New Jersey Workers’ Compensation Trends for 2016

By Richard B. Rubenstein, Esq.

Assembly Bill 3401, signed into law on November 14, 2016, mandates that workers’ compensation carriers and third-party administrators adopt a method for processing electronic bills for medical treatment rendered on New Jersey workers’ compensation cases. It mandates the promulgation of Rules and Regulations for the format of electronic billing for most, if not all, procedures.

Section 2(e) provides that payment deemed by a Respondent to be compensable shall be paid within 60 days. Unfortunately, it supplies no method for a provider, or a patient to determine what has been deemed compensable by a Respondent. In a system where care is authorized and furnished by the Respondent, bills are still denied or delayed for investigation or if liability is being contested in some manner. It will be up to the Courts to determine the meaning of “deemed compensable,” in order for the sixty-day period set forth in the Statute to be meaningful to litigants. At its best, this new statute may safeguard the credit ratings of injured workers. At its worst, it will create too much time pressure for claims staffs to process billings, resulting in a huge increase in denied medical care as a means of extending the statutory period for payment.

The lack of tenure hearings for Workers Compensation Judges continues to create problems for Judges and litigants in the New Jersey Division of Workers Compensation. It has been several years since a Judge was granted tenure, and the effect is thought by participants in the system to damage judicial independence and integrity. Attorneys on both sides are concerned that Judges are reticent to issue controversial rulings on law, fact, or sanctions, because of fear of retribution. Further, the lack of potential for a tenured position may prevent the acceptance of appointments by qualified nominees.

One pending Senate Bill, S325, is intended to extend compensability to injuries sustained in parking lots provided by the employer, apparently a response to the New Jersey Supreme Court’s decision in Hersh v. County of Morris.

Pending appellate questions include the issue of awards of permanent partial disability on a modification application, following an award of permanent total disability, as well as the persistent questions arising from the Cunningham case, which disallowed temporary total disability benefits when the Petitioner has acted affirmatively to remove himself from the workforce. One pending permutation of the Cunningham issue involves a volunteer firefighter, mandated to receive maximum rates in the year of injury under N.J.S.A. 34:15-75, who has no other paying job. The employer maintains that without a wage loss, despite the statute, no temporary total disability is owed, relying upon Cunningham.

© Copyright 2016 by Richard B. Rubenstein, Rothenberg, Rubenstein, Berliner & Shinrod, LLC. Reprinted with permission.

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New! LexisNexis Practice Guide New Jersey Workers’ Compensation

LexisNexis Practice Guide New Jersey Workers’ Compensation is designed to assist Judges, practitioners, and claims professionals in the nuts-and-bolts of every day practice within the New Jersey Division of Workers’ Compensation. It is not intended to be a compendium of every decision, or a lexicon of every term employed in New Jersey practice, but rather a “cookbook” which will allow the professional to take a case from beginning to end, spot the issues, and find solutions for litigants.

We have done our best to offer the reader a coherent structure for opening a claim, responding to a claim, conducting discovery, and preparing for settlement, trial, and appeal. New Jersey practice carries with it a rich oral tradition passed down from generation to generation of Judges and attorneys, from the black pens we use to fill in forms, to the words we utter when we place a settlement on the record. Many of these conventions of behavior arise not from statute or regulation, but from experience. To the extent that the collective experience and acumen of our authors could be reduced to organized instruction, we have done our very best to place it in this volume.

The Practice Guide contains:

> How to open a file on behalf of a Petitioner, including ethical duties, communication strategies, and social media tactics

> How to open a file on behalf of a Respondent, and how to counsel your client to best defend the case

> How to plead a case and secure meaningful discovery to prepare for Trial

> How to file Motions that will protect your clients’ rights before the Judge of Workers’ Compensation

> How to secure essential medical records and evaluations to best prepare your case for Trial

> How to prepare for pretrial conference and plenary Trial

> How to handle liens, credits, and special Fund applications

> How to Appeal a decision

We intend this Practice Guide to grow and change as the practice before the Division of Workers’ Compensation has grown and changed, with future editions incorporating a greater variety of issues which confront the practitioner. We have worked hard to address contentious issues in an even-handed manner, skewed neither toward the Petitioner nor the Respondent.

Richard B. Rubenstein, Esq., co-author
Gregory Lois, Esq., co-author