On June 24, 2024, the Superior Court of New Jersey Appellate Division rendered an unpublished decision that reiterated the significant deference given to Workers’ Compensation Judges (WCJ) in their assessment of medical facts and expert opinions. In Victoria Salomone v. Spectrum360, the Court affirmed the denial of a motion for temporary medical and disability benefits where the petitioner could not prove any injury or medical condition casually related to the incident, despite the testimony of a board-certified surgeon.
The petitioner was employed as a special education teacher. On July 26, 2021, a male student kicked the petitioner in her left breast. In her claim petition, she alleged that the kick caused tremendous pain, tenderness, extreme redness, and blood clotting in her left breast.
On March 29, 2022, the petitioner filed a motion for temporary medical and disability benefits which included the report of petitioner’s board-certified plastic surgeon. The expert noted that her silicone implant could have a traumatic fracture and recommended a breast revision procedure. Respondent requested a second opinion from a board-certified plastic surgeon who noted that petitioner’s saline implant had not ruptured and that her latent medical conditions such as weight gain or lupus could indicate a need for breast revision. An MRI found implant ripples, but no evidence of traumatic implant rupture.
At trial, the petitioner, her surgeon, and respondent’s surgeon testified. The petitioner’s expert opined that his original analysis was based on an assumption of silicone implants, but he had since learned that the implants were in fact saline. He added that a cracked valve on the saline implant could have caused leakage and subsequent rippling. Respondent’s expert testified that the petitioner’s implant had not ruptured, that implant rippling was common, and that the implant was not affected by the trauma.
The WCJ found the petitioner and both medical experts to be relatively credible but could not overlook the factual mistake made by petitioner’s expert in assessing first silicone then saline implants. Additionally, the petitioner had testified that her breast size had not changed since the incident, undermining her expert’s testimony that leaking could have occurred. The WCJ noted that the petitioner offered no expert testimony regarding her latent conditions. Thus, the petitioner’s motion was denied.
On review, the Court restated that the standard in assessing WCJ decisions is whether the “findings reasonably could have been reached on the sufficient credible evidence present in the record.” Hersh v. County of Morris, 217 N.J. 236, 242 (2014) (internal citations omitted). The Court reminded the parties of the substantial deference given to WCJs, noting that their findings “should not be reversed unless they are ‘manifestly unsupported by or inconsistent with competent relevant and reasonably credible evidence as to offend the interests of justice.’” McGory v. SLS Landscaping, 463 N.J. Super 437, 452-53 (App. Div. 2020) (internal citations omitted). The petitioner argued that because respondent’s expert was not qualified to read MRI films and that the radiologist had not testified, the respondent’s expert opinion lacked credible evidence from which a WCJ could make findings.
The Court assessed that respondent’s expert opinion was based on a description of the incident, clinical information, and prior records, with the MRI report providing only further support for the conclusions made. Conversely, the Court found petitioner’s expert testimony was mostly based on subjective examination findings, unsupported by objective evidence. Thus, the Court was satisfied that the WCJ made a determination supported by competent, relevant, and credible evidence.
The petitioner also attempted to argue that the WCJ had erred in requiring a finding of actual implant fracture to support revision surgery, when the correct medical standard merely required a suspected fracture. The Court found that petitioner’s expert testimony was essentially limited to aesthetic benefits of revision surgery, as he could not testify whether replacing the implants would alleviate the petitioner’s pain. For the Court, these facts, combined with the lack of petitioner’s testimony about latent conditions, could allow the WCJ to find that petitioner had not met her burden of proof. The denial of petitioner’s motion was affirmed.
Comment: This decision confirms much of what practitioners know about the wide latitude afforded to WCJs on matters of credibility. The Appellate Division will not assess whether they would have reached the same conclusions as the WCJ but instead only assess whether there was relevant and credible evidence to support the WCJ’s conclusion. Further, the decision serves as a cautionary tale to take care in the development of expert testimony to meet the burden of proof, particularly when latent conditions are present.
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