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NEW JERSEY HIGH COURT HOLDS THAT LAD PLAINTIFF CAN PROVE DISABILITY WITH TREATING PHYSICIAN TESTIMONY.

Victims of disability discrimination no longer need to shoulder the burden and high expense of retaining a pricey medical expert to come to court to render an opinion establishing their physical, mental and/or emotional disability in question; they can now use their treating doctor for this purpose. So said our New Jersey Supreme Court in a recently decided case entitled Delvecchio v. Township of Bridgewater, — N.J. —, 2016 N.J. LEXIS 335 (2016) where the Court affirmed the reversal of a jury’s verdict of no cause of action against a former dispatcher of the Township of Bridgewater Police Department (the “Bridgewater PD”).

In 2003, Mrs. Delvecchio developed inflammatory bowel syndrome (“IBS”), and began treatment with Dr. Gary Ciambotti (Ciambotti), a gastroenterologist. Dr. Ciambotti wrote to plaintiff’s supervisors and stated that her symptoms were under control as long as she worked regular daytime hours, but would be exacerbated by an assignment to the midnight shift. After repeatedly declining assignments to the midnight shift, Mrs. Delvecchio was asked to resign from her position. She then accepted a lower-paying job as a records clerk for the Township. Plaintiff used more than her allotted sick days, and the Township terminated her employment.

Thereafter, Mrs. Delvecchio filed a New Jersey Law Against Discrimination (the “LAD”) disability discrimination complaint against the Township, Bridgewater PD and individual defendants. She contended, among other claims, that her IBS constituted a disability for purposes of LAD and that defendants failed to provide a reasonable accommodation for that disability when they set the schedule for her work as a police dispatcher. Mrs. Delvecchio disclosed in pretrial discovery that she intended to present the testimony of Dr. Ciambotti to establish his diagnosis of IBS. However, the trial court barred the testimony of Dr. Ciambotti on the grounds that he had not been retained and identified by plaintiff in pretrial discovery as an expert witness and had not prepared an expert report containing his findings. Without the testimony of a physician establishing the nature and extent of her disability, the jury was left with no choice but to conclude that Mrs. Delvecchio had failed to establish that she had a disability preventing her from working midnight shifts.

Mrs. Delvecchio appealed the jury verdict and the Appellate Division reversed relying on a prior Supreme Court decision in Stigliano by Stigliano v. Connaught Labs. Inc., 140 N.J. 305, 314 (1995).  In Stigliano, the New Jersey Supreme Court authorized treating physicians to testify at trial regarding the diagnosis and treatment of a patient without formal designation as a medical expert. Similarly, in Delvecchio the Supreme Court upheld  the Appellate Division’s reversal of the trial court’s no cause verdict by holding that so long as Dr. Ciambotti was identified by plaintiff in her answers to interrogatories as a treating physician witness, the trial court should have permitted Dr. Ciambotti to testify regarding Mrs. Delvecchio ‘s IBS and  its disabling effects.

Where the existence of a handicap is not readily apparent, expert medical evidence is required. Viscik v. Fowler Equip. Co., 173 N.J. 1, 16 (2002). However, that “expert medical evidence” has been characterized as “objective medical testimony”. Ibid.; Delvecchio, 2016 N.J. LEXIS 335 at *31. The Delvecchio Court acknowledged that Viscik does not prohibit the admission of treating physician testimony to support a LAD disability claim. Instead, the Supreme Court held, “[i]f the question of a plaintiff’s disability can be effectively addressed by testimony limited to the plaintiff’s diagnosis and treatment, a treating physician may provide the ‘expert medical evidence’ and ‘objective medical testimony’ envisioned by the Court in Viscik.” Therefore, the trial court should have permitted Dr. Ciambotti to testify about Mrs. Delvecchio’s IBS and its disabling effect.

Economic, vocational and psychiatric experts often need to be retained to properly prove a discrimination or retaliation case at trial. These experts can be very expensive and the fees they charge can present a significant financial hurdle to overcome. However, Delvecchio eases this financial burden by now making one less expert that plaintiffs must retain to pursue their disability claims. As long as a plaintiff’s treating physician is willing and able to come to court and testify as to his or her diagnosis and treatment of the plaintiff, such testimony will usually be sufficient to prove that the plaintiff suffered from a disability.

At Mashel Law, we are well experienced in representing plaintiff-employees in disability discrimination litigation. If you want representation in pursuit of a disability discrimination claim, call the New Jersey Employment Lawyers at Mashel Law (732) 536-6161 or fill out the contact form on this page for immediate help. Mashel Law, located in Marlboro, New Jersey, is dedicated to protecting the rights of employees.