Workers' Compensation Defense

Key Points:

• Choice of examining physician can make or break a case.
• The credibility of the petitioner should be assessed early in investigation.
• Thorough investigations should be completed in any disputed claims.

---

In Farhat v. Joe Leone’s, 2023 WL 2415571 (N.J. Super. App. Div. Mar. 9, 2023), the New Jersey Superior Court upheld a denial of medical and temporary disability benefits. Its decision was based upon the lack of credible evidence presented by the petitioner.

The petitioner worked as a deli and counter helper in December 2017 when he hit his head on a pipe, fell, and lost consciousness. At the time he woke up on the floor, he did not immediately notice any pain. He reported the fall to a manager. Later, his wrist, back, and neck began to hurt, but he waited to seek medical treatment. Nearly three months later, in March 2018, the petitioner went to the emergency room with complaints of neck pain and a headache. He was diagnosed with a neck sprain.

The petitioner sought authorized medical care from Dr. C. Glastein, who examined him for cervical pain. Dr. Glastein noted the petitioner was experiencing pain in his right lower back. However, he did not examine the petitioner’s lumbar spine because he was instructed to strictly treat only the cervical spine. Throughout the rest of 2018, the petitioner continued to treat for cervical pain. In 2019 and 2020, he continued to seek treatment for his neck, lower back, right hip, and leg pain. He also underwent diagnostic testing for his lower back and received epidural injections.

The petitioner filed a claim petition with the Division of Workers’ Compensation, requesting compensation for injuries resulting from the fall in December 2017. The respondent answered the claim petition, admitting a compensable injury occurred; however, the respondent included in its answer that the nature of injury or disease was to be determined.

The petitioner was evaluated by an orthopedic physician for the right shoulder resulting from a subsequent 2018 injury. Dr. A. Nasar, an orthopedic surgeon, diagnosed the petitioner with a right shoulder strain with acromioclavicular joint separation attributable to the 2018 accident. Dr. Nasar also noted the petitioner experienced tenderness in the lumbar spine.

The petitioner moved for temporary and/or medical benefits pursuant to N.J.A.C. 12:235-3.2, asserting he was currently in need of physical therapy and MRIs of the cervical and lumbar spine per Dr. Nasar’s medical report. The court dismissed the petitioner’s motion, without prejudice, because he was already scheduled and authorized for right shoulder surgery pursuant to his other workers’ compensation claim. The petitioner later reinstated his motion for temporary and/or medical benefits, this time only requesting medical treatment for his lumbar pain resulting from the December 2017 fall. The respondent denied that his lower back injuries were causally related to the fall at work.

Dr. S.M. Reich, an orthopedic surgeon, evaluated the petitioner for an independent medical evaluation (IME). Dr. Reich diagnosed the petitioner with multilevel degenerative issues. He noted there was “some difficulty identifying the causal relationship.”

The worker’s compensation court conducted a trial on the petitioner’s motion for medical and temporary disability benefits. The petitioner testified about the 2017 fall and his subsequent treatment. Dr. Nasar testified as the petitioner’s expert. He opined, in agreement with a second report he had provided to petitioner’s counsel, that the lumbar injury was caused by the fall. Additionally, he testified that the petitioner had compression of the lumbar nerves which could have been caused by traumatic injury, such as a fall. Dr. Nasar admitted everything in his initial report was based on what the petitioner told him, as he had no medical records. For his second report, Dr. Nasar reviewed the petitioner’s medical records but did not receive the petitioner’s emergency room records.

Dr. Reich testified as an expert witness specifically on the issue of causation. Dr. Reich, in contrast to Dr. Nasar, had notified the carrier by letter that he believed the petitioner’s lumbar injury was not caused by the 2017 fall. According to Dr. Reich, it was uncharacteristic for severe back pain to occur four months after a traumatic event. Further, spinal stenosis is degenerative, occurring over several years. Dr. Reich was “unable to correlate how a fall would result in the degenerative cascade . . . .” He also explained at trial that the petitioner was “a difficult historian” because he “wasn’t clear of the dates, what happened, [or] the timing.” Dr. Reich further noted: “[t]here was no objective evidence of any traumatic event.” He explained, if a traumatic event had occurred, there would be “a tremendous amount of edema, swelling, tearing, which is all well-visualized on MRI, and none of that was present on [petitioner’s] studies.”

The court issued a written decision thoroughly summarizing the petitioner’s medical records and the testimony, and explaining the court’s factual findings. The court considered the different versions of the accident put forth in the record. It indicated that the statements made to the various doctors and medical providers illustrated that the petitioner was, at best, a bad historian and unreliable in providing information to the medical providers. 

The court addressed the petitioner’s credibility using Model Jury Charges (Civil), 1.12(L), “General Provisions for Standard Charge – Credibility” (approved Nov. 1998). It noted that the petitioner’s inability to recall certain dates and other information. It also found that the petitioner’s testimony contradicted itself: he testified both that he fell after striking his head on a pipe and that he had no recollection of how he fell. Additionally, though the petitioner claimed to have told every medical provider about the pain in his back, the initial medical records make no reference to pain in his lower back. As a result, the court found the petitioner was not a credible witness.

The court also addressed the expert testimony of Dr. Nasar and Dr. Reich. It noted Dr. Nasar authored his first report without reviewing the relevant medical records and wrote a subsequent report without examining the petitioner. The court considered Dr. Reich’s analysis “far superior” to that of Dr. Nasar, observing that Dr. Nasar had failed to review the MRI films. It concluded that Dr. Nasar was not as experienced or knowledgeable as Dr. Reich regarding this particular medical issue.

The court found that Dr. Reich, on the other hand, provided credible and reliable testimony. It stated that Dr. Reich specialized in treatment of the spine, used the results of diagnostic tests to support his conclusions, and “answered questions clearly, directly[,] and with great detail.” Overall, the court agreed with Dr. Reich’s opinion that the petitioner’s low back injuries and any necessary treatments were unrelated to the December 2017 fall. The court found that the petitioner “failed to establish by objective, reasonable evidence supported by facts in the record that a need for additional treatment regarding a ‘work related’ injury to the back exists.” 

The court issued an order denying the petitioner medical and temporary benefits. An appeal followed. The Appellate Division found no error in the compensation judge’s finding that the petitioner failed to prove compensability for medical and temporary benefits by the preponderance of credible evidence. Since ample, credible evidence in the record supported the judge’s credibility findings as to the parties’ orthopedic surgery experts, the Appellate Division affirmed. 

This case reiterates the importance of completing an investigation into the alleged mechanism of injury and choosing an appropriate medical professional. Nailing down specifics from petitioners early on in any case where there are questions or red flags provides a basis for denial moving forward should a petitioner seek to add injuries. In addition, the choice of examining physicians can make the difference when disputing causation. The lower court in Farhat noted how a thorough history and review of medical records can be the deciding factor in determining the credibility of an expert. Choose experts wisely to sustain a denial of a claim.

*Jessica is an associate in our Mount Laurel, New Jersey, office. She can be reached at 856.414.6004 or JWGordon@MDWCG.com.

 

 

 

_{Defense Digest, Vol. 29, No. 2, June 2023, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2023 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}