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

07.17.2021

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.

Jones Jones LLC Major Win Alert: SLUs

06.15.2021

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

The aggressive approach needed on occupational disease claims that are filed after a regular retirement has been taken by a claimant;
The need for a knowledgeable and aggressive litigation plan on potential high dollar schedule loss of use claims; and
The importance of bringing to the Board’s attention that the burden of demonstrating a link between an alleged condition and distinctive feature of employment is on solely on the claimant.

Attorney Samantha Sokoloff recently litigated a New York State workers’ compensation claim involving an retired public transit worker. This particular claimant had worked with a transit authority for almost 30 years in a somewhat physically demanding job. After the claimant took a regular retirement, he then proceeded to file a workers’ compensation claim alleging occupational disease to the legs, ankles, and feet.

With no witness available, Attorney Sokoloff was able to execute a stellar cross-examination of the claimant. With this testimony, she was able to highlight to the Law Judge that the claimant had not lost any time from work prior to his retirement due to any pain or injury to any of the alleged body parts. She was also able to have the claimant concede that he had not seen a doctor about these alleged conditions until after his regular retirement began and that he had a choice to take a disability type of retirement but declined to go that route. Attorney Sokoloff asked that claimant whether he had ever discussed the alleged physical injuries with his primary physician; to which he said he had not. Finally, the claimant was unable to articulate as to what his job duties with his employer was and how he was unable to perform them anymore.

Upon summations, Attorney Sokoloff argued to the Law Judge that the claimant had failed to demonstrate a recognizable link between his condition and a distinctive feature of his employment. Additionally, the testimony of the claimant’s treating doctor was also highlighted during summations. The doctor had failed to know any specifics about the claimant’s work history or medical treatment history. The Law Judge disallowed the claim entirely based upon the winning litigation strategy of Attorney Sokoloff.

This is an important win to consider as there has been an increasing trend within the workers’ compensation system of retirees seeking numerous and high value schedule loss of use awards for occupational diseases. Many of these claims involve no treatment nor notice of any such injury or condition until after the claimant has successfully retired from employment. Additionally, many of these claims involve a number of body parts that are amendable to a schedule loss of use finding for permanency. This could equate to a large lump sum award to the claimant post retirement when there is simply a lack of evidence to support any such claim up until their retirement is confirmed. Due to the high value of these potential claims, it is important to defend post-retiree occupational disease claims with an aggressive approach. The attorneys of Jones Jones LLC are prepared to navigate these retirement and occupational disease claims with you every step of the way. The same aggressive and detailed approach that Attorney Sokoloff applied on this case will be applied to your caseload as well.

Jones Jones LLC Major Win Alert: Construction Litigation

04.26.2021

We are excited to announce a major win secured by Jones Jones LLC Associate Ian Leaderman. This win showcases:

The aggressive approach needed on construction claims involving allegations of injury to many body parts and medical conditions;
The success that results from a detailed review of on-site and emergency room records; and
The importance of bringing to the law judge’s attention any change in claimant’s account of the mechanism of injury.

Attorney Ian Leaderman recently litigated a claim involving an injured employee of a construction company. The claimant was initially injured due to striking his face while at work on a construction site. The claim was established for the head and left eye only. Approximately, one month later after the establishment of his claim, the claimant alleged that in addition to the accepted and established body parts, he also injured his neck, back, bilateral knees, bilateral shoulders, as well as developed PTSD.

Attempting to establish additional body parts is an activity that defense carriers and attorneys often observe; especially when it comes to claims involving construction incidents. Why do we see this pattern of additional body parts repeatedly be raised on construction claims? Well, very often, the claimant not only has a workers’ compensation claim, but he or she may also have a general liability suit. This lawsuit enables the claimant to seek large monetary payouts by way of settlement or court decision. Expanding the workers’ compensation injuries on construction claims to as many body parts and conditions as possible may assist in this other lawsuit. Therefore, it is important to defend workers’ compensation construction claims with an aggressive approach to limit exposure on both the workers’ compensation claim and the general liability lawsuit.

Attorney Leaderman undertook the necessary aggressive approach on this case. He was able to gather and review the construction company’s on-site medical report and the emergency room records from the day of the accident. Upon a thorough review of these records, it became evident that the claimant had put forth two different version of the injury event. The initial emergency room records and on-site accident report detailed a strike to the face with injury to head and left eye. Subsequent medical reports began to list all of the additional body parts the claimant was attempting to amend the claim to include. Most interestingly, these reports also detailed a completely different mechanism of injury—involving an item falling from a ceiling. Attorney Leaderman was able to highlight these discrepancies to the law judge, which ultimately culminated in all of the additional body parts and conditions to be disallowed entirely. Jones Jones LLC is happy to guide you through the intricacies of construction litigation and apply this same detailed litigation approach to your claims.

NYS Workers’ Compensation Medical Marijuana – The Third Department Weighs In

03.16.2021

The Third Department recently held in the Matter of Quigley v. Village of E. Aurora, 2021 N.Y. App. Div. LEXIS 1223 (3d Dept. Feb 25, 2021) that carriers are responsible for paying for, and reimbursing, a claimant’s medical marijuana use, regardless of federal law.

The Third Department Decision however noted that the Workers’ Compensation Law still requires that treatment be rendered in accordance with the Medical Treatment Guidelines and that the claimant would still need a valid prescription.

Furthermore, as medical marijuana is not specifically covered under the Guidelines, a variance request would be needed and the burden of proof to establish that a variance is appropriate and medically necessary is a burden that must be met by the claimant’s doctor. Carriers and self-insured employers can therefore object to medical marijuana requests on the basis that the doctor has not met his burden of proof or by obtaining a conflicting medical report (i.e. IME or record review).

If you have any questions or would like to discuss implications of this case law further, please do not hesitate in contacting us at clientservices@jonesjonesllc.com.

Appellate Division, 2nd Department Addresses Coverage Exhaustion in No-Fault Claims, Or Does It?

02.26.2021

On February 24, 2021, the Appellate Division, Second Department issued a much anticipated decision that is likely to leave many interested parties, especially insurers, unsatisfied. The decision, Alleviation Medical Svcs. v. Allstate Ins. Co., 2021 N.Y. Slip Op. 08159 (App. Div., 2^nd Dept. 2/24/21), was expected to clarify questions as to when No-Fault coverage is exhausted and, insurers hoped, resolve a split between the First and Second Departments on the issue. The specific issue that garnered so much attention in this case is whether an insurer can be compelled to pay in excess of its policy limits if, after coverage is exhausted, a court finds that claims that were previously denied should have been paid. The decision failed to directly address that issue and was instead decided based on the inadmissibility of the moving defendant’s evidence. As a result, the coverage exhaustion issue remains up in the air and will likely be the subject of further litigation for a long time to come.

New York’s Insurance Law requires every automobile liability insurance policy to include $50,000 in coverage for Mandatory Personal Injury Protection, commonly referred to as “No-Fault” coverage. No-Fault coverage provides for reimbursement of an eligible injured party’s basic economic loss, which consists of actual medical expenses, lost wages, and certain other necessary expenses. As a result, No-Fault benefits are rarely paid in one lump sum. Rather, claims for individual medical bills, lost wages, and expenses are submitted over time by the injured party and/or medical providers to whom the injured party has assigned their benefits and insurers are required to pay or deny each claim promptly upon receipt. Payments are to be made in the order in which the expenses were incurred, provided the claim is submitted to the insurer prior to coverage being exhausted. But what happens when a claim is denied, coverage is subsequently exhausted, and then a court determines that the denial was late, defective, or otherwise improper? For example, an insurer denies a bill for surgery based on lack of medical necessity but continues to pay subsequent bills for conservative treatment such as physical therapy until reaching the $50,000 coverage limit. After coverage is exhausted, the surgeon files a lawsuit seeking reimbursement and the court ultimately finds that the surgery was medically necessary. Is the insurer required to pay the surgery bill.

Since 2017, the First and Second Departments have been split on this issue. In 2015, the Appellate Term, First Department decided Harmonic Phys. Therapy, P.C. v. Praetorian Ins. Co., 47 Misc.3d 137(A) (App. Term, 1^st Dept. 2015), which held that “defendant was not precluded by 11 NYCRR 65-3.15 from paying other providers’ legitimate claims subsequent to the denial of plaintiff’s claims. Adopting plaintiff’s position, which would require defendant to delay payment on uncontested claims, or, as here, on binding arbitration awards – pending resolution of plaintiff’s disputed claim – ‘runs counter to the no-fault regulatory scheme, which is designed to promote prompt payment of legitimate claims’.” In other words, once a claim is timely denied, the insurer can continue paying undisputed claims without the fear that subsequent adjudication of the disputed claim will force it to issue payment in excess of its policy limits. However, in 2017, the Appellate Term, Second Department decided Alleviation Medical Svcs. v. Allstate Ins. Co., 55 Misc.3d 44 (App. Term, 2^nd Dept. 2017), rejecting the First Department’s reasoning in Harmonic and effectively finding that insurers deny claims at their own risk. If the denial is found to be improper and coverage was not yet exhausted when the denial was issued payment must be made even if it results in payment in excess of the policy limit. When this decision was appealed to the Appellate Division, No-Fault practitioners eagerly awaited the court’s decision with the hope that it would clarify the issue and, in the case of insurers, with the hope that the Appellate Division, Second Department would adopt the interpretation set out by the First Department in Harmonic. Unfortunately, the Second Department’s decision fails to squarely address the question of coverage exhaustion and does not resolve the split between the First Department and Second Department. Although the relevant regulations and case law are discussed, the court’s decision ultimately turns on the insufficiency of the defendant’s evidence in support of its summary judgment motion. Specifically, the court held that the testimony of the defendant’s witness was hearsay and therefore failed to establish whether the disputed claims were denied and, if so, whether they were denied timely, thereby creating a question of fact requiring the denial of the summary judgment motion.

To complicate matters further, arbitrators are not bound to follow the precedent set by either the First or Second Department. In general, arbitrators are free to apply the law as they see fit, provided their decision has a rational basis. There is case law stating that arbitrators lack the authority to issue an award in excess of the insurer’s policy limits, but while some arbitrators interpret this as an absolute bar to issuing an award that exceeds the policy limits, regardless of when coverage was exhausted, the propriety of the claims handling, or the order in which payments were issued, others adopt the Second Department’s approach and find that coverage exhaustion does not apply unless coverage was exhausted at the time payment of the claim or denial of the claim was required. Whichever interpretation the arbitrator espouses, the courts are unlikely to overturn an arbitrator’s award since both approaches have a rational basis and can be supported by either Harmonic or Alleviation. As a result, virtually identical cases could produce vastly different results depending on whether the case falls under the First Department, Second Department, arbitration, and even depending on the individual arbitrator assigned to the case.

While all involved in the No-Fault industry must find the Appellate Division’s decision in Alleviation anti-climactic, there is no question that it’s a victory for claimants and medical providers. Although this issue will likely find its way back to the Appellate Division, in the meantime the lower courts in the Second Department (Kings, Queens, Richmond, Nassau, and Suffolk counties) will continue to follow the Appellate Term’s decision in Alleviation and the threat of being compelled to issue payment in excess of the policy limits will make it very difficult for insurance companies to set premiums on their auto policies. While the First Department suggested in Harmonic that insurers in this situation might begin to delay payment of uncontested claims pending the adjudication of disputed claims, it’s questionable whether the No-Fault regulations allow insurers to delay claims on that basis. Rather, insurers would be well advised to carefully consider the basis for their denials, ensure that their denials are timely and proper, and avoid relying solely on coverage exhaustion as a basis for denial whenever possible.