BEFORE:

HONORABLE SHELLEY B. LASHMAN
Judge of Compensation

APPEARANCES:
MCALLISTER, HYBERG & WHITE, ESQS.
By: JOSEPH A. WHITE, ESQ.
Attorney for the Petitioner

PARKER, MCCAY & CRISCUOLO, ESQS.
By: CARL GREGORIO, ESQ.
Attorney for the Respondent

ISSUE

The issue for determination is the petitioner's entitlement to additional medical care which is palliative rather than curative.

PROCEDURAL HISTORY

This matter comes before the court on petitioner's Notice of Motion for medical and temporary disability benefits. Petitioner seeks an Order compelling respondent to provide continuing medical care, and temporary disability benefits if necessitated by further treatment.

Petitioner had previously been awarded 27½% partial total disability for the orthopedic and neurologic residuals of a herniated disc at C5-6, status post anterior cervical microdiskectomy and interbody fusion at C5-6 by Dr. Strenger. The award was handed down by the Honorable Francis Munyon on July 11, 1997, and the disability was found to be related to an admittedly compensable accident sustained by petitioner in the course of his employment with respondent on September 5, 1995. An Application For Review or Modification of that prior formal award was filed February 5, 1999. Subsequent to the reopening of this case, petitioner was furnished with authorized medical care up until November 30, 1999, the date the petitioner was seen by Dr. Bruce Wulfsberg for an independent examination by respondent. Based on that evaluation, authorization for further treatment was denied by respondent, through its Workers' Compensation Insurance carrier A.I.G. Claim Services. Petitioner then filed the subject Notice of Motion for medical and temporary benefits on March 17, 2000.

Hearings on the Motion were conducted both in court and by way of de bene esse deposition. Petitioner testified in court on May 5, 2000. The testimony of his treating physician, Dr. Gregory Braccia, was taken at the doctor's office on August 3, 2000, followed by the testimony of respondent's expert, Dr. Wulfsberg, which was taken at his office, both depositions being pursuant to my Order. Documentary evidence was thereafter produced on the record at the final proceeding on November 20, 2000.

FACTS

Petitioner is a 44-year-old individual who sustained injury to his neck in an admittedly compensable accident which took place on September 5, 1995, while lifting a case of Keno request forms. As a result of that accident, he was temporarily disabled for a period of 16 and 4/7 weeks and received temporary disability benefits from respondent at the maximum statutory rate of $469, based upon his gross average weekly wage of $727 per week. During that time, authorized medical care was furnished by respondent through Dr. Scott Strenger, a Board-Certified neurosurgeon, and Dr. Glenn Zuck, a Board-Certified Orthopedic Surgeon. He underwent microsurgical C5-6 anterior diskectomy and interbody fusion performed by these surgeons on January 18, 1996 at Shaw Memorial Hospital in Somers Point, New Jersey. The bone graft used for the fusion was harvested from his right iliac crest. Following discharge from treatment, permanent disability evaluations were conducted, and eventually petitioner received an award of 27½% partial total disability on July 11, 1997. In the meantime, petitioner has returned to work with respondent.

Due to increasing symptoms and disability to his neck and right upper extremity, an application was filed to reopen the Workers' Compensation claim. He returned to see Dr. Strenger for an assessment of his condition which led to authorized diagnostic testing and a second neck surgery which was performed by Dr. Sabo of Dr. Strenger's office, at Atlantic City Medical Center, Mainland Division, Pomona, New Jersey on June 18, 1999. The diagnosis was cervical radiculopathy and the procedure performed by Dr. Sabo involved right posterior cervical foraminotomies at C5-6 and C6-7 with microdissection technique. Petitioner received temporary disability compensation from respondent for all lost time following this second surgery except for one week. According to his testimony, the June 1999 surgery did afford petitioner some immediate and lasting improvement in terms of pain reduction both in his neck and right arm. However, he continued thereafter to experience rather significant symptoms. He was directed by Dr. Strenger to Dr. Gregory Braccia who is part of Dr. Strenger's medical practice, Coastal Physicians and Surgeons, P.C. Dr. Braccia handles the pain management patients at that office.

After the second surgery, Dr. Braccia, who is Board-Certified in Anesthesiology and whose specialty is spinal diagnostic therapeutic injections for pain management, as an offshoot of anesthesiology, first saw Mr. Charman on October 5, 1999. At that time petitioner was noted to be experiencing a severe pulling-like sensation involving the back portion of his neck, trapezii and upper scapulae bilaterally. His pain was somewhat worse on the right side. In addition, he had intermittent numbness in his right third, fourth and fifth fingers as well as new intermittent numbness in his whole left hand. Despite a reportedly negative E.M.G. test which was performed on September 22, 1999, it was Dr. Braccia's opinion that there were probably two components to his pain syndrome. One component was myofascial, and the second source of pain was chronic radiculopathy. The myofascial pain was due to muscle spasm of the skeletal muscle caused by the cervical radiculopathy. When asked to reconcile his diagnosis of cervical radiculopathy with a reportedly normal E.M.G. of September 22, 1999, Dr. Braccia explained that the E.M.G. tests the motor functioning component of nerves but not the sensory component. Therefore, while showing that muscle strength was normal, the E.M.G. did not refute petitioner's subjective complaints of pain attributable to sensory damage of the cervical nerve root down into his right arm and hand. According to Dr. Braccia it is estimated that about 30% of E.M.G.s demonstrate normal findings in patients that actually have radiculopathy limited to the sensory component of their nerve root. Further, Dr. Braccia testified that his diagnosis of cervical radiculopathy was based upon not only petitioner's subjective clinical complaints but also his findings on physical exam, and were objectified by the results of a transforaminal epidural steroid injection which had reproduced petitioner's pain complaints. Procedure was described by Dr. Braccia in detail. It essentially attempts to transiently stimulate or pressurize a nerve root in order to reproduce the patient's usual symptom complex, in order to identify the source of the pain. In Mr. Charman's case, Dr. Braccia was able to reproduce petitioner's symptoms with a transforaminal injection to the right C5-6 and C6-7 foramen.

Subsequently, Dr. Braccia saw petitioner on November 2, 1999 and December 3, 1999. In the interim, he was seen by Dr. Scott Strenger on November 3, 1999. Different treatment options were attempted including medications, deep myofascial release, and a TENS unit was prescribed. Medications were ineffectual including Urontin at maximum dosage, Zanaflex, Hydrocodone, Elavil and Ultram. Consideration was also given to trigger point/botox injection which was recommended by Dr. Strenger. When last seen by Dr. Braccia on December 3, 1999, Dr. Braccia recommended that petitioner consider spinal cord stimulation, given the chronicity of his radicular symptoms and lack of further surgical remedy. Dr. Braccia had discussed this option with Dr. Strenger who was in complete agreement. These authorized physicians referred petitioner to Dr. Giancarlo Barolat, who is the Director of Neurosurgical Services and Director of the Division of Functional Neurosurgery at Thomas Jefferson University Hospital in Philadelphia, Pennsylvania, where he is also a professor of neurosurgery. According to Dr. Braccia, Dr. Barolat specializes in neurosurgery and placement of spinal cord stimulators. Dr. Braccia had worked in consultation with Dr. Barolat while the former was on staff at Thomas Jefferson University Hospital. He wanted to have the consultation in order to determine whether or not petitioner was a candidate for this procedure.

Dr. Braccia explained that spinal cord stimulation is designed to eliminate pain by delivering a low grade current of electricity, which replaces the painful sensation with another non-painful sensation. He referred to evidence that suggests that there is a chemically mediated change that occurs which results in pain relief. Many individuals with spinal cord stimulators continue to experience the analgesic effect hours or even several days after the spinal cord stimulator is turned off. Clearly, the device does not eliminate the cause of the pain, rather it eliminates the painful sensation itself. Dr. Braccia further testified that in his opinion, spinal cord stimulation is an accepted method of treatment for chronic radiculopathy, although it is entertained only after other treatments have failed. It is not the type of medical management he would recommend for a patient if there was any doubt as to the sincerity of the physical or subjective complaints.

Three days earlier, on November 30, 1999, petitioner attended an independent medical evaluation conducted by Dr. Bruce Wulfsberg at the request of A.I.G. Claim Services. Dr. Wulfsberg is a Board-Certified Orthopedic Surgeon who handles general orthopedics. Along with three other orthopedists, he comprises Rancocas Orthopedic Associates. He also performs independent medical examinations for Coordinated Medical Network. It is there that he examined petitioner on November 30, 1999 at the request of Odessa White of A.I.G. Claim Services. It was the sole time he ever saw petitioner. According to petitioner, the amount of time he spent with Dr. Wulfsberg was approximately 10 minutes during which the doctor took some measurements, checked his range of cervical motion and received petitioner's cervical complaints. Petitioner stated he "basically talked to me, that's about it." According to Dr. Wulfsberg, petitioner was suffering from bulging discs with foraminal stenosis about which he had "plateaued," and any further treatment would be merely palliative, not curative. Based upon the opinions expressed by Dr. Wulfsberg, Odessa White informed petitioner that he must return to work as of November 30, 1999. She also forwarded a letter to the offices of Dr. Strenger and Dr. Braccia on January 21, 2000 advising them that no additional treatment is authorized beyond a 30-day use of a TENS unit which had just been furnished to petitioner.

At trial, petitioner testified that he did, in fact, go to see Dr. Barolat on February 4, 2000. In a report to Dr. Braccia, with a copy to Dr. Strenger, Dr. Barolat reported the history as he understood it, his physical findings on examination of petitioner, and his impression that:

I think that, at this point, it is very reasonable to consider a trial with spinal cord stimulation. I will refer him to the 1000 Jefferson Pain Center for the trial. We will also schedule him for the psychological evaluation which is a mandatory part of our pre-implantation screening. Following the trial, I will see him back here and we will decide the next step.

 

Dr. Braccia described during his deposition that the report of Dr. Barolat confirmed the recommendation he had given to the petitioner back on December 3, 1999, when he advised petitioner to consider a spinal cord stimulator for treatment of his chronic right arm and neck pain. The typical protocol for a spinal cord stimulator placement involves initial evaluation by a neurosurgeon followed by a psychiatric evaluation of the patient, as well as a course of instruction outlining what a stimulator entails. The patient is amenable, he undergoes a trial lead placement, which involves placing the spinal court stimulator lead through a needle into the epidural space where the permanent stimulator would ultimately be placed. The trial spinal cord stimulator lead is placed on a temporary basis to allow the patient to experience spinal cord stimulation, in order to determine whether it would be beneficial, without committing to the more involved procedure of permanent lead implantation. The trial lead is placed without surgery, through a needle, and is removed without surgical intervention. Only if the trial stimulator proves helpful to the patient and is tolerable does a permanent placement proceed.

A psychological evaluation is also conducted as a prerequisite in order to prepare the patient for the procedure and to educate the patient to adequately assess the results of spinal cord stimulation. It is also used to improve the patient's effect in order to combat psychological factors which might impair the patient's ability to appropriately assess the outcome of this spinal cord stimulator trial.

At trial on May 5, 2000, petitioner described experiencing ongoing "excruciating pain coming down the right side of my neck into my right shoulder and down into my right hand and into these last three fingers of my right hand." He has been experiencing this everyday since at least his second surgery of June 18, 1999, although again he admitted some improvement in his pain level following surgery. In addition to the excruciating pain, petitioner testified that his entire right arm is numb down into the last three fingers of his dominant right hand. His right arm and the last three fingers on his right hand experience alternating sensations of cold and hot. He has muscle spasms all down the right side of his neck into his right shoulder and the back of his head is numb. The pain also travels into his right shoulder. He has these symptoms every day. On the "zero/10" scale, his symptoms are usually at a "9." He experiences the spasmining three to five days out of the week. In an effort to reduce his daily symptoms, petitioner has been taking medication every day for over one and a half years prior to his court appearance. These medications include Hydrocodone, Flexeril, Ultram, Ketoprofen, among others. Depending on the level of his pain, he takes medication every four to six hours. He alternates medication as his body will build up an immunity after awhile. These medications were prescribed by Drs. Braccia and Strenger, who never formally discharged petitioner.

When petitioner was instructed to return to work by Odessa White of A.I.G. on November 30, 1999 he complied. He was placed on light duty in the Keno Department where he is employed as a shift manager, supervising the Keno game itself and approximately ten shift workers. This job normally entails providing for appropriate stock, although he has not been able to do that. He has continued at light duty.

Petitioner is fully aware that should he be permitted additional medical treatment resulting in any period of temporary disability, he would suffer a loss of income due to the fact that his temporary disability rate is less than 70% of his gross average weekly wage. He is very, very desirous of undergoing the treatment recommendations of Dr. Giancarlo Barolat as originally suggested by the formerly authorized treating neurosurgeon, Dr. Strenger, and the formerly authorized pain management specialist, Dr. Braccia. In his own words, petitioner is "not looking forward to having a surgery to have a surgery per se, but in hopes of relieving the pain that I have, yes, I am." Moreover, he stated "I take an awful lot of medication everyday and the medication can only be eating up my insides. If there is any way that I can get off this medication and try to live a halfway normal life without taking it, I want to try it."

At his deposition, Dr. Wulfsberg testified that the placement of a trial spinal cord stimulator carries only minimal risks to the patient. Because a trial stimulator and a permanently implanted device would not cure the underlying cause of petitioner's ongoing symptoms, which he found to be credible, it was his opinion this would be merely palliative. He conceded, however, that it could lead to a reduction in symptomatology.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

In this case petitioner requests an Order for additional medical treatment at the direction of Dr. Barolat. In support of that request, petitioner offers the medical recommendations of three physicians, two of whom were authorized treating physicians involved with the patient's care over a period of time. The third opinion, which merged that of the two formerly authorized treating physicians, is offered by Dr. Barolat. All of these doctors are convinced that petitioner is suffering from chronic neurologic pain syndrome involving the right upper quadrant of petitioner's body. Each has recommended that he undergo a trial spinal cord stimulation in order to assess whether or not the permanent implantation of a spinal cord stimulator would significantly reduce or eliminate petitioner's neurologic symptom complex. The trial spinal cord stimulator would be placed and removed nonsurgically. Only if the results were positive and petitioner was determined to be psychologically amenable, would further consideration be given to the surgical implantation of the spinal court stimulator.

In opposition, respondent presents the opinion of an orthopedic surgeon, Dr. Wulfsberg, who has no special training in pain management nor any specialized training in neurology or neurosurgery. He examined petitioner on only one occasion for a total of 10 minutes, and opined that any further treatment would be "palliative and not curative."

I give the greatest weight to the medical judgment of Drs. Braccia, Strenger and Barolat for four reasons. First, Drs. Braccia and Strenger were authorized treating physicians who were intimately involved with petitioner's medical care over a significant period of time, and therefore are in a better position to accurately assess and make treatment recommendations for this petitioner. Secondly, Drs. Strenger and Barolat are both Board-authorized Neurosurgeons and Dr. Braccia is a Board-Certified Anesthesiologist specializing in pain management. Petitioner's symptom complex is both chronic and predominately neurologic in nature. Third these three physicians have more expertise in the specific type of treatment in issue. Finally, Dr. Wulfsberg is an orthopedic surgeon who has familiarity with, but no experience with, spinal court stimulation. Furthermore, his involvement with petitioner was limited to a one-time 10 minute examination conducted at the request of A.I.G. Claim Service for litigation purposes, not for treatment. It should be pointed out that Dr. Wulfsberg was engaged to conduct this so-called independent medical evaluation during a time when petitioner was under active, authorized medical treatment with Dr. Strenger and Dr. Braccia. Dr. Wulfsberg's opinion, viewed in this light, is given little or no weight in the face of the identical opinions of Drs. Braccia, Strenger and Barolat.

Petitioner concedes that the spinal cord stimulator will not eliminate or cure the underlying cause of his daily pain, numbness and temperature sensations. Dr. Braccia stated this in his testimony. Nevertheless, Dr. Braccia explained that the device is designed to eliminate the targeted symptoms. A permanently implanted spinal cord stimulator, therefore, is designed to lead to a permanent elimination or permanent reduction in neurologic complaints and symptoms. Dr. Wulfsberg conceded that this device could potentially reduce petitioner's pain level, but since it would not eliminate the underlying cause, he thought it was merely palliative and not curative. Dr. Wulfsberg conceded that the risks associated with a trial spinal cord stimulator were minimal.

N.J.S.A. 34:15-15 provides:

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. (Italics added.).

 

 

Inasmuch as the far greater weight of medical testimony in this case has established that the proceeding with a trial spinal cord stimulator will likely lead to relief of petitioner's accident-related condition, and restoration of the functioning of his neck and right upper extremity. I feel the petitioner has sustained his burden of proof.

The leading case in this subject is Howard v. Harwood's Restaurant Co., 25 N.J. 72 (1957). In Howard the Supreme Court held on the facts of that case that:

The expert medical opinion adduced at the hearing indicates that petitioner's prognosis . . . is hopeless and that after a time lapse of a year and a half her pathology is irreversible. The medical testimony further indicated that physiotherapy to petitioner's left arm and leg was palliative and could not restore the usefulness of the affected members . . . They are rendered solely for the purpose of relief, i.e., of easing or alleviating her suffering. (Italics added.)

The unanimous Supreme Court decision held that the legislative intent was that palliative treatment alone, without the possibility of cure, is compensable under the Act. In support thereof the court cited the 1919 and the 1922 amendments to the Workers' Compensation Act which stated:

A workman was entitled to benefits for medical services, hospital services, or treatment which would afford relief from the sufferings incident to an accident arising out of his employment, whether or not a cure might at the same time be effectuated.

 

 

The Supreme Court in its unanimous opinion cited opinions in other jurisdictions which support that conclusion. They listed California, Minnesota, Illinois, Massachusetts, Missouri, and Florida. They noted that in the three jurisdictions holding to the contrary, the word "relieve" was not present in that jurisdiction's statute.

Still further the more recent case of Hanrahan v. Township of Sparta, 284 N.J. Super. 327 (App. Div. 1995) petitioner, a police officer, was granted physical therapy which would not cure his right thoracic outlet syndrome. In view of the fact that the officer had not responded to conventional measures thus far, the therapy would enable him to better perform his duties as a police officer. Accordingly, they held: "In any problem relating to the construction of the Workmen's Compensation Act . . .the act is to be liberally construed" citing Howard (supra.). The Hanrahan court cited Howard as authority for the fact that the New Jersey Supreme Court found the legislative intent to be that: " . . . a worker was entitled to benefits for treatment which would afford relief from the sufferings incident to an accident arising out his employment, whether or not a cure might at the same time be effectuated." The Hanrahan court concluded that "curing" was not a necessary precondition to "relieving," and that medical services which afford relief alone are allowable under the statute. Still further in its decision, the Hanrahan court noted that:

While the pathology would remain the same, functionally and symptomatologically there would be a change because with treatment would be less pain and with less pain the petitioner could function better. He explained that if you have an increased range of motion, you can move better, and if you have less pain, you can walk, bend, lift, and twist further and do more of it.

 

The Hanrahan court further noted in the opinion by Judge Shebell, P.J.A.D. that it was not necessary for the petitioner to be totally and permanently disabled for the above principles of Howard to apply.

Accordingly, petitioner's counsel shall submit an appropriate Order for my signature compelling respondent to furnish medical treatment at the direction of Dr. Giancarlo Barolat. In the event temporary disability ensues, respondent shall furnish temporary disability benefits without the necessity of securing a further Order of this court.

The stenographic fee for the two hearings before me is $350 to State Shorthand Reporting Service all payable by respondent.

____________________________

Shelley B. Lashman
Judge of Compensation

February 3, 2001