Injured at Work? Has Your Employer Provided Authorized Medical Treatment?

Van Artsdalen vs. Schiavone Construction

Have you been injured at work? Do you have a Worker’s Compensation attorney? Has your employer provided authorized medical treatment?

Submitted by New Jersey Worker’s Compensation Lawyer, Jeffrey Hark

In this case the attorney hired an expert to testify with regards to the employees disability and Whether or not he was disabled and in need of surgery.  When the judge rendered her decision that the petitioner suffered a 47.5% partial total disability, she relied entirely upon her belief which were not in evidence concerning the “ inoperability” of the petitioners medical condition. The judges reliance upon these beliefs which were not facts and evidence created a decision which had to be overturned by the appellate court.

In my prior blogs I’ve discussed the fact that the trial judge is given extraordinary difference, and discretion in the findings of fact and conclusions of law. However, this case illustrates that the judges findings of fact have to be based upon the evidence in the record. The evidence in the record is the medical reports, the petitioners testimony, and the expert testimony. The judge cannot rely upon facts that are not in evidence.  Unfortunately, in this case the judge did make a finding of fact that was not in the evidential record.

There is substantial case law on point stating that the Appellate Division must give the trial judge all the difference so long as the facts determined that by the trial judge are supported in the record. However, if manifestly unsupported or inconsistent with the competent, relevant, and credible evidence so as to offend the interest of justice, the trial judges decision can be disregarded. This is the case because the judge of compensation is considered to have expertise in weighing the testimony of competing experts and assessing the value of a work related claim and the trial judge is not bound by the conclusion the opinions of anyone or other medical expert. The trial judge’s determination to a one piece of evidence over another or a finding of one physician more credible than another is entirely within the judges discretion and power.

The Appellate Division had no choice but to vacate the judge’s judgment and remanded it for reconsideration before the trial judge.

Jeffrey S. Hark, Esq.
609-471-1959. Cell
856-354-0050 Office

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