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Jones Jones LLC Major Win Alert : Learn How Our New Jersey Practice Saved a Client Six-Figures

We are excited to announce a major win secured by Jones Jones  LLC Attorney Christine Diana.  This win highlights:

  • The importance of reviewing all medical bills and location of treatment in order to determine proper payment of medical bill; 
  • The successful jurisdictional arguments Jones Jones LLC has brought as it relates to New Jersey surgical centers attempting to assert a “usual and customary” review of medical bills; and
  • The skillful litigation tactics utilized by the New Jersey attorneys of Jones Jones LLC in order to bring about a successful resolution of your medical bill disputes. 

 

Attorney Christine Diana recently litigated a New Jersey medical provider claim, saving an insurance carrier client over $170,000.00 in medical bill costs.

In most cases, a medical provider claim involves an injured worker with an established New York State Workers’ Compensation claim with treatment being rendered out of state, in this case, New Jersey. Doctors in New York State are bound by the New York State fee schedule for bills; which oftentimes presents itself as much less costly in New York as opposed to higher bill cost for same services in New Jersey. New Jersey reviews medical bills through the “usual and customary” standard.

For this particular claim, the claimant lived, worked, and was injured in New York State.  Her only connection to New Jersey was that she underwent surgery in a New Jersey surgical center.  The surgical center took the position that the insurance carrier must pay the “usual and customary” amount for services; in this case a bill amounting to over $184,000.00.  Our carrier client paid $14,000 towards the medical bill as per the New York State fee schedule.  The surgical center brought a suit in the New Jersey Court System asserting that  New Jersey had jurisdiction over the issue of the medical bill.   Through Attorney Diana’s skillful litigation of the matter, she was able to secure a major win for the insurance carrier.   She argued that New Jersey had no jurisdiction over the medical bill as there is an established New York Workers’ Compensation claim and there was simply a lack of connection between the claimant and New Jersey.

Ultimately, the New Jersey Court dismissed with prejudice the New Jersey surgical center’s argument that the carrier had to pay $184,000.00 in medical bills and the $14,000 payment per New York’s fee schedule was deemed appropriate.

Ensuring that medical bills processed by your team for review of expense and location of treatment is very important as oftentimes there are mitigation opportunities available to you.  The attorneys of Jones Jones LLC have seen the dispute of proper bill payment raised many times in the New Jersey Courts and are experts in arguing the proper payment of such medical costs.  The surgical and treatment centers in New Jersey continue to make the argument that New Jersey has jurisdiction over their bills despite clear case law that holds otherwise. The New Jersey attorneys at Jones Jones LLC  are excited to navigate you and your team through these jurisdictional issues in order to bring about medical cost savings.

Contact us at clientservices@jonesjonesllc.com today to set up a consultation.

New Jersey Workers’ Compensation Fact Sheet

Jones Jones LLC knows that workers’ compensation claims can be complex. In an industry bogged down by forms, statutes, and filings, we aim for efficiency in all we do.  To that end, we wanted to make sure that you, our clients, had access to the most up-to-date pertinent information regarding New Jersey workers’ compensation.

Are you an examiner that is looking for a quick reference? Are you a risk manager overseeing New Jersey claims? Are you an employer addressing your first workers’ compensation case? Please look no further than the Jones Jones LLC New Jersey Workers’ Compensation Fact Sheet.

NJ WC Fact Sheet

 

Download Here

 

 

 

Appellate Division Tosses Extraterritorial Medical Provider Claims

The Appellate Division examined the jurisdiction of out of state medical provider claims that had fee disputes due medical procedures performed in New Jersey in the consolidated matters of Anesthesia Associates of Morristown PA v. Weinstein Supply Corporation and Surgicore of Jersey City v. Waldbaums. A-5033-18T4 and A-5718-18T4. In recent years, the Division of Workers’ Compensation has seen an increase in claims arising out of the 2012 Amendments to the Workers’ Compensation Act (WCA) which gave the Division of Workers’ Compensation exclusive jurisdiction over medical provider applications. The Amendment to N.J.S.A. 34:15-15 was silent on whether an out of state worker who was directed by a treating physician would be bound to the New Jersey underlying claim would apply its fee schedule.

The Appellate Division began its analysis of jurisdiction of such claims by reviewing the 2012 amendment and providing “plain meaning” to the statute. The court explained that medical provider claims could be brought under the WCA when the underlying workers’ compensation claim would have had jurisdiction in New Jersey. The court examined several important workers’ compensation cases but placed emphasis on its recent decision in Marconi v. United Airlines, 406 N.J. Super 330 (App. Div. 2019). Marconi outlines Larson’s on Jurisdiction six-factor test for jurisdiction. The  factors 1) The place where the Injury occurred; 2) the place of the making of the contract; 3) the place where the employment relation exists ; 4) the place where the industry is localized; 5) place where the employee resides 6) the place whose statute the parties expressly adopted by contract. Applying this analysis, the Court determined that if an out of state workers’ compensation claim could not obtain jurisdiction within New Jersey, the contractual dispute for payment should also not be granted jurisdiction. The applicant would fail to have met personal jurisdiction in these matters.

The Court also declined the argument of both medical providers that these applications are contractual disputes. The court reasoned that the applicants failed to identify any contractual rate of reimbursement that existed between the medical provider and the employer, or the medical provider and the insurance carrier.

This decision is very important for defense practitioners as these claims have proven a challenge on the appropriate way to handle payment issues. Defense counsel should exercise caution when responding to medical provider applications and carefully examine any jurisdictional issues.

NJ’s Presumptive COVID-19 Bill for Essential Workers:  Everything You Need to Know

On September 14, 2020, Governor Phil Murphy signed S.B 2380 into law. The new law allows for the shifting of the burden of proof for essential workers who contracted COVID-19 to the respondent.  With this reform, a new rebuttable presumption now exists.  The presumption is that an essential worker, working with the general public, who tests positive for COVID-19, developed the virus in the course of their employment.  The reform is retroactive from March 9, 2020.

The Bill outlines covered essential workers into four different categories:

  1. A public safety worker / first responder;
  2. A healthcare worker (including transportation and social services);
  3. Anyone working in close proximity to the public (this would include grocery and liquor store employees, bank/ financial service employees, residential services, and hotels);
  4. Any other employee deemed an essential employee pursuant to the State of Emergency declarations.

Any state employee who was given the option of remote work, and refused it, would not be covered by the new law.

While the reform shifts the burden of proof from the petitioner to the respondent, the presumption is rebuttable.

Defense counsel can rebut the presumption by a preponderance of the evidence that the essential worker did not contract COVID-19 while working. In other words, the defense counsel would have to prove that it was more likely than not (greater than 50%) that the essential worker did not contract COVID-19 while at work.

What does this mean for you?

This makes the investigation of COVID-19 claims incredibly crucial. A defense counsel must be cognizant of the essential worker’s day- to-day life and other factors.

For example, some factors may include: if the essential worker was taking public transportation to work, if the worker was employed by more than one company, and whether or not the essential worker lived with anyone who had contracted COVID-19 prior to becoming sick. Questions regarding whether or not the essential worker self-quarantined or attended any social gatherings will also be helpful.

Your attorneys at Jones Jones LLC stand at the ready to navigate this new reform with you by thoroughly investigating the facts of the claim as well as the outside factors that could contribute to an essential worker contracting COVID-19.

Contact us today to schedule a consultation or Webinar on New Jersey’s new presumptive bill.

Examining New York and New Jersey Workers’ Compensation Claims Arising Away from the Place of Employment

Prior to the COVID-19 outbreak, many employers found it beneficial to convert their employees from a commercial office space environment to a work-from-home status. Whether employees are full-time work-from-home employees or have work-from-home privileges a few times a week or month, workers’ compensation claims can and do arise while workers are working from home and require careful consideration to limit risk. 

New York

New York has had a “home office exception” for compensable accidents since 1968. Employees who work from home, outside the direct physical control of their employers, can alternate between work-related and personal activities when they choose. For this reason, injuries sustained by employees working from home should only be found to be compensable when they occur during the employee’s regular work hours and while the employee is actually performing her employment duties.

In a 2019 decision, the Workers’ Compensation Board disallowed a claim for benefits from an accidental injury sustained while a Claimant was moving office furniture during his lunch break. See 2019 NY Wrk. Comp. LEXIS 4888, 2019 NY Wrk. Comp. 1953353 (N.Y. Workers’ Comp. Bd. May 3, 2019). In this matter, the claimant had a telework agreement with his employer. His employer provided him with a computer tower, two monitors, and a keyboard. The employer refused to purchase home office furniture for the claimant. The claimant, therefore, purchased his own furniture, and while on his lunch break, and carrying the furniture into his home, sustained injury.

A Workers’ Compensation Judge, after hearing testimony, found that the claimant’s injury did not arise out of or occur during the course of the claimant’s employment. The Judge based their opinion on the fact that the employer did not pay for the furniture, and that the claimant was on his lunch break. The claimant moved for Full Board Review. The Workers’ Compensation Board disallowed the claim. In its opinion, the Board discussed that working from home provides workers with a greater ability to switch from work functions to purely personal functions. Accidents that occur while performing a work duty while working from home, should be the only accidents deemed compensable. Injuries which occur while the claimant is not actively performing his or her work duties, such as taking a short break, getting something to eat, exercising or using the bathroom, for example, should be found to have arisen from “purely personal activities [that] are outside the scope of employment and not compensable”. Matter of McFarland v Lindy’s Taxi, Inc., 49 A.D.3d 1111(2008). As the claimant was not performing a work duty at the time of his injury, and the furniture was not purchased by the employer, the Board disallowed this claim. 

Whether an injury is compensable for a telecommuting employee is a fact-specific inquiry in New York. Employers should work with defense counsel to provide telecommuting agreements, if applicable, as well as provide a list of any materials that the employer furnished. When appropriate and possible, an employer should conduct periodic checks of employee home offices to help identify and eliminate work area safety hazards.  

New Jersey

New Jersey has several cases of work from home accidents which have been deemed compensable, and a few which have been denied, and generally follow a similar legal analysis to New York.  In Renner v. AT&T, 218 N.J. 435 (2014), the Petitioner passed away in September of 2007 as a result of a pulmonary embolism. Per her teleworking agreement, Ms. Renner was allowed to work from home several days a week. After her death, Ms. Renner’s husband filed a dependency claim for benefits, and a workers’ compensation judge awarded benefits. The Petitioner’s expert opined that Ms. Renner’s sedentary work contributed to her embolism, and placed more weight on her sitting for extended periods of time due to the deadline-driven nature of her job, than her preexisting underlying health conditions. AT&T’s expert opined that Renner’s underlying health problems contributed to the blood clot, which ultimately traveled to her lungs. The Appellate Division reversed the Workers’ Compensation Judge’s award of benefits and remanded for further proceedings.

Under Section 7.2, “the employee must prove by a preponderance of the evidence that the injury or death was produced by a “work effort or strain” involving a substantial condition or event happening in excess of daily wear and tear of Claimant’s daily living.” See N.J.S.A. 34:15-7.2 The Supreme Court held that there was no showing that the Petitioner’s death resulted from a work effort or strain in excess of the daily wear and tear of her job. The Supreme Court explained that her job responsibilities did not keep her in cramped conditions, or maintain that she sit for the entire day.

Another case, Benvenutti v. Scholastic Bus Co., No. A-3732-11T1, 2013 N.J. Super. Unpub. LEXIS 739 (App. Div. Apr. 4, 2013) explores the legal implications of a Petitioner who is performing work-duties outside of her place of employment.  Benvennutti was employed by a bus driver for the respondent. After dropping children off to school, she was sweeping the school bus while she parked the bus in front of her home. While sweeping, she tripped over a mat on the bus and injured her left ankle.  The workers’ compensation judge awarded benefits. The respondent appealed, stating that this accident did not occur during the course of the Petitioner’s employment. 

The Appellate Division affirmed theaward of benefits.  Citing Jumpp v. City of Ventonor, 177 N.J. 470 (2003). Per Jumpp, “when an employee is assigned to work at locations away from the employer’s place of employment, eligibility benefits generally should be based on a finding that the employee is performing his or her prescribed duties at the time of the injury.” Id. at 483.  The Appellate Division applied Jumpp and found that the Petitioner’s testimony that sweeping the bus and inspecting the seatbelts was part of her job expendabilities. As the Petitioner was performing a duty of her job off-site, an award of benefits is appropriate.

Alternatively, the Appellate Division cited Jumpp in Kamenetii v. Sargillo & Sons, LLC, No. A-0394-16T3 2019 N.J. Super. Unpub. Lexis 1833 (App. Div. Aug. 8, 2018) to deny workers’ compensation benefits and distinguish when an off-site activity should be considered in the course of employment. The Petitioner in Kamenetti was a truck driver who stopped a truck stop to take a shower. He sustained injury while in the shower area. The Appellate Division determined that, unlike in Jumpp, Kamenetti was doing a personal chore and him stopping to take a shower was not a requirement of his job. Therefore, Kamenetti was not entitled to workers’ compensation benefits.

For both the New York and New Jersey claims, it is clear that the overarching theme is that for an employee to have a compensable out of office claim, he or she must have been working in furtherance of his or her job. These claims will be very fact-specific, and defense counsel must be able to pinpoint official work duties from personal activities. Defense counsel, when faced with work from home claims, must do a thorough investigation of the facts surrounding the injury. In some instances in New Jersey, it may be helpful for a practitioner to file a motion requesting to propound first notice of injury interrogatories since there may not be an injury report. Similarly, in New York testimony of the Claimant, a detailed review of the C-3 and a pre-hearing discussion with the employer will be invaluable for establishing the circumstances surrounding the injury.