It Pays to Use the Treating Doctor as Your Expert Witness



The Appellate Division, in an unreported decision, recently affirmed a Workers' Compensation Judge's (WCJ) decision that denied an employee's request for knee replacement surgery, finding the need for treatment as unrelated to the work injury (Diane Lebednikas vs. Zallie Supermarkets, Inc. t/a Shop Rite - Laurel Hill).

Lebadnikas was employed by Zallie Supermarkets in its deli department when she sustained an admitted work-related injury on January 21, 2014, involving her right knee. The mechanism of injury was caused when she caught her foot on a floor tile causing her to twist her right knee. Since the incident was recorded by the store's surveillance camera, there was no dispute as to how the injury was sustained.

By way of medical history, it was established that the employee had prior treatment to the right knee in 2002 with surgery consisting of a unicompartmental arthroplasty, or partial replacement of the right knee. She also had undergone a total arthroplasty, or replacement of the left knee.

Following the work accident, the employee was authorized to treat with Dr. Robert Falconiero, D.O. The Court's decision does not set forth what treatment was initially provided, however, the court cited a report dated April 14, 2014, of Dr.Falconiero with a diagnosis of a contusion, possible loosening of the partial replacement, degenerative arthritis, and vascular calcifications of the right knee. At that time, Dr. Falconiero recommended that the employee should return to the orthopedic surgeon who performed the partial knee replacement, Dr. Steve H. Kahn.

Instead of authorizing Dr. Kahn to treat the employee, the employer authorized Dr. Richard DiVerniero, a board certified orthopedic surgeon who had performed hundreds of knee replacement surgeries, including 50 revisions of partial knee replacements. Dr. DiVerniero's initial examination took place on May 30, 2014, and found the employee had a palpable knee joint effusion, or swelling, but no warmth or redness. He diagnosed pain in her joint and lower right leg, with localized osteoarthritis, or "the wearing of the cartilage surfaces within a joint." Dr. DiVerniero saw the employee a total of four times, with follow up visits on June 20, 2014, December 19, 2014, and April 7, 2015. By the time she was seen by Dr. DiVerniero in December 2014, he found the employee had overall improvement with the condition of her knee, that she had continued to work, took anti-inflammatory medications and the effusion that was initially diagnosed had resolved. He found that she had returned to "baseline" in terms of her right knee condition.

While under the care of Dr. DiVerniero, the employee returned to her original surgeon, Dr. Kahn, in October 2014. The doctor recommended a bone scan to ensure there was no loosening of the knee prosthesis, as well as an MRI to determine whether she had sustained any ligament injury as a result of the January 21st incident. The bone scan ultimately was performed showing an increased uptake, which indicated a loosening of the partial right knee replacement; and, the MRI showed some degenerative changes in the patellofemoral joint medial compartment. In a report dated November 17, 2014, Dr. Kahn recommended surgery to convert the employee's loose right partial knee replacement to a total replacement. He stated within a reasonable degree of medical probability, the conversion was needed as a result of the January 21st work injury.

The employer denied the request for the revision surgery proposed by Dr. Kahn, relying instead upon the opinions expressed by Dr. DiVerniero, the authorized treating doctor, who had agreed that while the knee replacement surgery was indicated, the need for the revision surgery was not caused by the work injury. The employee then filed a Motion for Medical Treatment seeking the treatment recommended by Dr. Kahn, however, in support of her motion, the employee relied upon the report and testimony of Dr. Ralph Cataldo, D.O., a qualified expert in osteopathic medicine, with a subspecialty in workers' compensation permanency evaluations and pain management.

After testimony was taken from the employee, Dr. Cataldo and Dr. DiVerniero, the hearing judge found that Dr. DiVerniero's opinion on causation was "more specialized, more credible and more persuasive than the proofs offered by the petitioner." The judge determined that the employee had not carried her burden of proof on causation, and entered an order denying the motion. The employee appealed.

In upholding the ruling, the Appellate Division provided a full review of the medical analysis provided by Dr. DiVerniero, who provided a detailed explanation of how the original partial knee replacement had developed "significant polyethylene wear" over time, and the need for full knee replacement was actually required before the work injury. The doctor had clearly testified that the "wear" of the partial replacement was not due to the twisting injury.

The Appellate Court also cited the well established proposition that "a treating physician is often in a better position to express opinions as to cause and effect, than an expert who merely is examining the patient in order to give expert testimony," citing Bird v. Somerset Hills Country Club 309 N.J. Super, 517, 522-23 (App. Div. 1009), and Bober v. Indep. Plating Corp. 28 N.J. 160, 167 (1958).

Comment: While this decision does not create any new law or legal precedent, it clearly demonstrates the value of having a highly qualified and experienced treating doctor administer authorized treatment. Without having the benefit of Dr. DiVerniero's thorough analysis of the medical proofs, along with his experience with the particular medical condition and surgery being proposed, the outcome of the employee's motion would have likely been much different. The proposition that your best expert is usually the one who knows and has the most experience with the subject at hand remains true to form.

For more information, please contact Mark S. Setaro at or 856.779.6010.


Media Contacts

Michael J. Cavacini,
Marketing Manager
T: 215.563.1244
back to top