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Respondent’s Decision Not To Produce Live Testimony Costs Dearly On Reopener Award

By on August 15, 2017 in Awards with 0 Comments

There is a cardinal rule in workers’ compensation trials that employers and defense counsel must follow: never try a case on reports unless the exposure is minimal.  To put it another way, where the exposure is significant, the employer must bring in a medical witness for testimony and cross examine the petitioner’s expert.  The employer in Roy v. Marsden & Sons Electric, A-1324-15T1 (App. Div. August 9, 2017) violated that rule by trying the case on medical reports alone and paid the price.

The case involved a reopener of an award of 22.5% permanent partial disability or $31,518.  The initial award for an accident on July 26, 2011 was described as being “for orthopedic and neurologic residuals of the lumbar spine for a compression fracture at L1 and L2 and for a bulging disc at L5-S1.”  The reopener was timely filed, and petitioner saw Dr. John Gaffney for petitioner and Dr. Francis Meeteer for respondent for reevaluations.

Dr. Gaffney noted in his reexam that petitioner had difficulty transferring positions from a supine to sitting to standing position due to spinal pain.  He found spasm and tenderness in the lumbar areas of the spine.  He also found sensory deficit with pinprick into the bilateral extremities.  He raised his estimate by 45% for residuals of a compression fracture of the superior endplate of L1, and compression fracture of the superior endplate of L2; new progressive lumbar disc injury with bulging discs at L3-4 and L4-L5, and a disc osteophyte complex at L5-S1; persistent and progressive lumbar radiculopathy; lumbar fibromyositis syndrome; and chronic pain in the lumbar spine.”   He related all of these findings to the original accident in 2011.

Dr. Meeteer for respondent had not seen petitioner originally.  There is no explanation in the appellate division decision on why respondent chose not to use the original physician.  Usually respondents return to the same physician on reopener exams.  Dr. Meeteer found no spasm, no tenderness, and clinical tests were generally negative. In other words, the two experts had completely different findings.  Dr. Meeteer estimated five percent permanent partial disability for a compression fracture at L1 and L5 and disc bulging of the low back.

Petitioner said at the initial 2012 hearing that he experienced a severe, stabbing pain in his back that radiated down to both feet lasting an hour.  In the reopener hearing in 2015 he said that the radicular pain was there constantly.  In 2012 the pain would awaken him from a night’s sleep occasionally.  By 2015 the pain woke him two or three times each night.   In 2012 he could walk three miles and lift objects up to 30 to 40 pounds.  In his 2015 testimony he could no longer walk long distances due to fear that he might not be able to walk back.  He said he used a long shoe horn to put his shoes on because he could no longer bend down to do so.  He seldom lifted objects weighing more than a grocery bag.

Petitioner did have treatment after the initial award. Dr. Joseph Zerbo prescribed a course of physical therapy and a work hardening program as well as an FCE which noted that petitioner could return to full-time work.  He underwent an MRI on January 8, 2015 which revealed “internal disc derangement at L4-5 and L5-S1 producing discogenic syndrome.”  Dr. Zerbo noted that the compression fractures had healed satisfactorily.   He recommended a lumbar fusion surgery which petitioner declined.

The Judge of Compensation explained that both counsel had agreed to allow her to decide the case by submitting medical reports without live testimony from any physicians or experts.  She noted that the sole issue before her was whether there was an increase in petitioner’s previous award and if so, in what degree.  She also noted that petitioner was in obvious distress.  She also observed that Dr. Gaffney saw petitioner in 2012 and that Dr. Meeteer had not seen him previously.  She found Dr. Gaffney to be more credible partly because he had seen petitioner twice.  She further noted that petitioner had seen Dr. Joseph Zerbo after the initial award for treatment.  The Judge of Compensation awarded petitioner another 20% for a total of 42.5% or an increase from $31,518 to $121,125 or approximately $89,607 in new money, almost four times the amount of the prior award.

Respondent appealed and argued principally that there were new findings on the MRI in 2015 that were not causally related to the original accident and that there was no credible medical evidence linking these findings to the original accident.  Respondent also argued that there was no support for an increase of 20%.  The Appellate Division flatly rejected these arguments precisely because respondent agreed to try the case on reports:

. . . Respondent is critical of petitioner’s expert’s reports because the reports’ explanations concerning the extent of petitioner’s increased disability and the causal relation of that increase to the original accident does not contain sufficient elaboration.  Yet, by agreeing to present the medical evidence in reports rather than by experts’ testimony, respondent now criticizes the JOC for doing precisely what the parties tasked her with doing; namely, reviewing the documentary evidence as a whole and determining the credibility of conflicting reports based on all the documentary evidence as well as petitioner’s testimony.  That is precisely what the JOC did, and her findings are amply supported by the documentary evidence and petitioner’s testimony.

In short, the Appellate Division said that if you say you waive live testimony from the experts, you cannot effectively argue causation issues at trial or on appeal.  You are limited to arguing whether there is evidence supporting additional disability.  You need expert testimony to assist the trier of fact when it comes to causation issues.  Judges are not doctors and cannot decide from paper evidence which findings are work related without live testimony on which to base their conclusion.  That has always been the rule.  It may cost one or two thousand dollars to produce a medical expert, but the benefit far outweighs the cost in almost every case.  In this case respondent apparently had some legitimate arguments to make on causation but failed to bring in the experts to make those arguments.

Here the potential exposure was very high because the prior award was not far from the 30% level where awards become much more expensive in New Jersey.  It turned out that the reopener award amounted to nearly four times as much money as the original award.  The case was unusual in that petitioner never had major surgery and was able to work full time but obtained an award of 42.5%. The lesson is clear:  if a case is worth trying, it is worth bringing in the medical experts to testify.

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John H. Geaney

About the Author

About the Author:

John H. Geaney, an executive committee member and shareholder with Capehart Scatchard, began an email newsletter entitled Currents in Workers’ Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates.

Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers. The manual is distributed by the New Jersey Institute for Continuing Legal Education (NJICLE). He also authored an ADA and FMLA manual as distributed by NJICLE. If you are interested in purchasing the manual, please contact NJICLE at 732-214-8500 or visit their website at www.njicle.com.

Mr. Geaney represents employers in the defense of workers’ compensation, ADA and FMLA matters. He is a Fellow of the College of Workers’ Compensation Lawyers of the American Bar Association and is certified by the Supreme Court of New Jersey as a workers’ compensation law attorney. He is one of two firm representatives to the National Workers’ Compensation Defense Network. He has served on the Executive Committee of Capehart Scatchard for over ten (10) years.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School. He has been named a “Super Lawyer” by his peers and Law and Politics. He serves as Vice President of the Friends of MEND, the fundraising arm of a local charitable organization devoted to promoting affordable housing.

Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Trenton, New Jersey. The firm represents employers and businesses in a wide variety of areas, including workers’ compensation, civil litigation, labor, environmental, business, estates and governmental affairs.

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