Who to believe? The treating doctor or a doctor who performs a 1 time examination?
Martin v. Newark Pub. Sch., N.J. Super. App. Div. Decided December 12, 2019 (Approved for Publication)
Submitted by New Jersey Workers Compensation Lawyer, Jeffrey Hark.
This is an interesting case and an interesting argument by the petitioner’s attorney. Here, the petitioner filed a motion in workers compensation court to have the court order the employer’s physician to continue prescribing opiate medications for his pain management. Unfortunately, the treating doctor’s professional opinion was to have the opiate medication taper and then to be cut off if the petitioner is not willing to have the recommended surgery. As a result, the petitioner’s attorney wanted the court to rely upon the one time report/evaluation of a pain management expert as opposed to the treating physician. The judge rejected this argument and agreed with the long term actual treating doctor over the ‘one time evaluation/opinion of the pain management expert.
How can the court rely upon one expert over another? The case law has addressed this issue head on.
- Procedural History:
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 (Also know as Motions for Med & Temp). Petitioner requested reimbursement for continued prescription opioid medication to treat a lower back injury suffered during his employment with respondent Newark Public Schools. 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.
- Facts:
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 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.
III. The key is the following langage:
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.
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 to petitioner’s contention, Dr. Grob did not refer him to a pain 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 . . . .”
The judge also rejected the one time evaluating opinion of the plaintiff’s ‘other’ expert because his opinion was not well grounded in the facts and prior medical treating history.
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.
