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New Jersey Supreme Court: Treating Doctor Permitted to Testify Concerning Employee’s Disability for Discrimination Claim

The New Jersey Supreme Court has ruled that an employee can show they suffered from a disability (as defined by the law) through the testimony of their treating physician.  This is a significant win for victims of disability discrimination, who often do not have the finances to pay for expensive medical expert testimony necessary for their case.

In the matter of Delvecchio v. Township of Bridgewater, the employee claimed she was unlawfully terminated on the basis of disability in violation of the New Jersey Law Against Discrimination.  The employee was employed as a dispatcher for the Township of Bridgewater and developed inflammatory bowel syndrome (IBS), panic attacks and anxiety during her employment, which she claimed required certain accommodations from her employer.   On September 16, 2009, the town terminated the employee’s employment, claiming neglect of duty and chronic/excessive absences, after the employer denied her requests for accommodations.  At trial, the court prohibited the employee from having her treating physician testify to her diagnosis and treatment.  As a result of the court’s adverse evidentiary ruling, the employee was unable to offer evidence showing she was disabled, which resulted in her losing her entire case.

The case was based upon disability discrimination which his prohibited under the New Jersey Law Against Discrimination.  The New Jersey Law Against Discrimination prohibits unlawful discrimination based on a disability unless the nature and extent of the disability reasonably precludes the performance of the job position.  An employee suing under the LAD must prove, inter alia, that he or she was disabled as defined in the act.  When the disability is not readily apparent, an employee must present expert medical evidence to assist the jury in understanding whether the condition alleged is a disability under the law

The Supreme Court considered whether the trial court erred in denying the employee a fair opportunity to prove that she suffered from a disability under the LAD by excluding her treating physician’s from testifying at trial.  In finding that the trial court committed reversible error, the court said that in appropriate cases, the testimony of a treating physician may be admitted to support an employee’s LAD disability claim, provided the proponent of the testimony provides notice and responds to discovery requests in accordance with the rules and that the testimony satisfies all evidence rules.  In reviewing the record, it was shown that the employee’s attorney provided adequate and proper notice that he would be calling his client’s treating doctors, and not any independent medical experts, to prove the existence of a disability under the New Jersey Law Against Discrimination. The Supreme Court concluded that the trial court’s exclusion of the testimony of the treating physician was not a harmless error and the matter has been remanded for a new trial.