State News

Speaking of the Appeals Panel, if you ever happen upon a written AP decision, it might behoove you to march right down to the local convenience store and buy yourself a lottery ticket.  An open records request regarding Appeals Panel decision outcomes in 2018 reveals that the overwhelming majority of CCH decisions become final by operation of law.  This will not come as a surprise to most, but some might find the actual percentage astounding.  In 2018, a total of 2,766 Requests for Review were submitted to the Appeals Panel.  Of those, the Appeals Panel reviewed and affirmed 18, reversed and rendered 6, remanded 31, and partially remanded 36.  (Thirty decisions were a mixture-- some issues being affirmed, some reversed and rendered.)  Of the 2,766 total Requests for Review of CCH decisions submitted, a staggering 2,744, or 99.2%, became final by operation of law. 

What does this mean?  The odds the Appeals Panel will write a decision in a case are 4.2%.  The odds the Appeals Panel will reverse and render or remand in a case are 3.5%.  

These odds not quite as bad as the lottery, but even if one happens upon an actual written decision from the Appeals Panel, the outcome might not be as favorable.  A lottery ticket at least provides one the momentary dream of owning his/her own private island.
 

The Appeals Court in El Paso held that the student worker provision required upward adjustment of the student’s calculated average weekly wages, but the statute capping benefits for UT System part-time employees capped his benefits at 60% of the adjusted average weekly wage.  UT argued that the student worker wage adjustment provision in Texas Labor Code §408.044 did not apply because §503.021(b) provisions applicable to part-time employees of the UT System cap any benefits recovery at 60%.  The court found that the two provisions were not in conflict, noting that Chapter 503 explicitly incorporated by reference nearly all provisions of Chapter 408, including the student worker adjustment provision. Ferrell v. The University of Texas System, No. 08-17-000065-CV, 2019 WL 2148089 (Tex. App.—El Paso, May 17, 2019). 

The Appeals Court in Beaumont held that an employer, AmeriGas, was covered by a workers’ compensation policy, and therefore, entitled to assert the exclusive-remedies defense.  The injured workers sued AmeriGas for damages sustained in a work-site explosion.  AmeriGas asserted a general denial and the exclusive remedy defense under the Texas Workers’ Compensation Act.  The injured workers argued that AmeriGas did not provide workers’ compensation insurance, noting that the insurance policy did not specifically list AmeriGas Propane, L.P. in the policy.  AmeriGas argued that it was due to an administrative error that its name was not included in the policy.  It provided an endorsement naming AmeriGas as a named insured under the policy as well as evidence showing that it paid premiums and that its payroll and employment information was used in determining the policy price.  Further, AmeriGas provided evidence that the policy paid workers’ compensation benefits to an employee who was injured in the explosion.  The court found that AmeriGas provided sufficient evidence to reflect that the parties’ true agreement was to cover AmeriGas as an insured, but that due to a mutual mistake, the policy document did not reflect the parties’ true intent.  Therefore, AmeriGas was entitled to the exclusive-remedies defense provided under the Texas Workers’ Compensation Act. AmeriGas Propane, L.P. v. Aboytes-Muñiz, No. 09-18-00122-CV, 2019 WL 2127750 (Tex. App.—Beaumont, May 16, 2019) (memorandum opinion). 

-  Copyright 2019,Erin Shanley, Stone Loughlin & Swanson, LLP.

On May 27, the Texas House and Senate signed the bipartisan Senate Bill 2551.  The bill provides that a firefighter or emergency medical technician suffering from cancer resulting in death or disability is presumed to have developed the cancer while in the course and scope of employment if the worker regularly responds to scenes involving the documented release of radiation or “known or suspected carcinogens.” Cancers that are presumed to be “occupational” are cancers that originate in the stomach, colon, rectum, skin, prostate, testes or brain, non-Hodgkin’s lymphoma, multiple myeloma, malignant melanoma, and renal cell carcinoma.  The bill additionally allows self-insureds to establish a pool for the payment of death benefits to first responders with compensable injuries.

The legislation awaits Governor Abbott’s signature.  If the bill is signed, it will take effect immediately.
 

-  Copyright 2019, Erin Shanley, Stone Loughlin & Swanson, LLP.

Senate Bill 1897, which would have expanded chiropractors’ scope of practice to allow them to go beyond the musculoskeletal system and to diagnose and treat disorder of the nervous system, failed to make it through committee.  The Senate Health and Human Services Committee heard testimony on the bill on April 29^th.  The chiropractors argued that because nerves are associated with the musculoskeletal system, one cannot treat one without affecting the other, so they needed to be permitted to treat the nervous system. The Texas Medical Association disagreed, arguing that this was akin to saying that treatment of the musculoskeletal system also requires treatment of the heart and circulatory system because the heart provides blood to the bone and muscles.  The Association also argued that treating neurological disorders was far beyond a chiropractor’s education and training, even for chiropractors designated as chiropractic neurologists by the American Chiropractic Neurology Board.  Sara Austin, MD, an Austin-based neurologist testifying in opposition to the bill, argued that adding neuro to chiropractors’ practice was not merely the addition of the nerves that may connect muscle tissue or bones.  Rather, “[i]t is the addition of the entire neurological system that includes the brain, spinal cord, and the regulation of many bodily functions beyond chiropractors’ education and training.”

-  Copyright 2019,Erin Shanley, Stone Loughlin & Swanson, LLP.

A cardinal rule in workers’ compensation is that an employee cannot sue his or her employer in civil court for a work injury except for rare circumstances involving intentional harm.   But what if the employee has two employers?  Does that rule apply to both employers?  The answer is yes, the rule applies to both employers, so the focus in many cases is on whether there really is an employer relationship to begin with.  The case of Carabello v. Jackson Dawson Communications, Inc. and Transcend Creative Group, LLC, A-3294-17T3 (App. Div. March 26, 2019) provides some helpful insight on the requirements to establish “the second employer.”

Mr. Carabello worked for the New Jersey Sports and Exposition Authority as a teamster truck driver. The NJSEA contracted with Transcend and Jackson Dawson for a Mercedes Benz event at the IZOD Center which the NJSEA owned.  Carabello was the only forklift operator at the IZOD Center during the event.  NJSEA assigned him to operate the forklift to unload the trucks of Transcend and Jackson Dawson Communications.  Carabello was told to report to Jackson’s head man for further instructions in securing the tent structure for Transcend and Jackson. 

The head man for Jackson instructed Carabello to transport barrels filled with water using the forklift.  Carabello proposed that it might be wiser to transport the barrels while they were empty but that suggestion was not followed.  While loading the filled barrels on the forklift, two barrels fell off.  As Carabello moved the last of sixteen barrels off the forklift, he felt a pop in his shoulder.  His injury was promptly reported to the NJSEA, and the NJSEA paid workers’ compensation benefits.

Carabello then attempted to sue Transcend and Jackson Dawson for negligence in a third party action.  Jackson and Transcend argued in essence that Carabello could not bring a civil suit against them because he was their “special employee.”  The trial judge agreed and barred the civil suit, leading to an appeal by Carabello.  In his appeal, Carabello argued that the five-pronged test of a special employee did not apply to his situation.

First, he argued that there was no express contract between Carabello and Transcend and Jackson.  Second, he argued that he was doing the work of the NJSEA.  It was on NJSEA property.   The Appellate Division agreed with Carabello on both of these points.

Next, Carabello argued that his work was not controlled by Jackson and Transcend.  The Appellate Division said this point was unclear.  NJSEA told Carabello to use the forklift to help the exhibitors set up the event.  Jackson and Transcend told him to move the filled water barrels to help secure their tent.  On balance, the Court felt that NJSEA really controlled the work.  “Plaintiff testified the scope of his employment for NJSEA included helping production personnel with event setup, which involved operating the forklift and assisting others during the production process.”

Fourth, Carabello argued that he was paid by NJSEA.  The Court noted that Transcend and Jackson paid a fee for operation of the forklift, but they did not pay Carabello’s salary. 

Lastly, Carabello argued that he could not be fired by any entity other than the NJSEA.  The Court agreed that the license to produce the exhibition at the IZOD center did not provide Jackson and Transcend with the authority to hire or fire Carabello. 

For these reasons, the Appellate Division reversed and allowed Carabello to sue Jackson and Transcend in a civil suit for their alleged negligence in contributing to his shoulder injury.  One key distinction between this case and other special employee cases involving assigned nurses is that Carabello was working on NJSEA property when he was injured.  In many of the nursing cases where special employment status is found, the nurses work on hospital property under direct control of the hospital.

Thanks to Rick Rubenstein, Esq. for bringing this case to our attention.

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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com. 

It can be challenging to prove that a fairly common cancer occurring frequently in the general population is work related.  The case of Proscia v. Advanced Biotech, A-3017-17T2 (App. Div. April 26, 2019) offers interesting guidance on how an injured worker can prove such a case.  

Frank Proscia worked for Advanced Biotech (AB) from 2005 until 2013.  The company manufactures and sells natural flavor ingredients.  During his employment, there was occasional flooding in his work site in Paterson, N.J.  When that occurred, he would wear waders to walk through space to secure manufacturing materials, which included drums filled with chemicals.  He would examine and sample many containers when they arrived and supervised pouring of chemicals by others.  His desk was 15 feet away from the sealed-off storage room where drums of chemicals were stored.

Petitioner testified that there were multiple spills of hazardous chemicals over the years he worked at AB.  The chemicals would adhere to his skin and clothing.  There was one spill of acetic acid in February 2011. That caused petitioner to be hospitalized on account of breathing problems at work.  He left AB in October 2013.  Two years later, petitioner was diagnosed with colorectal cancer, and he filed a claim petition alleging that his work exposures either caused or contributed to the cancer.

A key fact in this case was that the expert for each side agreed that there were about 1,000 chemicals to which petitioner was likely exposed, and several of those chemicals were suspected carcinogens. 

The petitioner’s expert testified that Acetaldehyde and Diacetyl are carcinogenic, and they were two of the chemicals to which petitioner was exposed.  In fact, petitioner’s expert said that Acetaldehyde is a Class One carcinogen.

Petitioner’s expert provided statistical information on colorectal cancers, noting that 11 to 15 percent of such cancers are related to workplace chemical exposures.  The expert added that petitioner, who was 42 years of age at the time, could not return to work due to his stage three or four cancer.  He said that his cancer was not yet at maximal medical improvement and petitioner required more treatment. 

AB’s expert disputed the testimony that Acetaldehyde causes cancer.  AB’s expert said that there were no studies establishing such a causal relationship.  The Court noted that respondent’s expert was an oncologist.  The Court noted that petitioner’s expert was qualified in the field of environmental and occupational health medicine.  Respondent’s expert did agree that some of the chemicals to which petitioner claimed exposure were carcinogenic. 

The Judge of Compensation found that it was more probable than not that petitioner’s exposure on the job caused his cancer.  The Judge ordered further temporary disability benefits as well as further medical treatment. AB appealed. 

The Appellate Division first observed that petitioner did not have to prove direct causation; aggravation or exacerbation of a condition is sufficient.   The Court also commented that the Judge of Compensation is in the best position to weigh the credibility of the expert’s testimony.  “He could, at his option, decide to give petitioner’s expert testimony greater weight than the expert who testified on behalf of AB.” For these reasons, the Appellate Division affirmed the ruling in favor of petitioner.

Petitioner had several key advantages at trial. First, the experts agreed that some of the chemicals to which petitioner was exposed were carcinogenic.  Second, petitioner proved by his testimony that he had likely exposure to certain chemicals. Respondent did not present lay testimony disputing anything petitioner said on exposure.  That left no real dispute that there was serious exposure to chemicals.

The Judge of Compensation seemed to accept that the two named chemicals were carcinogenic.  There was nothing in the Appellate Division record showing that respondent offered medical articles debunking any relationship between Acetaldehyde and cancer.  Under these circumstances, petitioner made out a very strong case.  For respondent to win in a difficult case like this, its expert needed to offer into evidence persuasive scientific evidence based on medical literature establishing that there is no known causal relationship to colorectal cancer.  Alternatively, respondent needed to contest the alleged exposure through lay testimony. 

In a difficult case like this, the best argument that respondent had was that its expert was far more qualified than that of petitioner to give an opinion on causation, as only respondent’s expert was an oncologist. There is nothing in the appellate decision addressing that point, however, so it is hard to tell if that was argued.

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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com. 

There are few cases in the Division involving assessments of penalties against an employer for late payment of a settlement.  Ramella v. Borough of Seaside Heights, A-3310-17T3 (App. Div. April 8, 2019) is therefore of interest to practitioners.

The petitioner, Shirley Ramella, brought a dependency claim against the Borough and its various workers’ compensation carriers alleging that her husband died from work-related chronic obstructive pulmonary disease due to alleged exposure to asbestos during his 15-year employment.  The total settlement against all carriers was $50,000, but the Borough itself agreed to pay $7,500 on a Section 20 basis for a period in which its insurance coverage was in dispute.  An order was entered on August 15, 2017 against the Borough.

Public entities need vouchers before they can make payment, and a voucher was mailed to Shirley Ramella on August 22, 2017, one week after the order was signed.   Mrs. Ramella did not sign or return the voucher for months.  The Borough’s counsel reached out to Mrs. Ramella’s counsel seeking the signed voucher. In January 2018, Mrs. Ramella executed the voucher and returned it to the Borough.  The Borough then promptly paid the $7,500 once it received the signed voucher.

In the days immediately prior to the return of the voucher by Mrs. Ramella, her attorney moved to enforce the August 15, 2017 order.  By the time the motion was listed in workers’ compensation court, the order had been paid.

The Judge of Compensation conducted no formal hearing and took no testimony.  The Judge found that the Borough should have prepared the voucher during the years that the case had been litigated. The Judge made no findings of fact concerning Mrs. Ramella’s failure to sign the voucher, nor her attorney’s failure to inquire about it, nor the promptness of payment by the Borough once it received the signed voucher. Instead, the Judge entered an order on February 20, 2018 assessing a $5,000 penalty against the Borough payable to the Second Injury Fund, plus $500 to her attorney.

The Borough appealed the penalty order, and the Judge later denied the Borough’s motion for reconsideration and a stay. The Appellate Division began by noting (incorrectly) that there is no statute establishing a specific timeframe for payment of workers’ compensation settlement proceeds.  Actually, N.J.S.A. 34:15-28 states: “Whenever lawful compensation shall have been withheld from an injured employee or dependents for a term of 60 or more days following entry of a judgment or order, simple interest on each weekly payment for the period of delay of each payment may, at the discretion of the division, be added to the amount due at the time of settlement.”  This statute was not mentioned in the decision but the Court did discuss another section dealing with penalties for failing to comply with orders generally.

The Appellate Division proceeded to observe that N.J.A.C. 12:235-3.16(e) requires a Judge to hold a hearing before assessing a penalty for failure to comply with an order.  The Court was critical of the Judge of Compensation for failing to hear any witnesses or place documentation in the record supporting the reasons for the penalty. 

The Court focused on N.J.S.A. 34:15-28.2, which states that a Judge of Compensation may assess a penalty for failure to comply with a court order not to exceed 25% of moneys due for unreasonable payment delay and to impose a penalty of up to $5,000 payable to the Second Injury Fund.  The Court said, “Here, it was entirely reasonable for the Borough to send Shirley a voucher for her signature. . . We do not agree with the judge’s observation that the Borough could have prepared the voucher and secured Shirley’s signature during the eight years that her amended claim petition was pending.” The Court commented that this was a contested matter, and there was no reason for the Borough to prepare a voucher during the contested period of the case.

The Court reversed the award of the penalty and the award of counsel fees.  It said: “Finally, the judge did not consider the inaction of Shirley and her counsel after her receipt of the voucher, the affirmative acts of the Borough’s counsel in seeking Shirley’s signature, or his client’s prompt payment once it obtained the signed voucher, when deciding whether a penalty was warranted.”

The facts of this case were unusual because the petitioner in this matter did not return for months a signed voucher that was sent to her one week after the settlement.  The use of a voucher does not occur in private sector settlements.  But this case is still important because it shows that judges need to conduct a full hearing with testimony from the parties before assessing penalties under the statute.

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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com. 

Petitioner Joan Haggerty worked for Cape May Regional Medical Center (Crothall Service Group).  She tore her left rotator cuff and bicep tendon while working as a housekeeper.  Months later she injured her neck and left shoulder making a bed and stretching sheets.  She filed a workers’ compensation claim for each injury and later amended the left shoulder claim to include an overuse claim of the right shoulder. She had two surgeries on the left shoulder and one surgery on the right shoulder.

Petitioner obtained an order for medical and temporary disability benefits in 2015 approving treatment with Dr. Matthew Pepe.  He referred petitioner to Dr. Peter Corda for pain management, who in turn referred petitioner to Dr. Charles Krome. Four platelet rich plasma injections were recommended by Dr. Krome.

The issue in the case arose when it became clear that the platelet rich injections did not help petitioner.  Dr. Krome then recommended stem cell treatment for the right shoulder.  He felt that this would be a conservative measure but petitioner would still likely require total shoulder replacement surgery in a few years.  Petitioner then filed an amended motion to compel respondent to pay for the stem cell therapy.  Respondent opposed the motion by noting that the stem cell treatment was not approved by the U.S. Food and Drug Administration (FDA). 

Because the judge had questions for Dr. Krome, the judge called the doctor from his chambers on May 4, 2018 in the presence of both counsel.  The judge asked several questions, but neither counsel asked any.  At the next listing of the case on May 25, 2018, petitioner testified that she did not want another shoulder surgery.  She needed to work in order to care for her terminally ill husband.  She said she knew that the stem cell therapy was not FDA approved but she wanted to undergo it. She said she was also aware that it might only provide temporary relief.

Following petitioner’s testimony, the Judge of Compensation issued an order requiring respondent to provide the stem cell treatment.  The judge commented that Dr. Corda wrote a letter stating that this treatment was widely used in professional sports.  The judge also observed that respondent did not provide any expert report addressing this issue.  Finally, the judge found Dr. Krome to be credible.

On appeal Crothall argued that it was error to determine credibility of a physician based on an unrecorded phone call without formal testimony.  Crothall also argued that the treatment was not sufficiently accepted in the scientific community.

The Appellate Division observed the rules on motions for medical and temporary disability benefits, noting that respondent’s counsel had raised a defense that the treatment was not FDA approved.  “Under the regulations, the judge was required to hold a hearing where Crothall could cross-examine witnesses.”

The Court also questioned the validity of using a phone call to a physician as a basis to determine credibility. “Even if credibility could be determined in that manner, without a record there is no ability to review what was said.” The Court said that when an important issue is discussed in chambers, “a record must be made or a summary placed on the record of what transpired in chambers.”

The Appellate Division held that the procedures in chambers “lacked fundamental due process.”  The Court was critical of the failure to record the testimony of Dr. Krome and the failure to allow respondent’s counsel to cross examine the doctor.  For these reasons the order was reversed, and the matter was remanded.

The case can be found at Haggerty v. Crothall Service Group, A-4478-17T4 (App. Div. May 3, 2019).  This case reminds us that due process applies to proceedings in workers’ compensation court and that fundamental fairness to both parties is the lodestar of court proceedings.  The Appellate Division never ruled on whether stem cell treatment can be ordered but rather focused solely on the fairness of the process in the Division proceedings.

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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com. 

Legal Update by Attorney Alison Stewart

Governor Reynolds has signed a bill relating to workplace idiopathic falls (SF 507). This bill has become law in response to the 2018 Iowa Supreme Court decision,Bluml v. Long John Silvers, where the Court said there was no blanket rule rendering certain categories of workplace idiopathic falls non-compensable, so long as the employee proved that a condition of the employment increased the risk of injury (e.g. a hard floor). In Bluml, an employee had a seizure while working and fell straight backward onto a ceramic tile floor, striking the back of his head. More information about this decision can be found in an earlier post on this blog, dated November 28, 2018. The Court had held each case like this should be considered on a case by case basis opening the door for an employee to establish an injury resulting from an idiopathic fall onto a hard surface could be found compensable. With this new bill now on the books, however, “personal injuries due to idiopathic or unexplained falls from a level surface onto the same level surface do not arise out of and in the course of employment and are not compensable under this chapter.”

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Ask any practitioner about the nature of Medicare and his or her response will usually be that it is a source of medical coverage for the very poor, such as those receiving SSI (Supplemental Security Income.) Alas, such an answer is no longer correct, nor is it safe. Why? Well, as in the case of ERISA liens, (Ah ha! Now you know where you’ve seen my name before!) we are again dealing with the dreaded “F” word. No, not that “F” word, the one which resulted in Ralphie enjoying the subtle flavor of Lifebuoy (remember, “A Christmas Story?”).  No, once again we have a federal Act, establishing both the benefit and the requirement of recovery of any claims paid for which a third-party source is legally liable. The (somewhat) good news is, however, that the recovery mechanisms (liens) are administered by the states. More on this later.

Medicaid was established by federal law, 42 U.S.C 1396 et. seq. (the Act.)  The intent of this Act was to provide medical coverage for people unable to afford their own coverage. Like other federally-established health coverage such as Medicare and Veterans Administration benefits, Medicaid (and as the title indicates, NJ Family Care – hereinafter NJFC) is intended to pay health care costs for illnesses, injuries, etc., where no other coverage is legally obligated to pay. In other words, they are “payors of last resort.” This is seen in N.J.A.C. 10:49-7.3(1)(b), “Medicaid and NJFC program benefits are last-payment benefits. All [third party liability medical benefits]…shall, if available, be used first and to the fullest extent in meeting the cost of the medical needs of the Medicaid or NJ Family Care beneficiary…”

While established by federal law, Medicaid & NJFC are state-funded and administered. Additionally, and most important to the purpose of this article, the Act contains a requirement that the states establish a mechanism to pursue the recovery of any payments made by Medicaid/NJFC for which a third-party source should be legally liable. These sources include, but are not limited to, workers’ compensation coverage and casualty insurance in tort recoveries. In New Jersey, recovery of improper payments is contracted to HMS.

In addition to recovery efforts by HMS, a provision in N.J.S.A. 30:4D-7.1(b) states “…every recipient or his legal representative shall promptly notify the division (Division of Medical Assistance and Health Services) of any recovery from a third party and shall immediately reimburse the division in full from the proceeds of any settlement, judgement, or other recovery in any action or claim initiated against any such third party…” Clearly, this places a duty to report such recoveries on the injured party’s attorney. However, respondents take note. The Statute on the Code speak of recovery from a third party. And, in Hedgebeth v. Medford, 74 N.J. 360, (1977) our State Supreme Court stated that New Jersey’s Medicaid law evidences an “…unmistakable intent to afford the State every opportunity to recoup its payments from third parties.” Thus, both petitioners and respondents have an interest in the outcome of petitions involving such liens. In the event that a petitioner fails to give notice where Medicaid/Family Care clearly provided treatment, a respondent could likely give notice or file a motion to compel petitioner to give notice.

OK, so with the legal background established, what should a claimant’s attorney do to protect his/her client, him/herself, and honor the law? Well, this process begins with the initial interview with a new client. No attorney should assume that a client has medical coverage through an employer; Medicaid is increasingly the coverage for many people, even those who work for employers which provide excellent coverage. Traditionally, Medicaid/NJFC covered people who were very poor, disabled or both. Now, however, more and more people are covered by Medicaid and NJFC. As a practitioner I have personally observed that more and more people no longer have coverage offered by their employers; in many such situations they can no longer afford the employee’s portion of the premium. And so, they are now covered by N.J. Family Care, a “payor of last resort.”

Accordingly, at this first meeting with a new client the workers’ compensation attorney must ask whether the client is covered by Medicaid/NJFC. If so, notice must be immediately given to HMS of the claim in question. This has always been done by mail; however, HMS now has a Web-Portal for submission of the necessary documents. The mailing address/portal information can be obtained on the HMS website for New Jersey Medicaid. (Sorry, this article is to raise awareness of these issues; I won’t do your work for you!) Once that is done, HMS will send the attorney a set of questions to be answered concerning the happening of the accident, is it workers’ compensation or tort, what body parts were involved, etc. These questions are designed to allow HMS to determine what payments, if any, have been made for which a third party is legally liable. HMS will then send the attorney an initial Statement of Aid Paid, if in fact payments were made. Later, after a settlement has been agreed to but PRIOR to seeking approval of the settlement by a Judge of Workers’ Compensation, the petitioner’s attorney MUST provide HMS a copy of the proposed Order Approving Settlement or Section 20 Order, inclusive of fees and costs. Thereafter, HMS will issue a Final Statement of Aid Paid.  In my experience, (fortunately, to date observing others,) delayed responses from HMS are frequently caused by incomplete/incorrect submission of documents.

OK, so now I’ve discussed the origin of these state-funded plans; what they pay for and, most importantly, what they DON’T pay for; law and mechanisms for recovering payments; and, how to provide proper documentation to HMS. Now, all of you are thinking, I will tell you what guidelines exist for negotiating these liens, the power of workers’ compensation judges to deal with them, etc., etc., all the things to make your lives easier, right? Well, time to cue the occasional chirping of crickets; no other sound to break the silence. Right, you guessed it, I’ve been unable to find any guidelines, code provisions, case law, etc. to smooth the process of closing workers’ compensation cases with HMS liens. Nothing. Nor have I spoken to anyone who has found such guidance. Of course, if the liens contain payments for treatment clearly unrelated to the work-related injury, write to HMS and ask them to please remove them. Still, I and many others believe there should be some guidance in this area.

So, what is the answer? Well, I have a definite idea as to what should be done. I may be told it’s unrealistic, that it is an area in which I have no business treading, I may even upset some people. But, as that increasingly popular little creature says, “Honey Badger don’t care.” (No, don’t ask. I won’t tell!)

Several years ago there were questions as to the proper method to close a workers’ compensation case where the Petitioner was in receipt of an Accidental Disability Pension. High ranking representatives of the Division of Workers’ Compensation met with similar representatives from the Division of Pensions to work out the issues, resulting in a Memo from former Director/Chief Judge Calderone outlining the accepted methods of closing such claims.

I believe similar actions need to be taken here. However, considering the fact we are dealing with benefits created under federal law, and considering the large sums of money which are the subject of HMS liens, I suggest that the Department of Labor and HMS should attempt to work this out. Obviously, the Division of Workers’ Compensation will provide more than significant input. May I also suggest (ok Al, now you are really going out on a limb) that the Commissioner’s Advisory Committee on Workers’ Compensation be reconstituted to provide valuable input here, and in other issues affecting the practice of Workers’ Compensation. Just a thought.

(Editor’s Note:  Many thanks for Attorney Al Vitarelli for educating us all on Medicaid liens.  This is an increasingly important part of the NJ workers’ comp practice.)

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Editor:  John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.