Trauma of Job Loss Often Includes Health Problems

Occupational heart attacks are notorious issues in workers' compensation claims. The New York Times reviews the phenomenon cardiovascular episodes attributed to work related stress due to plant closings.

A "....paper, published last year by Kate W. Strully, a sociology professor at the State University of New York at Albany, found that a person who lost a job had an 83 percent greater chance of developing a stress-related health problem, like diabetes, arthritis or psychiatric issues."

The Occupational Disease Pilot Program & Healthcare

Health Care reform continues to be at the forefront of the Obama administration’s agenda.   Legal Talk Network Host and Attorney Alan S. Pierce welcomes Jon L. Gelman to discuss health care and workers’ compensation and the Occupational Disease Pilot Program: a close look at the delivery of  medical benefits when it comes to occupational disease and how workers' compensation may or may not fit into the big picture of universal health care or health care reform.


Click here to listen to the interview (duration 27:58): http://tinyurl.com/ycxee3y
MP3 Link: http://tinyurl.com/ybanu3v (20.6MB)


To read more about the Libby MT Pilot Project click here.

To read more about workers’ compensation and universal health care solutions click here. 

New 911 Photos Dramatically Illustrate Toxic Cloud

The horrific tragedy of the attack on the World Trade Center on 911 and the toxic cloud of fumes and dust are vividly portrayed in newly released photos. The massive extend of the spread of toxic substances has given rise to resultant disease and illness to emergency first responders and residents of lower Manhattan.

ABC secured the release of the photos by a Freedom of Information Act Request to the New York Police Department (NYPD). The photos were taken  from an NYPD helicopter immediately following the attack when two large jet liners, loaded with fuel and passenger, were seized by terrorists and crashed into the buildings.

The fight to secure adequate medical care for medical conditions flowing from the exposures has been very problematic. While several local agencies have attempted to provide medical care, the lack of funds and a unified program has left many without appropriate medical care.

Click here to read more about 911 and medical care programs.

A Once-In-A-Generation Chance

The NY Times today called for passage of the Senate version of health care reform and salvage the opportunity for important change in the nation’s health care plan. More emphatically, the Senate version provides an opportunity for change in the way the nation’s century-old workers’ compensation system provides for the delivery of medical care in occupational disease claims.

The paper’s editorial rightly observes that one botched election in Massachusetts, a State that has already met the issue of universal health care, should not encumber the rest of country with horrors of a failed system. The Senate version of health care reform contains an opportunity to experiment and explore the opportunities on embracing the delivery of medical care and medical monitoring into a coordinated and national framework under the Medicare program. In the end it will be able to establish a unified epidemiological database to help prevent and treat occupational illnesses and lead the nation to a safer and healthier work environment.

The efforts of Senator Mat Baucus (D-MT) has made to craft an occupationally health care program has the potential for being the most extensive, effective and innovative system ever enacted for the delivery of medical care to injured workers. Libby Care [see Patient Protection and Affordable Care Act Sec. 10323 pp. 2222-2237] , and its envisioned prodigies, will embrace more exposed workers, diseases and geographical locations than any other program of the past. An ancillary benefit will be the integration of Centers for Medicare and Medicaid Services (CMS) and Centers for Disease Control (CDC) for the advancement of greater worker safety through organized data collection and research.

Caring for those who have been the victims of occupational disease has been an illusive goal of the nation’s patchwork of workers’ compensation systems for over a decade. Occupational diseases were a supplement to the compensation system that developed when Industry tried to shield itself from the emerging economic liabilities that silicosis was generating.

History reflects that the system just didn’t work. The longest running tort, asbestos reacted illness, plagued the workers’ compensation system and produced a  plethora of problems that only created more delay and denial of medical care for injured workers.

Economically the costs of direct costs for occupational illnesses and diseases continue to soar. Unfair cost shifting continues. A study in the year 2000 indicated that direct costs amounts to $51.8 Billion per year for hospitals, physicians and drugs. Workers’ compensation was reportedly covering only 27% of the costs and taxpayers were sharing un even share of the burden. The costs of occupational disease amounted for 3% of the gross national product.

The problems of under-reporting of occupational illnesses and disease even compound the reporting the true reality of the issue even further. The recent NY Times and Nebraska Appleseed investigative reports indicate that true numbers are hard to come by because of the fear and intimidation injured employees suffer in reporting claims.

Since the enactment of workers’ compensation in 1911, there has never been a greater opportunity to provide meaningful change to make the workplace healthier and safer. Congress and the President Obama should take advantage of this one-in-a-lifetime chance and make the Senate version of health care reform the law of the nation.

Click here to read more about health care and workers' compensation.

Insurance Carrier Successful in Seeking Medical Reimbursement

An agreement to equally share the responsibility of medical expenses was held enforceable between insurance carriers after an eight year delay in seeking reimbursement.

A 1999 settlement of a workers' compensation contained a stipulation that two insurance carriers would share in the cost of medical expenses. One insurance company would manage the claimant's medical care and would seek reimbursement from the other insurance carrier. Eight years after the settlement the managing insurance carriers, New Jersey Manufacturers Insurance Company (NJM) sent a letter to the other carrier, Scibal, requesting reimbursement of 50% of the costs. By then, the costs had amounted to $570,629.03.

The Court rejected the application of the Doctrine of Equitable Estoppel as a defense because Scibal did not met the burden of proof. "Scibal must show that NJM had "engaged in conduct, either intentionally or under circumstances that induced reliance, and that [Scibal] acted or changed [its] position to [its] detriment." The Court also rejected the application of the Doctrine of Laches because the offending party, Scibal, was not prejudiced by the mere passage of time.

Kathleen Patry v. West Jersey Health Systems, NJ App Div, Dceided 12.0.2009

Good Medicine for an Ailing Compensation System

An historic shift in the delivery of medical care for those injured by occupational exposures has been signaled by the US Senate. Following decades of debate, the proposed emerging health care legislation, amended at the last minute by the Majority Leader's manager amendments, shifts Libby, Montana's asbestos disease claims to Medicare as a primary payor.

The stage was set last June 17th, when the US Environmental Protection Agency (EPA) declared Libby, Montana, a Public Health  Emergency, because of asbestos present at the site. The geographical location was the site of a W.R. Grace vermiculite mine.

The legislative provision was "buried" deep in the legislation at the last moment, reported Robert Pear of the NY Times. The amendment was made Senator Max Baucus of Montana, who lead the Senate legislative committee crafting the legislation. The convoluted political bartering over the last few days reflects a sentinel change in how injured workers may be receiving medical care in the years ahead. It is anticipated that major changes will be offered over the years ahead to modify and expand the coverage.

Occupational diseases have always been problematic to the State workers' compensation systems. They have been subject to serious and costly proof issues. They were "tag along" claims for a compensation system that initially was enacted in 1911 to cover only traumatic claims. The proposed legislation is a first major step to move occupationally induced illnesses into a universal health medical care system and will provide a pilot project for addressing the long awaited need to furnish medical care without serious and costly delays.

By allowing Medicare to become the primary payor and furnish medical care, those without a collateral safety net of insurance will be able to obtain medical care effectively and expeditiously. While cost shifting from workers' compensation to Medicare has been an historically systemic problem in the compensation arena, this legislation maybe a first major step to legitimatize the process. The legislation may allow for great accountability and expansion of the Medicare Secondary Payment Act (MSP) to end cost shifting that has become epidemic in proportion. It is good medicine for an ailing workers' compensation system.


Click here to read more about workers' compensation and universal health care.

California Comp is OK, But Just Don't Get Sick

The RAND Corporation published yet another report evaluating the troubled California workers' compensation system. The report, in its esoteric evaluation, reflects on the poor financial judgment of the industry to meet the needs of the injured workers.

The study misses the focus and humanization of what workers' compensation is all about. The concept of providing a remedial and expeditious remedy to injured workers seems to have been left outside in the company parking lot.

The California problems are not isolated, they are nationally systemic. The system fails to deliver and fails to encourage a safer worker environment. More of the same old thing, as RAND recommends, ie. more business should be covered, and more premiums should be collected, just isn't going to cut it any longer.

Workers' compensation is fine, as long as a worker doesn't get sick. Dormant and latent conditions for the most part remain untreated by the present system. Preventive medical care is non-existent. Medical monitoring is a major struggle to secure.

Occupational disease cases have perpetually lingered through delay and denial tactics, and now the condition needs critical care that a bandaid will not cure. As the NY Times reports in results of a recent poll, the safety net has failed.

Nationally the system needs to re-worked. Injured workers need to receive medical care through an effective and efficient process and not left out in the streets to suffer. Congress needs to act to provide coverage through an expansion of the proposed national health care agenda.

Click here to read more about medical benefits and workers' compensation.

Congress, Health Care & Unintended Consequences

This past week some very dramatic things happened in the workers’ compensation world. The US Senate moved forward on initiating a floor debate on health care. At the same time, a group of workers’ compensation scholars met in Washington DC to discuss the future of workers’ compensation and the interplay with social security disability.

 Highlights of the NASI (National Academy of Social Insurance) conference convened in Washington were findings presented by eminent leaders in the field. Professor John Burton, Rutgers University, pointed out that newly created barriers to workers’ compensation were pushing more injured workers to the Social Security disability system for benefits. This reflects a phenomenon that occurred in the late 1970’s when a study commissioned by the US Department of Labor and conducted by Mt. Sinai Hospitals’ Environmental Sciences Laboratory, revealed that the inadequate benefit delivery system of workers’ compensation for asbestos related illness, was forcing injured workers and their families into the civil justice arena for adequate compensation.

The problems have not changed in decades; they have only gotten worse, maturing into a system that is in critical condition and on life support. In 1980 Irving J. Selikoff, M.D. reported, “There has been widespread acknowledgement of significant problems with disability compensation for workers in the United States. One major area of concern has been the shortcomings with regard to occupational disease. Whatever the suitability of current workers’ compensation systems in the 50 states for injuries and work accidents, there has been little disagreement about the inadequacies of such systems for workers who become disabled by illness or, if they die, for their surviving dependents.”

Complex questions continue to exist between the scientific and legal communities as to the path to be taken. Barriers placed into the path of recovery, including pre-existing and co-existing conditions, which result in limited or delayed recovery and major shifting of the economic responsibility upon the public/private benefit systems need to be removed. The unspoken social consequences continue as a silent epidemic as families and survivors struggle in silence.

Looking backward over the noble experiment in California which turned sour, Tom Rankin, former President of the California Labor Federation, AFL-CIO, expressed his regret of the reform. The former Labor leader theorized that the results were “unintended consequences.” Indeed he is looking forward to solutions springing forth in a “public option” embedded into the national health care legislation.

Some participants at the NASI conference alleged a major shortcoming of the California workers’ compensation legislative reform effort. Doug Kim, a lobbyist for the claimant’s attorneys, disclosed that the injured workers’ advocates were not invited to partake in the discussion that lead up to crafting the initial drafts of the 2004 California reform legislation SB 899.

History reveals, that when the theoretical reforms were practically applied, the injured workers suffered serious setbacks. If these were in fact “unintended consequences,” then one must consider the active involvement of all stakeholders when looking forward to solutions. The courts in California have consistently upheld challenges to the inequitable results, pointing to the legislative intent to reduce costs. Absent from the discussions of the presenters were practical systemic applications to improve the present system. The “blood and guts” of the traumatic, delay and denial, struggles of navigating in a crippled workers’ compensation system, in California and elsewhere, is verification that change is mandated.

As North Carolina attorney, Valerie A. Johnson, so eloquently remarked, “workers’ compensation is supposed to be a simple system.” The process has now been obstructed by encroaching elements of fault, contributory negligence, apportionment of pre-existing conditions and difficulties of the element of time, manifested by latent diseases unknown to the fathers of the system a century ago. The advance of medical science has brought forth new and innovated modalities that have contributed to soaring medical costs. The convergence of these issues has generated higher administrative costs.

Pecuniary Industry motives have worked adversely to improving safety in the workplace. The need for workers’ compensation would be minimized by adopting a safer occupational environment. Under reporting of workplace accidents continue as the Government Accountability Office announced. Nebraska Appleseed reveals that workers feel intimidated and are apprehensive to report injuries and unsafe work conditions. This is scenario is compounded by the fact that undocumented workers, who have even less job security, work in jobs with higher risk. The Bush Administration did not make efforts to allow OSHA to heighten enforcement efforts. All of these ingredients combine to create a recipe that just doesn’t work.

The US Senate advanced the health care legislation to a floor debate in an unusual late Saturday night session. This action may indeed provide an opportunity for the stakeholders in workers’ compensation to all join in the debate and look for solutions to the delivery of appropriate medical care in an efficient and timely fashion. To avoid “unintended consequences” yet again, injured workers and their advocates will need to be active participants and engage in the debate now.

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To read more about workers’ compensation and universal health care solutions click here.

WC Attorney Liable for $359M+ in Legal Malpractice Claim

A NJ workers' compensation attorney who failed to pursue a medical malpractice claim and allowed it to be dismissed was held liable for legal malpractice. The client was injured when a physician punctured the workers' kidney while administering an epidural injection.


To complicate the claim further, the attorney also failed to report the legal malpractice claim to his insurance carrier on a timely basis. In a separate action the legal malpractice insurance carrier was held not liable for the attorney's malpractice.


The workers' compensation claim was settled for $30,000. The liability claim resulted in a judgment, which was entered following a proof hearing, included an award of damages in the amount of $275,000, plus prejudgment interest of $31,453.20, and counsel fees and costs totaling $52,582.17.


Braime v Popovich DOCKET NO. A-3077-07T23077-07T2 NJ App Div Decided 11.6.09 unpublished.


For more about workers' compensation click here.

The Jungle Called Workers’ Comp

Almost a century ago Upton Sinclair authored The Jungle. It is the story of the dangerous work of the meatpacking industry. In a very comprehensive report, “The Speed Kills You,” published by Nebraska Appleseed 2009, the stark realities of the failures of the workers’ compensation system are exposed.

Nebraska Appleseed (Appleseed) is a nonprofit, nonpartisan, public interest law project.  Their principles: “core values, common ground, and equal justice,” guide their mission. Appleseed recruited many scholars, professionals, and community leaders, to assist in the production of the report.

The failings described by the report, while targeted to Nebraska’s meatpacking industry, have universal application and the consequences dramatically reveal the domino effect of an imploding system that has been run off the road and been flung into the ditch.

Appleseed reports that in Nebraska, where 20% of the US meat is processed, the workplace remains a jungle.  After conducting an extensive survey, with input from both employers, employees, academicians and practitioners, the non-profit group reported that deadly speed on the meat packaging line has resulted in an increase in the amount of injuries that go unreported because of employees’ fear of harassment by employers.

The meatpackers, many undocumented workers, suffer from repetitive motion injures caused by working in awkward positions all day.  Their language barrier, lack of knowledge of legal remedies, unfamiliarity with workers’ compensation benefit procedures, further complicate their ability to seek redress.

The noble goals envisioned by the national workers’ compensation system were to provide a summary and remedial benefit to injured workers. The cost of benefits was to be passed onto to the consumer. Safety was not addressed. Unfortunately, it is not a punitive system geared to make the workplace safer. Since its inception in 1911, it has lacked the necessary elements to create an economic incentive for employers to increase safety in the workplace.

The issues identified by the Nebraska study are mirrored throughout the country. Employees lack adequate information about the workers’ compensation, they continue to be subjected to poor ergonomic conditions, inspections by OSHA have been few and far between, and discrimination against employees and a challenge to their dignity continues. There are few penalties imposed against employers for delay and denial of claims. The system has become convoluted, dilatory, and litigious in nature. It now forces an employee to battle a system that blames them for getting hurt.

The workers’ compensation jungle described by the Appleseed report must finally be tamed. Employees should no longer be treated merely as beasts of burden. Injured workers should have their dignity restored. The Appleseed recommendations should be addressed and the entire system, including medical benefit delivery, be improved. To make the workplace jungle safer, employers must be held accountable for the unreasonable actions taken only for their pecuniary gain.
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To read more about medical benefits & workers' compensation click here.

Integration of Benefits Anticipated to Save Money

A recent report indicates substantial economic savings if health insurance (a date based system) was merged with workers’ compensation (an event based system) coverage. The report, authored by a study group headed by Frank Neuhauser, and funded by the California Healthcare Foundation, predicts substantial money savings as well as system efficiency would occur upon integration of benefits.

“Integrating occupational medical care into the more efficient group health model would reduce administration to approximately 12% to 13%. We extend these findings to the US and estimate that the 10- year (2011- 2020) savings of integrating coverage would be between $490 billion and $560 billion, sufficient to pay for between 26% and 78% of the incremental cost of universal coverage.”

The study also indicates substantial savings in the costs of medical care would occur through integration of benefits.

“The savings would result from the much greater efficiency with which health insurance delivers care compared to workers’ compensation insurance. A minority of health insurance premiums (12%-14%) go to cover administration and profit. Workers’ compensation turns this ratio on its head, spending the majority (50%-60%) of premiums on these same overhead costs.”

“If near universal coverage becomes a reality, the medical portion of several types of property casualty insurance could be delivered in a much more efficient manner. Absent  near universal coverage, we will likely have to continue relying on the more costly, but  important role of other insurance models.”
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To read more about workers' compensation and medical benefits click here.

Workers Compensation Insurance Company and PBMs Liability for Drug Abuse

The Wall Street Journal reports today about a claim against  pharmacies as a result of customer drug abuse. In the State of Nevada a case is pending that may confer liability upon a drugstore for the consequences of an accident caused by patient drug abuse. A pharmacy dispensed narcotic painkillers to a Patricia Copening, 35 year old doctor's office receptionist, who killed a 21 year old man in a fatal Las Vegas accident. 


A case is pending against the seven pharmacies (Wal-Mart, Longs Drugs, Walgreen Co., CVS Pharmacy, Rite-Aid, Sav-On and Lam’s Pharmacy) that dispensed 4,800 tablets of the drug for Copening in the 13 months prior to the fatal accident. 


The Nevada Prescription Controlled Substance Abuse Task Force had notified the pharmacies that Copening was “taking an unusual amount of these narcotics.” The vehicle causing the accident was commercially owned by a physician who was involved in a relationship with the driver.


The Nevada Supreme Court will be deciding whether the pharmacies, previously dismissed by the trial court, are liable because they dispense enormous amounts of drugs to Copening that resulted in drug abuse and resulting the fatal accident. 


Where the perimeter of liability may end is unknown. Workers' Compensation insurance companies and their integrated pharmacy benefit managers (PBMs) dispense many narcotics, on an ongoing basis, for pain relief, to injured workers.  The courts may ultimately deem them unprotected by the "exclusivity rule," and they, as ultimate wrongdoers, may become targets for these tragic yet foreseeable events.


To read more about drugs and workers' compensation click here.

Denial Rates: An Insurance Company Tactic That Compounds the Health Care Delivery Problem

As Congress considers changes in the nation’s health care program, US health insurance companies continue to be scrutinized. The methodologies of how insurance companies deny claims are being investigated.

A certified nurse assistant, Amelia Mendoza, age 52, of West Covina, California, was attacked twice in the same week by a patient while working at Huntington Hospital in Pasadena earlier this year. Amelia suffered injuries that resulted in her suffering a stroke in April, falling into a vegetative state and contracting pneumonia. The hospital insurance carrier cut off medical care for her, forcing her from the hospital, and leaving her family responsible for medical care for Amelia’s work-related injury that is the hospital’s responsibility.

Her husband, Ralph Mendoza, who met with reporters and supporters outside the hospital, commented, “I am shocked and extremely disappointed that Huntington Hospital would treat Amelia this way. Amelia gave her all to her job for more than six years, and she deserves better….Amelia was injured doing her job, and the hospital has avoided its responsibility for months. I watch my wonderful wife, a mother of four children, slip away in a vegetative state and I wonder whether she would be healthy today if the hospital had met its responsibility. I want the medical care that my wife deserves.”

After an attack by a violent patient, Amelia was examined in the hospital’s Emergency Room and told to return to work. After a second attack just two days later, Amelia went to the Emergency Room and was told to go to Huntington Hospital’s in-house workers’ compensation clinic. The hospital was aware that Amelia’s blood pressure was dangerously high after the attack, and that the patient had infectious diseases. The hospital even called Amelia and her husband to warn of the health dangers Amelia faced. Yet the hospital’s clinic turned Amelia away, saying they were too busy to see her. Amelia suffered a stroke less than three hours later. The attacks had caused bleeding in her brain.

“The workers’ compensation carrier, Sedgwick, has denied liability for Amelia’s medical care, claiming that their investigation did not support a claim of injury and no medical evidence supports the claim either,” said Amelia’s attorney, Chelsea Glauber of the Glauber/Berenson Law Firm. “Medical evidence does in fact exist which states in no uncertain terms that Amelia’s condition was caused by these attacks at work. Amelia is trapped in a horrible hell, between two insurance companies trying to avoid responsibility. So Huntington Hospital let Amelia go home, in a vegetative state, to be taken care of by her husband, who no matter how loving and well intentioned, is not qualified to provide the critical care that Amelia needs and deserves. What does it say about these insurance companies and a hospital that they would treat a hard-working human being in this awful manner?”

A recent report on insurance companies denial rates reveals that, “When it comes to claim denials, insurers may be putting profits ahead of patients’ best interests. Most major insurance companies have reassigned their medical directors—the doctors who approve or deny claims for medical reasons—to report to their business managers, whose main responsibility is to boost profits.”


An inefficient system is not helpful to anyone, including injured workers, insurance companies, and employers. Wasteful administration should be curbed. The U.S. healthcare system wastes between $505 billion and $850 billion every year, recently reported Robert Kelley, vice president of healthcare analytics at Thomson Reuters.

Lawmakers must concentrate the U.S. health debate on how the delivery of medical care can be more efficient and effective. Delays and denials presently occurring in the workers’ compensation system continue to highlight the fact that injured workers need a universal health care system.

To read more about "health care" and "workers' compensation" click here.

New Jersey’s Shining Star

Significant progress has been made by the NJ Division of Workers’ Compensation (NJ-DWC) in carrying out the legislative mandate for the newly enacted emergent medical care motion practice.   The Honorable Peter J. Calderone, Director and Chief Judge of the NJ-DWC, delivered a highly favorable report to attorneys attending a workers’ compensation seminar yesterday. The academic seminar was sponsored by the New Jersey Institute for Continuing Legal Education.

Judge Calderone’s report, based on intense statistical tracking and personal involvement  of the Director himself, reveals that New Jersey’s injured workers are in fact receiving medical treatment to “cure and relieve their medical conditions” without delay.

The NJ-DWC has approximately 95,000 cases open cases pending in the system each year. The program efficiently and effectively handles disputes as to medical benefits, temporary disability and permanent disability issues.

Two procedural motions are available to parties who seek medical care when a dispute arises. An ordinary motion for medical care, established by regulation,  has been utilized for years, if not decades, as an avenue to seek redress. The ordinary motion addresses the needs of the parties who require medical care but their condition is not emergent. These motions are handled at the local hearing office level and their status reported to the Director every 90 days, as they remain pending. Approximately 2% of the pending claims statewide involve such ordinary medical motions.

As a result of concerns expressed  in the media approximately 2 years ago, alleging long  delays in the handling of claims for emergent medical care, the NJ Legislature, enacted a statutory mechanism to resolve disputes. That motion requires the observance of a stringent time table for judicial action.  In those cases, where there is a need for emergent medical care, and the failure to provide it on a timely basis would result in irreparable harm, the new administrative procedures for an emergent medical motion may be invoked.  

Immediately following the enactment of the statute, almost a year ago, the NJ-DWC proposed Rules to be followed in processing emergent care motions that would conform with the Legislative mandate. The NJ-DWC operated in conformance with the proposed Rules until they were finally adopted on October 5, 2008, which followed a period for public comment, The rules set forth specific criteria and address procedural compliance issues.  The carefully drafted Rules permit those injured workers who are in need of urgent medical care immediate access to the NJ-DWC system for a speedy and efficient resolution of their claim.

Over the last year, Judge Calderone, has taken an active role in reviewing every single motion that has been filed, in consultation with the supervising judge of the district  office where the case has been venued. A joint determination was then made as to whether or not the statutory criteria had been met and the procedural and substantive compliance with the rules addressed.  If there was compliance by the filing party, the NJ-DWC acted immediately to list the matter for a pre-trial conference in an effort to resolve the dispute before the commencement of a trial. This process remains ongoing.

The statistical evidence reported by Judge Calderone reflects the fact that very few cases have utilized the process, and of those filed, almost all have been resolved within a matter of days on an amicable basis. Within the last year, approximately 50 motions have been filed for emergent medical care, and of those, 16 (32%) had actually satisfied the criteria for filing.  Of the 16  that met the criteria  to be listed for a conference,  all of the cases have been resolved at the conference except for two matters during last year, and those had been set down for trial.

Through the efforts and concerns of the NJ Legislature and the Division of Workers’ Compensation, a good system has been made even better. While this favorable aspect of the NJ workers’ compensation system cannot be globally utilized to solve all the short comings of the national health care crisis, it is a star that shines brightly and may provide some guidance in the on going national health care debate.

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For more on "medical treatment" and workers' compensation, click here.

NJ Commissioner of Labor Adopts Rules for Emergent Medical Motions in Workers Compensation Matters

David J. Socolow, Commissioner of Labor and Workforce Development, on September 3, 2009, formally adopted the pending Rules for Emergent Medical Motions. The new Rules became effective on Monday, October 5, 2009 and a notice published in the NJ Register on that date, 41 NJ Register 3807(a).

A public hearing concerning the pending Rules was held on June 2, 2009 and there were no attendees. A written comment was submitted by Kenneth A. Stoller, Senior Counsel, American Insurance Association, Washington, DC. One comment concerned the assessment of fines against an insurance carrier for activities of the employer. The Department declined to modify the pending Rules, but stated, “…the insurance carrier would not be fined or penalized where it is in no way culpable for the violation.”

A typographical correction was recognized. “Upon review, the Department has noticed a typographical error, which it would like to correct through a change on adoption. Specifically, the reference within proposed N.J.A.C. 12:235-3.3(r) to, "the decision and order rendered under (o) above," should read, "the decision and order rendered under (q) above..." Consequently, the Department is substituting "(q)" for "(o)" within N.J.A.C. 12:235-3.3(r).”

The Honorable Peter J. Calderone, Director and Chief Judge of the Division, will discuss the new Rules in an upcoming academic seminar sponsored by the NJ Institute for Continuing Legal Education on Wednesday, October 7, 2009.

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The Rules:

12:235-3.2 General motions for temporary disability and/or medical benefits

(a)-(i) (No change.)

12:235-3.3 Motions for emergent medical care pursuant to N.J.S.A. 34:15-15.3

(a) With or after the filing of a claim petition, a petitioner may file a motion for emergent medical care directly with the district office to which the petition is or will be assigned (See N.J.A.C. 12:235-3.1 for claim petition filing and assignment).

(b) The notice of motion for emergent medical care shall be on a form prescribed by the Division and shall contain or be accompanied by the following:

1. A statement by the petitioner or the petitioner's attorney of the specific request(s) for medical treatment made by the petitioner or the petitioner's attorney to the employer and/or the employer's insurance carrier, including the name of the person(s) to whom the request(s) was/were made;

2. Medical documentation, including a statement by a physician indicating that the petitioner is in need of emergent medical care, that the delay in treatment will result in irreparable harm or damage to the petitioner and the specific nature of the irreparable harm or damage;

3. All medical records relating to the requested medical care, which are in the possession of the petitioner or the petitioner's attorney;

4. Copies of the claim petition and answer.

i. If no answer to the claim petition has been filed, the notice of motion shall include the following information if known by the petitioner: the telephone number and the fax number of the employer, the name of the employer's workers' compensation insurance carrier and the insurance carrier or self-insured employer contact person's telephone number and fax number, as required to be maintained under N.J.A.C. 12:235-3.4; and

5. Proof of service under (c), (d) and (e) below.

(c) Where an answer to the claim petition has been filed by the respondent, the notice of motion and supporting papers shall be served on respondent's attorney by fax and by a one-day delivery service.

(d) Where no answer to the claim petition has been filed by the respondent, the notice of motion and supporting papers shall be served on the employer and, if known by the petitioner, upon the employer's insurance carrier.

1. Service on the employer under this subsection shall be either by personal service or by fax and a one-day delivery service.

2. Service on the insurance carrier under this subsection shall be by fax and a one-day delivery service to the contact person listed pursuant to N.J.A.C. 12:235-3.4.

(e) Where the employer is uninsured or where the employer's insurer is not known by the petitioner, the notice of motion and supporting papers shall, in addition to the requirements under (c) or (d) above, be served on the Uninsured Employer's Fund by fax and by a one-day delivery service.

(f) The date of the personal service, the date of the fax service or the date of receipt of the one-day delivery service, whichever is latest, shall be considered the date of service under (c), (d) and (e) above.

(g) No later than five calendar days after receiving service of the petitioner's notice of motion for emergent medical care, the respondent shall file with the district office an answer to the motion.

(h) Within 15 calendar days after the petitioner has served the notice of motion for emergent medical care upon the appropriate party or parties under (c), (d) and (e) above, the employer or the employer's insurance carrier may have a medical examination of petitioner conducted.

(i) The petitioner is required to attend and cooperate with the medical examination process under (h) above.

(j) Motions for emergent medical care shall take precedence over all other court listings.

(k) The judge should use telephone conferences and afternoon hearings, as appropriate, to expedite the disposition of motions for emergent medical care and to avoid as much as possible the disruption of other court proceedings.

(l) Within five calendar days of the filing of an answer by respondent or, if no answer has been filed, within five calendar days from the date an answer should have been filed, an initial conference on the motion for emergent medical care shall take place.

(m) The district office shall provide notice of the initial conference to the following parties under the following circumstances:

1. Where an answer to the notice of motion for emergent medical care has been filed, the district office shall provide notice of the initial conference by telephone and fax to the petitioner's attorney or petitioner pro se and to the answering party using the telephone numbers and fax numbers indicated in the notice of motion for emergent medical care and the answer, respectively;

2. Where an answer to the notice of motion for emergent medical care has not been filed and where the employer is insured, the district office shall provide notice of the initial conference by telephone and fax to the employer and to the insurance carrier contact person listed in the notice of motion for emergent medical care; or

3. Where an answer to the notice of motion for emergent medical care has not been filed and where the employer is not insured or the insurer is not known, the district office shall provide notice of the initial conference by telephone and fax to the employer and to the Uninsured Employer's Fund.

(n) If the motion for emergent medical care has not been resolved at the initial conference and the employer or the employer's insurance carrier has not requested a medical examination of the petitioner under (h) above, the judge shall hold a hearing on the merits of the motion for emergent medical care as soon as is practicable, but no later than five calendar days from the date of the initial conference.

(o) If the motion for emergent medical care has not been resolved at the initial conference and the employer or employer's insurance carrier has requested a medical examination of the petitioner under (h) above, the judge shall hold a hearing on the merits of the motion for emergent medical care as soon as is practicable after the medical examination of the petitioner, but no later than five calendar days from the date of the medical examination of the petitioner.

(p) With regard to the hearing on the merits of the motion for emergent medical care, the judge may require a continuous trial or may use other procedures to ensure that the motion is expeditiously heard.

(q) The judge hearing the motion for emergent medical care shall render a decision and issue an order on the motion within one business day of the conclusion of the trial testimony.

(r) The judge may supplement the decision and order rendered under(q)above at a later date.

(s) If a motion for emergent medical care does not meet the requirements under this section, but does meet the requirements for a general motion for temporary and/or medical benefits under N.J.A.C. 12:235-3.3, the motion shall be listed and proceed as a general motion for temporary and/or medical benefits.

12:235-3.4 Insurance carrier or self-insured employer contact person procedures pursuant to N.J.S.A. 34:15-15.4

(a) Every insurance carrier providing workers' compensation insurance and every workers' compensation self-insured employer shall designate a contact person who is responsible for responding to issues concerning medical and temporary disability benefits where no claim petition has been filed or where a claim petition has not been answered.

(b) The contact person referred to in (a) above shall also receive notice of motions for emergent medical care under N.J.A.C. 12:235-3.3.

(c) The full name, telephone number, mailing address, e-mail address and fax number of the contact person referred to in (a) above shall be submitted to the Division utilizing the Division's contact person form in the manner instructed on the form.

(d) The Division's contact person form shall be made available on the Division's website and at the Division's district offices.

(e) Any changes of contact person or in information about the contact person shall be immediately submitted to the Division using the Division's contact person form.

(f) After an answer to a claim petition has been filed, the attorney of record for the respondent shall be the point of contact for issues concerning temporary disability and/or medical benefits.

(g) A contact person roster using the information provided under (c) above will be available on the Division's website.

(h) Failure to comply with the requirements of N.J.S.A. 34:15-15.4 or this section shall result in a fine of $2,500 for each day of noncompliance, which fine shall be payable to the Second Injury Fund.

1. The Division shall send notice of noncompliance and of the fine amount by certified mail, return receipt requested, to the business address of the insurance carrier or self-insured employer.

2. The insurance carrier or self-insured employer shall have 30 calendar days to pay the fine or to contest the fine.

3. Where the insurance carrier or self-insured employer contests the fine, the Division shall hold a conference in an attempt to resolve the dispute.

Recodify existing N.J.A.C. 12:235-3.3 through 3.13 as 3.5 through 3.15 (No change in text.)

12:235-3.16 Enforcement

(a) A party may, by written motion pursuant to N.J.A.C. 12:235-3.5(a) and (b), move against an employer, insurance carrier, petitioner, case attorney or any other party to a claim petition for enforcement of any court order or for the enforcement of the requirements of the workers' compensation statute or rules.

(b) The motion under (a) above shall identify the order, statute or regulation sought to be enforced.

(c) The party against whom the motion has been brought shall file a written response to the motion within 14 calendar days of the notice of motion.

(d) The response under (c) above shall include the reasons for any noncompliance and the manner and time period to ensure compliance.

(e) Any time after the 14-day period to respond under (c) above has elapsed and on notice to the parties, the judge shall hold a hearing on the motion.

(f) A judge on his or her own motion may at any time, upon notice to the affected parties, move to enforce a court order or to enforce the requirements of the workers' compensation statute or rules.

(g) Prior to ruling on a motion under (f) above, the judge shall provide the parties an opportunity to respond to the motion and to be heard on the record.

(h) Upon a finding by a judge of noncompliance with a court order or the workers' compensation statute or rules, the judge, in addition to any other remedy provided by law, may take any or all of the following actions:

1. Impose costs and simple interest on any monies due.

i. The judge may impose an additional assessment not to exceed 25 percent on any moneys due if the judge finds the payment delay to be unreasonable;

2. Levy fines or other penalties on parties or case attorneys in an amount not to exceed $5,000 for unreasonable delay or continued noncompliance.

i. A fine shall be imposed by the judge as a form of pecuniary punishment.

ii. A penalty shall be imposed by the judge to reimburse the Division's administrative costs.

iii. The proceeds under this paragraph shall be paid into the Second Injury Fund;

3. Close proofs, dismiss a claim or suppress a defense as to any party;

4. Exclude evidence or witnesses;

5. Take other appropriate case-related action to ensure compliance; and/or

6. Allow a reasonable counsel fee to a prevailing party, where supported by an affidavit of services.

(i) Upon a finding by a judge of noncompliance by a party with a court order or the workers' compensation law or rules, the judge, in addition to any other remedy provided by law, may hold a separate hearing on the issue of contempt.

(j) Following a hearing under (i) above and upon a finding by the judge of contempt, the successful party in the contempt hearing or the judge may file a motion with the Superior Court for contempt action.

(k) Any fine, penalty, assessment or cost imposed by a judge under this section shall be paid by the entity or party found to be in noncompliance and shall not be included in the expense base of an insurance carrier for the purpose of determining rates or as a reimbursement or case expense.

Recodify existing N.J.A.C. 12:235-3.15 and 3.16 as 3.17 and 3.18 (No change in text.)

SUBCHAPTER 7. UNINSURED EMPLOYER'S FUND

12:235-7.1 Purpose; scope

(a)-(d) (No change.)

(e) A petitioner may move to relax or dispense with requirements under this subchapter.

1. After a hearing on the motion to relax or dispense with requirements under this subchapter, the judge may grant the motion upon a finding that the subject requirements under the particular facts of the case are unduly burdensome and that grant of the motion would not adversely affect the UEF.

(f) Where petitioner seeks current medical treatment and/or temporary disability benefits and the only issue is the cancellation or non-renewal of an insurance policy, the judge may order the insurance carrier to provide treatment and/or benefits without prejudice and subject to reimbursement by the employer or, if not paid by the employer, by the UEF, if it is subsequently determined that the policy was not in effect.

(g) (No change in text.)

12:235-7.4 Medical bills; physician's examination

(a) Any medical bills or charges for which petitioner seeks payment from the UEF must be timely submitted by the petitioner to the UEF and be supported by the following:

1. Related treating records, itemized bills and a physician's report, which reflects that the bills and charges were reasonable, necessary and causally related to the work accident or occupational exposure alleged in the claim petition; and

2. Other necessary medical documentation or information required by the UEF.

(b) Any dispute under this section concerning the treating records, bills, physician's report or UEF request for other medical documentation or information shall be determined by the judge after a hearing upon oral or written motion by the UEF or another party.

Recodify existing (b)-(e) as (c)-(f) (No change in text.)

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