Martin v. Newark Public Schools, ___ N.J. Super. ___ (App. Div. 2019). [Disclosure: My firm, Lite DePalma Greenberg, LLC, represents Newark Public Schools in certain matters, but had no involvement in this case.]. Today’s concise opinion by Judge Mayer was a Workers’ Compensation appeal. The Workers’ Compensation Court denied the application of petitioner Samuel Martin III for medical and temporary disability benefits. He sought reimbursement for the continued cost of Percocet, a prescription opioid medication, to treat a lower back injury sustained while he was employed by Newark Public Schools (“NPS”). The Appellate Division affirmed the denial of benefits.
Martin’s treating physician, Dr. Patricio Grob, and an expert for Martin, Dr. Harris Bram, who had examined Martin, testified before the Compensation Court, along with Martin. Grob stated that after years of Percocet use, the drug was “poorly controlling Martin’s pain.” Grob recommended surgery or epidural injections as more effective. Martin did not wish to go down either of those paths.
In contrast to Grob, Bram, who examined Martin once and reviewed his medical records and an MRI, opined that it was “reasonable that [Martin] be on opioid medication on a long term basis for his pain.” Bram also noted, however, that Percocet had, to date, afforded Martin only “small pain relief.” The Compensation Court found Grob’s testimony more credible than that of Bram.
On appeal, Martin complained that the judge had erred in giving more weight to Grob than to Bram. But Judge Mayer, citing Supreme Court precedent, noted that “[t]he factual findings of the compensation court are entitled to substantial deference.” Especially since, “Compensation judges have expertise with respect to weighing the testimony of competing medical experts,” the Appellate Division “may not ‘engage in an independent assessment of the evidence as if it were the court of first instance.”
The Compensation Judge had adequately expressed reasons for adopting Grob’s view, and Judge Mayer cited authority recognizing “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.” The Compensation judge did not err in siding with Grob, Martin’s treating physician for six years.
Martin next contended that the Compensation Court had misapplied the law regarding continued palliative care treatment. N.J.S.A. 34:15-15 requires continued treatment when “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 . . . .” Judge Mayer, again citing Supreme Court precedent, stated that “in 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.”
Again, Grob’s testimony was dispositive. He had stated that Percocet had not alleviated Martin’s pain, and that continued use of that opioid would not heal Martin or relieve his condition. Bram “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,” but only the unsupported conclusion that continued provision of Percocet was “reasonable.” The record thus supported the Compensation Court’s ruling that the statutory test had not been met.
Martin’s final argument dealt with an interview that Martin’s counsel conducted with Grob right before Grob was to testify at trial as a witness for NPS. Such an interview had not occurred before even though, as Grob’s patient, Martin had the right to interview Grob and could have compelled such an interview through judicial intervention if Grob were resistant. Martin asked that his counsel be able to interview Grob ex parte. The Compensation Court allowed the interview but allowed counsel for NPS be present at that interview.
Martin contended that allowing opposing counsel to be present at the interview violated the physician-patient privilege. Judge Mayer did not agree. She noted that judges have “wide discretion in exercising control over their courtrooms.” There was no abuse of that discretion here.