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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.

Is Your Law Firm Cyber Security Compliant?

In 2018, the Department of Financial Services unveiled a comprehensive set of Cyber Security regulations in an effort to curtail growing threat posed to information and financial systems in today’s modern world. This new set of Regulations has significant reach as it not only affects institutions regulated by the Department of Financial Services who house nonpublic information like insurance carriers, but also the law firms those institutions partner with. The Regulations are comprehensive and are meant to provide a framework as to how your company to should maintain best-practices. The Regulations can be broken down into four (4) general areas: (1) Your policy, (2) Your program, (3) Annual Reporting and (4) Third Party Considerations.

  1. Policy

As an insurance carrier in New York, you must have a Cybersecurity Program that is designed to protect the “protect the confidentiality, integrity and availability” of your data. What this means is that your business has a way to identity, assess risks, and has an ability to act on, in a defensive manner, to a known threat. First, you must conduct a risk assessment of your company and in response to that risk assessment, draft a written policies and procedures approved by your Board of Directors or other senior management to address information security, system and network security, and business continuity among other things.

  1. Program

Each insurance carrier must appoint an individual tasked with enforcing their Cybersecurity policy, named the Chief Information Security Officer. This may be a member of your company or a third party, however if there is a third party, you must maintain direction and oversight of their activity to ensure compliance with the Regulations. The Chief Information Security Officer must file a report annually to your company’s senior management on your program and relevant cybersecurity risks.

The Department of Financial Services regulations stop short of outlining required cyber security technical requirements and instead instructs insurance carriers to set their own standards after their risk assessment. This makes compliance with the Regulation hard to clarify, as each carrier will have its own Program tailored to its cyber needs. However, the Regulation does instruct you to consider the following for your Program: annual penetration testing , bi-annual vulnerability assessments, an audit trail designed to detect and respond to threats maintained for five (5) years, written procedures, guidelines and standards that are updated to address new and emerging threats, multifactor authentication, data encryption of nonpublic information, periodic training and monitoring of staff and key personnel, and incident response plan in the event of a breach, and disposal of nonpublic information.

  1. Reporting

As an insurance carrier, you are required to file a report annual with the Superintendent certifying that you are compliant with the new Cybersecurity regulations. The Department of Financial Services reserves the right to audit your company to ensure compliance with the new Regulations. This is why having a written policy and copies of your Risk Assessment, vulnerability testing, and assessment of your law firm is critical. Failure to maintain these records may result in hefty fines levied against your company.

As a covered entity under the regulation, your vendors – of which Jones Jones LLC would be considered – also must comply with the new Cybersecurity Regulations as well. Law firms and vendors are considered “third party service providers” and since they receive non-public information, you must only partner with a law firm who has put into place protective and industry-standard protections. This partnership is critical as in the event of a cyber-threat, the onus is placed on you, the insurance carrier, to ensure and maintain airtight security practices of your law firms. The risk of partnering with a law firm that is not prepared to comply with the Regulations is enormous, and under New York Banking Law could result in fines up to $75,000.00 per day.

What should you do? If you have not already done so, you must audit the security of your law firms to ensure compliance with these Regulations. It is recommended by the Department of Financial Services that you review your law firms’ cyber security practices regarding the following at bare minimum: their access to nonpublic information, whether they have multifactor authentication, how their data is encrypted at rest and in transit, and their notification policy in the event of a breach on behalf of the law firm.

As Jones Jones LLC takes all of its partnerships seriously, we have completely revamped our own cyber security practices to ensure your claims data is not only adequately protected, but also industry-leading.

  • Jones Jones’s cybersecurity infrastructure was modeled after such industry best practices as the NIST Cybersecurity Framework, NIST Special Publication 800-53, and 20 CIS Critical Security Controls.
  • Data in transit is encrypted across our network. Data at rest is encrypted using AES 256 encryption.
  • All Jones Jones emails are configured with TLS encryption.
  • Access to Jones Jones systems require two-factor authentication.
  • Jones Jones has its information systems tested for vulnerabilities on a weekly basis.
  • Jones Jones infrastructure is reviewed and maintained by a Cybersecurity committee.
  • And so much more.

Partnering with a law firm that does not maintain such stringent requirements is a risk in it of itself. Rest assured your partnership with Jones Jones is safe.

New York 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 York workers’ compensation.

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

New York Workers Compensation Fact Sheet 2022 edits

Download Here

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.