State News

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. 

At least every other year, the Texas Department of Insurance, Division of Workers’ Compensation is required to evaluate the performance of healthcare providers in the workers’ compensation system. Healthcare providers were evaluated on three criteria: (1) DWC Form-069, Report of Medical Evaluation; (2) Completeness of the DWC Form-073, Work Status Report; and (3) Documentation supporting why the injured worker is prevented from returning to work as reported on the DWC Form-073. The majority of healthcare providers were identified as a “high tier performer.” If you are curious about how well any specific provider performed, you can review the Division resultshere.
 

System participants continue to pursue creative ways to exploit and defraud the workers’ compensation system in Texas. The efforts have not gone unnoticed – or unprosecuted – by the law enforcement authorities. Here’s a review of some recent convictions.
 

Husband of Truck Stop Employee Injured, Insured Fraudulently Claims He is an Employee 

Texas Carrier Fraudulently Billed for FCEs
 
Frequent, unnecessarily-ordered functional capacity exams (FCEs) tend to draw the ire of carriers in the Texas system, with some system participants questioning whether the FCEs are actually taking place. In at least one recent case, the FCEs were found not to have occurred as billed.

EME International, owned by Christine Caldwell, recently plead guilty to a third degree felony for fraudulently billing Texas Mutual for FCEs taking two to four hours. In fact, the FCEs did not take two to four hours to perform. The Company was ordered to pay $30,000 in restitution. The case was also prosecuted by the DWC’s prosecution unit embedded in the Travis County DA’s office.

The DWC press release is available here.

Copyright 2019, Dan Price, Stone Loughlin & Swanson, LLP
 
Federal Comp System Also the Target of Fraudulent Billing in Texas
 
In a grander scheme in dollars if not in design, Rafael Enrique Rodriguez, the owner of San Antonio and Salt Lake City physical therapy clinics, was convicted in federal court and sentenced to up to six years in prison for fraudulently billing -- to the tune of $7.5 million – the Federal Employees Compensation Act, Office of Workers’ Compensation Program. Rodriguez billed the program for PT services provided by a licensed professional when, in fact, such services were provided by unlicensed professionals. Further, the name of the licensed therapist used by Rodriguez in connection with the scheme was used without permission of that therapist. Prior to the fraud being identified, Rodriguez and Company collected over $6 million in fraudulent billings.

The Department of Justice press release is availablehere.

-  Copyright 2019, Dan Price, Stone Loughlin & Swanson, LLP

We recently faced an issue where a Claimant was scheduled to attend a post-DD RME exam to evaluate MMI/IR. The Claimant showed up but then refused to submit to the exam unless his wife was permitted to video record the exam on her phone. The post-DD RME doctor wisely refused this demand, and Claimant left without undergoing the RME. The Carrier then terminated based on failure to attend the RME. Both the RME doctor and the Carrier correctly handled the situation in accordance with long-standing policy of the Division of Workers’ Compensation.

The policy preventing claimants from bringing witnesses to RMEs or recording the exams was laid out by the Texas Workers’ Compensation Commission (now, the Division of Workers’ Compensation) way back in 1996. In APD 960367, an injured employee had presented himself for the post-DD RME with a cassette recorder and video camera. The RME doctor refused to examine the injured employee under these circumstances and sent him away. While the Hearing Officer did not address the issue of whether the claimant had the right to record the examination, the Appeals Panel did stating:
 

"The statute and rule provide a more direct, obvious and effective way to ensure the integrity of the examination by authorizing, at carrier’s expense, the presence of the claimant’s treating doctor at the examination."

 
The Appeals Panel went on to say that, while the treating doctor’s attendance may not necessarily be the only way to establish how a post-DD RME examination is conducted, it is “the only one a claimant is entitled to under the statute and rule.”  (AP 960367).
 
The Appeals Panel also citedTWCC-Advisory 96-01, which directly addressed situations that had arisen where injured employees failed to submit to an RME examination because the doctor would not allow a witness other than the employee’s doctor to attend the examination or allow the examination to be video or audio taped.
 
The Division again cited the Act and Rule provisions that allow the employee to have the treating doctor present at the examination.  The Division went on to advise that, if the claimant wants to have any other person in the examination room, the claimant must obtain prior authorization from the examining doctor:
 
"[V]ideo cameras or other recording equipment will not be allowed in the examination without prior authorization from the examining doctor."
 
Finally, the Advisory states that a doctor’s decision not to allow a witness other than the employee’s doctor to attend the examination or allow the examination to be recorded isnot good cause for failure to submit to the examination. (TWCC-Advisory 96-01 emphasis supplied).  The Division went on to reiterate that, under Section 408.004(f), failure to submit to an RME examination without good cause may result in anadministrative penalty against the claimant.

In short, based on APD 960367 and Advisory 96-01, an injured worker may not record an RME and may not bring a witness to the exam (except the treating doctor). When scheduling RMEs, we recommend reminding your doctors of this now-decades old Division policy.
 

We are deeply saddened to inform you that our dear friend and colleague Bill Nemeth passed away on December 28, 2019.  William “Bill” Nemeth, M.D. was truly a giant in workers’ compensation and occupational medicine.  Bill served numerous roles in the field of workers’ compensation over the course of his remarkable career.  During his tenure as Medical Advisor to the Division of Workers’ Compensation, Bill helped lead a much-needed transition to evidence-based medicine in workers’ compensation.  Bill’s emphasis on evidence-based medicine and his contributions to the ODG Treatment Guidelines improved care for all injured workers in Texas.  Bill recognized earlier than most the dangers of over-treatment with opioids.  He treated his patients’ pain and addiction issues with an empathy that came from personal experience.  Bill also had a gift for being able to explain the most difficult medical concepts in a way that everyone could understand.  We all relied heavily on Bill’s vast knowledge and expertise but it is his wit, humor, and compassion that will be most dearly missed.

-  Copyright 2019,James Loughlin, Stone Loughlin & Swanson, LLP

Effective January 1, 2020, the mileage reimbursement rate for Alabama is 57.5 cents per mile, a .5 cent decrease from 2019.

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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.

Today marks 100 years since the Alabama Workers’ Compensation Act went into effect.  Back then, it was known as the Alabama Workmen’s Compensation Act.  While it has been expanded in the last century, much of the original 33 page Act (now closer to 450 pages including annotations) has remained unchanged.

Although there has been some recent controversy as to the constitutionality of the Act, it remains a much better alternative to employees having to prove tort liability and tort liability exposure for employers. 

As the Honorable E.R. Mills so adeptly stated in Singletary v. Mangham Construction, 418 So.2d 1138 (Fla. 1st DCA, 1982), “Workers' compensation is a very important field of the law, if not the most important. It touches more lives than any other field of the law. It involves the payments of huge sums of money. The welfare of human beings, the success of business, and the pocketbooks of consumers are affected daily by it.”

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.

The case of Martin v. Newark Public Schools was the subject of an earlier blog on October 7, 2019.  At the time of that blog, the case had not been approved for publication.  On December 13, 2019, the Committee on Publications decided to approve Martin for publication.  It is now the only published decision in New Jersey workers’ compensation on this specific issue and therefore the leading case on requests for continued opioid use. 

The case involved a not uncommon situation where two physicians disagreed on the need for long-term opioid use. The treating physician, Dr. Patricio Grob, treated petitioner from 2011 to 2017 but then released petitioner in September 2017, writing one final prescription of Percocet as a courtesy to Mr. Martin. Dr. Grob felt that Percocet was poorly controlling Martin’s pain.  He also said that continued Percocet would “not manage petitioner’s radicular complaints . . . and could complicate his recovery.”  After six years of treating petitioner with Percocet, Dr. Grob concluded that prescription pain medication would never improve Martin’s condition. Dr. Grob recommended surgery but petitioner declined surgery due to an unrelated blood condition.

Martin next saw Dr. Harris Bram, an expert in pain medication, for a one-time evaluation.  Dr. Bram noted that petitioner had disc desiccation at L4-5 and L5-S1 and a disc herniation at L5-S1.  Dr. Bram recorded somewhat contradictory statements from petitioner.  In taking petitioner’s history, Dr. Bram said Martin reported opioid medication provided only “small pain relief.”  But he also self-reported in other records that Percocet abated his pain symptoms by approximately 60%.  Dr. Bram concluded that long-term use of opioids would be reasonable for petitioner.

Administrative Supervisory Judge, the Hon. Philip Tornetta, found that petitioner failed to prove continued Percocet treatment would reduce Martin’s pain or permit him to function better.  He commented that Dr. Bram did not provide medical evidence that long-term Percocet use would permit petitioner to function better.

The Appellate Division affirmed the dismissal of petitioner’s motion, first citing to an older case involving a motion for physical therapy.  In Hanrahan v. Twp. Of Sparta, 284 N.J. Super. 327, 336 (App. Div. 1995) the Court found that the claimant who was seeking further physical therapy was required to show the treatment would “probably relieve petitioner’s symptoms and thereby improve his ability to function.”  The Court applied this logic to the Martin case in respect to the request for long-term opioids:

Here, the judge found credible the testimony of Dr. Grob that continued prescribing of pain medication did not, and would never, heal petitioner or relieve his condition.  During the six years he treated petitioner, Dr. Grob concluded Martin’s pain had not been alleviated with therapy or medication.

The Court concluded, “We are satisfied there was sufficient, credible evidence in the record to support the compensation judge’s determination that further treatment with opioid medication would not cure or relieve Martin’s injury.”

The emphasis on this case at both the trial level and appellate level was on improvement of function.  The fact that the treating doctor had observed poor pain control from Percocet over six years posed serious problems for petitioner to overcome at trial.  The case must be seen in the context of the opioid epidemic in the United States.  It demonstrates that employers can actually do something about long-term opioid use under certain situations.  Just testifying in court that opioid medication makes one feel good will not suffice.  There must be medical evidence of improvement of function under this significant decision.

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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. 

We are in holiday season.  Many private and public entities have holiday parties this time of year, and inevitably there will be accidents either going to or from the party or perhaps slipping and falling on the dance floor.  What do employers need to know and what can they do to avoid such claims when they schedule weekend or after-work parties?

First, the employee must prove that the event is a regular incident of employment and that the purpose of the event was to promote an end greater than improvement of morale.  If it is all about morale, it is not compensable.  A fundraiser might be an example of an event whose purpose promotes something greater than morale. 

But even if the employee cannot meet this test, the employee will prevail if he or she can show that attendance was compulsory.  That which is required is considered to be work-related.  Now realistically, most employers do not send out invitations to holiday parties saying that attendance is compulsory.  But that is not the only way for an employee to prove attendance was compelled.  If the person in charge of the party says, “Hi Sam, I sure hope you are going to make the holiday party on Saturday,” Sam may testify at trial that he had a reasonable basis to believe that his attendance was compelled.  If the person in charge of the party keeps asking people whether they are attending, and then presses for explanations on why they are not planning to attend, or suggests that “the boss will be disappointed,” a Judge of Compensation may very well find that the employee had a reasonable basis to believe that attendance was compelled. So the test of compulsion is not whether the words “mandatory attendance” are on the invitation but whether the employee had a reasonable basis to believe he or she must attend.

When employers lose cases involving injuries going to or from holiday parties or slip and falls at the party, it is mostly because the injured employee can convince the Judge of Compensation that he or she felt compelled to attend.  If that is the case, the ride to the party and the ride home is covered by workers’ compensation.  Car accidents are the main cause of injuries, often very serious ones, and the risk of injury may be compounded by use of alcohol or wintry road conditions.   Unfortunately, the New Jersey law does not protect employers from injuries caused largely by intoxication because the current law requires the employer to prove that no cause – other than the use of alcohol – contributed to the accident.  So if you have someone who is intoxicated above the legal limit and the roads are slippery when the accident happens, the employer will lose because there is another reason for the accident besides intoxication, namely the slippery road conditions.  Needless to say, we are in December.

The best way for employers to insure that they do not have to pay for holiday party accidents is to make it crystal clear that attendance is optional.  Put that language all over the invitation.  Make it clear that there will be no names taken of attendees, and non-attendees, and do not pester people who have no plans to attend.  High level employees should not be walking around asking employees why they are not coming to the party.   This may make it harder to guarantee a number of attendees for the restaurant, but that is far better than having to pay a death claim for someone who is tragically injured driving home from a holiday party.

Bear in mind that holiday parties during work hours are a completely different subject.  These parties where people are actually at work and getting paid during normal work hours are almost always covered.   So if there is a party at lunch at Lincoln Company in the cafeteria, and someone slips and falls on the floor while grabbing an egg nog, that injury will be held to be compensable because on-premises injuries are compensable unless they constitute a deviation from employment.

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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.