The Veterans Administration provides medical coverage in many instances to veterans of the United States Armed Forces. Like Medicare, it is a federal program, and like Medicare, has the ability to lien a Workers’ Compensation file and seek repayment for any amounts the V.A. feels have been made for a work-related condition.
The second lien type I will be discussing in this series of blogs is Medicare. Medicare is a benefit under federal law which, in most cases, is provided to an individual either by that individual reaching 65 years of age or by that individual being found to be eligible for Social Security Disability benefits.
Social Security Disability recipients are eligible for Medicare in most cases after a two-year waiting period. Medicare has the right under federal law to recover any money they pay for medical treatment which they feel is something which should have been paid by a workers’ compensation insurance carrier.
One of the things we try to warn clients about early in a case is being sure that they treat only with authorized physicians, that is, physicians who are appointed by your employer or your employer’s workers’ compensation insurance company.
Under New Jersey law an injured worker does not have the right to choose a treating physician when an injury is accepted as work related by his or her employer. Treatment must be provided by the employer, an important provision of our Workers’ Compensation Act originally enacted in 1911. That Act incorporated a compromise which allowed employers to choose the doctors as a cost saving measure, in return for the injured worker not having to prove that he or she was not negligent, and not having to prove that the injury was someone else’s fault.
Many people who have filed a Worker’s Compensation claim in New Jersey ask whether they are entitled to copies of their treating medical records from the health providers authorized by their employer’s insurance carrier. The answer is yes. Under the Worker’s Compensation Act, specifically NJSA 34:15-128.4, it is unlawful for an employer, insurance carrier or treating physician to withhold medical information requested by the petitioner. In addition, the rules of the New Jersey Medical Society require the release of such medical records. The records from a physician directly must be supplied at a cost specified by the Board of Medical Examiners. However, as a practical matter, when a petitioner has a formal claim pending his or her attorney requests the treating records from the attorneys for the employer or insurance carrier, which are supplied at no cost.
There is a distinction, however, between the records of a physician or other health provider who actually treated the petitioner, and what is known as an independent medical examination (IME). With respect to the treating providers, a physician/patient relationship exists. With an IME, however, this is a one-time examination scheduled by the employer or insurance carrier to give an opinion as to the need for further treatment, disability or perhaps other issues. An IME does not create a physician/patient relationship, and therefore the reports are sent to the party requesting the IME. At the appropriate time the petitioner’s attorney will be supplied with the report. If you are having difficulty obtaining your authorized treating records, you should contact your attorney immediately.
This issue arises more and more in our practice. Insurance companies and self-insured employers frequently schedule these “IME”s during the course of authorized treatment, often while the injured employee is still out of work and receiving temporary disability payments. Sometimes the reason for the exam is quite legitimate. If a worker has sustained a serious injury requiring surgery and is not making progress post-surgery, it is often desirable to have another expert physician in the same specialty as the current treating physician examine the worker to possibly suggest another approach to the injury which might improve the worker’s condition and return him or her to work. In this situation the worker’s attorney often will make a request for such an exam. Another situation is when a complicated surgery is recommended; the worker in this situation often will ask for a second opinion before proceeding to surgery. Exams in both of these situations are often needed.
Unfortunately, we are seeing an increasing use of the IME for a negative purpose; to “cut off” the worker from treatment which is still needed. To cite an extreme example, a worker injured in a specific incident was recovering from a very serious spinal surgery, was receiving post-surgical therapy, and was also recommended for surgery to another part of the body. The treating doctors were authorized and paid by the insurance company. The worker was also receiving temporary disability payments. The insurance carrier then sent the worker to a physician of its choosing for an IME. That IME physician examined the worker and wrote a report expressing the opinion that the surgery and treatment were not related to a work incident, that physical therapy should stop, and that the worker should be returned to work without restrictions. There was no real evidence justifying that opinion. Nonetheless, the insurance company then stopped all benefits. Fortunately, as soon as the appropriate Motion for Medical and Temporary Benefits was heard in Court the Judge of Compensation entered an Order restoring the worker’s benefits.
If you are injured in a work-related accident and require treatment it is important to obtain the services of Stark & Stark as soon as possible. By having an open file we are able to get into court more quickly should such an unfortunate situation arise with your treatment. We will be happy to help you with your Worker’s Compensation claim.
Does the NJ Worker’s Compensation Act allow an injured worker with an underlying degenerative condition to collect worker’s compensation benefits if the condition is aggravated in an accident at work?
The answer is yes. Under the Act and case law an injury can be compensable by original causation, aggravation, acceleration or exacerbation. A typical situation is where a worker has an underlying arthritic condition, but one that is asymptomatic, meaning the worker does not experience any pain or ill effects from the condition. He or she then suffers a fall at work, and thereafter suffers pain and limitation of motion in the affected body part. With proper medical proof, this injury can be considered work related despite the pre-existing underlying condition. The worker would be able to receive treatment and disability benefits which might be available based on the particular injury. Keep in mind, however, there must be medical evidence of this. A physician, preferably a specialist in the particular medical area of the worker’s injury, must be able to state that by objective medical evidence and by reasonable medical probability the underlying condition was aggravated or accelerated by the fall. If the employer denies benefits in this situation, then with this medical opinion a motion can be filed with the Workers’ Compensation Court asking for an order compelling the employer to provide compensation benefits.
A worker passed out at work. She was working on a copier when she passed out and fell due to a personal medical condition completely unrelated to work. When she passed out she struck her head and shoulder on the concrete floor, suffering a concussion and fractured collarbone. She was taken to the ER and is now in need of orthopedic and neurologic treatment and will be out of work for several months. Her employer denied her request for workers compensation benefits, telling her that the cause of her fall was unrelated to work. She was instructed to put her treatment through her private insurance and to file for State Disability. Does she have any remedy?
In New Jersey, while the medical condition causing the fall is not compensable, the injuries sustained by her contact with the floor are compensable. While the employer is not responsible for her unrelated condition, the employer is responsible for injuries resulting from the actual contact with the employer’s premises, here, the concrete floor. The floor, machinery, etc. at the workplace are considered a condition of the employment. In this situation a worker’s compensation Claim Petition should be filed seeking compensation benefits, which will include medical treatment, temporary disability and partial permanent disability.
What are the factors a court will review in deciding if an on-the-job heart attack is compensable?
The New Jersey Workers’ Compensation Act has a specific provision addressing cardiovascular and cerebral vascular (stroke) injuries. Section 7.2 of the Act provides, “In any claim for compensation for injury or death from cardiovascular or cerebral vascular causes, the claimant shall prove by a preponderance of the credible evidence that the injury or death was produced by the work effort or strain involving a substantial condition, event or happening in excess of the wear and tear of the claimant’s daily living and in reasonable medical probability caused in a material degree the cardiovascular or cerebral vascular injury or death resulting therefrom.”
“Material degree” means an appreciable degree or a degree substantially greater than de minimus.
Obviously this is one of the more difficult areas of Workers’ Compensation law, and a worker who suffers a heart attack on the job should consult a qualified workers’ compensation attorney. A key issue here is the work effort was and whether it was in excess of the worker’s daily living. Our courts have interpreted this not as a comparison of the work effort at the time of the attack but rather a comparison of that work effort with the wear and tear of the person’s daily living outside of work.
A second important point to consider are the medical proofs available. What was the worker’s health before the attack? How much time passed between the work effort and the attack? Obviously these complicated issues should always be handled by a qualified workers’ compensation attorney such as those here at Stark & Stark.
If someone is injured performing odd jobs for a homeowner is he/she eligible for Workers’ Compensation Benefits?
In New Jersey a person who performs occasional jobs for a homeowner may be considered a “casual employee” and therefore not eligible for compensation benefits. The definition of “casual employment” is a work relationship which is relatively brief and passing, not regular or part of the alleged employer’s ordinary business. This is especially true if the injured person is doing work for a homeowner such as repairing light fixtures, painting, unclogging a toilet, etc. Our Courts have found that doing odd jobs, occasional repair or occasional replacement work is generally in the nature of “casual” employment, and thus not covered by the New Jersey Workers’ Compensation Act. Of course, anyone injured in what appears to be such a situation should still consult a qualified Workers’ Compensation attorney to determine his or her actual status at the time of the injury.
Someone who is hurt on the job in New Jersey may be told by their employer that they must be treated by a doctor chosen by the employer’s insurance company. Why can’t the injured party pick their own doctor, even when out-of-state residents suffer similar work injuries and are able to chose their own doctors?
In New Jersey the Workers’ Compensation Act gives an employer or it’s workers’ compensation insurance company the right to chose the doctor and other health providers who will provide medical care to a worker injured in the course of his or her employment. This has been a part of the law for many years. The reasoning behind this is cost containment. Theoretically, by allowing the employer/insurance company to chose health providers, medical care will be obtained at a lower cost. This was one of the original aims of workers’ compensation laws when originally enacted early in the 20th century.
Before workers’ compensation laws existed, persons injured during the course of employment often went without medical care or disability payments due to the state of civil law at that time. When the workers’ compensation laws were enacted they contained what some have called “compromises;” in return for furnishing medical and disability benefits to workers for on the job injuries, employers were given the right to chose physicians as a means of controlling costs associated with the furnishing of these benefits.
Of course, this applies where the employer provides medical treatment. If an employer refuses to provide medical care to an injured worker after such care has been requested, the worker can obtain treatment on his or her own and seek to have the employer pay for the treatment. It is most strongly recommended, however, that the worker who is being denied treatment seek the services of a qualified workers’ compensation attorney as soon as he or she is denied such benefits. Legal papers must often be filed to obtain treatment and the attorneys here at Stark & Stark are experienced in such matters and look forward to serving injured workers.