Insuring Disabled Seniors and The Public Option

Disabled workers over the age of 65 have difficult decisions to make concerning health insurance. Those who rely upon workers’ compensation and Medicare to cover all their medical costs are in for a rude awakening. John D. Podesta and colleagues reported difficulties in the present system that seniors utilize.  “The gaps in coverage, the high cost of insurance, and the quality of care that consumers receive are the most frequently cited problems" in the present medical delivery system. Disabled workers will also have their strife compounded by the fact that Congress anticipates an increase of 15% in basic Medicare premiums next year.

Workers’ compensation insurance usually covers medical conditions that "arise out of and are in the course of employment." Treatment extends to medical care that is reasonable and related to cure the work related condition and relieve the symptoms. Workers’ compensation was not intended to any for conditions that are not work related.

Medicare provides coverage to disabled workers and those who are over 65 years of age. It does not extend coverage to those conditions that are work related. In fact, Medicare, under the Medicare Secondary Payer Act (MSP), will seek reimbursement from the injured employee for those medical conditions related to the employment, but Medicare may have accidentally or conditionally paid for.

The Federal system now keeps a tight rein to avoid duplication of benefits. As of July 1, 2009, the workers’ compensation insurance carriers are now subject to mandatory reporting of those eligible or anticipated to be eligible for workers’ compensation benefits. Medicare seeks to participate in the review of any settlement in workers’ compensation by eligible beneficiaries through an elaborate voluntary scheme of workers’ compensation set aside agreements (WCMSA).

The coverage scenario is complicated further by so called “Medigap policies” sold by private insurance companies that provide supplemental health insurance to those on Medicare for services and benefits not covered by the Federal government.  The Kaiser Family Foundation reports, that “Most Medicare beneficiaries (89%) had some form of supplemental health insurance coverage in 2007. More than a third of all beneficiaries (34%) had coverage from an employer-sponsored plan, 22% were in Medicare Advantage plans, 17% purchased supplemental insurance (Medigap) policies, and 15% were covered by Medicaid (generally those with very low incomes and modest assets). Eleven percent [4.48 million] had no supplemental coverage [emphasis added].”

Those who lack coverage, avoid or forgo, medical care. Underlying medical conditions, even those that are work related, may become aggravated or accelerated. The “gap” in coverage for the some disabled workers, that exists in the system, creates additional risk factors for not only those that fall within the gap, but also as to general community health and well being.

The gap in disability insurance converge will need to be debated as Congress goes forward in the health care debate. As Speaker Nancy Pelosie (D-Calif) surveys Congress in anticipation of her final draft of a "public option," the discussion continues in Washington. A universal approach is warranted to bridge the gap for affordable and meaningful coverage.

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

CDC Reports Flu Widespread - Is the US Workers’ Compensation System Ready?

The US Centers for Disease Control (CDC) has announced that Flu is now “widespread” in 41 States and that deaths attributed to both pneumonia and influenza have increased and exceed what is normally expected for this time of the year.  The workers’ compensation system has never faced a challenge as extensive as what appears unfolding on the horizon. The method and manner of the delivery of benefits will be further complicated by, the broad spectrum of needs from protecting the spread of the disease, as well as treating those who are ill.

Forty-one states are reporting widespread influenza activity at this time according to the CDC. They are: Alabama, Alaska, Arizona, Arkansas, California, Colorado, Delaware, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maryland, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, South Dakota, Texas, Tennessee, Utah, Virginia, Washington, West Virginia, Wisconsin, and Wyoming.  

Last month the CDC released a guide to business to prepare for the threat of the Flu. Despite the fact that the CDC has directed ill healthcare workers to stay home, workers’ compensation commentators continue to infer that Flu claims should be absolutely defended, and in fact, ill healthcare workers and sick employees should be held to a higher standard of proof to obtain benefits.

As challenges to mandatory vaccination programs meander thorough the courts, and voluntary/mandatory absenteeism programs are implemented, the ability of the system to quickly reimburse wages for lost time from work and provide medical benefits for treatment of the contagious disease, remains questionable. Should claims be filed by even a percentage of those workers who become ill, the system, which itself is anticipated to be overtaxed, may not be able the handle the volume on an emergent basis.

So far there has been silence about  workers’ compensation flu pandemic planning. While the Federal and State governments have rules and regulations in their arsenal to meet the challenge, this is an issue where workers’ compensation should be first in line to deliver benefits to sick workers.

For more articles on Workers' Compensation and the Flu Pandemic click here.

Nebraska Adopts Workers Compensation Lump-Sum Settlements Without Court Review

The State of Nebraska has moved forward administratively and now permits the settlement of workers’ compensation claims without Court approval. The parties need only file a release with the Court. The injured workers must be represented by counsel and the settlements are limited to those involving lump-sum amounts.

“Notice Effective May 27, 2009, the Nebraska Workers’ Compensation Act was amended to eliminate court review of certain lump-sum settlements. Legislative Bill 630 provides that in cases where lump-sum settlements are not required to be submitted for approval by the compensation court, a release shall be filed. LB 630 further provides that the release shall be made on a form approved by the compensation court.

“48-136 The interested parties shall have the right to settle all matters of compensation between themselves with the consent of the workers’ compensation insurer, if any, and in accordance with the Nebraska Workers’ Compensation Act. A copy of such settlement, duly verified by all parties, shall be filed with the Nebraska Workers’ Compensation Court and no  such settlement shall be binding unless the settlement is in accordance with such act.”

For more on "workers' compensation" click here.

RICO Claim Alleging Underlying Workers Compensation Fraud Dismissed

A Federal Judge dismissed a case where the alleged misrepresentation of employment status in an underlying State court workers’ compensation case was pleaded as an alleged basis  of a RICO (Racketeer Influenced and Corrupt Organizations Act) action18 U.S.C. § 1961(c). The court held that a federal racketeering action, filed as a RICO action arising  out of a workers’ compensation claim utilizing mail and wire, must demonstrate multiple verifiable activity of facts demonstrating fraudulent action in order to sustain the burden of proof.

The Court reasoned:

"It is well established that “misrepresentations of the law are not actionable as fraud, including under the mail and wire fraud statutes because statements of the law are considered merely opinions and may not be relied upon absent special circumstances.” Sosa v. DIRECTV, Inc., 437 F.3d 616, 621 (9th Cir.2006). Therefore, Plaintiff’s allegations that the Macedos Defendants committed wire and mail fraud by virtue of falsely claiming that Defendant Jose Moreira was an employee of the Macedos Construction Co., Inc. in order obtain Workers’ Compensation benefits is not actionable as mail and wire fraud."

Virginia Sur. Co., Inc. v. Macedo, Slip Copy-Unpublished, 2009 WL 3230909, D.N.J., September 30, 2009 (NO. CIV.A.08-5586JAG)

For more on RICO actions and workers' compensation click here.

CDC Issues H1N1 Flu Guidance to Healthcare Personnel-"stay home"

In an urgent need to protect healthcare workers from H1N1 Flu, the today CDC has issued guidance on infection control measures to prevent transmission of 2009 H1N1 influenza in healthcare facilities. The CDC continues to recommend that healthcare workers take time away from work if they are ill. The issue unanswered is whether workers' compensation insurance will pay temporary disability benefits for the absence?


The CDC has defined healthcare personnel as, "....For the purposes of this guidance, healthcare personnel are defined as all persons whose occupational activities involve contact with patients or contaminated material in a healthcare, home healthcare, or clinical laboratory setting. Healthcare personnel are engaged in a range of occupations, many of which include patient contact even though they do not involve direct provision of patient care, such as dietary and housekeeping services. This guidance applies to healthcare personnel working in the following settings:  acute care hospitals, nursing homes, skilled nursing facilities, physician’s offices, urgent care centers, outpatient clinics, and home healthcare agencies.  It also includes those working in clinical settings within non-healthcare institutions, such as school nurses or personnel staffing clinics in correctional facilities. The term “healthcare personnel” includes not only employees of the organization or agency, but also contractors, clinicians, volunteers, students, trainees, clergy, and others who may come in contact with patients."

Healthcare personnel who develop a fever and respiratory symptoms should be:
• Instructed not to report to work, or if at work, to promptly notify their supervisor and infection control personnel/occupational health.
• Excluded from work for at least 24 hours after they no longer have a fever, without the use of fever-reducing medicines.

For more articles on Workers' Compensation and the Flu Pandemic click here.

Are Driving Distractions Within the Course of the Employment?

The US Department of Transportation recently held a national summit on the issues arising from distracted driving. The facts presented were certainly convincing that distracted driving is a leading cause of accidents.   

• Distracted driving is dangerous. Distraction from cell phone use while driving (hand held or hands free) delays a driver's reactions as much as having a blood alcohol concentration at the legal limit of .08 percent. (University of Utah)
• Driving while using a cell phone reduces the amount of brain activity associated with driving by 37 percent. (Carnegie Mellon)
  
• 80 percent of crashes are related to driver inattention. There are certain activities that may be more dangerous than talking on a cell phone. However, cell phone use occurs more frequently and for longer durations than other, riskier behaviors. Thus, the #1 source of driver inattention is cell phones. (Virginia Tech 100-car study for NHTSA)
  
• Drivers that use handheld devices are four times as likely to get into crashes serious enough to injure themselves. (Insurance Institute for Highway Safety)
  
• Nearly 6,000 people died in 2008 in crashes involving a distracted or inattentive driver, and more than half a million were injured. (NHTSA)
• Research shows that the worst offenders are the youngest and least experienced drivers: men and women under 20 years of age. (NHTSA)
  
• On any given day in 2008, more than 800,000 vehicles were driven by someone using a hand-held cell phone. (National Safety Council)

Kristin Backstrom, AAA Foundation for Traffic Safety, testified that, “People who wouldn't get drunk and drive somehow think it's OK to text and drive - which is just as dangerous.

Public policy has always swayed the direction of the legislature. The facts surrounding distracted driving  will probably no exception. Whether this activity can be considered by the courts, as "arising out of and in the course of the employment," or whether the legislature will merely bar compensability if distracted driving is a cause of an accident, has yet to be determined. 
.........
For more on "distracted driving" please click here.

Medicare's Aggressive Debt Collection Practice

A recent article in Mother Jones reports upon the adverse consequences of Medicare's aggressive debt collection practices upon the aging population. The article describes the evolution of the Medicare's debt collection practice, from initially using the attorneys for the beneficiaries as debt collectors, though the new shift of responsibility to insurance carriers through mandatory reporting.

The author predicts, "The prospect of harsher penalties is already leading to insurance company overkill that, combined with Medicare's bureaucracy, has kept some elderly folks from receiving money that's rightfully owed them."
.....
To read more about CMS and Workers' Compensation click here.

Bus Driver Assaulted by Gun Denied Benefits

A Pennsylvania Appeals Board has ruled that a bus driver who was assaulted by a passenger with  gun did not suffer a compensable accident. The driver alleged that he suffered several medical conditions including:  post-traumatic stress disorder, anxiety depressive disorder and insomnia.


The employer asserted that assaults could be anticipated and were normal  working condition. " SEPTA's workers' compensation coordinator Michael Selvato testified about the records of assaults on operators in an effort to show that the incident was not abnormal. He explained that between June 1 and November 1, 2005 there were 292 passenger disturbances on SEPTA busses and 11 assaults on operators; between November 1, 2005 and June 1, 2006 there were 738 disturbances and 33 assaults; and between June 1, 2006 and June 25, 2007 there were 62 assaults on bus drivers. Selvato noted that there had been two bus drivers threatened with a gun from the beginning of 2007 until the time of the hearing on August 23, 2007. During his time as a trolley driver for SEPTA, Selvato had not been accosted with a gun, but he had been assaulted and threatened with a knife."


In ruling against the worker, the Appeals Board concluded that the working conditions were normal for the job and that the injured worker had not sustained the burden of proof to demonstrate that his "his injury was not a subjective reaction to normal work conditions."


McLaurin v. W.C.A.B. (SEPTA) , 2009 WL 2612578, Pa. Comwlth. 2009)

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.

.......

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

The Toxic Legacy in Iraq

The Public Education Center (PEC) has published the second in a series of investigative articles concerning the toxic exposure of Army National Guard Units to cancer-casuing chemicals allegedly released by a government contractor, KBR, Inc.

The exposure was a result of a release by KBR, Inc. to, “...dichromate, a rust-fighting industrial chemical and highly-concentrated hexavalent chromium compound, Hexavalent chromium.” Hexavalent chromium has been described as the most toxic chemical known to man.

The series entitled, “No Contractor Left Behind,” chronicles “...chronicles how a toxic time bomb followed three Army National Guard units home from Iraq. It reveals how a notorious military contractor exposed American soldiers to a cancer-causing carcinogen on the battlefield and how the Pentagon tried to downplay the consequences. And it describes how Congress has relegated its investigation to a toothless forum that lacks the political clout and oversight powers to ensure effective accountability.”

A law suit has been filed by 30 West Virginia National Guardsman because of the exposure. Last month a Pittsburg shoulder who served in Iraq and was also exposed filed a law suit seeking damages for the consequences of his exposure.

For additional article on the Halliburton-KBR Litigation click here.

Injured Workers Law & Advocacy Group

The Injured Workers Law & Advocacy Group is an open Linkedin group provides news and open discussions concerning national workers' compensation trends. It is maintained for academic purposes to facilitate national policy discussions. Multiple news feeds and discussion postings are available free of charge.

Workers' compensation is a national system established in the US in early 1900's. The concept of a compensable industrial disease has developed only recently and its acceptance has lagged far behind that of industrial accidents.

The original Workers' Compensation Acts, as promulgated from the year 1911 forward by many of the states, did not provide for the recognition of occupational illness and disease as compensable events. As demands have been placed upon the medical system to treat and to prevent occupational illness, the legal system, under social, economic, and political pressure, has sought to provide a remedy for the thousands of injured workers who have suffered and who are continuing to suffer from occupational illness and disease.

Join the Injured Workers Law & Advocacy Group on Linkedin and stay informed.

Supreme Court Declines to Review a RICO Case

On the eve of the new US Supreme Court Term, the Court declined to review a claim involving a RICO allegation. Schoedinger v. United Healthcare of Midwest, Inc., 557 F.3d 872, RICO Bus.Disp.Guide 11,648, 46 Employee Benefits Cas. 1283 (8th Cir.(Mo.), Mar 05, 2009) (NO. 07-3317) was denied certification.

In Schoedinger a Petition for Certiorari had been filed to the US Supreme Court in a RICO claim involving a medical provider who claims an insurance company committed fraud in processing the provider's bills for services. George Schroedinger, MD had filed a Petition to seek review of a Eight Circuit decision that over turned a favorable RICO action against United Healthcare of the Midwest, Inc.

Whether this is predictive of the outcome of the pending workers' Compensation RICO matter remains unknown. A Petition for Certiorari was also filed in Brown v. Cassens Transport Co., 546 F.3d 347 (6th Cir. Oct 23, 2008) (NO. 05-2089), following the rehearing and rehearing en banc denied (Jan 05, 2009). Brown is a landmark decision of immense national significance, the US Sixth Circuit Court of Appeals ruled that a RICO claim brought by injured workers against their employer, insurance carrier and employer medical expert could proceed. The Brown case was scheduled for a Supreme Court conference on September 29, 2009.

See the Workers' Compensation Blog for additional articles on this topic.

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.

………

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.)

For more information concerning medical care and workers’ compensation click here.