SAMUEL MARTIN, III VS. NEWARK PUBLIC SCHOOLS

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0338-18T4
SAMUEL MARTIN, III,
Petitioner-Appellant, APPROVED FOR PUBLICATION
v. December 13, 2019
APPELLATE DIVISION
NEWARK PUBLIC SCHOOLS,
Respondent-Respondent.
_____________________________
Argued September 18, 2019 – Decided October 4, 2019
Before Judges Fuentes, Haas and Mayer.
On appeal from the New Jersey Department of Labor
and Workforce Development, Division of Workers'
Compensation, Claim Petition No. 2011-17344.
Joseph Michael Accardi argued the cause for appellant
(Rothenberg, Rubenstein, Berliner & Shinrod, LLC,
attorneys; Joseph Michael Accardi, of counsel and on
the briefs).
Joseph Vincent Biancamano argued the cause for
respondent (Biancamano & Di Stefano, PC, attorneys;
Joseph Vincent Biancamano, of counsel and on the
brief).
The Opinion of the court was delivered by
MAYER, J.A.D.
Petitioner Samuel Martin, III appeals from an August 13, 2018 order of
the Workers' Compensation Court denying his application for medical and
temporary disability benefits. Petitioner requested reimbursement for continued
prescription opioid medication to treat a lower back injury suffered during his
employment with respondent Newark Public Schools. We affirm.
In May 2011, Martin injured his back in an employment-related car
accident. In November 2014, Martin received a fifteen percent partial disability
award for the orthopedic injury to his lower back as a result of the work-related
accident and aggravation of a pre-existing lumbar disc herniation and bulge.
After receipt of the partial disability award, Martin filed a motion based
on respondent's refusal to pay for Percocet prescriptions after September 2017.
Martin claimed he required Percocet to relieve ongoing and recurrent pain
subsequent to the car accident. Respondent opposed the motion, and the matter
was scheduled before a judge of the Workers' Compensation Court.
The compensation judge conducted hearings to determine whether
respondent should be compelled to pay for Martin's prescription opioid
medication in accordance with the Workers' Compensation Act (Act), N.J.S.A.
34:15-1 to -142, specifically N.J.S.A. 34:15-15. The judge heard testimony
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from Martin; Martin's treating doctor, Patricio Grob, D.O.; and Martin's medical
expert, Harris Bram, M.D.
Dr. Grob, an orthopedic surgeon, testified he began treating Martin in June
2011 and continued treating him through September 2017. In September 2017,
Dr. Grob released petitioner, finding Martin reached maximum medical
improvement. In discharging him, the doctor wrote a final prescription for
Percocet as a courtesy to Martin.
From 2016 through 2017, the doctor wrote prescriptions for Martin to
receive Percocet on a monthly basis. In a note from his June 2016 examination
of petitioner, Dr. Grob advised that Percocet was poorly controlling Martin's
pain and "prolonged narcotic use [would] not manage his radicular complaints
. . . and [could] complicate his recovery . . . ." In 2015, Dr. Grob suggested
surgery or epidural injections to address petitioner's pain complaints in lieu of
opioid medication. Martin declined the suggested procedures due to an
unrelated blood condition that increased his risk of surgical complications.
At Dr. Grob's suggestion, in the fall of 2017, Martin saw other doctors
to reconsider surgery as a way to relieve his pain. Martin again declined surgery.
Dr. Grob explained that not proceeding with surgery would be "quite limiting"
for further treatment of Martin's lower back pain.
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Dr. Grob testified that Martin would never heal through continued use of
pain medication. According to the doctor, after six years of treating petitioner,
therapy or medication had not alleviated Martin's pain. It was Dr. Grob's
medical opinion that the only form of treatment to cure or relieve the effects of
Martin's work-related injury would be surgery.
In Dr. Grob's September 13, 2017 final medical note, the doctor wrote, "I
would recommend to attempt to wean from [Percocet] and if we are
unsuccessful, [Martin] would then need to consider having a discussion with [a]
pain management specialist to see if there is any palliative standpoint that may
be needed from a chronic management of [Martin's] discomfort." According to
the doctor, ingesting prescription pain medication did not relieve Martin's
condition, and the medication would never improve his condition. Dr. Grob told
Martin, "[I]f you have difficulties you may have to pursue something from a
palliative care point."
Martin saw Dr. Bram on January 8, 2018 for a one-time evaluation in
support of the motion for medical and temporary disability benefits. Dr. Bram,
who was qualified as an expert in the field of pain management, testified based
on his examination of petitioner and review of Martin's May 7, 2016 MRI film.
Dr. Bram found Martin had disc desiccation at L4-L5 and L5-S1, and a disc
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herniation at L5-S1. He also reviewed Dr. Grob's medical records from
petitioner's examinations in 2016 and 2017. According to Dr. Bram, Martin
self-reported that Percocet abated his pain symptoms by approximately sixty
percent, and he was more active on the medication. However, in taking
petitioner's history, Dr. Bram noted Martin reported opioid medication provided
only "small pain relief."
Dr. Bram testified there were a few positive physical findings based on
his examination of petitioner. He testified Martin's lower extremities were
neurologically intact and his gait was normal. Despite the limited positive
physical findings upon examination, Dr. Bram concluded Martin had low back
pain, lumbar radiculopathy, and sacroiliitis. Dr. Bram therefore opined, "it was
reasonable that [Martin] be on opioid medication on a long term basis for his
pain. I thought that was reasonable for him."
In an August 8, 2018 written decision, the judge denied Martin's motion
seeking reimbursement for prescription Percocet. He held petitioner failed to
prove continued treatment with opioid medication would reduce Martin's pain
or permit him to function better. The judge found Dr. Grob's testimony, having
treated Martin for six years, to be more credible than the testimony of the on e-
time evaluating physician, Dr. Bram. The judge wrote that nothing precluded
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his according "greater weight to a treating physician's opinion when the issue
before the court is the need for medical treatment."
The judge concluded Dr. Bram "did not provide any medical evidence that
such treatment will permit the petitioner to function better." Nor did petitioner's
expert expressly find continued opioid medication would relieve Martin's pain.
Dr. Bram simply opined long-term opioid medication was "reasonable" without
explaining why.
On appeal, Martin argues the judge improperly accorded greater weight to
the medical testimony of the treating doctor. In addition, he contends the judge
wrongly compelled his counsel to discuss the testimony of the treating doctor in
the presence of counsel for respondent. Further, Martin claims the judge
misapplied the standard governing an application for palliative care.
In reviewing decisions of judges in the Workers' Compensation Court,
"[t]he factual findings of the compensation court are entitled to substantial
deference." Ramos v. M & F Fashions, Inc., 154 N.J. 583, 594 (1998). We limit
our inquiry "to whether the findings made by the Judge of Worker's
Compensation could reasonably have been reached on sufficient credible
evidence present in the record, considering the proofs as a whole, with due
regard to the opportunity of one who heard the witnesses to judge of their
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credibility . . . ." Ibid. (quoting Bradley v. Henry Townsend Moving & Storage
Co., 78 N.J. 532, 534 (1979)).
We start with petitioner's claim that the compensation judge erred in
according greater weight to the testimony of Dr. Grob than the testimony of Dr.
Bram. Compensation judges have "expertise with respect to weighing the
testimony of competing medical experts." Id. at 598. This court "may not
'engage in an independent assessment of the evidence as if it were the court of
first instance.'" Sager v. O.A. Peterson Constr. Co., 182 N.J. 156, 164 (2004)
(quoting State v. Locurto, 157 N.J. 463, 471 (1999)). Compensation judges who
see and hear the testimony of experts are in the best position to assess the
demeanor and credibility of the expert witnesses. Ramos, 154 N.J. at 598. A
"judge of compensation 'is not bound by the conclusional opinions of any one
or more, or all of the medical experts.'" Kaneh v. Sunshine Biscuits, 321 N.J.
Super. 507, 511 (App. Div. 1999) (quoting Perez v. Capitol Ornamental,
Concrete Specialties, Inc., 288 N.J. Super. 359, 367 (App. Div. 1996)). "That
[the judge] gave more weight to the opinion of one physician as opposed to the
other provides no reason to reverse th[e] judgment." Bellino v. Verizon
Wireless, 435 N.J. Super. 85, 95 (App. Div. 2014) (alterations in original)
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(quoting Smith v. John L. Montgomery Nursing Home, 327 N.J. Super. 575, 579
(App. Div. 2000)).
Here, the compensation judge articulated his reasons for crediting Dr.
Grob's testimony, including the doctor's treatment of petitioner over the course
of six years. Courts have stressed "the greater opportunity of a treating
physician, as compared with a doctor who conducts a single examination in
order to become an expert medical witness, to know, understand and decide upon
the producing cause of the patient's condition." Mernick v. Div. of Motor
Vehicles, 328 N.J. Super. 512, 522 (App. Div. 2000) (quoting Bober v. Indep.
Plating Corp., 28 N.J. 160, 167 (1958)). We defer to the compensation judge's
factual findings under the circumstances.
We next consider petitioner's argument that the judge misapplied the law
concerning the application for continued palliative care treatment. The Act
requires employers to provide treatment to injured employees when the
treatment is "necessary to cure and relieve the worker of the effects of the injury
and to restore the functions of the injured member or organ where such
restoration is possible . . . ." N.J.S.A. 34:15-15.
Whether the treatment is characterized as curative or palliative, the
treatment is compensable if competent medical testimony shows that it is
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"reasonably necessary to cure or relieve the effects of the injury." Hanrahan v.
Twp. of Sparta, 284 N.J. Super. 327, 336 (App. Div. 1995). A claimant must
show the treatment would "probably relieve petitioner's symptoms and thereby
improve his ability to function." Ibid. "[I]n determining what is reasonable and
necessary, the touchstone is not the injured worker's desires or what he thinks
to be most beneficial. Rather, it is what is shown by sufficient competent
evidence to be reasonable and necessary to cure and relieve him." Squeo v.
Comfort Control Corp., 99 N.J. 588, 606 (1985). "A mere showing that the
injured worker would benefit from the added treatment is not enough." Raso v.
Ross Steel Erectors, Inc., 319 N.J. Super. 373, 383 (App. Div. 1999). There
may be a point at which "the pain or disability experienced by the worker is
insufficient to warrant the expense of active treatment." Hanrahan, 284 N.J.
Super. at 336 (citing Squeo, 99 N.J. at 606).
Here, the judge found credible the testimony of Dr. Grob that continued
prescribing of pain medication did not, and would never, heal petitioner or
relieve his condition. During the six years he treated petitioner, Dr. Grob
concluded Martin's pain had not been alleviated with therapy or medication. The
treating doctor opined that the only form of treatment to cure or relieve the
effects of Martin's work-related injury would be surgery.
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Contrary to petitioner's contention, Dr. Grob did not refer him to a p ain
management specialist. It was Dr. Grob's medical opinion that if petitioner was
unsuccessful in weaning himself from prescription opioid medication, Martin
"would then [need to] consider having a discussion with [a] pain management
specialist . . . ."
Dr. Bram, Martin's one-time evaluating medical expert, did not offer any
medical evidence that petitioner's continued treatment with Percocet would
relieve his symptoms. Dr. Bram found few positive objective physical findings
during his examination of petitioner that would support the conclusion Martin
needed long-term prescription opioid medication to function better. Dr. Bram
simply opined that continuing treatment with Percocet was "reasonable." He
offered no evidence or testimony that the continued treatment with prescription
opioid medication would reduce Martin's pain symptoms and return him to better
function.
We are satisfied there was sufficient, credible evidence in the record to
support the compensation judge's determination that further treatment with
opioid medication would not cure or relieve Martin's injury. The judge reviewed
the medical records introduced as evidence and considered the experts'
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testimony after having the opportunity to assess the experts' credibility in
weighing their opinions.
We next review Martin's argument that the compensation judge
improperly allowed respondent's counsel to be present when petitioner's counsel
interviewed Dr. Grob. Petitioner's reliance on Stempler v. Speidell, 100 N.J.
368 (1985) in support of his argument that the physician-patient privilege
afforded him the right to interview Dr. Grob ex parte is misplaced.
As Dr. Grob's patient, Martin and his attorney had the right to meet with
Dr. Grob to discuss the doctor's testimony. As of February 21, 2018, petitioner's
counsel knew respondent's counsel intended to call Dr. Grob as respondent's
witness. If Dr. Grob was not returning telephone calls to schedule a meeting to
discuss the doctor's testimony, Martin had ample opportunity to seek judicial
intervention. On April 4, 2018, immediately prior to Dr. Grob's scheduled
testimony, Martin's counsel requested permission to speak ex parte with Dr.
Grob. In the interests of fairness to all parties, the judge permitted petitioner's
counsel to interview Dr. Grob, but allowed respondent's counsel to be present
during the interview.
We are satisfied that the judge properly exercised his discretion as a result
of the late request by petitioner's counsel to interview Dr. Grob. Judges are
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accorded "wide discretion in exercising control over their courtrooms" and trial
proceedings. See State v. Stewart, 453 N.J. Super. 55, 67 (App. Div. 2018)
(citing D.A. v. R.C., 438 N.J. Super. 431, 461 (App. Div. 2014)).
Affirmed.
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