NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.
Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.
Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.
Motion to Reopen a Prior Claim Based on Mistake Supported by Subsequent IME Report
Dreibach Wholesale Florists, Inc. v. Leitner, 2021-CA-1495-WC (11/10/22, not final)
Holding: Medical opinion acquired after ruling that could have been obtained prior to closure of case does not justify reopening on ground of “mistake” per KRS 342.125. The purpose of the “mistake” provision is to correct a decision based on misconception concerning the workers’ condition, not to give the losing party an opportunity to bring up reinforcements and relitigate.
Conflicting medical evidence was presented to the Administrative Law Judge ("ALJ") regarding the worker’s condition, including allegations of neck pain. The ALJ awarded medical benefits for the left knee and right shoulder; there was no award for the neck and there was no appeal of the award.
After undergoing cervical surgery to resolve ongoing shoulder pain, the worker submitted an IME assessing a 29% impairment for his neck and opining that the shoulder pain was previously misdiagnosed and was actually a result of the neck maladies. The worker then filed a motion to reopen, claiming that newly discovered evidence, the IME report, supported reopening. Denying the motion to reopen, the ALJ found that the IME report was not newly discovered evidence because it could have been discovered by the exercise of due diligence prior to the hearing. The worker also sought to reopen based on mistake and a change in condition. The ALJ determined that the IME report did not support reopening based on mistake or a change in condition, as there was no original award for any neck condition. The Workers' Compensation Board reversed, holding the worker had made a prima facie showing of mistake as to the original finding that he had not sustained a compensable neck injury.
The employer appealed, arguing that the Board usurped the ALJ’s role as fact finder by reopening a case to allow presentation of evidence discoverable before the initial hearing. The Court of Appeals agreed, finding that when an ALJ considers conflicting medical evidence regarding a workers’ compensation claim in making his ruling upon a final hearing, a subsequent medical opinion that could have been obtained prior to the close of evidence will not justify reopening on the ground of “mistake” as contemplated by KRS 342.125(1)(c).
Language in Settlement Agreement Required Continuation of Survivor Benefits with No Modification of Weekly Amount
Kentucky Employers’ Mutual Insurance Authority v. Fleming, Cl No. 201401039 (11/18/22, Workers' Compensation Board Opinion, not controlling)
KEMI appealed order substituting Debra Fleming, widow of Lenville Fleming, deceased, as a party and continuing indemnity benefits pursuant to KRS 342.730(3)(a). The order also extended the time of benefits to be paid to Debra for an additional 3 years, until Fleming would have turned 70.
KEMI argued proper procedure was to file a separate claim pursuant to KRS 342.750 (death statute) based on Baytos and Calloway County. Furthermore, KEMI contended Debra was not entitled to continuation of benefits because she was 63 at time of death and the 1996 version of KRS 342.730 did not provide for continuation of benefits after age 60. KEMI also argued that reopening rights were waived, and the 110 included waiver of reopening under KRS 342.750 and 342.730.
The Board disagreed that Debra’s sole avenue of relief was to file an action pursuant to KRS 342.750 noting that the death certificate didn’t conclusively show the death was work-related and the fact that Fleming was still owed indemnity benefits per the settlement agreement distinguished this case from Baytos and Calloway County. The Board rejected the notion that the waiver of reopening rights precluded Debra from reopening the claim to enforce the settlement agreement. The Board held that Fleming waived the right to reopen only to seek an increase in benefits and Debra was instead seeking to enforce a valid contract pursuant to KRS 342.265(4).
The Board found the terms of the settlement agreement controlling, construing the agreement as requiring indemnity payments to Fleming, and now to his widow, through 9/6/29, without modification of the amount. Below is the language in the 110:
In Other Information the settlement was stated to encompass any claim which might later arise and be claimed by Fleming and/or his dependents, further supporting the Courts conclusion that KEMI must continue payments through the settlement date without alteration to Fleming’s widow.
The Board reversed the order extending the benefits for 3 years, again stating that the terms of the Agreement control.
Pending Before the Supreme Court of Kentucky: 45-day Requirement for Submission of Medical Bills by Medical Provider
P & P Construction, Inc. v. Farley, 2022-CA-0332-WC
Several cases have gone before the Workers' Compensation Board regarding whether KRS 342.020(4), requiring medical bills to be submitted by the medical provider within 45 days after the date or service, applies prior to an award of medical benefits (either by opinion or agreement). Based on Wonderfoil, the Board has consistently found that the 45-day rule only applies post-award.
In P & P Construction, the Kentucky Court of Appeals overturned the Board, stating that the clear language of the statute requires the submission of medical bills by the provider within 45 days of service, period. This decision has been appealed and is currently before the Supreme Court of Kentucky. We will let you know when a decision has been issued, but it is currently safe to deny any medical benefits submitted more than 45 days from the date of service as untimely per KRS 342.020(4).
New Administrative Law Judge, Kenneth Smith
Kenneth Smith has been appointed to replace ALJ Christina Hajjar, who has resigned. He will serve for the remainder of the term expiring December 31, 2023. ALJ Smith graduated UK law school in 2004 and has spent his career as a Plaintiff attorney handling personal injury, SSD and workers' compensation cases.
New Supreme Court of Kentucky Chief Justice
The justices of the Supreme Court of Kentucky have elected Justice Laurance B. VanMeter as the next chief justice of the commonwealth of Kentucky. Chief Justice-elect VanMeter is the 6th chief justice and will serve a four-year term beginning Jan. 2, 2023.
Chief Justice-elect VanMeter will succeed Chief Justice Minton, who is retiring Jan. 1 after serving more than 14 years as administrative head of the Judicial Branch.
Should you have any questions or wish to discuss any related matters, please contact us at your convenience.
H. Douglas Jones, Esq. – djones@jsbattorneys.com, 859.594.4200
Margo Menefee, Esq. – mmenefee@jsbattorneys.com, 859.594.4200
Effective January 1, 2023, the maximum weekly income benefit under the Nebraska Workers’ Compensation Act will increase to $1,029.00. This amount applies to work-related injuries and illnesses occurring on or after January 1, 2023 (https://www.wcc.ne.gov/home/court-news/2022-6-news).
Permanent injuries in Nebraska are either to a “scheduled member” or to the “body-as-a-whole.” In general, “scheduled members” are those injuries specifically listed in § 48-121(3). Scheduled members include fingers, hands, toes, feet, knees, eyes, ears, and hearing. Permanent impairment to a single scheduled member, such as an arm, is compensated in terms of loss of function. You’ll most frequently see this loss of function expressed as a percentage of permanent impairment.
Alternatively, injuries to body parts not expressly listed in § 48-121(3) are commonly called whole-body or body-as-a-whole injuries. Most commonly, these include injuries to the back, neck, head, and psyche. For these whole-body injuries, compensation is based on the employee’s “loss of earning capacity” or “LOEC” which is also referred to as the employee’s “loss of earning power.” There is no numerical formula to determine an employee’s LOEC. It is determined by considering four factors: (1) the worker’s general eligibility to procure and (2) hold employment, (3) the worker’s capacity to perform the tasks required by the work and (4) the worker’s ability to earn wages in employment for which he or she is engaged or fitted. Sidel v. Travelers Ins. Co., 205 Neb. 541, 288 N.W.2d 482 (1980).
Pursuant to a 2007 statutory amendment, the Act also provides that if an employee suffers two or more scheduled member injuries arising out of one accident and the loss of earning capacity is at least 30 percent, the compensation court has the discretion to compensate the employee based upon the resulting loss of capacity. Neb. Rev. Stat. § 48-121(3). This is commonly called the “two scheduled member exception,” but for purposes of this post, it will be referred to succinctly as the ”exception.”
Historically, the purpose of the exception was meant to apply to bilateral injuries arising from the same accident or injuries to completely different body parts. For example, an employee who suffered bilateral knee injuries or both a hand injury in conjunction with a knee injury would be considered under the exception. That argument seemed to change in 2017 when Judge Hoffert held that an employee’s injuries to two different fingers on the same hand could also fall within the exception.
In Abdi v. JBS Holdings, 2017 WL 2437763 (Neb. Work. Comp. Ct.) Judge Hoffert first addressed whether or not a thumb and index finger qualify as multiple member injuries under the exception. To that, Judge Hoffert concluded, “The Court has carefully reviewed the subject statute and searched in vain for any applicable case law. In the end, the Court finds no prohibition against considering a thumb and finger injury as two separate member injuries as each are certainly listed as scheduled injuries under Section 48-121(3). If it were the legislature’s intent to exclude thumb and finger injuries from consideration an affirmative statement to that effect would likely have been made. Additionally, one could easily imagine a circumstance where an injured worker may lose or suffer serious injury to both thumbs in a single accident and would undoubtedly be significantly impaired as to his future earning capacity.” (emphasis added). Importantly, even Judge Hoffert seemed to recognize that the exception was most relevant to bilateral injuries.
Since Judge Hoffert’s decision, several similar cases were decided at the trial court level with differing opinions from the Judges as to whether injuries to the same extremity or limb can satisfy the “two scheduled members” exception.
The most relevant is Judge Fitzgerald’s recent decision in Espinoza v. Job Source, USA, 2022 WL 432217 (Neb. Work. Comp. Ct.). In Espinoza, Judge Fitzgerald held that a right arm and right-hand injury were not two separate injuries for purposes of the exception. As background, the employer in that case stipulated that the employee suffered both a right wrist and right elbow injury as a result of an accident on March 20, 2019. Shortly after the accident, the employee underwent a right wrist surgery. One month later, she had surgery on her right elbow. In light of the same, the employer stipulated that the employee was entitled to a 13% rating to the right upper extremity pursuant to the AMA Guidelines. This rating was a combination of a 5% rating to the elbow and a 9% impairment to the wrist. This is important because § 48-121(3) values an injury to the elbow differently than an injury to the wrist. Specifically, an injury to the elbow is worth up to 225 weeks while an injury to the wrist is worth up to 175 weeks.
Citing to the two-member exception, Judge Fitzgerald held: “A loss of use due to an injury to the wrist and the elbow in a single arm is not an injury to parts of more than one member. The arm is a single member, and any loss of use for an injury below the elbow would be included in the loss of the use of the same arm. The Court finds that an injury to the wrist and the elbow of the same arm is still an injury to a single member and does not entitle an employee to a loss of earning power.”
Espinoza is now on appeal to the Nebraska Supreme Court and is drawing attention from both sides of the workers’ compensation aisle. The Plaintiff’s bar argues that § 48-121(3) should be read to allow an employee to prove multiple injuries to the same limb to satisfy the two-member exception. However, such an argument overlooks the plain language of § 48-121(3), and the intent of the legislature from when it was passed. Indeed, when the 2007 legislative session created the two-member exception, the phrase “bilateral injuries” was consistently utilized by proponents. The example of bilateral carpal tunnel was specifically raised as a type of injury that should qualify under the exception. Other examples included entirely different limbs – a rotator cuff and a knee.
A decision from the Supreme Court will likely not be issued for several weeks, but CPW Law will continue to closely monitor the same as it will certainly impact a dispute among the trial court Judges as to when the two-member exception applies.
If you have questions about a case involved multiple scheduled member injuries, please contact any of the lawyers at CPW by phone or email. Want to ensure you don’t miss out on the next post in the CPW compendium series? Be sure to subscribe to our newsletter.
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Practical Advice In New Jersey Workers’ Compensation
N.J.S.A. 34:15-57.4 (commonly known as the Workers’ Compensation Fraud Act) states in pertinent part: “If a person, purposely or knowingly makes, when making a claim for benefits pursuant to R.S. 34:15-1 et seq., a false or misleading statement, representation or submission concerning any fact which is material to that claim for the purpose of obtaining the benefits, the division may order the immediate termination or denial of benefits with respect to that claim and a forfeiture of all rights of compensation or payments sought with respect to the claim.”
This means that both past and future benefits may be forfeited as a result of fraud (past benefits generally being medical and TTD, and future benefits generally being potential permanency benefits).
The Fraud Act goes on to state: “[I]n addition to any other remedy available under law, if that person has received benefits pursuant to R.S. 34: 15-1 et seq. to which the person is not entitled, he is liable to repay that sum plus simple interest to the employer or the carrier … and the division shall issue an order providing for the repayment …” N.J.S.A. 34:15-57.4(c)(2).
The Fraud statute sets a very high burden of proof for Respondents, as Respondent needs to demonstrate: 1. A false or misleading statement was made by petitioner; 2. The false statement must be material to the claim; and 3. The false or misleading statement was made for the purpose of obtaining benefits in the workers’ compensation case.
Below are hypothetical situations where Respondent may have a good argument that an employee committed fraud, and should consider filing a Motion to Dismiss for Violation of the Fraud Act.
Scenario 1: Tom is under authorized treatment for a January 1, 2022 work accident where he injured his low back and left shoulder. The authorized doctor placed petitioner out of work as of January 25, 2022. Petitioner is receiving TTD as he is out of work and he continues to deposit his TTD checks but at the same time, he continues to work as a delivery driver for a food delivery company and is paid from his second job as a delivery driver at the same time he receives TTD from his first job.
Our position is that this is fraud. An injured worker cannot collect TTD for not being able to work but actually be working. In this example, petitioner is representing that he cannot work but is working and therefore, he is making a fraudulent representation.
Scenario 2: During testimony on a Motion for Med/ Temp, Ryan testifies that due to his April 15, 2022 work injury, he cannot walk more than one block. He also cannot do any household chores and testifies that he has had to hire a housecleaning service. However, surveillance shows Ryan performing in triathlons and marathons, winning awards for being in second and first place in various events. He is also seen working on his home and building an addition to his back patio.
As Ryan has grossly exaggerated his abilities, our position would be that this is fraud. Misrepresenting of abilities to this degree is similar to the case of DuBrel v. Maple Crest Auto Group, No. A-3321-10T3 (App. Div. January 30, 2012), where petitioner testified that he could no longer do a variety of things, including training and trailering horses. However, petitioner was observed doing these activities, in direct opposition of his testimony. The court in this case found that this type of false testimony was a flagrant violation of the Workers’ Compensation Fraud Act. The Appellate Division affirmed the decision of the Judge of Compensation in terminating all benefits.
Scenario 3: Mary has a work accident of March 1, 2022, where she injures her left knee. During her course of authorized treatment, she specifically denies any prior left knee issues, injuries, or treatment. However, Respondent’s investigation reveals that on January 2, 2022, petitioner underwent arthroscopic surgery to the left knee. She then underwent a course of post-operative physical therapy through February 15, 2022 and treated with her prior surgeon through February 28, 2022. When confronted with this information, Mary indicates that she simply “forgot” about her prior surgery and prior treatment.
We would maintain that this is fraud in misrepresenting past medical history. In a case like this, testimony, or specific interrogatories, would likely be needed to elicit further details. It is difficult to believe that Mary “forgot” about a surgery from two months ago and “forgot” about her prior relevant treatment, which ended just before her work accident to the same knee, but the Judge of Compensation will ultimately decide on this issue.
Scenario 4: Bob says he got hurt in Aisle 4 of the grocery store, falling by the cereal boxes. He reported the injury right away and specifically says he fell by the Cheerio boxes. Security video shows Bob never even walked down Aisle 4 on the alleged date. In fact, he never fell at all.
It would be our position that this is fraud. The fabrication of a work injury for the purposes of obtaining medical treatment, TTD, and/or permanent disability benefits, is fraud.
If Respondent obtains new information in a closed file, Respondent can re-open the case. For example, in a case where a prior Order Approving Settlement was awarded and there may now be fraud (for example, petitioner is observed doing very physical activities that he stated he could not do at the time of settlement), Respondents can file its own Re-opener application to lower the Award. Alternatively, Respondents can file a Motion to Vacate the Prior Order Approving Settlement. Finally, Respondents can file a Motion to Dismiss for Violation of the Workers’ Compensation Fraud Act. Respondents may also be able to negotiate a small Section 20 settlement, or dismissal, of a case where the employee committed fraud.
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Maura Burk, Esq., is a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Ms. Burk concentrates her practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation matters. If you have any questions or would like more information, please contact Ms. Burk at 856.840.4941 or by e‑mail at mburk@capehart.com.
In Saiti v. Garden Homes, No. A-1328-20 (App. Div. October 11, 2022), the petitioner received an award for $66,074 on September 3, 2020. The terms of the settlement were memorialized in an order signed by the Judge of Compensation and both parties. Petitioner’s attorney made numerous phone calls in the ensuing 60 days regarding non-payment of the order. After 60 days, petitioner moved to enforce the Order since payments still had not been made. Over 90 days after the Order was entered, a telephone conference occurred on December 7, 2020 regarding the late payment. There was no record of the conversation and no record of any oral argument by the parties, although there is mention that the parties appeared.
On December 7, 2020, the Judge of Compensation issued an oral decision on petitioner’s motion, noting that the payments were now due over 90 days. The Judge of Compensation ordered:
1. Costs and interest on the settlement payments;
2. An additional assessment of 25% of the monies due for the unreasonable payment delay to the petitioner with $16,287 payable to Saiti;
3. $4,000 in attorneys’ fees payable to counsel for Saiti;
4. $5,000 in penalties payable to the Second Injury Fund;
5. Additional legal fees of $2,188 to counsel for Saiti in relation to enforcement efforts.
Respondent appealed the December 7, 2020 Order and argued that the Judge of Compensation abused his discretion in awarding penalties and sanctions without affording counsel the opportunity to be heard.
The Appellate Division observed, “The Workers’ Compensation Act does not establish a specific timeframe for payment of workers’ compensation settlement proceeds.” That statement is puzzling because N.J.S.A. 34:15-28 states as follows: “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.” While this statute gives the Judge of Compensation some discretion, it also clearly refers to a 60-day time period.
The Appellate Division held, “Having reviewed the parties’ arguments in light of the record and the applicable legal principles, we are unable to determine whether the imposition of penalties and assessments under the December 7, 2020 order was reasonable.”
The Court held, “We are satisfied that it was a mistaken abuse of discretion to enter an order awarding sanctions without permitting counsel to be heard and without findings as to why the payment delay was unreasonable.”
The Court directed that the Judge of Workers’ Compensation “shall conduct a hearing and consider the steps taken by Saiti’s counsel to secure payment within sixty days of the entry of the September 7, 2020 order.” The Order was vacated pending a new hearing. The case seems to turn on procedural due process, namely the need for the Judge of Compensation to hear oral arguments on the reasonableness of the delay, specifically whether the delay in payment had some justification.
This decision provides no comfort for respondents. It is true that the December 7, 2020 Order was vacated, but a new hearing will be held in which the Judge of Compensation will hear oral arguments from defense counsel explaining the reason, if any, for delays in paying the Order of September 3, 2020. The best advice to employers remains this: all orders need to be paid within 60 days. That is the clear import of the relevant statute.
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John H. Geaney, Esq., is a Shareholder and Co-Chair 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.
Claimant was allegedly injured in a work incident on July 25, 2018. Following a Hearing, the Industrial Accident Board issued a Decision finding claimant had sustained only a limited injury which had resolved, with treatment only compensable through January 2, 2019. Later, several medical bills for treatment after the date of resolution of injury were paid by accident.
Upon learning of the mistaken payments, the adjuster immediately requested reimbursement, with Heckler & Frabizzio providing a letter to be sent to each provider, explaining the consequences of the Board’s prior Decision, and reinforcing the need to issue reimbursement. However, none of the providers complied. The Employer filed a Motion with the Board, seeking to compel reimbursement of the mistaken payments. At the Legal Hearing, no physicians were present, despite receiving notice. Claimant’s attorney was present and argued against ordering reimbursement, out of concern the providers would then seek payment from the claimant.
In an Order dated August 11, 2022, the Board agreed with the Employer and granted the Motion. Because the treatment was all administered by certified providers under the Workers’ Compensation System, and because the Board has statutory authority over medical payments, the Board was empowered to compel reimbursement. Further, as the payments were issued for treatment after a clear cutoff date, the Board agreed they were made by mistake. As such, the providers were required to issue reimbursement within thirty days, or else they would be subject to further sanctions from the Board.
Should you have any questions regarding this Decision, please contact Nick Bittner, or any other Attorney in our Workers’ Compensation Department.
Patricia Wesley v. State of Delaware, IAB No. 1475026 (Aug. 11, 2022).
The Industrial Commission has revised its in-person hearing guidelines to reflect the most recent guidance from the Centers for Disease Control (CDC).
Any person with symptoms of COVID-19 who has not had a COVID-19 viral test following onset of symptoms shall not attend an in-person hearing and shall contact the Deputy Commissioner.
Any person who has tested positive for COVID-19 and has had symptoms of COVID-19 shall not attend an in-person hearing and shall contact the Deputy Commissioner unless at least 5 days have passed since symptom onset and 24 hours with no fever and without the use of fever-reducing medications has passed and other COVID-19 symptoms are improving. Additionally, any person who has tested positive for COVID-19 and has had symptoms of COVID-19 shall wear a high-quality mask while attending any in-person Industrial Commission hearing for an additional 5 days after the end of the isolation period.
Any person who has tested positive for COVID-19 but has had no symptoms of COVID-19 shall not attend an in-person Industrial Commission hearing and shall not contact the Deputy Commissioner unless at least 5 days have passed.
Any person who has no symptoms of COVID-19 and has not tested positive for COVID-19 but who has, at any time during the 10-day period prior to an in-person Industrial Commission hearing, had a known contact with another person who has COVID-19 shall wear a high-quality mask at all times during the hearing.
Read the full list of revised in-person Industrial Commission hearings here.
Any person with symptoms of COVID-19 who has not had a COVID-19 viral test following onset of the symptoms shall not attend an in-person Full Commission hearing and shall contact Counsel to the Panel Chair.
Any person who has tested positive for COVID-19 and has had symptoms of COVID-19 shall not attend an in-person Full Commission hearing and shall contact Counsel to the Panel Chair unless at least 5 days have passed since symptom onset and 24 hours with no fever and without the use of fever-reducing medications has passed and other COVID-19 symptoms are improving. Additionally, any person who has tested positive for COVID-19 and has had symptoms of COVID-19 shall wear a high-quality mask while attending any in-person Full Commission hearing for an additional 5 days after the end of the isolation period.
Any person who has tested positive for COVID-19 but has had no symptoms of COVID-19 shall not attend an in-person Full Commission hearing and shall contact Counsel to the Panel Chair unless at least 5 days have passed since the positive COVID-19 test.
Any person who has no symptoms of COVID-19 and has not tested positive for COVID-19 but who has, at any time during the 10-day period prior to an in-person Full Commission hearing, had a known contact with another person who has COVID-19 shall wear a high-quality mask at all times during the in-person Full Commission hearing.
Read the full list of revised in-person Full Commission hearings here.
Pursuant to Rule 11 NCAC 23A.0109(d), all carriers, third-party administrators, and self-insured employers are required to provide the Commission with an email address for service of claim-related documents in cases where the Commission does not have email contact information for a specific representative assigned to the claim. The Rule requires a general email address for receipt of letters and notices related to claims when the Commission has NOT been advised of a specific person handling the claim. Once the Commission has been advised of a specific representative assigned to the claim, correspondence regarding the claim will be sent directly to that person.
We are living through a period of sharp inflation in almost everything from food and gasoline to automobiles and airfare, but one area where costs are sharply declining in New Jersey pertains to the cost of getting copies of medical records. Governor Phil Murphy signed S 2253 on September 22, 2022. This legislation dramatically lowers the costs that hospitals and physicians can charge for providing copies of medical records.
We begin first with a key definition. The bill refers to a “Legally authorized representative.” That means the patient’s spouse, domestic partner, or civil union partner; the patient’s immediate next of kin; the patient’s legal guardian; the patient’s attorney; the patient’s automobile insurer; or the patient’s worker’s compensation carrier, if the carrier is authorized to access to the patient’s treatment or billing records by contract or law, provided that access by a worker’s compensation carrier shall be limited only to that portion of the treatment or billing record that is relevant to the specific work-related incident at issue in the worker’s compensation claim.
Here are the allowable fees for a legally authorized representative under the new law:
“Authorized third party” means a third party, who is not a legally authorized representative of the patient, with a valid authorization, subpoena, legal process, or court order granting access to a patient’s medical or billing records.
Here are the allowable fees for authorized third parties under the new law:
Before passage of this new legislation, providers could charge $1 per page up to $125 for copies plus a search fee up to $25. The new $50 cap represents a significant cost reduction. Workers’ compensation practitioners need to know about this legislation because it has been routine to obtain requests for records that amount to hundreds of dollars. The law is so new that medical providers and hospitals may not even be aware of the changes.
Our thanks to Francine Viden, our firm’s excellent librarian, for obtaining the information and organizing the salient changes in the law.
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John H. Geaney, Esq., is a Shareholder and Co-Chair 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.
Few readers of this blog may know that the New Jersey Division of Workers’ Compensation achieved a number of notable firsts this year with the appointment of the Honorable Maria Del Valle Koch as Director of the Division in June 2022. Director Koch is the first woman Director and the first Hispanic Director in the history of the New Jersey Division of Workers’ Compensation. This is particularly noteworthy right now because September 15, 2022 through October 15, 2022 is National Spanish Heritage Month, an annual observance established by President Lyndon B. Johnson in 1968 to celebrate the histories, culture and contributions of Hispanic Americans. I recently had the pleasure of meeting Director Koch for the first time, and she was kind enough to allow me to interview her for this blog regarding her Hispanic heritage and her aspirations as Director.
Director Koch grew up in Jersey City, N.J. with four sisters and two brothers. She said education was stressed at home. She attended James J. Ferris High School and received her B.A. in History from St. Peter’s University in Jersey City. She graduated in 1987 from Seton Hall University School of Law in Newark, N.J.
Her mother, who is now 94 years of age, was born in Cuba and came to the United States in 1955. Her natural father and her step-father were both born in Puerto Rico. The Director learned to speak, read and write Spanish. “I’m very proud of my being Puerto Rican and Cuban.” She added, “The hallmark of my family is this: my mom told us to be proud of our Hispanic culture and to be proud to be American.” Both of her brothers were born in Cuba, and both served in Vietnam. She added, “We all believe in serving our country and our community.”
Director Koch worked in general practice in Jersey City, then worked for the Middlesex Region of the Public Defender’s Office until 1996. She established her own law practice in 1996. She worked as a Public Defender from 2002 to 2008 in Perth Amboy, N.J. In 2014, she was appointed a Judge of Compensation. In December 2020 she was appointed Administrative Supervising Judge while sitting in Plainfield vicinage. Governor Phil Murphy nominated her as Director of the Division on June 9, 2022.
Director Koch had not practiced workers’ compensation law before becoming a Judge of Compensation. She credited several former judges of compensation with helping her develop a deep appreciation for the New Jersey Workers’ Compensation Act, including former Judge of Compensation Nilda Hernandez, former Judge of Compensation Yolanda Adrianzen and former Judge of Compensation James Welch. In regard to being the first woman Director of the Division, she said, “All of the women judges who came before me have set the standard very high.”
Director Koch describes her style of leadership as collaborative, professional and consensus building. “What motivates me as Director is that I am part of a greater task to do right by people.” She summed up her approach as “be kind and be collegial.” In addition to running the Division of Workers’ Compensation, she handles seven lists in the Plainfield vicinage. “As a workers’ compensation judge, I have to set the tone and example for the way that we treat injured workers, attorneys, and everyone who is part of the Division.”
Director Koch commented that one of the major challenges in recent years for the Division, as for all courts, has been the COVID pandemic. “We in the Division have had an uncanny ability to think outside the box.” She added, “Like a good ballplayer, you have to adjust with each at bat and with each pitch.” Utilizing Zoom and Teams effectively has made a big difference,” she added. “My mission and my goal is to continue the high quality standard of excellence during the pandemic crisis that the Division has always demonstrated in New Jersey.”
The Director remains optimistic about the future of the Division. “Our Division has stood out as a court that is second to none in its ability to produce for workers and for all stakeholders.” She is hopeful that more judges will be nominated in the coming years.
The Director lives at the Jersey shore and when she is not working, she said she enjoys sailing and surf boarding. She has three children who are a big part of her life. She also remains an ardent fan of the New York Yankees and the New York Giants. She noted, “The Giants did not look so good in their most recent game and need to do a little better.”
Our thanks to the Director for allowing readers to learn more about her very interesting personal background and her goals for the Division in the coming years.
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John H. Geaney, Esq., is a Shareholder and Co-Chair 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.
SB 1403, effective 9/24/2022, adds a new reporting requirement in Section 23-1061(N) for insurance carriers. Upon the receipt of written notice of an injury from an employee who was injured and intends to file a claim for compensation, the carrier must forward the written notice to the Industrial Commission within seven business days and inform the employee of the employee’s requirement to file a claim with the Commission. The one-year claim filing deadline may be suspended from the date the carrier received written notification until the date the carrier forwards the written notification to the commission. The statute expressly applies to all existing claims that have not been legally filed by the injured worker with the ICA regardless of the date of injury.
The ICA has acknowledged that “intent to file for compensation” is not defined by the statute. The ICA has taken the position in their educational materials that “it is reasonable to assume that if the worker is seeking or has received medical and/or lost time benefits compliance is required.” It is anticipated that what constitutes “written notice” or “intent to file” will need to be addressed further by ICA policy or case law clarification. For example, if an employee sends an email or text to their employer claiming that they were hurt and they need help, that may constitute “written notice” in the eyes of the ICA.
From a carrier compliance standpoint, it is recommend to err on the side of caution and consider any written communication from an injured worker regarding notice of an injury and a request for any form of benefit to be “written notice” with an “intention to file.” This is particularly important as the statute not only indicates that the one year filing statute of limitations may be tolled, but also provides that violation of the new requirements may result in any other applicable bad faith/unfair claims processing allegations.