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There are surprisingly few appellate division cases focusing on the employer’s obligation to provide continuing opioid treatment. Martin v. Newark Public Schools, A-0338-18T4 (App. Div. October 4, 2019) is therefore one case practitioners should study closely.
The case involved a reopener of an award for Samuel Martin of 15% permanent partial disability for aggravation of a pre-existing lumbar disc herniation and bulging disc. Several years after the award was entered, respondent stopped paying for ongoing Percocet prescriptions. Petitioner then filed a motion for medical benefits seeking reimbursement for continued prescription opioid medication that he was paying for himself.
The initial award occurred in November 2014. The treating physician, Dr. Patricio Grob, oversaw petitioner’s treatment from 2011 to 2017. Petitioner was using opioids for much of this time. In a note from his June 2016 examination of petitioner, Dr. Grob said that Percocet was controlling Mr. Martin’s pain poorly. He added that “prolonged narcotic use would not manage his radicular complaints … and can complicate recovery.” Dr. Grob did suggest surgery, but petitioner declined surgery due to an unrelated blood condition which might cause complications.
In Dr. Grob’s final medical note dated September 13, 2017, he wrote, “I would recommend an 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.” It was the opinion of Dr. Grob that Percocet was not relieving Martin’s condition and would never improve it.
On January 8, 2018, Martin saw Dr. Harris Bram, a pain medicine physician, for a one-time evaluation in support of petitioner’s motion for medical benefits. Dr. Bram noted that petitioner’s MRI showed disc desiccation at L4-5 and L5-S1, and a disc herniation at L5-S1. Dr. Bram noted that petitioner self-reported that Percocet abated his pain by about 60% and that he was more active on the medication. However, Dr. Bram also reviewed petitioner’s history and noted that petitioner reported his Percocet provided only “small pain relief.”
Dr. Bram found only a few positive physical findings on physical examination. Martin’s lower extremities were neurologically intact and his gait was normal. Nonetheless, Dr. Bram found petitioner had low back pain, lumbar radiculopathy, and sacroiliitis. He said “it was reasonable that Martin be on opioid medication on a long term basis for his pain. I thought that was reasonable for him.”
The Judge of Compensation found that Dr. Grob was more persuasive than Dr. Bram, who was a one-time evaluator. The Judge commented that Dr. Bram “did not provide any medical evidence that such treatment will permit the petitioner to function better.” The Judge also found no evidence that continued opioid medication would relieve Martin’s pain.
Petitioner appealed and argued that the Judge misapplied the standard governing an application for palliative care. The Appellate Division first noted that treatment is compensable if competent medical testimony shows that it is “reasonably necessary to cure or relieve the effects of the injury.” Hanrahan v. Twp. of Sparta, 284 N.J. Super. 327 (App. Div. 1995). The Court added that the Hanrahan case required that the treatment would “probably relieve petitioner’s symptoms and thereby improve his ability to function.” The Court finally reflected that the Hanrahan decision concluded that 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 at p. 336.
The Appellate Division suggested that Dr. Grob was in a much better position to opine on reasonable and necessary treatment in this case because he had treated petitioner for six years and had concluded that Martin’s pain had not been alleviated with medication or therapy. Petitioner argued that Dr. Grob had referred petitioner for pain management. The Court disagreed, “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.’” The point the Court was making was that the referral would only be needed if petitioner could not wean himself off opioid medication.
The Appellate Court was not impressed with the testimony of Dr. Bram because there were few objective physical findings on examination and no testimony that continued opioid use would reduce Martin’s pain symptoms and return him to better function. The Court did not believe it was sufficient to order continued opioid medication with a mere assertion by Dr. Bram that continued opioid use was “reasonable.”
One other side issue in this case is worth noting as well. Shortly before Dr. Grob was scheduled to testify at trial, petitioner’s counsel sought an opportunity to interview Dr. Grob ex parte. Dr. Grob was not returning phone calls from petitioner’s counsel about a meeting. The Judge of Compensation allowed the interview but only if respondent’s counsel was present since respondent’s counsel had made clear that Dr. Grob would be his witness in the motion trial. The Judge of Compensation denied the request for an ex parte interview without respondent’s counsel. Petitioner’s counsel argued that his client had a patient-physician privilege and therefore he should have the right to an ex parte interview.
The Appellate Division found that the Judge of Compensation exercised proper discretion in requiring that both counsel be present for the interview. This ruling is significant because it is the appellate case in workers’ compensation that comments on such an issue.
This case is very interesting for a number of reasons. Paying for opioid medications – even after awards are entered – occurs with greater frequency in the last decade. There seems to be a great deal of disagreement on when such continued opioid use is required past the point of MMI. This case suggests a very practical solution: there must be proof that the opioid medications are providing curative relief and proof that the continued use of opioids is improving the function of the injured worker. This emphasis on function comes from the Hanrahan case. In this case the surgeon made clear that opioid use would not improve function, would not relieve pain and might even create more complications. The problem in this case was that petitioner could not present proof of improvement of function caused by continued opioid use over the many years the petitioner had been on Percocet.
John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at firstname.lastname@example.org.