June 24, 2021

Appellate Division Affirms Dismissal Based On Credibility Of Medical Experts. Prompt Furnishing Of An MRI Post-Accident Was Also Key To A Defense Win

The importance of expert medical testimony in workers compensation litigation was emphasized by the Appellate Division in the matter of Patricia Costanzo v Meridian Rehab, A-5547-18, decided June 17, 2021. In addition, while not a factor relied upon in the Court’s decision, this case shows the importance of providing timely testing involving claimed injuries.

Petitioner was working as a recreational aide for the respondent on April 1, 2016 when she slipped and fell, landing on both knees. She filed a formal Claim Petition, and since she felt pain in her left knee respondent authorized an MRI of the left knee which was performed on June 14, 2016. The MRI revealed no tears to the meniscus or ligament, nor were any fractures seen. There was evidence of pre-existing changes including arthritis. Thereafter, petitioner resumed her regular work for respondent.

In August 2017, more than one year post-compensable accident, petitioner was walking on a beach when she suffered a meniscus tear and underwent a right knee arthroscopic meniscectomy that same month. There is no reference to an MRI or other radiographic testing performed on the left knee post-beach incident. This incident was not in the course of her employment.

In  January 2018, petitioner underwent another MRI to the left knee which was positive for a torn medial meniscus with a displaced fragment, plus a torn anterior cruciate ligament (ACL.) The pre-existing arthritis was still present.

In February 2018 petitioner filed a motion for medical treatment asking the court to order respondent to pay for additional treatment for the left knee. The respondent denied liability and thereafter the motion went to trial.

Both parties presented orthopedic experts on the issue of causal relationship of the 2018 MRI findings and the 2016 fall. Petitioner’s expert testified that the as the result of the 2016 fall, despite the negative MRI her medial meniscus was “elongated” when her knee struck the ground and gradually tore over time. With respect to the ACL, it was stretched at the time of impact to the point that there were just a few fibers holding it together. Eventually, the remaining fibers broke, and the tear was apparent on the 2018 MRI.

The Judge of Compensation found the testimony of petitioner’s expert not to be credible, explaining in his written decision that his opinions were simply not logical, and the facts the expert used as the basis of his opinions were “tenuous.” The judge was impressed by the testimony of the defense orthopedist, who opined that the petitioner suffered a contusion at the time of her 2016 fall, was appropriately treated and fully recovered. He further testified that neither a meniscus nor an ALC can tear spontaneously, and that the tears seen on the 2018 MRI could only be explained by a subsequent traumatic incident. He found no evidence of any “elongating” or “stretching” within the left knee on the 2016 MRI. He found this testimony to be credible and persuasive, and denied petitioner’s motion, from which petitioner appealed. The Appellate Division affirmed the denial of the motion, noting “We discern no basis for disturbing his well-reasoned conclusions.”

This opinion is important for employers and insurance carriers in two main areas. First, as made clear in the opinion, is the absolute necessity of obtaining the best possible experts to defend not only motions for medical treatment but defensible claims in general. Granted, in this particular case the petitioner’s expert had very little to base his opinion on, and petitioner’s claim was weak at best. Nonetheless, in every case the defense should obtain the best possible expert available.

Second, while not directly cited by the court as a factor in its opinion, this case was ultimately won by the defense because the claim handlers ordered an MRI as soon as possible to medically investigate petitioner’s left knee complaints. While a case can certainly be made for not authorizing expensive testing in every claim, where there is a traumatic event and complaints consistent with that trauma serious consideration should be given to authorize such testing from not only a diagnostic perspective, which is foremost, but also from a defense perspective where appropriate.

By: Alfred P. Vitarelli, Associate at Brown & Connery, LLP