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First NJ Workers Compensation Appellate Opinion On Opioid Use Is Approved For Publication

By on December 18, 2019 in Key Defenses with 0 Comments

The case of Martin v. Newark Public Schools was the subject of an earlier blog on October 7, 2019.  At the time of that blog, the case had not been approved for publication.  On December 13, 2019, the Committee on Publications decided to approve Martin for publication.  It is now the only published decision in New Jersey workers’ compensation on this specific issue and therefore the leading case on requests for continued opioid use. 

The case involved a not uncommon situation where two physicians disagreed on the need for long-term opioid use. The treating physician, Dr. Patricio Grob, treated petitioner from 2011 to 2017 but then released petitioner in September 2017, writing one final prescription of Percocet as a courtesy to Mr. Martin. Dr. Grob felt that Percocet was poorly controlling Martin’s pain.  He also said that continued Percocet would “not manage petitioner’s radicular complaints . . . and could complicate his recovery.”  After six years of treating petitioner with Percocet, Dr. Grob concluded that prescription pain medication would never improve Martin’s condition. Dr. Grob recommended surgery but petitioner declined surgery due to an unrelated blood condition.

Martin next saw Dr. Harris Bram, an expert in pain medication, for a one-time evaluation.  Dr. Bram noted that petitioner had disc desiccation at L4-5 and L5-S1 and a disc herniation at L5-S1.  Dr. Bram recorded somewhat contradictory statements from petitioner.  In taking petitioner’s history, Dr. Bram said Martin reported opioid medication provided only “small pain relief.”  But he also self-reported in other records that Percocet abated his pain symptoms by approximately 60%.  Dr. Bram concluded that long-term use of opioids would be reasonable for petitioner.

Administrative Supervisory Judge, the Hon. Philip Tornetta, found that petitioner failed to prove continued Percocet treatment would reduce Martin’s pain or permit him to function better.  He commented that Dr. Bram did not provide medical evidence that long-term Percocet use would permit petitioner to function better.

The Appellate Division affirmed the dismissal of petitioner’s motion, first citing to an older case involving a motion for physical therapy.  In Hanrahan v. Twp. Of Sparta, 284 N.J. Super. 327, 336 (App. Div. 1995) the Court found that the claimant who was seeking further physical therapy was required to show the treatment would “probably relieve petitioner’s symptoms and thereby improve his ability to function.”  The Court applied this logic to the Martin case in respect to the request for long-term opioids:

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 Court concluded, “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 emphasis on this case at both the trial level and appellate level was on improvement of function.  The fact that the treating doctor had observed poor pain control from Percocet over six years posed serious problems for petitioner to overcome at trial.  The case must be seen in the context of the opioid epidemic in the United States.  It demonstrates that employers can actually do something about long-term opioid use under certain situations.  Just testifying in court that opioid medication makes one feel good will not suffice.  There must be medical evidence of improvement of function under this significant decision.

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John H. Geaney

About the Author

About the Author:

John H. Geaney, a shareholder and co-chair of Capehart Scatchard's Workers' Compensation department, began an email newsletter entitled Currents in Workers’ Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates.

Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers. The manual is distributed by the New Jersey Institute for Continuing Legal Education (NJICLE). He also authored an ADA and FMLA manual as distributed by NJICLE. If you are interested in purchasing the manual, please contact NJICLE at 732-214-8500 or visit their website at www.njicle.com.

Mr. Geaney represents employers in the defense of workers’ compensation, ADA and FMLA matters. He is a Fellow of the College of Workers’ Compensation Lawyers of the American Bar Association and is certified by the Supreme Court of New Jersey as a workers’ compensation law attorney. He is one of two firm representatives to the National Workers’ Compensation Defense Network. He has served on the Executive Committee of Capehart Scatchard for over ten (10) years.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School. He has been named a “Super Lawyer” by his peers and Law and Politics. He serves as Vice President of the Friends of MEND, the fundraising arm of a local charitable organization devoted to promoting affordable housing.

Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Trenton, New Jersey. The firm represents employers and businesses in a wide variety of areas, including workers’ compensation, civil litigation, labor, environmental, business, estates and governmental affairs.

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