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Roberts v. Amergen Energy

November 19, 2008


On appeal from the Division of Workers' Compensation, Department of Labor, Claim Petition No. 2001-35118.

Per curiam.


Submitted: October 8, 2008

Before Judges Lihotz and Messano.

We review a January 7, 2008, Division of Workers' Compensation order awarding medical and temporary benefits to petitioner-employee Eugene Roberts. Respondent-employer Amergen Energy appeals, arguing the judge of workers' compensation (JWC) erred by denying respondent's request for a plenary hearing on whether the claimed condition was causally related to the compensable workplace accident. We conclude a plenary hearing was necessary to resolve the conflicting medical reports regarding the causation of petitioner's newly asserted injury. Accordingly, we reverse and remand.

On July 15, 2001, petitioner fell on a stairway located on respondent's business premises resulting in a compensable injury to both knees (2001 injury). Medical and temporary benefits were awarded. Respondent does not challenge this order.

On March 13, 2006, petitioner filed an amended claim petition, seeking compensation for an injury to his lower back. Respondent denied payment for treatment because it did not accept that petitioner's newly claimed back condition was causally related to the 2001 injury. Petitioner filed a motion for medical and temporary benefits requesting additional diagnostic testing and pain management. He supported his application with reports from his treating physician, Robert Grossman, M.D., of Shore Orthopedics (Shore). Dr. Grossman suspected petitioner suffered a possible disc herniation at L4-5. Respondent opposed the motion and relied on its expert's report. By recommendation of a different JWC who conferenced the matter, it was agreed that petitioner would be evaluated by Richard Hartwell, M.D., Ph.D. Dr. Hartwell concluded there was "no causality of lumbar pain or radiculopathy to [petitioner's 2001] injury and any treatment suggested for his lumbar spine would be unrelated to his [2001] injury." By letter dated March 1, 2007, Dr. Grossman opined petitioner's back problems resulted from a change in ambulation status due to his knee injury.

The matter was reviewed by the JWC on March 19, 2007. The JWC ordered respondent to "authorize medical treatment as recommended by Dr. Grossman . . . for the back including epidural/facet blocks."

Thereafter, another physician at Shore, Cary D. Glastein, M.D., evaluated petitioner. In his July 24, 2007 report, Dr. Glastein found no evidence of spinal stenosis or herniated discs. He also found "no direct causal relationship to [petitioner's] lower back pain based on his work related injury of June 2001," except a soft tissue injury from his probable asymmetric ambulation. Dr. Glastein found no evidence of any chronic neurological problems and no need for pain management treatment.

Based on their differing diagnoses and recommended courses of treatment, Drs. Glastein and Grossman conferred. Dr. Grossman sent a letter to the respondent's insurance carrier stating: "Clearly, Dr. Glastein is right. [Petitioner] has degenerative back disease[,] but it is not work related."

Further, Dr. Grossman stated the back injury was not caused by the 2001 injury. As a result, the carrier would not authorize payment for treatment.

Petitioner's motion for medical and temporary benefits was relisted. Respondent sought a hearing, arguing the evidence failed to support the condition resulted from a work related injury. The JWC denied respondent's request and ordered respondent to pay for pain management treatment without prejudice.*fn1 Respondent filed this appeal.*fn2

On appeal, respondent argues the JWC erred in denying its request for a plenary hearing. Petitioner disagrees and maintains that respondent's opposing documentation is facially insufficient to fairly contradict or oppose the documentation in support of its motion.

Our workers' compensation scheme provides a remedy to employees who suffer an injury "arising out of and in the course of employment" by an accident. N.J.S.A. 34:15-7. An employer must "furnish to an injured worker such medical, surgical and other treatment, and hospital service as shall be necessary to cure and relieve the worker of the effects of the injury and to restore the functions of the injured member or organ where such restoration is possible[.]" N.J.S.A. 34:15-15. The employer's responsibility to provide treatment refers to those conditions related to or caused by an employee's compensable condition. Rivelli v. MH&W Corp., 383 N.J. Super. 69, 74 (App. Div. 2006). An employee must submit competent medical testimony showing the treatment is reasonably necessary to cure or relieve the effects of the employment related injury. Ibid.; Hanrahan v. Twp. of Sparta, 284 N.J. Super. 327, 336 (App. ...

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