Order Now: Workers' Compensation Law 2020 Update

Jon Gelman’s* newly revised and updated treatise on Workers’ Compensation Law has been published by West Group of Egan, MN. The treatise is the most complete and research integrated work available on NJ Workers’ Compensation law.

Medical Providers Prohibited From Reporting to Credit Agencies

NJ Governor Murphy has signed legislation (S.3036) that prohibits a provider to an injured worker of medical, surgical, other treatment, or hospital service pursuant to the workers' compensation law, R.S.34:15-1 et seq., from reporting any portion of their charges which are alleged to be unpaid, to any collection or credit reporting agency, bureau, or data collection facility.

Medical Marijuana and the Supremacy Clause

“Change is the law of life. And those who look only to the past or present are certain to miss the future.” -John F. Kennedy

An unsettled area of the law has emerged between, the widespread adoption by the states to permit prescribed marijuana to relieve certain medical conditions and the strict federal law mandating the substance as a Schedule 1, Controlled Substance [CSA]. With an estimated 43.3 million Americans using the elicited drug, and the challenges of the “opioid epidemic” creating massive addiction and fatal results, the nation’s workers’ compensation system has been challenged to provide adequate authorized medical treatment.

Judicial discretion

Just APPROVED FOR PUBLICATION 12/13/2019 a NJ Appellate case defining expectations and focussing on: judicial discretion, medical treatment and disallowed prescription opioids that do not ”cure and relieve.”

Top NJ Workers' Compensation Decisions of 2019

It has been an active 2019 for workers’ compensation decisions in New Jersey. There have been two NJ Supreme Court opinions and three reported Appellate Court opinions that are noteworthy. From a review of the pending docket the NJ Supreme Court will be reviewing at least 3 very significant issues in 2020 invoking workers’ compensation issues.

Employer-reported non-fatal injury and illness rate unchanged in 2018

The US Bureau of Labor Statistics reported that the rate of nonfatal occupational injuries and illnesses among private industry employees was unchanged for the first time since 2012 at 2.8 cases per 100 full-time equivalent workers in 2018. Workers in private industry incurred 2.8 million injuries or illnesses in 2018.

Governor Murphy Signs Legislation to Dramatically Reform New Jersey's Medical Marijuana Program, Expand Patient Access

Governor Phil Murphy on July 2, 2019 signed the Jake Honig Compassionate Use Medical Cannabis Act to dramatically reform New Jersey’s Medicinal Marijuana Program (MMP) and expand patient access to medical marijuana.

NJ Governor Murphy Signs Legislation to Protect First Responders, Including 9/11 Volunteers

On July 8, 2019, Governor Phil Murphy signed A4882 and S716 into law, which will enhance protections for first responders, including those who volunteered for 9/11 rescue, recovery, and clean-up efforts at World Trade Center sites.

“Thousands of courageous volunteers put their lives on the line in order to save those affected by the devastation of 9/11,” said Governor Murphy. “We will never forget their selfless acts of heroism, just as we will always be grateful for the first responders who put their lives on the line for us every day. Today we send a clear message to all of our heroes: We have your back. I am proud to sign legislation that will ensure the health benefits and compensation that these incredible men and women deserve.”

A4882, also known as “the Bill Ricci World Trade Center Rescue, Recovery, and Cleanup Operations Act,” is named after Lieutenant Bill Ricci, a professional firefighter in Clifton, Passaic County, who volunteered to serve at Ground Zero after the terrorist attacks on September 11, 2001. Lieutenant Ricci was ineligible for an accidental disability retirement under previously existing law. However, through this act, members and retirees who volunteered for 9/11 rescue, recovery, or cleanup operations, like Lieutenant Ricci, will be eligible to receive accidental disability retirement. This act will also create an exception to the normal five-year filing requirement for 9/11-related operations.

S716, also known as “the Thomas P. Canzanella First Century First Responders Protection Act,” is named after Deputy Chief Thomas P. Canzanella, a former Hackensack firefighter and advocate who served at Ground Zero after 9/11. Deputy Chief Canzanella, who was an IAFF state representative, passed away from a heart attack at the age of 50. In 2016, Governor Christie absolute vetoed a previous version of this bill.

Under previously existing law, first responders and firefighters had the burden of proving causation for their illnesses, which often required a significant expense of time and resources. This new law reforms New Jersey’s workers’ compensation law to create a rebuttable presumption of coverage for public safety workers for certain illnesses. For firefighters, those with seven or more years of service who suffer an injury, illness or death caused by certain types of medical conditions would not be required to demonstrate causation or exposure before receiving medical benefits and financial compensation. Other first responders, including first-aid or rescue squad members, police, corrections officers, nurses, medical technicians, and other medical personnel, are also not required to demonstrate causation of illnesses, but are required to provide evidence of exposure.

“The Labor Department works hard to ensure that workers receive all the benefits they are entitled to under the law, and this is especially true for our first-responders,” said New Jersey Department of Labor and Workforce Development Commissioner Robert Asaro-Angelo. “I’m proud to see that New Jersey’s brave men and women on the front lines, who run toward danger to keep the rest of us safe, will now have access to benefits if they become sick or disabled as a result of their heroism on 9/11, and will be taken care of in any future emergency.”

“I am glad that the lawmakers were able to come together on this so quickly to help us,” said Lieutenant Bill Ricci, City of Clifton Firefighter. “It’s great how there were changes made on the fly to help more people as they became aware of the need. Hopefully, only a few will require this legislation, but it’s here now to help all that need it.”

“My family is so honored and so grateful to stand here today. It’s been a very long 12 years without him but to see that this work is going to help so many people is just so powerful,” said Allison Canzanella, daughter of Thomas P. Canzanella. “And, I’m just so proud to be his daughter every single day. Thank you.”

“Today, with the signing of the “Thomas P. Canzanella 21st Century First Responders Protection Act,” Firefighters, first responders, public safety workers, and their families in New Jersey will benefit in the event of an injury, illness or death in the performance of their duties,” said Dominick Marino, President of the Professional Firefighters Association of New Jersey. “On behalf of the PFANJ Executive Board, its members, and their families, I want to thank Assemblywomen Quijano and Senator Greenstein for sponsoring and working to get the “Thomas P. Canzanella 21st Century First Responders Protection Act” passed and thank Governor Murphy for signing it into law.”

“The IAFF is proud to see New Jersey recognizing the dangers of occupational cancer our members encounter,” said Harold Schaitberger, General President of the International Association of Fire Fighters. “The “Thomas P. Canzanella Twenty First Century First Responders Protection Act” will help care for fire fighters who are sick as a result of doing their duty of protecting their community.”

“It is time that we the citizens of New Jersey protect our police and fire as they protect us. The signing of these 2 bills is a beginning of this endeavor,” said Robert Fox, President of the New Jersey State Fraternal Order of Police. “I thank the Governor, the Assembly, and the Senate for their actions to get these bills signed into law.”

“With the signing of these bills today, Governor Murphy and the Legislature guarantee the brave men and women who answered the call on 9/11 are not forgotten,” said Pat Colligan, President of the New Jersey State Policemen’s Benevolent Association. “Those officers who bravely went into harm’s way and have dealt with the health consequences now have the reassurance they will be covered. I want to thank the Governor and Legislature for assuring our heroes that they are not abandoned.”

“The NJFMBA thanks the Governor and Legislature for moving this important legislation and signing them in Jersey City,” said Wayne Wolk, Executive Vice President of the New Jersey State Firefighters’ Mutual Benevolent Association. “Seventeen years ago, our elected officials promised to never forget the sacrifices first responders made on September 11th and the weeks and months that followed. Today, our elected officials showed that here in New Jersey, they keep their promises.”

“I want to thank everyone for their hard work in getting this bill passed, including the Governor, the Legislature, and most of all, the brave responders who answered the call on 9/11,” said Dr. Iris Udasin, Medical Director of the World Trade Center Clinic, Rutgers’ Environmental and Occupational Health Sciences Institute.

Primary sponsors of A4882, also known as, “the Bill Ricci World Trade Center Rescue, Recovery, and Cleanup Operations Act,” include Assemblymembers James Kennedy, Jamel Holley, and Andrew Zwicker, and Senators Nicholas Scutari and Joseph Lagana.

“When police and firefighters in New Jersey received word that two planes had struck the World Trade Center on September 11, 2001, many of them didn’t hesitate before responding to the scene, even though they were not specifically ordered to go,” said Assemblyman James Kennedy. “Unfortunately, some suffered permanent or total disability. Due to the fact that they responded as volunteers, they have not been entitled to the same compensation as their counterparts who were considered to be ‘on the job’ that day. This law changes that.”

All of the heroic men and women who responded to Ground Zero deserve our utmost respect and admiration, regardless of whether they were on the clock,” said Assemblyman Jamel Holley. “They all saw the same terror, took the same risks, and worked towards the same goal. If their health has been affected in the time since, they all should be eligible for the same disability allowance.”

“Our country is still feeling the effects of 9/11 today. The impact on those who were there – particularly our first responders – remains even more prevalent,” said Assemblyman Andrew Zwicker. “We can go further to honor our first responders by ensuring they are recognized and compensated for their service on 9/11, voluntary or otherwise. They deserve nothing less.”

“Many of these brave men and women are suffering from serious illnesses traced back to their efforts at Ground Zero,” said Senator Nicholas Scutari. “This law will provide much needed financial support for these individuals whose health was drastically effected when they heroically put their country first on 9/11.”

“In the aftermath of 9/11, first responders from our state displayed absolute heroism, facing fear and uncertainty head-on. Now, these brave individuals will finally be able to receive the increased benefits of accidental disability they deserve,” said Senator Joseph Lagana. “This is an easy decision to make to help our resident heroes who are facing medical conditions related to the Ground Zero cleanup. Guaranteeing these benefits is the least we can do for these brave men and women.”

Primary sponsors of S716, also known as, “the Thomas P. Canzanella First Century First Responders Protection Act,” include Senators Linda Greenstein, Christopher Bateman, and Joseph Lagana, and Assemblymembers Anette Quijano, Daniel Benson, and Verlina Reynolds-Jackson.

“First-responders should not have to fight to receive treatment or compensation related to on-the-job exposure to toxins and pathogens,” said Senator Linda Greenstein. “This law recognizes that symptoms of illnesses may not be immediate and ensures that no matter when symptoms occur, our emergency personnel are protected.”

“First responders run towards danger with the sole goal of saving lives. We have already seen far too many pay a price for that heroic sacrifice. We need to ensure these heroes get the medical care they earned in the line of duty,”said Senator Christopher Kip Bateman. “This law is the least we can do to thank the bravest among us for their unwavering commitment to keeping us safe.”

“These workers are our first line of defense. Their jobs are not only stressful, they are dangerous,” said Assemblywoman Annette Quijano. “This new law ensures that public safety workers are adequately covered if they suffer a debilitating illness or worse related to their duties at work.”

“Public safety workers expose themselves to dangerous situations that could prove debilitating and even deadly,” said Assemblyman Dan Benson. “Most importantly, the work can be a significant health hazard. Our workers deserve comparable coverage.”

“These workers put their lives on the line for the safety of others,” said Assemblywoman Verlina Reynolds-Jackson. “They should never have to question whether they will be compensated accordingly for the sacrifices that they make.”

….
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.

Firefighter and Public Safety Officer Presumption Bill Advances

Firefighter and public safety officer presumption bill advances and creates a rebuttable presumption of workers’ compensation coverage for public safety workers and other employees in certain circumstances. 

The bill affirms that if, in the course of employment, a public safety worker is exposed to a serious communicable disease or a biological warfare or epidemic-related pathogen or biological toxin, all care or treatment of the worker, including services needed to ascertain whether the worker contracted the disease, shall be compensable under workers' compensation, even if the worker is found not to have contracted the disease. If the worker is found to have contracted a disease, there shall be a rebuttable presumption that any injury, disability, chronic or corollary illness or death caused by the disease is compensable under workers' compensation. 

The bill affirms workers’ compensation coverage for any injury, illness or death of any employee, including an employee who is not a public safety worker, arising from the administration of a vaccine related to threatened or potential bioterrorism or epidemic as part of an inoculation program in connection with the employee’s employment or in connection with any governmental program or recommendation for the inoculation of workers. 

The bill creates a rebuttable presumption that any condition or impairment of health of a public safety worker which may be caused by exposure to cancer-causing radiation or radioactive substances is a compensable occupational disease under workers' compensation if the worker was exposed to a carcinogen, or the cancer-causing radiation or radioactive substance, in the course of employment. Employers are required to maintain records of instances of the workers deployed where the presence of known carcinogens was indicated by documents provided to local fire or police departments under the “Worker and Community Right to Know Act,” P.L.1983, c.315 (C.34:5A-1 et seq.) and where events occurred which could result in exposure to those carcinogens. 

In the case of any firefighter with seven or more years of service, the bill creates a rebuttable presumption that, if the firefighter suffers an injury, illness or death which may be caused by cancer, the cancer is a compensable occupational disease. 

The bill provides that, with respect to all of the rebuttable presumptions of coverage, employers may require workers to undergo, at employer expense, reasonable testing, evaluation and monitoring of worker health conditions relevant to determining whether exposures or other presumed causes are actually linked to the deaths, illnesses or disabilities, and further provides that the presumptions of compensability are not adversely affected by failures of employers to require testing, evaluation or monitoring. 

The public safety workers covered by the bill include paid or volunteer emergency, correctional, fire, police and medical personnel. 

This bill was pre-filed for introduction in the 2018-2019 session pending technical review. As reported, the bill includes the changes required by technical review, which has been performed. 

The following bill(s) have been scheduled for a committee or a legislative session. 

The following bill(s) have been scheduled for a committee or a legislative session.
A1741:
Quijano, Annette/Benson, Daniel R./Lagana, Joseph A.
"Thomas P. Canzanella Twenty First Century First Responders Protection Act"; concerns workers' compensation for public safety workers.
6/20/2019 1:00:00 PM Assembly
Voting Session
Assembly Chambers
http://www.njleg.state.nj.us/bills/BillView.asp?BillNumber=A1741

S716:
Greenstein, Linda R./Bateman, Christopher
"Thomas P. Canzanella Twenty First Century First Responders Protection Act"; concerns workers' compensation for public safety workers.
6/20/2019 1:00:00 PM Assembly
Voting Session
Assembly Chambers
http://www.njleg.state.nj.us/bills/BillView.asp?BillNumber=S716

…. 

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.

Updated: 06-15-2019

New Opioid Prescription Regulations

Attorney General Gurbir S. Grewal and the New Jersey Division of Consumer Affairs, together with the New Jersey Coordinator for Addiction Responses and Enforcement Strategies ("NJ CARES"), today announced a series of regulatory actions that will advance the State’s battle to end the opioid epidemic, including proposed rules that will expand access to the prevention and treatment of opioid use disorder through telemedicine.

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.

Correct Way to Contest a Lien

Attorneys should follow the correct procedures to contest a lien asserted by a workers’ compensation insurance carrier. A recent case provides instructions on the appropriate techniques.

Federal opioid limitations: Good intentions, bad outcomes

Today's guest author is Jon Rehm, Esq. of the Nebraska bar.

Senate Republicans and Democrats, including Presidential candidate Kirsten Gillibrand, have introduced legislation that would limit opioid prescriptions to a set number of days and limit refills. In my view such legislation would negatively impact people who were injured on the job.

I mostly agree with analysis of the legislation that was recently published in Rewire. One size fits all solutions don’t account for the needs of patients with chronic pain. Recently authors of the Centers for Disease Control guidelines for opioid prescriptions have stated that those guidelines have been misused to arbitrarily limit opioid prescriptions for pain management.

As a practical matter, in my experience prescriptions for opioids are already severely limited for injured workers. Statutory limits on opioids are a good excuse for insurers and self-insureds to wash their hands of future medical care obligations under workers compensation.

Opioid prescription limitations have other effects. Pain doctors who don’t prescribe opioids have more time to perform procedures. Procedures are more profitable for doctors and increase cost. Primary care doctors are often reluctant to prescribe opioids which puts more pressure on pain management doctors. 

There are alternatives to opioids for pain management. Stem cell therapy has shown promise in treating pain. But insurers are reluctant to approve those options as that could increase costs for them and leave medical claims under workers’ compensation open.

I believe that opioid prescription monitoring is a better solution to fighting addiction than prescription limits. Those systems can flag potential problem users and get them help. In the case of someone hurt on the job who develops an addiction to pain medication, treatment for that addiction could be covered by workers compensation.

Massachusetts also developed what amounts to a drug court for opioids within their workers’ compensation court. Problem solving courts, like drug courts, are being increasingly used to help those with substance use issues in the criminal justice system. Massachusetts has adopted the idea in an administrative setting. Federal limits on opioid prescriptions would run counter to innovative programs put in place at a state and local level.

Workers compensation laws developed in the early 20th century when workplace safety laws could only be constitutionally enacted through state police powers under the 10th Amendment. Constitutional law evolved changed during the New Deal era which gave Congress broader regulatory powers over workplace safety and the economy in general.

As a result of the broadening of federal regulatory powers, federal laws limiting opioid prescriptions would likely be constitutional even if they interfered with innovative state programs like Massachusetts workers’ compensation opioid court. While the federal government seems to feel compelled to undercut state workers compensation laws to the detriment of workers, the federal government has given up on oversight of state workers compensation laws that could benefit workers.

The United States Department of Labor monitored state workers compensation laws as result of recommendations from the National Commission on State Workers Compensation Laws.The Commission set up 18 standards for state laws. The DOL stopped overseeing state workers compensation laws in 2004.

In 2015 several Senators and Congressional members, including then and current Presidential candidate, Vermont Senator Bernie Sanders, wrote to the Secretary of Labor about reinstating federal oversight of state workers compensation laws. Reporting by Pro Publica highlighted the shortcomings of state workers’ compensation laws The Department of Labor has made no progress on federal oversight of state workers’ compensation laws since then.

See also:

The Oklahoma Settlement: A Promising Impact on Workers' Compensation

State of NJ Sues a NJ Based Opioid Manufacturer Seeking Reimbursement for Workers' Compensation

Editorial: Why is the Florida Senate helping drug companies in opioid lawsuit?

Expert witness in opioids MDL: Fixing crisis will cost $438 billion

….

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  1.973.696.7900  jon@gelmans.com  has been representing injured workers and their families who have suffered occupational accidents and illnesses.

House Appropriations Committee Releases Discretionary Labor-HHS Funding Bill

Worker safety and health is a focus of the just released House Committee on Appropriations. The Legislation increases discretionary funding by $11.7 billion from the 2019 level, investing in education, health care, medical research, and job training so people have a better chance at a better life; Bill funds firearm injury and mortality prevention research at CDC for first time in more than 20 years.

Occupational Exposure to Diacetyl and Acetaldehyde Results in Compensable Colorectal Cancer

An employee exposed at work to flavoring ingredients including Diacetyl and Acetaldehyde, was awarded workers’ compensation benefits as a result of being diagnosed with colorectal cancer. The case is significant because the Court adopted scientific evidence that associated chemical exposure in the workplace to an increased risk of a malignancy based on expert testimony that by DNA testing, the exposed worker’s body could not detoxify from the hazardous chemical.

Judicial Enforcement is Limited in Workers’ Compensation Claims

The enforcement provisions of the Workers’ Compensation Act [WCA] are strictly limited. Judges of Compensation are mandated to follow the statute, regulations and the specific facts in addressing enforcement issues.

US FDA Moves to Further Regulate Marijuana Products

US Food and Drug Administration [FDA] announced a public hearing to obtain scientific data and information about the safety, manufacturing, product quality, marketing, labeling, and sale of products containing cannabis or cannabis-derived compounds.

Failure to Attend Employer Exam is Not Insubordination

A municipal who failed to attend a workers’ compensation medical appointment scheduled by his employer cannot be charged with subordination. N.J.A.C. 4A:2-2.3(a)(2), N.J.A.C. 2-2.3(a)(12).

The Oklahoma Opioid Settlement: A Promising Impact on Workers’ Compensation

The first major settlement in the nation’s massive litigation effort against the manufacturers of opioids may present an outline of how the effort will affect workers’ compensation programs throughout the United States. The settlement outlines a substantial contribution to assist those individuals negatively affected by opioid addiction. 

The Oklahoma Attorney general yesterday announced an historical settlement in the pending state’s opioid litigation. Attorney General Mike Hunter and Oklahoma State University leaders  announced an historic settlement with Purdue Pharma that will establish a nearly $200 million endowment at the Oklahoma State University’s Center for Wellness and Recovery, which will go toward treating the ongoing addiction epidemic nationwide. 

“‘The addiction crisis facing our state and nation is a clear and present danger,’ Attorney General Hunter said. ‘Last year alone, out of the more than 3,000 Oklahomans admitted to the hospital for a non-fatal overdose, 80 percent involved a prescription opioid medication. Additionally, nearly 50 percent of Oklahomans who died from a drug overdose in 2018 were attributed to a pharmaceutical drug. Deploying the money from this settlement immediately allows us to decisively treat addiction illness and save lives.” 

Joseph F. Rice, Esq., of Motley Rice LLC, co-lead counsel and a member of the Plaintiffs’ Executive Committee for the National Prescription Opiate Multidistrict Litigation, coordinated in the Northern District of Ohio, commented, “This is a significant step in the effort of the governmental entities around the country to address the opioid epidemic. Purdue Pharma and the Sackler family, by entering into this settlement, have taken a step forward to address what has been alleged as decades of misinformation, inappropriate marketing and efforts to grow the use of opioids, some of the most addictive narcotic drugs in our society.” 

The US Centers for Disease Control [CDC] has reported that from 1999-2017 almost 400,000 people died from an overdose involving any opioids, including prescription and illicit opioids. On the average, 130 Americans dies every day from an opioid overdose. 

Treatment of work related injuries and the resulting pain have produced an epidemic of opioid related addiction and fatalities. The CDC issued guidelines in 2016 for the prescription of opioids. New safety warnings were also added to all prescription opioid medications. State laws were enacted to add restrictions and limitation on opioid prescriptions. The NJ Attorney General has filed a lawsuit against a subsidiary of NJ based Johnson and Johnson seeking reimbursement for workers' compensation costs resulting from deceptive opioid advertising. At least 33 states have sued the opioid manufacturers. This is a significant action as Johnson and Johnson is a major player in New Jersey's economy. 

An unintended consequence of the restrictions placed on the prescription of opioids has been the inability of injured workers to obtain adequate pain relief. Suicide rates have increased, John Heubusch, a cancer patient, writing in the Washington Post stated, “ We have reached the point where doctors believe the next prescription they write for opioids to treat chronic pain might be their last. In my own case, I’ve had to undergo countless unsuccessful procedures and near superhuman efforts to be granted barely enough medication to try to live a normal life. Even those doctors with the courage to prescribe them for chronic pain sufferers are finding the hurdles established by federal and state reporting requirements so onerous that they are simply turning patients away.”…..”Opioid prescriptions have shrunk substantially, but Washington’s goal now is to cut their number by a further one-third. In a bitter irony, opioid overdose deaths continue to hover at an all-time high. Many chronic pain patients, denied prescriptions, are self-medicating on the street, using synthetic drugs such as fentanyl, 50 times more powerful than heroin. There, danger and overdose lurk around every corner. Even worse, some who have lost all hope for pain relief are choosing to end their pain by ending it all. The risk of suicide among patients with chronic pain is twice that of those without it." 

The Oklahoma settlement is an staring effort to the resolution of the opioid epidemic and the its consequences. Hopefully, this will bring those responsible for the opioid problem to the table to discuss sensible solutions so that injured workers’ can be provided medical care to relieve their pain without resulting addiction and death. This promising future would economically benefit employers, workers’ compensation insurance companies, and public entities that medically treat workplace injuries. All stakeholders involved in the workers’ compensation system hopefully can look to a more promising future.

See also:
New York Sues Sackler Family Members and Drug Distributors (NY Times 3/29/2019)
New York State 1st Amended Complaint (3/28/2019)

….

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  1.973.696.7900  jon@gelmans.com  has been representing injured workers and their families who have suffered occupational accidents and illnesses.

Updated: 3/29/2019

Medical Treatment is an Exclusive Remedy Not a Reasonable Accommodation

The NJ Supreme Court has held that the provision of medical treatment does not equate to a "reasonable accommodation", therefore an employee cannot claim under the Law Against Discrimination [LAD] that failure to provide medical care was actionable. The provision of medical treatment is an exclusive remedy of the Workers’ Compensation Act.