Personal Injury Law Journal

Arthur H. Kravitz

akravitz@stark-stark.com
609.895.7244

Arthur H. Kravitz is a Shareholder and Chair of Stark & Stark's Workers' Compensation Group. He has over twenty years of experience as a workers' compensation attorney practicing in both the Workers' Compensation Courts and the Appellate Courts of New Jersey. Several cases litigated by Mr. Kravitz have resulted in reported and published decisions, in some instances changing the state of the law in New Jersey, particularly in recognition of the psychiatric disability due to workplace stress.

As the costs of providing treatment and benefits to injured workers goes up, the insurance companies and public employers are becoming increasingly litigious in demanding all kinds of necessary information from injured workers. Routinely injured workers face a borage of requests for the names of all of their personal physicians going back as far as 20 years. These requests are made so that the insurance company can rifle through these medical records in hopes of finding something to use against the injured worker. These demands are now routine and represent a clear invasion of an injured worker’s privacy.

At Stark & Stark, we have a policy of refusing to comply with these demands. Every request for personal medical information for an injured worker made to Stark & Stark is refused. As far as we at Stark & Stark are concerned, the only way that an insurance company can obtain prior medical information is to take the matter before the Judge of Compensation. There, we force the insurance company to justify in real factual terms why such prior medical records are necessary or relevant to the work related injury. Otherwise, we don’t let them get them. Even then, to protect a client’s privacy from unnecessary disclosure of unrelated medical issues, we will often times ask the Judge to review the records and remove anything not directly related to the accident or the injuries claimed.

Most judges are sympathetic to our efforts, however, there are workers’ compensation judges who don’t care how much information an insurance company or employer collects. For this reason, we at Stark & Stark have pressed for a change in rules to require the insurance company or employer to justify their request for prior medical records showing why such a request is relevant to the defense of the injured’s claim. We first inquired of this to the Director of Workers’ Compensation last year and partly through our efforts, the Director and Chief Judge of Workers’ Compensation appointed a committee to study these issues. This Committee made up of both attorneys for injured workers as well as representatives of insurance companies, self-insured’s and judges as completed preliminary work designed to limit access to personal medical information. We hope and expect that soon a proposed rule change will be published reflecting our desire that an injured worker’s privacy not be unnecessarily invaded merely for having filed a workers’ compensation claim.

Stark & Stark remains vigilant in our efforts to advocate on behalf of injured working people.

Arthur Kravitz is a Shareholder in Stark & Stark’s Lawrenceville, New Jersey office, specializing in Workers’ Compensation Law. For more information, please contact Mr. Kravitz.

Occupational exposures pose a significant risk to first responders as a result of the hazardous nature of the job. Exposure to communicable diseases, smoke, dust, debris, hazardous chemicals, noise and diesel exhaust fumes are just some of the risks.

To receive workers’ compensation benefits for an injury or condition caused by an exposure on the job, scientific evidence must demonstrate a connection between your injury and what you are exposed to.

The two main requirements for an occupational exposure claim are (1) proof that you were exposed to a harmful condition and (2) that the harmful condition can cause a specific type of disability.

Occupational exposure claims require proof that the work exposure probably contributed to a disabling injury. There must be sufficient scientific evidence to support a finding that the specific exposure at work is a material cause of an injury or condition.  You don’t have to show that an exposure is the one and only cause of a disabling condition.

The exception to this standard involves cases of occupationally induced heart problems. The exposure at work must be greater than any personal risk factors.

Arthur Kravitz is a Shareholder in Stark & Stark’s Lawrenceville, New Jersey office, specializing in Workers’ Compensation Law. For more information, please contact Mr. Kravitz.

I recently spoke to the 22nd Annual Workers’ Compensation Bench Bar conference and as I prepared for the talk, which touched on the subject of workers’ compensation fraud, I thought about how the insurance industry uses the threat of fraud accusations as a way of keeping injured workers from pursuing their rights.

Those of us in the workers’ compensation practice are in a unique system that has tried as best it can to separate fact from fiction, the reality from the perception, mostly in order to do the right thing when it comes to awarding benefits to injured workers.

Lately, I have seen that more and more often, our search for the truth and desire to do the right thing has taken a back seat to the search for the gotcha moment: every omission an injured worker makes to a doctor is treated as a fraud; every task a worker completes out of necessity that he or she states he cannot do is a lie. The casualness of these fraud accusations is a growing virus that will pulverize the practice and jeopardize the efficient administration of the Workers’ Compensation Court.  

These days, an injured worker can actually be whipsawed into saying or swearing to almost anything. One recent example, and this is a true story, I represented a client who suffered a re-injury at work at work and reported it appropriately to his boss. His boss told him that they will send him to a doctor, but if the doctor says he cannot work, they will have to fire him. They asked him if that’s what he wanted and the worker said no and refused to go to the doctor. The employer then told him that if he didn’t go to the doctor, he would be fired unless he chose to resign in order to collect unemployment. The client filed for unemployment and, after he resigned, he contacted us asking for a doctor and wanting to apply for disability. If this man applies for Social Security, does the fact that he told unemployment he was capable of working prevent him from collecting Social Security?  No, but, that fact will be used against him at a Social Security hearing.

These issues don’t even touch upon people who suffer from major depression after an accident which in and of itself can contribute to the debilitating process and make an injury even worse.

Once we fall into making assumptions that every worker is trying to gain the system, therefore, every worker is suspect and as such every inconsistency by an injured worker is treated in the harshest possible way.  The legislature clearly did not intend for this to happen.

The Public Employees Occupational Safety and Health Act has long protected public employees from both safety and health hazards in the workplace.  The program, among other things, enforces indoor air quality standards, develops standards for respiratory protection of first responders, as well as handles complaints on behalf of public employees for unsafe conditions in the workplace.  Under this program, any public employee may file a complaint with the office of Public Employees Occupational Safety and Health for unsafe or unhealthy work conditions.  These complaints are considered confidential when filed and can be done anonymously.  Furthermore, no employer is allowed to retaliate against an employee who files such a claim.

To file a complaint for an unsafe condition requires a complaint to be filed with the Department of Labor and Workforce Development.  The form is available at the New Jersey Department of Labor Workforce Development’s website under the office of Public Employee Safety who can be contacted by phone at (609) 292-7036.  Complaint itself requires specific information as to the location of the hazard, the people in charge and the nature of the complaint.  It also asks the type of work done, materials handled, and the person who files the complaint has the choice of revealing his name to the employer or not.

For health hazards, such as indoor air quality issues, the Public Employee may file a complaint with the New Jersey Department of Health and Senior Services.  Any public employee who has a complaint about air quality or other health hazards may file a written request for a free inspection or file a written complaint to the Commissioner of Health and Senior Services.

Because PEOSH has developed the standards for such things as air quality or respiratory protection, if called upon, the Department of Health and Senior Services can issue violations to an employer who violates these health regulations.

This protection does not extend merely to public work places but also to public schools, many of whom are aging and have postponed preventing maintenance for budget reasons.

More recently, the New Jersey Department of Health and Senior Services issued new regulations for safe patient handling and violence protection in publicly owned hospitals and nursing homes.

In recent months, Governor Christie’s Administration has drastically cut the amount of money available to both the Department of Labor and Workforce Development and the Department of Health and Senior Services to perform their work.  They have even gone to the drastic step of returning federal assistance as well as taking efforts to remove Public Employee Workplace Safety Regulations in the name of deregulation.

To public employees, this represents a threat to their health and safety. If you have questions regarding your rights and would like to speak to an experienced workers’ compensation attorney, please feel free to contact me here in my firm’s Lawrenceville, New Jersey office to set up a free consultation.

If you are injured at work, you have the right to medical treatment provided by your employer or their insurance company. They must pay for whatever treatment is required to cure or relieve the effects of the injury. However, they do have the right to direct you to a doctor of their choice and you must go to their doctor. If you do not go to their doctor, you risk paying for medical treatment out of your own pocket as well as losing compensation for any lost time from work.

Of course, once treatment begins, it becomes clear that there are more people involved than just the doctors. Claims adjusters and nurse case managers hover over the doctors in an effort to cut treatment costs or even to cut treatment. In spite of this, the doctor can be the biggest ally in helping you get the treatment you need. Here are some common sense things you can do to help create a good working relationship with the doctor to improve the quality of your medical treatment.

Be Assertive
It is important to be assertive when dealing with the doctor.  This means making certain that you tell the doctor all of your complaints even if you don’t feel you need treatment for a specific body part.  Part of the process of visiting a doctor is to document the nature of your injuries, which leads to proper diagnosis and better treatment.  Often an injured worker will focus on the part that’s hurting him or her the most and gloss over or shrug off lesser problems.  The problem is that if the doctor doesn’t know about a particular problem, it is very difficult to come back and treat it later.  Telling the doctor all of the problems as a result of your injury will protect you down the road, if the insurance carrier or employer tries to deny part of your claim.  Remember that this is a process that may take several visits with a doctor to obtain the results you are looking for.

Make sure the doctor knows what you do for a living
Strange as it may seem, what you do for a living has an impact on the nature and quality of your medical treatment.  If you work in a physically demanding job, or a job that requires others to depend on you for their health and safety, it is important that the doctor know.  It makes a difference to the doctor what has to be done to return someone to work in a sitting job versus someone who needs to return to work in a physically demanding or a job that involves a safety risk.  It may also impact how long you are kept out of work and also determine the nature of the treatment you may need to restore function.

Be specific about light duty
Often while providing medical treatment for a work related injury, a doctor will consider the possibility of releasing an injured worker back to work on “light duty”.  This may often be a good idea because studies have shown that the longer someone stays out of the work environment the more difficult it is to return.  Before a doctor releases you to light duty, make sure he is specific about the restriction.  A doctor who merely writes on a slip of paper “light duty” will find that the employer generally does not honor the restriction because, frankly, the employer does not understand the restriction.  Therefore, make sure the doctor’s restriction is as specific as possible.  If the doctor says no prolonged standing at a job, he needs to spell out how long you can stand.  If the doctor puts a restriction on how much weight you can lift, then he needs to spell it out specifically in terms of how many pounds you can lift. Once he does that, make sure you keep a copy of the restriction and carry it with you in the event that your employer does not wish to honor it.  If you are still under active treatment while receiving the restriction and the employer does not honor it, then the employer or his workers’ compensation carrier must pay you workers’ compensation benefits if they send you home.

Don’t treat on your own
Treating through your personal physician and billing your private health insurance may seem like a good solution - this is a bad idea.  You can wind up personally responsible for hundreds or even thousands of dollars in medical bills.  Over the years, private health insurance carriers have included language in the policies excluding payment for work related injuries.  Insurance carriers have also become far more aggressive in recovering monies they have paid directly from injured workers.  If you go out on your own, you can end up responsible for the medical bill.

The Workers’ Compensation Courts do allow remedies if medical treatment is not provided.  A request for medical treatment can be filed with the Workers’ Compensation Court as long a it is supported by a doctor describing that the treatment is needed.  However, in an instance where an insurance authorized treating physician makes a treatment of recommendation that the insurance company refuses to follow, the Court may grant an Order compelling the insurance company to provide this treatment even without conducting a hearing.

The pace of treatment can be slow and you should be direct but patient with your doctors because medicine is often a matter of trial and error.  Each of us is built differently and responds differently to injury and to treatment.  If you are having issues obtaining medical treatment in a New Jersey Workers’ Compensation claim, we offer free consultations to see how we can best serve your needs.