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Petitioner Joan Haggerty worked for Cape May Regional Medical Center (Crothall Service Group). She tore her left rotator cuff and bicep tendon while working as a housekeeper. Months later she injured her neck and left shoulder making a bed and stretching sheets. She filed a workers’ compensation claim for each injury and later amended the left shoulder claim to include an overuse claim of the right shoulder. She had two surgeries on the left shoulder and one surgery on the right shoulder.
Petitioner obtained an order for medical and temporary disability benefits in 2015 approving treatment with Dr. Matthew Pepe. He referred petitioner to Dr. Peter Corda for pain management, who in turn referred petitioner to Dr. Charles Krome. Four platelet rich plasma injections were recommended by Dr. Krome.
The issue in the case arose when it became clear that the platelet rich injections did not help petitioner. Dr. Krome then recommended stem cell treatment for the right shoulder. He felt that this would be a conservative measure but petitioner would still likely require total shoulder replacement surgery in a few years. Petitioner then filed an amended motion to compel respondent to pay for the stem cell therapy. Respondent opposed the motion by noting that the stem cell treatment was not approved by the U.S. Food and Drug Administration (FDA).
Because the judge had questions for Dr. Krome, the judge called the doctor from his chambers on May 4, 2018 in the presence of both counsel. The judge asked several questions, but neither counsel asked any. At the next listing of the case on May 25, 2018, petitioner testified that she did not want another shoulder surgery. She needed to work in order to care for her terminally ill husband. She said she knew that the stem cell therapy was not FDA approved but she wanted to undergo it. She said she was also aware that it might only provide temporary relief.
Following petitioner’s testimony, the Judge of Compensation issued an order requiring respondent to provide the stem cell treatment. The judge commented that Dr. Corda wrote a letter stating that this treatment was widely used in professional sports. The judge also observed that respondent did not provide any expert report addressing this issue. Finally, the judge found Dr. Krome to be credible.
On appeal Crothall argued that it was error to determine credibility of a physician based on an unrecorded phone call without formal testimony. Crothall also argued that the treatment was not sufficiently accepted in the scientific community.
The Appellate Division observed the rules on motions for medical and temporary disability benefits, noting that respondent’s counsel had raised a defense that the treatment was not FDA approved. “Under the regulations, the judge was required to hold a hearing where Crothall could cross-examine witnesses.”
The Court also questioned the validity of using a phone call to a physician as a basis to determine credibility. “Even if credibility could be determined in that manner, without a record there is no ability to review what was said.” The Court said that when an important issue is discussed in chambers, “a record must be made or a summary placed on the record of what transpired in chambers.”
The Appellate Division held that the procedures in chambers “lacked fundamental due process.” The Court was critical of the failure to record the testimony of Dr. Krome and the failure to allow respondent’s counsel to cross examine the doctor. For these reasons the order was reversed, and the matter was remanded.
The case can be found at Haggerty v. Crothall Service Group, A-4478-17T4 (App. Div. May 3, 2019). This case reminds us that due process applies to proceedings in workers’ compensation court and that fundamental fairness to both parties is the lodestar of court proceedings. The Appellate Division never ruled on whether stem cell treatment can be ordered but rather focused solely on the fairness of the process in the Division proceedings.
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.