State News

New Jersey has a strong fraud statute, and it applies both to employees and employers.  Most of the cases that have been highlighted in this blog have concerned employees.  However, in a recent development, a Spring Lake, New Jersey man, was sentenced to 180 days in jail, 150 days of community service, and three years of probation, for workers’ compensation fraud.  He was also ordered to pay full restitution for his participation in third degree insurance fraud.

Charles Kelcy Pegler Sr., 56, was the President of a roofing company called Roof Diagnostics, Inc. (“RDI”), which was located in Wall Township, N.J. As president of the company, which employs nearly 400 people, Pegler indicated in his application for insurance to New Jersey Casualty Insurance Company that RDI was not a roofing company, that RDI did not employ roofers, and that its employees did not engage in the repair or maintenance of roofs.  The facts were otherwise.  Between June 11, 2003 and October 5, 2009, RDI paid $265,044 less in workers’ compensation insurance premiums than the company would have paid had Pegler accurately represented the nature of the business.

Additionally, Pegler falsely represented the nature of RDI’s business to USF Insurance Company, currently named Atain Insurance Company, claiming that all roofing services performed by RDI were carried out by subcontractors. RDI thereby avoided $134,087 in general liability insurance premiums that it legally owed to USF.

Pegler was charged on December 19, 2013 in a State Grand Jury indictment and entered a guilty plea on April 17, 2014 before the Honorable Anthony J. Mellaci of the Superior Court of New Jersey. The Acting Attorney General, John J. Hoffman, made the following comments:

This defendant had a legal and moral obligation to provide full and adequate workers’ compensation insurance coverage for his employees. By failing in this duty, Mr. Pegler defrauded not just his employees and his insurance company, but also honest, hard-working New Jerseyans who are forced to pay increased premiums to cover the costs of the fraud.

New Jersey’s Acting Insurance Fraud Prosecutor Ronald Chillemi warned. “The jail time imposed upon this defendant should act as a deterrent to anyone who fails to provide adequate and lawful workers’ compensation insurance.”  He added, “Such frauds will not be tolerated and will be investigated and prosecuted to the fullest extent of the law.”

This case serves as a clear reminder to employers that misrepresenting the nature of one’s business to lower workers’ compensation costs constitutes fraud and will be strongly penalized.

Beverly Ballard worked for the Chicago Park District.  Her mother, Sarah, who lived with her daughter, was diagnosed with end-stage congestive heart failure in 2006 and began receiving hospice support.  Beverly acted as the primary caregiver for her mother, cooking her meals, administering insulin and other medications, draining fluids from her heart, and bathing and dressing her.

            Sarah met with a Horizon Hospice social worker in 2007 and discussed Sarah’s end-of-life goals.  Sarah said that she had always wanted to take a family trip to Las Vegas.  Through the Fairy-Godmother’s Foundation, the six-day trip was scheduled.

            Beverly sought unpaid leave from the Chicago Park District to accompany her mother to Las Vegas.  The District ultimately denied the request, but Beverly said she was not informed of the denial prior to the trip. The two women then traveled to Las Vegas and participated in typical tourist activities.  Beverly continued to serve as her mother’s caretaker during the trip.  Once she drove her mother to the hospital when a fire  prevented them from reaching their hotel room.

            The Chicago Park District months later terminated Ballard for unauthorized absences accumulated during her trip to Las Vegas, prompting Ballard to sue under the FMLA for interference with her FMLA rights. 

            In the law suit, the Park District argued that the trip to Las Vegas was not related to a continuing course of medical treatment.  The Park District lost at the District Court level and appealed to the Seventh Circuit Court of Appeals. The issue on appeal was whether “care” in the context of an away-from-home trip is limited to services provided in connection with ongoing medical treatment.

            The Court noted that “the FMLA does note define ‘care,’ so perhaps there is room to disagree about whether Ballard can be said to have cared for her mother in Las Vegas.”  The Court also observed that there are various sections of the FMLA that refer to care in connection with treatment, but one section  2612(a)(1)(C) speaks in terms of “care” not “treatment.”  Additionally, the Court said, “Another problem is that the FMLA’s text does not restrict care to a particular place or geographic location. For instance, it does not say that an employee is entitled to time off ‘to care at home for’ a family member.”

            In attempting to resolve confusion over the legislative intent in defining “care,” the Court examined the Department of Labor’s regulations, which read as follows:

What does it mean that an employee is ‘needed to care for’ a family member?

The medical certification provision that an employee ‘is needed to care for’ a family member encompasses both physical and psychological care. It includes situations where, for example, because of a serious health condition, the family member is unable to care for his or her own basic medical hygienic, or nutritional needs or safety, or is unable to transport himself or herself to the doctor, etc.  The term also includes providing psychological comfort and reassurance which would be beneficial to a child, spouse or parent with a serious health condition who is receiving inpatient or home care.

In the end, the Court was persuaded by the statement in the regulations that care includes psychological assistance and that there is no specific geographic limitation. “Sarah’s basic medical, hygienic, and nutritional needs did not change while she wasin Las Vegas, and Beverly continued to assist her with those needs during the trip.”  The Court rejected the argument of the Park District that care must be connected to medical treatment because the regulations never use the word “treatment” in their definition of care.

The Seventh Circuit acknowledged that its decision was counter to decisions in the Ninth and First Circuit Courts of Appeal.  The Court was impressed by an inherent inconsistency within the FMLA:  “If Beverly had sought leave to care for her mother in Chicago, her request would have fallen within the scope of the FMLA. So too if Sarah had lived in Las Vegas instead of with her daughter, and Beverly had requested leave to care for her mother there.”

            The case may be found at Ballard v. Chicago Park District, 741F.3d 838 (7^th Cir. 2014).  Employers need to reflect on the judicial philosophy in their own circuit and should always try to obtain medical certifications from the physician treating the family member to see what care the physician thinks is necessary. 

In Ex parte Schnitzer Steel Industries, Inc., released on September 27, 2013 (summarized on our blog September 28, 2013), the Alabama Supreme Court granted the employer’s petition for writ of mandamus and held that the post-accident report was prepared in anticipation of litigation and, therefore, was considered work product and not discoverable.

On May 30, 2014, the Alabama Supreme Court decided not to get involved in a work product issue inEx parte USA Water Ski, Inc. and denied the petition for writ of mandamus filed by USA Water Ski, Inc. The issue came before the Supreme Court previously when USA Water Ski, Inc filed a petition for writ of mandamus in June of 2013. In June the Supreme Court found that the post accident report at issue was work product and directed the trial court vacate its order that USA Water Ski, Inc. produce the report. Upon remand additional evidence came to light suggesting the post accident report was not prepared in anticipation of litigation. The trial court once again ordered that USA Water Ski, Inc. produce the post accident report. USA Water Ski, Inc. once again file a petition for writ of mandamus and this time the Supreme Court denied the petition without an opinion. However, Chief Justice Moore wrote a concurring opinion. According to Chief Justice Moore a writ of mandamus is not proper in the context of discovery issues and the Supreme Court should not get involved. Chief Justice Moore opined that the trial court is in a better position to deal with discovery issues and petitions for writ of mandamus require the need for extraordinary remedy which is normally not present in discovery issues.

My Two Cents:

It seems that once the trial court orders a party to produce a post accident report the Supreme Court is most likely going to defer to the trial court’s opinion and not get involved. For this reason it is important for employers to establish the reason behind the creation of the post accident report. As the Supreme Court ruled in Ex parte Schnitzer Steel Industries, Incthe report does not have to be solely prepared in anticipation of litigation but there must be evidence that the employer could have reasonably assumed litigation was expected, and for that reason, as well as standard procedure or other reasons, prepared the post accident report. If the employer can establish this at the trial level the post-accident report should not be discoverable. However, if the trial court orders that it be produced the Supreme Court has indicated that they are not likely going to get involved in discovery issues.

______________________________________

ABOUT THE AUTHOR

The article was written by Joshua G. Holden, Esq. a Member of Fish Nelson, LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation and related liability matters. Mr. Holden is AV rated by Martindale-Hubbell, which is the highest rating an attorney can receive. Holden and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields.

If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author atjholden@fishnelson.com or 205-332-1428.

On May 16, 2014, the Alabama Court of Appeals released its opinion in Jesse Stutts, Inc. v. William Hughey overruling a trial court’s finding that the employee’s new injury was a direct and natural result of his prior compensable injury. In Alabama, if an employee’s injury is found to be the direct and natural result of a previous compensable workers’ compensation injury, then the previous employer may be responsible for benefits resulting from the new injury, even if it the injury did not occur while working for the employer. However, when it cannot be shown that the first injury was the direct cause of the second injury, then the employee cannot recover additional compensation benefits for the new injury from the original employer.

Hughey, the employee in the case at hand, injured his back while working for Jesse Stutts, Inc., in 2002, and Stutts remained responsible for medical treatment for that injury. In 2011, while working for Cracker Barrel, Hughey claimed that he fell and re-injured his back due to his leg giving out. He also claimed that his leg weakness was related to his 2002 accident and that he had fallen numerous times as a result of the weakness. From the very beginning, Hughey wanted Stutts to pay for the treatment he would need for this new injury. For reasons unknown, he never sought benefits from Cracker Barrel.

At trial, the medical evidence made no clear connection between Hughey’s legs giving out and his 2002 injury. Although it was suggested that the 2002 injury could result in weakness, there was no medical evidence directly connecting Hughey’s new injury to his 2002 accident. However, despite the evidence, the trial court found that Hughey’s 2011 fall was the direct and natural result of his 2002 injury.

On Appeal, Stutts argued that Hughey had not presented substantial evidence to support the trial court’s decision, and the Court of Appeals agreed. It was noted that there was evidence suggesting that Hughey’s legs were weak and that they would give out on him at times, causing him to fall. However, the Court also noted there was no medical evidence supporting Hughey’s contention that the weakness was the cause of his new injury. In addition, the Court pointed out that Hughey had sustained other falls and incidents which were just as likely to have caused Hughey’s condition.

The Court of Appeals found that the trial court’s determination that Hughey’s fall was the result of his 2002 injury was speculation and not supported by the evidence, and therefore, overruled the trial court’s decision.

__________________________________

About the Author

This post was written by Trey Cotney, Esq. of Fish Nelson LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation matters. Fish Nelson is a member of the National Workers’ Compensation Network (NWCDN). If you have any questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at tcotney@fishnelson.com or any firm member at 205-332-3430.

The Alabama Legislature recently passed HB-107, which would amend § 25-5-56 of The Alabama Workers’ Compensation Act. HB-107 was introduced by District 55 Representative Rod Scott (D) on January 14, 2014. The legislature passed the bill in March, and it has been sent to Governor Bentley for his signature. Under current law, if an employee dies as the result of an accident occurring in and arising out of his employment, the employer must pay burial expenses up to a maximum of $3,000.00. If Governor Bentley signs HB-107, the maximum burial expense would be increased to $6,500.00.

_______________________________

ABOUT THE AUTHOR

This article was written by Charley M. Drummond, Esq. of Fish Nelson, LLC. Fish Nelson is a law firm located in Birmingham, Alabama dedicated to representing employers, self-insured employers, and insurance carriers in workers’ compensation cases and related liability matters. Drummond and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields. If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at cdrummond@fishnelson.com or (205) 332-3414.

On May 19, 2014, The New Mexico Court of Appeals ruled that Redwood Fire & Casualty must reimburse an injured mechanic for the cost of marijuana he was prescribed for pain due to his on-the-job injury. Gregory Vialpando injured his lower back in 2000 while working for Ben’s Automotive Services. Vialpando’s physician stated that Vialpando’ resulting pain was among the most intense, frequent and long-lasting out of thousands of patients the doctor had treated. In 2013, the workers’ compensation board approved Vialpando to use marijuana as treatment, but Redwood objected to reimbursing him for the cost of the drug due to its illegal status under federal law. While New Mexico passed theLynn and Erin Compassionate Use Act in 2007, legalizing the use of cannabis for treatment of debilitating medical conditions,The Controlled Substances Act of 1970 still classifies marijuana as a Schedule I drug under federal law with "no acceptable medical use", and makes its sale, possession, and distribution illegal. The Court of Appeals stated in its decision that neither Redwood nor Ben’s cited to any specific federal law that they would violate by reimbursing Vialpando for his herbal purchases.

MY TWO CENTS

It is unclear exactly what positions Ben’s Automotive and Redwood took at trial. However, it would appear that there are valid arguments to support denying reimbursement. By paying for Vialpando’s marijuana, Redwood would arguably be enabling Vialpando to purchase drugs that are illegal under federal law and, therefore, could arguably be considered to be conspiring to violate federal law. Section 846 of theControlled Substances Act of 1970 provides that any person who conspires to commit any other drug offense shall be subject to the same penalties as those prescribed for the offense itself. If reimbursing a person for buying drugs amounts to conspiracy to violate The Controlled Substances Act, Redwood’s concerns would certainly be understandable. Additionally, from Redwood’s perspective, insurance policies are contracts, so contract defenses would apply. Illegality is a defense to a breach of contract claim, so Redwood may have a valid defense in that regard, depending on what state’s law governs the insurance contract.

_________________________________

ABOUT THE AUTHOR

This article was written by Charley M. Drummond, Esq. of Fish Nelson, LLC. Fish Nelson is a law firm located in Birmingham, Alabama dedicated to representing employers, self-insured employers, and insurance carriers in workers’ compensation cases and related liability matters. Drummond and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields. If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at cdrummond@fishnelson.com or (205) 332-3414.

The State of New Mexico has a Compassionate Care Act which provides for medical marijuana when a patient is certified for the program by his or her health care provider.  In the case ofGregory Vialpando v. Ben’s Automotive Services and Redwood Fire & Casualty, the New Mexico Court of Appeals affirmed a decision of a Judge of Compensation requiring the worker’s employer to reimburse him for the cost of medical marijuana.

            Mr. Vialpando was seriously injured on June 9, 2000.  He underwent multiple back procedures leading to a 99% permanent partial disability.  One doctor described his pain as “high intensity multiple-site” chronic pain.  Vialpando had been taking multiple narcotic-based pain relievers and multiple anti-depressant medications.

            On April 8, 2013, Vialpando filed an application for approval of medical treatment for medical marijuana. nbsp; He had been certified for the program by two physicians.  The Judge of Compensation found that the worker was “entitled to ongoing and reasonable medical care,” including medical marijuana, and ordered the employer to pay for the care.

            The employer appealed and made several interesting arguments.  First, the employer argued that the New Mexico Workers’ Compensation Act did not authorize reimbursement for the costs of medical marijuana.  The court noted that an employer is required to provide an injured worker with “reasonable necessary health care services from a health care provider.”  However, the court conceded that the list of health care providers does not include a dispenser of medical marijuana under the State’s Compassionate Care Act.  Nor has the Director of the Division of Workers’ Compensation approved a dispenser of medical marijuana as a health care provider. 

On the other hand, the Act does define “services” as “health care services, . . . procedures, drugs, products or items provided to a worker by an health care provider, pharmacy, supplier, caregiver, or freestanding ambulatory surgical center which are reasonable and necessary for the evaluation and treatment of a worker with an injury or occupational disease. . . “ Based on this definition, the court found that medical marijuana is a product from a supplier that may be reasonable and necessary for an employee’s treatment. 

By defining ‘services’ as including a product from a supplier that is reasonable and necessary for a worker’s treatment, the regulations do not contemplate that every aspect of a worker’s reasonable and necessary treatment be directly received from a health care provider.  Such a requirement would be unworkable. A worker’s treatment may well require services that are not available from a health care provider. The most obvious of such services may be medical supplies or equipment.

As for the distinction that a doctor does not “prescribe” medical marijuana, but rather the employee gets certified to the New Mexico program, the court said it is unnecessary that each and every service must be provided by a health care provider.

            The employer also argued that medical marijuana should be viewed as a prescription drug, and since a doctor may not order medical marijuana, it should not be reimbursable under workers’ compensation.  The court rejected this argument as well. “A doctor may not order medical marijuana but may certify a patient to enroll in the medical cannabis program.” The court said that the definition of “services” is broader than the definition of a “prescription drug.”  Services include non-prescription drugs and products not necessarily prescribed by licensed pharmacists.  The court did concede that medical marijuana is a controlled substance and a drug but it reasoned that it makes no difference whether a pharmacist can prescribe it because the program authorized by the Department of Health is itself licensed. 

            Lastly, the employer contended that the court order requires the employer to violate federal law because marijuana is classified as a Schedule I Controlled Substance and is generally illegal to use or possess.  The court first observed that the employer was not specifically challenging the New Mexico Compassionate Care Act.  Rather, the employer was arguing that it was committing a crime in complying with the court order. 
“However, Employer does not cite to any federal statute it would be forced to violate, and we will not search for such a statute.”

            This case is one of the first to deal with the employer’s obligation to pay for medical marijuana through workers’ compensation, and it will not be the last.  The analysis in the New Mexico case raises complex state and federal issues. Readers are invited to give your thoughts on this decision and its implications to employers in connection with the New Jersey Compassionate Use Medical Marijuana Act.

New Jersey has a powerful provision allowing employers to terminate temporary disability benefits on an offer of light duty, provided that the offer is made.  If it is made, the employee must return to the light duty job or temp benefits will be terminated. 

            But what happens if the light duty offer involves fewer hours than the employee normally worked and less pay than the rate of temporary disability benefits?  There is no published case on this issue but there is a helpful decision in the Division of Workers’ Compensation entitled Soto v. Herr’s Foods, Inc., 2012 NJ Wrk. Comp. LEXIS 4 (September 7, 2012).

            Mr. Soto was injured at work on January 29, 2011 and underwent two authorized surgical procedures involving his left knee.  In January 2012 the authorized treating physician wrote a report stating petitioner could return to work light duty. “I would like to start light duty and see if we can get him back to work, sedentary, four hours a day, and progress to eight hours.”

            The employer made a light duty offer for four hours a day.  Petitioner had been earning $976.15 per week at the time of his injury, entitling him to a temp rate of $683.31 per week.  However, his light duty wage was much lower since he was only working four hours per day.  While on light duty petitioner was receiving a net payment of $329.43 per week.  That was $353.88 less per week than petitioner was receiving on temp benefits.

            Petitioner returned to the light duty job but also contested in the Division of Workers’ Compensation the right of the employer to pay him less than the amount he was receiving on temporary disability benefits.  The Honorable Emille Cox, Supervising Judge of Compensation, ruled in favor of petitioner, holding that a temporarily disabled worker is entitled to  temporary disability benefits of 70% of his or her wage subject to the maximum and minimum limits in effect for the year in question. The Judge reasoned:

It seems rather obvious to this Court that if Respondent is responsible for the payment of temporary disability benefits, and, in this case, the amount to which Petitioner is entitled is $683.31 per week, to allow Respondent to provide minimum light duty and only pay the Petitioner an amount less than the $683.31 to which he is entitled defeats the purpose of both the temporary disability and the light duty provisions of the workers’ compensation statute.

The decision of Judge Cox was not appealed, and had it been, the decision would no doubt have been affirmed.  The reasoning is sound, that one is still temporarily disabled while on light duty and therefore an employee must receive at least as much as his or her temp rate while working light duty until the employee reaches maximal medical improvement or returns to work full duty. Light duty cannot be used to reduce an employee’s wage below the rate of temporary disability benefits.

            There are many instances in which an injured worker argues that he was not employed so as to be able to bring a negligence action.  The case ofHernandez v. Port Logistics, A-3558-12T3 (App. Div. 2014) illustrates this situation.

            Daniel Hernandez was placing a box onto a load of pallets on August 23, 2011, when a wood splinter broke off and struck him in the eye, causing total loss of vision in the left eye.  Hernandez was employed by Staff Management, which had entered into a “Service Agreement” with Distribution Solutions, Inc. doing business as Port Logistics Inc. Hernandez sought workers’ compensation benefits from Staff Management.  Then he sued Port Logistics Inc. contending that the company was negligent in not providing him with eye protection.

            Port Logistics Inc. argued that Hernandez was its employee and could not sue the company because his exclusive remedy was workers’ compensation.  In his deposition, Hernandez acknowledged that he was doing work for Port Logistics in loading and unloading trucks.  He worked under the direct supervision of Port’s managers, who provided him with his assignments and directed his work at the loading docks.  Port controlled his work hours and lunch time.  Port Managers could send Hernandez home early if work was lacking. 

            For his part, Hernandez argued that the Service Agreement said he was an employee only of Staff Management and that Staff Management was exclusively responsible for payroll, taxes and workers’ compensation.  The trial judge rejected this argument that only Staff Management was Hernandez’s employer.  The judge found that  Hernandez was a special employee of Port Logistics.  Hernandez appealed.

            The Appellate Division noted that it is quite common for an employee to have two employers.  The court said that the language of the Service Agreement alone did not control the outcome of the litigation.  Instead, the court reviewed all the factors noted above showing that Port Logistics exercised tremendous control over the day-to-day activities of Hernandez. “In short, under the precedent cited, defendant (Port) was a special employer of plaintiff, despite any contract language to the contrary.  As a result, plaintiff’s tort claim against defendant was barred by N.J.S.A. 34:15-8.”

            The lesson in this case is that sometimes an employer wants coverage under workers’ compensation because the exclusive remedy provision offers powerful protection for an employer faced with a potentially large negligence law suit. 

Frank Ascione worked for U.S. Airways at Newark Liberty International Airport as a fleet service agent since 1981.  He handled baggage and drove equipment to push back planes.  He would work in the “bag room” transporting baggage to and from the plane.  He assisted in de-icing of planes about 20 times in his career and worked with a chemical named glycol.  He said the diesel tugs he drove released smoke that would enter the cab of the tug, leaving a heavy soot on the floor of the vehicle.  It was often hard to breathe, and sometimes he would have to stick his head out the window for fresh air.  Sometimes the baggage conveyor belt would jam, requiring him to crawl into the system to remove baggage.  When that would happen, dirt, dust and asbestos would fall on him.  He also was exposed on occasion to clouds of smoke emanating from the engine while unloading the plane.

            Petitioner brought a claim for pulmonary injuries against U.S. Airways.  At trial he testified that he had a lack of energy, although he still worked for the company and took overtime.  He complained of a cough and shortness of breath which prevented him from exercising or playing sports.  He admitted to a history of heart problems and had a cardiac catheterization in 2009. 

            Dr. Malcolm Hermele testified for petitioner as an expert in internal medicine, although he admitted he is not board certified in pulmonology.  He testified that x-rays of petitioner’s chest showed damaged alveoli which could be caused by exposure to fumes, dust and pulmonary irritants.  He did concede that petitioner’s excessive weight could be an independent cause of fatigue and shortness of breath.  Losing weight, he admitted, would help petitioner reduce his symptoms.  Dr. Hermele said petitioner suffered from chronic bronchitis and probably restrictive pulmonary disease caused or aggravated by work exposures.  He estimated 35% permanent partial disability. 

            Dr. Benjamin Safirstein, a board certified pulmonologist, testified that petitioner’s physical exam was “pretty normal.”  He said that the first set of pulmonary functions studies were entirely normal.  He had no obstruction, restriction or impairment in diffusion.  One of the key factors in this case was that Dr. Safirstein did more extensive pulmonary function testing than Dr. Hermele did.  Dr. Safirstein performed spirometry, lung capacity and diffusion testing, while Dr. Hermele only did spirometry.  According to Dr. Safirstein, spriometry alone is only preliminary and cannot be used to diagnose pulmonary diseases.  Another point of contention between the experts was the x-rays, which were completely normal according to Dr. Safirstein. 

            Dr. Safirstein performed a second pulmonary function test in late 2012 which showed a mild decline in the vital capacity parameter of petitioner’s lung volumes.  He attributed this decline to lack of effort on the part of petitioner in performing the test and his excessive weight, or cardiac enlargement.  He did admit petitioner would qualify as having bronchitis but did not believe that this condition was due to work.  As for petitioner’s shortness of breath, that could be caused by any number of conditions, including morbid obesity and an enlarged cardiac silhouette suggestive of cardiac disease.

            The Judge of Compensation ruled for petitioner and awarded 7.5%.  U.S. Airways appealed.  It argued that the Judge of Compensation failed to make critical findings concerning the conflicting testimony of the medical experts in this case.  The court said, “A workers’ compensation judge should ‘carefully explain why he or she considered certain medical conclusions more persuasive than others.’”Smith v. Montgomery nursing Home, 327 N.J. Super. 575, 579 (App. Div. 2000).  The court said the judge failed to articulate her reasons for making discretionary decisions.  In a key statement the court said: “This court has reversed decisions from judges of compensation when a decision merely recounts the highlights of the expert testimony without making any conclusions.” What the court meant is that it was not enough for the judge to simply discuss the testimony of the experts:  since their testimony conflicted, she needed to make credibility findings. 

            The court observed that Dr. Safirstein’s testing was superior to that of Dr. Hermele.  All Dr. Hermele measured is air flow but not lung volumes.  More testing was needed to confirm an abnormality, according to Dr. Safirstein. “As noted, the judge failed to fully explain why she rejected the findings and conclusions of Dr. Safirstein, and credited those of Dr. Hermele.” The court remanded the case for the judge to make specific and detailed findings as to expert witness credibility and determine whether petitioner has proven “by suitable medical evidence that the employment exposure did indeed cause or contribute to the disease . . . [and] that the employment exposure substantially contributed to the development of the disease.”

            This case can be found at Ascione v. U.S. Airways, A-5049-12T1 (App. Div. April 10, 2014).