The subject of narcotics was addressed by the New Jersey Superior Court, Appellate Division in Martin v. Newark Public Schools. It is another of those cases that was not published by the court when decided in October. However, on Dec. 13, 2019, the court approved for publication.

Judge David Langham

The injured worker sought temporary indemnity benefits and "reimbursement for continued prescription opioid medication to treat a lower back injury." The motor vehicle accident was nearly a decade ago, in May 2011. It resulted in an orthopedic low back injury. In 2017, the employer/carrier denied reimbursement for Percocet, and the subject claim was filed. 

The treating physician began treating Samuel Martin III in June 2011, including prescriptions for pain medication. These prescriptions were monthly "from 2016 through 2017." In September 2017, he released the patient from care, placing him at maximum medical improvement. As a courtesy, the doctor wrote one last Percocet prescription at that time. 

The doctor testified that he had recommended alternative care such as "surgery or epidural injections," which were declined. Other physicians also unsuccessfully recommended surgery as well. He noted that "Percocet was poorly controlling Martin's pain." He also concluded that "prolonged narcotic use [would] not manage his radicular complaints." And the treating doctor testified that "Martin would never heal through continued use of pain medication," though that course had been pursued for six years. 

It is notable that the treating physician was focused upon remedial care, the kind of care that is intended to improve a condition or diagnosis. The physician was not foreclosing palliative care, intended to alleviate symptoms or complaints associated with an injury. In fact, the physician advised the worker that continued complaints might lead him to "pursue something from a palliative care point." 

A pain management physician was consulted before hearing in "a one-time evaluation in support of the motion," which is seemingly similar to an independent medical examination in Florida. The pain management physician noted multiple spine findings and recited that the patient "self-reported that Percocet abated his pain symptoms by approximately 60%, and he was more active on the medication."

The extent reported was, however, "small pain relief." The pain management physician concluded that "it was reasonable that [Martin] be on opioid medication on a long-term basis for his pain."

The trial judge denied the claim seeking reimbursement for prescription Percocet. He concluded that Martin "failed to prove continued treatment with opioid medication would reduce ... pain or permit him to function better." In so concluding, the judge accepted the treating physician's opinion as "more credible than the testimony of the one-time evaluating physician."

The logic of the trial judge is pertinent in understanding determinations of credibility. Credibility is a difficult subject, and much can contribute to the analysis. 

In this case, the trial judge found it pertinent that the pain management physician did not "expressly find continued opioid medication would relieve Martin's pain." And the judge noted that the physician "simply opined long-term opioid medication was 'reasonable' without explaining why."

Credibility may be a matter of which doctor has the most experience, relevant training or credentials. But there is a value in providing a logical and careful explanation of why recommendations are made or conclusions are reached. 

Having not convinced the trial judge to order ongoing Percocet, Martin sought review by the appellate court. He complained that the judge accepted the testimony of the treating physician and alleged the "judge misapplied the standard governing an application for palliative care."

The appellate court first addressed the acceptance of testimony. It concluded "that [the judge] gave more weight to the opinion of one physician as opposed to the other provides no reason to reverse the judgment." The court noted the trial judge's explanation of his finding of credibility, and found it appropriate to "defer to the compensation judge's factual findings under the circumstances."

The court explained that the employer/carrier is obligated to provide both "curative or palliative care" following a work injury. Each is required if shown to be "reasonably necessary to cure or relieve the effects of the injury." As such, in New Jersey, an injured worker must show that the treatment "would 'probably relieve petitioner's symptoms and thereby improve his ability to function.'" The court reminded that in making such decisions, "the touchstone is not the injured worker's desires or what he thinks to be most beneficial."

Instead, the court explained, there must be "competent evidence to be reasonable and necessary to cure and relieve him." In that, it is not sufficient to merely show that "the injured worker would benefit from the added treatment."

Citing a prior decision, the court reminded 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.'" Relying upon the treating physician's testimony, the court found sufficient evidence that "continued prescribing of pain medication did not, and would never, heal petitioner or relieve his condition."

The court provided a detailed comparison of the testimony and conclusions of both physicians. It reiterated the pain management physician's conclusion that Percocet was "reasonable" but returned again to the criticism of the physician's explanation for, foundation for, that conclusion. The court concluded that there was credible evidence to support "that further treatment with opioid medication would not cure or relieve Martin's injury." 

There are many who would find fault in such an outcome. They would argue that ongoing medication in such a situation may be the only potential for relief from symptoms. Others would note that narcotics are often dangerous and that increasingly strong doses over time are a risk to health.

There is no doubt that pain exists and that patients need some method to deal with symptoms. There is an ongoing debate in this country about these difficult questions. The New Jersey decision supports the proposition that some patients may be denied opioid medications for pain. That potential suggests some patients may need to find and attempt alternatives. 

David Langham is deputy chief judge of the Florida Office of Judges of Compensation Claims. This column is reprinted, with his permission, from his Florida Workers' Comp Adjudication blog.