NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.
Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.
Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.
Those who do not remember the past are doomed to repeat it, wrote George Santayana. In workers’ compensation, those who do not know the past are doomed to pay for it. Winning in workers’ compensation in almost every state comes down to developing past information about injuries, car accidents, chiropractic care, sports activities, second jobs, pain management and the like. But New Jersey poses one overwhelming problem for employers and carriers: there is next to no discovery sanctioned by the rules of the Division. Once litigation occurs through the filing of a claim petition, it is generally too late for the employer to get the information it needs on causation and credits for prior disability. Claimant’s counsel will only provide what the rules require, which is very little.
Here is what an employer does not get in litigation in the New Jersey’s workers’ compensation system:
1. Depositions (except in exceptional cases)
2. Interrogatories (except in occupational claims with pre-printed questions only)
3. The right to demand prior family doctor records
4. The right to demand prior chiropractic history
So how can an employer win or reduce costs if a claimant does not have to reveal anything at all about one’s past medical history during the course of litigation? This is the essential question that all employers, carriers and third party administrators must answer. After all, only a relatively small portion of accidents are clear-cut and witnessed. Many are not witnessed and often involve mechanisms of injury that do not seem to correlate with the physical complaints. Without getting a detailed past medical history, employers time and again pay for prior non-work or age-related health conditions masquerading as workers’ compensation injuries.
The solution to this dilemma for employers in New Jersey and most states is to get detailed information about past history of injuries, past treatment, past pain management, prior hobbies and car accidents at the outset of the claim before the case goes to litigation. This can be accomplished by detailed incident or accident report forms filled out by the employee, or by recorded statements taken by insurance professionals.
When the employer, third party administrator or carrier refers the case to medical professionals for treatment, the medical office should also take its own detailed past medical history, and that information needs to be included in the medical reports that go to the third party administrator or carrier. Causation is the overriding issue in most workers’ compensation cases because so many claimants have a prior history of back, neck, shoulder, knee and other conditions. Occupational clinics which do not obtain or provide to the employer/carrier this sort of detailed past medical history are costing employers enormous sums of money. Unfortunately, employers do not get the history forms that most of the occupational clinics use so they do not realize until too late how inadequate the past medical history really is in some of our occupational centers.
When it comes to litigation, less history is more beneficial for the injured worker. The less past medical information provided to the employer or carrier, the better for the claimant because all present medical conditions can then be ascribed to the work injury, whether or not the condition is really work related or just age related. For the employer the opposite is true: the more past medical history is obtained, the less the employer will ultimately pay in workers’ compensation costs. New Jersey allows a credit underN.J.S.A. 34:15-12(d) for previous disability. But that presupposes that the employer can get the information about previous disability in the first place.
For example, if the injured employee had a prior herniated disc diagnosed in 2001 from a car accident, and now has a new injury to the same level, the credit for the 2001 condition could save the employer $25,000 to $30,000 – if the employer discovers it to begin with. The best time to get that information is either by reviewing prior post-offer medical examinations at the time or hire or by reviewing initial accident history forms filled out by the employee at the time of the alleged work injury. As mentioned above, when the case goes to litigation, the rules are not favorable to employers in terms of prior discovery. There no bills pending in the Legislature to provide more discovery to employers. Meanwhile, rates are rising considerably with an award of 35% amounting to well over $85,000 at 2016 rates. Just ten years ago, the same percentage award was worth $67,000. The only thing that has not changed in this 10-year period is that employers have next to no discovery in the formal litigation process.
So self-help remains the best solution for employers. Frankly, the choice of physicians and clinics that regularly obtain good past medical information is the single most important decision that a third party administrator or carrier can make. You need physicians who are skilled and qualified, but you also need physicians who understand that past history bears directly on causation. There are some physicians in the state who take a thorough past medical history and some occupational clinics as well, but they are in the minority. Employers need to confer with counsel to identify those medical professionals who will ask about prior car accidents, prior chiropractic treatment, prior sports injuries, pain management and second jobs. Otherwise when the case gets to court, the Judge of Compensation will have very little information to help assess causation. It is true that running an ISO is helpful, but practitioners know that the ISO only captures reported insurance claims. It will not capture the injury in the gym, the long-term back and neck problems treated by chiropractors, the secondary employment which may be linked to the physical symptomatology, and the history of prior pain medications.
If employers triage their workers’ compensation cases in the first 48 hours, and work on getting detailed past medical and recreational information at the outset, the savings will be enormous because the non-work and prior conditions will not be passed through the workers’ compensation system.
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 firstname.lastname@example.org.