The Phelps case, decided on April 6 by the Honorable Judge George Gangloff, Jr., sheds light on the thought process a Workers' Compensation Judge (WCJ) can employ in addressing a complicated matter involving an employee's claim for total and permanent disability including the Second Injury Fund as well as the exposure of various respondents during the course of a worker's employment. It does not necessarily have a significant legal impact on workers' compensation claims, but it is still worth noting. Parsing through fact and medical testimony, in this case, reveals a thorough analysis and how the WCJ is empowered to accept and reject portions of testimony from each witness.
The employee filed multiple claims, as well as an application to join the Second Injury Fund, arguing that as the result of disabilities stemming from an alleged injury from September 25, 2002, with one of the employers (respondents), KMR Enterprises, in conjunction with various pre-existing disabilities, he was totally and permanently disabled.
One of the interesting aspects of the case is that the employee was involved in significant pre-existing motor vehicle accidents, one in the 1980s and one in the 1990s. Both occurred at high speeds. However, without corresponding medical records or civil/workers' compensation awards, the WCJ was unable to assess any significant level of pre-existing disability.
That is not the case with respect to the employee's injuries sustained on October 7, 1999, when he injured his cervical spine and received an award of 17-1/2 percent of partial/total due to a C4 disc injury. That award and credit clearly allowed the WCJ to eventually conclude that the credit was appropriate and applicable with respect to his subsequent injury to the cervical spine occurring on May 1, 2002.
It is also significant to note that Judge Gangloff rejected large portions of the employee's testimony as a result of either inaccurate or false histories to the doctors or false testimony to the Court. For instance, the employee testified that he last attempted to work in approximately 2006. The medical records then reveal that the employee had been working off and on up until 2013. It should be noted that this material misrepresentation of his working ability did not result in a dismissal of his claim. The employer should be aware that the Judges will still approach a request for benefits when "considering the reliable evidence as a whole." The Judge noted the employee's lack of credibility on a number of issues but felt that the Workers' Compensation Act's goal of "humane social legislation" must be liberally construed "in order that its beneficent purposes may be accomplished."
The decision also makes it clear that Judges are free to accept and reject any portion of a physician's testimony. The Judge accepted a portion of one physician's testimony, for example, with respect to the need for medical treatment including cervical surgery, but rejected his opinion with respect to causation. The Judge accepted portions of another doctor's testimony regarding neurologic disability (he is a Board-certified psychiatrist), but rejected his opinion regarding psychiatric issues in light of the failure to present credible medical evidence that the employee has a psychiatric disability. Ultimately, the Judge awarded permanent partial disability benefits to the employee and rejected the notion that he was totally and permanently disabled. He found appropriate credits as a result of the employee's pre-existing injuries.
Finally, the Judge awarded medical payments to Cooper Hospital against one of the respondents, Carolfi, based upon his retrospective view of the medical treatment. Under the Decision in Benson v. Coca Cola, 120 N.J. Super 60 (App. Div. 1972), the Court noted that a respondent may be held responsible for the reimbursement of unauthorized medical treatment if there is a finding that the treatment offered by the employer was inadequate and that the treatment procured by the employee was reasonably necessary to cure and relieve the effects of the injury. The Judge noted that if the employer refuses to provide medical treatment, the employee may obtain treatment on his own. In this case, the employee did file a motion for medical and temporary benefits in connection with the cervical treatment. The Motion was eventually withdrawn since the employee was able to get the surgery without the motion being granted by the Court. However, the medical bills were outstanding, in particular, the hospital. This case makes it clear that those prior medical bills can still be the responsibility of the employer if the treatment was requested and refused despite the lack of a Court Order addressing causal relationship until the end of all litigation.
Comment: This decision by Judge Gangloff represents an excellent and careful review of the factual and medical evidence in the case. There are few legal precedents that will carry over to other matters, however, it reveals to the practitioners and employers the need to carefully obtain prior medical records in complicated, high exposure cases and it also reveals the need to demonstrate all inconsistencies to the Judge so that the Judge can take them into consideration in rendering a final opinion. It must also be noted that the Judge can accept or reject portions of each fact and medical witness testimony. Simply because an employee or a doctor is not found credible in one particular area, does not mean that he or she will be found incredible in all areas.
Sara L. De Long