(c) 2019 Jon L Gelman, All Rights Reserved.

Wednesday, September 6, 2017

Technology - Efficiency - Uniform Procedure

For decades the NJ Workers' Compensation administrative law system has had to adapt to meet the social, political, economic and technological changes of a changing world. The well thought-out proposals by the NJ State Bar Association (NJSBA) are a starting point to the beginning of a new wave of discussion and change.

One of the most important aspects of the NJSBA proposals is the adoption of technological advances to expand on an already well structured and thought-out foundation.  The technology advancements afford the workers' compensation system the opportunity to move forward in tandem with other administrative and litigation systems, as well it allows for a way to keep pace with new types of matters such as medical fee litigation. (1)

The deployment of technology has both a cost and benefit to all stakeholders.  All stakeholders will ultimately contribute to the costs, either by fiscal contribution, time or effort. The benefits of expanding electronic filing, availability of expert reports (medical and treatment costs)  and other discovery, and the implementation and tracking of case scheduling Orders, will provide a major improvement in efficiency and establish uniformity on a state-wide basis.

Hopefully, the suggestions made by the NJSBA will provide a spark to ignite a much-needed conversation about technology, efficiency, and uniform procedure.

(1) "More than a decade ago, the National Academy of Medicine outlined the serious consequences of a paper-based health system: redundant tests; increased costs; uncoordinated and fragmented care; medical decisions made with incomplete data, leading to adverse events; and potential clinical innovations left undiscovered, hidden in patient files. To help address these concerns, Congress passed the Health Information Technology for Economic and Clinical Health (HITECH) Act, part of the American Recovery and Reinvestment Act of 2009. The law spurred rapid progress toward digitizing the health care delivery system, which has experienced a dramatic transformation as a result of concerted efforts by both public and private sectors. We believe we’re at an inflection point in terms of the capability to share research results, clinical guidelines, and patient data seamlessly and securely. The federal government’s actions to date have set the stage for an expanding role for health information technology (IT) in improved care delivery."  The HITECH Era and the Path Forward, Vindell Washington, M.D., M.H.C.M., Karen DeSalvo, M.D., M.P.H., Farzad Mostashari, M.D., and David Blumenthal, M.D., M.P.P. N Engl J Med 2017; 377:904-906 September 7, 2017 DOI: 10.1056/NEJMp1703370

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). 


Laddey Clark & Ryan, LLP 60 Blue Heron Road, Suite 300
Sparta, NJ 07871-2608
973-729-1880   FAX: 973-729-1224

March 22, 2017

Hon. Russell Wojtenko, Jr., Director and Chief Judge Division of Workers' Compensation
New Jersey Department of Labor and Workforce Development
1 John Fitch Plaza, P.O. Box 381
Trenton, New Jersey 08625-0381

Hon. Aaron R. Fichtner, Ph.D. Acting Commissioner
New Jersey Department of Labor and Workforce Development
1 John Fitch Plaza, P.O. Box 110
Trenton, New Jersey 08625

Dear Judge Wojtenko and Commissioner Fichtner:

We are grateful for the assistance you provided to members of the New Jersey State Bar Association (NJSBA) Workers' Compensation Section as they examined ways for stakeholders to improve the efficiency of the handling of claims in the New Jersey Division of Workers' Compensation. I am pleased to present you with the NJSBA's recommendations which are aimed at achieving that goal. These suggestions were drafted by the NJSBA Workers' Compensation Section and enjoy the review and approval of the NJSBA Board of Trustees. They are offered respectfully in the spirit of improving the process of litigating workers' compensation claims and promoting the effective delivery of justice for everyone involved in the process.

1. The Rules related to adjournment requests (12:235-3.11, 4.11 and 4.17) should be more strictly enforced. The NJSBA notes that courtesy and consideration to the court and parties, as required under the Rules of Professional Conduct, can alleviate many of the issues. Parties should be encouraged to make their best efforts to deliver adjournment and "ready-hold" requests in ample time for the convenience of all.

2. Regarding adjournment requests for independent medical exams (IMEs), again, the current Rule should be enforced, and judges should adjourn cases accordingly, so as not to re-list matters before they are ready, or delay them from being adjudicated in a timely manner. Enforcing this Rule consistently will allow judges to adjourn cases appropriately and not over-cycle them. Judges should also be encouraged to allow longer time extensions when a matter is adjourned for a petitioner' s treatment. Both petitioners and respondents should be required to advise the court of the date of exam and examiner, pursuant to Rule 12:235-3.1l(b).

3. Division Rule 12:235-3.7, which requires discovery to be completed within 180 days, seems to be impractical in matters involving complex medical causation issues, or where extensive factual discovery is needed by the parties. Therefore, in matters where discovery is not completed within the time prescribed by the Rules, either party should be permitted to seek a conference with the Judge to discuss whether a Scheduling Order for discovery is necessary. In such a case, may we suggest that a letter to the court and copied to all parties be accepted by the Judge, who can then schedule the conference at the next available adjourn date. The Judge should be permitted to allow parties to participate by phone at his/her discretion.

4. The NJSBA encourages the Division to submit its 2015 Medical Provider Task Force II Recommended Guidelines through the rulemaking process. Once promulgated, this will allow the parties and judges to have clear guidance about the discovery to be conducted and the evidence judges should consider in adjudicating MPCs.

5. Guidance should be provided to judges about the appropriate action to take when Petitioners miss an IME, and whether, and how frequently, the court will request Respondent to authorize another IME.

6. The NJSBA recommends the Division promulgate guidelines to judges regarding the number of times a matter will be adjourned, or for how long before being dismissed without prejudice for lack of prosecution, or returned to the pretrial list. Similarly, the Division should promulgate guidelines as to how many adjournments will be granted for settlement authority, and the extent to which unreasonable delay will impact apportionment of counsel fees.

7. The Division Rules regarding motion practice (12:235-3.2 through 12:235-3.6 and 12:235-3.8) should be more uniformly enforced. Motions relating to multi-respondent matters and impleaders that are in compliance with Rule 12:235-3.5 and 12:235-3.6 and properly served should be considered uncontested unless written opposition is received within the time prescribed by the Rules and should be granted.

8. Judges should be encouraged to consider counsel fees under Rule 12:235-3.6(g) when frivolous motions are filed.

9. The NJSBA recommends that motions to dismiss a matter for lack of coverage be promptly granted without prejudice for the insurance carrier only, where the New Jersey Compensation Rating and Inspection Bureau advises that the wrong carrier has been named on the claim petition and there is no documentation to the contrary.

10. Procedures in connection with the call of the list, pursuant to Rule 12:235-3.12(d), should be consistent across vicinages.

11. Consistency should be promoted across vicinages as to when a case is pre-tried and Rule 12:235-3.11, relating to pre-trial conferences should be required to be followed.

12. Trials should be scheduled, adjourned and conducted in a consistent manner across vicinages, following the Rules concerning trials. The NJSBA proposes the Division adopt a practice that when a matter is listed as "Trial No Adjournment" the expectation is that testimony will be taken on a contested matter. Otherwise, a matter marked as a "Trial" will be conferenced with the court, but testimony will not be conducted unless there has been prior communication with the court and the parties.

13. The NJSBA recommends the Division expand the use of 1:30 pm hearings for: multiple respondent matters, hearings on contested issues, trials, partial trials and trials of motions for medical and temporary disability. It is recommended that expert testimony should be heard at 1:30 pm, when applicable, and at the discretion of the court.

14. Conference calls should be utilized for matters that involve multiple respondents to facilitate processing of the matter, in lieu of adjourning pre-trial conference due to scheduling conflicts.

15. Courts-On-Line should be enhanced to be used by the parties to submit and view adjournment and ready-hold requests.

16. Parties should be allowed to both file IME reports and to download IME reports through Courts-On-Line. Though voluntary, the process would enable the parties to efficiently review IME reports and communicate with opposing counsel in advance of a pre-trial hearing. Additionally, such a practice would alleviate the need for Division personnel to manually scan IME reports into Courts-On-Line when a matter is concluded.

17. The NJSBA recommends that the Division track the life cycle of claim pet11t0ns, motions for medical and temporary disability benefits, medical provider claims, Second Injury Fund petitions and uninsured employer petitions by type and manner of resolution (ORAS, Judgment, Partial Trial and Settlement, Section 20, Dismissal with Prejudice on motion or after trial, Dismissal without Prejudice, etc.), so that parties can benchmark their matters, and the Division can measure the impact of any implemented process improvements.

18. The NJSBA requests the Division appoint a standing panel of judges and/or court staff which can accept improvement requests and engage in dialogue with NJSBA representatives in an open forum. The NJSBA proposes that it can appoint a representative of each party in each vicinage to meet with the vicinage's Supervising Judge on an annual basis to offer feedback on the local practice and to engage with the judges.

19. To ensure that the annual May Day seminars can continue, the NJSBA proposes that it collaborate with the Division to establish the program each year, develop the materials and provide attorneys to present a CLE presentation in each vicinag

Thank you for your consideration of the above. If you would like to discuss any of these recommendations further, or require any further information, please do not hesitate to contact me. This comes with my sincere appreciation for your office' s willingness to hear from and work with the Section and the State Bar in this regard.

Respectfully submitted,

Thomas H. Prol


cc: Robert B. Hille, Esq., NJSBA President-Elect
     Gary Adams, Esq., Chair, NJSBA Workers' Compensation Section
    Angela C. Scheck, NJSBA Executive Director

Updated: 09062917 655p
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