Recently, the Appellate Division of the Superior Court of New Jersey issued an opinion that underscores the continuing problem of disclosure of past medical history by injured workers in workers’ compensation claims.  On July 5, 2012, the Appellate Division upheld an Order of a Judge of the New Jersey Division of Workers’ Compensation denying benefits to an injured worker as well as ordering that worker to repay benefits already paid due to failure to disclose a past medical history.

In that case, an injured worker had an automobile accident and suffered an injury to his knee.  Ten months later, while at work, he suffered a re-injury to that same knee.  It is obvious he didn’t forget about the prior injury to the knee.  However, he failed to disclose to the doctors who were treating him that he had, in fact, injured the knee in a previous automobile accident.  This was compounded by the fact that the worker in question brought a lawsuit for injuries to the knee as a result of the automobile accident.  

The Judge of Compensation decided that the worker in question had committed fraud in order to obtain the benefits and ordered the repayment of lost wage benefits as well as the cost of the surgery to the knee.

This decision places emphasis on the need by injured workers to be candid with their doctors.  In this case, had the injured worker disclosed to the treating physician the prior automobile accident, he may very well have gotten the treatment anyway, because New Jersey Workers’ Compensation law allows benefits to be paid in a case where a work related injury aggravates a pre-existing condition.  He would have given the doctor the opportunity to explore whether, in fact, this was an aggravation of a prior condition.  Had the injured worker been honest with his doctors, none of this would happened.  This case should, however, should be considered in context.  Last year, the Appellate Court found that an omission of two minor injuries, ten years before was considered remote in time and discounted as a factor in a case.

Unfortunately, the insurance industry has developed a “gotcha” mentality when it comes to rifling through an injured worker’s past.  New Jersey Workers’ Compensation Law was designed to be a no-fault system to speed benefits to an injured worker and, as such, was intended to limit the amount of investigation an insurance company could make.  Unfortunately, the insurance industry is now intent on rifling through a worker’s past history going back as much as 20 years.  Recently a firefighter in North Jersey saw his case dismissed because he forgot about a 20-year-old injury.

The Executive Committee of the Workers’ Compensation Section of the New Jersey State Bar Association, of which I am past Chair, recently made recommendations to the Director of the Division of Workers’ Compensation, Peter Calderone, to limit the ability of insurance companies to rifle through an injured worker’s personal medical records without having a basis to make that request.  However, as yet, the Director of Workers’ Compensation has refused to post new rules based on these recommendations.

To an injured worker, what this means is that it is important to provide as complete information as possible concerning the medical past when treating for a work related injury.

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.