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Case History Document



Bird v Somerset Hills Country Club
Entered By: Ira M Maurer/LymeNetDate Created: 4-23-98
Document Type: Decision
Title: Appellate Division Opinion dated 3/3/98
Bird v. Somerset Hills Country Club, A-3595-96T2; Appellate Division; opinion by Petrella, J.A.D.; decided March 3, 1998; approved for publication March 19, 1998. Before Judges Petrella, Skillman and Steinberg. On appeal from Department of Labor and Industry, Division of Workers' Compensation. [Sat below: Judge Moncher.] DDS No. 39-2-4883

Text of opinion: Where plaintiff testified that he worked about 40 hours a week outdoors and that his work often took him to the edge of the woods where infected tick larvae are found, and his doctors agreed that he probably contracted Lyme disease at his job, there is no reason to disturb the compensation judge's determination that plaintiff's evidence was more credible than defendant's - defendant's medical expert's opinion that it was less probable that plaintiff was exposed at work than at home was inconsistent with prevailing medical standards; also, the compensation judge properly characterized the injury as a disease, and held that the broad notice provisions of N.J.S.A. 34:15-33 apply, providing that notice must be given within five months after the employee ceases being exposed to the occupation disease or 90 days after the employee knows, or should have known, of his disability.

Somerset Hills Country Club appeals from an award of workers' compensation to its employee, Teddy W. Bird, who was found to have contracted Lyme disease while working as a groundskeeper for Somerset Hills.

Bird lives in a "residential town" area in Green Brook. His backyard is fenced in and he has a cat and a dog. Around March 1989, Bird began his employment at Somerset Hills. His job consisted of picking up trees and tree limbs, maintaining the lawn, and otherwise tidying up the golf course year round.

According to Bird's testimony, around the summer of 1991 he began experiencing extreme fatigue and drowsiness. His treating doctor testified that in October 1992 he diagnosed Bird with Lyme disease. This was corroborated by a specialist.

Somerset Hills' expert, a specialist in the field of Lyme disease, testified and disagreed with both the examining doctor's diagnosis of Lyme disease in Bird's case and the commonly recognized methods of contracting it.

I. Somerset Hills urges that Bird did not prove that he suffered from Lyme disease, and, alternatively, if he suffered from Lyme disease, he did not prove that he contracted it in the course of his employment.

Even though Somerset Hills' expert had special qualifications in Lyme disease, his assertion that it was less probable that Bird was exposed at work than at home was inconsistent with the prevailing medical standards as testified to by Bird's witnesses and as presented in the medical literature submitted to the court. In determining whether there is a nexus between the injury or disease and the occupational hazards, compensation judges should be particularly skeptical of expert testimony that supports or contests a finding of causation on the basis of reasoning inconsistent with prevailing medical standards. Taking note of the differing medical opinions, the compensation judge decided that Bird's evidence was more credible.

Held: There is no reason to disturb his determination that Bird's Lyme disease was more probably than not contracted at work. The compensation judge rejected the proofs submitted by Somerset Hills and credited those of petitioner. That decision is based upon sufficient credible evidence.

II. Somerset Hills contends that it was a violation of N.J.R.E. 703 and reversible error for the compensation judge to allow the treating physician to testify as an expert on the causation of Lyme disease, and it had not been informed that the doctor would be an expert witness. However, the rules of evidence are not binding in a workers' compensation trial. N.J.S.A. 34:15-56. Additionally, in a workers' compensation case, a treating physician is often in a better position to express opinions as to cause and effect than an expert who merely is examining the patient in order to give expert testimony.

As to the claim of lack of notice, the compensation judge asked Somerset Hills' attorney to object if he was confronted with surprise testimony. There was no showing that the testimony of Bird's treating physician was a surprise. Nor did that testimony unduly prejudice Somerset Hills. There was no reversible error.

III. Somerset Hills also contends that the compensation judge erred in admitting medical journal articles submitted by Bird into evidence, and relying on them in his decision. It contends that this violated N.J.R.E. 803(c)(18), as the treating physician did not rely upon these articles in his testimony. See Jacober v. St. Peter's Medical Center, 128 N.J. 475 (1992).

Aside from the fact that the rules of evidence are not binding in a workers' compensatiion hearing, N.J.S.A. 34:15-56, Jacoberdoes not support Somerset Hills' position. There it was held that a text may be admitted as a learned treatise by expert testimony, and that the treatise must be relied upon by experts in the field, albeit not necessarily by the expert on the stand. Bird's attorney sought to introduce these articles through the treating physician. In the interest of time, the compensation judge limited questioning and allowed them as "accepted validated relevant medical journals that are shown to be scientifically reliable."

The record shows that the compensation judge here held a fair and impartial hearing, and did not preclude testimony from any proffered witnesses. There was no infringement on Somerset Hills' due process rights. The attorney for Somerset Hills stated at the time that the journal articles were presented to the judge that "they do appear on the face of it ... reputable journals." The compensation judge's decision accords with the public policy behind not strictly applying the rules of evidence to workers' compensation hearings in order to simplify the presentation of proofs.

IV. Finally, Somerset Hills argues that because the injury should have been characterized as an accident under N.J.S.A. 34:15-17, which prescribes a 90-day notice requirement for an injury occurring on the job, and 34:15-51, which contains a two-year limitation for filing a workers' compensation petition, Bird's petition was time-barred.

However, the compensation judge properly characterized the injury as a disease, and held that it fell under the broader notice provisions of 34:15-33, which states:

"Unless the employer [has] actual knowledge that the employee has contracted a compensable occupational disease ... notice to be effective must be given with a period of five months after the date when the employee shall have ceased to be subject to exposure to the occupational disease, or within ninety days after the employee knew or ought to have known the nature of his disability and its relation to his employment, whichever period is later in duration...."

Here, the diagnosis was not made until October 1992. Bird told his employer that same month that he was suffering from Lyme disease. The exact date Bird was bitten by the tick that transmitted the Lyme disease was unknown. While the treating physician testified that Lyme disease is not a latent disease, the testimony shows that the symptoms are gradual, change over time, and are vague enough to make diagnosis elusive. As the compensation judge stated, "it is inconceivable that the legislature would require a worker to file a claim or give notice of an injury before the worker even knew he had been injured."

Affirmed.

Digested by Steven P. Bann [The slip opinion is 8 pages long]

For appellant - Randolph Brause (Brause & Brause; Randolph Brause and Peter Ventrice on the brief). For respondent - Eric S. Lentz. For the Second Injury Fund - Peter Verniero, Attorney General (Cheryl B. Kline, Deputy Attorney General, on the brief).

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