On appeal from the Division of Workers' Compensation, Docket No. 98-27810.
The opinion of the court was delivered by: Stern, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Fall and Grall.
Respondent-employer*fn1 ("employer"), MH&W Corporation, appeals from an order entered on July 26, 2004, determining "that the Respondent is obligated to pay for Petitioner's prescription of Lipitor."*fn2
On November 6, 1996, petitioner sustained an orthopedic injury "arising out of and in the course of his employment" when he injured his back while lifting a box. While undergoing physical therapy after back surgery, petitioner developed unstable angina which required aortocoronary bypass graft surgery.
On June 27, 2001, the judge of compensation entered an "Order Approving Settlement," which provided that petitioner was totally disabled, and divided responsibility for benefits between the respondent and the Second Injury Fund. According to the Order Approving Settlement,
(1) The Petitioner was in the employ of the Respondent on November 6[,] 1996 which date and during which time he sustained injuries arising out of and in the course of his employment. Petitioner injured his back while lifting a box. He has undergone an anterior interbody fusion and disectomy at the L5-S1 level using allograft as well as cages. Petitioner while undergoing Physical Therapy developed unstable angina which required aortocoronary bypass graft surgery. These injuries are of an orthopedic, neurologic and cardiological nature.
(3) The Respondent has or will pay for all medical treatment because of said injury. The Respondent has or will pay for any cardiological related medical bills which have not been paid . . . . Respondent will continue to provide to the Petitioner such reasonable and necessary medical care as the Petitioner's related conditions require.
(7) The permanent disability resulting from said accident is orthopedic, neurologic, and cardiological, the Petitioner is 100% Totally and Permanently Disabled as a result of a combination of all conditions. [Emphasis added.]
Following the entry of the "Order Approving Settlement," petitioner filed a "Notice of Motion for Reimbursement and Establishment of Prescription Plan for Medication" to "establish a prescription plan" for the Lipitor, to require the employer reimburse him for out-of-pocket expenses for Lipitor, and to pay for counsel fees and costs of the motion.
At the motion hearing, Dr. Sidney Friedman, petitioner's expert in cardiology, reported that petitioner had "arteriosclerotic heart disease, occlusive coronary artery and that "Lipitor is not only a drug to prevent the progression of the risk factor of elevating cholesterol and other lipids, but in essence in recent years has been found to be a treating drug and is used as such." According to Dr. Friedman, "Lipitor is a preventative drug, and is specifically used for coronary artery disease," and is appropriate "for a combination of preventive and therapeutic purposes." To the contrary, Dr. Joel Duberstein, the employer's expert, opined that the prescription for Lipitor was not "causally related" to petitioner's compensable "cardiac incident" but, rather, would be prescribed to ...