August 2, 2011
BRIAN NOTO, PETITIONER-APPELLANT,
STAPLES, INC. RESPONDENT-RESPONDENT.
On appeal from New Jersey Division of Workers' Compensation, C.P. No. 2000-3128.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 4, 2011
Before Judges Nugent and Kestin.
Petitioner in this Workers' Compensation case, Brian Noto, appeals from a July 29, 2010 order dismissing his claim for review and modification of an award previously received. The Judge of Compensation dismissed the application "for failure to sustain the burden of proof." We reverse and remand for further proceedings.
The standard of review in appeals from decisions in the Division of Workers' Compensation (Division) is found in a classical formulation by the Supreme Court, speaking through Justice Hall, that has provided the basic rule governing our role in all appeals from administrative agencies, and from which a panoply of derivative principles and approaches have sprung:
[I]n relation to the review of factual determinations made by administrative bodies, . . . the standard to govern appellate intervention with respect thereto is the same as that on appeal in any non-jury case, i.e., "whether the findings made could reasonably have been reached on sufficient credible evidence in the record," considering "the proofs as a whole," with due regard to the opportunity of the one who heard the witnesses to judge of their credibility . . . , and, in the case of agency review, with due regard also to the agency's expertise where such expertise is a pertinent factor. [Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (internal citations omitted) (quoting State v. Johnson, 42 N.J. 146 (1964)).]
Corollaries to this "substantial evidence rule" are found in other, related principles. Courts are obliged to "place great weight on the interpretation of legislation by the administrative agency" to which the Legislature has entrusted its enforcement, Peper v. Princeton Univ. Bd. of Trustees, 77 N.J. 55, 69-70 (1978), unless the court "finds that the rule is inconsistent with the statute it purports to interpret[,]" Smith v. Director, Div. of Taxation, 108 N.J. 19, 26 (1987); and to defer to the agency's adoption and application of fair rules and procedures designed to promote the powers so conferred. See In re Union County Prosecutors, 301 N.J. Super. 551, 561 (App. Div. 1997); Lally v. Public Employees' Ret. Sys., 246 N.J. Super. 270, 273 (App. Div.), certif. denied, 126 N.J. 332 (1991). These latter tenets exist in the context of the broader principle, also described by Justice Hall for the Court, that "[a]n appellate tribunal is, however, in no way bound by the agency's interpretation of a statute or its determination of a strictly legal issue." Mayflower Securities Co., Inc. v. Bureau of Securities, 64 N.J. 85, 93 (1973).
With these primary sources as our guideposts, we proceed to analyze the issues in this case.
Petitioner was injured in a work-connected accident on June 1, 1998. A January 13, 2004 Division "order approving settlement" contained a determination that petitioner was entitled to a permanent disability award of "20% partial total being orthopedic[,] neurologic and psychiatric in nature for post-operative state of left inguinal hernia with subsequent surgery with transected left ilioinguinal nerve and ilioinguinal nerve neuropathy." The basis for the award was described in a subsequent document authored by petitioner's attorney as having been the sequela of a surgical procedure to repair a work-connected hernia, which resulted in an injury to the ilioinguinal nerve.
The document containing that description was a certification in support of petitioner's April 26, 2005 "motion for medical and temporary disability benefits." The attorney's certification went on to state that, since the entry of the award, petitioner had been receiving authorized pain management care.
Subject care being provided by Dr. Robert S. Silverman of the Valley Institute [for]
Pain. [Petitioner] will be in need of this pain management, including medication for his entire life. Dr. Silverman has requested that the respondent provide petitioner with continued medication, the same being neuro[n]tin. Further, Dr. Silverman has prescribed acupuncture and massage therapy for petitioner's pain.*fn1
An attached report from Dr. Silverman, dated February 18, 2005, stated, in part, that petitioner had returned from seeing another physician, and has now come back here for an ilioinguinal nerve block as well as medications. The new pregabalin drug, I just heard, has been delayed now until July which does become an issue; unfortunately, there is not much I can do. I told him to stick to his Neurontin and we will get authorization to do his ilioinguinal nerve block. Basically, his pain is about the same. Ergonomics at work are a problem. I told him to speak with HR in his employment place to see if they can set him up for some sort of better seating situation, and also to see if he can go to a chiropractor or acupuncture or massage therapist . . . . Impression is severe back and groin pain.
The plan will be to arrange for ilioinguinal nerve block with Stimuplex guidance, wait for the pregabalin to be available, and continue Neurontin until then.
The attorney's certification continued:
On or about April 11, 2005, the petitioner was notified by the pharmacy that the respondent's insurance carrier has stopped paying for the petitioner's prescribed neuro[n]tin.
Upon telephone calls made to respondent's insurance carrier, RSK Company Claims, our office and the pharmacy has been told . . . that [petitioner's] case is a closed case. . . .
On behalf of the petitioner, I respectfully request that the court order the respondent to provide this petitioner with medical care as recommended by Dr. Silverman. Further, that the court order the respondent to continue to pay for petitioner's prescribed neuro[n]tin.
Respondent's answer to petitioner's April 26, 2005 motion for medical and temporary disability benefits was dated May 10, 2005. It stated:
Petitioner received an Order Approving Settlement for 20% ppt on January 13, 2004. Disability has been fixed. The order does not indicate any continuing obligation on behalf of respondent for treatment/ medication.
The next document in the record was an "application for review or modification of formal award" dated May 10, 2005. Respondent's answer, dated May 31, 2005 asserted:
Petitioner's permanent disability has not increased since the date judgment was entered. Respondent denies causal relationship between the disability alleged in the Application for Review or Modification of Formal Award and the prior accident/exposure.
Any medical treatment received by petitioner since the date judgment was entered was unauthorized and not chargeable to the respondent.
On June 21, 2005, the same Judge of Compensation who had, on January 13, 2004, found petitioner's twenty percent permanent partial disability, entered an order requiring respondent's carrier "to continue prescription medications by Dr. Silverman until further order of court."
On July 8, 2005, petitioner's attorney wrote to that judge requesting a "three-cycle" adjournment of the pending motion for medical and temporary disability benefits. Counsel noted:
I believe that the respondent is providing [the] subject medications [ordered on June 21, 2005].
However, there still remain issues as to the petitioner's need for other related medical care. Further, respondent's attorney, I believe, is ordering a[n] independent medical exam to confirm the need for further medical care. (Pa 41)
On December 6, 2005, a succeeding judge entered an order requiring respondent to pay the outstanding bills of Dr. Robert Silverman, . . . which, as of 8/31/05, were $500. Further pursuant to Dr. Charles'[*fn2 ] reports dated 9/14/05 and 11/16/05, respondent will continue to authorize neurontin and/or any other pain medication prescribed by Dr. Silverman and/or any other authorized pain management doctor.
That succeeding judge handled all subsequent proceedings, including the final decision from which this appeal has been taken. The December 6, 2005 order, under the form-heading "permanent disability" contains an entry "None at this time."
The record on appeal contains no further documents until a June 6, 2008 order dismissing the matter "for lack of prosecution." A March 27, 2009 order, on petitioner's motion, vacates the dismissal order, re-instates the claim petition, and provides that "the matter be listed for pretrial."
The pre-trial memorandum bears a March 27, 2009 date. It lists three physicians as witnesses, Drs. Wong, Maio, and Effron.
On May 29, 2009, petitioner moved again for "temporary and/or medical benefits." Counsel's certification in support of the motion notes another examination of petitioner by Dr. Silverman on May 1, 2009, and attaches two reports from that physician. The certification states: "The respondent has clearly denied petitioner's claim [for] further authorized medical care."
The attached documents from Dr. Silverman are a "follow-up note" dated May 1, 2009, and a "To Whom It May Concern" letter dated May 6, 2009. The "follow-up note" recites:
[W]e have not seen [petitioner] for over a year. He suffers from chronic ilioinguinal neuropathy status post surgery. . . .
[T]his is a chronic condition that will not end by any means that I am aware of so he definitely will need to have continued pain management. I would say at least every 8 to 12 months . . . . [J]ust because he has not been here in a while does not mean he does not need continued care. He continues to use Ultracet. Complaining of some back pain now as well due to the pain he has in the groin. . . . I think [PT, chiropractor, acupuncture] are all worthwhile and I would like to get authorization to do that so we will see if we can.
The May 6 letter briefly summarizes the primary conclusions of the "follow-up note".
The answering statement to petitioner's May 29, 2009 motion contends "that petitioner is entitled to no temporary disability benefits" and recites:
Reopener claim filed in May 2005. Petitioner had re-examinations by Sall/Myers Medical Associates in July 2007 showing minimal increases (10%). Respondent had re-exam with Dr. Effron on December 20, 2006 showing no increase [sic] disability (copy of doctor's report attached).*fn3 The reopener claim petition was dismissed on June 6, 2008 . . . . and . . . restored on March 27, 2009, the same date as it was pre-tried.
Based on the foregoing, respondent contends that petitioner should not benefit from this procedural delay of this case. Furthermore, from a medical standpoint, the report attached by Dr. Silverman merely allude[s] to palliative treatment for which respondent is not liable to provide same.
On July 1, 2009, and September 11, 2009, counsel for petitioner sought and received one-cycle adjournments, for personal reasons and a scheduling conflict, respectively.
In a motion to dismiss for lack of prosecution dated September 15, 2009, respondent gave, as the "factual and legal basis for the relief requested" that the "case marked 'not moved' by the [judge] at [a proceeding] on 9/11/09." The record on appeal does not disclose a formal disposition of the September 15, 2009 motion to dismiss. The first day of trial on
what the parties stipulated was a "reopener claim" was January 15, 2010. At the outset, the judge marked the pre-trial memorandum in evidence, and a colloquy ensued between the judge and counsel for petitioner:
THE JUDGE: Is this going to be on reports or are we calling the doctors?
[COUNSEL]: I'm still trying to get the treating physician to come to court, your honor.
THE JUDGE: Well, [counsel], with all due respect, the treating physician isn't even listed on here and this case is very old and I'm not going to be willing to wait anymore. He's not even listed as a potential witness. You have Dr. Wong, Dr. Maio and Dr. Effron. Discovery is over. We're going to proceed based upon what's in front of me today.
Counsel then insisted that the matter proceed with live testimony from the doctors. The remainder of this first session was consumed by testimony from petitioner.
On February 2, 2010, in a letter to the judge, counsel for petitioner stated that the "matter is listed before your honor on February 5, 2010 as a partial trial. Please find my notice [of] motion for reconsideration." The notice of motion, dated January 28, 2010, recites, as the relief sought: "To obtain an order to allow testimony of petitioner's treating physician[,] Dr. Robert Silverman." Counsel's certification in support of the motion laid out the procedural history of the case, concluding:
On or about January 15, 2010, this matter was scheduled for trial, at which time the petitioner did testify . . . . Prior to the petitioner's testimony, I did inform [the] judge  that the doctors will need to testify. I did inform [the] judge  that I was still trying to arrange for petitioner's treating physician (Dr. Silverman) to testify before the court. On January 15, 2010, [the] judge  informed me that since this is a very old case, she was not going to wait for any further witnesses and that she was only going to allow the testimony of Dr. Wong, Dr. Maio, and Dr. Effron.
 Prior to January 15, 2010, I, on two occasions, wrote to Dr. Silverman to request his availability for testimony. By January 15, 2010, Dr. Silverman had not responded to my letters. Since January 15, 2010, I have spoken to Dr. Silverman's office. Dr. Silverman has now informed me that he is willing and able to testify on behalf of [petitioner].
 I am respectfully requesting that [the] judge  reconsider her decision and allow Dr. Silverman to testify on behalf of petitioner.
The motion for reconsideration was heard on February 5, 2010. The following colloquy ensued:
THE JUDGE: I told you the last time that we were here that Dr. Silverman was not on the pretrial memorandum . . . . signed [on March 27, 2009]. . . .
So we're nearly a year out and now you want to mention bringing in the doctor. Why should I allow you to do that?
[COUNSEL FOR PETITIONER]: Your honor, after the pre-trial memorandum[,] the issue of Dr. Silverman's treatment arose again. Previously to 2009, it was my belief that respondent was authorizing treatment by Dr. Silverman.
THE JUDGE: When did the issue of Dr. Silverman's treatment arise after we signed the pre-trial memorandum?
[COUNSEL]: I actually filed a motion for Dr. Silverman's treatment after the pre-trial memorandum.
THE JUDGE: . . . . We didn't proceed with the motion. . . .
So it's deemed abandoned. You also in your certification mention that there was an order from [the judge formerly handling the matter] that treatment with Dr. Silverman was to continue until further order of the court, and you claim that it stopped without an order of the court, correct?
[COUNSEL]: That's correct, your honor. THE JUDGE: But you never filed a motion . . . to enforce . . . , did you?
[COUNSEL]: I did file a motion for Dr. Silverman's treatment.
THE JUDGE: But you didn't file a motion to enforce [the] judge['s] order, correct?
[COUNSEL]: That's correct your honor. THE JUDGE: . . . . And you signed the pre-trial order at the time and so you're saying at the time you signed the pre-trial order you assumed that Dr. Silverman was still treating him?
[COUNSEL]: That's correct, your honor.
THE JUDGE: . . . . When did you become aware that Dr. Silverman wasn't treating him any longer, at what point?
[COUNSEL]: Well, I'm still not quite - - I spoke to Dr. Silverman's office and they said they still have not received anything from the insurance carrier deauthorizing the treatment. I believe that they're not authorizing the treatment. The exact date, I don't know the exact date. I didn't think it was in issue when I signed the pre-trial memorandum. I could say that.
THE JUDGE: . . . . But the fact remains, I want to know when you discovered it was an issue.
[COUNSEL]: After I signed the pre-trial order.
THE JUDGE: I want to know specifically when.
[COUNSEL]: Well, when I got it . . . sometime on or about May 6, 2009 I received a letter from -- no, before that, before May 6, because that's when I spoke to [petitioner] and he told me that Dr. Silverman was saying that the carrier then was not authorizing the treatment. .
A little bit before May and then I asked [petitioner] to get me a report and I received this letter from Dr. Silverman dated May 6, 2009 saying again that [petitioner] is going to need -- he has a chronic condition and will need care for the rest of his life.
THE JUDGE: So late April, early May you knew it was going to be an issue?
[COUNSEL]: That's correct.
THE JUDGE: Did you ever move to amend the pre-trial memorandum?
[COUNSEL]: No, I did not.
THE JUDGE: So you come on the day of the trial and you say you want to call the doctor. It's too late. You started the trial. You had ample notice and ample opportunity to amend your pre-trial to call the doctor. You have -- who is the other doctor listed on the pre-trial memorandum?
[COUNSEL]: I have two doctors listed, . . . [Dr. Maio] and Dr. Wong .
THE JUDGE: You can call them. At this point, you had ample opportunity to amend your pretrial order well before we started the trial. For whatever reason, you didn't do it.
I'm not going to delay the trial any further. This is an old case. We're going to move forward. You have two doctors that can come in and testify and that's my decision. I'm denying your motion for reconsideration. . . .
Please schedule it so we could move it and keep going.
Thereafter, the testimony of the three physicians named in the pre-trial order was heard in three separate trial sessions in the spring and summer of 2010.
On April 30, Dr. Cheryl Wong was qualified as a board-certified psychiatrist. The court ruled that reports from Dr. Silverman and Dr. Charles could not be received through Dr. Wong, as they were not referenced in her report dated July 26, 2007. Dr. Wong testified that petitioner was neurologically disabled to the extent of forty-five percent and psychiatrically disabled to the extent of thirty-five percent; that each of these levels of disability represented a ten percent increase over the former evaluation in 2000, which she had reviewed; that petitioner's condition was chronic and permanent; and that "[h]e will need ongoing pain management . . . . for the rest of his life on and off[.]" She also testified on cross-examination that petitioner "can do what he could do [in 2000], but now he does it with increased pain."
Dr. Theodora Maio testified on June 11, 2010. The judge declined to qualify her as an expert in orthopedic medicine, but recognized her expertise as a general surgeon. Dr. Maio evaluated petitioner's orthopedic disabilities at "forty-five percent of partial total[,]" and, from her review of prior reports, opined that this represented an "increase in orthopedic disability" over year 2000.
The testimony of Dr. Charles R. Effron was proffered by respondent on July 2, 2010. He was qualified as a board-certified neurologist, and testified on the basis of his December 26, 2006 report and a previous examination of petitioner on October 4, 2002. Dr. Effron related that petitioner had "denied any worsening of his complaints since his prior award . . . . [H]e said . . . he's unsure whether the complaints were less or just he made an adjustment to them, therefore, I found no increase in his disability." He also testified: "If anything, he's taking less medication now than he took in the past. There's no worsening in any way subjectively or objectively." He acknowledged that petitioner's condition was chronic and permanent, that there was no cure, and that the medication petitioner took provided symptomatic relief only. At the close of Dr. Effron's testimony, the judge reserved decision in the matter.
During his own testimony on January 15, 2010, petitioner stated that he is always in pain and that his pain has "increased as [he has] become more active." He stated that activity was "a trigger to pain[;]" that the pain medication prescribed by Dr. Silverman provides some relief "as an instant gratification," but not without side effects such as lethargy and a "dazed mood"; that he does not want to become "addicted to pain killers"; and that he attempts to "get by on the most minimum amount [he] can survive on." Petitioner also testified that he had not seen Dr. Silverman since May 2009 because there was no longer any workers' compensation insurance coverage for those visits. Toward the end of petitioner's testimony, his attorney and the judge engaged in a colloquy:
THE JUDGE: For the record, there was no motion seeking to enforce [the prior] order [in which respondent was required to continue paying for Dr. Silverman's pain management services and medications prescribed by him] or stating that that order wasn't being abided by.
[COUNSEL]: Your honor, if I may, [that] . . . order says, "Until further order of the court."
THE JUDGE: I know, and when it was discontinued did you file a motion?
[COUNSEL] I filed about three or four motions for med. and temp.
THE JUDGE: It appears that the med. and temp. motion was abandoned in '09. It was never prosecuted.
The judge concluded the session with some questions addressed to petitioner relating to the symptoms he experiences, his lifestyle, and his testimony at the 2004 proceeding that resulted in the initial award engendered by the nature of his condition.
In her July 29, 2010 opinion articulating the reasons for the order dismissing petitioner's instant application for "failure to sustain the burden of proof", the judge posited that "the burden is on the petitioner to establish, by a preponderance of the evidence[,] that his disability has increased." She recited, with citations to authority, the principle that, in order to establish a change in disability, "comparison" with the physical condition upon which the initial award was predicated "is a sine qua non."
Petitioner must prove 1) either a lessening to a material degree of working ability, or if not, whether there has been a disability in the broader sense of impairment in carrying on the ordinary pursuits of life AND 2) demonstrable objective evidence of a functional restriction of the body, its members or organs. Perez v. Pantasote, 95 N.J. 105, [116-18] (1984).
The judge then set out a portion of petitioner's testimony that "[his] condition [was] the same . . . . of chronic pain[,]" and that the initial award had been premised upon the "chronic pain." (p. 6) She posited the principle that "'an employer is not required to compensate an employee for pain.' Peterson v. Hermann Forwarding Co., 267 N.J. Super. 493, 504 (App. Div. 1993)."
The judge found, therefore, that petitioner has failed to meet the first prong of Perez[,] and based upon that alone has failed to sustain his burden of proof. However, in the interest of completeness, the petitioner has also failed to prove an increase in demonstrable objective medical evidence of a functional restriction of the body, its members or organs.
Explaining the latter finding, the judge reviewed the testimony of the three testifying physicians. Drs. Maio and Wong had each opined that petitioner's respective disabilities had increased by ten percent. The judge discounted these evaluations because they were based on "range of motion tests" which are subjective evidence and do not, standing alone, satisfy the statutory requirement of demonstrable objective medical evidence.
Colon v. Coordinated Transp., Inc., 141 N.J. 1 (1995). Moreover, in the court's experience[,] an increase of 10% is de minimis and is not sufficient to warrant an increase in a disability award.
She also noted Dr. Effron's testimony "that petitioner had neuropathic symptoms in the distribution of either the left ilioinguinal or genitofemoral nerve distribution" and his opinion "that it is simply not possible to distinguish which nerve is involved." The judge gave greater weight to Dr. Effron's opinion "because [he] is a board certified neurologist with special training and extensive experience in this area."
The judge concluded:
As stated previously, in the court's experience[,] a 10% increase on a re-opener is really de minimis and not sufficient to warrant an increase in disability award.
In summary, petitioner described complaints similar to what he described in 2004 and there really has been no change in his condition based upon what he is describing and based upon what the doctors have found on physical examination. Petitioner is taking less medication than he took in 2004. He is working full-time and engaging in recreational and social activities. Dr. Wong, petitioner's own evaluating doctor, opined that petitioner has a chronic condition and can work at any job without restriction and "can do probably what he could do when he saw Dr. Johnson, but now he does it with increased pain." . . . . But since pain is subjective and given the court's decision in Colon, supra, increased pain is insufficient to support an increase in permanent partial disability.
Petitioner's application for review and modification is dismissed for failure to sustain the burden of proof.
Because of a procedural flaw that resulted in an unduly attenuated record, as well as some instances of substantive error in the premises of the decision, we reverse and remand for further proceedings.
The procedural flaw was the failure to allow the testimony of petitioner's treating physician, Dr. Silverman. We discern no error in the judge's views expressed in the January 15 and February 5, 2010 proceedings regarding the failure of petitioner's attorney to give proper attention to the need for Dr. Silverman's testimony and to protect the record in that regard. Nevertheless, the ultimate reason for denying the opportunity was, in the face of entirely predictable subsequent events, inadequate as a basis for excluding the testimony of the treating physician. In making her ruling, the judge said: "I'm not going to delay the trial any further. This is an old case. We're going to move forward. You have two doctors that can come in and testify[.]"
The judge's evaluation of the case as entirely too old was unexceptional as was her attribution of responsibility for that state of affairs to petitioner's attorney. Yet, the testimonial portion of the case did not conclude for another five months. Given the greater weight normally accorded the testimony of a treating physician over that of doctors who simply evaluate a condition based upon reports or an examination or two, see Bialko v. H. Baker Milk Co., 38 N.J. Super. 169, 171 (App. Div. 1955) ("[W]here the medical testimony is in conflict, greater weight should be accorded to the testimony of the treating physician."), certif. denied, 20 N.J. 535 (1956); accord Bird v. Somerset Hills Country Club, 309 N.J. Super. 517, 522-23 (App. Div.) ("[A] treating physician is often in a better position to express opinions as the cause and effect than an expert who merely is examining the patient in order to give expert testimony."), certif. denied, 154 N.J. 609 (1998), the judge should have permitted Dr. Silverman to testify, requiring that he be produced within the five-month time period that passed before the testimony of the physicians named in the pre-trial order was completed. To the extent any of counsel's errors or omissions caused discernible cost impact on respondent, a remunerative sanction could have been imposed.
In addition to undervaluing the importance of the treating physician's testimony in this case, the judge's statement that "an employer is not required to compensate an employee for pain" was a misapplication of Peterson, supra, 267 N.J. Super. at 504, which she cited as authority for the proposition. In Peterson, the employee, a tractor-trailer driver, had suffered a work-connected injury in October 1982. Id. at 496. When he attempted to return to work a month later, he discovered the employer had ceased operations. Id. at 497. After a period of unemployment, petitioner found other opportunities in his field and, from 1983 to 1984, he worked for a series of other employers, experiencing increasing pain as he discharged his duties, to the point where he could work no longer. Id. at 497-98.
He filed his workers' compensation claim in 1984, id. at 495; and his motion to join the Second Injury Fund was granted in 1987, id. at 496. In the meantime, the initial employer had filed an answer to the claim, admitting the accident. Id. at 495-96. In 1992, the judge of compensation found petitioner to be one hundred percent permanently and totally disabled, assigning seventy-two-and-one-half percent of the total disability against the last employer, and twenty-seven-and-one- half percent against the Second Injury Fund. Id. at 496. The last employer appealed.
We reversed in part, holding that the portion of the award entered against the last employer should, instead, have been entered against the first employer. Id. at 510. We held that, "when viewed in the context of the 1982 accident, petitioner's subsequent work history, and the natural progression of his injuries[,]" the judge had been mistaken in finding "that conditions characteristic to the occupation of petitioner at the subsequent employers contributed to a material degree to petitioner's disability." Id. at 504. In explaining this view we summarized petitioner's work history since the accident, and said:
Clearly, because of his pre-existing conditions, petitioner's work activities at the subsequent employment caused him to suffer greater pain than he would have experienced had he remained sedentary. However, an employer is not required to compensate an employee for pain. There must be proof of a work related injury or condition resulting in permanent disability. See N.J.S.A. 34:15-36. All of these subsequent jobs required physical activity, including lifting, loading and unloading of trucks. The work, however, did not appear to be any more strenuous than petitioner, or others in his occupation, would otherwise routinely encounter as a truck driver. Nor should the work have caused injury resulting in permanent disability, despite the fact that petitioner suffered pain while engaged in such activities. [Id. at 504-05.]
Here, the judge erred in using, out of its context, the single thought that "an employer is not required to compensate an employee for pain," as a basis for denying this petitioner's application. The larger principle of Peterson is that, to the extent a petitioner experiences continuing pain as a result of his work-connected injury, the employer for whom he worked at the time of the injury remains responsible. See id. at 507, 509; Kozinsky v. Edison Products Co., 222 N.J. Super. 530 (App. Div. 1988); see also Singletary v. Wawa, 406 N.J. Super. 558 (App. Div. 2009). In Peterson, we held only that pain alone is an insufficient basis for entering an award against a subsequent employer where no work-connected injury occurred while the petitioner was working for that employer. Peterson, supra, 267 N.J. Super. at 509.
We also question the judge's reliance on Colon, supra, 141 N.J. 1, in the factual context presented here. This petitioner's claim is not based on a soft-tissue injury with resulting pain. He experienced a work-connected hernia and then suffered from the after-effects of the surgery to repair the injury, in which the ilioinguinal nerve was damaged. It is of little consequence in the scheme of things in workers' compensation whether or not that result was a recognized risk of the surgical procedure sufficient to preclude a medical malpractice claim. The fact remains that petitioner continues to suffer from a permanent condition directly attributable to a work-connected injury. Although he may be considered fortunate to have suffered "only" a partial disability from that permanent condition, he is certainly entitled to greater protection than having the pain aftermath of the permanent injury minimized by the employer's discontinuation of the medical services and medicinal therapies designed to treat the permanent condition, see N.J.S.A. 34:15-15 ("The employer shall furnish to the injured worker such medical, surgical and other treatment . . . as shall be necessary to cure and relieve the worker of the effects of the injury[.]"); see also Squeo v. Comfort Control Corp., 99 N.J. 588, 606 (1985); Howard v. Harwood's Restaurant Co., 25 N.J. 72 (1957); Hanrahan v. Township of Sparta, 284 N.J. Super. 327, 336 (App. Div. 1995) ("[E]ven in non-total disability cases N.J.S.A. 34:15-15 provides for continued treatment, whether or not labeled as 'palliative', as long as there is a showing by competent medical testimony that the treatment is reasonably necessary to cure or relieve the effects of the injury."), certif. denied, 143 N.J. 326 (1996); Sa v. H. L. Harrison & Son, Inc., 38 N.J. 203, 209-10 (1962); Fierro v. Public Service Coordinated Transport, 44 N.J. Super 73 (1957), and the judge's use of entirely too general rules such as those emanating from Colon to deny petitioner the opportunity to establish a worsening of the condition.
Respondent is liable for complications attributable to the treatment for the work-connected injury, as well as the effects of the injury itself. See Rivelli v. MH & W Corp., 383 N.J. Super. 69, 73-74 (App. Div. 2006).
A reversal is required because the judge misapplied some legal standards bearing upon this case and because of her discretionary lapse in not making appropriate provision to receive the testimony of the treating physician within the time otherwise available to conclude the trial of the matter. To the extent there is a genuine issue regarding the "causal relationship between the disability . . . and the prior accident/exposure," as asserted by respondent in its May 31, 2005 answer to petitioner's May 10, 2005 "application for review or modification of formal award," as well as a dispute over whether, in fact, there has been an increase in the previously determined quantum of disability, plenary consideration and determination of the causal relationship and the disability increase must occur, especially in the light of the first judge's requirement, in his order of June 21, 2005, that respondent continue to pay the cost of medication, and a subsequent order by the current judge on December 6, 2005, requiring respondent to pay medical bills. Both of these orders implicitly recognized, at least as a facial matter, the existence of a causal relationship.
We reverse the dismissal of petitioner's application for review and modification and remand for further proceedings.