On January 17, 2020, the Alabama Court of Civil Appeals released its opinion in the matter styledEx parte Kohler Company, Inc.  In Kohler, the Court considered a Petition for Writ of Mandamus filed by the employer as the result of a trial court order requiring it to authorize a referral to a doctor for a second opinion after the employee had previously exercised her right to select a doctor from a panel of four.  Specifically, the employee injured her left foot and was initially treated by two occupational medicine doctors.  On September 19, 2018, one of the authorized occupational medicine doctors authored a note which made a referral to an orthopedic specialist.  Just five days later on September 24, 2018, the employee called the claims adjuster and asked that she be provided a panel of four physicians.  It is undisputed that the employee was represented by counsel at this time.  A panel of four orthopedic surgeons was offered to the employee.  She ultimately selected an orthopedic surgeon from the panel and received treatment.  When the panel doctor could not offer a diagnosis, the employee asked for a second opinion and he agreed that a second opinion would be okay.  The employer did not authorize a referral for a second opinion.  The employee filed a motion to compel the referral which the trial court granted.  The employer’s efforts to vacate the order were unsuccessful and so it timely filed a Petition for Writ of Mandamus asking the Court of Appeals to direct the trial court to vacate the order.  The Court of Appeals ultimately denied the employer’s petition rationalizing that it was equitably unjust for the employer to successfully take the position that the employee burned her panel when the employer had not followed the recommendation of the authorized occupational medicine doctor.

My Two Cents

The employee requested a panel of four just 5 short days after the occupational medicine doctor put an orthopedic referral in his notes.  It is not clear when that referral was actually shared with the claims adjuster.  Even if the adjuster knew about the orthopedic referral at the time the employee requested the panel (and there is nothing in the opinion to suggest that she did), to suggest that the employer failed to follow the recommendation of the occupational medicine doctor by not making the referral within 5 days of the recommendation is a little unfair.  Although it seems pretty clear that the orthopedic referral at least became known to the adjuster after the request for a panel was made (panel was comprised of 4 orthopedic surgeons), that is of no consequence since, by that time, the request for a panel had already been made.  Further, it is the opinion of the Court that the employer failed to follow a recommendation (that it may or may not have known) of an authorized doctor within 5 days of the recommendation being made.  Even if you consider what transpired after the call, the employee was represented when she requested the panel of four.  She and her attorney both knew that she had just been seen by an occupational medicine doctor.  Yet they elected to request a panel without so much as even inquiring as to what the occupational medicine doctor had to say as the result of the last appointment.  The fact that the panel was comprised of orthopedic surgeons instead of occupational medicine doctors should have been a huge clue to her attorney that such a referral had been made. 

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About the Author

This blog submission was prepared by Mike Fish, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Fish by e-mailing him at mfish@fishnelson.com or by calling him directly at 205-332-1448.

This week the New Jersey Appellate Division decided Hager v. M&K Construction, A-0102-18T3 (App. Div. January 13, 2010).  The issues of whether an employer must reimburse an injured worker for the costs of medical marijuana and whether such a court order would violate federal law have been the source of much controversy in the Division.  Hager is the first published opinion in our state to address these issues.

The facts can be briefly summarized as follows:  petitioner, then 28-years-old, was injured in 2001 working on a construction site for M&K Construction when a truck delivering concrete dumped its load onto him.  M&K denied the claim and stated that it was investigating the matter.  For reasons not made clear in the reported decision, the trial did not begin in workers’ compensation until 15 years later in November 2016.   During the course of the trial M&K stipulated that petitioner had sustained a compensable accident. However, the employer opposed petitioner’s claim for total and permanent disability and opposed petitioner’s request to reimburse him for the cost of marijuana under the New Jersey Compassionate Use Medical Marijuana Act (MMA).

During the many years since the date of injury, Mr. Hager endured chronic disabling pain and underwent multiple unsuccessful lumbar surgeries.  At trial he described his pain as starting in his lower back and radiating down his entire left leg to his toes.  He said that the pain affected every activity of his daily life and that he could only stand for a half hour to an hour at a time.  Lying down lessened the pain only marginally. He became dependent on the use of opiates.  He sought care with a chiropractor.  At various points over the years he was prescribed Oxycontin, Oxycodone, Valium, Lyrica and other pain medications. 

Petitioner saw Dr. Joseph Liotta in April 2016, who diagnosed him with post-laminectomy syndrome with chronic pain from a spinal nerve injury.  Petitioner was also experiencing side effects from his use of Oxycodone.  Dr. Liotta provided the required documentation for petitioner’s enrollment into the New Jersey MMA, providing him with a prescription for medical marijuana.  He opined at trial that petitioner will need marijuana to manage his pain for the rest of his life.  He also said that chemical addiction to marijuana is very weak compared to the more potent addiction to opioids, which can lead to death and many other severe side effects.

At trial petitioner testified that as a result of the use of medical marijuana, he was able to stop taking Oxycodone.  He felt that it provided some relief from incessant pain, and it helped him sleep better. He paid $616 per month out-of-pocket for the prescription of two ounces of medical marijuana.  During trial, petitioner sought a court order requiring M&K to reimburse him for the costs of the medical marijuana.  M&K argued that such an order would violate federal law.

Three other medical experts testified at trial besides Dr. Liotta.  Dr. Cary Skolnick testified for petitioner and opined that petitioner was 100% totally and permanently disabled as a functioning unit with a 65% permanent partial disability for the lumbar spine.  Dr. Gregory Gallick testified for respondent stating that petitioner, who was then in his 40s, could perform light duty work or drive a car and was not totally disabled.  He opined that petitioner had a 12.5% permanent partial disability.  

Dr. Brady, a pain medicine doctor, also testified for respondent.  He is certified to prescribe medical marijuana in New Jersey but has never done so thus far for any patient.  He testified that users of medical marijuana can experience “cognitive difficulties, problem solving cognition, short term memory loss, . . . hallucinations,” as well as an increased risk of lung cancer.  He testified that users of opioids could experience “addiction, tolerance, overdose, death, constipation, depression and sexual dysfunction.”  He said that marijuana is less addictive than opioids, and he felt petitioner was addicted to opioids and may be addicted to marijuana.  He felt that the use of marijuana had not been shown in the literature to be helpful to people with non-malignant back pain.  In his opinion, the only measure petitioner could take for his back pain was physical therapy.

The Judge of Compensation ruled that petitioner was disabled to the extent of 65% of partial total with 50% attributed to his orthopedic condition and 15% attributed to the effects of medical marijuana.  The judge ordered M&K to reimburse petitioner for the costs of medical marijuana and related expenses.  The judge was not persuaded by Dr. Brady’s position that petitioner should “simply deal with his pain.”  The Judge commented that this position was “unacceptable as inhumane and contrary to the law concerning an employer’s obligation to treat.”  The judge further noted that the only treatment choices outlined by the experts were opioids and/or marijuana.  “This Court concludes that, if the only choice for petitioner is between opioids and marijuana, then marijuana is the clearly indicated option.  Both modalities present significant downsides in terms of adverse consequences and risks, but a comparison leads inescapably to a conclusion that marijuana is the appropriate option.”

Both sides appealed aspects of the decision.  Regarding the issues raised by M&K, the Appellate Division addressed five separate arguments:

1) Does the Controlled Substance Act (CSA) which makes it a crime to manufacture, possess or distribute marijuana, preempt the New Jersey MMA?

The Appellate Division disagreed with the employer’s argument that it was impossible to comply with the MMA without violating the CSA.   The Court began by observing that the MMA decriminalized the possession of a certain amount of marijuana for medical use.  One of the Act’s purposes was to protect from arrest and criminal penalties those patients who use cannabis to alleviate suffering.  The Court noted that the MMA shields qualifying users of medical marijuana from civil penalties and provides an affirmative defense to patients who are properly registered under the statute but are nevertheless arrested and charged with possession of marijuana.

The Court reviewed two state decisions in New Mexico and Maine dealing with the question of whether their medical marijuana legislation was preempted by the CSA.  New Mexico held it was not preempted, but Maine held that it was preempted.  The Appellate Division found that the CSA only preempts a state law that requires the performance of an action specifically forbidden by the federal statute.  The CSA makes the possession, manufacture, and distribution of marijuana a criminal offense, “But an employer’s reimbursement of a registered MMA patient’s use of medical marijuana does not require the employer to commit those offenses.”  The Court added:

The MMA does not require an employer to possess, manufacture or distribute marijuana – the actions proscribed by the CSA.  Because it is not physically impossible to comply with the CSA and the MMA, there is no positive conflict between the laws.

2) Does the MMA violate the CSA by aiding and abetting in the commission of a crime?

The Court considered the argument that the MMA puts M&K in the position of aiding and abetting a crime.  The Appellate Division gave this argument short shrift:

Under the circumstances presented here, M&K is not an active participant in the commission of a crime.  The employer would be complying with an order requiring it to reimburse a person for the legal use of medical marijuana under this state’s law. M&K has not established the requisite intent and active participation necessary for an aiding and abetting charge.

The Court also said that “one cannot aid and abet a completed crime.” Petitioner would have already obtained the medical marijuana before M&K would reimburse him.

3) Does compliance with the court order expose M&K to the threat of federal prosecution?

The Court addressed this argument by observing that there has been tolerance from the federal government of state medical marijuana laws.  Since December 2014, “congressional appropriations riders have prohibited the use of any Department of Justice funds that prevent states with medical marijuana programs . . . from implementing their state medical marijuana laws.”  The Court said:  “Despite the enactment of medical marijuana legislation by the majority of states, M&K could not apprise this court of any federal prosecution against an employer or insurance carrier for its reimbursement of authorized medical marijuana treatment.”

4) Should a workers’ compensation insurer be treated the same under the MMA as a private health insurer?

N.J.S.A. 24:6I-14 states, “Nothing in the MMA shall be construed to require a government medical assistance program or private health insurer to reimburse a person for costs associated with the medical use of cannabis, …” The Appellate Division noted that under Title 17, in defining “health insurance,” the Legislature expressly stated that “health insurance does not include workers’ compensation coverage.” N.J.S.A. 17B: 17-4.  The Court said that only two categories of entities may not be required to reimburse the costs of medical marijuana:  a government medical assistance program or private health insurer.   In essence, the Court held that this argument failed because workers’ compensation is not considered under the law to be equivalent to a private health insurer.

5) Can medical marijuana be considered reasonable and necessary under the New Jersey Workers’ Compensation Act?

The Appellate Division considered a number of precedential cases that have liberally construed medical treatment that has helped patients cope with chronic pain.  In this case the Court observed that Dr. Liotta felt petitioner’s pain was irreversible and that he would need to manage pain for the rest of his life.  The Court concluded that the use of medical marijuana was reasonable and necessary for the treatment of petitioner’s chronic pain under the circumstances of this case.

The Hager case is now the leading case in the State of New Jersey on the issue of whether the MMA is preempted by the CSA and must be followed by judges in the Division of Workers’ Compensation.  If the employer seeks certification from the Supreme Court, it is highly likely that the Court will grant certification.

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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. 

Membership in the AWCO offers a number of professional and social opportunities annually to interact with other workers' compensation professionals. The highlight of the year is the annual AWCO Spring Conference where its members come together for two days of education, fun, and fellowship. Membership is only $75 if paid prior to February 28, 2020.  After that, the annual fee goes up to $150.  Once you are an AWCO member, the Spring Conference is free.  You pay nothing, nada, zero, zilch to register and attend. Click HERE for an on line membership application.  This year, the Annual AWCO Spring Conference will be held May 14-15, 2020 at theHyatt Regency Birmingham formerly known as The Wynfrey Hotel!  We hope to see you there!

About the Author

This blog submission was prepared by Mike Fish, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Fish by e-mailing him at mfish@fishnelson.com or by calling him directly at 205-332-1448.

Effective January 1, 2020, the Alabama Department of Labor, Workers’ Compensation Division, must receive a completed WC-4 Claim Summary Form for all Alabama Workers’ Compensation settlements regardless of whether the settlement goes before a Circuit Court Judge or an ADOL Ombudsman.

Forms are to be sent to:

Earlene Holland:             earlene.holland@labor.alabama.gov

Phone or FAX   334-956-4031

Christine Dunn:              Christine.dunn@labor.alabama.gov

Phone or FAX 334-956-4032

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About the Author

This blog submission was prepared by Mike Fish, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Fish by e-mailing him at mfish@fishnelson.com or by calling him directly at 205-332-1448.

On January 2, 2020, the Minnesota Supreme Court issued its decision in Ewing v. Print Craft, Inc., A19-0534 (Minn. 2020) and held that the Employer and Insurer in the case were not liable for rehabilitation services provided after the date in which Employee’s work-related injury had resolved, as opposed to the argued cutoff date in which the Employer and Insurer filed their Rehabilitation Request seeking termination of said services. The summary of the case is below. 

Employee sprained his left ankle in December 2015 while working for the Employer. After seeing several specialists, doctors at Mayo Clinic concluded that Employee’s injury had resolved no later than April 20, 2016. Employee first met with QRC Ann Brown on the same date (April 20, 2016) to determine if he was eligible for rehabilitation services. QRC Brown concluded that Employee was eligible, and rehabilitation services commenced thereafter. Employee continued receiving medical treatment for his ankle through 2016, however Employee then also began reporting headaches, memory loss, and tinnitus. QRC Brown arranged a neurological consultation to rule out a concussion, which was denied by the Employer and Insurer based on the denial of primary liability for any head injury. In the meantime, Employee underwent an independent medical examination with Dr. Joel Gedan on November 7, 2016, who concluded that Employee’s ankle injury had resolved and that he sustained no other injury. Employer and Insurer successful discontinued Employee’s wage loss benefits based on this IME Report. Employer and Insurer then filed a Rehabilitation Request on April 6, 2017 requesting a termination of the rehabilitation plan. At the Hearing, the compensation judge held that Employee’s injury was temporary and had fully resolved no later than April 20, 2016 (based on the opinions of the IME and doctors at Mayo Clinic), and that no rehabilitation services were warranted after this date. 

QRC Brown appealed to the WCCA and asserted that she was entitled to payment for services rendered between September 2016 and April 2018. The WCCA reversed the compensation judge, and held that it was an error as a matter of law to assign the cutoff date of April 20, 2016 for rehabilitation services, and instead held that the cutoff date was April 6, 2017, when the Rehabilitation Request was filed. Employer and Insurer appealed to the Minnesota Supreme Court. 

The Minnesota Supreme Court held that Employers and Insurers are only liable for reasonable and necessary rehabilitation services provided to a qualified Employee. Because of this, a QRC bears the risk of an adverse determination as to primary liability and the related risk of non-payment where there is a dispute over Employee’s eligibility for services.Based on these principles, the Employee’s injury in the present case resolved on April 20, 2016, and therefore, Employer and Insurer were not liable for rehabilitation services thereafter, as opposed to the date of April 6, 2017 when the Rehabilitation Request to terminate services was filed. The original decision of the compensation judge was reinstated. 

One takeaway from this case is that disputed/denied rehabilitation services can be cut off retroactively, based on when the Employee’s injury fully resolved. QRCs that provide rehabilitation services on these denied claims do so at their own risk, with the possibility of non-payment for said services. The full Ewing decision is found here:

http://www.mncourts.gov/mncourtsgov/media/Appellate/Supreme%20Court/Holiday%20Opinions/OPA190534-010220.pdf

Summary by: Parker T. Olson

There are few appellate division cases on the odd-lot doctrine in workers’ compensation, and there are next to none on lack of proficiency in English as a sole factor for odd-lot unemployability.  For this reason it is worth reviewing the recent decision in Avendano v. Target Corporation, A-1609-18T2 (App. Div. December 17, 2019).  

In this case, Avendano suffered serious injuries.  She received an award of 55% permanent partial disability credit 15% for previous loss of function and then reopened the case to obtain an award of 75% credit 55%.  About six months later she reopened the case a second time claiming that she was totally and permanently disabled under the odd-lot doctrine in part because she struggled with the English language and therefore could not find work.  The odd-lot doctrine may permit a judge to find total and permanent disability where an employee obtains an award of permanent partial disability of 75% or more but is unemployable due to factors like advanced age, language difficulties and limited job skills.

The trial consisted of testimony by petitioner as well as testimony by vocational experts on both sides, but there was no medical testimony for reasons not made entirely clear in the decision.  Petitioner stressed on direct examination that she does not speak or understand English.  She testified through an interpreter.  She said that it is very hard for her to read or write English.  She did admit on direct examination that she enrolled in college to learn English but stated that she did not complete the course.

The cross examination of petitioner won the case for Target.  Petitioner admitted that she told the IME doctors for Target that she had attained a level two proficiency in English as a second language classes.  She admitted that she was evaluated by the Target IME doctors without a Spanish interpreter.  She admitted that she passed the citizenship test in English test nine years prior to her testimony.  She also admitted receiving an accounting degree in her native Columbia before coming to the United States.

The Judge of Compensation observed that petitioner answered some questions before the court interpreter finished translation.  The Judge of Compensation did not find petitioner to be credible in her assertion that her lack of knowledge of English contributed to her total and permanent disability.  The judge was also unimpressed with petitioner’s vocational expert because the expert would not change his position on totality even when confronted with evidence that petitioner obtained an intermediate proficiency level in English.  The judge noted as well that the petitioner’s vocational expert failed to review petitioner’s testimony before testifying in court and failed to review certain medical reports.

For these reasons the Judge of Compensation rejected the application for total and permanent disability and left the award at 75%.  Avendano appealed, and the Appellate Division affirmed.  “In determining whether a petitioner is totally disabled under the odd-lot doctrine a judge of compensation may therefore consider the petitioner’s education, training, age, background and substantial ‘unlikelihood of finding employment, absent a charitable employer.’”   The court elaborated on the aspect of difficulty with the English language as a basis for application of the odd-lot doctrine.  “Relevant here, inability to understand the English language can provide the basis for application of the odd-lot doctrine.”

The case is worthy of review because the decision recognizes that inability to understand the English language can provide the basis for an award of total and permanent disability where the injured worker has an award of 75% or higher.  This may be the only modern appellate level case that has specifically focused on lack of proficiency in English as a basis for the odd-lot doctrine.  Unfortunately for petitioner, her testimony did not persuade the judge that she actually had a serious problem understanding the English language given the admissions she made on cross examination.

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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. 

Minnesota’s Health Commissioner recently authorized a significant expansion of medical cannabis usage in the state of Minnesota to include those with “chronic pain.” Currently, the most common qualifying condition to be eligible for medical cannabis is a diagnosis of “intractable pain.” Minn. Stat. 152.125 defines intractable pain as pain that “cannot be removed or otherwise treated” and that “no relief or cure of the cause of the pain is possible, or none has been found after reasonable efforts.” The narrow nature of this definition limits the number of patients who can become qualified for medical cannabis under this category.

On the other hand, chronic pain is a much broader category than intractable pain, which is more generally defined as intolerable pain that cannot be addressed with other remedies or medications. Chronic pain includes many more conditions that may be caused by work injuries than “intractable pain” does. The change will take effect in August 2020.

Minnesota is currently one of 33 states that has legalized medical cannabis. Patients are still required to become certified by medical providers to receive cannabis from one of two licensed manufacturers – Leafline Labs or Minnesota Medical Solutions. The Minnesota Legislature voted to increase the number of storefronts to 16 – with new locations of both manufacturers planned throughout the state of Minnesota. Medical cannabis in Minnesota is currently permissible in inhaled and pill forms. However, it will also soon become available in water-soluble powders and sprinkles as well as in dissolvable lozenges and mints.

To note, this expansion will also include those suffering from age-related macular degeneration for eyesight. However, the expansion still does not authorize medical cannabis usage for those with anxiety, insomnia, or a traumatic brain injury – as there is a lack of scientific evidence to support these. The full Minnesota Department of Health Press Release is found below.

https://www.health.state.mn.us/news/pressrel/2019/cannabis120219.html

In 2020 we will likely get a published Appellate Division decision that resolves whether a medical provider can bring a medical claim petition in New Jersey where virtually all contacts are in New York State except for where the surgery occurs and sometimes where the claimant lives.  One hint of how the Appellate Division may lean comes from a recent medical malpractice case entitled Pullen v. Dr. Aubrey Galloway, A-1373-18T2 (December 9, 2019). 

The case involved jurisdictional issues between New Jersey and New York in connection with a law suit filed by the widower of Jeanne Pullen, who underwent surgery in New York City to replace her aortic valve but died shortly thereafter.  Mr. Pullen, the widower, filed a medical malpractice case against Dr. Aubrey Galloway who performed the surgery at NYU Langone Medical Center in New York City.  Dr. Galloway practiced only in New York and saw patients only in New York.

The decedent lived in New Jersey and her widower filed the medical malpractice case in New Jersey.  The decedent was referred to Dr. Galloway by her New Jersey licensed physician, Dr. Edwin Blumberg. Dr. Galloway argued that there was no jurisdiction over him in New Jersey. He had been licensed to practice in New Jersey between 2004 and 2009 but he had never actually practiced in New Jersey.

Pullen countered that the New Jersey referring doctor, Dr. Blumberg, had a personal friendship with Dr. Galloway.  He also argued that Dr. Galloway solicited business through commercials and local television stations.

The trial court dismissed the lawsuit for lack of jurisdiction in New Jersey over Dr. Galloway.  The Appellate Division said, “General jurisdiction exists when the plaintiff’s claims arise out of the defendant’s continuous and systematic ‘contacts with the forum state.’”  The Court added, “Applying these well-established standards, Dr. Galloway is not subject to personal jurisdiction in New Jersey. Dr. Galloway does not have continuous and substantial contacts that would subject him to general jurisdiction in New Jersey.  Dr. Galloway lives and practices medicine in New York.  He certified that he had a New Jersey medical license only between 2004-2009 and never actually practiced medicine in New Jersey.”

The Court also rejected the allegation that Dr. Galloway should be subject to jurisdiction in New Jersey because he advertised on local television stations.  “Plaintiff did not identify any actual advertising on local television stations.  Instead, plaintiff merely asserted that Dr. Galloway had engaged in such advertisement.  That contention is not supported by any specific facts such as the nature of the advertising, when and where the advertising was actually aired, and whether the advertisement was directed at New Jersey residents.”

The Court added, “We have previously held that a doctor’s out-of-state treatment of a New Jersey resident does not, in and of itself, establish personal jurisdiction.  Bovino v. Brumbaugh, 221 N.J. super. 432,437 (App. Div. 1987).  In Bovino, we explained that when a patient seeks personal services from an out-of-state physicians those services are not directed towards a particular place; rather, they are directed at the needs of the patient.  In that regard, we noted that it is fundamentally unfair to subject an out-of-state physician to jurisdiction in New Jersey when treatment is provided exclusively in another state.”

The reason this case is important is that in there are many hundreds of MCP cases pending in New Jersey involving New York accidents to largely New York residents who work in New York.  The only contact with New Jersey occurs when the surgeon decides to schedule the main medical procedure in the State of New Jersey where there is no fee schedule —  unlike New York.  All the treatment up to surgery has occurred in New York State, the employment contacts are in New York, yet the surgical procedure is shifted to New Jersey solely to avoid the New York fee schedule. When the carrier and employer insist on paying the surgeon under the New York fee schedule, the medical provider hires a New Jersey law firm who files a Medical Claim Petition in the New Jersey Division of Workers’ Compensation to get paid the difference between the New York fee schedule and the bill for the procedure.

It would seem under the rationale in Pullen to be completely insufficient for the Division of Workers’ Compensation to accept jurisdiction over the fee dispute in a situation like this where all the contacts were in New York. There are no continuous or systematic contacts with New Jersey, to quote the decision in Pullen.

Thanks to David Lustbader, a prominent New Jersey practitioner, for sending this case to our attention.

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