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Monday, November 24, 2014

When An Employer Should Not Deny Medical Care

It is always tricky slope for an employer to deny medical care based on a pre-existing medical condition. The employer must be absolutely certain that the proofs offered at trial will provide a credible basis for a ruling by the Court. Without that certainty, the employer could be subject to paying for uncontrolled medical care as well as for penalties.

Some employers avoid those dire consequences by providing medical care with reservation as the NJ Statute allows. The employer can then subrogate a claim against the correct primary medical provider should the claim be denied.

“The employer need not be asked to authorize medical care but may be responsible for payment for such care entirely in cases where the employer has disavowed compensability of a claim which is ultimately found to be compensable.” 38 NJ Practice §12.7, Workers’ Compensation Law, Jon L Gelman.

 An employer recently lost an appeal from such an adverse ruling. The employer who challenged compensability of a back injury and denied “legitimate” medical treatment based on an alleged pre-existing MRI.  The employer was held liability for medical treatment when the Court found the testifying radiologist on behalf of the petitioner to be a credit witness.

“Johnson [injured worker] presented extensive medical proofs, including the testimony of treating physicians and expert witnesses. This included the deposition testimony of Steven P. Brownstein, M.D., a practitioner of diagnostic radiology. Brownstein opined that the disputed MRI could not belong to Johnson because herniated discs and bone spurs do not spontaneously disappear. Brownstein also stated that the 1999 MRI films depicted a fifty-year-old man, while Johnson’s 2006 MRIs were of a man no older than thirty-five.

Additionally, the employee testified that he never had the prior MRI. The Court found the petitioner to be a credible witness.

The employer refused to pay for medical care following from a compensable accident at work. The Court ruled that the actions of the employer were incorrect and that the employer should be held responsible for paying for medical care since it was requested by the injured employee and subsequently denied by the employer. Following the rule in Benson v Coca Cola Co., 120 N.J. Super. 120 (NJ App. Div. 1972),  a NJ employer was responsible for medical care requested by the employee and denied by the employer as the accident was held compensable.

“The JWC also found, pursuant to Benson v. Coca Cola Co., 120 N.J.Super. 60 (App.Div.1972) , that Johnson “was well within his rights to seek outside treatment” based upon City’s denial of the April incident, the dilatory fashion in which it referred Johnson for treatment after the May incident, and its refusal to provide medical care even when recommended by its first medical examiner. He thus concluded the exception expressed in Benson  applied and that it would have been futile for Johnson to have continued to request coverage for medical expenses.

The Compensation Judge is giving a wide spectrum of discretion as to determine the credibility of the testimony of the witnesses:
“Our highly deferential standard of review is of particular importance in this case, where appellant’s principal points of error hinge on the JWC’s credibility determinations. See Hersh v. Cnty. of Morris, 217 N.J. 236, 242 (2014)  (quoting Sager, supra, 182 N.J. at 164).  The JWC has the discretion to accept or reject expert testimony, in whole or in part. Kaneh v. Sunshine Biscuits, 321 N.J.Super. 507, 511 (App.Div.1999) . The judge is considered to have “expertise with respect to weighing the testimony of competing medical experts and appraising the validity of [the petitioner’s] compensation claim.” Ramos v. M & F Fashions, 154 N.J. 583, 598 (1998 .

The Court went also reiterate the Belth Doctrine holding that the employer takes the employee as he finds him. While the Belth decision predates the 1979 Amendments to the NJ Workers’ Compensation Act it remains valid as to the exacerbation of an underlying medical issue. Belth v. Anthony Ferrante & Son, Inc., 47 N.J. 38, 219 A.2d 168 (1966).

“ Employers are responsible for treatment of a preexisting condition which is exacerbated by a work accident. Sexton v. Cnty. of Cumberland, 404 N.J.Super. 542, 555 (App.Div.2009) . The burden is on the employer to prove that the compensable accident was not the cause of the exacerbation. In this case, City did nothing more than attempt to prove that Johnson was lying about his 1999 medical conditions.  Even if City is correct, in the judge’s opinion, Johnson objectively established that the May 2006 accident caused him significant cervical and psychiatric injuries from which he currently suffers.

Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (West-Thompson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thompson-Reuters). For over 4 decades the Law Offices of Jon L Gelman  1.973.696.7900  have been representing injured workers and their families who have suffered occupational accidents and illnesses.