May 30, 2001

re: Cable v. Woodbridge Sanitation - C.P. 89-008958

Counsel:

The petitioner was injured in a lifting incident during September 1988 while employed by respondent. He subsequently underwent three separate surgical procedures to remedy a disc herniation at level L4-5. The last of such procedures included the placement of hardware in his low back.

During January 1997, a consent order was issued finding the petitioner totally disabled and providing lifetime disability benefits. It is to be noted that petitioner suffers from hemophilia which reduces treatment options. During May 1998 petitioner filed a motion to require the respondent to (i) reimburse him for certain medical expenses, including treatment fees due Dr. Long, and (ii) to authorize continued treatment with Dr. Long.

At the commencement of the hearing in this matter the various bills and claims presented by the motion were reviewed with counsel and it was determined that the only item or claim that had not been resolved between the parties was the continuation of "injection" treatments by Dr. Long. The latter has been treating the petitioner for several years following his surgeries. The treatment, which was initially applied on a weekly basis, consists of a series of "trigger point" injections. The petitioner testified that the injections relieve a portion of his chronic pain and permit him to live a relatively normal life, though without any significant physical activity, for 4-5 days after receiving the injections. He further stated that by the sixth or seventh day next following the treatment he is "miserable" and ready for another series of injections. Petitioner also testified that when the injections were applied on a bi-weekly basis, with an alternative form of pain relief received during the intervening week(s), his pain level was not reduced as effectively as when he received the injections on a weekly basis. Respondent, represented by its carrier New Jersey Manufacturers Ins. Co., seeks to terminate the trigger point program. It bases its position on the medical opinion of its examining physician, Dr. Lipsey, M.D., who finds the petitioner to be in excellent health judging by his physical appearance, believes that the petitioner is guilty of "symptom magnification" and finds no loss of function or muscle atrophy in any other part of the petitioner's body.

I should note at this point that in addition to the trigger point injections the petitioner takes MS Continent (morphine) at a rate of 15 mg. three times a day (the dose is doubled when the period between injections is extended to 14 days); he also takes Welbutrin (100 gm) twice a day. He has taken the morphine pill for several years; no doubt a morphine pump would have been tried were the petitioner not a hemophiliac. Petitioner described his back pain as "unbearable" when he is taking neither injections nor the morphine pills.

The medical testimony offered by Drs. Lipsey and Long, respectively, turns essentially on

the degree of credibility to be given the testimony of the petitioner. If you accept the fact that he suffers from a chronic pain disorder from which he received little if any positive relief prior to treating with Dr. Long, then the success that Dr. Long has had in administering trigger point injections should be both applauded and continued. On the other hand, if the petitioner is feigning his pain level and the degree of disability linked thereto, a change in treatment regimen would be appropriate.

Dr. Lipsey is a physician who is certified as an orthopedic surgeon. In his view while the trigger point injections were appropriate for an initial period of time, they should be now be terminated. Dr. Lipsey argues that an individual who presents himself in such a good overall picture of health, particularly as relates to muscle tone and lack or muscle atrophy, must be closely examined to determine whether they are voluntarily restraining themselves from making a positive or full effort to respond to directions from the examiner regarding range of motion, etc. Dr. Lipsey did not offer any alternative treatment program for petitioner beyond the instruction that the latter be removed in appropriate order from the use of narcotic medication.

Dr. Long is the treating physician in the case at hand. He is certified in anesthesia and in pain management. In his view the petitioner suffers from a chronic pain syndrome which he has treated by trigger point injections and additional oral medication. The injections, which are given in a group of 20 to 25, are placed/administered into various areas of petitioner's back with the intention of placing local anesthetic into the body and increasing blood flow.

In so doing they provide relief to pain and existing discomfort. Dr. Long views the pain that petitioner suffers as not "unusual" in somebody who has had several operations and has had metal instrumentation inserted in his back. Dr. Long also opined to the effect that were the petitioner not a hemophiliac he could have achieved a faster resolution of his pain syndrome through the use of epidural injections. Further, while Dr. Long administered the trigger point injections on a weekly basis at the commencement of his treatment of petitioner, he stated that as of May 2000 he had reduced the injections to every three weeks, with the use of pills in the intervening period(s). He also testified that he was not using any narcotic in the injection application(s).

It is clear, both from the perspective of the treating physician and the petitioner that Dr. Long's program has given a measure or relief to the petitioner's pain and that neither Dr. Long nor the respondent's expert, Dr. Lipsey, have any alternative pain treatment program which would offer equal results in pain relief to the petitioner. Petitioner's right to treatment in this matter is founded in the language of N.J.S.A. 15:34-15 which provides that the "employer shall furnish to the 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". The extent of an employer's treatment and financial obligation under this provision has been reviewed on numerous occasions by our appellate courts. I have selected three of these decisions to both explain and support my decision in the case at hand.

In Howard v. Harwood's Restaurant Co., 25 N.J. 72, 88 (1957) the Supreme Court clearly accepted the fact that Section 15 required the employer to provide continuing medical treatment notwithstanding the fact that the employee's work related injury was incurable.

In addition the Court quoted its own language from Gargiulo v. Gargiulo, 13 N.J. 8, 13 1953) to the effect that the Compensation Statute is to be liberally construed to reduce the adverse consequences of personal injury arising from one's employment, to provide a measure of financial security for the injured worker and to place the economic burden thereof on industry.

The appellate courts further interpreted the scope of the employer's duty under Section 15 with their decisions in Hanrahan v. Township of Sparta, 284 N.J. Super. 327 (App. Div. 1995) and Squeo v. Comfort Contr. Corp., 99 N.J. 588 (1985). In Hanrahan the Appellate Division ruled that even in non-total disability cases continuing medical treatment was to be provided under Section 15, whether or not labeled as palliative, so long as there was a showing that by competent medical testimony that the treatment was reasonably necessary to cure or relieve the effects of the injury. Thus, the fact that the treatment will not "cure" the injured worker does not provide a basis to terminate existing treatment; rather, the treatment will be required so long as competent medical testimony supports its administration on the grounds that it reduces pain and will permit the injured worker to "function better" ,i.e. improve his range of motion, etc. p.335.

In Squeo, supra., the Supreme Court required the former employer of an employee, who was a wheelchair-bound quadriplegic as a result of a work related accident, to provide an addition to the existing home of the injured employee's parents in order that the injured party might live his life with a measure of independence. In that case the petitioner had attempted suicide three (3) times due to depression which the court found to be directly related to his post-accident condition. I note that notwithstanding what might be termed a "liberal" interpretation of Section 15, the opinions in both Harwood and Squeo, supra., examined and passed upon the cost involved in providing the care or "other treatment" under review, and indicated that reasonableness in cost was a factor to be considered by the courts in passing upon the appropriateness of medical care under Section 15.

In the case at hand we have the testimony of the petitioner and his treating physician as to the benefits and necessity of continuing the trigger point injection program. It is my opinion that the increased range of movement, as well as relief from what the petitioner describes as "unbearable" pain, support the need for a continuation of the trigger point injection program. Further, Dr. Lipsey, respondent's medical expert, failed to offer any alternative method of treating the petitioner, while Dr. Long testified to the pain-care history of the petitioner and noted the latter's visits to Emergency Room service by clinics and hospitals seeking relief from his chronic pain.

On the basis of the record before me, I find that the trigger point injection program which has been administered by Dr. Long to the petitioner for several years should be continued, with a specific limitation of not less than 14 days between treatments. Dr. Long shall have the authority to determine the interval(s) between visits, subject to the aforesaid limitation on the frequency thereof. Dr. Long shall also be authorized to prescribe oral medication for use by the petitioner between his trigger point treatments. I further direct that such treatment program shall continue until January 2003 unless it has been sooner terminated by the action of the court or with the written consent of the petitioner.

Lastly I urge the parties to determine the fee that Dr. Long shall receive both for past services that he has rendered to the petitioner, as well as the fee he is to be paid for administering trigger point injections commencing June 1, 2001. In the event that the parties have not resolved these fee matters by June 30 2001, I direct that they meet with me to resolve the same.

Petitioner's counsel shall prepare and submit a 5 day order embodying my findings on the motion before me as set forth above.

Neale F. Hooley
Judge of Compensation