The Appellate Division recently upheld a Trial Court's dismissal of a petitioner's Motion for Medical and Temporary Disability Benefits based on a finding that the respondent's expert witness was more credible than the petitioner’s. Although this is an unpublished Decision, it does emphasize the importance of expert witness testimony in Motions for Medical and Temporary Disability Benefits.
The petitioner sustained a compensable slip and fall accident in December 2017. He first sought treatment nearly three months later with complaints of neck pain and headache. He received authorized care from Dr. Glastein.
The petitioner also sustained an injury to his right shoulder in 2018. As part of that claim, the petitioner was examined by Dr. Nasar who diagnosed a right shoulder injury, as well as low back tenderness. The petitioner filed a Motion for Medical and Temporary Disability Benefits based on Dr. Nasar's report. The Motion was dismissed as the petitioner was receiving treatment for his shoulder.
The Motion was reinstated and the petitioner sought treatment for his low back as a result of the December, 2017, fall. This matter was tried to a conclusion. The trial judge noted in their Opinion that the petitioner was uncertain regarding the events surrounding his fall. He gave different versions of the accident to different medical providers. As a result, the Court found the petitioner was not a credible witness.
The important aspect of the Court's Decision revolves around the expert witness testimony, however. Dr. Nasar testified on behalf of the petitioner. He indicated that when he initially examined the petitioner and recommended treatment, he did not have any medical records to review. He simply relied upon the petitioner's statements.
The respondent's expert witness, Dr. Reich, testified also. He indicated he had reviewed all of the treating records prior to his examination. He found the petitioner's MRI did not show evidence of a traumatic accident. He diagnosed degenerative spinal stenosis, spondylolisthesis, and a superimposed herniated disc. He found the petitioner's condition was the result of degenerative conditions and could not be the result of a traumatic accident.
The Court specifically indicated in their Opinion that Dr. Reich was more reliable and his testimony was "far superior" to that of Dr. Nasar, specifically because Dr. Reich had reviewed the medical records and MRI films prior to examining the petitioner.
The Appellate Court found no reversible error in the Judge’s Decision and upheld the Motion dismissal.
Comment: This Decision, although unpublished, demonstrates powerfully the importance of providing a detailed history and all medical records to an expert witness prior to the expert's examination of the petitioner. If an expert provides an opinion without first reviewing medical records, the Court will most likely find the expert's testimony unpersuasive.