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LOIS Prevails on Evidentiary Standard in New Jersey Appellate Division

Managing Partner Greg Lois with the assistance of Senior Associate Addison O’Donnell obtained a victory at the New Jersey Appellate Division in a contentious New Jersey Workers’ Compensation case. The Petitioner alleged fifty (50) diagnoses as a result of allegedly being exposed while working to chemical fumes from his personal car’s air conditioning system. To prove causation, the Petitioner retained an alleged toxicology expert and argued that the Respondent’s experts provided a “net opinion” with regard to his medical claims. A trial ensued with multiple medical witnesses cross-examined, as well as thousands of pages of documents submitted for the Court’s consideration. Following a favorable disallowance of the case from Judge Gallagher, the Petitioner appealed to the New Jersey Appellate Division on the basis that his expert’s conclusion was supported by the medical record and that the Respondent’s experts were improperly considered in light of the alleged “net opinion” proffered.

Lois first argued that the seminal Ramos v. M F Fashions Inc., 154 N.J. 583 (1998), applied as the standard of review and that the underlying Court must be afforded the due deference in determining credibility of the witnesses and the Petitioner. “Simply calling a medical opinion a ‘net opinion’ does not invalidate the opinion, nor does it allow this Court to perform a de novo review of the medical testimony,” Lois argued, “Demanding that a medical expert provide an ‘alternate theory’ as to ‘how’ the Appellant was injured assumes he was injured, which the Respondent disputes. This is not the legal standard that applies in the Workers’ Compensation Court and is not the standard of reviewing the credibility determinations of the Judge of Compensation.”

The Appellate Division agreed with Lois in full. The Court first adopted Lois’s argument with regard to Ramos v. M F Fashions Inc., 154 N.J. 583 (1998), noting that there was nothing that the underlying Court did which warranted reversal. The Court then articulated – for the first time in a Workers’ Compensation decision – the standard with regard to “net opinions,” adopting the civil standard in New Jersey: “The net opinion rule is a corollary of Rule 703 which forbids admission into evidence of an expert’s conclusions that are not supported by factual evidence or other data…Expert opinions must be grounded in facts or data derived from (1) the expert’s personal observations, or (2) evidence admitted at trial, or (3) data relied upon by the expert which is not necessarily admissible in evidence but which is the type of data normally relied upon by experts,” the Court noted, “Accordingly, an expert is required to give the ‘why and wherefore’ that supports the opinion, rather than a mere conclusion.”

Under this legal standard, the Court found that the Respondent’s medical experts “testified the why and wherefores in support of their respective conclusions.” The Court further found that the Petitioner’s expert was properly discredited, as he relied on unsubstantiated testing reports, acknowledged that the original cooling coil was mislabeled, and relied upon several reports procured by the Petitioner that was considered “incompetent evidence because there was no chain of custody.” The Court affirmed Judge Gallager’s decision, maintaining the case’s dismissal, applying the appropriate deferential standard to the Workers’ Compensation Court’s credibility determinations, and illuminating a legal standard with regard to causation and unsubstantiated chain of custody.

A-2986-21 – JEFFREY BELLO VS. UNITED PANAM FINANCIAL CORP. DIVISION OF WORKERS’ COMPENSATION (njcourts.gov)

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This is the 2023 edition of Gregory Lois’New Jersey Workers’ Compensation Law Handbook.”

THE MOST PRACTICAL, up-to-date, and easy-to-understand guide to workers' compensation claims in New Jersey. This book is designed for employers, attorneys, claim adjusters, physicians, self-insured employers, and vocational rehabilitation workers. This guide is written in plain English by a New Jersey State attorney and provides a detailed analysis of relevant statutes and regulations; a complete recap of recent court decisions including 2021 & 2022 cases; and a full description of current practice.

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Learn More About New Jersey Workers’ Compensation Defense at LOIS

For more than 20 years we have represented insurance carriers, self-insured employers, third party claim administrators, and employers before New Jersey’s Division of Workers’ Compensation. Our founding partner, Gregory Lois, is co-author of the LexisNexis “Practice Guide to Workers’ Compensation in New Jersey” (2017, ISBN:9781632838735) and served as Law Clerk to Hon. Joan Mott, Administrative Supervisor of Workers Compensation.

Along with partners Karen Vincent and Joe Jones (New Jersey Practice Group Team Leader) and a dedicated team of experienced attorneys and paraprofessionals, we handle New Jersey cases from cradle-to-grave. We want to be by your side, moving cases aggressively to closure from the start of litigation all the way through to settlement.

We only assign one attorney and one paralegal to each case. The attorney/paralegal assignments are made based on the court the case will be listed in.

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