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For employers, perhaps the most negative aspect about New Jersey Workers’ Compensation Act is the proliferation of what are called “reopener” petitions. These do not exist in many states. The injured worker in New Jersey who receives a permanency award can file within two years of the last date of treatment or payment of indemnity benefits for an increase in disability. One reason employers get frustrated is that it is so easy to file a reopener claim petition in New Jersey even when the injured worker has never requested or received treatment from the date of the award right up to the date the reopener has been filed.
Modification petitions or “reopeners” comprise a large percentage of claim petitions in the Division. Either party can file for modification, but rarely do employers ever file to lower a percentage award. While most small percentage awards are not reopened, most large percentage awards do get reopened. This blog focuses on questions that employers should consider when faced with a reopener petition in determining whether the medical condition described in the prior award is deserving of additional treatment and ultimately an increase in the percentage of disability. Alternatively, is this a case that should be tried to a conclusion or should it be resolved on a Section 20?
We must start with what are known as form reopener interrogatories that are required to be completed by petitioners. The 18 questions on the form reopener interrogatories are helpful. They include questions about medical treatment and hospitalizations since the prior award, subsequent employment, new claim petitions against other employers and a question about new accidents/injuries: “Have you suffered any other accident or injury or occupational condition since the date of your last compensation hearing?”
These are all good questions but they are insufficient. In the opinion of this practitioner, the questions contained in reopener interrogatories are outdated and fail to address some of the most important issues. Let’s consider the case of a 50-year-old man with preexisting osteoarthritis. He sees his co-employee struggling to lift a heavy box and hurries over to assist. In so doing he feels sudden pain in his left knee. A partial tear is diagnosed, surgery ensues, and an award gets entered for 25% of the leg. At the time of the settlement petitioner gives his complaints and testifies that he still enjoys jogging, going to the gym and playing basketball.
Eighteen months later a reopener is filed with no treatment having occurred during those 18 months. The petitioner answers “no” to the question about any new accident or injury since the award. However, the petitioner has had knee pain since the award while working out in LA Fitness where he regularly goes, but the form interrogatories contain no question along those lines. Here is the problem with the question about subsequent “accidents” or “injuries.” If you ask 100 people for the definition of an accident or an injury, you will get 100 different answers. But if you ask whether the petitioner has had pain in his knee during the past 18 months, that is a yes or no question.
Petitioner’s counsel sends a letter to the adjuster requesting a referral back to the former surgeon. Now what? Options include setting up an exam right away, waiting for answers to form interrogatories before doing anything, or declining the request completely, which may prompt a motion for medical and temporary disability benefits. But there is another option: before deciding to set up an exam, defense counsel or the adjuster can ask counsel for petitioner some simple questions:
1. “Has your client been jogging, going to the gym or playing basketball in the past 18 months?” — remember, he testified to doing this at the time of settlement.
2. “When did your client begin to experience pain over the past 18 months and what was he doing when he felt the pain?”
Assume that the employee’s attorney responds that his client has in fact been going to the gym and has occasionally felt pain while working out. Counsel also states that after running sometimes petitioner felt more pain and swelling in his knee but he did not see a doctor. Is this information potentially important? The answer is emphatically yes and the examining doctor must consider it. Would you have gotten this information if you just used form reopener interrogatories. The answer is probably no. The point is that one must ask the right questions to get the right information.
A better interrogatory question than asking for a subjective characterization of whether there was a new accident or new injury would be to ask about the existence of pain in the knee since the award and the connection to any specific activity. There is a difference between a case where the employee says: “every day since the award my pain has never left me” as opposed to “I had 17 good months and then I was in the gym and the old knee pain suddenly returned.”
Practitioners know that if someone has a preexisting knee condition but that condition is legally aggravated (objectively worsened) by a work event, the employer is liable. But that rule works both ways. If someone gets an award for the knee and then post-award the knee condition is aggravated by running or working out in the gym, the employer may no longer be liable. Medical experts must comment on the connection between the non-work activities and the worsening in the knee.
Times have changed in the past 40 or more years since reopener interrogatories were created. Back then there were no gyms in every shopping center and no treadmills and elliptical machines at home. The hot stocks were IBM and GE, not Nike and Peloton. It is a significant omission that the form reopener interrogatories have no questions about gym activities, use of home exercise machines, outdoor sports, etc., and no questions about the existence of new or episodic pain since the prior award. For purposes of both treatment and increased disability, treating and evaluating doctors need to get information on physical activities which the petitioner engaged in since the prior award.
What can employers do when faced with a request for treatment 18 months post-award? Defense counsel can ask petitioner’s counsel for information on what physical activities petitioner has engaged in during the past 18 months. What sports activities has the injured worker engaged in? Could this be a case where the petitioner has been regularly hiking, jogging, riding a peloton or outdoor road bike? If so, that information may be highly important to the doctor. In addition, counsel and the adjuster can ask when the petitioner first felt pain since the award, or was the pain there all along since the time of the award?
Adjusters, employers and defense counsel should resist the temptation to view reopener interrogatories as the only questions that can ever be asked. Frankly, most petitioners’ counsel want to move the case along and get their clients to treating physicians. If the questions are reasonable, they will address them. In the same way, when petitioner’s counsel asks for the personnel file of the petitioner, most employers oblige even though there is no specific rule on this.
New Jersey is a state where the formal discovery is only moderately relevant; therefore informal discovery is critical to engage in. The doctor selected for the medical examination can also go into questions along these lines, but how many doctors understand what a reopener is? To put this in perspective, 18 months is a very long time: there could several hundred visits to the gym during that period of time or a few hundred two mile runs. What role did these activities play, if any, in the worsening of the knee case discussed above?
The lesson in all this is that in reopener cases employers need to focus heavily on the time period between the award and the date of the reopener. Social media can assist in certain cases, and interviews with supervisors can help identify possible outside activities. A new ISO is often pivotal. Unfortunately, the current diagnosis is that New Jersey’s form interrogatories seem rather out of shape and in need of a good workout.
John H. Geaney, Esq., is a Shareholder and Co-Chair 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.