Workers' Compensation: Plaintiff’s Third-Party Observers May Attend Defense Medical Examinations [DME]

A Defense Medical Examination [DME] is an adversarial proceeding. The NJ Supreme Court has ruled that a trial judge should review any objections made by the defense counsel to prohibit the attendance of a neutral third-party observer [TPO]. While the case arises from a personal injury claim, the Court’s ruling will have applicability to matters before the N.J. Division of Workers’ Compensation [NJDWC]. The NJDWC has not yet promulgated any rules concerning TPOs at DMEs.

DEFENSE MEDICAL EXAMINATION [DME]

One of the critical defense tools for discovery in a workers’ compensation claim is a DME. DME is a unique discovery tool that allows the expert hired by the defense to touch the plaintiff without consent and ask questions that may involve mental health issues

The guidelines established by the N.J. Supreme Court apply to examining plaintiffs with alleged cognitive impairments, psychological impairments, or language barriers.

The Court did not address permitting TPOs at a Plaintiff Medical Examination [PME] or a judicially ordered Independent Medical Examination [IME], where the Court selects the examiner independently, used for litigation purposes.

ISSUE

In this appeal, the Court clarifies procedures regarding who may attend a defense medical examination (DME) and whether and how such tests may be recorded when a plaintiff has alleged cognitive limitations, psychological impairments, or language barriers.

PLAINTIFF’S COMMON LIMITATIONS OR BARRIERS

The consolidated matter involved three personal injury actions where the defendants required the plaintiffs to submit to a DME. Plaintiffs, who had alleged cognitive limitations, psychological impairments, or language barriers, sought to record the examinations or to be accompanied by a third-party observer (TPO) at the examination.

CONCERN THAT A DME IS PERFORMED WITHOUT CONSENT

The Court raised concerns about potential non-consensual aspects of a DME, including where there may be non-consensual touching and inquiry into the personal mental health issues of the examine.

APPELLATE DECISION BELOW

After various trial court rulings, the Appellate Division consolidated the cases for purposes of its opinion. 472 N.J. Super. 100, 104 n.1 (App. Div. 2022). The Appellate Division, who held that a defense psychologist does not have the right to dictate the terms under which a DME shall be held, remanded all three cases for reconsideration in light of its six-part holding that:

(1) “a disagreement over whether to permit third-party observation or recording of a DME shall be evaluated by trial judges on a case-by-case basis, with no absolute prohibitions or entitlements”;

(2) “it shall be the plaintiff’s burden henceforth to justify to the court that third-party presence or recording, or both, is appropriate in a particular case” “despite contrary language” in B.D. v. Carley, 307 N.J. Super. 259 (App. Div. 1998). The NJ Supreme Court reversed this part of the holding and shifted the burden to the Defendant; see below;

(3) the range of options available “should include video recording, using a fixed camera that captures the actions and words of both the examiner and the plaintiff”;

(4) when defense examiners are concerned that TPOs or recordings “might reveal alleged proprietary information about the content and sequence of the exam, the parties shall cooperate to enter into a protective order so that such information is solely used for the purposes of the case and not otherwise divulged”;

(5) a court that permits a TPO to attend a DME “shall impose reasonable conditions to prevent the observer from interacting with the plaintiff or otherwise interfering with the exam”; and

(6) “if a foreign or sign language interpreter is needed for the exam . . . the examiner shall utilize a neutral interpreter agreed upon by the parties or, if such agreement is not attained, an interpreter selected by the court.” Id. at 106-07. The Court granted leave to appeal. 251 N.J. 374 (2022); 251 N.J. 376 (2022).

THE BURDEN IS ON THE DEFENSE TO CHALLENGE TPO

The plaintiff's counsel must notify the defendant that the plaintiff seeks to bring a neutral TPO to the DME. If the defendant objects, then the parties can confer, and if an agreement can not be reached, the defendant may move for a protective order from the court. The burden is upon the defendant to establish why a TPO would be inappropriate.

PROTECTIVE ORDER

The Court suggested that protective orders may be required if the DME examiner alleges proprietary information about the content and sequence of the examination. Parties are requested to confer to establish limitations.

JUDICIARY’S CONSTITUTIONAL AUTHORITY

Justice Wainer Apter, writing for the Court, noted that the Judicial has the constitutional authority to control pretrial discovery. Therefore such organizations as the American Psychological Association’s “Statement on Third Party Observers in Psychological Testing and Assessment” is not binding upon the Court.

RIGHT OF LEGAL REPRESENTATION TO BE PRESENT AT A DME

While the Court did not have the procedural opportunity to review whether the party to be examined had the right to legal representation at the time of the DME, the Court commented that the right “ may indeed arise from New Jersey’s Constitution and Statues.” Attendance of a legal representative ensures that the examination is conducted fairly and addresses any concerns about the process.

ADJUSTING THE POWER BALANCE

As Justice Wainer-Apter stated, "...a DME reflects a profound power imbalance between the plaintiff and a medical professional with long experience in the examination of patients and participation in court proceedings." The guidelines established by the N.J. Supreme Court will adjust the power imbalance between the patient and the defense medical examiner. The holding, in this case, will protect the rights of the injured who suffer from age limitations, ability to communicate, cognitive skills, psychological impairments, inexperience with the legal system, language barriers, and other factors. Judges of Compensation will need to review each factual situation on a case-by-case basis to determine the prohibitions and entitlements of the DME so that the power balance is equalized in this pre-trial discovery procedure.

DiFIORE v. TOMO PEZIC, PEZO, INC., NJ: Supreme Court 2023, Decided June 15, 2023, 2023 WL 4003921.

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Jon L. Gelman of Wayne, NJ, is the author of NJ Workers’ Compensation Law (Thomson-Reuters) and co-author of the national treatise Modern Workers’ Compensation Law (Thomson-Reuters). For over five decades, the Law Offices of Jon L Gelman 1.973.696.7900 jon@gelmans.com have represented injured workers and their families who have suffered occupational accidents and illnesses.