Archive for May, 2011

Injured Worker Entitled to Medical Treatment Out of State

By Gary E. Adams

Monday, May 23rd, 2011

The Appellate Division recently ruled that an injured worker, who had moved to North Carolina subsequent to his work-related injury, was entitled to medical treatment in North Carolina at the expense of the workers’ compensation carrier for his work injuries.
The Court ruled that “The (Workers’ Compensation) Act does not contain any geographical limitations on the provision of medical treatment”. This decision makes it clear that even though the workers’ compensation carrier still retains the right to control the provider of medical treatment, it cannot refuse to provide medical treatment to an injured worker simply because he or she moves out of New Jersey.
This decision overrides the long held position of many carriers that the injured worker is obliged to return to New Jersey to obtain additional medical treatment related to his injury on the job.

New Jersey’s Workers’ Compensation Act

By Jeffrey S. Monaghan

Friday, May 20th, 2011

Work related accidents can cause significant emotional, physical and financial problems for the injured employee. New Jersey’s Workers’ Compensation Act is designed to cushion the impact of workplace accidents by providing an injured employee with medical care, lost wages on a temporary basis and a monetary award if the overall effects of the injury have left the injured worker with some type of permanent injury.

Employees injured at work are likely to be compensated without proof of fault on the employer’s part, and regardless of any contributory negligence by the employee. Workers can receive compensation benefits for both specific traumatic injuries, such as a broken ankle, as well as for what are called “occupational related” diseases, such as carpal tunnel syndrome, if they arose out of and in the course of employment.

First, there is the medical treatment benefit. The employer is required to furnish medical, surgical and other treatment and hospital services necessary to cure and relieve the effects of the injury. The employer must cover the cost of medication that has been prescribed by an authorized doctor for treatment of the injury. The caveat is that the employer is allowed to select the medical professionals who will provide and oversee the necessary and related treatment from a work related injury.

The second benefit injured workers are entitled to is a wage replacement benefit called temporary compensation. This benefit is mandated when a treating doctor, authorized by the employer or it’s workers’ compensation insurance carrier, has removed the employee from work for a period of time while medical treatment is being provided for the work related injury. Temporary compensation benefits are available when an injured worker has been disabled for more than seven days following the accident. Once the eighth day of the lost time has been reached, the worker is compensated from the first day that he/she became unable to work. Temporary disability benefits continue to be paid until either the injured worker returns to work or until he/she has reached the maximum benefit from the medical treatment being provided.

The weekly temporary compensation rate payable to an employee is an amount equal to 70 percent of the worker’s gross weekly wages received at the time of the accident, subject to a maximum of 75 percent of the statewide average weekly wages.

The third benefit is known as permanent disability. A worker who can prove that a work related injury has left him or her with some type of permanent disability is entitled to a monetary award based on the extent of disability sustained. The injured worker, through his or her attorney, must prove that the injury has resulted in a material lessening of the working ability or, that the injury restricts the individual in performing the regular activities of his or her daily life.

The determination regarding whether there has been a permanent disability and the extent thereof, is made after the medical treatment has concluded. At that time, the employee undergoes an examination by medical experts who specialize in the field of medicine covering the specific work related injuries sustained. These doctors review the medical records and conduct a physical examination of the employee following which the doctor prepares a report containing his or her estimate of permanent disability.

Also, for a period of two years after the conclusion of the initial case, an employee may be entitled to additional medical treatment or monetary benefits if it can be demonstrated objectively that the condition has significantly worsened.

Finally, payments received by way of temporary compensation and or permanent partial or total disability are not subject to federal or state taxes.

A Look at Medical Malpractice in the Context of a Workers’ Compensation Claim

By Kendall W. Medway

Friday, May 20th, 2011

Assume that you’ve suffered an injury at work. This can be a tremendously unsettling experience for many reasons but, disturbingly, one of the most common complaints that I hear from my workers’ compensation clients concerns the quality of the medical care that they receive.

In the normal course of events, if somebody gets hurt they generally just go and get medical attention, usually from their family doctor. Often, people see the same doctor for many years, and a certain level of trust builds up over time between the doctor and his/her patient.

However, when you are hurt at work in New Jersey, the course of events is much different. Under the Workers’ Compensation Act, the insurance carrier has the right to not only choose the doctor whom you see, but also to direct the treatment. So, having been injured on the job, you now find yourself thrust into a disconcerting scenario: you are entitled to medical treatment for your injuries, which will be paid for by the insurance carrier, but you have almost no choice when it comes to the doctor who will oversee your care.

Unfortunately, most doctors used by the insurance carriers give their Workers’ Compensation patients short shrift when it comes to their time and attention. They are under a great deal of pressure from the workers’ compensation insurance carriers to get the injured workers back to work quickly. Additionally, many of these doctors are required to agree to accept reduced rates of payment from the carriers in order to be placed on the carriers’ list of “approved” providers. As a result, these providers are constrained to spend as little time as possible with each individual patient, and try to see as many patients as possible in rapid succession, in order to increase the profitability of each office visit.

Needless to say, the pressure exerted by the workers’ compensation insurance carrier can have a less than beneficial effect on the doctors’ ability to practice medicine at the appropriate caliber. The doctors are forced to strike a delicate balance between the needs of their practices and the needs of their patients. Mistakes can occur, sometimes to the great detriment of the patient. The legal term for this is “medical malpractice.” In a nutshell, medical malpractice occurs when a medical provider either does something that he/she should not do, or fails to do something that he/she should, and causes injury to the patient.

It is a sad thing to say, but the number of calls that I have received from my workers’ compensation clients with questions about potential injury that they feel they have suffered at the hands of their workers’ compensation doctors has increased over the past few years.

Although I cannot explain why this would be, my impression is that many people receiving treatment through the Workers’ Compensation system lose sight of the fact that they are still patients and are therefore still entitled to the same quality of care that they would receive from their own doctors. Perhaps it is due to the fact that Workers’ Compensation recipients are not required to pay anything towards their medical treatment. Perhaps it is because the Workers’ Compensation system is so unnerving and unfamiliar to so many workers. However, it is vital that you remember your rights as a patient and, if necessary, act as your own advocate.

If you remember nothing else discussed in this article, remember this: if you suspect that you have been the victim of medical malpractice, even if somebody else is paying for your treatment, be certain to first talk to a doctor and then consider consulting a medical malpractice lawyer, such as Andy Rockman and Robert Adinolfi who are here at Pellettieri Rabstein & Altman. Also, be sure to inform your Workers’ Compensation lawyer of any such developments as well. He or she may be able to convince the insurance carrier to either change your provider or authorize you to see your own doctor for your injuries.

In closing, be sure that you choose skilled medical malpractice attorneys to represent you who possess a multi-disciplinary approach to legal practice, such as those at Pellettieri, Rabstein & Altman. In this fashion, you may be sure that your attorneys will communicate with each other and that you will receive the best possible legal representation. Having multiple claims arise out of the same injury can create substantial procedural complications unless your attorneys are experienced with such issues, know what to expect and know how to best protect your interests.

NJ Injured Workers – Benefits and Responsibilities

By Jeffrey S. Monaghan

Thursday, May 19th, 2011

The New Jersey Workers’ Compensation Act cushions the impact of workplace accidents by providing medical care, lost wages and, potentially, a monetary award for permanent injury through workers’ compensation insurance policies that must be carried by every employer for every employee in any occupation.

You can receive benefits for BOTH specific traumatic injuries and for what are called “occupational related diseases” – if proven to have arisen out of and in the course of your employment. Qualifying occupational related diseases, or conditions, may have been either caused by or aggravated by the kind of work you do or work environment in which you do it.

Many job related injuries or diseases and conditions can qualify for workers’ compensation benefits, such as: Asthma, emphysema & other breathing disorders, bone fractures or dislocations, burns, cancer, carpal tunnel syndrome & trigger finger, cuts & abrasions, joint diseases & replacement, disc herniation or fracture, infections & viruses, hearing loss, ligament & tendon injury, mental health trauma, poisoning, severe allergic reaction, skin diseases, spinal injury, and vision impairment.

New Jersey Workers’ Compensation laws require “no-fault” insurance policies. Employees suffering work related injury or disease should be compensated with a minimum of delay and without having to prove employer fault, regardless of any contributing negligence by the employee. However the employer’s workers’ compensation insurance company may raise some defenses to challenge the work-injury connection, question the injured workers’ conduct, or dispute the extent of the injury or disease in order to deny or minimize the employee’s benefits. Injured workers should take steps immediately to avoid or overcome these defenses.

WHAT TO DO IF YOU SUSTAIN IN A WORK RELATED INJURY

New Jersey Workers’ Compensation laws are subject to time constraints known as Statutes of Limitations. So it is important that employees notify the employer of any work related injury in a timely manner. Similarly, you must inform your employer or former employer of an occupational related disease, caused by or aggravated by the work you do, shortly after being diagnosed as such – even if the diagnosis occurs after significant time passes or after employment at that employer ends.

Timely employer notification helps avoid issues being raised as to the exact cause of an alleged workplace injury, as well as being required for all job related injuries.

Follow whatever notification procedure your employer has in place. This usually requires reporting the accident and how it occurred directly to a designated person such as the employee’s supervisor. You may be required to fill out an accident or injury report detailing how the accident happened and the particular injuries that have been sustained. If no procedure is in place, the injured employee should notify their direct supervisor.

No matter how insignificant the injury may initially appear notify your employer of the workplace injury. Symptoms associated with your injury may not manifest or become particularly noticeable for several days following the accident. A formal record describing the accident and the particular body parts affected can help avoid certain causal relationship issues from being raised by either employer or workers compensation insurance company.

When injured or upon recognizing that your injury may be significant, see a doctor.

MEDICAL TREATMENT BENEFIT

Under New Jersey Workers’ Compensation laws, your employer is required to furnish medical, surgical and other treatment and hospital services necessary to cure and relieve the effects of the injury. Included in the requirement is the employer’s obligation to cover the cost of medication that has been prescribed by an authorized doctor for the treatment of the injury sustained.

However, also under the New Jersey Worker’ Compensation laws, your employer is allowed to select the medical providers who will deliver and oversee the necessary and related treatment from a work related accident. Employees who obtain medical treatment on their own – after an employer or employer’s workers’ compensation insurance company has offered medical treatment through a designated treating doctor – will most likely be responsible for the cost of this unauthorized treatment.

LOST TIME WAGE REPLACEMENT BENEFIT

New Jersey Workers Compensation laws also mandate a wage replacement benefit – called temporary compensation – when a treating doctor, authorized by the employer or their workers’ compensation insurance company, has ordered the employee not to work for more than seven days following the accident while medical treatment is being provided for the job related injury. Once the eighth day of lost time from work has been reached, the employer or employer’s workers’ compensation insurance company must compensate the injured worker for lost wages from the first day you became unable to work continually until you either return to work or reach the maximum medical benefit from the treatments.

In cases when the treating doctor decides that an injured employee is capable of performing what is considered light duty work or some type of restricted work below the normal full job duties of the employment, the employer has the option of either providing the employee with work which meets these restrictions or continuing to pay temporary compensation benefits to the injured worker.

The temporary compensation is payable weekly at a rate equal to 70 percent of the injured worker’s normal weekly gross wages at the time of the accident and subject to a maximum of 75 percent of the statewide average weekly wages. These payments are tax-free.

PERMANENT DISABILITY BENEFIT

The Permanent Disability Benefit is a monetary award for work related injury, condition or disease resulting in some permanently disabling, or restricting, effects in the employee’s normal day-to-day life – on or off the job.

The determination regarding whether there has been a permanent disability and the extent of disability is made after the medical treatment has concluded. And, the injured employee has the burden of proof.

After medical treatment has concluded, both the attorney representing the injured worker and the attorney representing the workers’ compensation insurance company each have the employee undergo an examination, or examinations, by medical experts who specialize in the field of medicine covering the particular injuries sustained in the accident. These doctors, separately, review the medical records, then conduct their own a physical examinations of the worker. Each doctor prepares a report estimating the extent of disability, if any.

The injured worker’s attorney must demonstrate that the effects of the injury have resulted in a material lessening of your working ability or that the injury has resulted in disability that restricts you from carrying out the ordinary and regular activities of your day-to-day life away from work.

A successful workers compensation case may also entitle an injured worker to additional medical treatment and/or additional monetary benefits in the future if it can be proven that such additional benefits are warranted after the conclusion of the initial case. The time frame for either or both of these benefits is a two-year time period which commences from the workers final receipt of the monetary benefit awarded under the initial resolution of your case.

DEFENSES TO A WORK RELATED INJURY OR DISEASE

The concept of “negligence” is not part of the workers’ compensation system, in that you do not have to prove fault by your employer or co-employee in causing the accident. Nevertheless, an employer or their insurance company can raise certain defenses in response to your claim for workers’ compensation benefits.

For example, proving that instances of serious and willful misconduct by the injured employee led to the injuries could diminish or disqualify the injured worker from receiving the benefits.

Also, an employer or their workers’ compensation insurance company might assert that an injury did not arise out of or in the course of employment.

Finally an employer or their workers’ compensation insurance company may raise a Statute of Limitation defense, asserting that the accident, or resulting injury or disease diagnosis, were not reported in the required time period.

If the employer or their workers’ compensation insurance company raises any of these defenses in response to your claim, then the medical treatment and wage replacement benefits will not be automatically provided to the injured employee.

Timely legal representation is of critical importance in order to ensure that the injured worker’s claim is properly presented and the injured worker receives the benefits provided under our workers compensation laws as quickly and fully as possible.

THIRD PARTY INJURY CLAIM

When negligence by an entity other than your employer, or an employee of an entity other than your employer, contributes to your work related injury or condition, then you may file a personal injury negligence claim against that “third party” – or those multiple negligent “third parties” – in addition to, concurrent with, and separate from your workers’ compensation claim.

Such actions often result in significantly greater financial recovery for the injured worker and partial or complete recovery of benefits paid for the employer and their workers’ compensation insurance company.

Such actions often arise in multiple contractor projects, work done away from your employer’s premises, or from the use of defective products.

Legal representation by a law firm experienced in both workers’ compensation and personal injury can provide you with an informed evaluation of each aspect of your case.

SUMMARY

All employers are required by the New Jersey Workers’ Compensation Act by law to carry “no fault” workers’ compensation insurance for all of their employees in the state. Workers’ compensation laws mandate certain medical treatment, wage replacement and permanent disability benefits to be provided by the employer or employer’s insurance company.

The employer or employer’s workers’ compensation insurance company is allowed to select the providers who will deliver and oversee the medical treatment for work related injuries and conditions.

The employee maintains the burden of proof in determining permanent disability awards.

Workers’ compensation benefits are subject to reporting time limits, called Statues of Limitation, from the incident and/or diagnosis. Workers’ compensation claims can be challenged on the grounds of reporting time, the work-injury connection, the severity of injury, and employee’s contribution to injury by serious and willful misconduct.

When negligence by entities, or employees of entities, other than your employer contribute the injury, you may initiate third party injury claims against these parties in addition to your workers’ compensation claims.

New Jersey Firefighters’ Rule Has Been Abolished

By Gary E. Adams

Thursday, May 19th, 2011

Now Emergency Responders injured on the job could be eligible for both workers’ compensation and personal injury claims.

In a decision issued on March 13, 2007, the Supreme Court of New Jersey ruled that the common law doctrine prohibiting first responders from recovering damages from a property owner for a personal injury sustained while confronting an emergency on the owner’s premises, is no longer in effect.

The “Firefighters’ Rule” in New Jersey was created in a series of judicial decisions beginning in 1960. This doctrine prohibited emergency responders, such as police officers, firefighters and rescue squad members, from filing civil lawsuits against property owners for personal injuries they sustained while responding to emergencies, even if the property owner’s negligence caused the emergency responder’s injuries. This doctrine never precluded emergency responders, whether salaried or volunteer, from filing a workers’ compensation claim for an injury sustained during an emergency call. However, emergency responders were not allowed to seek compensation for their injuries from a property owner, even where the property owner’s carelessness caused injury.

Despite almost universal criticism of this rule, which sharply limited the ability of emergency responders to seek compensation for their injuries, this rule remained in place until the New Jersey State Legislature acted in 1993, when it passed a Statute revising the Firefighters’ Rule to allow emergency responders to file lawsuits for their injuries. Unfortunately, notwithstanding the clear language of the new law, insurance companies defending claims filed by first responders continued to argue that police officers, firefighters and rescue squad members were precluded from filing claims for their personal injuries.

The Supreme Court has now made it absolutely clear that the Firefighters’ Rule has been abolished. In the case of Ruiz v. Mero, the Court ruled that the intent of the Legislature was to completely do away with the Firefighters’ Rule. Now, emergency responders, without doubt, have the same right as all other citizens of this State to recover for personal injuries caused by the careless conduct of property owners.

Your Right to Receive Medical Treatment When You’re Injured at Work

By Gary E. Adams

Thursday, May 19th, 2011

Until it happens to them, most people don’t give much thought about getting medical treatment if they sustain a serious workplace injury.

When we have personal medical problems, those of us who are fortunate enough to have private health insurance are accustomed to being able to choose our primary physician, and can go to specialists whom we select. If we get poor quality treatment from our physician, are treated rudely by the physician or his staff, we simply go elsewhere for our treatment.

Unfortunately, an entirely different set of rules apply for medical treatment following a work-related injury. Under New Jersey Workers’ Compensation Law, an employee who sustains an injury on the job, regardless of fault, is entitled to all reasonable and necessary medical treatment related to that work injury. Every employer in this State is required to carry workers’ compensation insurance to cover the cost of this treatment. The workers’ compensation carrier is obliged to pay 100% of the cost of this medical treatment, with no limitation as to the total amount payable. There are no co-pays or deductibles; all related medical expenses are covered, including prescription drugs and medical devices. There is no time limit on how long the workers’ compensation carrier has to continue providing medical treatment. If your work injury requires five years of treatment, that is what the carrier has to provide.

Sounds good so far. Here’s the rub: New Jersey Workers’ Compensation Law provides, without exception, that the workers’ compensation carrier has the right to determine the provider of your medical treatment. This means that the injured worker has absolutely no input in the decision as to the provider of his medical treatment. As such, if you sustain a workplace injury, you are obligated to go to the physician chosen by your employer or its workers’ compensation insurance carrier.

What Will Happen If You Have A Work-Related Injury

This is what typically happens when you have an injury on the job. Your employer contacts the workers’ compensation carrier, who directs you to a medical provider. Typically, that physician is either the “company doctor”, a physician who is under contract with your employer or the insurance company, or to an occupational health center, which is a clinic type facility which relies exclusively on referrals from employers and workers’ compensation carriers. These medical providers, because most or all of their business is obtained from workers’ compensation carriers, tend to abide very carefully by the rules and requirements imposed upon them by the carriers. In many situations, a competitive bidding process in used to determine which medical providers are selected by the carriers.

Because the patient cannot elect to go to a provider other than those selected by the carrier or employer, many of the physicians providing treatment to injured workers tend to develop patterns of behavior in how they practice medicine. Because of pressures to keep costs down, the physicians have to see as many patients as possible per day. Backlogs and delays getting in to see the physician are the norm. Diagnostic studies that a private physician might order without a second thought are deferred or just not obtained at all. Referrals to specialists are delayed or denied. Patients are treated in an assembly line fashion, and are given little time to discuss their injury and its consequences with the physician.

The injured worker frequently also has to deal with a physician whose attitude toward them is negative from day one. Many of these doctors, either by training or personal philosophy, tend to have an anti-injured worker mentality. They assume that the worker is feigning or exaggerating their symptoms, or trying to find an excuse to stay out of work. If they can find any justification for determining that the worker’s condition is not due to the work injury, they are quick to blame the condition on something else, such as a pre-existing condition. This mentality is a byproduct of pressure from the insurance carriers. If the physician doesn’t play by the carrier’s rules, the patients are directed elsewhere. If a physician is too much of an advocate for his patient, and argues with the insurance adjuster about the course of recommended treatment, the carrier simply won’t use that physician in the future.

What Can You Do If You Are Denied Appropriate Medical Care?

So- what can you do if the physician designated to treat you for your work injury is not treating you appropriately? The initial response of many injured workers who are at odds with the appointed physician is to go to their own doctor, using their personal health insurance. Unfortunately, this can create more problems than it solves. Health insurance policies uniformly contain a provision that treatment for work-related injuries is excluded from coverage. As such, most private physicians will not treat work-related injuries. Even if they do, the cost of their treatment is not covered by private health insurance.

Fortunately, New Jersey Workers’ Compensation law does provide for a method to contest the treatment (or lack thereof) being provided by the workers’ compensation doctor. An injured worker has the right to file an Employees Claim Petition with the Division of Workers’ Compensation. This Division has over 50 Workers’ Compensation Judges, with Courts throughout the State, whose function is to hear disputes involving injured workers. The Judges of Compensation have the authority to order workers’ compensation carriers to provide appropriate medical treatment to workers who are being denied that treatment.

Do I Need A Workers’ Compensation Attorney If A Dispute Arises About My Medical Care?

Because of the complexities of proceeding with a claim in Workers’ Compensation Court, it is highly recommended that you retain a Workers’ Compensation attorney to assist you in that process. Because this is a highly specialized field, you should select an attorney with expertise in this area. The Supreme Court of New Jersey certifies attorneys with expertise in the field of workers’ compensation law. Your attorney will not charge a fee for representing you in a workers’ compensation claim until the matter is concluded. The Judge of Compensation who hears your case sets the attorney’s fee after the matter is heard, and under no circumstances is that fee greater than 20% of the award.

What Will Happen Once I have Filed My Workers’ Compensation Claim?

Once your claim has been filed, if a dispute regarding your medical treatment arises, your Workers’ Compensation attorney can file a Motion for Medical Treatment, which is given priority by the Court, which will ordinarily list the Motion for a hearing within 30 days of the date of filing. The Judge has the authority to direct the insurance carrier to provide medical treatment, provide an evaluation by a specialist, or direct that diagnostic studies be done.

If you find yourself at odds with your employer or its workers’ compensation insurance carrier regarding the medical treatment being provided to you, it’s important to be aware that they do not necessarily have the last word regarding your medical treatment. You have the right to dispute a denial of treatment. You can obtain legal representation without having to incur any out of pocket expenses for that representation. An independent workers’ compensation judge will hear your dispute and can direct the insurance carrier to provide you with all reasonable and necessary treatment your condition requires.