On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.
Approved for Publication October 1, 1996.
Before Judges Pressler, Stern and Wecker. The opinion of the court was delivered by Pressler, P.j.a.d.
The opinion of the court was delivered by: Pressler
The opinion of the court was delivered by
The question raised by this appeal is whether a physician retained by the Department of Labor, Division of Disability Determinations (Division) to examine a claimant for social security disability benefits has a duty to the examinee to exercise reasonable professional care in rendering a diagnosis. We are persuaded that the examining physician has that duty, at least with respect to the symptoms and complaints on which the examinee has based the disability claim. Accordingly, we reverse the summary judgment dismissing the complaint of plaintiff Penice Ranier against defendant Lawrence Frieman, a board certified ophthalmologist.
These are the facts that appear from this sparse record. Plaintiff had been employed for some twenty-six years by EAI Electronic Associates in Eatontown as a PC board driller. In 1991, when he was forty-eight years old, he was unable to continue to work because of vision problems he claimed to be having. He also suffered from hypertension and other physical problems and had been under the general care of defendants Anthony Sahar and Marianne Sahar, his family physicians, from some time in 1973 until September 9, 1991. According to Dr. Anthony Sahar's written report to the Division in November 1991, plaintiff first complained of his vision problems during an office visit on April 15, 1991, plaintiff's first in two years. Dr. Sahar reported that among other symptoms, plaintiff noted his "decreased vision causing him to be unable to drive a car...." Dr. Sahar then conducted an eye examination and "found no physical explanation for his decreased vision and suggested he see an optometrist if the condition continued." Dr. Sahar's report of plaintiff's visits between that date and the date of the last visit in September 1991 makes no further reference to eye problems.
It appears that prior to his April 15, 1991, visit to Dr. Sahar, plaintiff had already applied for social security disability benefits and had been referred by the Division to defendant Russell Seckendorf for examination. Dr. Seckendorf's report to the Division of his April 2, 1991, examination noted, among plaintiff's other symptoms, a complaint of poor vision. Dr. Seckendorf administered eye chart tests as part of his overall examination and ultimately concluded that plaintiff's health was fairly good although "his eyesight could be better." The disability claim was denied.
Plaintiff's vision problems continued unabated. Still unable to work, he again applied for social security disability benefits. The Division this time referred him to Dr. Nicholas Arcomano for a general medical examination, which Dr. Arcomano conducted in early June 1992. His report to the Division noted that although plaintiff suffered from a fairly well controlled hypertension, his primary problem was his vision. This is what the report said in that regard:
This 49-year-old male is applying for disability because of several complaints. First and foremost, his visual fields he alleges are so impaired that he cannot Judge distance appropriately. His depth perception is off and he claims he nearly killed himself and another person while driving his car particularly if there are oncoming lights.
He further alleges that lights bother his eyes and that they "hurts my eyes and I can't" see clearly. Even the sun does it. He has not seen any ophthalmologist in recent years because "I cannot afford it." The last eye refraction was at Pearle Vision Center. He has worked at EAI Electronic Associates Industry in Eatontown for the past 26 years as a driller in PC boards which are needed to put electric wires through. This requires fine vision eight hours a day.
He was unable to continue that for awhile because of his vision but the firm recalled him in 1991. He resumed his former occupation but could not work because of his weak eyes.
In his final diagnosis, Dr. Arcomano found "impaired vision with visual acuity both eyes//--cause is not clear." Noting plaintiff's "marked visual impairment," he recommended an ophthalmological consultation which "potentially ... might be a significant factor of employability."
Based on Dr. Arcomano's recommendation, the Division referred plaintiff to defendant Dr. Frieman, a board certified ophthalmologist. Dr. Frieman's report of his examination of July 24, 1992, noted "a normal ocular examination," diagnosed myopia (nearsightedness) and presbyopia (farsightedness), and opined that "there is also the possibility of malingering in view of the patient's variable responses on vision testing and the tunnel visual fields with normal confrontation visual fields and the patient not having any difficulty in ambulation." Dr. Frieman further reported that he had advised plaintiff ...