NY Worker's Compensation Board Proposes New Medical Treatment Guidelines

New York Worker’s Compensation Board’s proposed new medical treatment guidelines that will modify 2010 previously implemented.

1. Adopt the new carpal tunnel syndrome (CTS) medical treatment guidelines (MTG) as the standard of care for the treatment of injured workers with carpal tunnel syndrome;
2. Modify current MTGs to include new maintenance care recommendations; and
3. Implement consensus changes to simplify the process, reduce litigation and speed dispute resolution.

Carpal Tunnel Syndrome (CTS)
The new CTS MTG provide evidence based guidelines for the treatment of carpal tunnel syndrome, the most common occupational disease experienced in the workers’ compensation system. Like the other MTGs, the CTS MTG should improve the quality of care, speed access to the most beneficial treatment, and control the use of ineffective treatment.

Maintenance Care
The original four MTGs primarily address treatment for the acute and sub-acute phases of injury, with limited recommendations for the management of chronic conditions and chronic pain. As part of its effort to develop chronic pain guidelines, the MAC re-evaluated those recommendations that relate to maintenance care, recognizing that in certain situations maintenance care (chiropractic and occupational/physical therapy) should be available. The revised MTGs will authorize an ongoing maintenance program that can include up to 10 visits per year for those who have a previously observed and documented objective deterioration in functional status without the identified treatment. To be eligible for maintenance care, injured workers with chronic pain must have reached maximum medical improvement (MMI), have a permanent disability, and meet the requirements of the maintenance care program. No variance is allowed from the 10 visit annual maximum.

The new recommendations address a major concern of both providers and payers: the high number of variance requests. To date, more than three quarters of the variance requests are for maintenance care for those with chronic pain. Injured workers will now have access to important maintenance care while payers and providers will be relieved from the administrative burden of handling individual variance requests for this care. The remainder of the chronic pain guidelines is expected to be completed by early 2013.

Process Changes
The regulations also include several changes to simplify the process, reduce conflict, and speed dispute resolution. These consensus changes are the result of suggestions from stakeholders. The changes will achieve the following:

• enable parties to more easily choose resolution by the Medical Director’s Office, which provides faster and less costly dispute resolution;
• clarify and simplify transmission requirements that were resulting in rejection of thousands of variance requests for technical violations;
• allow carriers to partially grant variance requests, thereby expediting care and reducing litigation;
• eliminate submission of duplicate variance requests;
• reduce the number of procedures requiring C-4 Authorization, and
• authorize submission of variance requests through a web-based portal or other technology in the future, should it become available.
•  

In addition, several changes to the Forms C-4 AUTH, C-8.1, MG-1 and MG-2 forms that have been agreed upon with stakeholders will be implemented.  Comments on the draft forms may be sent to formsdepartment@wcb.ny.gov and will be considered if received by Monday, November 26, 2012. Final versions of the forms will be posted in early December. The parties will be expected to begin using the new forms after February 1, 2013. Old forms cannot be used to initiate new requests after March 15, 2013.

Complete copies of the proposed regulations, new and revised guidelines, complete description of the process changes, draft versions of the new forms, and other information are available on the Proposed Changes to New York Medical Treatment Guidelines page of the Board’s website. The regulations will be published in the November 21, 2012 State Register.

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The State of Medical Care in California’s Workers’ Compensation System

Katherine Roe

Todays' guest post is authored by Katie Roe*  of the California Bar and was originally published at rivercityattorneys.com/blog (Fraulob & Brown).

When you’re injured at work, you expect that your employer’s insurance carrier will dutifully provide you with proper medical treatment for your injury. After all, future medical care is one of the “benefits” injured workers are entitled to in California. Denial of medical treatment is the number one frustration we hear from our clients on a daily basis.

What injured workers quickly discover is that their medical treatment is strictly controlled by the insurance carrier and their medical fate is in the hands of a doctor who has never treated them and may not even have their complete medical records. This process is called Utilization Review (UR). Under UR an outside physician gets to decide whether or not the insurance company should authorize the medical treatment prescribed by your primary treating physician. This doctor doesn’t even have to be licensed in California.

If the medical treatment prescribed by your physician is denied, your only recourse is to appeal the decision to an Independent Medical Reviewed (IMR). In California, MAXIMUS is the company contracted to conduct IMR reviews. Like UR doctors, the IMR doctor deciding your fate, has never met you or treated you and does not need to be licensed in California. In fact, their identity is protected. If your medical treatment is denied by UR, your chances of IMR overturning the decision are not good. California Workers’ Compensation Institute, an insurance research group, found that 91% of IMR decisions uphold the UR denial. If the treatment is denied by IMR, absent a change in circumstances, the denial will be in effect for one year.

While an injured worker has the right to appeal an IMR determination to the Workers’ Compensation Appeals Board, the only legal bases on which to appeal are fraud, conflict of interest, or mistake of fact. However, even if your appeal is successful the WCAB still cannot overturn the IMR doctor’s decision. If an appeal is granted, the remedy is referral to a different IMR for another review. Yes, you read that right, your award is to go through the IMR process again!

Many injured workers end up seeking treatment for their work related injuries through private insurance, Medicare or Medi-Cal. A study by J. Paul Leigh, a health economist at the University of California, Davis, estimated that only 1/3 of necessary medical treatment and lost wages is being paid for by workers’ compensation insurers.

The lack of adequate medical care for injured workers today is the result of Senate Bill 863, which was passed on August 1, 2012 and signed into law by Governor Brown on September 18, 2012. This law was the result of lobbying by big businesses and insurance companies, who have influence over the State Legislature and the Governor of California. We remind our clients that you also have a political voice. We recommend you go to Voters Injured at Work (www.viaw.org) for information on how to become involved with fixing this broken system.

To read more about the dismal state of medical treatment for injured workers all over America I encourage you to read Insult to Injury by Michael Grabell athttps://www.propublica.org/article/the-demolition-of-workers-compensation.

*Katherine Roe is originally from the San Francisco Bay Area. She attended University of St. Thomas, Saint Paul Minnesota for her undergraduate degree in Sociology with a minor in Criminal Justice. She earned her Master in Public Administration from University of Notre Dame de Namur, Belmont, CA. Katie graduated from University of the Pacific McGeorge School of Law in Sacramento where she received the Witkin Award for Health Law and Elder Law Clinic. She is a practicing attorney in the areas of Workers’ Compensation Law, Social Security Disability and Elder Law, including estate planning with wills, trusts, deeds, powers of attorney and health care directives.
While in college, Katie tutored grade school and high school students in low-income neighborhoods in Saint Paul and Minneapolis, MN and interned with the Oakdale, MN Police Department.
During law school, Katie interned with Legal Aid Society of San Mateo County, Human Rights Fair Housing Commission and the California Department of Insurance. While at McGeorge, she worked in the Elder and Health Law Clinic where she handled Medicare appeals, elder abuse cases, restraining orders, wills, trusts, consumer protection, special needs trusts, and powers of attorney.
While the Clinical Fellow at McGeorge she received the Cohn Sisters’ Scholarship for Patient Advocacy.

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NJ Supreme Holds Employers Responsible for Workers' Compensation Medical Marijuana Costs

The NJ Supreme has recognized that the workers’ compensation system has a legislative mandate to provide the safest medical care to cure and relieve occupational injuries. The Court acknowledged both state and Federal trends to provide non-addictive and non-fatal pain relief in place of the dangerous opioids. 

 

The intent that embraced the creation and development of the social insurance system has given the Court a rational and logical basis, consistent with public policy, to order medical marijuana for palliative care.

Who Calls The Shots, Your Employer-Selected Doctor Or The Insurance Company?

Insurance companies sometimes tell doctors that they will not pay for procedures that the doctor says are medically appropriate.

Today's post comes from guest author Nathan Reckman from Paul McAndrew Law Firm.

In Iowa, employers have the right to control an injured worker’s medical care. This means that if you are injured at work, your employer gets to send you to a doctor of their choosing. The doctors chosen by the employer are called “authorized treating physicians.” In theory, after an employer chooses their authorized treating physician, they are required to pay for any care that doctor believes is necessary to treat the work injury. In practice, the employer and their workers’ compensation insurance company often try to interfere with the care the injured worker is entitled to by refusing to pay for procedures or tests recommended by their handpicked doctor.

Typically, when an authorized doctor suggests an expensive course of care (like surgery) the first thing the doctor will do is check with the insurance company to make sure the surgery is going to be paid for. Instead of immediately scheduling the needed surgery, the doctor will wait until the insurance carrier agrees to pay for the procedure. Doctors do this so they don’t have to worry about how they are going to be paid. Asking for this unneeded authorization from the insurance company means the insurance company now has a say in determining what individual procedures are proper for the care of the work injury.

We often see injured workers whose injury was initially accepted by the employer until the doctor requests authorization for an expensive surgery. When faced with the additional cost of surgery, the insurance carrier denies the work injury hoping the injured worker will either forego surgery or try to pay for the surgery through other means, such as their personal health insurance.

This situation may also arise when the authorized doctor recommends expensive diagnostic procedures, like CT scans, or refers the injured worker to a specialist, for example a psychiatrist for depression related to the work injury.

To make sure your rights are protected, it’s often helpful to have an experienced workers’ compensation attorney on your side if you’re facing a situation where your employer is trying to interfere with the decisions of their handpicked doctor. Injured workers should get the care that their doctor, not an insurance company, determines is medically appropriate.

Read more about "medical treatment" and workers' compensation.

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Medical Providers Prohibited From Reporting to Credit Agencies

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Innovation is Necessary to Meet the Challenge of COVID in 2022

COVID is the most extensive occupational exposure event in the history of the United States. Workplaces are now primed for a massive wave of compensation claims due to the Omicron variant. A recent study provides a potential opportunity for employers and insurance companies to reduce their risk exposure through early sequencing and treatment proactively.

PROTECT America's Injured Worker Medical Rights

Click Here to Sign the Petition

Why This Is Important

The goal of this petition is to garner the support and representation of the American Civil Liberties Union in a due process lawsuit against the State of New York and/or other states within the United States under violations of the civil rights law pertaining to “Deliberate Indifference”, against injured worker’s legal rights to timely and qualified medical treatment thereof.

American workers were improperly stripped of their rights to sue their employer or the state for damages sustained in workplace accidents in 1917 before most of us were even born. Workers Compensation laws, in direct conflict with employee due process rights, quickly spread nationally. Only one lawsuit resulted, ironically, on behalf of employer due process rights. Despite the fact that this contract which lives in infamy violates both employer and employee rights, it has survived for 95 years.

Meanwhile, the "contract" has become so inequitable that millions of American workers are defrauded of life, liberty and the pursuit of happiness, after being thrown into an adversarial court system, where their $5.00 lawyers fight against six figure slingers who represent insurance companies that are raping America.
Injured workers are forced to obtain treatment from an inadequate, unspecialized list of providers, often with disastrous long term results and are barred from both timely and appropriate medical treatment through a complex paper trail of denials for basic medical care.

Further, their lifetime awards are severely limited, and their income reduced to nothing. Paid Independent Medical Examiners with little or no experience with the injury at hand are allowed to pass judgment on degrees of life time injury, literally whisking away damages for the benefit of the insurance providers who pay them. It's only a matter of time until Claimant’s are completely penniless and wind up on welfare, which lets the insurance company off the hook, but leaves the taxpayers holding the tab for social programs such as food stamps and medical coverage or social security disability, as the statutorily promised income protection and medical coverage is non-existent.

Additionally, Injured Workers who are legally entitled to lifetime medical benefits are finding these benefits are unavailable when they relocate from one state to another unless an out of state provider is willing to take on complex paper processes and pathetic reimbursement rates. Once injured in New York, you will never leave New York, or, in essence, you forfeit your right to coverage.

Due to low reimbursement, high medical malpractice risk (due to lack of timely treatment and authorization), and complex paper processes, the list of available providers is shrinking rapidly from year to year. Often, professional review processes are not employed by State government, and substandard physicians are the only ones left on the medical provider list.

Americans are being defrauded and led to believe they will be dealt with fairly, but all fairness has been removed from the system. Ultimately, Corporations are paying the highest insurance rates in history, while the Claimants are getting next to nothing. Meanwhile, the insurance industry makes a killing. The Workers Compensation contract is inequitable.

PROTECT AMERICAN INJURED WORKERS by repealing the 1917 Workers Compensation Act. In varying degrees, this violation of civil rights due process laws is creating a “deliberate indifference” situation, due to unrealistically low provider rates, medical malpractice risk, and shrinking provider lists. Provider fees and attorney fees haven’t been updated for years, and medical guidelines are being employed which haven’t even been ratified by the State, with each new guideline taking another chunk out of what little the injured worker is currently entitled to.
Before long, we’ll have to pay our employers when we’re injured, rather than the other way around.

The failure of Workers Compensation to meet the needs of injured workers is leading to lifetime injuries which were originally treatable and the collapse of American families.

Additionally, America’s social systems are picking up the tab as injured workers flock to obtain early social security, food stamps, and Medicaid due to their lack of coverage under Workers Compensation laws.

Ironically, while American workers are being ignored, American prisoners are getting free medical treatment. In fact, American prisoners are successfully being represented by civil rights lawyers across this country in order to obtain the same quality of care that Americans have come to expect, and that American Injured Workers desire.

If prisoners have rights under “Deliberate Indifference” guidelines to fair treatment, why not the American Worker?

Under current laws, Deliberate Indifference in relation to prisoners medical or safety rights is defined as a “a failure to act where prison officials have knowledge of a substantial risk of serious harm to inmate health or safety.” Crayton v. Quarterman, 2009 U.S. Dist. LEXIS 103709 (N.D. Tex. Oct. 14, 2009) (Wikipedia, 2011)
Deliberate indifference is defined as requiring (1) an "awareness of facts from which the inference could be drawn that a substantial risk of serious harm exists" and (2) the actual "drawing of the inference." Elliott v. Jones, 2009 U.S. Dist. LEXIS 91125 (N.D. Fla. Sept. 1, 2009). (Wikipedia, 2011)

In short, failure to provide timely and appropriate medical care resulting in damage is considered a civil rights violation.

Injured American Workers should never have been deprived of their constitutional right to a fair trial, representation, justice, humanity, and freedom. They should not be restricted to substandard medical care, any more than their legal representatives or medical providers should be asked to work for free.

Enough is enough. PROTECT AMERICAN INJURED WORKERS. It is clear based on hundreds of advocacy websites across the country that Workers Compensation does not work. Therefore, the band-aid approach needs to stop. We need real change, and a new system, which is fair and equitable to the American Worker.

Click Here to Sign the Petition

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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.

 JOHNSON v. CITY & SUBURBAN DELIVERY SYSTEM,  DOCKET NO. A–5536–12T4 (NJ App Div 2014)

….

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  jon@gelmans.com  have been representing injured workers and their families who have suffered occupational accidents and illnesses.

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Is It Time For A Delay Of Game Penalty in Workers' Compensation?

Delay has always been a problem when injured workers need medical treatment. Traditionally, insurance companies, especially in hard economic times, have sought to hold onto their money and not distribute benefits. In a recent New Jersey workers' compensation case, the Appellate Division refused to allow the insurance company to "snow" the court with excuses on why it should not provide medical care to an injured worker.

A worker was seriously injured when he was struck by a forklift and was pinned against the wall by the machinery. An MRI indicated that the injured worker suffered a right hip anterior labral tear and the worker was conservatively treated with injections and chiropractic care. After nine months lost time he was able to return to work part time with a restricted limit to lifting of 20 pounds..

Six months after his return to work while merely walking through deep snow and he suffered a re-occurrence of the right hip pain and limitation of motion of the limb. Arthroscopic hip surgery was required. Prior to surgery, the workers' compensation carrier denied responsibility and refused to provide medical care.

The worker was required to file a notice of motion to seek reimbursement for medical treatment and temporary disability benefits. The respondent denied causal relationship raising the defense of an intervening superseding event. The respondent also claimed that the motion was moot since medical treatment had already occurred. The Division Workers' Compensation, issued a written decision in December 2007, 22 months after the respondent refused to provide medical treatment. An appeal was taken in nine months later, before the Appellate Division of the state New Jersey and the trial court decision was affirmed. The process took 29 months.

The Appellate Division in its decision did not address the issue of why the system takes a long, but it did comment upon the fact that the defenses raised by the respondent did not meet the threshold level to reverse the trial ltrial court's decision. The Appellate Division indicated that the motion was not moot merely because the medical treatment was subsequently rendered and that the employer did not establish that the injured workers suffered an independent and subsequent injury in February of 2006.

This case highlights the fact that the workers' compensation process has a major failing. While the State of New Jersey has perennially attempted to address these issues legislation has not been enacted to improve the system. The process itself is fraught with problems and does not keep up with the advancements in medical science and delivery of modern medical care in an expeditious and efficient manner.

The hurdles that the injured worker has to j navigate provide substantial barriers for injured workers and their advocates. In a system that was supposed to be remedial, efficient and summary, has now turned into a dilatory litigation machine utilized by employers in an effort to defeat claims. The same employers who complain that reimbursement of medical benefits through secondary payers such as the Centers for Medicare and Medicaid Services, have now made a simple process into a complex and painfully slow remedy. The practice of snowing the court with meritless defenses, without penalty, i.e. pre-judgment interest, contributes to further destruction in workers’ compensation program.

Cuccineillo v Sports Authority, 2008 WL 4329874 (N.J. Super. App. Div.) Decided September 24, 2008.

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California: Medical Delay and Denial Protested

Sedgwick vs. The People

Round 4: Sedgwick v. Debbye Mazzucca

Operating Room Nurse’s Injury no Emergency to Kaiser, Insurer: Defy Judge’s Order, Refuse to Provide Urgent Medical Care Injured Workers’ Advocates to Seek Penalties, Investigation

The California Applicants’ Attorneys Association (CAAA), whose members represent Californians injured on the job, today held a news conference outside Kaiser Foundation Hospital with Debbye Mazzucca, a former operating room nurse who was injured while working there. They called for sanctions against Sedgwick Claims Services, Kaiser’s workers’ compensation insurer, for defying a judge’s order to provide Ms. Mazzucca urgently needed medical care, causing her to lose her teeth. On February 11, 2013, the Workers’ Compensation Appeals Board (WCAB) ordered that Sedgwick “shall” provide dental treatment to Ms. Mazzucca. After eight months, Sedgwick and Kaiser have still refused to do so. Sedgwick faces a relatively small monetary penalty for ignoring the court order, which means little to a huge corporation.

Operating Room Nurse Debbye Mazzucca, of La Mesa, has thirty-five years’ experience, and worked for Kaiser for 12 years. She was injured in 1998, when she tripped and fell over a parking lot barrier while at work. Kaiser treated her injured knee, but ignored multiple doctors’ reports that she had also injured her neck and back. In spite of four doctors reports confirming that fact, Kaiser denied that those injuries were from the fall. Now, due to complications from medications, and delays in approving medical care, Ms. Mazzucca has lost her teeth.

CAAA President Jim Butler said, “Insurers’ Utilization Review (UR) routinely delays and denies doctors’ legitimate requests for appropriate medical treatment. This is unnecessary and expensive, and has got to change. We’ve seen the evidence of out-of-control delay and denial in the 15,000 denials of recommended medical care in just the month of August. It’s time to bring UR to heel, and stop insurance carriers from using it as a routine roadblock.”

“A doctor, agreed to by the company and their insurer, determined this Kaiser operating room nurse’s injury was a result of her work accidents. The insurer still refused to provide urgent medical care. A judge ordered the insurer to provide urgently needed medical care. But Sedgwick continues to refuse medical care and Debbye lost all her teeth during the months of delay,” said Alicia Hawthorne, the president of CAAA’s San Diego chapter, and Ms. Mazzucca’s attorney. “This nurse has been in pain, and in need of medical treatment. Yet, the insurance company defied a judge’s order to provide care. Kaiser and its insurer have spent years fighting their responsibility to treat these injuries. Why does the State of California allow workers’ compensation insurance companies to further damage patients through delaying and denying medical care and disability compensation?”

 “Kaiser has failed to provide the care needed to heal my injuries,” Mazzucca told a news conference outside Kaiser Foundation Hospital in San Diego. “For years, all they would approve were painkilling drugs. These drugs’ side effects have caused more medical problems, including ‘dry mouth syndrome,’ which is insidious and dangerous. The drugs prevent your saliva glands from working properly, causing your teeth and gums to deteriorate.  Mine became infected, abscessed and threatened my health and my life. In 2010, my teeth started cracking and breaking off at the roots. I lost seven of my teeth this way.”

Sedgwick denied the dental treatment I needed, so Ms. Mazzucca took them to court.  In February 2013, the judge ordered Sedgwick to provide this urgent medical treatment. To this day, they have refused to do so. “It has been more than a year and a half since the medical expert the insurer agreed upon said I urgently needed dental care. The pain and infection became so unbearable in July that my doctor sent me to the emergency room, and 25 of my teeth were removed. I then spent the entire month of July in the hospital, in agony, and on painkillers. Kaiser and their insurance company are defying a judge’s order to provide urgently needed medical care,” said Mazzucca.

Today’s release is the fourth in CAAA’s series of cases spotlighting the abuse of Utilization Review (UR) and other methods for delaying and denying legitimate medical care and disability compensation in the workers’ compensation claims handling practices of insurers like Sedgwick Claims Management Services.

Found on

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NJ Supreme Court Bars Expansion of Injured Workers Remedies

Additional tort claim disallowed against insurance companies for intentional failure to comply with court of compensation's, an administrative agency, order to provide provide benefits.

Wade Stancil v. ACE USA (067640)
Argued 3/26/12 Decided 8/1/12 see http://tinyurl.com/d4pycqw

SYLLABUS 

(This syllabus is not part of the opinion of the Court.  It has been prepared by the Office of the Clerk for the 

convenience of the reader.  It has been neither reviewed nor approved by the Supreme Court.  Please note that, in the 

interests of brevity, portions of any opinion may not have been summarized.) 

Wade Stancil v. ACE USA (A-112-10) (067640) 

Argued March 26, 2012 -- Decided August 1, 2012

HOENS, J., writing for a majority of the Court.

The Court considers whether an injured employee may sue his employer’s compensation carrier for pain and suffering caused by the carrier’s delay in paying for medical treatment, prescriptions, and other services. Plaintiff Wade Stancil was injured in 1995 while employed by Orient Originals.  He received workers’ compensation benefits from his employer’s compensation carrier, defendant ACE USA (ACE).  In 2006, following a  trial, the court of compensation determined that Stancil was totally disabled.  In 2007, Stancil filed a motion in the compensation court seeking an order compelling ACE to pay outstanding medical bills.  

During a hearing on the motion, the compensation judge commented that ACE had a history of failing to make payments when ordered to do so.  On September 12, 2007, the compensation judge granted Stancil’s motion, warned ACE against any further violation of the order to pay, and awarded Stancil counsel fees.  On October 29, 2007, the parties returned to the compensation court for a further proceeding relating to the disputed bills.  After finding that the bills identified in the September 12 order remained unpaid and that ACE’s failure to make payment was a willful and intentional violation of the order, the court issued another order compelling ACE to make immediate payment and again awarding counsel fees.  

The court commented on its limited ability to ensure that carriers would comply with orders, noted that it lacked the authority to enforce orders through contempt proceedings, found that Stancil had exhausted his administrative remedies, and suggested that he seek further relief in the Superior Court.  In 2008, Stancil underwent additional surgery and psychiatric treatment.  Stancil’s physician attributed the need for additional treatment to an earlier treatment delay caused by the carrier’s delay in paying medical providers.  

On April 15, 2009, Stancil filed this lawsuit in the Superior Court.  In his complaint, Stancil claimed that ACE required him to undergo medical examinations by physicians of its own choosing and then rejected the recommendations of those physicians and refused to authorize the recommended medical care.  The complaint stated further that Stancil obtained orders from the compensation court, but ACE failed to comply.  Stancil contended that ACE’s failure to authorize needed treatment caused him unnecessary pain and suffering, a worsening of his medical condition, and expenses that should have been paid by ACE.  ACE responded by filing a motion to dismiss the complaint.  ACE argued that the Workers’ Compensation Act, N.J.S.A. 34:15-1 to -142 (the Act), is the exclusive remedy for the claims pled in the complaint and therefore no damages could be awarded.  The trial court granted ACE’s motion.  The court analyzed the impact of then-recently adopted amendments to the Act and found that the Legislature had foreclosed resort to the Superior Court for the kind of tort-based relief demanded by Stancil.

The Appellate Division affirmed.  418 N.J. Super. 79 (App. Div. 2011).  The panel agreed with the trial court that The Legislature’s amendments to the Act foreclosed Stancil’s claims.  The panel also rejected Stancil’s argument that ACE’s willful disregard of compensation court orders met the Act’s intentional wrong exception to the litigation bar. The Supreme Court granted certification limited to determining whether an employee who suffered a work-related injury has a common-law cause of action for damages against a workers’ compensation carrier for its willful failure to comply with court orders compelling it to provide medical treatment when the delay or denial of treatment causes a worsening of the employee’s medical condition and/or pain and suffering.  207 N.J. 66 (2011).  

HELD:  An injured employee does not have a common law right of action against a workers’ compensation carrier for pain and suffering caused by the carrier’s delay in paying for or authorizing treatment because 1) the workers’ compensation system was designed to provide injured workers with a remedy outside of the ordinary tort or contract remedies cognizable in the Superior Court; 2) in amending the Workers’ Compensation Act in 2008, the Legislature rejected a provision that would have given the compensation courts broader permission to authorize a resort to the Superior Court and adopted a remedy that permits compensation courts to act through a contempt power; and 3) 2allowing a direct common-law cause of action against a carrier would undermine the workers’ compensation system by substituting a cause of action that would become the preferred manner of securing relief.

CHIEF JUSTICE RABNER, JUSTICE LaVECCHIA, and JUDGE WEFING (temporarily assigned) join  in JUSTICE HOENS’s opinion. JUSTICE ALBIN filed a separate, dissenting opinion. JUSTICE  PATTERSON did not participate.

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The lower court had rejected the case and dismissed it holding that the jurisdiction for bad faith is exclusively within the purview of the Division of Workers' Compensation. Stancil v. ACE USA, 418 N.J. Super. 79, 12 A. 3rd 223...

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NJ Supreme Court To Rule on Several Critical Issues

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A-112-10 Wade Stancil v. ACE USA (067640). 3. The Exclusivity Rule: Under the circumstances of this case, which include a finding by the federal Occupational Safety and Health Administration that the accident was the result ...

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Fundamental Fairness

Workers’ Compensation matters are adversarial in nature and must furnish all parties with due process, a concept that embodies fundamental fairness[1]. There are two sides, at least, to very story, and the justice requires that the hearing official balance the facts to determine an appropriate result within the confines of the rule of law.

To ascertain the truth parties have the right to cross-examine witnesses. If that right is denied, the concept of fundamental fairness is suppressed. 

A judge of compensation ordered stem cell medical treatment. Presented with evidence by way of expert opinion the judge was held to have denied the parties fundamental fairness by not allowing a medical expert to be cross-examined and failing to go on the record to memorialize the proceeding. 

The issue arose in a workers’ compensation matter where the injured worker moved for stem cell medical treatment to relieve a shoulder injury. The compensation judge held an off the record conversation with the parties in chambers and spoke to the medical expert on the telephone. The compensation judge ruled, without taking medical testimony, that the proposed controversial treatment, not FDA approved, was approved. 

The Appellate Division in reversing the compensation judge’s decision, stated: 

“Where an important issue is discussed in chambers, “a record must be made or a summary placed on the record as to what transpired in chambers. Only then is effective appellate review insured.” Klier v. Sordoni Skanska Const., 337 N.J. Super. 76, 86 (App. Div. 2001). We see no reason why the same caution should not apply where the motion for medical benefits is contested and a hearing is necessary. 

“ We recognize that under the Act, “hearing evidence, exclusive of ex parte affidavits, may be produced by both parties, but the official conducting the hearing shall not be bound by the rules of evidence.” N.J.S.A. 34:15-56. We also have held that “[w]hile the technical rules of evidence may be relaxed at workmen’s compensation proceedings, they may not be relaxed to the point of infringing on the parties’ due process rights or other fundamental rights.” Paco v. Am. Leather Mfg. Co., 213 N.J. Super. 90, 95-96 (App. Div. 1986) (citing 3 Larson, The Law of Workmen’s Compensation, § 79.25(c) (1983)). This includes the right of cross-examination. See id. at 96; see also California v. Green, 399 U.S. 149, 158 (1970) (describing cross-examination as “the greatest legal engine ever invented for the discovery of truth” (quoting 5 Wigmore on Evidence § 1367 (3d ed. 1940))); State v. Castagna, 187 N.J. 293, 309 (2006) (emphasizing importance and efficacy of cross-examination). 

"Crothall opposed stem cell treatment because it was not FDA approved. Dr. Krone’s testimony in chambers was not recorded and it was not taken under oath, yet it was found to be credible by the judge without affording Crothall the opportunity for cross-examination. We find that the procedures lacked fundamental fairness. We reverse the order and remand the motion for medical benefits to the workers compensation division for further proceedings consistent with this opinion. We do not express an opinion in support of or against petitioner’s claim for stem cell treatment in light of the inadequacy of this record. 

Even though the rules of evidence may be relaxed in a workers' compensation proceeding, the concept of fundamental fairness requires that the parties have the right to cross examine expert witnesses and that a formal record be made of the proceedings, even if conducted in chambers.

[1] “Fair Trial,” Legal Information Institute, Cornell Law School. (Google Scholar)

Haggerty v. Crothall Service Group, Docket No. A-4478-17T4, 2019 WL 1975907 (Decided May 3, 2019) UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING. 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. Superior Court of New Jersey, Appellate Division.

See also:

Occupational Exposure to Diacetyl and Acetaldehyde Results in Compensable Colorectal Cancer

Medical Treatment is an Exclusive Remedy Not a Reasonable Accommodation

Insufficient Evidence: When "A Lot" is Not Enough

The Admissibility of Scientific Evidence: A New Evidentiary Standard

…. 

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). For over 4 decades the Law Offices of Jon L Gelman 1.973.696.7900jon@gelmans.com has been representing injured workers and their families who have suffered occupational accidents and illnesses.