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Author: Christine Diana

Home > Archives for Christine Diana

New Jersey Medical Provider Claims: What You Need to Know

07.01.2020

What are medical provider claims?

Medical provider claims are contractual disputes brought by medical providers, and medical facilities. They often arise from extraterritorial workers’ compensation claims where a claimant has some type of treatment in New Jersey. New Jersey does not have a fee schedule for medical services under its workers’ compensation structure it uses the “reasonable and customary standard”. New York, by contrast does. Medical providers and facilities often try to recover the difference between a fee schedule allowance and the New Jersey “reasonable and customary” standard which is often much higher.

Why are these claims in the Division of Workers’ Compensation?

Under the 2012 amendments to the New Jersey Workers’ Compensation Statute, the Division was given exclusive jurisdiction over these matters pursuant to N.J.S.A. 34:15-15.

The issue of extraterritorial jurisdiction is currently on appeal before the Superior Court of New Jersey, Appellate Division.

What is the statute of limitations for medical provider claims?

The Supreme Court of New Jersey held that the statute of limitations for medical provider claims is six years. See Plastic Surgery Ctr., PA v. Malouf Chevrolet-Cadillac, Inc., No. A-78/79/80, 2020 N.J. LEXIS 116, at *1 (Feb. 3, 2020).

How can we minimize medical provider claims?

1)If your company has a national presence, avoid sending claimants out of state for treatment, if the state you are sending them to does not have a fee schedule.

2)Work with bill repricing companies to determine in plain language the price of the service billed.

If we have medical provider claim petitions, what should we do?

Since the issue is on appeal in New Jersey, the best course of action is to have defense counsel answer the medical provider claims and deny in the answer additional payment for lack of jurisdiction. Defense counsel should then file a motion to dismiss for lack of jurisdiction. It is also helpful to attach proof of payment for medical services.

Are there any cases that are helpful with this issue?

There is a New York decision, Bowman v. J & J Log & Lumber Corp., 758 N.Y.S.2d 852 (App. Div. 2003). New York’s Third Department held that a claimant could treat in a neighboring state for a New York workers’ compensation claim, but medical providers would be subject to the New York Fee Schedule. This case is persuasive, as it is a New York case, but it is helpful because there is not an appellate level case from New Jersey as of this time.

Another case that we often argue is Marconi v. United Airlines, 460 N.J. Super. 330 (App. Div. 2019). In Marconi, the petitioner filed both an occupational exposure claim for his left hip and an accident-specific left hip injury claim petition. Marconi was employed by United Airlines and spent the majority of his career in Philadelphia International Airport. Marconi was a New Jersey resident and would sometimes call Newark Liberty International Airport, to speak with staff, and would sometimes go to Newark for trainings. The Appellate Division, applying a jurisdictional analysis, held that being a resident of New Jersey was not enough for New Jersey to retain jurisdiction. The Appellate Division also examined the six factors of jurisdiction from Professor Larson’s  treatises which include: 1) the place where the injury occurred; 2) the place of the making of the employment contract; 3) the place where the employment exists or is carried out; 4) the place where the industry is localized; 5) the place where the employee resides; 6) place whose statute the parties expressly adopted by contract. The Appellate Division held that the fact that United had a hub in New Jersey was not enough for Marconi to establish claims in New Jersey. The Appellate Division noted that nothing that Marconi did advanced United Airlines purpose within the State of New Jersey.


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Filed Under: Blog Tagged With: New Jersey

During COVID-19 Federal Protection May Remove the Need to Supply Temporary Disability Benefits

07.01.2020

On March 18, 2020, President Donald Trump signed into the law the Family First Coronavirus Response Act (FFCRA). Under this law, there are two components to temporarily expand benefits to workers affected by COVID-19, the Emergency Paid Sick Leave (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA). The Acts became effective on April 1, 2020 and will expire on December 31, 2020. The United States Department of Labor a Wage and Hour Division is responsible for enforcing these Acts.

In terms of workers’ compensation temporary disability benefits, these Federal Acts would make the need for carriers to pay temporary disability benefits unnecessary. The Acts will apply when a worker cannot work at their job site (if deemed essential) or telework due to illness, or if telework is unavailable. It is important to note that if a company temporarily closes due to COVID-19, these Acts do not apply and the employee may be eligible for unemployment benefits.

The Acts will reimburse private American companies that have fewer than 500 employees with tax credits for the cost of providing employees with paid leave taken for COVID-19 related reasons. These acts are meant to provide payment for employees who fall under six categories that cannot show up to work (if working for an essential business) or telework due to COVID-19 reasons. First responders and healthcare workers are exempt from these Acts. Companies with less than 50 employees may also be exempt if they can prove financial hardship by adhering to the Acts.

The Emergency Paid Sick Leave Act (EPSLA) provides employees with up to two weeks paid sick time. For full time employees, that means 80 hours of paid sick time, for part-time employees, the amount of hours is based on the amount of hours worked on average. The EPSLA caps payments at $511 a day or $5,110 total. THE EPSLA will pay at the full rate of pay for three categories: 1) the worker is subject to federal/state/local quarantine or isolation due to COVID 19 and cannot work or telework; 2) Worker has been advised by a healthcare provider to self-quarantine due to COVID-19 related causes; and 3) The worker is experiencing COVID-19 symptoms and awaits a medical diagnosis. 

The EPSLA also applies for three additional categories where the rate of pay is capped to 2/3 of the employee’s salary or at $200 day. These categories include: 1) the worker is caring for an individual who is subject to a quarantine or has COVID-19; 2) the worker is caring for a child whose place of care is closed due to COVID-19 reasons; and 3) the worker is experiencing any other condition substantially similar to COVID-19.

The Emergency Family and Medical Leave Expansion Act (EFMLEA) can be used for 12 weeks when an employee has to care for his or her children whose school or place of care is closed due to COVID-19 related reasons. The rate of pay for this would be 2/3 of the employee’s pay. The first two weeks are unpaid. This can only be used by employees who are not eligible for telework.

EFMLEA v. EPSLA

EFMLEA

EPSLA

Applies when:

  1. Employee can only use EFMLEA leave to care for his or her child or children whose school or place of care is closed (or child care provider is unavailable) due to COVID-19 related reasons.

Applies when:

  1. Worker is subject to federal/state/local quarantine or isolation due to COVID-19 and cannot work or telework is not an option.
  2. Worker has been advised by a healthcare provider to self-quarantine due to COVID-19 related causes
  3. Worker is experiencing COVID-19 symptoms and awaits a medical diagnosis.
  4. Worker is caring for an individual who is subject to a quarantine or has COVID-19
  5. Worker is caring for a child whose place of care is closed due to COVID-19 reasons.
  6. Worker is experiencing any other condition substantially similar to COVID-19

How much is paid?

2/3 of the employee’s rate of pay.

How much is paid?

There is a $511 a day cap; or $5110 in total for reasons 1-3;

2/3 paid or a $200 a day cap for reasons 4-6

How long will the worker be paid?

This will last for 12 weeks; however; the worker will not receive pay for the first 2 weeks;

This is an expansion of FMLA.

How long will the worker be paid?

This is for two paid work weeks

EFMLEA v. EPSLA

EFMLEA

EPSLA

Applies when:

  1. Employee can only use EFMLEA leave to care for his or her child or children whose school or place of care is closed (or child care provider is unavailable) due to COVID-19 related reasons.

Applies when:

  1. Worker is subject to federal/state/local quarantine or isolation due to COVID-19 and cannot work or telework is not an option.
  2. Worker has been advised by a healthcare provider to self-quarantine due to COVID-19 related causes
  3. Worker is experiencing COVID-19 symptoms and awaits a medical diagnosis.
  4. Worker is caring for an individual who is subject to a quarantine or has COVID-19
  5. Worker is caring for a child whose place of care is closed due to COVID-19 reasons.
  6. Worker is experiencing any other condition substantially similar to COVID-19

How much is paid?

-2/3 of the employee’s rate of pay.

How much is paid?

-There is a $511 a day cap; or $5110 in total for reasons 1-3

-2/3 paid or a $200 a day cap for reasons 4-6.

How long will the worker be paid?

-This will last for 12 weeks; however; the worker will not receive pay for the first 2 weeks.

-This is an expansion of FMLA.

How long will the worker be paid?

-This is for two paid work weeks

Filed Under: Blog Tagged With: New Jersey, New York

How Will COVID-19 Impact Your Claims in New York and New Jersey

04.06.2020

As Jones Jones LLC continues to monitor the COVID-19 situation, your health and safety remain our top priority. We stand at the ready to assist you with any guidance you may need during these challenging times.  Our firm has taken several measures to ensure that business will continue from an operational standpoint with no disturbance.  Our firm’s technological practices have allowed staff and attorneys to continue working and communicating with clients and business partners with no change.  With over 100 years in the industry, Jones Jones LLC has seen its share of turbulent times, and we will continue to forge on with all of you — our valued business partners and friends.  Thank you, now more than ever, for being a part of our community.

The World Health Organization declared COVID-19 a pandemic on March 11, 2020. As of March 13, 2020, there are over 300 confirmed cases of COVID-19 in New York State. While there are currently less documented cases in New Jersey, we do expect that both states are to see an influx in workers’ compensation claims related to COVID-19.

Everything You Need to Know About Compensability of COVID-19 under Workers’ Compensation Law

New York

To qualify for a workers’ compensation award in New York, a worker must sustain an injury or illness through the course of his or her employment. Mere exposure is not sufficient for an award. The burden of proof is always on the worker to establish that he or she contracted COVID-19 from his or her workplace. Therefore, in general, claims for benefits from an average worker may be difficult to establish and should be denied from the onset.

Successful claims related to COVID-19 may be easier to establish from emergency response workers under the occupational disease provisions of NY WCL § 2(15). To establish an occupational claim, the burden is on the employee to pinpoint a link between COVID-19 and a peculiar characteristic of his or her employment. Thus, healthcare workers tasked with caring for COVID-19 infected patients and the potential for continued exposure to COVID-19 may be sufficient to establish an occupational claim.

Exposure to COVID-19 in the workplace may also be established as an accidental injury pursuant to NY WCL § 2(7). The definition of injury notes, “Only accidental injuries arising out of and in the course of employment and such disease or infection as may naturally and unavoidably arise therefrom.” Again, the worker has the burden of proof and must establish a causal relationship between the employment and COVID-19 with competent medical evidence. See Sale v. Hemsley-Spear, Inc., 6 A.D. 3d 999 (3d Dept. 2004). Accidental injury claims related to COVID-19 are likely harder to establish. With the ongoing community outbreaks of COVID-19, a worker will have difficulty establishing that he or she contracted the virus in his or her place of employment, rather than in the public.

New Jersey

N.J.S.A. 34:15-36 defines permanent partial disability and explicitly notes, “Injuries such as minor lacerations, minor contusions, minor sprains, and scars which do not constitute significant permanent disfigurement, and occupational disease of a minor nature such as mild dermatitis and mild bronchitis shall not constitute permanent disability within the meaning of this definition.” For many of the individuals afflicted, COVID-19 presents as a minor respiratory infection.  The definition of permanent partial disability suggests that in those instances, COVID-19 would not be compensable.

There is also a provision for compensable occupational diseases contained in the New Jersey Workers’ Compensation Statute. Therein, a disease is deemed compensable if it arises out of or in the course of employment and is due to a material degree of causes and conditions which are characteristic of or to a peculiar trade or place of employment. See N.J.S.A 34:15-31. A petitioner most likely would not be able to prove that COVID-19 was caused by a characteristic of his or her work, given the virus can be caught in the public.  An area where we may see compensable claims for COIVD-19 would be from emergency service workers. Emergency service workers are defined under N.J.S.A. 34:15-31.4. The Workers’ Compensation Statute shifts the presumption of compensability in occupational exposure to diseases, including airborne diseases, when public safety workers are exposed to, or have treated individuals with diseases. See N.J.S.A. 34:15-31.5. Therefore, it is likely to see some compensable COVID-19

workers’ compensation claims, but the overwhelming majority should be denied. It is important to remember that the Petitioner, regardless if he or she is an emergency service worker, has the burden of proving that the injury or illness is caused by and arises out of his or her employment.

In light of the COVID-19 pandemic, many companies are encouraging its employees to work remotely, if possible.

This act of social distancing should act as a preventative measure, and will help decrease the amount of claims for benefits related to COVID-19.

If you would like assistance in responding to specific COVID-19 claims, please contact us at clientservices@jonesjonesllc.com (mailto:clientservices@jonesjonesllc.com) so that we can tailor a specific response strategy to the particular facts in your case.

Filed Under: Blog

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