It is always tricky slope for an employer to deny medical
care based on a pre-existing medical condition. The employer must be absolutely
certain that the proofs offered at trial will provide a credible basis for a
ruling by the Court. Without that certainty, the employer could be subject to
paying for uncontrolled medical care as well as for penalties.
Some employers avoid those dire consequences by providing
medical care with reservation as the NJ Statute allows. The employer can then subrogate
a claim against the correct primary medical provider should the claim be
denied.
“Johnson [injured
worker] presented extensive medical proofs, including the testimony of treating
physicians and expert witnesses. This included the deposition testimony of Steven
P. Brownstein, M.D., a practitioner of diagnostic radiology. Brownstein opined
that the disputed MRI could not belong to Johnson because herniated discs and
bone spurs do not spontaneously disappear. Brownstein also stated that the 1999
MRI films depicted a fifty-year-old man, while Johnson’s 2006 MRIs were of a man
no older than thirty-five.
Additionally, the
employee testified that he never had the prior MRI. The Court found the
petitioner to be a credible witness.
The employer refused to pay for medical care following
from a compensable accident at work. The Court ruled that the actions of the
employer were incorrect and that the employer should be held responsible for
paying for medical care since it was requested by the injured employee and
subsequently denied by the employer. Following the rule in Benson v Coca Cola Co., 120 N.J. Super. 120 (NJ App. Div. 1972), a NJ employer was responsible for medical care
requested by the employee and denied by the employer as the accident was held
compensable.
“The JWC also found,
pursuant to Benson v. Coca Cola Co., 120 N.J.Super. 60
(App.Div.1972) , that Johnson “was well within his rights to seek
outside treatment” based upon City’s denial of the April incident, the dilatory
fashion in which it referred Johnson for treatment after the May incident, and
its refusal to provide medical care even when recommended by its first medical
examiner. He thus concluded the exception expressed in Benson applied and that it would have been futile
for Johnson to have continued to request coverage for medical expenses.
The Compensation Judge is giving a wide spectrum of
discretion as to determine the credibility of the testimony of the witnesses:
“Our highly
deferential standard of review is of particular importance in this case, where
appellant’s principal points of error hinge on the JWC’s credibility determinations.
See Hersh v. Cnty. of Morris, 217 N.J. 236, 242 (2014)
(quoting Sager,
supra, 182 N.J. at 164). The JWC
has the discretion to accept or reject expert testimony, in whole or in part. Kaneh v. Sunshine Biscuits, 321 N.J.Super. 507, 511
(App.Div.1999) . The judge is considered to have “expertise with respect
to weighing the testimony of competing medical experts and appraising the
validity of [the petitioner’s] compensation claim.” Ramos
v. M & F Fashions, 154 N.J. 583, 598 (1998 .
The Court went also
reiterate the Belth Doctrine holding that the employer takes the employee as he
finds him. While the Belth decision predates the 1979 Amendments to the NJ
Workers’ Compensation Act it remains valid as to the exacerbation of an underlying medical issue. Belth v. Anthony Ferrante & Son, Inc., 47 N.J. 38, 219 A.2d 168 (1966).
“ Employers are responsible for treatment
of a preexisting condition which is exacerbated by a work accident. Sexton v. Cnty. of Cumberland, 404 N.J.Super. 542, 555
(App.Div.2009) . The burden is on the employer
to prove that the compensable accident was not the cause of the exacerbation.
In this case, City did nothing more than attempt to prove that Johnson was
lying about his 1999 medical conditions.
Even if City is correct, in the judge’s opinion, Johnson objectively
established that the May 2006 accident caused him significant cervical and
psychiatric injuries from which he currently suffers.
….
Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (West-Thompson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thompson-Reuters). For over 4 decades the Law Offices of Jon L Gelman 1.973.696.7900 jon@gelmans.com have been representing injured workers and their families who have suffered occupational accidents and illnesses.
.gif "Injured Kaiser OR nurse Debbye Mazzucca tells how Sedgwick defied a judge's order to provide care")
