BEFORE: 

Honorable Robert F. Butler
Judge of Compensation

April 12, 2002

The subject matter of this appeal is my decision to return to the petitioner a motion which sought an order directing the respondent insurance carrier to provide medical treatment because the content of the motion failed to conform to the rules of the Division of Workers’ Compensation.

Since there was no hearing conducted in this matter the facts presented to me for my consideration were limited to those contained in the initial pleadings and in the petitioner’s moving papers.

The claim petition filed on behalf of the petitioner with the workers compensation division on August 30, 2001 alleged that she was involved in a compensable accident on February 1, 2001.  She also alleged that she hurt her right shoulder as a result of this accident.  In its answer, the employer admitted that the accident was work related.  It also stated that the respondent had provided medical treatment to the petitioner and had paid her $7,848.96 in temporary disability benefits.

On April 11, 2002, the workers compensation division received a motion for medical benefits.  In his affidavit, counsel for the petitioner alleges that the nature of the medical treatment he was seeking was based upon the content of January 24, 2002 medical report authored by Dr. Daniel Kaufman.  That recommendation was to “try to get her to a shoulder specialist in Philadelphia probably one of Rothman’s group.”

After reviewing the entirety of the petitioner’s motion it was returned to the petitioner because it failed to comply with the requirements of Rule 12:235-5.2(b)2.

The following are the reasons for that decision;

There is a long standing policy and procedure established by the division of Workers Compensation that requires a judge of compensation to review each motion for temporary and/or medical benefits filed with the division.  The purpose of that review is to determine whether its content complies with the requirements of the above cited rule.  Should there be compliance with that rule, the judge is to direct that it be listed with priority within 30 days of its filing.  In the event that the motion fails to comply with the rule, the judge is to immediately return the motion with an explanation as to its non-compliance.  In this case the motion was returned by mail on April 12, 2002.

The Workers Compensation Act requires the employer or its workers compensation insurance carrier to provide to an injured worker any and all medical treatment that may be necessary to cure him of his injuries.  As a concomitant, the employer has the statutory right to designate the physician who shall provide treatment to the petitioner.  N.J.S.A. 34:15-15.

In most cases, motions seeking medical treatment like this one are generated for one of two reasons.  Either the respondent has refused to provide any medical treatment such as when it denies the occurrence of a compensable accident or has alleged that it was inadequate.

In this case the petitioner acknowledges in its pleadings that the respondent did provide extensive medical treatment to her.  On May 30, 2001 she underwent a surgical procedure by Dr. Fred McAlpin, an orthopedic surgeon authorized by the respondent.  Following surgery the petitioner underwent considerable physical therapy, administration of injections, and anti-inflammatory relief, all of which were provided by the respondent.  Because of the petitioners continuing symptoms, Dr. McAlpin suggested that the petitioner obtain a second or independent medical opinion regarding her condition since he felt that no additional medical treatment would be helpful.  He also suggested a functional capacity evaluation to determine her work status.  These too were provided by the respondent.

The second opinion or evaluation was performed by Dr. Mark Levitsky, a board certified orthopedic surgeon.  After his evaluation, Dr. Levitsky recommended that the petitioner’s  shoulder undergo manual manipulation under anesthesia in the hope of improving the range of motion.  This procedure was authorized by the respondent and occurred on October 16^th, 2001.  Thereafter she once again underwent physical therapy and subsequently an MRI study of her shoulder.  Dr. Levitsky reviewed the MRI study and then apparently indicated that the petitioner’s condition had reached the maximum medical improvement and that no further medical treatment could improve her condition.  Dr. Levitsky’s medical treatment, the physical therapy, and the MRI were provided and paid for by the respondent.

The petitioner’s motion was returned because it did not contain a medical report stating the “specific type of treatment being sought” as required by section (b) 2 of the cited rule.  That section of the rule contemplates a statement by the same physician from whom the petitioner is seeking the medical treatment.  Only by the proposed physician’s precise description of the type of treatment he opines to be necessary, such as physical therapy, surgery, or obtaining diagnostic studies can a prima facie basis for relief be presented to the court.

Additionally, in order for a doctor’s suggested course of treatment to be able to serve as a basis for seeking relief in a motion of this type, Section 15 specifically requires that the treatment be both “necessary” and “curative.”  Nowhere contained in the report of Dr. Kaufman is there even a suggestion that a visit to a “shoulder specialist in Philadelphia” is medically necessary or curative in nature.  Rather he intimates it to be something to “try”.

I also find relevant to my decision in this case that both doctors who treated the petitioner were orthopedic surgeons and both were of the opinion that there was no further medical treatment which would benefit the petitioner.  Although Dr. Levitsky attempted to improve her condition by manipulation after Dr. McAlpin saw no chance for improvement, Dr. Levitsky implies that following the completion of his treatment, the petitioner’s condition was no better than before.  He too opined that her condition was plateaued.

The doctor upon whom the petitioner now relies is not an orthopedic surgeon.  A salient statement was made by Dr. Kaufman in his January 24, 2002 office note.  He states; “I am obviously the wrong one to make any kind of evaluation here.”  As such his recommendation merely constitutes a request for another opinion from an orthopedic surgeon besides doctors McAlpin and Levitsky – a third opinion, if you will.  Such a request cannot serve as a basis for a motion for medical treatment.  It is precisely this type of opinion that this section of the rule was designed to eliminate.

This court notes that the return of the motion to petitioner’s counsel certainly does not preclude him from obtaining on his own an opinion from a qualified physician regarding medical treatment that he deems necessary and that he is willing to administer.  If that is accomplished the requirements of the rule will be satisfied and that motion will be listed for hearing.

Even if this court would have decided the issue to the contrary, had listed and tried the motion to a conclusion and found in favor of the petitioner, it would have been unable to order the respondent to authorize and pay for an orthopedic evaluation by the Rothman Institute in Philadelphia.  I am aware of no statutory provision of the Workers Compensation Act or any case law interpreting it, that empowers this tribunal to direct an employer to provided medical treatment by a medical provider located outside the state of New Jersey when the petitioner is the resident of this state.

For the reasons stated above and pursuant to Rule 12:235-5.2(b)2, the petitioner’s motion has been returned.

Hon. Robert F. Butler

Judge of Compensation