NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-00106-12T1
MARGIE E. RAIMONDI,
Petitioner-Respondent,
v.
MORRIS COUNTY PARK POLICE
AND COMMISSION,
Respondent-Appellant.
_____________________________________
November 12, 2013
Submitted October 1, 2013 Decided
Before Judges Sabatino and Rothstadt.
On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition Nos. 2011-13980 and 2011-13815.
Daniel W. O'Mullan, Morris County Counsel, attorney for appellant (Christopher G. Meikle, Special County Counsel,and Robert M. Brigantic, Special County Counsel, on the brief).
Laddey, Clark & Ryan, attorneys for respondent (William P. Knox and Jonathan E. McMeen, on the brief).
PER CURIAM
The Morris County Park Police and Commission ("MCPPC") appeals from a determination by a worker s compensation court that petitioner Margie Raimondi suffers from work-related Lyme disease;1 and from the court s July 27, 2012 order requiring MCPPC to provide her temporary disability and medical benefits, and particularly to pay for her hyperbaric oxygen treatment ("HOT").2 MCPPC argues that the compensation judge reached a decision unsupported by and inconsistent with the law and the credible evidence adduced at the hearings, because there was no objective evidence that Raimondi suffered from Lyme disease. Even if she suffered from Lyme disease, MCPPC argues that there was no evidence that HOT is an appropriate or acceptable treatment for that condition because it is allegedly experimental and risky. In addition, MCPPC challenges the judge's evidential ruling that barred its expert from testifying to consultations that he had with other doctors about Raimondi's condition and their opinions about HOT.
MCPPC urges this court to conduct a de novo review of the hearing and to reverse the compensation judge's determination. However, we decline to do so. We affirm because there was substantial, credible evidence in the record to support the judge's determinations, and his ruling which barred the introduction of hearsay expert opinion did not constitute an abuse of discretion.
I.
Raimondi began working for MCPPC in September 2005, initially assigned as a patrol officer (on foot, and by car), and later as a mounted patrol officer (on horseback).3 Her duties as a mounted patrol officer included maintaining the horses and stables, in addition to patrolling the woods and county parks on horseback.
The areas of the park that she patrolled included wooded areas where deer frequented. Thus, she was regularly exposed to ticks in her work, often "plucking" them off her clothing during working hours, and finding more on her body (usually her arms and chest) at the end of the day. She claims to have experienced tick bites "many times." However, she could not recall any specific dates and times when she was bitten, nor could she recall ever developing a "bullseye"-shaped rash a common indicator of a tick bite bearing Lyme disease.
In late 2006, Raimondi began to experience chronic fatigue, pain in her muscles and joints, and stiffness in her neck, among other things. According to a blood test, Raimondi suffered from Lyme disease as of August 2006. Her condition worsened during the next two years, causing her to exhaust her sick leave because she was bedridden for approximately three to three-and-a-half months.
By late 2008 Raimondi's condition had improved so that she could return to work, though her illness forced her to switch to "light duty": her responsibilities were limited to clerical work and office administration. She worked in this capacity until early 2009, when her illness forced her to leave work again.
Specifically, on March 12, 2009, Raimondi suffered an attack to her central nervous system. Doctors at Morristown Memorial Hospital admitted her for treatment, where she remained for about one week. From that time and to the present day, she has been under the care of her treating physician Max G. DeShaw, M.D. - a board certified medical doctor who specializes in infectious diseases, and regularly treats Lyme disease patients. Dr. DeShaw diagnosed Raimondi with late musculoskeletal Lyme disease at that time.
After her release from the hospital, Raimondi remained in bed at home for the next nine months. During the first six months, she received antibiotic medication through intravenous drip ("IV"). These treatments improved her symptoms.
In December 2009, Raimondi returned to work, resuming her "light duty" responsibilities. Then, in April 2010, she returned to her regular responsibilities, including mounted patrol in the park. However, Raimondi continued to experience fatigue, joint pain, muscular ache, and pain in her neck and back.
On March 25, 2011, Raimondi fell on a patch of black ice while clearing snow off of a patrol car; she slipped forward, landing on her hands and knees. Her chin also hit the ground, causing her head to snap backwards. Thinking she had suffered a mild muscle injury, Raimondi made a "precautionary" report of her injury to MCPPC. Meanwhile, she continued working until the end of her shift, and further completed her five-day work schedule. Throughout this time, however, her condition worsened: she experienced pain, primarily in her neck and trapezius, and radiating down her spine. She also experienced intermittent numbness in her left hand.
As she would later testify, when compared to what she had experienced before the fall, Raimondi's post-accident symptoms were like "[n]ight and day." With her illness, she had described a "burning, electric" pain, fatigue, muscle and joint pain, and headaches. However, following her accident she began to experience severe spasms, and pain in her neck and hips. She eventually went to the hospital on April 3, 2011, and was bedridden for the next five days.
Dr. DeShaw determined that the accident aggravated Raimondi's underlying Lyme disease symptoms. Jeffrey A. Siegel, M.D., also treated Raimondi for her accident-related injuries. He is an orthopedist and one of MCPPC's authorized doctors. According to Dr. Siegel's April 26, 2011 report, Raimondi's post-accident symptoms were "perhaps" attributable in part to her "history of Lyme disease with central nervous system involvement." Dr. Siegel referred Raimondi for physical therapy, which she completed after approximately five weeks. By May 24, 2011, Dr. Siegel cleared her for full duty, although Raimondi testified that she continued to feel pain at that time.
Although she was still employed by MCPPC as of the date of the compensation court's hearings, Raimondi has been unable to work since May 25, 2011 due to severe joint and muscle pain, fatigue, neck pain, and back pain. Dr. DeShaw treated Raimondi throughout this time, and referred her to other specialists, including spinal specialist George S. Naseef, M.D., and pain management specialists Michael E. Rudman, M.D., and Richard P. Winne, Jr., M.D. These subsequent referrals led to treatments including physical therapy, epidural injections, and pool therapy. Additionally, since her Lyme diagnosis, Raimondi has undergone an intensive course of antibiotics (taken both orally, and intravenously) and other supportive therapy, including muscle relaxants and pain medication. Nevertheless, her symptoms have persisted.
On May 24, 2011, Raimondi filed a compensation claim relating to her March 25, 2011 slip-and-fall accident ("accident claim"). The next day, she filed a separate claim alleging that she suffered occupational exposure to Lyme disease between January 1, 2006 and May 25, 2011, due to tick bites she received while on mounted patrol ("Lyme disease claim"). MCPPC responded to both claims. As to the accident claim, MCPPC admitted to Raimondi's employment, and that an injury consisting of a "cervical/lumbar sprain" arose out of, and in the course of employment. As to the Lyme disease claim, it denied that Raimondi contracted Lyme disease in the course of her employment.4
On September 30, 2011, Raimondi filed motions under both claim petitions, seeking temporary disability and medical benefits as of March 25, 2011 (the day of her slip-and-fall accident). The compensation court held hearings for both motions, during which the parties stipulated that on March 25, 2011, Raimondi suffered a compensable slip-and-fall accident; that she was provided medical treatment for that accident; and that she had been deemed fully recovered by Dr. Siegel and was discharged on May 24, 2011. The court then heard testimony from Raimondi. In addition, Raimondi's counsel submitted several records and reports relating to her medical history in lieu of testimony, to which MCPPC did not object and agreed to waive its right to cross-examination.
In its December 2, 2011 opinion, the compensation court narrowed the scope of its decision to one "primary issue" whether Raimondi would be entitled to medical treatment and temporary disability benefits; further, its jurisdiction was limited to determining benefits dating from the inception of the motions, September 29, 2011, and until she could work again.
The court then resolved the issue of medical and temporary benefits based on Raimondi's testimony and medical proofs. The court found that Raimondi was currently experiencing the "residuals" of Lyme disease that arose out of and in the course of her employment. The court further found that her disease was in a quiescent phase prior to her accident, but then her symptoms were essentially reactivated and/or exacerbated by her fall. MCPPC's proofs had been insufficient, as it failed to proffer evidence controverting Raimondi's claims with an alternative cause for her disease, or proof that the accident did not exacerbate her symptoms.
Accordingly, the court ordered that Raimondi be paid her temporary disability and medical treatment benefits, accruing after September 29, 2011 and until she was able to work. The court also authorized treatment from Dr. DeShaw and Dr. Naseef, and pain management from Dr. Winne and Dr. Rudman.
On February 22, 2012, Raimondi filed another motion specifically seeking payment for HOT to treat symptoms of Lyme disease as prescribed by Dr. DeShaw.5 Raimondi filed this motion under the accident claim because her fall had allegedly triggered reoccurrence of her Lyme disease symptoms. At the hearings held on April 12, May 11, and June 28, 2012, counsel for both parties agreed to incorporate all testimony and stipulations entered into by them at the proceedings on the first motion, thereby conceding Raimondi's employment and that her March 25, 2011 accident was compensable.
Raimondi testified that her physical condition remained the same as it was when she testified previously. She further confirmed that Dr. DeShaw prescribed HOT, that he had discussed with her the possible benefits and risks of the treatment, and that she was willing to proceed with HOT. On cross-examination, Raimondi confirmed that Dr. DeShaw informed her of the remote possibility that her condition would worsen as a result of HOT, and that there was some risk of a ruptured eardrum. She also confirmed her awareness that the procedure was considered experimental. Nevertheless, she asserted that she was willing to proceed with the treatment, despite the risks, in the hope that the treatment would relieve or otherwise mitigate her pain.
The court then heard testimony from Dr. DeShaw, without objection, as an expert specializing in infectious disease. He testified that he had been practicing in New Jersey since 1997, and that due to the high prevalence of Lyme disease in the State, his practice had developed to a point where he now sees an average of 100 patients a month. He confirmed that he had been treating Raimondi since March 2009, when "[s]he had been ill for at least a year with symptoms of headache, joint pain, chronic fatigue, low grade fevers, [and] night sweats." Based on these symptoms, he diagnosed Raimondi with Lyme disease.
Dr. DeShaw further testified that prior to March 2011, Raimondi had clinically improved to the point where she was on less medication, and off antibiotics completely. However, he opined that her accident "reactivated" her Lyme symptoms, causing headaches, fatigue, joint pain, and chest pain. He conceded that there were no medical studies to support his conclusion, and that it was difficult "to delineate the orthopedic injury versus the Lyme." Still, it was his "clinical impression . . . that the trauma did reactivate her Lyme symptoms." He reached this conclusion in light of what he had observed in other Lyme disease patients who had experienced a return of symptoms after a trauma, infection, or pregnancy, among other things. After the accident, Dr. DeShaw started Raimondi on a course of antibiotic therapy, to which she did not respond. Thereafter, he switched her to the intravenous antibiotic Ceftriaxone, "which is considered the best treatment for neurologic and musculoskeletal Lyme" disease. To this, Raimondi responded "partially but inadequately."
Dr. DeShaw also performed certain tests to determine whether Raimondi had active (as opposed to dormant) Lyme disease. He testified that she had previously tested positive under the "Western Blot" test, but that her later results were negative. However, Dr. DeShaw did not consider the Western Blot to be a reliable indicator of active disease, because patients did not always produce the antibodies tested by the Western Blot. In addition, a recent analysis of her spinal fluid from a lumbar puncture had tested "normal." Dr. DeShaw questioned the validity of those results as well, because the lumbar puncture had been performed while Raimondi was on antibiotics. He also testified that the "CD-57" test, which he considered more reliable, produced a positive result for active Lyme disease within the last three to four months; but he conceded that the CD-57 had not been performed since Raimondi had suspended her IV treatment, and would probably be repeated soon. Still, in light of his findings, and Raimondi's lack of response to treatments, Dr. DeShaw recommended a course of HOT which he described as:
a form of therapy in which a patient enters an enclosed tank that allows the oxygen concentration to be increased to just several atmospheres above the normal oxygen concentration and high levels of oxygen are found to be toxic to bacteria, really any bacteria that are causing infections in the body, and the oxygen penetrates to areas where antibiotics may not be able to reach, like the central nervous system, or the spinal canal, or the joints.
Dr. DeShaw testified that over the last ten years, he had prescribed HOT for about 240 patients in all, and approximately twenty patients with Lyme disease. He opined that the treatment was medically necessary to restore Raimondi back to a state of health and would enable her to return to work.
When asked whether the treatment presented risks, Dr. DeShaw replied that the patient could experience perforation of the eardrum, which would be addressed by monitoring the patient on a regular basis. Also, patients with a preexisting lung disease may have a collapsed lung, but Raimondi had no such condition. Finally, Dr. DeShaw acknowledged that there could be an initial worsening of the symptoms at the start of the treatment. However, he had observed no instances in which this spike in symptoms was permanent; in fact, he considered the spike to be a positive sign, indicating that the infection was being treated. Moreover, he had observed a similar worsening of patients' symptoms at the start of antibiotic therapy which he had previously prescribed for Raimondi.
On cross examination, Dr. DeShaw conceded that HOT was not considered a standard treatment for Lyme disease. Still, he maintained that in his own experience the treatment was not experimental, but had proven successful for many of his Lyme disease patients. MCPPC then presented William S. Kritzberg, M.D., as an expert and board certified specialist in internal medicine. He described his practice as "20% cardiology, 20 to 25% infectious diseases, about 25 to 30% orthopedic or musculoskeletal related diseases," with the balance in endocrinology, rheumatology, gastrointestinal disorders, and other internal medicine subspecialties. He treated approximately one Lyme disease patient per month, and saw more in the spring and summer months.
He testified that he had examined Raimondi on April 3, 2012. In addition, he had reviewed her medical records, and consulted some secondary materials related to infectious disease, including the American College of Physicians' Guidelines for internal medicine, the Lyme disease treatment guidelines by the Infectious Disease Society of America ("IDSA"), and Food and Drug Administration ("FDA") publications.
Dr. Kritzberg expressed skepticism that Raimondi was currently suffering from active Lyme disease. He testified that his own diagnostic tests yielded no positive results for Lyme disease. Additionally, he testified that in his review of Raimondi's records, he had found only negative results "except for the antibody study for Lyme disease, which is well known in chronic Lyme Disease to be positive many months, even years after Lyme Disease has been treated successfully." He conceded that there was evidence of Lyme disease prior to 2009. However, he maintained that in his overall review, he found no objective evidence that Raimondi had active Lyme disease at the time of his examination.
As to the efficacy of HOT as a treatment for Lyme disease, Dr. Kritzberg testified that HOT is not an IDSA-approved form of therapy, and is specifically listed as such. He also testified that the IDSA was the only major infectious disease society in America. He further testified that he was unaware of any peer studies concerning HOT for Lyme disease treatment, and opined that the treatment was a "very experimental modality." When asked if he felt that HOT was a "viable option" for Raimondi, Dr. Kritzberg replied that he did not believe that the treatment would benefit her.
Counsel for MCPPC further asked Dr. Kritzberg if he "consult[ed] with anyone in the field of infectious diseases" in his review of Raimondi's medical record. Raimondi's counsel raised an objection to this testimony, which the judge sustained because he would not allow "straight-out hearsay from someone essentially bringing an expert opinion by the back door without being subject to the right of cross examination":
I'm [not] going to ignore what was attempted to be done and get this [testimony] into the back door. . . . If this witness does not have the appropriate expertise to address the question, he may not bring in that expertise by, "I talked to Joe Smith who has the appropriate expertise, and he said A, B, C, or D."
On cross examination, Dr. Kritzberg testified that he had neither published in the area of Lyme disease, nor taken any courses in Lyme disease in two to three years. He further testified that he had not treated a Lyme disease patient within the last week, but had done so within the last month. He also asserted that he had no patients in the hospital with Lyme disease at present. Upon examination of a March 1, 2012 CT Scan of Raimondi's head, he conceded that the radiologist had reported an "area of diminished attenuation" which had "evolved" since a prior study, and that the radiologist thought it was possibly attributable to Lyme disease. Still, Dr. Kritzberg confirmed that in his report he had opined that Raimondi's symptoms were orthopedic in nature.
In his July 27, 2012 opinion, the compensation judge initially found Raimondi to be "a most credible witness," and believed that her assertions of pain and other symptoms were truthful. Once again, he found that Raimondi suffered from active Lyme disease in 2009, and that MCPPC had presented no evidence to refute this.
As to the experts' testimony, the judge accorded greater weight to Dr. DeShaw's testimony in light of his credentials and experience. He noted that Dr. DeShaw has treated Raimondi for Lyme disease since March 2009, and was her treating physician, while Dr. Kritzberg derived information about Raimondi from one examination and his review of her medical records. In addition, Dr. DeShaw is a board certified specialist in infectious disease, with extensive experience in treating Lyme disease patients. In contrast, Dr. Kritzberg has no specialized expertise in Lyme disease, or even infectious disease.
Furthermore, the court affirmed that it correctly barred Dr. Kritzberg's testimony concerning the hearsay opinions of infectious disease specialists. While N.J.R.E. 703 would permit such testimony as information that the expert relied upon, the court found such testimony to be "inherently unreliable." The court reasoned that because the testimony was not subject to cross examination, it constituted impermissible hearsay evidence pursuant to Agha v. Feiner, 198 N.J. 50, 63 (2009) (citing State v. Vandeweaghe, 351 N.J. Super. 467, 480-81 (App. Div. 2002), aff'd, 177 N.J. 229 (2003)).
Thus, the court found Dr. DeShaw to be the more credible witness and affirmed his diagnosis of Raimondi's present condition. The court also acknowledged the "testing deficiencies" and difficulties in documenting the disease. However, Dr. Kritzberg's only alternative explanation for Raimondi's symptoms were that they were orthopedic, and this position was specifically undermined by Dr. Siegel's discharge of Raimondi. Furthermore, the court noted that:
[t]o accept Dr. Kritzberg's conclusion [that Raimondi did not suffer from Lyme disease] would create a "Catch 22" scenario where the Respondent had terminated treatment for Petitioner's slip and fall accident based upon an orthopedic conclusion that her symptoms were not related to orthopedic problems and would be permitted to avoid treatment for Lyme disease based upon an internist's conclusion that her symptoms were not related to Lyme disease with no third alternative offered by any of the experts.
Accordingly, the court found that Raimondi's symptoms were caused by Lyme disease and not orthopedic injuries.
Finally, the judge addressed the issue of whether Raimondi was entitled to medical treatment benefits for HOT. Once again, he accorded greater weight to Dr. DeShaw's testimony, in light of his past successes in administering HOT, and the failure of more traditional methods. In contrast, the judge found that Dr. Kritzberg had no experiential basis for his opinion. Furthermore, MCPPC offered "no alternative for [Raimondi] save continued pain and inability to work." Accordingly, the court's order required MCPPC to bear the cost of Raimondi's HOT regimen as recommended by Dr. DeShaw.
II.
Our scope of review is limited. This court is bound to uphold a compensation judge's findings if they 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 their credibility." Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). Moreover, the compensation court is itself considered a "tribunal with expertise." Goldklang v. Metro. Life Ins. Co., 130 N.J. Super. 307, 311 (App. Div.), aff'd, 66 N.J. 7 (1974). In particular, this court must "defer to the judge of compensation's expertise in analyzing medical testimony and abide by the longstanding principle that a 'judge of compensation is not bound by the conclusional opinions of any one or more, or all of the medical experts.'" Kaneh v. Sunshine Biscuits, 321 N.J. Super. 507, 511 (App. Div. 1999) (quoting Perez v. Capitol Ornamental, Concrete Specialties, Inc., 288 N.J. Super. 359, 367 (App. Div. 1996)).
Still, compensation judges' findings "must be supported by articulated reasons grounded in the evidence." Lewicki v. N.J. Art Foundry, 88 N.J. 75, 89-90 (1981). Furthermore, this court need not uphold findings which are so "manifestly unsupported by or inconsistent with competent relevant and reasonably credible evidence as to offend the interests of justice." Lindquist v. City of Jersey City Fire Dep't, 175 N.J. 244, 262 (2003) (quoting Perez v. Monmouth Cable Vision, 278 N.J. Super. 275, 282 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995)). In such case, de novo review is appropriate if the compensation judge's evaluation of the underlying facts and inferences drawn therefrom "leave[ this court] with the definite conviction that the [compensation] judge went so wide of the mark that a mistake must have been made." Manzo v. Amalgamated Indus. Union Local 76b, 241 N.J. Super. 604, 609 (App. Div. 1990), certif. denied, 122 N.J. 372 (1990) (quoting C.B. Snyder Realty, Inc. v. BMW of N. Am., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989)).
Applying these principles to this case, we are satisfied that the reasons articulated by the compensation judge were well grounded in substantial, credible evidence relating to Raimondi's Lyme disease diagnosis and the need for HOT.
III.
The evidence in the record, amply supports the compensation judge's determination that Raimondi had active Lyme disease, especially in light of the judge's credibility findings. As noted above, a reviewing court must defer to the credibility findings of a compensation judge, as well as to the judge's "expertise in analyzing medical testimony," Kaneh, supra, 321 N.J. Super. at 511, and the compensation judge has discretion to accept the expert opinion of a petitioner's physician, while rejecting the opinion of the employer's expert physicians. Paul v. Balt. Upholstering Co., 66 N.J. 111, 121-22 (1974). Moreover, "[i]t is generally recognized that a treating physician is in a better position to express an opinion as to cause and effect than one making an examination in order to give expert medical testimony." De Vito v. Mullen's Roofing Co., 72 N.J. Super. 233, 236 (App. Div.), certif. denied, 37 N.J. 222 (1962); Celeste v. Progressive Silk Finishing Co., 72 N.J. Super. 125 (App. Div. 1962).
In this matter, the compensation judge carefully considered Raimondi's medical records, reviewed secondary medical materials, and heard testimony from three witnesses. He found Raimondi to be a credible witness, and believed her assertions of regular, persistent pain.
The judge also considered the doctors' conflicting opinions regarding Raimondi's Lyme disease diagnosis and symptoms. He noted the general difficulties in diagnosing Lyme disease, and particularly the limitations of certain testing procedures. However, the judge gave Dr. DeShaw's testimony greater weight, as he had been Raimondi's treating physician since March 2009; he had been authorized to treat her pursuant to the December 2, 2011 order; and he had greater expertise and experience in Lyme disease than Dr. Kritzberg.
Significantly, the judge also found that the only explanation Dr. Kritzberg could provide for Raimondi's symptoms were that they were orthopedic in nature. However, that conclusion was specifically refuted by MCPPC's authorized treating orthopedist, Dr. Siegel, who had previously discharged Raimondi following her accident. Thus, as the judge explained, to credit Dr. Kritzberg's position would thereby place Raimondi in an untenable situation, in which treatment for her symptoms could be rejected on the basis that they were neither orthopedic in nature, nor based in Lyme disease.
Given the compensation judge's meticulous and logical analysis of the proofs, we are satisfied that the judge relied on sufficient, credible evidence in the record in finding that Raimondi suffered from active Lyme disease.
IV.
The compensation judge also correctly determined that Raimondi should receive benefit payments for her HOT. Under the Workers' Compensation Act ("Act"), N.J.S.A. 34:15-1 to -127, an employer must furnish an injured worker with medical treatment and services necessary "to cure and relieve the worker of the effects of the injury and to restore the functions of the injured member or organ" if possible. N.J.S.A. 34:15-15. The Act should be liberally construed in favor of employees, Squeo v. Comfort Control Corp., 99 N.J. 588, 596 (1985) (order directing respondent employer to construct an apartment for quadriplegic suicidal depressed petitioner was proper under the Act), in order to better achieve its "beneficent purposes," Zahner v. Pathmark Stores, Inc., 321 N.J. Super. 471, 477 (App. Div. 1999); see also Brunell v. Wildwood Crest Police Dep't, 176 N.J. 225, 235 (2012) (explaining that the Act is "important social legislation" intended to accomplish "swift recompense for injured employees.").
In determining the efficacy and necessity of HOT for Raimondi, the compensation judge again gave greater weight to Dr. DeShaw's testimony than to that of Dr. Kritzberg. The judge noted that Dr. DeShaw previously attempted to treat Raimondi using traditional methods for Lyme disease, but had seen little improvement. Dr. DeShaw had also successfully treated Lyme disease patients with HOT in the past. As to Dr. Kritzberg's testimony, the court acknowledged the experimental nature of the treatment, but found that the doctor had no experiential basis for doubting its efficacy. Moreover, MCPPC failed to offer an alternative treatment for Raimondi's symptoms. The judge therefore concluded that MCPPC must bear the cost of Raimondi's HOT, as prescribed by Dr. DeShaw.
Accordingly, we are satisfied that the judge's findings as to Raimondi's HOT were clearly articulated in his opinion, and were well-supported by substantial, credible evidence in the record.
V.
Finally, we agree with the compensation judge that Dr. Kritzberg's testimony about his consultations with other doctors6 were correctly excluded. We recognize that a compensation court is not strictly bound to the rules of evidence. N.J.S.A. 34:15-56. This principle aims "to simplify the nature of proof that can be offered" in workers' compensation proceedings, Gunter v. Fischer Scientific Am., 193 N.J. Super. 688, 691 (App. Div. 1984). Still, a compensation judge's determination must be based on legally competent evidence. Ibid. In keeping with that policy, "parties must be afforded the right to cross-examine witnesses and to produce evidence to address the relevant issues in a contested proceeding." Paco v. Am. Leather Mfg. Co., 213 N.J. Super. 90, 96 (App. Div. 1986). Our evidence rules, which generally restrict the admission of expert opinion within an admissible hearsay statement, see N.J.R.E. 808, reflect the general policy that requires parties be afforded the opportunity to cross-examine witnesses. Ibid. Moreover, expert opinions from declarants who do not testify may properly be excluded as substantive proof, even if otherwise admissible, if the opinions relate to opinions about complex medical matters. Nowacki v. Cmty. Med. Ctr., 279 N.J. Super. 276, 284 (App. Div.), certif. denied, 141 N.J. 95 (1995); see also Lazorick v. Brown, 195 N.J. Super. 444, 451 (App. Div. 1984) ("Notwithstanding the business record exception to the hearsay rule . . . expert opinions recorded in business records by a declarant who is not available for cross-examination may be excluded as substantive proof if the opinions relate to diagnoses of complex medical conditions difficult to determine or substantiate." (quoting Gunter, supra, 193 N.J. Super. at 694)).
In this matter, the compensation judge rightly excluded Dr. Kritzberg's testimony as to his consultations with other doctors. His decision was consistent with our long held view that all parties must be afforded the opportunity to cross- examine witnesses, especially where, as here, the testimony relates to complex medical issues.
Affirmed.
1 As defined by the Centers for Disease Control and Prevention ("CDC"):
Lyme disease is caused by the bacterium Borrelia burgdorferi and is transmitted to humans through the bite of infected blacklegged ticks. Typical symptoms include fever, headache, fatigue, and a characteristic skin rash called erythema migrans. . . . Lyme disease is diagnosed based on symptoms, physical findings (e.g., rash), and the possibility of exposure to infected ticks; laboratory testing is helpful if used correctly and performed with validated methods.
[Lyme Disease, Ctrs. for Disease Control & Prevention, http://www.cdc.gov/lyme/ (last updated June 14, 2013).]
2 MCPPC's Notice of Appeal and Case Information Statement indicate that it is only appealing from the July 27, 2012 order. It does not mention the compensation court's December 2, 2011 order which memorialized the compensation court's determination that Raimondi suffers from work-related Lyme disease for which she is entitled to treatment. Nevertheless, because Raimondi did not object to MCPPC revisiting that issue in this appeal and because both parties fully briefed and argued the issue, we choose to address the propriety of the earlier order even though ordinarily only the order designated in the notice of appeal is subject to the appeal process and review. W.H. Industries, Inc. v. Fundicao Balancins, Ltda, 397 N.J. Super. 455, 458-59 (App. Div. 2008).
3 These facts are derived from the compensation court's hearings held on October 27, 2011, and November 17, 2011 that resulted in the December 2, 2011 order. At the subsequent hearings relating to the July 27, 2012 order, the parties agreed to incorporate the testimony from these earlier hearings.
4 Curiously, MCPPC's answer to Raimondi's Lyme disease claim did not admit or deny that she suffered from the disease.
5 The compensation court specifically identified "the efficacy of the [hyperbaric oxygen] treatment itself" as the sole issue under this motion, and further stated that the motion had nothing to do with whether Raimondi had Lyme disease, "the issue addressed by the other matter." Nevertheless, in its ultimate opinion, the compensation court again found that Raimondi had Lyme disease.
6 Notably, MCPPC did not offer the compensation judge or this court any proffer of what those doctors actually said to Dr. Kritzberg. Nor has it demonstrated that if such evidence had been admitted that it would have been likely to change the compensation judge's analysis of the proofs.
http://law.justia.com/cases/new-jersey/appellate-division-unpublished/2013/a0106-12.html