(c) 2018 Jon L Gelman, All Rights Reserved.

Tuesday, March 20, 2018

Cybersecurity: CMS to Issue New Medicare Cards

To protect unauthorized disclosure in case of a cybersecurity attack, the Federal government will be issuing new Medicare cards as of April 1, 2018. The rollout and transition will be over a one-year basis.

The Medicare Access and CHIP Reauthorization Act (MACRA) of 2015, requires The Centers for Medicare and Medicaid Services [CMS] to remove Social Security Numbers (SSNs) from all Medicare cards by April 2019. A new Medicare Beneficiary Identifier (MBI) will replace the SSN-based Health Insurance Claim Number (HICN) on the new Medicare cards for Medicare transactions like billing, eligibility status, and claim status. You can find more details in a CMS 5/30/17 press release and latest Open Door Forum slides.

The workers' compensation community, under new Federal rules, will also be required to maintain better cyber hygiene, have better application update procedures and establish an adequate plan to respond to breaches. Client and governmental agencies will require more secure networks and procedures for handling data transmission, access, and storage.

Historically workers' compensation systems nationally utilized Social Security numbers to identify workers' compensation claims, unemployment disability claims, and unemployment claims. Documents and pleadings exchanged throughout the workers' compensation included that data. With cyber-attacks, state governments, and stakeholders, including insurance companies, health providers, law firms and injured workers' have prohibited and to sharing such Personally Protective Information (PPI).

"Law firms must remain diligent to protect their client's information. Procedures should be established to prevent human error, accidents, disruption of infrastructure services, have plans in place for natural disasters. RPC 1.6 Confidentiality of Information. A lawyer must take reasonable efforts to prevent inadvertent or unauthorized access to client information. Lawyers may be required to take special security precautions to protect client information against inadvertent or unauthorized disclosure when an agreement with the client, or the law, or the nature of the information requires an elevated degree of security. ABA Formal Op. 2017-477 (May 11, 2017)" Gelman, Jon L, Workers' Compensation Law, 38 NJPRAC 34.11 (Thomson-Reuters 2018). 
Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (West-Thomson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thomson-Reuters).

Monday, March 19, 2018

Judicial Limitations in Workers’ Compensation Cases

Frequently a workers’ compensation hearing officer divides a litigated matter into two phases, compensability and damages so litigation can be conducted in a more efficient manner. The procedure is designated as bifurcation and the limitations imposed by the procedure must have carefully adhered to while the adjudicating the claim.

A New Jersey appellate court recently ruled, in an unpublished opinion[1], that a judge of compensation committed reversible error by exceeding the constraints of the bifurcation process. The hearing officer decided the compensability of a denied accident and then went further by awarding damages by way of granting an award for the temporary disability.

An injured worker claimed that he suffered an accident during his employment because of carrying a heavy package at the employer’s place of business. The accident was reported by “text message” and voice message” after he had left the place of employment and returned home. The court assessed the witnesses’ credibility while testifying and determined the injured worker to be credible.

At the time of the trial, the employer relied on a written note from the injured worker’s doctor that stated, the worker “was shoveling snow and developed severe low back pain with right leg radiation.” The attorney for the employer failed to call the doctor as a witness during the trial. The appellate court held that the judge of compensation could give the written note whatever weight it wished to do so, and upheld the finding of the workers’ compensation hearing officials ruling that the matter was compensable and then, despite the bifurcation of the trial, entered an award for temporary disability benefits.

In a collateral issue raised on appeal, prior to making the determination, the judge of compensation, on her own volition sought and relied on additional factual information from the State of New Jersey. She “contacted the State and was advised” that the injured worker had been paid temporary disability benefits” for a certain period. The reviewing appellate tribunal rule that “Judges should not conduct their own factual investigation, let alone do so without notice and an opportunity for the parties to be heard. See Lazovitz v. Bd. of Adjustment, Berkeley Heights, 213 N.J. Super. 376, 381-82 (App. Div. 1986); Amadeo v. Amadeo, 64 N.J. Super. 417, 424 (App. Div. 1960).” and deemed such action as inappropriate, but vacated the Order for other reasons.

Interestingly, whether a Judge could take “judicial notice” of temporary disability payments was not discussed. “Judicial notice” is a rule of law in evidence that allows a fact to be introduced into evidence if the truth is so authoritatively attested that it cannot be reasonably contested. The NJ Division of Workers’ Compensation normally cross-matches payment information of State temporary disability benefits to efficiently satisfy statutorily imposed liens and eliminate duplicate recoveries. "Administrative procedures are in place for avoiding duplication of benefits in cases where claimants have pursued temporary disability benefits under both the Temporary Disability Benefits Law (TDBL) and the New Jersey Workers' Compensation Act (WCA)." Gelman, Jon L, Workers Compensation Law, 38 NJPRAC 17.10.50. Temporary disability liens–non–duplication of benefits (Thomson-Reuters 2018). 

The award of temporary disability benefits was reversed by the appellate division and the matter was remanded to the Division of Workers’ Compensation for further hearing on that issue. The court held, “Despite bifurcation, the judge found that Moran was entitled to temporary disability benefits and appears to have made other findings of the nature of the injury. These other issues were decided without warning and deprived Cosmetic of an opportunity to present evidence or to confront the evidence upon which the judge relied. Because the judge mistakenly exceeded the limits of the bifurcation agreement, we vacate those parts of the order under review that granted temporary disability benefits and other relief to Moran, and we remand those proceedings that would naturally have followed the determination that Moran sustained a work-related injury.”

While bifurcation allows for judicial efficiency, the constraints imposed by procedure need to be strictly followed. 

Moran v. Cosmetic Essence, LLC, Docket No. A-2588-1671 (N.J. App. Div. 2018) Decided March 14, 2018. 2018 WL 1308857 Only the Westlaw citation is currently available.
Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (West-Thomson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thomson-Reuters).

[1] 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.

Wednesday, March 14, 2018

Beryllium Exposure Standard Enforcement Delayed Until May 2018

The Trump Administration has yet again delayed the implementation of a stricter standard for occupational exposure to beryllium. The new date for enforcement is May 11, 2018.

Thursday, March 8, 2018

Federal Court Invokes the Abstention Doctrine in a Workers' Compensation Matter

A Federal Court decided that it would defer to a New Jersey Judge of Compensation to resolve an underlying issue of compensability in a contractor/sub-contractor claim. In abstaining, the Federal Court imposed the “Burford Abstention Doctrine” and dismiss the Federal action with the right to reopen the matter at the conclusion of the state workers’ compensation case.

Monday, February 26, 2018

Preventing Occupational Disease: NJ Governor Murphy Supports a Fracking Ban

The State of New Jersey now supports a ban on fracking. NJ Governor Pat Murphy recognized the health and environmental consequences of using this process to explore and mine for natural gas.

Thursday, February 22, 2018

Can the Workers’ Compensation System be Vaccinated Against Influenza?

This flu season has been epidemic. It has severely affected the occupational health network and created challenges not foreseen by the crafters of the 1911 workers’ compensation act(s). Particularly compelling are issues surrounding how the benefits system can adapt to meet the effort of maintaining a healthier workplace and avoid the consequences caused by this communicable disease.

Wednesday, February 21, 2018

Standing Desks at Work Deemed Not Beneficial

Before employers buy standing workstations and/or even treadmills to prevent repetitive motion claims, they ought to take heed of a recent study that considers them a useless fad. The newest marketing craze is work at standing desks, some even equipped with treadmills and marked as ergonomically safer for an employee’s health.