|
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. |
NYS Workers’ Compensation Medical Marijuana – The Third Department Weighs In
Jones Jones Major Win Alert!
We are excited to announce a major win secured by Jones Jones LLC Associate Lauren Camo. This win showcases:
- Our aggressive approach to denied claims;
- The importance of our developing a timeline for COVID-19 claims; and
- Targeted testimony of the claimant and employer lay witness in order to develop the timeline of COVID-19 exposure, or lack thereof
Attorney Lauren Camo recently litigated an allegation of a COVID-19 work exposure. The case involved a claimant who was employed as a cleaner for a community college. The claimant alleged he became symptomatic on April 15, 2020; and thereafter obtained a positive COVID-19 test four days later.
Upon cross-examination of the claimant, Attorney Camo discovered that the claimant began to feel symptomatic three days prior to his wife, whom he lived with at home. Both the claimant and his wife tested on the same date and both ultimately obtained a positive result. The claimant continued to testify that his supervisor was also positive for COVID-19. However, Attorney Camo was able to secure a lay witness who testified that the claimant’s supervisor tested positive prior to the 14 day period that the claimant developed symptoms. In fact, the employer witness testified that the claimant last worked with this supervisor on March 20, 2020, well outside the widely accepted incubation period for COVID-19.
Further, the Jones Jones LLC team was able to elicit concessions from the claimant’s treating doctor that there was no history of work exposure so therefore any exposure would have to occur during the fourteen days prior to claimant’s development of symptoms. Due to the concessions elicited during lay and medical testimony, as well as the focus on details and dates of COVID-19 exposure and testing, Attorney Camo was able to lay out a timeline to the Law Judge that led to a finding that the claim must be disallowed in its entirety. This successful litigation was secured by aggressive and thoughtful preparation of targeted cross-examination and review of facts and timeline.
Please reach out to Jones Jones LLC today at clientservices@jonesjonesllc.
Proposed Legislation to Extend Compensation Coverage to Parking Areas
There has been recent confusion surrounding compensation cases which involve employees injuring themselves in parking lots, the main issue being whether an employee’s work period includes the travel time between the parking lot and the place of employment. According to the New Jersey “premises rule” employment on this travel ends “when the employee leaves the employer’s place of employment excluding areas not under the control of the employer.” N.J.S.A 34:15-36. Case law has, therefore, turned on whether an employer “owns or controls” the parking area so as to make the injury compensable.
It is no surprise that the uncertainty around the law came within the purview of the New Jersey legislation. In December 2020, New Jersey legislation has proposed a new bill (S.B. 771) amending the premises rule to extend compensation coverage to parking areas provided or designated by the employer. Under the proposed legislation, if an employer “provides or designates” a parking space for an employee, then employment terminates “when the employee leaves the parking area at the end of the work period.” This could result in a massive expansion in potential liability now that the entire trip to the parking space is covered and perhaps even the employees immediate exiting the parking space as well. Further, the bill provides that if the employer “provides or designates” a parking area that is separate from the place of employment, employees will now be covered while they travel to and from the parking area and the employer’s place of employment.
Prior to proposed Bill S711, the Court held that in cases in which an employer “directs” or “compels” an employee to park in a particular location, such conduct will fall under the ambit of the premises rule. Livingstone V. Abraham & Straus, Inc., 111 N.J. 89 (1988). In cases where the employer has been held to not own the parking lot or the street where the employee was injured, the court looked instead to factors such whether the employer created an additional hazard for employees or whether the employers accrued a business benefit. Hersh v. County of Morris, 217 N.J. 236 (2014). In the most recent case on the topic, Manuel v. RWJ Barnabas Health, the Court held that an employee’s walk to a hospital parking lot was not compensable. No. A-0270-18T1 (App. Div. Oct. 16, 2019). In Manuel, the Court reasoned that the claim was not compensable because the respondent did not own the public street or the parking lot, the respondent did not direct the employee where to park, and the claimant could have opted to use the provided shuttle bus. Supra.
If this new bill is passed, it is possible that the outcome in Manuel, would be changed. Since the respondent rented the parking spots for use of their employees, the claimant’s walk would have been compensable, as they would be deemed to have “provided” parking spaces.
In addition, with the rise in communal workspaces it is likely that parking lots will be shared between many different employers possibly making these claims even more complicated. However, employers can reduce the effects of the new bill by installing parking lot surveillance or providing transportation to and from work and the parking lot.
As a result of this new bill passing, each injury sustained in a parking lot will be assessed differently. We will be monitoring the proposed legislation on Legiscan to track the passing of the bill. As always, Jones Jones stands at the ready to ensure your claims are adequately represented in light of this possible law change. “Legal Defense Refreshed” is not just an empty slogan; we work hard every day to stay on the cutting edge of workers’ compensation defense.
To schedule a review of your claims that could be impacted by this new bill, contact us at clientservices@jonesjonesllc.com.
Jones Jones Major Win Alert!
We are excited to announce a major win secured by Jones Jones LLC Associate Dana Sabghir. This win showcases:
- Our innovative approach to denied claims;
- The importance of our focused witness preparation;
- The impact of securing subpoenaed medical records and thoroughly reviewing them for use in litigation; and
- Targeted testimony of the claimant with use of medical records to develop a clear timeline for a path towards disallowance of numerous body parts and conditions.
This airline claim involved a claimant’s allergic reaction, which had been established for contact dermatitis. The claimant later requested lost time benefits dating back to 2017, and raised numerous neurological and autoimmune conditions. Though the Law Judge found prima facie medical evidence, Attorney Sabghir believed that the lost time and additional conditions could not reasonably be related to the contact dermatitis, and so she began her skillful defense. First, she cross-examined the claimant and presented our expert witnesses, who had been extensively prepared for testimony. The claimant was asked detailed questions about her complaints, the timeline of her alleged symptoms, her prior treatment, her family history, the alleged exposure that she was relating all of these conditions to, her lost time, etc. Based on her testimony, and her concessions regarding prior treatment, Attorney Sabghir requested a HIPAA and a list of all treating providers.
Next, the Jones Jones LLC subpoena team subpoenaed thousands of pages of medical records. In those records, we determined that the claimant had a family history of autoimmune disorders, history of allergies, among other medical findings. We also learned that the claimant had trained in a different field, and obtained a professional certificate, just before the alleged allergic reaction. The Jones Jones LLC team sent these voluminous records to our Independent Medical Examiner for review, and the doctor conducted a thorough physical examination. Ultimately, the IME found no causal relationship for these additional sites, and depositions were directed of the claimant’s treating doctors. We focused our deposition questions on very specific details that we had learned in the subpoenaed records. The doctors conceded that they were not aware of the prior complaints and treatment, conceded that they did not know how the accident of record could have caused her neurological and autoimmune conditions, and conceded that they could not relate these conditions to the accident of record within a reasonable degree of medical certainty.
Lastly, Attorney Sabghir requested re-cross-examination of the claimant based on her review of the records. She noted the various contradictions between the claimant’s initial testimony, the history related in the medical records, and her latest testimony. The Law Judge reviewed the extensive medical record, the lay testimony, the medical testimony, and our arguments, and ultimately disallowed all of the additional sites claimed, and properly found that the claimant had no compensable lost time with no entitlement to awards. Our success was a result of the extensive concessions Attorney Sabghir was able to obtain from the claimant and her doctors. This litigation plan exemplifies the Jones Jones LLC signature determination and focus needed to successfully litigate the most complicated of claims.
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