Petitioner’s claim dismissed based on an adverse inference drawn from petitioner’s failure to produce either the testimony or records of his treating cardiologist.
The petitioner was employed by the respondent from 1961 through 1974 and again from 1986 though his retirement in 1999. The majority of the petitioner’s career with the respondent was spent as a vehicle maintenance foreman, where he supervised the maintenance of cars, trucks and heavy equipment vehicles and was exposed to dust, chemicals and diesel fumes.
In 2004, the petitioner was diagnosed with probable chronic obstructive pulmonary disease by Dr. H. Although the petitioner had received no pulmonary care, nor a diagnosis of pulmonary disability, prior to this evaluation, he filed a claim with the Division of Workers’ Compensation alleging that his pulmonary disease arose out of and in the course of his employment with the respondent. The respondent denied the petitioner’s claim.
At trial, testimony was taken from the petitioner, the respondent’s executive director, and the petitioner’s and the respondent’s medical experts, Dr. H and Dr. K. Dr. H opined that the petitioner’s condition was causally related to and/or aggravated by his workplace exposures. However, Dr. H did indicate that he could not distinguish whether the petitioner’s breathing problems were related to his lung disease or his significant heart disease, for which he had been treating for over 23 years. Dr. K opined that the petitioner’s symptoms were the result of his long-standing cardiac disease, based largely on the fact that the petitioner had never been referred for pulmonary treatment despite his many years of cardiac care.
In her written opinion, the Judge of Compensation found Dr. K’s testimony to be more credible than that of Dr. H. In noting that Dr. H readily admitted that there was a relationship between the heart and lungs, the judge drew an adverse inference from the fact that the petitioner never produced a certified copy of the records from his treating cardiologist, nor did he have Dr. H review these records as part of his evaluation. As the judge found:
Certainly petitioner’s treating cardiologist of 23 years was in the best position to opine as to whether petitioner’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.
The judge dismissed the petitioner’s claim. The petitioner subsequently filed this appeal based on his assertion that the judge committed reversible error by drawing an adverse inference against the petitioner for failing to produce evidence from his cardiologist.
In affirming the judge’s dismissal, the Appellate Division commented that the petitioner’s own medical expert, Dr. H, in his testimony, did not rule out that the petitioner’s shortness of breath and poor performance on pulmonary function tests could be due to the petitioner’s heart disease. As the Appellate Division reasoned:
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.
Accordingly, the Appellate Division found that it was not unreasonable for the judge to draw the adverse inference that evidence from the petitioner’s cardiologist was not produced because it was unfavorable to the petitioner’s claim.
On October 18, 2000, the petitioner received an award of total disability from his employer, entitling him to permanent total disability (PTD) benefits at a rate of $480 per week for 450 weeks. On April 1, 2002, the petitioner qualified for and began receiving ordinary disability pension benefits, in addition to his workers’ compensation benefits, which he did not disclose to the respondent. On or about April 29, 2010, the respondent became aware that the petitioner was receiving ordinary disability pension benefits and entered into a consent agreement reducing the petitioner’s PTD rate to $222.39, prospectively.
The respondent subsequently moved for reimbursement of the excess PTD benefits the petitioner received from April 1, 2002, through August 10, 2011. Based solely on a review of several years of the petitioner’s income tax returns, the Judge of Compensation found that, given the petitioner’s “limited resources and inability to work,” it “would be inequitable” to require him to reimburse the respondent for the overpayment. He, accordingly, denied the respondent’s motion, and the respondent appealed.
In reversing the Judge of Compensation’s ruling and remanding for further proceedings, the Appellate Division relied on its decision in Hajnas v. Engelhard Mineral & Chemical Co., 231 N.J. Super. 353 (App. Div. 1989), in which the court established the criteria for recovering overpayments:
The Workers’ Compensation Division is to determine if the petitioner was unjustly enriched under ‘settled principles of unjust enrichment,’ an issue for which the respondent employer has the burden of proof. It is considered unjust enrichment to permit the recipient of money paid under mistake of fact to keep it, unless the circumstances are such that it would be inequitable to require its return.
The Appellate Division characterized the Judge of Compensation’s finding that the petitioner had “limited resources” as “manifestly unsupported by competent credible evidence.” The court cited the fact that the Judge of Compensation conducted no evidentiary hearing, required no statement of assets and liabilities evidencing the petitioner’s net worth, and did not consider any statement of the petitioner’s income and expenses. “Given the paucity of evidence,” the Appellate Division concluded, “there was no reasonable basis for the Judge of Compensation’s factual finding . . . that it would be inequitable to require him to repay [Respondent.]” Accordingly, the Appellate Division remanded the matter for further determination by the Judge of Compensation following an evidentiary hearing and establishment of a more complete record.
Case Law Alert, 1st Quarter 2014