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Treating Physician vs. Hired Expert: Is the Tide Turning in New Jersey?

In New Jersey, employers and, more often, their carriers/TPAs, control the medical treatment of workers injured in the workplace.

New Jersey
September 8, 2021
September 8, 2021
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In New Jersey, employers and, more often, their carriers/TPAs, control the medical treatment of workers injured in the workplace. In concert with that, the courts have created a rationale whereby a treating physician's opinion should be given greater weight when there is a conflict with an expert specially retained by the opposing party, especially where that expert has only examined the petitioner once for litigation purposes. See Bialko v. H. Baker Milk Co., 38 N.J. Super. 169 (App. Div. 1955) (cert denied 20 N.J. 535, 120 A. 2d 662 (1956)); Bird v. Somerset Hills Country Club, 309 N.J. Super 517 (App. Div.) (cert. denied 154 N.J. 609, 713 A.2d 500 (1956)); Beausejour v. Chamberlin Plumbing & Heating, Inc., A-1459-12T4, (App. Div. 2014).

However, that rationale may be eroding. In an unpublished opinion, the Superior Court in Soto v. Exclusive Coachworks, 2021 N.J. Super. Unpub. LEXIS 602, 2021 WL 1343075 upheld the trial court’s opinion accepting the petitioner’s hired expert orthopedist’s opinion over that of the authorized treating orthopedic surgeon who actually operated on the petitioner. In Soto, petitioner was struck on the inside of the left knee by a hammer. A subsequent MRI revealed a torn meniscus and a trabecular bone injury that required arthroscopic surgery. The carrier referred petitioner to two other orthopedic specialists who agreed that surgery was necessary, and one of the second opinion surgeons performed the arthroscopy. Petitioner did not improve following surgery and conservative treatment. The authorized surgeon first called for a total knee replacement (stating that petitioner’s work injury and subsequent surgery had accelerated petitioner’s need for a total knee replacement), but then changed his opinion after reviewing records of petitioner’s prior medical treatment for injuries to the knee in 1995 and 2009. An opinion connected to that prior treatment in 2011 stated that petitioner “may need a knee replacement” in the future. The surgeon testified that his opinion on the total knee replacement changed significantly on causation after reviewing the prior records for the previous injuries. He testified that petitioner’s current complaints were related to osteoarthritis from the previous injuries and not the subject work injury.

Not surprisingly, petitioner’s expert testified that there was a causal relationship between the latest injury and the need for a total knee replacement. The trial judge found petitioner’s expert’s opinion more credible than that of the authorized treating surgeon. The appellate court upheld the decision to reject the authorized treaters’ opinion on causation. Although acknowledging the holding in Bialko and its progeny, the Soto court reasoned that the credibility of the weight of the expert’s opinion rests solely within the domain of the trier of fact and that “a judge is not obligated to accept an expert’s opinion, even if the expert was ‘impressive’” and even if that testimony is unrebutted by any other evidence.

While this case likely turned on the fact that both experts agreed that the petitioner needed a total knee replacement, albeit, for different reasons, it should give pause to an employer or carrier relying too heavily on the idea that its authorized treating physician's opinions will be given greater deference over petitioner’s hired expert going forward. See also Moonen v. Bd. of Trs., 2020 N.J. Super. Unpub. LEXIS 491, 2020 WL 1082259; Prendeville v. Board of Trs., 2020 N.J. Super. Unpub. LEXIS 298, 2020 WL 634297; Lerch v. Board of Trs., Teachers' Pension & Annuity Fund, 2019 N.J. Super. Unpub. LEXIS 1996, 2019 WL 4741781

While the aforementioned recent unpublished opinions are neither binding nor exclusively workers’ compensation decisions, they should give caution to any employer or carrier relying too heavily on what once appeared to be a distinct advantage in expert trial testimony. Most often, the authorized treating physician has seen the petitioner on numerous occasions and, in a surgeon’s case, has directly opened up the petitioner and seen inside of them to arrive at his/her opinions regarding the nature and cause of the injuries. That has been, in the past, a strong advantage in a battle of the experts. However, as these recent decisions indicate, trial and appellate courts may now be more willing to ignore the treating physician’s status when weighing expert testimony.

The best advice to be gleaned from this possible mini-trend is to utilize the best credentialed and qualified experts to initially treat injured workers for their injuries. Using generic, general practitioners for that treatment may well result in petitioner's hired expert's opinion winning out in a disputed causation or treatment issue. Additionally, it is especially important that the authorized treating physician be made aware of and given all prior medical treatment records, which may be relevant to the work injury, before they offer an opinion on causation and reasonable and necessary medical care to be provided. As the saying goes, “forewarned is forearmed.” That may be the only tactical advantage left to employers and carriers these days, with the prevailing tendency to favor petitioners in this forum.