In the matter of W.A. Harris v. Lourdes Medical Center of Burlington, the New Jersey Appellate Division, in an unpublished opinion, recently addressed the issue of whether an unauthorized doctor who did not testify holds the same weight as a treating doctor who did testify.
In the current matter, the employee was injured on April 9, 2004. He then received an award on October 25, 2007 for permanent benefits of 5% of the statutory right hand for a sprain and strain of the thumb with pain and weakness into the right hand. The employee then filed an application for review on June 22, 2009. On April 6, 2012, he had an unauthorized consultation with Dr. Ragland, a hand expert, who diagnosed him with advanced arthrosis and provided him treatment including splinting and a cortisone injection. Ultimately, Dr. Ragland recommended a right thumb arthrodesis due to continued discomfort. Respondent's hand expert, Dr. Ames, felt the employee had reached maximum medical improvement. As a result, the employee filed a motion seeking to compel the employer to pay for the treatment recommended by Dr. Ragland. In support of the motion, the employee did not have Dr. Ragland testify but rather used Dr. Gaffney; not an orthopedist nor a hand expert but a doctor used by the petitioners' bar for permanency and treatment evaluation issues. Dr. Gaffney agreed with Dr. Ragland that surgery was needed, relying on his observation and research and talking with the employee. Dr. Ames testified on behalf of the employer noting that he did not see enough arthritis in the joint to warrant an arthrodesis and that performing the surgery would decrease the range of motion.
During cross examination by the Judge, Dr. Ames did admit that the employee had tenderness and problems in the thumbs, but stated that he did not agree with Dr. Ragland that surgery was necessary. The Judge of Workers Compensation (JWC) found that Dr. Ragland's findings, as adopted by Dr. Gaffney, were more compatible and credible and that, while Dr. Ragland was not an authorized doctor, he was an expert treating doctor. The JWC further noted that treating doctors are given greater weight than evaluating doctors.
The employer proceeded to appeal the decision. The crux of the dispute was related to the JWC's reliance on the opinion of Dr. Ragland who did not testify before the court and gave greater deference to his opinion. The appellate court affirmed the JWC's decision, finding that since the employer consented to the admission of Dr. Ragland's reports in evidence, and did not object to them as inadmissible net opinion or on any other basis, they could not make the argument now. They also found that the JWC's valuing Dr. Gaffney's testimony over that of Dr. Ames was based on facts that were supported by substantial credible evidence in the record and not so wide of the mark. Therefore, the court must defer to the trial judge.
Comment: Harris demonstrates that the petitioner was able to "back door" the opinion of an unauthorized treating specialist through testimony of an evaluating doctor. This decision supports a strategy for the petitioner to introduce an unauthorized treating doctor without having to pay (certainly a much higher fee) to bring them in to testify. As indicated by the court, had the employer objected to the admission of the unauthorized records at the time they were presented, the opinion may have been different. We will be curious to see if similar rulings are rendered for the employer as well.
For more information please contact Jennifer Laver at jlaver@wglaw.com or 856.382.1008.
Disclaimer: The contents of this post are for informational purposes only, are not legal advice and do not create an attorney-client relationship.