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What's Hot in Workers' Comp

The Appellate Court affirms denial of petitioner’s motion for treatment, finding she failed her burden to prove the treatment would relieve her symptoms and improve her ability to function.

Martone v. Cmty. Med. Ctr., No. A-2739-19 (App. Div. Dec. 29, 2021)

February 1, 2022

by Kiara K. Hartwell

The petitioner appealed a workers’ compensation order denying her motion for medical treatment. The Appellate Division affirmed, noting the workers’ compensation judge’s findings were supported by the record.

On November 15, 2013, the petitioner fell and injured her right knee. Between March 2014 and February 2015, the petitioner underwent three procedures to her right knee, including a total right knee replacement, a bilateral knee manipulation under anesthesia and a right knee arthroscopy. She was unable to continue working after some time due to ongoing pain and medication. She also treated with Dr. J. Yanow, a pain management specialist, from August 2015 to January 2016 after unsuccessful anesthetic blocks to several nerves.

The petitioner saw Dr. Z. Post for a second opinion exam. Dr. Post took x-rays and found her knee replacement was well-placed. Because the petitioner continue to complain of pain, she underwent a right revision of the total knee replacement, scar revision and manipulation under anesthesia by Dr. A. Mark, the authorized surgeon. This did not alleviate her pain, so she underwent a revision of the tibial component of the total knee replacement and synovectomy in December 2016.

She also saw other orthopedic surgeons for independent exams, each noting she was a poor candidate for further surgeries due to multiple failed surgeries. The petitioner saw another pain management specialist in February 2017, who found her to be manipulative and “volitive” toward obtaining high amounts of pain medication. On April 21, 2017, Dr. Mark discharged the petitioner, noting he could not offer any further curative treatment.

In August 2017, the petitioner returned to Dr. Post, who had not reviewed Dr. Mark’s notes or operative reports from 2016. Dr. Post found the petitioner would be a candidate for revision of the right knee, and Dr. Alan Nasar, who evaluated the petitioner in May 2018, agreed. The petitioner then filed a motion for medical benefits in October 2018, using Dr. Nasar’s report. Due to the extensive history and treatment, the workers’ compensation judge ordered a one-time need-for-treatment exam. As such, Dr. M. Sidor evaluated the petitioner in March 2019 and found no need for additional treatment. 

The petitioner returned to Dr. Post in April 2019, who again found her to be a candidate for total right knee reconstructive surgery. The claimant used his report to file an additional motion. The employer opposed, noting the petitioner was at maximum medical improvement per Dr. Mark and Dr. Sidor. All three doctors testified at trial.

Dr. Post stated that, while he was willing to operate, he could not guarantee the surgery would cure the petitioner and admitted it could worsen. Dr. Mark testified there was a low chance of success for further surgeries as the petitioner had no evidence of problems with her artificial knee, had arthrofibrosis and pain management was not effective. Dr. Sidor opined that further surgery would likely result in bone loss, that there could be possible infection and that she could be worse afterwards.

In the subsequent opinion, although the Workers’ Compensation Judge found all three doctors were credible, he disagreed with Dr. Post’s opinion that the location of the implant was the cause of the pain. Instead, the judge agreed with Dr. Sidor’s opinion that her pain was due to fibrosis and noted risk concerns with another surgery. The judge also accepted Dr. Mark’s opinion that further surgery would create additional arthrofibrosis, contribute to more pain and inability to move. He entered an order denying the motion for medical treatment, as he did not feel there was “any reasonable likelihood surgery would help.”

The petitioner appealed, arguing the judge improperly denied her treatment that Dr. Post recommended, despite finding him credible. However, the Appellate Division disagreed, finding the petitioner failed her burden to prove the treatment would “probably relieve petitioner’s symptoms and thereby improve [her] ability to function.” Hanrahan v. Twp. of Sparta, 284 N.J. Super. 327, 336 (App. Div. 1995). In addition, the petitioner had undergone six right knee procedures, which did not help, and Dr. Post, along with various other doctors, found her pain was out of proportion. The petitioner also contended the judge erred by giving greater weight to Dr. Sidor than Dr. Post. The Appellate Division found the judge reviewed the records and expert testimonies in finding the petitioner had arthrofibrosis, diagnosed by all three doctors. This made for potential poor success in future surgery and recovery.
 

What’s Hot in Workers’ Comp is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2022 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.

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