SANDRA MARTONE VS. COMMUNITY MEDICAL CENTER (DIVISION OF WORKERS' COMPENSATION)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2739-19
SANDRA MARTONE,
Petitioner-Appellant,
v.
COMMUNITY MEDICAL
CENTER,
Respondent-Respondent.
___________________________
Argued October 18, 2021 – Decided December 29, 2021
Before Judges Messano and Accurso.
On appeal from the State of New Jersey Department of
Labor and Workforce Development, Division of
Workers' Compensation, Claim Petition No. 2013-
34743.
Danielle S. Chandonnet argued the cause for appellant
(Shebell & Shebell, LLC, attorneys; Danielle S.
Chandonnet, on the brief).
Anne Hammill Pasqua argued the cause for respondent
(Capehart & Scatchard, PA, attorneys; Michael C.
Rose, of counsel; Michael P. McCaffrey, on the brief).
PER CURIAM
Appellant Sandra Martone filed a workers' compensation petition alleging
that on November 15, 2013, while working as an emergency room technician for
respondent Community Medical Center (CMC), she fell sustaining an injury to
her right knee. CMC acknowledged the claim was compensable. 1 After three
full- and partial-knee replacement surgeries, physical therapy, and other
procedures over many years, Martone moved for temporary medical benefits,
alleging a fourth full-knee replacement surgery was reasonable and necessary to
alleviate her pain and improve her range of motion. CMC filed opposition, and
the Judge of Workers' Compensation (JWC) heard testimony to decide if CMC
should be compelled to pay for Martone's surgery in accordance with N.J.S.A.
34:15-15 (Section 15), the relevant provision of the Workers' Compensation Act
(Act), N.J.S.A. 34:15-1 to -142.
I.
The evidence at the hearing was largely undisputed. Between the dates of
March 2014 and February 2015, Dr. Christopher Passariello performed multiple
procedures on Martone's right knee because of continued complaints of pain,
1
Martone amended her complaint to include injuries relating to her shoulder,
back, and mental health, but we limit this opinion to the order under review,
which only pertains to her claim of a compensable injury to her right knee.
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including a total right knee replacement, bilateral knee manipulation under
anesthesia, and a right knee arthroscopy. Following each surgery, Martone
attended physical therapy and received other treatment, but eventually she was
unable to continue working due to ongoing pain and her need for pain
medication, which she could not take while working at CMC. Dr. Jennifer
Yanow, a pain management specialist, began treating Martone in August 2015,
but released her from care in January 2016 after unsuccessful anesthetic blocks
to several nerves. Dr. Yanow concluded no other medical treatment could
alleviate Martone's symptoms.
Martone sought a second opinion from Dr. Zachary Post, an orthopedic
surgeon, who found she had "less than ideal motion." However, Dr. Post took
x-rays and found the knee replacement was well-placed and well-fixed, with no
evidence of loosening or mechanical failure to the knee.
Still, Martone complained of stiffness and limited range of motion. In
May and July 2016, Dr. Arthur Mark, CMC's authorized workers' compensation
surgeon, performed a right revision of the total knee replacement, a scar
revision, and manipulation under anesthesia, but these did not alleviate
Martone's pain or improve her mobility. In December 2016, Dr. Mark performed
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a revision of the tibial component of the total knee replacement and a
synovectomy.
Aside from her visits with Dr. Mark and Dr. Post, Martone saw various
orthopedic surgeons who provided independent re-evaluations, each concluding
that in view of the multiple failed surgeries, Martone would be a poor candidate
for further surgical intervention. One noted, "[Martone]'s pain seems to be out
of proportion to what [he] would expect in a typical patient." Martone was
evaluated by another pain specialist in February 2017 who noted her
presentation was "complex" and found Martone to be manipulative and
"volitive" towards obtaining continued high amounts of pain medication. A
month later, Martone underwent a pain management psychological exam which
found she exhibited symptoms of Somatoform Pain Disorder and Prescriptive
Opioid Dependence/Tolerance. 2 On April 21, 2017, Dr. Mark stated he could
offer no further curative treatment and discharged Martone.
In August 2017, Martone returned to Dr. Post, alleging she was still in
pain. Dr. Post had not viewed Dr. Mark's notes nor his operative reports on the
last two revisions in 2016, but, nevertheless, he concluded Martone would be a
2
These findings were consistent amongst various medical professionals who
evaluated Martone.
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good candidate for a revision of her right knee. Martone sought an evaluation
with Dr. Alan Nasar in May 2018 who opined he would consider revision of the
right knee as recommended by Dr. Post. Using Dr. Nasar's medical report for
support, Martone filed her motion for temporary medical benefits in October
2018.
Given the extensive treatment and countering expert opinions, the JWC
wisely ordered CMC to authorize a one-time need-for-treatment examination to
render an opinion on the benefits of further surgery. Accordingly, Dr. Michael
Sidor, an orthopedic surgeon, examined Martone in March 2019. He concluded
Martone was at maximum medical improvement and found there was no need
for further medical treatment.
However, in April 2019, Martone revisited Dr. Post, who reiterated she
would be a good candidate for total right knee reconstructive surgery. Martone
filed an additional motion and attached Dr. Post's report in support. CMC
opposed, contending Martone was already examined by the authorized provider
as well as a second doctor at the court's request, both of whom concluded further
surgery was unwarranted.
All three experts testified at trial. Dr. Post stated Martone's femoral
component "appeared to be too distal, which contributed to her tightness and
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tension . . . and her lack of ability to get full extension." He explained doctors
can "reposition the knee, proximalizing [the knee] . . . to open up the extension
space giving [Martone] more room for her knee to obtain full extension," or
distalizing the knee, i.e., closing the extension space. The doctor acknowledged,
however, that either procedure may lead to instability or tightness. Although
Dr. Post concluded Martone "clearly ha[d] arthrofibrosis," "one of the more
difficult problems [doctors] face in revision knee replacement," he nonetheless
was willing to operate. Dr. Post could not guarantee the revision surgery would
cure Martone's condition, and he admitted Martone's condition could worsen,
resulting in further loss of motion.
Dr. Mark testified he intentionally placed the femoral component lower to
ensure the kneecap tracked into the implant, which he described as the standard
of care. He concluded any further surgical revisions had a low probability of
success, because there was no evidence of loosening or mechanical problems
with the artificial knee, Martone had arthrofibrosis, and pain management
treatments were ineffective.
Dr. Sidor opined the pattern following Martone's prior surgeries
demonstrated she would lose extension and flexion after surgery, which is
consistent with a diagnosis of fibrosis. Dr. Sidor testified the location of the
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femoral component of Martone's knee implant did not contribute to her
condition. Dr. Sidor also testified that further surgery would likely result in
bone loss, because the existing implant was well-fixed and difficult to remove.
If additional surgery were performed, Dr. Sidor expressed concern about
possible infection, and that Martone would be "worse than she is now."
In a cogent, comprehensive opinion, the JWC found all three experts were
credible witnesses, but he disagreed with Dr. Post's opinion that the location of
the implant was the cause of Martone's pain. Rather, the judge credited Dr.
Sidor's conclusion that Martone's pain was caused by fibrosis, as evidence by a
post-surgery pattern in which Martone would lose extension in the joint. The
court expressed concerns regarding the risks associated with a fourth procedure,
noting Martone underwent multiple surgeries and experienced additional
symptoms afterwards, indicating she was "actually worse after surgery."
The judge credited Dr. Mark's opinion that further surgery will create
additional arthrofibrosis, contributing to Martone's pain and inability to move.
The judge explained that if he "felt there was any reasonable likelihood surgery
would help [Martone], [he] would have no hesitation," but that was "not the
case." He entered an order denying her motion for medical treatment.
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II.
On appeal, Martone urges us to reverse the order, arguing it was
unsupported by the evidence and expert testimony in the record. Martone asserts
that because the JWC found Dr. Post to be credible, it was improper to deny her
treatment the doctor recommended to help relieve her pain and improve her
function. We disagree.
"Appellate courts approach the factual findings made by a workers'
compensation court with 'substantial deference' in recognition of the
compensation judge's expertise and opportunity to hear witnesses and assess
their credibility." Goulding v. NJ Friendship House, Inc., 245 N.J. 157, 167
(2021) (quoting Ramos v. M & F Fashions, Inc., 154 N.J. 583, 594 (1998)). "An
agency's interpretation of a statute, however, although entitled to some weight,
is not binding on the reviewing court." Ibid. (quoting Brock v. Pub. Serv. Elec.
& Gas Co., 149 N.J. 378, 383 (1997)).
"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 . . . .'" Martin v. Newark Pub. Schs., 461 N.J. Super.
330, 338 (App. Div. 2019) (quoting N.J.S.A. 34:15-15). Although the Act is
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liberally construed in favor of providing coverage to injured workers, Goulding,
245 N.J. at 167, "[w]hether the treatment is characterized as curative or
palliative, [it] is compensable if competent medical testimony shows that it is
'reasonably necessary to cure or relieve the effects of the injury.'" Martin, 461
N.J. Super. at 338 (quoting Hanrahan v. Twp. of Sparta, 284 N.J. Super. 327,
336 (App. Div. 1995)).
What is reasonable and necessary does not depend on a petitioner's
"desires or beliefs as to what treatment or service will be most beneficial ."
Hager v. M&K Constr., 246 N.J. 1, 24 (2021). A petitioner must show the
treatment would "probably relieve petitioner's symptoms and thereby improve
[her] ability to function." Hanrahan, 284 N.J. Super. at 336.
Here, Martone had extensive treatment and a total of six right knee
procedures which have been ineffective. Martone has been examined by over
sixteen medical professionals, including treatments from multiple psychiatrists
and pain specialists; the record reflects many agree Martone suffers from a
dependency on opioids. Martone's expert, Dr. Post, in accord with other doctors,
noted her pain appears to be out of proportion to a typical patient, thereby
complicating an ability to properly assess if her pain can be alleviated.
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Martone contends the WCJ erred by according greater weight to the
testimony of Dr. Sidor than the testimony of Dr. Post. However,
"[c]ompensation judges have 'expertise with respect to weighing the testimony
of competing medical experts.'" Martin, 461 N.J. Super. at 337 (quoting 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." Martin, 461
N.J. Super. at 337 (alterations in original) (quoting Bellino v. Verizon Wireless,
435 N.J. Super. 85, 95 (App. Div. 2014)).
Martone argues the JWC failed to articulate his reasons for crediting one
doctor's testimony over another. However, the judge comprehensively reviewed
the medical records in evidence and considered the experts' testimony after
having the opportunity to assess their credibility. The JWC concluded Martone
suffers from arthrofibrosis, a condition diagnosed by all three doctors. That
condition made any further surgery challenging, both in terms of its potential
success and in Martone's recovery without additional scarring that would further
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adversely impact her mobility. The JWC's factual findings and legal
determinations are amply supported by the record. R. 2:11-3(e)(1)(D).
Affirmed.
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