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The Honorable Russell Wojtenko, Jr., Director and Chief Judge, issued a Memo effective October 21, 2016 to all workers’ compensation attorneys advising that the administrative rules on motions for medical and temporary disability benefits will be strictly enforced. What this means to employers, carriers, third party administrators and practitioners is that motions for medical and temporary disability benefits must be handled right away and forwarded to counsel immediately. Otherwise respondents will lose motions based solely on failure to meet certain time deadlines noted below.
The Director’s Memo cites N.J.A.C. 12:235-3.2, which says that “a respondent shall file an answer within 21 days of service of the motion or within 30 days after service of the claim petition, whichever is later.”
“The respondent’s exam shall be completed within 30 days of receipt of the motion and the report issued in not more than 35 days from receipt of the motion and shall not delay the start of the hearing of the motion except for good cause shown.”
This is not a new rule. The prior rule was amended in 2002 to state exactly what the Director has quoted above. However, the rule has been seldom enforced since 2002 primarily because it is extremely difficult for respondents to get an exam within 30 days of the filing of the motion and still harder to get a report within 35 days of the filing of the motion. Some doctors will not schedule within 60 days, much less 30 days, and it often takes a doctor 10 to 14 days to issue a report.
The Director’s memo concludes by stating, “The following requirements on motions for medical and temporary disability benefits shall be strictly enforced.” We advise that carriers and third party administrators, when served with motions for medical and temporary disability benefits, must send such motions immediately to defense counsel. An answer must be filed within 21 days, unless the motion comes with the claim petition (in which case the time is extended to 30 days). The time is running from the date the carrier, third party administrator or self-insured receives the motion. If the carrier holds the motion for 10 days without acting on it, then there remain only 11 days to file an answer, 20 days to get the defense exam and only 25 days to obtain the report.
These timelines will be extremely problematic for all respondents statewide because treating and IME doctors can seldom find scheduling slots within a few weeks and then turn around a report in a few days. Because of these somewhat unrealistic timelines established in 2002, many employers will soon lose and pay orders on cases for which there were valid defenses. All employers, carriers, third party administrators and counsel should develop reliable methods to handle motions for medical and temporary disability benefits. A motion for medical and temporary disability benefits should be treated now like a 911 call.
Practitioners should bear in mind that the Director also reminded claimants’ counsel that a valid motion must contain affidavits or certifications in support of the motion. The Memo adds that the motion should include reports of a physician, stating the medical diagnosis and the specific type of diagnostic study, referral to a specialist, or treatment sought. Motions which do not meet these requirements will be rejected. This is less onerous on petitioners and their counsel because a deficient motion can always be refiled later with adequate paperwork. But once an order is entered against respondent, the only route left to respondent is an appeal.
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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.