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).....
