SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0338-18T4

SAMUEL MARTIN, III,

Petitioner-Appellant,

v.

NEWARK PUBLIC SCHOOLS,

Respondent-Respondent.

_____________________________

Argued September 18, 2019 – Decided October 4, 2019

Before Judges Fuentes, Haas and Mayer.

On appeal from the New Jersey Department of Labor 

and Workforce Development, Division of Workers' 

Compensation, Claim Petition No. 2011-17344.

Joseph Michael Accardi argued the cause for appellant 

(Rothenberg, Rubenstein, Berliner & Shinrod, LLC, 

attorneys; Joseph Michael Accardi, of counsel and on 

the briefs).

Joseph Vincent Biancamano argued the cause for 

respondent (Biancamano & Di Stefano, PC, attorneys; 

Joseph Vincent Biancamano, of counsel and on the 

brief).

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
2

A-0338-18T4

PER CURIAM

Petitioner Samuel Martin, III appeals from an August 13, 2018 order of 

the Workers' Compensation Court denying his application for medical and 

temporary disability benefits. Petitioner requested reimbursement for continued 

prescription opioid medication to treat a lower back injury suffered during his 

employment with respondent Newark Public Schools. We affirm. 

In May 2011, Martin injured his back in an employment-related car 

accident. In November 2014, Martin received a fifteen percent partial disability 

award for the orthopedic injury to his lower back as a result of the work-related

accident and aggravation of a pre-existing lumbar disc herniation and bulge. 

After receipt of the partial disability award, Martin filed a motion based 

on respondent's refusal to pay for Percocet prescriptions after September 2017. 

Martin claimed he required Percocet to relieve ongoing and recurrent pain

subsequent to the car accident. Respondent opposed the motion, and the matter 

was scheduled before a judge of the Workers' Compensation Court.

The compensation judge conducted hearings to determine whether 

respondent should be compelled to pay for Martin's prescription opioid 

medication in accordance with N.J.S.A. 34:15-15 of the Workers' Compensation 

Act (Act), N.J.S.A. 34:15-1 to -142. The judge heard testimony from Martin;
3

A-0338-18T4

Martin's treating doctor, Patricio Grob, D.O.; and Martin's medical expert, 

Harris Bram, M.D. 

Dr. Grob, an orthopedic surgeon, testified he began treating Martin in May 

2011 and continued treating him through September 2017. In September 2017, 

Dr. Grob released petitioner, finding Martin reached maximum medical 

improvement. In discharging him, the doctor wrote a final prescription for 

Percocet as a courtesy to Martin. 

From 2016 through 2017, the doctor wrote prescriptions for Martin to 

receive Percocet on a monthly basis. In a note from his June 2016 examination 

of petitioner, Dr. Grob advised that Percocet was poorly controlling Martin's 

pain and "prolonged narcotic use [would] not manage his radicular complaints . 

. . and can complicate his recovery." In 2016, Dr. Grob suggested surgery or 

epidural injections to address petitioner's pain complaints in lieu of opioid 

medication. Martin declined the suggested procedures due to an unrelated blood 

condition that increased his risk of surgical complications. 

 At Dr. Grob's suggestion, in the fall of 2017, Martin saw other doctors 

to reconsider surgery as a way to relieve his pain. Martin again declined surgery. 

Dr. Grob explained that not proceeding with surgery would be "quite limiting" 

for further treatment of Martin's lower back pain. 
4

A-0338-18T4

Dr. Grob testified that Martin would never heal through continued use of 

pain medication. According to the doctor, after six years of treating petitioner, 

therapy or medication had not alleviated Martin's pain. It was Dr. Grob's 

medical opinion that the only form of treatment to cure or relieve the effects of 

Martin's work-related injury would be surgery. 

In Dr. Grob's September 13, 2017 final medical note, the doctor wrote, "I 

would recommend to attempt to wean from [Percocet] and if we are 

unsuccessful, [Martin] would then need to consider having a discussion with [a] 

pain management specialist to see if there is any palliative standpoint that may 

be needed from a chronic management of [Martin's] discomfort." According to 

the doctor, ingesting prescription pain medication did not relieve Martin's 

condition, and the medication would never improve his condition. Dr. Grob told 

Martin, "if you have difficulties you may have to pursue something from a 

palliative care point." 

Martin saw Dr. Bram on January 8, 2018 for a one-time evaluation in 

support of the motion for medical and temporary disability benefits. Dr. Bram, 

who was qualified as an expert in the field of pain management, testified based 

on his examination of petitioner and review of Martin's MRI film. Dr. Bram 

found Martin had disc desiccation at L4-L5 and L5-S1, and a disc herniation at 
5

A-0338-18T4

L5-S1. He also reviewed Dr. Grob's medical records from petitioner's 

examinations in 2016 and 2017. According to Dr. Bram, Martin self-reported 

that Percocet abated his pain symptoms by approximately sixty percent, and he 

was more active on the medication. However, in taking petitioner's history, Dr. 

Bram noted Martin reported opioid medication provided only "small pain relief." 

Dr. Bram testified there were a few positive physical findings based on 

his examination of petitioner. He testified Martin's lower extremities were 

neurologically intact and his gait was normal. Despite the limited positive 

physical findings upon examination, Dr. Bram concluded Martin had low back 

pain, lumbar radiculopathy, and sacroiliitis. Dr. Bram therefore opined, "it was 

reasonable that [Martin] be on opioid medication on a long term basis for his 

pain. I thought that was reasonable for him." 

In an August 8, 2018 written decision, the judge denied Martin's motion 

seeking reimbursement for prescription Percocet. He held petitioner failed to 

prove continued treatment with opioid medication would reduce Martin's pain 

or permit him to function better. The judge found Dr. Grob's testimony, having 

treated Martin for six years, to be more credible than the testimony of the onetime evaluating physician, Dr. Bram. The judge wrote that nothing precluded 
6

A-0338-18T4

his according "greater weight to a treating physician's opinion when the issue 

before the court is the need for medical treatment." 

The judge concluded Dr. Bram "did not provide any medical evidence that 

such treatment will permit the petitioner to function better." Nor did petitioner's 

expert find continued opioid medication would relieve Martin's pain. Dr. Bram

simply opined long-term opioid medication was "reasonable" without explaining 

why.

On appeal, Martin argues the judge improperly accorded greater weight to 

the medical testimony of the treating doctor. In addition, petitioner contends 

the judge wrongly compelled his counsel to discuss the testimony of the treating 

doctor in the presence of counsel for respondent. Further, Martin claims the 

judge misapplied the standard governing an application for palliative care.

In reviewing decisions of judges in the Workers' Compensation court, 

"[t]he factual findings of the compensation court are entitled to substantial 

deference." Ramos v. M & F Fashions, 154 N.J. 583, 594 (1998). We limit our 

inquiry "to whether the findings made by the Judge of Worker's Compensation 

could reasonably have been reached on sufficient credible evidence present in 

the record, considering the proofs as a whole, with due regard to the opportunity 

of one who heard the witnesses to judge of their credibility and with due regard
7

A-0338-18T4

to his expertise." Ibid. (quoting Bradley v. Henry Townsend Moving & Storage 

Co., 78 N.J. 532, 534 (1979)).

We start with petitioner's claim that the compensation judge erred in 

according greater weight to the testimony of Dr. Grob than the testimony of Dr. 

Bram. Compensation judges have "expertise with respect to weighing the 

testimony of competing medical experts." Id. at 598. This court "may not 

'engage in an independent assessment of the evidence as if it were the court of 

first instance.'" Sager v. O.A. Peterson Constr., 182 N.J. 156, 164 (2004) 

(quoting State v. Locurto, 157 N.J. 463, 471 (1999)). Compensation judges who 

see and hear the testimony of experts are in the best position to assess the 

demeanor and credibility of the expert witnesses. Ibid. A "judge of 

compensation 'is not bound by the conclusional opinions of any one or more, or 

all of the medical experts.'" Kaneh v. Sunshine Biscuits, 321 N.J. Super. 507, 

511 (App. Div. 1999) (quoting Perez v. Capitol Ornamental, Concrete 

Specialties, Inc., 288 N.J. Super. 359, 367 (App. Div. 1996)). "That [the judge] 

gave more weight to the opinion of one physician as opposed to the other 

provides no reason to reverse th[e] judgment." Bellino v. Verizon Wireless, 435 

N.J. Super. 85, 95 (App. Div. 2014) (citing Smith v. John L. Montgomery 

Nursing Home, 327 N.J. Super. 575, 579 (App. Div. 2000)). 
8

A-0338-18T4

Here, the compensation judge articulated his reasons for crediting Dr. 

Grob's testimony, including the doctor's treatment of petitioner over the course 

of six years. Courts have stressed "the greater opportunity of a treating 

physician, as compared with a doctor who conducts a single examination in 

order to become an expert medical witness, to know, understand and decide upon 

the producing cause of the patient's condition." Mernick v. Div. of Motor 

Vehicles, 328 N.J. Super. 512, 522 (App. Div. 2000) (quoting Bober v. Indep.

Plating Corp., 28 N.J. 160, 167 (1958)). We defer to the compensation judge's 

factual findings under the circumstances.

We next consider petitioner's argument that the judge misapplied the law 

concerning the application for continued palliative care treatment. The Act 

requires employers to provide treatment to injured employees when the 

treatment is "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.

Whether the treatment is characterized as curative or palliative, the 

treatment is compensable if competent medical testimony shows that it is 

"reasonably necessary to cure or relieve the effects of the injury." Hanrahan v. 

Twp. of Sparta, 284 N.J. Super. 327, 336 (App. Div. 1995). A claimant must 
9

A-0338-18T4

show the treatment would "probably relieve petitioner's symptoms and thereby 

improve his ability to function." Ibid. "[I]n determining what is reasonable and 

necessary, the touchstone is not the injured worker's desires or what he thinks 

to be most beneficial. Rather, it is what is shown by sufficient competent 

evidence to be reasonable and necessary to cure and relieve him." Squeo v. 

Comfort Control Corp., 99 N.J. 588, 606 (1985). "A mere showing that the 

injured worker would benefit from the added treatment is not enough." Raso v. 

Ross Steel Erectors, Inc., 319 N.J. Super. 373, 383 (App. Div. 1999). There 

may be a point at which "the pain or disability experienced by the worker is 

insufficient to warrant the expense of active treatment." Hanrahan, 284 N.J. 

Super. at 336 (citing Squeo, 99 N.J. at 606). 

Here, the judge found credible the testimony of Dr. Grob that continued 

prescribing of pain medication did not, and would never, heal petitioner or 

relieve his condition. During the six years he treated petitioner, Dr. Grob 

concluded Martin's pain had not been alleviated with therapy or medication. The 

treating doctor opined that the only form of treatment to cure or relieve the 

effects of Martin's work-related injury would be surgery. 

Contrary to petitioner's contention, Dr. Grob did not refer him to a pain 

management specialist. It was Dr. Grob's medical opinion that if petitioner was 
10 A-0338-18T4

unsuccessful in weaning himself from prescription opioid medication, Martin 

"would then need to consider having a discussion with [a] pain management 

specialist . . . ." 

Dr. Bram, Martin's one-time evaluating medical expert, did not offer any 

medical evidence that petitioner's continued treatment with Percocet would 

relieve his symptoms. Dr. Bram found few positive objective physical findings 

during his examination of petitioner that would support the conclusion Martin 

needed long-term prescription opioid medication to function better. Dr. Bram 

simply opined that continuing treatment with Percocet was "reasonable." He 

offered no evidence or testimony that the continued treatment with prescription 

opioid medication would reduce Martin's pain symptoms and return him to better

function. 

We are satisfied there was sufficient, credible evidence in the record to 

support the compensation judge's determination that further treatment with 

opioid medication would not cure or relieve Martin's injury. The judge reviewed 

the medical records introduced as evidence and considered the experts' 

testimony after having the opportunity to assess the experts' credibility in 

weighing their opinions. 
11 A-0338-18T4

We next review Martin's argument that the compensation judge 

improperly allowed respondent's counsel to be present when petitioner's counsel 

interviewed Dr. Grob. Petitioner's reliance on Stempler v. Speidell, 100 N.J. 

368 (1985) in support of his argument that the physician-patient privilege 

afforded him the right to interview Dr. Grob ex parte is misplaced. 

As Dr. Grob's patient, Martin and his attorney had the right to meet with 

Dr. Grob to discuss the doctor's testimony. As of February 21, 2018, petitioner's 

counsel knew respondent's counsel intended to call Dr. Grob as respondent's 

witness. If Dr. Grob was not returning telephone calls to schedule a meeting to 

discuss the doctor's testimony, Martin had ample opportunity to seek judicial 

intervention. On April 4, 2018, immediately prior to Dr. Grob's scheduled

testimony, Martin's counsel requested permission to speak ex parte with Dr. 

Grob. In the interests of fairness to all parties, the judge permitted petitioner's 

counsel to interview Dr. Grob, but allowed respondent's counsel to be present 

during the interview. 

We are satisfied that the judge properly exercised his discretion as a result 

of the late request by petitioner's counsel to interview Dr. Grob. Judges are 

accorded "wide discretion in exercising control over their courtrooms" and trial 
12 A-0338-18T4

proceedings. See State v. Stewart, 453 N.J. Super. 55, 67 (App. Div. 2018) 

(citing D.A. v. R.C., 438 N.J. Super. 431, 461 (App. Div. 2014)). 

Affirmed.