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Sometimes the seemingly minor cases have significant long-term impact. The case ofAmedeo v. United Parcel Service, A-1013-13T2 (App. Div. April 8, 2015) may be one of those cases.
Thomas Amedeo suffered a work injury in 2009 in the employment of UPS. He filed a workers’ compensation claim petition and ultimately received an award of 30% partial permanent disability. He timely reopened the case in October 2012 and sought by way of motion an order requiring UPS to assign an orthopedist to treat him for a degenerative hip condition. Petitioner relied in his motion on a report fromDr. Frederic Brustein, an internist and physiatrist. Dr. Brustein stated in his report that he himself would not treat petitioner but that petitioner should seek out other specialists such as university affiliated orthopedists specializing in the hips, the spine, and pain management.
UPS arranged an IME with Dr. Joseph Corona, who said that Amadeo had reached maximal medical improvement and there was no increase in his disability. He found no need for further treatment.
The case was listed on a motion hearing on October 4, 2013. Petitioner’s attorney requested an adjournment. The Judge refused that request, noting that petitioner’s attorney had failed to appear on several occasions. Respondent’s counsel and an attorney covering for petitioner’s counsel appeared and conferenced the case with the judge. Petitioner himself did not appear at the motion hearing.
The Judge of Compensation dismissed the motion hearing without prejudice. She determined that the motion papers were insufficient and advised petitioner’s attorney of this opinion. She also noted that no hearing could take place without the petitioner. The Judge determined that the motion papers were deficient under N.J.A.C. 12:235-3.2(b)(2). Dr. Brustein did not state the specific type of treatment being sought; nor wasDr. Brustein the proper physician to advance the motion since he could not treat petitioner himself as a physiatrist and internist. AllDr. Brustein did was say that petitioner should seek out other specialists.
Petitioner appealed the dismissal of his motion. The Appellate Division agreed with the Judge of Compensation, stating that the regulation noted above was designed to eliminate non-specific reports by requiring applicants to provide detailed opinions from qualified experts.
Here, we agree with the judge of compensation that petitioner failed to provide evidence adequate to present a prima facie case in support of his motion. Specifically, Dr. Brustein’s report did not recommend a definite course of treatment, state that petitioner needed a particular medical treatment, or sufficiently support a referral to a specialist. Rather, Dr. Brustein’s report ‘merely suggested several options for other specialists to try.’
The Appellate Division also rejected the petitioner’s request that the case be assigned to another judge. This decision is likely to change the way practitioners file motions and the way respondents defend them. It is quite common for claimants to retain doctors in support of treatment motions who themselves cannot treat or lack the specific qualifications to treat. Instead, they will recommend treatment by otherdoctors-to-be-named. The Amedeo case puts the onus on the applicant to retain the appropriate physician from the outset, which will also allow employers to adequately respond to such motions.
John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at email@example.com.