The Purdue Pharma bankruptcy case will significantly impact workers’ compensation cases nationally. The US Supreme Court heard oral argument this week, and the potential consequences are far-reaching.
Showing posts with label litigation. Show all posts
Showing posts with label litigation. Show all posts
Thursday, December 7, 2023
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A New Jersey appellate court recently ruled, in an unpublished opinion[1], that a judge of compensation committed reversible error by exceeding the constraints of the bifurcation process.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.
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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.
Thursday, July 10, 2014
Patient Access To Physicians Notes: An Experiment of Psychological Importance
| Today's post is shared from the NYTimes.com What would happen if all workers' compensation patients had access to all their treating physician's records including pschiatric care? Would such access assist in limiting and increasing litigation for continued medical care and the need for medical treatment? David Baldwin wasn’t sure how he had come across the other day in group therapy at the hospital, near the co-op apartment where he lives with his rescue cat, Zoey. He struggles with bipolar disorder, severe anxiety and depression. Like so many patients, he secretly wondered what his therapist thought of him. But unlike those patients, Mr. Baldwin, 64, was able to find out, swiftly and privately. Pulling his black leather swivel chair to his desk, he logged onto a hospital website and eagerly perused his therapist’s session notes. The clinical social worker, Stephen O’Neill, wrote that Mr. Baldwin’s self-consciousness about his disorder kept him isolated. Because he longed to connect with others, this was particularly self-defeating, Mr. O’Neill observed. But during the session, he had also discussed how he had helped out neighbors in his co-op. “This seems greatly appreciated, and he noted his clear enjoyment in helping others,” Mr. O’Neill wrote. “This greatly assists his self-esteem.” A smile animated Mr. Baldwin’s broad, amiable features. “I have a tough time recognizing that... |
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Sunday, October 20, 2013
Where is the Deep Water?
A NJ Appellate Court allowed the assertion of a workers' compensation statutory lien against a liability award (NJSA 34:15-40), where the compensation insurance company paid the initial medical benefits without prejudice following a detailed dismissal by the Compensation Court before trial. This decision has far reaching consequences in defining when, on the timeline, an insurance carrier's actions should trigger responsibility.
Workers' Compensation was designed as a summary and expeditious system paying injured workers who suffer an injury or illness at work. The benefits of treatment and temporary disability benefits are triggered by the event or manifestation of injury, and should flow quickly to the injured worker without a long, burdensome, and litigious process.
The payment of major medical benefits by an employer, in the past, under The Sheffield Doctrine, has been considered to act as an estoppel, barring the denial of the compensation claim. The NJ Legislature modified its Workers' Compensation Act several decades ago, and allowed for the payment of medical benefits, without prejudice. The consequence is that the injured worker is lulled into a sense of false security relying upon the implied acceptance of compensability. Albeit, the payment extends the statute of limitation for filing a formal claim.
The Court's dismissal, in the Greene matter, barring the assertion of the lien by the workers' compensation insurance company, was reversed and the lien enforced from the liability award.
Interestingly, the Court did not note that the technique of ordinary settlement, by payment of unauthorized medical payments, and/or for waiver of the right to appeal, was a common practice before the legislative enactment of NJSA 34:15-20. AIG in this case chose to "have your cake and eat it too."
Historically, prior to the legislative enactment of lump sum payments, pursuant to NJSA 34:15-20, voluntary dismissals were utilized as vehicle to compromise dependency, and other claims, for settlement. In those instances, following the dismissal of the workers' compensation claim, the parties would enter into a settlement, albeit a fiction, to settlement of the right to appeal and a letter of payment would be exchanged and/or a Release would be executed. Any potential was extinguished.
Beside the increased necessity of reducing the dismissal terms to writing, and/or stipulation of dismissal, the issue is generated of far the insurance company can step into the deep water before it comes committed to a decision. The Legislature needs to revisit this issue, and redefine the timeline for irrevocable commitment of responsibility, otherwise the initial Legislative intent for an expeditious, remedial administrative system will be defeated.
KELLY GREENE v AIG CASUALTY COMPANY,
NJ App Div 2013 (Decided October 16, 2016) --- A.3d ----, 2013 WL 5629045 (N.J.Super.A.D.)
Workers' Compensation was designed as a summary and expeditious system paying injured workers who suffer an injury or illness at work. The benefits of treatment and temporary disability benefits are triggered by the event or manifestation of injury, and should flow quickly to the injured worker without a long, burdensome, and litigious process.
The payment of major medical benefits by an employer, in the past, under The Sheffield Doctrine, has been considered to act as an estoppel, barring the denial of the compensation claim. The NJ Legislature modified its Workers' Compensation Act several decades ago, and allowed for the payment of medical benefits, without prejudice. The consequence is that the injured worker is lulled into a sense of false security relying upon the implied acceptance of compensability. Albeit, the payment extends the statute of limitation for filing a formal claim.
The Court's dismissal, in the Greene matter, barring the assertion of the lien by the workers' compensation insurance company, was reversed and the lien enforced from the liability award.
Interestingly, the Court did not note that the technique of ordinary settlement, by payment of unauthorized medical payments, and/or for waiver of the right to appeal, was a common practice before the legislative enactment of NJSA 34:15-20. AIG in this case chose to "have your cake and eat it too."
Historically, prior to the legislative enactment of lump sum payments, pursuant to NJSA 34:15-20, voluntary dismissals were utilized as vehicle to compromise dependency, and other claims, for settlement. In those instances, following the dismissal of the workers' compensation claim, the parties would enter into a settlement, albeit a fiction, to settlement of the right to appeal and a letter of payment would be exchanged and/or a Release would be executed. Any potential was extinguished.
Beside the increased necessity of reducing the dismissal terms to writing, and/or stipulation of dismissal, the issue is generated of far the insurance company can step into the deep water before it comes committed to a decision. The Legislature needs to revisit this issue, and redefine the timeline for irrevocable commitment of responsibility, otherwise the initial Legislative intent for an expeditious, remedial administrative system will be defeated.
KELLY GREENE v AIG CASUALTY COMPANY,
NJ App Div 2013 (Decided October 16, 2016) --- A.3d ----, 2013 WL 5629045 (N.J.Super.A.D.)
….
Jon L. Gelman of Wayne NJ is the author NJ Workers’ Compensation Law (West-Thompson) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thompson). 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.
Sunday, July 28, 2013
The Oklahoma Opt-Out System is Bad Medicine for an Ill System
The newly enacted Oklahoma "Opt-Out" workers' compensation system has been urged by reformers as an effort to provide a more efficient and effective than its century old program enacted in the early 1900s. A comparison of the Oklahoma Opt-Out system to the New Jersey system reflects a limitation on litigation and a return to a more administrative program. Additionally, the opt-out system would provide for injured workers' choice of physician that ultimately could be blended into an employer based health program.
The changes are dramatic, and a major shift from the traditional based system such as New Jersey has followed since 1911.
Obviously the future statics will be reviewed by all stakeholders to determine if the Opt-Out System can really satisfy the concerns of all stakeholders or just a few.
Radical statutory changes to workers' compensation that have been limited to the interests of specific interest groups in the past have been met with disasters. The Opt-Out System of Oklahoma appears to be one of those programs, and has been bitterly contested by the advocates of injured workers.
In order for the creation of an optimal system of compensation to meet the socio-political-economic changes that are occurring in the world, all parties must sit at the table and work out a plan together. The Oklahoma Opt-Out system just appears to be bad medicine for a very ill system.
The Jersey System:
Case are heard by Compensation Judges nominated by the Governor and the system is administered under the Executive Branch of government. There are 50 Compensation Judges.
The Oklahoma Opt-Out System:
Starting on February 1, an administrative process with three appointed commissioners will replace the current court procedure with 10 judges for litigating workers’ compensation claims.
Temporary Disability Benefits
The Jersey System:
If an injured worker is disabled for a period of more than seven days, he or she will be eligible to receive temporary total benefits at a rate of 70% their average weekly wage, not to exceed 75% of the Statewide Average Weekly Wage (SAWW) or fall below the minimum rate of 20% of the SAWW. These benefits are provided during the period when a worker is unable to work and is under active medical care.The limit is 450 weeks. The maximum temporary disability rate for 2013 is $826.00.
Permanent Disability Benefits:
The Jersey System:
Partial Disability: When a job related injury or illness results in a partial permanent disability, benefits are based upon a percentage of certain "scheduled" or "non-scheduled" losses. A "scheduled" loss is one involving arms, hands, fingers, legs, feet, toes, eyes, ears or teeth. A "non-scheduled" loss is one involving any area or system of the body not specifically identified in the schedule, such as the back, the heart, the lungs. These benefits are paid weekly and are due after the date temporary disability ends.
Total Permanent Disability:
These weekly benefits are provided initially for a period of 450 weeks. These benefits continue beyond the initial 450 weeks provided that the injured worker is able to show that he or she remains unable to earn wages.
Wages earned after 450 weeks offset the weekly computation in proportion to the income at the time of the injury. Permanent Total benefits are paid weekly and are based upon 70% of the average weekly wage, not to exceed 75% of the Statewide Average Weekly Wage (SAWW) or fall below the minimum rate of 20% of the SAWW.
Permanent Total Disability is also presumed when the worker has lost two major members or a combination of members of the body such as eyes, arms, hands, legs or feet. However, permanent total disability can also result from a combination of injuries that render the worker unemployable.
The changes are dramatic, and a major shift from the traditional based system such as New Jersey has followed since 1911.
Obviously the future statics will be reviewed by all stakeholders to determine if the Opt-Out System can really satisfy the concerns of all stakeholders or just a few.
Radical statutory changes to workers' compensation that have been limited to the interests of specific interest groups in the past have been met with disasters. The Opt-Out System of Oklahoma appears to be one of those programs, and has been bitterly contested by the advocates of injured workers.
In order for the creation of an optimal system of compensation to meet the socio-political-economic changes that are occurring in the world, all parties must sit at the table and work out a plan together. The Oklahoma Opt-Out system just appears to be bad medicine for a very ill system.
New Jersey Traditional v Oklahoma Opt-Out
Hearing OfficialsThe Jersey System:
Case are heard by Compensation Judges nominated by the Governor and the system is administered under the Executive Branch of government. There are 50 Compensation Judges.
The Oklahoma Opt-Out System:
Starting on February 1, an administrative process with three appointed commissioners will replace the current court procedure with 10 judges for litigating workers’ compensation claims.
Temporary Disability Benefits
The Jersey System:
If an injured worker is disabled for a period of more than seven days, he or she will be eligible to receive temporary total benefits at a rate of 70% their average weekly wage, not to exceed 75% of the Statewide Average Weekly Wage (SAWW) or fall below the minimum rate of 20% of the SAWW. These benefits are provided during the period when a worker is unable to work and is under active medical care.The limit is 450 weeks. The maximum temporary disability rate for 2013 is $826.00.
The Oklahoma Opt-Out System:
Temporary disability payments will be reduced to 104 weeks instead of 156 weeks, with a cap at 70 percent of the state’s average weekly wage, about $540 per week.
Temporary disability payments will be reduced to 104 weeks instead of 156 weeks, with a cap at 70 percent of the state’s average weekly wage, about $540 per week.
Permanent Disability Benefits:
The Jersey System:
Partial Disability: When a job related injury or illness results in a partial permanent disability, benefits are based upon a percentage of certain "scheduled" or "non-scheduled" losses. A "scheduled" loss is one involving arms, hands, fingers, legs, feet, toes, eyes, ears or teeth. A "non-scheduled" loss is one involving any area or system of the body not specifically identified in the schedule, such as the back, the heart, the lungs. These benefits are paid weekly and are due after the date temporary disability ends.
Total Permanent Disability:
These weekly benefits are provided initially for a period of 450 weeks. These benefits continue beyond the initial 450 weeks provided that the injured worker is able to show that he or she remains unable to earn wages.
Wages earned after 450 weeks offset the weekly computation in proportion to the income at the time of the injury. Permanent Total benefits are paid weekly and are based upon 70% of the average weekly wage, not to exceed 75% of the Statewide Average Weekly Wage (SAWW) or fall below the minimum rate of 20% of the SAWW.
Permanent Total Disability is also presumed when the worker has lost two major members or a combination of members of the body such as eyes, arms, hands, legs or feet. However, permanent total disability can also result from a combination of injuries that render the worker unemployable.
The Oklahoma Opt-Out System:
Permanent disability payments will be reduced from 520 weeks to 350 weeks.
Choice of Treating Physician
The Jersey System:
The Jersey System:
None. Employer selected physician must be utilized.
The Oklahoma Opt-Out System:
Employees will be allowed to change treating physicians once so long as the selection is from a list of three doctors provided by the employer.
Arbitration or Alternate Dispute Resolution
The Jersey System:
None. All cases, including settlements, must be heard or reviewed by a Compensation Judge.
The Oklahoma Opt-Out System:
Employers can require arbitration as the exclusive way to settle claims and disputes with employees.
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