Here are some of the important questions that defense counsels receive in the handling of claims against public employers:
Question: Does New Jersey law permit employers to direct medical care?
Answer: The right to direct medical care is the cornerstone of the New Jersey Workers’ Compensation Act, but this right does have limits. In an accepted case the employer can direct the injured worker to a physician of its choice. If the employee refuses to treat with the physician chosen by the employer, then workers’ compensation benefits cease. But if the employer denies the claim, the employee can choose his or her physician and then later try to persuade the judge to order the employer to pay the bills.
The reason that the right to select treating physicians is pivotal is that few doctors understand workers’ compensation. Those who do understand the law ask detailed past medical history questions and get information about second jobs, sports and hobbies – all of which help the doctor reach an opinion on whether the medical diagnosis is or is not related to the work injury. Doctors who do not get detailed medical histories tend to causally relate every medical diagnosis to work, costing employers a great deal of money.
Question: What happens when an employee fails to attend medical appointments?
Answer: The failure to cooperate with medical appointments and physical therapy allows the employer to stop all workers’ compensation benefits. No one can make an employee go to PT or a doctor’s appointment, but the consequence of missing exams is that lost time benefits and medical benefits will be stopped under N.J.S.A. 34: 15-19. Of course, employers and claims professionals understand that there are often good reasons for missed appointments, such as illness or death of a family member, and benefits will not be stopped in those situations.
Question: Can an employer require an employee to attend PT after work hours?
Answer: We all know that it is disruptive when an employee leaves work in the middle of the workday to attend a PT session. The New Jersey law does not mention whether an employer can require PT after work hours, assuming the PT center has late hours. There is also no published decision on this issue. Employers make the argument that they have the right to direct medical control and the right to require an examination. Setting the appointment time is part of that right. N.J.S.A 34:15-19 states that an employer can require a medical examination at any reasonable time and place in the State of New Jersey as often as may be reasonably requested. While this statute does not mention PT sessions, it seems logical that PT would be treated the same as a medical examination.
Question: Can an employee work a second job while out of work for the work injury and getting paid?
Answer: The answer is generally no. Consider a DPW worker who injures his shoulder and is unable to work according to the treating physician. The municipality will pay either full salary (if the CBA provides it) or 70% of wages for lost time benefit subject to the annual maximum rate. Payments for lost wages are called temporary disability benefits. The statute provides that temporary disability benefits end when an employee can return to work. It does not say just the principal job but work generally. So if the employee is working seven hours a day at a WAWA as a cashier while receiving temporary disability benefits and out of work for the municipality, the judge will consider this improper and perhaps even fraudulent. The judge may not consider it improper if the employee’s job is a part-time realtor and just shows a house once while being out of work. But generally speaking, working a second job is not permitted while receiving temporary disability benefits.
Question: Why can employees who have returned to work doing their same job duties receive permanent partial disability awards?
Answer: After medical benefits and temporary disability benefits have been paid, an employee may retain an attorney to file a claim petition to receive partial permanent disability benefits. Because this benefit is based on loss of function in a bodily part, it does not matter if the employee has returned to work and is doing the same job. Consider a situation where a municipal employee may have had rotator cuff surgery in the shoulder and may be back to his or her job at the municipality. To obtain a permanency award, the employee will have to submit to a medical examination for the employee’s attorney and one for the employer’s attorney and the judge will review these two reports.
What does the judge care about? In the above example, if the judge believes that the work injury has diminished the overall function of the shoulder, the judge will recommend an award for a certain percentage after reviewing both independent medical examinations. If the employee’s shoulder was 100% before the accident and is now 75%, then the employee gets an award commensurate with the 25% loss of function according to the rate chart in place for the year of injury. The judge considers any impact which the injury has had in the ordinary pursuits of life, including hobbies, sports activities, and chores around the house. The judge will also consider the impact on work activities, but usually injured workers minimize complaints about their ability to work. To get a permanency award, it is not required that the employee prove a diminishment in working ability.
Question: Is there anything the municipality can do to reduce the cost of workers’ compensation claims after an injury occurs?
Answer: Yes, there is! The key is providing information to the claims adjuster and defense attorney along the following lines:
Let the adjuster know if the employee has a past medical history that could be relevant. Did the employee always have a limp since coming to work? If the claim is about the neck or back, and the employee has been complaining about the back for years and seeing a chiropractor, let the claims adjuster know.
Inform the adjuster about significant non-work activities that the employee engages in, such as second jobs or vigorous hobbies. This will help if the claims adjuster decides to assign surveillance in the case. If the employee has a shoulder or spinal injury and does a lot of weightlifting at a nearby gym, let the claims adjuster know this information. Success in doing surveillance often depends on leads provided by the supervisor or municipal managers.
Call the adjuster about any non-work lawsuits or car accidents that the employee may have filed in recent years. Those records may significantly reduce an award.
In the end, it is certainly true that information leads to cost savings. The workers’ compensation system in New Jersey has a major flaw: the employee does not have to volunteer much information because there are no depositions and only limited use of interrogatories in workers’ compensation cases. The claims team and the defense attorney only know what the employer has advised them and only the information that medical doctors have included in their reports. The more communication between the municipality and the claims team, the better the case outcomes.