Most aspects of the New Jersey Workers’ Compensation Act are considered favorably by employers since the law gives employers the right to control medical care and allows termination of temporary disability benefits and medical benefits at maximal medical improvement. One aspect, however, of New Jersey law invariably frustrates employers:  reopener claim petitions. These kinds of claims are not common in other states, and many employers are understandably perplexed at the sheer volume of reopeners in New Jersey.  The fact is that a high percentage of awards containing a substantial percentage of disability will be reopened for additional benefits.

Technically, the correct term for a reopener is a modification of an award but most practitioners refer to these petitions as reopeners.  Here are some basic questions and answers that clients often ask this practitioner.

Question #1:  Is it true that only petitioners can file reopeners?

Actually either party can seek modification of a prior award.  N.J.S.A. 34:15-27 states that an award may be reviewed on the ground that the disability has diminished.  This practitioner has filed on several occasions a petition to modify an award for total disability where the claimant was found working while receiving total disability benefits.  Generally, though, reopeners are filed by claimants seeking more medical, temporary or permanent disability benefits.

Question #2:  How long does a claimant have to file a reopener?

The claimant has two years from the last payment of indemnity benefits or the last date of authorized treatment, whichever is later, to reopen the award.   A period of insanity tolls the statute.

Question #3:  What is the legal standard to prove entitlement to further permanency payments?

The claimant must show objective proof that his or her condition has materially worsened since the last award.  That kind of proof is the same as proof required in any claim for partial permanent disability such as MRI or x-ray evidence of an impairment, but in a reopener the proofs involve a comparison between those offered at the initial hearing and those at the time of the settlement of the reopener petition. Respondents take the view that mere complaints of increased pain do not satisfy the legal standard for a higher award because pain is subjective.  It is important for employers to obtain the transcript created at the time of the initial settlement and then compare those complaints with current complaints.  If they have not changed, there may be no basis for additional compensation.

Question #4:  When can the respondent resolve a reopener on a Section 20 basis?

Most employers prefer that a reopener claim resolves on a Section 20 because that ends the case and prevents any additional reopener petitions.  There is technically no limit to how many times a claimant can reopen a case.  A Section 20 in a reopener requires the same standards as any other case for a Section 20: namely, proof of a genuine issue regarding causation, liability, jurisdiction or dependency.   Respondent’s counsel will take the position that if its doctor finds no objective change from the prior award, then there is a legitimate issue of liability for a Section 20.  Another possible ground for a Section 20 is a subsequent accident since the time of the last award because the current complaints may be from the new accident, not the original accident.  Judges of Compensation will generally permit a Section 20 on a reopener if one of the statutory bases has been met and if the claimant lacks evidence of objective changes since the time of the prior award.

Question #5:  What should an employer do when the claimant’s attorney files a reopener petition and requests additional treatment?

This is a complicated issue about which there is some difference of opinion.  Claimants’ counsel know that without any additional treatment since the prior award, it may be hard to persuade a Judge of Compensation that there is objective worsening.  Most reopener petitions contain a request for treatment in spite of the fact that the claimant often has not treated at all since the filing of the petition.  Certainly, if the claimant has received substantial authorized treatment following the award but prior to the reopener being filed, the petitioner should almost always be sent back to the treating physician to determine if there is a need for additional causally related treatment.

On the other hand, respondents often consider whether the request for treatment is in connection with what appears to be a “calendar” reopener, one which gets filed just before the two year statute of limitations runs.   In that situation, if there has never been any request for treatment for almost two years, and then suddenly a reopener petition is filed with a request for treatment, many respondents will simply decline any request for treatment and set up a permanency exam with the same IME doctor who evaluated for permanency at the time of the original injury.  This approach suffices in cases like this because the permanency evaluator can comment on both issues:  whether there is a need for additional treatment as well as whether there is additional permanency.

Question #6:  Is there any requirement that the respondent send the petitioner back to the treating doctor as opposed to the IME doctor who assessed permanency?

There is no statutory requirement to return the claimant to the treating doctor but it often makes more sense when the medical condition is serious and there has been intermittent post-award treatment.  The opinion of a treating doctor is given more weight than that of a one-time IME doctor in respect to many issues, particularly the need for additional treatment.  On rare occasions, the IME doctor may also have been the treating doctor.  The reason this does not happen very often is that few treating doctors are familiar with New Jersey permanency estimates, and few IME doctors who perform permanency exams have active treating practices.

Question #7:  When does it make more sense to return the claimant to the original IME doctor instead of the treating doctor?

Most defense IME doctors in New Jersey workers’ compensation excel at taking a detailed past medical history as well as a history of second jobs, recreational activities, motor vehicle accidents, and other potential causes of injury.  The point in time between the entry of the initial award and the reopener petition is a crucial interval period.  IME doctors understand what reopeners are about and tend to focus their attention on personal activities, new injuries, or stressors that may be relevant during this interval period of time.  So if there are issues of causation regarding other possible injuries during the interval period, an IME doctor may be the better choice than the treating doctor.  But if there really is no issue of causation, and genuine issues of treatment do exist, the treating doctor is most often the better choice.   Once the treatment issue is resolved, then the employer should send the petitioner to the previous IME doctor to assess whether there is any additional partial permanent disability.

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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. 

Deputy Chief Judge David Langham of Compensation Claims for the Florida Office of Judges of Compensation Claims and Division of Administrative Hearings posed  interesting questions in his recent blog,http://flojcc.blogspot.com.  If you think Texas is bad, just consider the length of his title!  His questions are,  “Would we be better off without workers’ compensation in any form?  Would we be better off with a federal bureaucracy to replace state programs, boards and bureaucracies?  Would we be better serviced with courts that stuck to the law and avoided equity?  Would we be better off if regulators refrained from new rules for every perceived abuse or shortfall?”  Judge Langham also posed the possibility that the human failings of anger, envy, gluttony, greed, lust, pride and sloth might play a part.  What do you think?

There is a new blog post called “The WorkComp Millennial.”  The post addresses a concern about the need in the workers’ compensation industry for young talent.  We have to admit that the old talent is . . . well, old!  The blog respectfully addresses workers’ compensation “elders” as “very talented and accomplished statesmen.”  There are some us in the firm who are flattered by the compliment.  Others of us are annoyed.  But we support the purpose of the blog insofar as it is intended to help the industry develop interest in those men and women beginning their professional careers who might not otherwise consider workers’ compensation as a career. For the Millennial, it could make what  many of us in the industry know, especially workers’ compensation insurance adjusters and attorneys, that workers’ compensation is a rewarding field if you are willing to work hard.

Technology affects jobs.  Currently, county and district clerks, as well as many Texas counties, are opposing a Texas Supreme Court program to create a publically accessible electronic system to make judicial records accessible to the public.  Several counties charge membership fees– which can be considerable– to obtain records.  This limits an attorney’s ability to access records, and costs clients money for the records to be retrieved.  Statewide electronic access to court records would be efficient for practitioners and the public, but would remove a court clerk’s job function–and  an income stream–from many county courts.  Blake Hawthorne, the Clerk of the Supreme Court of Texas, recently posted that “[i]f you want a statewide access system for Texas court records, I would encourage you to tell your representatives and local trial court clerks that you support the statewide system. . . . I think the real issue is money, control, and concerns about the impact of technology on their jobs.” (NOTE: Mr. Hawthorne’s opinions were posted in his individual capacity and do not represent the opinions of his office or of the Texas Supreme Court).

After decades, the DWC has finally allowed an increase in claimant’s attorney fees from $150/hour to $200/hour for attorneys, and from $50/hour to $65/hour for legal assistants.  For any service provided before January 30, 2017, the old rates apply.  For services after January 30, 2017, the new rates apply.  When applying for fees, separate applications must be submitted for services rendered before and after that date. In addition, billable time allowed for communications per month increased from two hours to three hours per month. For direct dispute resolution negotiation with the other party, allowable time increased from three to three and one-half hours, and for preparation and submission of an agreement or settlement, allowable time increased from one to two hours.

It will be interesting to see whether this increase attracts any additional qualified attorneys to represent claimants before the DWC.  Carrier attorney fees are not actually “capped” by the DWC’s rules – the requirement is only that the fees must be “reasonable.”  Other states’ attorneys are in the midst of challenging their regulatory agencies’ constitutional authority to regulate attorney fees at all!  More on that in later newsletters, but there has not been a constitutional challenge to Texas’ workers’ compensation statute since 1989 when the Texas Supreme Court held in Garcia v. Texas Workers’ Compensation Commission that the newly enacted workers’ compensation act did not violate provisions of the federal and state constitutions.

Those of us who attend hearings are often surprised by new procedures that are being implemented across the field offices, or old procedures that have been abandoned.  One new procedure we learned of is that the hearing officers are requiring in every hearing a stipulation as to the date of STAT MMI.  But, the Division of Hearings seems to have dropped the requirement that the parties put into evidence DWC Orders for DD and RME exams, or a print out of the certifying doctors’ credentials for performing MMI/IR examinations and certifying an IR.  

It could be that the opening of the new legislative session has our friends at the Division of Hearings all aflutter.  This is the time where DWC wants to present favorable statistics to the legislature, such as the length of time between the inception of a dispute and its resolution  – short time good, long time bad.  From a practitioner’s standpoint, it is frustrating when there is no consistent application of a policy on continuances in contested case proceedings, and little consideration given to the time it takes to prepare for what can be complex proceedings with multiple parties.  And we expect that the hearing officers might appreciate the DWC allowing them to be the judge of when a continuance will  be in the interests of a fair hearing for both parties, and when it will not. 

A hearing officer found that when the certifying doctor did not rate the entire compensable injury, the exception found in Labor Code Section 408.123(f)(1)(A) of the statute applied and the certification of MMI/IR did not become final.  That is the section that says compelling medical evidence of a significant error by the certifying doctor in applying the AMA Guides constitutes an exception to finality.  Presumably, the hearing officer conflated an extent issue with an improper application of the Guides.  However, it was not until after the 90 day finality period had expired that the hearing officer found in the claimant’s favor on the extent of the injury.  The Appeals Panel found that there is nothing in either Section 408.123 or Rule 130.12 that would allow an exception to finality under this circumstance.  Once the 90 day rule results in finality, a later determination on extent of injury cannot revive it.  But then the Appeals Panel remanded the case to the hearing officer to determine whether or not Section 408.123(f)(1)(C)’s exception to finality would apply— the provision that allows an exception where there is improper or inadequate treatment before the date of MMI/IR.  Finding that the parties had actually raised and litigated that exception, the Appeals Panel reversed the hearing officer’s decision that the certification had not become final under Section 408.123(f)(1)A), and remanded the case for the hearing officer to determine if there had been improper or inadequate treatment such that Section 408.123(f)(1) (c) might apply. DWC Appeals Panel Decision No. 135294-s

Dan Price was invited into the firm as a partner, effective January 1, 2017.  Those of you who have worked with Dan in his capacity as senior associate will not be surprised, and we invite you to congratulate him.  He is a terrific lawyer and can be counted on to serve our clients well. He now shares the burdens and joys of partnership with Jane Stone, James Loughlin, David Swanson and Erin Shanley.

Sometimes activities that would otherwise be non-compensable are covered under the Mutual Benefit Doctrine.  That doctrine covers certain activities when there is “a clear and substantial benefit” to the employer by reason of the permitted activity.  Daus v. Marble, 270 N.J. Super. 241 (App. Div. 1994).  An example might be an injury to an employee when one employee spills hot coffee on another employee during an impromptu on-premises coffee break.  Employees who gather around the coffee machine during work hours to exchange personal news or to joke around are not technically working, but this sort of coffee break provides a mutual benefit to both the employer and the employee.  Therefore an incident involving a coffee burn to an employee would be covered.

An older case Saintsing v. Steinbach Company, 1 N.J. Super. 259 (App. Div. 1949) illustrates the point.  In that case the personnel director proposed to the store manager a vaccination service for employees to guard against a smallpox epidemic which had begun in New York City.  A notice was delivered to all employees stating, “On April 22, 1947, we will provide free inoculation to all those who choose to be immunized against smallpox.  We are sure that everyone is aware of the current spread of smallpox and we strongly urge that you take advantage of this service, which we are glad to provide in the interest of your health.” 

Most employees were vaccinated but petitioner, Mary Saintsing, developed a bad reaction which caused temporary and permanent disability.  She brought a workers’ compensation claim.  The carrier denied the claim and argued that this program was voluntary.  Not everyone agreed to be inoculated.  The personnel director testified on behalf of the injured employee that the company wanted to avoid absenteeism because that would disrupt its business. The court reviewed conflicting decisions in other states and held, “The employees, although not compelled, were strongly urged to submit to the vaccination and, in natural response, most of them did. . . . We have concluded that the activity was mutually beneficial, that the risk was reasonably incident to the employment and that the petitioner’s injury resulted from an untoward event or accident arising out of and in the course of her employment. . . “ 

New Jersey later amended its statute in 1979 to make clear that recreational and health activities whose intended purpose is to promote health and morale (and not something more than health and morale) are not compensable.  But that provision of the statute in N.J.S.A. 34:15-7 did not invalidate the Mutual Benefit Doctrine.  If the employer derives some benefit beyond mere health and morale, the social or recreational activity is compensable.

So for example in High v. Rose, 2011 N.J. Super. Unpub. LEXIS 2026 (App. Div. July 26, 2011), the Court affirmed a decision of a Judge of Compensation finding that an accident in a parking lot long after school ended was compensable based on a mutual benefit.  The plaintiff, High, was employed at Montclair Kimberley Academy as a nurse.  She remained late at school to assist another teacher for an hour and a half.  The defendant, Rose, remained late at school after teaching her class and then completing her instructional work. Then at 4:15 she picked up her son who attended the school’s pre-kindergarten after-school care program.  Both employees of the Academy backed their cars out at the same time and their cars struck each other, causing injuries to plaintiff High.

The plaintiff argued that Rose was not in the course of her employment because she stayed after school primarily to pick up her child from the pre-kindergarten program.  The plaintiff clearly wanted to proceed in a civil suit against Rose, but the carrier for Rose argued that the plaintiff’s only remedy was workers’ compensation.  The Judge of Compensation held that just because Rose stayed late to pick up her child from the pre-kindergarten program did not remove her from employment.  Having the child in the program at the school provided a mutual benefit to the school and the employee.  Since High and Rose were still on school premises when the accident happened, the Judge of Compensation found the accident to be compensable.  The Appellate Division agreed and barred High’s civil suit against Rose.  The Court noted, “The child was attending the after-school program so that defendant could complete her teaching duties.”

The Mutual Benefit Doctrine, like its close cousin, the Comfort Doctrine, is not written into the New Jersey statute.  These doctrines exist in case law handed down over the years.  Without these doctrines many claims would be found non-compensable.  For example, employees need to use the restrooms during the day.  If a slip and fall occurs in a restroom, it might not be covered without the Personal Comfort Doctrine because technically the employee is not working.  These doctrines make sense because they avoid a hyper-technical look at every activity which employees engage in during the course of a day. The Personal Comfort Doctrine embraces activities that are basic human needs, and the Mutual Benefit Doctrine embraces activities that benefit the employer and employee equally. However, the Mutual Benefit Doctrine has its statutory boundaries as noted above under Section 7 such that an activity whose purpose is just to improve health and morale is not compensable.

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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.