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Appellate Division Affirms Decision of Judge of Compensation on Making an Adverse Inference From Failure of Petitioner to Produce Treating Cardiologist in Case

By on September 6, 2013 in Claims with 0 Comments

Of what significance is it when a claimant who has been treating with a cardiologist for decades files a pulmonary claim but never produces the cardiologist to testify? That was the key issue in Donato v. Jersey City Municipal Utilities Authority, A-5984-11T4 (App. Div. August 21, 2013).

John Donato worked for the JCMUA from 1961 to 1974 and again from 1986 to 1999.  He worked both as a clerk and a vehicle maintenance supervisor, supervising the maintenance of cars, trucks, dump trucks, and vacuum trucks.  He was exposed to soot and whatever else workers brought back from the sewer plant, as well as diesel fumes and dust.  In addition, the property where petitioner worked had apparently been contaminated with chromium during the ownership of a prior owner and was now being monitored by the Department of Environmental Protection.

In 2004, petitioner was diagnosed with pulmonary disease.  He produced an expert, Dr. Malcolm Hermele, who said petitioner had a 75% partial permanent disability for probable bronchitis, restrictive pulmonary disease, small airways disease and COPD.  He said overall petitioner was totally disabled.  He could not distinguish whether petitioner’s breathing problems were due to pulmonary or cardiac causes.

Petitioner had been treating with a cardiologist for 23 years.  He himself testified that he thought his breathing difficulties were related to his heart condition.  He admitted that he had never treated with a pulmonary doctor even though he noticed that his breathing problems were worsening since 1988.

Dr. William Kritzberg testified for respondent.  He said that the pulmonary function testing he performed on petitioner did not reveal a mild obstruction in pulmonary capacity.  He felt that petitioner’s pulmonary symptoms were due to heart surgery, drugs used for his heart, and his body weight.  He also said that any chromium exposure would not affect pulmonary performance.

The Judge of Compensation noted that respondent’s expert was board certified in internal medicine but petitioner’s expert held no board certifications.  She also said that she drew an adverse inference from the failure of petitioner to produce the certified copy of the records of the treating cardiologist, have Dr. Hermele review them, or produce the cardiologist to testify.

Said records would have reflected any complaints petitioner had concerning his breathing.  It is quite simply implausible that petitioner has the conditions Dr. Hermele diagnosed and that petitioner’s treating cardiologist never referred petitioner to a pulmonologist for treatment (petitioner repeatedly testified that he never received any pulmonary treatment).  Certainly, petitioner’s treating cardiologist of 23 years was in the best position to opine as to whether Donato’s symptoms were due to his severe heart condition or due to a pulmonary condition.  That petitioner’s cardiologist never referred petitioner for pulmonary treatment or prescribed pulmonary medicine leads the court to conclude that petitioner’s complaints are not ‘due in a material degree’ to his occupational exposure at the JCMUA.  He was sent to Dr. Hermele by his attorney for a permanency evaluation, not for treatment.

The Appellate Division agreed.  It said,

Given petitioner’s more than two-decade history of heart disease, those records and the opinions of the treating cardiologist in relation to petitioner’s claim that his pulmonary condition was causally related to the workplace, rather than his heart disease, were highly relevant and probative.  It was petitioner who bore the burden of presenting the requisite proofs to establish his claim. . . Thus, the fact that petitioner’s treating cardiologist, as a witness, or his cardiologist’s treatment records may have been equally available to both parties did not preclude the judge from ‘making a negative inference from the fact that petitioner never produced a certified copy of the records from his treating cardiologist or had Dr. Hermele review said records as part of his evaluation.’

On a separate, but equally important issue, the Appellate Division disagreed with the petitioner’s argument that respondent violated N.J.S.A. 34:15-64 by compensating Dr. Kritzberg far in excess of the statutory maximum of $400 for his evaluation and $400 for his trial testimony.

We construe the language of the statute as limiting the fees that may be charged by an evaluating or treating physician in order to maximize the recovery on behalf of an injured worker.  Therefore, the limitation on chargeable fees is intended 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.’

 This case is one that practitioners should turn to when trying occupational disease claims.  The rules for discovery in the Division of Workers’ Compensation are somewhat lacking, and this case points out the importance of getting prior treating records, even if there is no particular rule that requires prior records to be produced. The outcome of this case turned on a complete failure of discovery in obtaining prior cardiology records and forwarding them to the experts.


This blog article was researched and written by John H. Geaney, a member of the executive committee and equity partner at the law firm of Capehart Scatchard. The content of the this article is intended to provide general information on the topic presented, and is offered with the understanding that the author is not rendering any legal or professional services or advice. This article is not a substitute for legal advice. Should you require such services, retain competent legal counsel.


About the Author

About the Author:

John H. Geaney, a shareholder and co-chair of Capehart Scatchard's Workers' Compensation department, 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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