 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.”Moreover, while petitioner raised this issue in his trial brief, he did not raise the issue before the compensation judge during the hearing at the time Dr.Kritzberg commenced his testimony.
JOHN DONATO, Petitioner–Appellant,
DOCKET NO. A–5984–11T4
Superior Court of New Jersey, Appellate Division.
--- A.3d ----, 2013 WL 4436532 (N.J.Super.A.D.) 8/21/2013

(Approved for Publication)

Jon L.Gelman of Wayne NJ is the author NJ Workers’ Compensation Law (West-Thompson) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thompson). For over 4 decades the Law Offices of Jon L. Gelman 1.973.696.7900 have been representing injured workers and their families who have suffered occupational accidents and illnesses.

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