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Donato v. Jersey City Municipal Utilities Authority

Superior Court of New Jersey, Appellate Division

August 21, 2013

JOHN DONATO, Petitioner-Appellant,


Argued April 24, 2013

On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition No. 2004-22126.

Alan T. Friedman argued the cause for appellant (Bagolie-Friedman, L.L.C., attorneys; Mr. Friedman, on the brief).

Sean T. Kean argued the cause for respondent (Cleary, Giaccobe, Alfieri, Jacobs, L.L.C., attorneys; Mr. Kean, on the brief).

Before Judges Axelrad and Sapp-Peterson.


In this appeal of the denial of petitioner John Donato's occupational disease claim, petitioner contends the judge of compensation committed reversible error when she failed to exclude the testimony of respondent Jersey City Municipal Utilities Authority's ("JCMUA") medical expert, Dr. William S. Kritzberg, and also erred when she drew an adverse inference against petitioner, who failed to produce his coronary treating physician with whom he had treated for many years. We disagree and affirm.

Petitioner was employed by respondent between 1961 and 1974. Thereafter, he became employed by a trucking company, but returned to respondent in 1986, where he remained until his retirement in 1999. Petitioner commenced his employment with respondent as a clerk, but the vast majority of his career was spent as a vehicle maintenance supervisor where he supervised the maintenance of cars, trucks, dump trucks and vacuum trucks.

As a clerk, petitioner was exposed to soot and whatever the workers brought back from the sewer plant. Likewise, as a supervisor he was exposed to dust and different kinds of toxic chemicals, including diesel fumes.

In 2004, petitioner was diagnosed with pulmonary disease. He filed a claim petition alleging that he suffered from pulmonary lung disease arising out of and in the course of his employment with respondent between 1961 and 1999. Respondent denied that petitioner's condition arose out of his employment.

The matter proceeded to trial before a judge of workers' compensation. In addition to petitioner, Dr. Malcom H. Hermele testified on his behalf. Respondent presented its executive director, Daniel Becht, and Dr. William Kritzberg as its witnesses.

Petitioner testified about his job responsibilities and expressed the belief that he had been exposed to toxic chemicals, resulting in his inability to do chores around his house like vacuuming or cleaning. Dr. Hermele found that petitioner had "permanent disability of 75% of total" as a result of "chronic bronchitis, probable restrictive pulmonary disease, small airways disease[, ] and probable COPD[.]" He opined that petitioner's condition was causally related to and/or aggravated by his workplace exposures and that "the overall disability is total, from all causes." He additionally opined that whether petitioner's breathing problems were related to his lung disease or his heart disease could not be distinguished.

Becht acknowledged that site testing revealed the presence of contamination at petitioner's work site and that the site was currently being monitored by the Department of Environmental Protection. He also acknowledged that JCMUA sued the previous property owner due to its claim of pre-existing contamination at the property. He explained that he believed the lawsuit was filed in order to recover costs associated with cleaning up the environmental contamination. The records of the analytical testing results were admitted into evidence.

Dr. Kritzberg testified that he compared x-rays taken of petitioner's lungs in 2006 and 2010 and found no changes in the condition of his lungs. He testified further that the results of the pulmonary function test he performed did not reveal a mild obstruction in petitioner's pulmonary capacity. He opined that petitioner's symptoms were more than likely the result of heart surgery, drugs he was prescribed, and body weight. Additionally, he opined that assuming petitioner had been exposed to chromium, it is not a cause of COPD.

In her written opinion, the compensation judge found the testimony of Dr. Kritzberg more credible than that of Dr. Hermele. The judge found that petitioner's counsel "trie[d] to make it appear that petitioner presented to Dr. Hermele on his own for treatment. That is simply not true. Petitioner's counsel sent petitioner to Dr. Hermele. Dr. Hermele did not treat petitioner." Additionally, of great significance to the compensation judge was the fact that petitioner had been treating with a cardiologist for twenty-three years, testified that he believed his breathing difficulties were related to his heart condition, and had never been treated for any pulmonary condition, despite testifying that his pulmonary complaints worsened in 1988, while continuing to work for respondent for eleven more years. The judge inferred that petitioner's cardiologist never referred him to a pulmonary specialist for treatment.

The compensation judge drew an adverse inference "from the fact the petitioner never produced a certified copy of the records from his treating cardiologist or had Dr. Hermele review said records as part of his evaluation[, ]" noting that Dr. Hermele readily admitted "there is a relationship between the heart and the lungs." The judge further found:

Said records would have reflected any complaints petitioner had concerning his breathing. It is quite simply implausible that petitioner has the conditions Dr. Hermele diagnosed and that petitioner's treating cardiologist never referred petitioner to a pulmonologist for treatment (petitioner repeatedly testified that he never received any pulmonary treatment). Certainly petitioner's treating cardiologist of 23 years was in the best position to opine as to whether Donato's symptoms were due to his severe heart condition or due to a pulmonary condition. That petitioner's cardiologist never referred petitioner for pulmonary treatment or prescribed pulmonary medicine leads the court to conclude that petitioner's complaints are not "due in a material degree" to his occupational exposure at the JCMUA. He was sent to Dr. Hermele by his attorney for a permanency evaluation, not for treatment.
Critical for the court were the chest x-rays taken of the petitioner which showed that he did not have bi-lateral flattening of his diaphragm. If he truly had pulmonary disease unrelated to his heart condition[, ] you would expect to find bi-lateral flattening of the diaphragm. Only the left side of petitioner's diaphragm was flattened[, ] which is to be expected since both doctors agreed petitioner has cardiomegaly (enlargement of the heart). If he truly had pulmonary disease unrelated to his heart condition[, ] bi-lateral flattening of the diaphragm would have been present on the chest x-rays.
The court found Dr. Kritzberg to be more credible than Dr. Hermele. Dr. Kritzberg is board certified in internal medicine. Dr. Hermele holds no board certifications. Kr. Kritzberg gave a cogent explanation as to why it was petitioner's severe cardiac condition that explained why petitioner gets shortness of breath and wheezes.

Based upon these findings, the compensation judge dismissed petitioner's claim, and the present appeal ensued.

Petitioner first contends the compensation judge committed reversible error when she permitted respondent's expert to testify, despite respondent violating N.J.S.A. 34:15-64 by compensating Dr. Kritzberg far in excess of the statutory maximum of $400 for his evaluation and $400 for his trial testimony. N.J.S.A. 34:15-64 provides that "[t]he official conducting any hearing may allow . . . a reasonable fee not exceeding $400 for any one witness, except that the following fees may be allowed for a medical witness:

(1) (a) A fee of not more than $400 paid to an evaluating physician for an opinion regarding the need for medical treatment or for an estimation of permanent disability, if the physician provides the opinion or estimation in a written report; and
(b) An additional fee of not more than $400 paid to the evaluating physician who makes a court appearance to give testimony; or
(2) (a) A fee of not more than $450 paid to a treating physician for the preparation and submission of a report including the entire record of treatment, medical history, opinions regarding diagnosis, prognosis, causal relationships between the treated condition and the claim, the claimant's ability to return to work with or without restrictions, what, if any, restrictions are appropriate, and the anticipated date of return to work, and any recommendations for further treatment; and
(b) (i) An additional fee of not more than $300 per hour, with the total amount not to exceed $2, 500, paid to the treating physician who gives testimony concerning causal relationship, ability to work or the need for treatment; or
(ii) An additional fee of not more than $300 per hour, with the total amount not to exceed $1, 500, paid to the treating physician who gives a deposition concerning causal relationship, ability to work or the need for treatment.
b. (1) No fee for an evaluating physician pursuant to this section shall be contingent on whether a judgment or award is or is not made in favor of the petitioner.
(2) No evaluating or treating physician shall charge any fee for a report, testimony or deposition in excess of the amount permitted pursuant to the provisions of this section.

We construe the language of the statute as limiting the fees that may be charged by an evaluating or treating physician in order to maximize the recovery on behalf of an injured worker. Therefore, the limitation on chargeable fees is intended to protect petitioners. Moreover, even if we were to construe the statute as limiting fees chargeable by medical experts as applying to respondents' experts, as well as petitioners' experts, any violation should not result in the exclusion of the report on that basis alone. Petitioner presented absolutely no evidence before the compensation judge to support his contention that if there are no limitations placed upon fees charged by respondents' experts, respondents will be able "to afford to bring a more qualified expert to court to offer opinions." Moreover, while petitioner raised this issue in his trial brief, he did not raise the issue before the compensation judge during the hearing at the time Dr. Kritzberg commenced his testimony.

Finally, petitioner claims that the compensation judge committed reversible error by drawing an adverse inference against petitioner for failing to produce evidence from his cardiologist related to his heart condition and its effect upon his medical condition. We disagree.

It is undisputed that petitioner, at the time of the hearing, had been treating with a cardiologist for more than twenty years. Dr. Hermele, in his testimony, did not rule out that the x-rays he interpreted as abnormal could be the result of petitioner's heart surgeries. He likewise acknowledged that petitioner's shortness of breath and poor performance on the pulmonary function tests could possibly also be due to petitioner's heart diseases. Given petitioner's more than two-decade history of heart disease, those records and the opinions of the treating cardiologist in relation to petitioner's claim that his pulmonary condition was causally related to the workplace, rather than his heart disease, were highly relevant and probative. It was petitioner who bore the burden of presenting the requisite proofs to establish his claim. See Nisivoccia v. Ademhill Associates, 286 N.J.Super. 419, 429-30 (App. Div. 1996) (noting "[i]n civil [] trials, one party is not obligated to help the other party's case"). Thus, the fact that petitioner's treating cardiologist, as a witness, or his cardiologist's treatment records may have been equally available to both parties did not preclude the judge from "mak[ing] a negative inference from the fact the petitioner never produced a certified copy of the records from his treating cardiologist or had Dr. Hermele review said records as part of his evaluation."

Our standard of review requires that we determine whether the compensation judge's findings "could reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole, with due regard to the opportunity of the one who heard the witnesses to judge of their credibility . . . ." Sager v. O.A. Peterson Constr. Co., 182 N.J. 156, 164 (2004) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). The compensation judge had the opportunity to observe the witnesses as they testified and to assess and make credibility findings. After carefully reviewing the record in light of the arguments raised on appeal, we conclude that the compensation judge's findings were based upon testimony which she found credible, and are, thus, entitled to our deference.


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