State News : New Jersey

Just six years ago, former Governor Chris Christie signed into law a bill which vested exclusive jurisdiction within the Division of Workers’ Compensation over any disputed medical charge arising from any claim for compensation for a work-related injury or illness.  That was the beginning of what we now call “Medical Claim Petitions” or MCPs filed by providers and medical facilities.  In the early years following the passage of the bill, perhaps one or two percent of all workers’ compensation claims were MCP cases.

Fast forward to 2018:  20% of all formal claim petitions filed in the Division this year are MCP cases!  You read that right: one out of every five formal claim petitions filed in 2018 in the Division of Workers’ Compensation is a petition filed by a medical provider or medical facility disputing a payment. Already through November 2018, over 6,300 MCPs have been filed in the Division in the first eleven months.

The Judges of Compensation have learned a great deal over the years about how to deal with provider disputes. They ably manage not only a high volume of formal claim petitions filed by petitioners but an ever escalating volume of MCP cases.   If the current rate of growth of MCP cases continues, one can project that in a few years one in three formal claim petitions will be an MCP case.

Why are there so many MCP cases in New Jersey when New Jersey employers have control over medical care?   That is the question this practitioner put to Kelly Royce, Senior Vice President of Managed Care Operations for First MCO, a leading managed care and medical repricing company in New Jersey.  Royce said that the key for New Jersey employers and carriers is to have robust physician and facility networks.  In that case, MCPs do not generally get filed. “You look at the contract, and that ends almost all such disputes,” she said.

But Royce pointed out that there are many situations where emergency care is provided, and the doctor and facility would not likely be in network.  When the employer or carrier receives the bills, they may be repriced based on reasonable and customary charges in the geographic area, but the provider or facility often disagree on the determination of reasonable and customary, leading to the filing of an MCP.  The amounts in dispute are often tens or even hundreds of thousands of dollars.

Royce also pointed out that even if the physician is in network, the medical facility where the procedure or surgery takes place is often not in network.  That means that the physician’s charge will be covered by the network agreement, but the facility charge may not be.  She recommends that employers spend time trying to determine where network physicians operate and making sure that these facilities are in network.

Linda Woods, VP of Bill Review Operations for First MCO, added that the determination of reasonable and customary is not uniform.  There are many different data bases such as Fair Pay and Wasserman which may have different criteria on what is reasonable and customary.  She added that Medicare has its own schedule, and PIP has its own schedule, and sometimes these schedules are also considered.  The determination of reasonable and customary may vary significantly depending on the resource that is used.

There are a number of cases that have been decided on what constitutes reasonable and customary charges.  The leading case at the Division level remains Burn Surgeons of St. Barnabas v. Shoprite, C.P. # 2009-16548, 2011 N.J. Wrk. Comp. LEXIS 10 (August 26, 2011).  In that case the physicians who were contesting the level of reimbursement by the carrier were co-surgeons, and they testified in court in support of their charges.  Each surgeon felt that he should have been paid 87.5% of usual and customary charges.  The amount in dispute was very significant.

Attorney Ann DeBellis, Director/Supervising Attorney for New Jersey Manufacturers, successfully represented NJM and argued that her company was correct in paying each co-surgeon 73.6 percent of the charged amount in this case, which was a percentage in line with payments made by other commercial carriers and well above payments from government programs.  The late Honorable Virginia Dietrich, Administrative Supervising Judge of Compensation, rejected the argument by the burn surgeons that additional monies should be paid to account for the difficulty of the procedures, the severe illness of the patient and the expertise required.  The judge ruled that all of these considerations were taken into account when the codes were prepared.

When MCP cases do get filed, the data relied on by the parties are often complicated to understand, requiring defense counsel to master obscure terminology.   On the claimant side, there are several law firms which specialize in this area of law and generally work on contingent fees.  Because of the contingent nature of the representation, the providers and facilities incur no cost in filing MCPs.  They only pay counsel if there is a recovery.

Capehart Scatchard decided several years ago to create an MCP team headed by partner Claire Ringel, Esq., to oversee these increasingly complicated claims which often involve hundreds of thousands of dollars in dispute.  One claim petition that Ms. Ringel resolved this year involved a charge by a New Jersey medical provider for $960,000 for a complex surgery.  She resolved this claim for less than 10% of the charge.  Ms. Ringel has also filed more than 50 motions to dismiss MCP cases this year where all contacts are in the State of New York (hiring, injury and work), but the MCP cases were filed in New Jersey simply because the medical procedure occurred in New Jersey and the provider was unsatisfied with the New York fee schedule.

The reality is that MCP cases are here to stay and the volume is sharply rising.  There are complicated issues of appropriate levels of payment as well as many claims with jurisdiction as the principal issue.  Defense firms need to develop the expertise to successfully represent employers, and employers need to work with companies that have great networks and repricing skills.

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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. 

By now all workers’ compensation practitioners know of the law change in 2018 with respect to voluntary offers or bona fide offers of permanency.  The new law amended the 1927 law that allowed employers to make voluntary offers within certain time limits free from counsel fee.  The law passed in 2018 provides that if there is an established attorney-client relationship when an offer is made, the offer is feeable, meaning that both petitioner and respondent pay a counsel fee on the amount offered when the case settles.

The main incentive for employers to make voluntary offers for the past 90 years has been the savings on counsel fees.  Those savings were often significant.  If the employer offered a percentage equal to $10,000 by way of voluntary offer, the respondent would save $1,200 by not having to pay a counsel fee on that offer.  The petitioner would save $800.  But with the new law, why would employers or carriers ever make a voluntary offer going forward?  Are there still situations where voluntary offers make sense?  The short answer is that there may yet be limited situations that argue in favor of a voluntary offer.

1.      Obviously, if an injured worker has no attorney at the time the offer is made, the offer remains free of any counsel fee. Here is the problem:  there is no way for an employer or carrier to be sure that the worker has no written agreement with a lawyer.  A question may be put to the injured worker about having counsel, but there is no obligation for the worker to reveal this information to the employer or carrier.  The injured worker may not feel comfortable at all with this question. Nonetheless, the employer can always make the voluntary offer, understanding that it may not know until the end of the case whether the offer is considered bona fide for purposes of being free of counsel fee.  The proof will be the written counsel fee agreement offered in evidence at settlement. The date of the agreement will decide whether the offer is feeable.

2.      The injured worker’s lawyer may on occasion make a request for a voluntary offer and give consent that the offer will not be feeable. This could happen in a situation where the employee has reached maximal medical improvement but the case is nowhere close to settlement.  The employee’s lawyer may request a voluntary offer at this point to tide his or her client over pending the resolution of the case and may propose that the amount of the offer will not be feeable.  These kinds of hardship offers by consent are likely to occur from time to time.

3.      Another situation that happens concerns overpayments of temporary disability benefits. When a carrier or third party administrator has overpaid temporary disability benefits, one way to recapture the overpayment, subject to approval of the Judge of Compensation, is to make a voluntary offer of permanency and then reduce the offer by the amount of the overpayment in temporary disability benefits.   The offer may still be feeable at the end of the case depending on whether there was a written attorney-client relationship, but at least this approach may remedy the overpayment issue.

4.      In some cases it is not clear whether the employer or carrier owes temporary disability benefits. There may be causation or legal issues over the question whether temporary disability benefits are due and owing.  In this case, the parties may discuss making an open-ended offer at a certain rate while the issues are being litigated.  Once the causation issue gets resolved, the Judge will decide whether the voluntary payment will be deemed to be a payment of temporary disability benefits or a voluntary offer of permanent partial disability.   Either way the employer will get a dollar credit.  The advantage for the employer is that this approach may avoid penalties and perhaps counsel fees related to a motion for medical and temporary disability benefits.

5.      Some carriers believe that a voluntary offer made early on in a case at the time of MMI, before it is known whether the employee has a lawyer, may deter the injured worker from filing a permanency claim petition. It is impossible to know whether this theory is valid because it is hard to prove a negative, namely that the injured worker would have filed a claim petition but for the voluntary offer.  Some carriers do subscribe to this approach and may therefore continue to make voluntary offers with the hopes that such an offer will deter the filing of formal claim petitions.

In short, the new law does not eradicate all rationales for voluntary offers.  Such offers will still happen from time to time but nowhere near as often as they were made over the past 90 years.  Voluntary offers will be few and far between in all likelihood, and practitioners will need to weigh the plusses and minuses in each case.

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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. 

Richard Helmrich worked as an Assistant Director of Food and Beverage at Mountain Creek Resort.  He was a large man, six-feet-tall with a body mass index between 40.27 and 47.53, above the threshold for obesity.  During his employment with the Resort he informed his boss of his weight and heart conditions.  His doctor diagnosed him as medically obese.  He provided his boss with a note that his cardiologist prepared for him, restricting the amount of weight that he was medically permitted to lift.

Helmrich testified that several individual defendants at the Resort regularly made observations about his weight, some of them by the owner himself within earshot of other employees.  One comment was that Helmrich needed to lose weight; another was that he needed to work harder at the gym to lose weight.  Yet another comment was that he was still fat.  Some of the comments were made in front of others, who would laugh at Helmrich’s expense.

On one occasion Helmrich notified his supervisor of one of these incidents in accordance with the Resort’s harassment policy.  A chef at the Resort said that Helmrich was “too large” and not “attractive” enough to approach customers’ tables in the restaurant.  Notwithstanding these kinds of comments, Helmrich never filed a formal complaint with Human Resources.

Helmrich did receive a written warning in July 2014 for poor performance.  He believed that his boss, Mr. Polchinksi, was delegating additional duties to him beyond the scope of his job and holding him to a higher standard than his subordinates.  He did not, however, tell anyone in supervision that he was being treated differently because of his weight.

Matters came to a head in December 2014 when his boss was promoted, thereby opening up the position of Director of Food and Beverage.  Helmrich was not told about the vacancy or encouraged to apply.  An employee who used to work under Helmrich by the name of Heaps was chosen for the position.  When that occurred, Helmrich met with supervision to ask why he was not considered for the position of Director of Food and Beverage.  He argued that he had the qualifications, holding an associate’s degree in hospitality management from Art Institute of New York.

Helmrich did not allege that he was denied the position due to his weight.  The company advised Helmrich that he was not chosen for the promotion because he failed to improve his work performance after the July 2014 written warning. The company told Helmrich that he was a good asset and a “great second man in command.” He was assured that he would be trained for future growth.

Helmrich resigned from his position on December 29, 2014 due to his perception of a hostile work environment.  He sued under both the ADA and New Jersey Law Against Discrimination.  The District Court noted that the United States Third Circuit has not expressly adopted obesity as a disability that substantially limits a major life activity.  The Court said, “Without excluding the possibility that obesity may under other circumstances constitute a disability under the ADA, the Court finds that it does not here.”  The Court observed that Helmrich never claimed that his obesity “substantially limits one or more major life activities.”  The Court added that although Helmrich had a weight lifting restriction, he did not dispute that his weight does not make it more difficult for him to stand, walk, bend or complete other movements necessary for him to work.

The Court next considered whether the Resort regarded Helmrich as being disabled.  “There is no question, therefore, that Defendants ‘regarded’ Plaintiff as obese.” The Court said that is not enough because there was no evidence that the Resort perceived him as having an impairment.  “Plaintiff does not argue that his weight limited his ability to stand, walk, bend, or complete other movements necessary for him to work.” The Court said that none of the defendants perceived Helmrich’s weight as physically interfering with his ability to do his job.  The Court found that there was insufficient evidence to prove the Resort regarded Helmrich as having a disability under the ADA.

The case is instructive.  It may be found at Helmrich v. Mountain Creek Resort Inc.,(D.N.J. October 15, 2018).  It shows that unfortunate remarks like those directed at the plaintiff may not be actionable in court if the plaintiff never tells anyone about them in HR or supervision of files a formal complaint.

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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. 

Julio Pendola fractured his ankle in 2014 picking up a customer and filed a petition in the Division of Workers’ Compensation.  He asserted that he worked exclusively as a driver for Classic, which had over 100 cars.  He purchased his own car after consulting with Classic.  The company required Pendola to paint the car silver and affix the Classic logo to the sides and front of the car with the company’s phone number.  Classic also required Pendola to purchase a two-way radio for installation in the car.  Eventually they changed to computer tablets to dispatch drivers.  All of these expenses were paid for by Pendola along with the medallion, gas, maintenance on his car and liability insurance.

Classic dispatched all the passengers which Pendola picked up.  He could not pick up passengers off the street like a taxi driver.  Pendola paid Classic $150 per week and then kept his fares, grossing between $500 to $700 per week.  Pendola could work when he wanted to work. He had to keep the car clean and dress appropriately.  Otherwise he would be suspended.

Testimony at trial revealed that Classic considered itself to be merely a dispatching service and that drivers were considered independent contractors.  The color of the cars was an article of compliance with the City of Newark Taxi Division.  The company would check on the cleanness of cars that were being used.  The company also furnished drivers with business cards, receipts, vouchers for credit cards, and sometimes key chains and pens.  The company did not issue a 1099 or W-2 because the company considered drivers not to be employees.  The drivers simply would keep their fares.

The Judge of Compensation ruled in favor of Classic and found that Pendola was an independent contractor.  The judge noted that Pendola was free to accept or reject fares and was not supervised by anyone.  In regard to whether Pendola’s work was an integral part of Classic’s business, the Judge of Compensation found that Classic was not dependent on Pendola.  No one driver was essential to the business.

On appeal the Appellate Division observed that drivers were not free to pick up any nearby passenger.  They had to request the ride from the dispatcher, who would then decide which driver would get the assignment.  The Court thought it significant that the company would evaluate the condition of cars.  The Court disagreed on the analysis of the functional relationship between Pendola and Classic.  “It cannot be seriously disputed that Pendola was one of the ‘cogs’ in Classic’s operation.  His work as a driver willing to provide the rides Classic arranged was essential to the success of its business.”

The Appellate Division viewed Classic as more than a dispatching company but instead viewed it as a transportation company.  The Court noted that it had found Classic to be an employer in a prior case along the same lines in 1999.  It saw no reason to vary from that prior decision and reversed in favor of Pendola.

The case can be found at Pendola v. Milenio Express, Inc., d/b/a/ Classic, A-0225-17T2 (App. Div. October 26, 2018).  It shows how New Jersey courts will likely consider drivers for companies like Lyft and Uber when such cases find their way to the Appellate level.

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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 two maxims in workers’ compensation that appear on their face to be contradictory.  The first is that the employer takes employees as the employer finds them.  The second is that employers are not responsible for idiopathic or purely personal conditions.  Both maxims generally pertain to workers who have preexisting conditions, and both maxims are valid.

An example of the first maxim might be a carpenter with long-standing diabetes who is at a construction site.  The carpenter jams her foot against a machine and feels pain in her great toe.  She mentions it to her supervisor at the time but continues to work.  Three days later she goes to the ER as her toe has become gangrenous.  She ends up having an amputation and files a workers’ compensation claim.  This claim would be considered compensable in New Jersey.  While 99% of workers would not have developed the severe symptoms of this carpenter by jamming one’s toe, the employer takes the employee with all his or her preexisting health risks.

An example of the second maxim might be the same carpenter with long-standing diabetes.  She has worn shoe inserts for many years due to flat feet and notices that her current inserts are uncomfortable and in need of replacement.   In walking around the office at work, reviewing plans, she feels pain from the deteriorating insert rubbing against her great toe.  She mentions it to her supervisor but continues to work.  Three days later she goes to the ER as her great toe has become gangrenous.  Again, the toe must be amputated.  But her employer successfully denies this case because all the carpenter was doing was walking at work, and the inciting cause of her toe injury was really an old shoe insert that needed to be replaced.

What both examples have in common is that the employee has a preexisting non-work-related condition.  But not everything that happens at work is work related.  For example, if a manager with a prior heart condition is in a meeting and suddenly has a heart attack while sitting at a conference table, the employer will deny this claim and will almost certainly prevail.  Similarly, if a firefighter is walking upstairs to meet with the Chief at work, and his knee locks up while ascending the stairs due to prior osteoarthritis in the knee, the employer will successfully deny this claim under the case of Meuse v. Egg Harbor Township Police Department, No. A-4553-90T5 (App. Div. May 6, 1992).  If the firefighter did not fall or strike the steps, this would be considered idiopathic and not causally related.

So the basic point to remember in navigating between these two competing maxims is that there must be some work-related event to make the claim compensable.  Just being at work or walking around at work is not enough.  It is safe to say that at a certain age, most workers have preexisting conditions that could impact work, although those conditions are generally unknown to the employer.

The key for employers for success in workers’ compensation is to take a detailed past medical history and to investigate the specific details of the alleged work accident.  Occupational physicians and treating physicians must inquire into prior health history, prior car accidents, second jobs, prior chiropractor treatment, recreational activities, and prior pain management.  Determining causation requires knowledge of the worker’s past health condition as well as an understanding of the precise mechanism of injury.

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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. 

In every workers’ compensation trial both parties believe passionately in their position, but in the end, one party will prevail and one will lose.  Inevitably, the losing party will have to consider whether to file an appeal.  It is important to understand the appellate process, particularly the types of cases that stand a good chance of reversal and those that do not.

Some workers’ compensation trials focus on purely legal issues where the facts are really not in dispute; other trials focus primarily on facts in dispute, and still others focus on medical causation issues.  There are even cases with all three of these issues involved in the same trial.

Appeals in New Jersey from workers’ compensation go to the Appellate Division.  The judges in the appellate division do not take testimony on their own.  They do not hear witnesses, and they do not do independent research on medical causation issues.  Their focus is on the trial record below, which consists of testimony at trial, evidence submitted at trial, legal briefs submitted at trial, and the formal decision of the Judge of Compensation.  Appellate judges will defer often to the findings of the Judge of Compensation but not on questions of law.

So for starters one can say that when the issue on appeal is purely one of law, the parties know that the appellate judges are not going to defer to the Judge of Compensation.  The appellate judges will review the facts in the record and apply their own understanding of the relevant law.  They will read the statute and will read the relevant case law.  Most successful appeals happen when the issue is a legal one involving interpretation of the law.

For example, imagine a case where an UBER driver is injured and files a workers’ compensation claim against UBER.  The company denies that the driver is an employee and asserts that she is an independent contractor.  The facts are not in dispute.  The Judge of Compensation reviews the testimony and finds that the driver is an employee and not an independent contractor.  The Appellate Division will not defer to the Judge of Compensation on that finding because this case involves interpretation of the law on employee status and independent contractor status.  The appellate division will respect the findings of the Judge of Compensation on the facts of the case, but it will do its own assessment of the relevant law as applied to the facts.

In contrast, when a Judge of Compensation hears testimony from witnesses and finds that the witnesses for the petitioner were far more credible than the witnesses for the respondent, the appellate judges will defer to the findings of the Judge of Compensation.  The Judge of Compensation is in the best position to assess credibility because he or she hears the actual witnesses, can see their reactions to questions, and can evaluate the way they responded to cross examination.  Judges often ask their own questions of witnesses, and that level of engagement puts them in a very strong position to assess credibility.   So if the sole argument in the appeal is that respondent believes its witnesses were more credible, one can say at the outset that the chances of reversal are extremely low.  This type of appeal will seldom find any success.

Another category of appeal common in workers’ compensation involves the battle of the experts.  There are many occupational disease claims, cancer trials for example, where the facts are not in dispute but the medical experts dominate the trial.  Sometimes one expert is highly qualified and practices in the field at issue, and the other expert has far less qualifications.  The less qualified expert may simply provide a generalized opinion that the cancer condition is work related without citing to valid studies or medical literature.  These cases can be successfully appealed either on the theory that one expert was more credible based on qualifications or that the less qualified expert simply provided a “net opinion,” which is an opinion without any real scientific support for it.

When the issue pertains to the level of permanent partial disability, appellate judges will always defer to the expertise of the Judge of Compensation.  For example, consider a case where a construction employee lifts a heavy beam and herniates two discs, requiring fusion surgery.  The Judge of Compensation considers the impact of the injury on work and non-work aspects of the petitioner’s life, and the judge finds a disability of 45% permanent partial disability.  The respondent’s IME physician had a relatively low estimate and respondent expected an award of 35% permanent partial disability.  The difference between 35% and 45% is around $60,000, so the respondent appeals.  This sort of appeal almost always has a very low percentage of reversal because the appellate division judges defer to the skill and expertise of the Judge of Compensation in assessing permanency.

As a rule appeals based solely on the level of disability are ill-advised.  It is a rare case where such a reversal will occur.  For example, an appeal might be successful if the judge in the above example in finding 45% permanent partial disability said: “I found 45% permanent partial disability because that is what I normally find for two disc fusion surgery.”  Respondent could argue that the judge used a pre-set percentage in his or her mind and applied it to this case, as opposed to studying the individualized facts of the case and the impact of the accident on this claimant’s work and non-work life.  New Jersey Judges of Compensation understand that they need to consider each case on its own merits, so this type of appeal seldom gets filed.

Perhaps the most common argument on appeal is that there is insufficient credible evidence to support the findings of the Judge of Compensation.  This sort of an appeal can be successful in the circumstance where the Judge of Compensation makes a finding that is truly unsupported by the evidence.  But it is a tough argument because the appellate judges must be convinced that there is really no sufficient credible evidence to support the finding below.

Here is a simple example of where this argument could be made.  Consider a case where the employer has store security footage showing that the alleged injured employee did not fall at 2 p.m. in aisle six of the grocery store as is alleged in testimony.  The footage is unchallenged as to authenticity and it shows that the employee was never in that aisle at that time.  The employee maintains that he or she fell definitely in aisle six by the Kelloggs’ cereal boxes at 2 p.m.  The petitioner produces a witness who says that she believes that the petitioner may have gone in that aisle that day, but the witness did not see the actual fall.

The Judge of Compensation finds petitioner’s witness more credible and also finds that petitioner may have been mistaken about the aisle and probably fell in aisle five because there were some Kelloggs’ products also in aisle five.  But petitioner never claimed to be in aisle five.  Respondent will likely win on appeal by arguing there is insufficient credible evidence to support the determination of the Judge of Compensation because the best evidence would be the security footage showing that the injury could not have happened as alleged in aisle six at 2 p.m.

Estimating chances on appeal is a difficult thing to do, and there are many factors to consider.  The record has to be solid, meaning that all the evidence that the appealing party wanted to get in to evidence actually did get in, and the appellate brief and argument must be strong.  It is also very important to remember that the appellate judges do not hear arguments on appeal that were never raised in the trial before the Judge of Compensation.  If there is a valid argument on the independent contractor defense, that argument must be made at trial, not for the first time on appeal.

For this reason, both parties should submit detailed legal briefs explaining their position in the trial below, or at least make closing arguments to the Judge of Compensation detailing each point at issue.  This is the only way that the Judge of Compensation can know the arguments.  Judges in our system do not have law clerks and are extremely busy handling large lists every day, so it is incumbent on counsel to raise all the issues either in legal briefs or closing arguments – or both.  Counsel should then be able to provide to their clients solid guidance on the potential for success on appeal.

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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. 

David Rollins worked for Amtrak for 23 years until August 2015 as a supervisor in North Brunswick, N.J. overseeing 20 employees performing track maintenance.  His normal supervisor went on vacation, and Rollins experienced tension and stress with his temporary supervisor, Josh Newbold.  Rollins reported to another supervisor, Semliatschenko, his concerns about safety due to what he perceived as insufficient coordination with Newbold.  A meeting among all three was arranged on March 12, 2015 in which there was a heated argument.  Semliatschenko left the room for a few minutes during which Newbold later  claimed that Rollins threatened him with bodily harm.  Newbold did not report the alleged threat for six weeks.

On April 23, 2015, Rollins placed a call to ‘Operation RedBlock,” an employee assistance program helpline.  He said he was dealing with work and family stress issues.  At his duty station that night, Rollins was approached by Amtrak Police and paramedics from the local hospital asking him whether he was contemplating suicide.  Rollins denied suicidal thoughts and admitted simply work and family stress.  He noted his son was dealing with cancer treatment. He was taken to a local hospital and later released.  The hospital determined Rollins did not have suicidal thoughts and was not a danger to the railroad.  He was placed on medical leave pending clearance to return to work.

When he came to work the next day, Newbold found out about the incident the night before involving Rollins, and Newbold became concerned about Rollins’ emotional stability.  Newbold said that he was fearful about the threat that Rollins allegedly made on March 12, 2015, and he then reported the alleged threat for the first time.  He said that Rollins threatened to “come down to Levittown and slide one in me.”

Rollins was cleared to return to work in July 2015.  However, an investigation with a neutral hearing officer ensued at this point over the alleged threat against Newbold.  That led to a hearing on August 10, 2015.  In the hearing Newbold explained that he did not report the threat for the first six weeks because he did not think Rollins had been serious about harming him initially.  He said he became concerned about Rollins’ emotional stability when he came to work on April 24, 2015 and found out about the hospital visit.   The hearing officer recommended termination of Rollins’ employment in part for a violation of the Amtrak Workplace Anti-Violence Policy.  Rollins made multiple appeals without success and then filed a civil suit alleging violations of the New Jersey Law Against Discrimination.

In his suit Rollins argued that Amtrak discriminated against him on the basis of a perceived disability.  He contended that Amtrak perceived him as having a mental disability on account of his call to operation RedBlock and his discussion with a counsellor who alerted Amtrak Police.  He further argued that his firing was based on a pretext that he had engaged in an act of violence at his workplace.

Amtrak moved to dismiss the case.  Its management denied having any discriminatory animus against Rollins and conceded only that one co-employee, Newbold, could have had any discriminatory animus against him.

The federal court rejected the motion for summary judgment filed by Amtrak:  “Based on the facts provided by the parties, one can plausibly argue that Newbold and Amtrak management were motivated by discriminatory animus.  Defendant received Newbold’s complaint for an alleged threat that occurred weeks prior thereto, the morning after Plaintiff’s call to Operation RedBlock.  A jury may determine that the request for psychological services was the motivation to seek Rollins’ dismissal.”

Timing was the problem Amtrak faced in winning its motion for summary judgment.  The alleged threat by Rollins against Newbold occurred on March 12, 2015 but was not reported until the day after Rollins was taken to a hospital and found to have no suicidal thoughts, some six weeks later.  The report of the alleged threat then led directly to the termination of Rollins.  In the end the Court believed Rollins had made out a sufficient case to allow a jury trial on whether Amtrak wrongfully perceived him as having a mental disability and discriminated against him on that basis.  The case can be found at Rollins v. National Railroad Passenger Corp., 2018 A.D. Cases 336982 (D.N.J. September 18, 2018).

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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. 

New Jersey workers’ compensation has two kinds of settlements: those under Section 20, a full and final settlement, and those under Section 22, an accepted percentage of disability settlement with reopener rights retained by the petitioner.  Section 20 settlements are popular with employers and carriers because they do not involve an admission of liability, and the case is closed for good.  The two most frequent legal bases for obtaining a Section 20 settlement are liability and causation.  They comprise perhaps 95% of the Section 20 settlements in the Division, with the remaining small portion involving jurisdiction and dependency.  But what do liability and causation really mean?

An issue of liability refers mostly to legal considerations:

* The petitioner was not in the course of employment when injured

*  The petitioner was injured on premises not controlled by the employer

*  The petitioner was an independent contractor, for instance, not an employee

*  The petitioner cannot meet the definition of having a permanent impairment under Section 36

In contrast, causation refers mostly to medical-legal considerations:

*  The herniated disc is preexisting and was not caused by the injury

*  The petitioner’s present complaints reflect a subsequent non-work incident

*  The mechanism of injury is not consistent with petitioner’s pathology

The foregoing are just some examples of how causation and liability issues manifest in workers’ compensation cases.  As a practical matter, it is much easier to reach a Section 20 settlement if the workers’ compensation claim has been denied from the outset.   Accepted cases with objective evidence of permanent partial disability are not candidates for a Section 20.  Such cases are settled under Section 22, allowing the injured worker to retain the right to reopen the case in the future for additional medical, temporary or permanency benefits within two years from the last payment of compensation.

One exception to the above rule disqualifying admitted cases from a Section 20 concerns those matters where the defense doctor disputes that there exists any permanent disability at all.  If the defense IME finds zero permanent partial disability, even in an admitted case, the case may be a candidate for a Section 20 settlement.  Both parties must agree, and the Judge of Compensation must approve the Section 20.

Practitioners should realize that not all estimates of zero disability are the same.  If an IME doctor finds zero disability in a sprain and strain case with limited treatment and minimal lost time, the Judge of Compensation will be more likely to approve a Section 20 than a case where the defense IME has a zero estimate in the face of MRI findings of a bulging disc with radicular pain.  Just because the defense IME finds zero disability does not mean that the case will be approved for a Section 20.  Each case is different, and judges focus on the specific medical findings as well as the impact of the injury on the injured employee in his or her work and non-work life.  Minor sprains are excluded from compensation by statute under N.J.S.A. 34:15-36.  As such, admitted minor sprain cases are often settled under Section 20.

Perhaps the largest category of Section 20 settlements emerges from cases where the treating doctors have inquired about and identified preexisting or subsequent conditions that may explain the petitioner’s pathology and complaints. Often that questioning reveals prior car accidents or injuries that led to significant treatment and diagnostic testing, and that analysis often leads to a Section 20 resolution.  The skill of taking a detailed past medical history, inquiring about current sports, recreational activities and second jobs, varies immensely from doctor to doctor.  It takes time and effort to do this well.

Workers’ compensation is contingent health care, meaning that the physician must focus on whether the condition arises from work or perhaps from other non-work causes.  Most employers and carriers err in choosing doctors from enormous lists and large networks where the focus is primarily on provider pricing.  The reality is that the best results and greatest savings in workers’ compensation are directly traceable to the ability of physicians to analyze causation thoroughly and spend time taking a detailed past medical history.  Occupational physicians and surgeons should be selected primarily for their medical expertise and for their skill in analyzing causation, including taking a complete past medical history and considering non-work hobbies and sports in relation to the work activity that is alleged to be the cause of the injury.

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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. 

Does telemedicine have a place in workers’ compensation?  This practitioner was undecided on this question until a week ago when participating in a conference devoted to the benefits of using telemedicine in workers’ compensation. The presentation was offered by Concentra, and it made a strong case for telemedicine as a useful adjunct to workers’ compensation treatment.

The way it works is simple: an injured worker connects on a computer or a mobile device to a clinician by video.  Clearly telemedicine makes good sense for minor medical issues such as sprains or contusions.  Concentra estimates that 30 percent of initial injuries and 60% of injury rechecks can be treated via telemedicine.

What are the savings?  Among them is that there is no need to transport the injured worker to a medical facility and no need to provide coverage for that injured worker while out of the work site.  There are fewer hours of lost time.  Perhaps the biggest financial savings is not incurring ER charges or urgent care bills.

One type of New Jersey worker who clearly benefits from telemedicine is the over-the-road trucker who may be injured a thousand miles from home.  The telemedicine patient can be seen on the road, at work or even in the home.  The worker can request text notification regarding when the clinician is available to treat, thereby avoiding waiting times in medical offices.

The follow-up treatment involves sending paperwork by secure email to the employee as well as reports to the employer by email or other communication.

Will telemedicine replace occupational health centers?  Clearly not, because serious injury case are not appropriate for telemedicine.  It does seem to this practitioner that telemedicine will grow rapidly around the state for many types of injuries.  Clinicians will need to be careful in limiting the use of telemedicine to minor cases and recognizing when an in-person visit to a physician must be made. Many workers will no doubt prefer telemedicine in many situations.  Care may be improved by prompt telemedicine, eliminating the problem of workers who delay their own treatment because they do not want to take the time off from work to travel to an occupational clinic.

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JohDoes telemedicine have a place in workers’ compensation?  This practitioner was undecided on this question until a week ago when participating in a conference devoted to the benefits of using telemedicine in workers’ compensation. The presentation was offered by Concentra, and it made a strong case for telemedicine as a useful adjunct to workers’ compensation treatment.

The way it works is simple: an injured worker connects on a computer or a mobile device to a clinician by video.  Clearly telemedicine makes good sense for minor medical issues such as sprains or contusions.  Concentra estimates that 30 percent of initial injuries and 60% of injury rechecks can be treated via telemedicine.

What are the savings?  Among them is that there is no need to transport the injured worker to a medical facility and no need to provide coverage for that injured worker while out of the work site.  There are fewer hours of lost time.  Perhaps the biggest financial savings is not incurring ER charges or urgent care bills.

One type of New Jersey worker who clearly benefits from telemedicine is the over-the-road trucker who may be injured a thousand miles from home.  The telemedicine patient can be seen on the road, at work or even in the home.  The worker can request text notification regarding when the clinician is available to treat, thereby avoiding waiting times in medical offices.

The follow-up treatment involves sending paperwork by secure email to the employee as well as reports to the employer by email or other communication.

Will telemedicine replace occupational health centers?  Clearly not, because serious injury case are not appropriate for telemedicine.  It does seem to this practitioner that telemedicine will grow rapidly around the state for many types of injuries.  Clinicians will need to be careful in limiting the use of telemedicine to minor cases and recognizing when an in-person visit to a physician must be made. Many workers will no doubt prefer telemedicine in many situations.  Care may be improved by prompt telemedicine, eliminating the problem of workers who delay their own treatment because they do not want to take the time off from work to travel to an occupational clinic.

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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.n 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. 

Daniel Cotto worked as a forklift operator at Ardagh Glass in Bridgeton, N.J.  On November 1, 2016, Cotto hit his head on the roof of a forklift at work.  He was advised to see Premier Orthopedics in Vineland, N.J. for a medical examination, and a Premier Orthopedics doctor placed Cotto on light duty work with a follow-up appointment set for December 8, 2016.  The Safety Department asked Cotto to submit to a breathalyzer and urine test in order to return to work.  Cotto explained that he was taking prescription medications, including medical marijuana under the New Jersey Compassionate Use of Medical Marijuana Act (“CUMMA”).  He was also taking prescription Percocet and advised the company that he could not pass any urine or drug test.

Cotto alleged that he was told he could no longer work at Ardagh Glass because he could not operate machinery while on narcotics.  Cotto argued that he revealed his prescription medications to the company when he was hired.  His doctor had given him a note stating he could operate machinery while using these drugs.  The company advised that it was not concerned about his use of Percocet but was concerned about his use of marijuana.

Cotto was not fired but he was placed on an indefinite leave.  He was not permitted to return to work until he could pass a drug test.  Cotto’s doctor wrote that Cotto had lifting restrictions because of medical conditions, but Cotto maintained that he could perform the essential functions of the job.  He sought a “reasonable accommodation,” specifically asking that the company waive any requirement that he pass a drug test for marijuana.

Eventually Cotto filed a law suit asserting disability discrimination and failure to make reasonable accommodations.  Ardagh Glass moved to dismiss the complaint because CUMMA does not mandate employer waiver of a drug test.

Initially the federal court agreed that Cotto plead enough to satisfy coverage under the New Jersey Law Against Discrimination.  His back and neck pain met the standard of the NJLAD.  The Court also noted that Cotto appeared to be qualified to perform the essential functions of the job, having done it for five years.  Ardagh, however, maintained that Cotto could not show that he could operate machinery while using marijuana.  The company noted that use of Percocet was not illegal, but marijuana use was illegal under federal law.

The Court next reviewed CUMMA and said, “The New Jersey legislature found that ‘modern medical research has discovered a beneficial use for marijuana in treating or alleviating the pain or other symptoms associated with certain debilitating medical conditions.’”  The Court added that CUMMA provides an affirmative defense to patients who are properly registered under the statute and subsequently arrested and charged with possession of marijuana.  The Court commented that the decriminalization of medical marijuana does not shield employees from adverse employment actions.

The Court’s decision today is a narrow one, as it must be for the narrow issue presented by Plaintiff’s complaint.  Plaintiff’s discrimination claims turn entirely on the question of whether he can compel Ardagh Glass to waive its requirement that he pass a drug test.  It is plain that CUMMA does not require Ardagh Glass to do so.  We therefore find that Plaintiff has failed to show that he could perform the ‘essential functions’ of the job he seeks to perform.  Ardagh Glass is within its rights to refuse to waive a drug test for federally-prohibited narcotics.

Regarding Cotto’s argument that other injured employees with restrictions had been permitted to work light-duty positions, the Court said that Cotto failed to show that similarly situated employees asked for the specific accommodation he asked for, namely a drug test waiver.

The case can be found at Cotto v. Ardagh Glass Packing, Inc., No. 18-1037 (D.N.J. August 10, 2018).  It is the first decision of its kind in New Jersey on the issue of whether an employer must make a reasonable accommodation of waiving a post-injury drug test for an employee covered under CUMMA.

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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.