In New Jersey the employer has the right to direct and control medical care. However, there are limited circumstances where an employer can lose that right to control - specifically, when the employer has failed to provide "reasonable and necessary" curative treatment to a claimant. What usually happens is that an authorized treating provicder requests authorization to perform a specific treatment (such as surgery) and authorization is withheld or delayed, often for good reason.

Under such circumstances, the Rules of the Division of Workers’ Compensation allow an injured employee to file a "Motion for Temporary and Medical Benefits” (AKA, "Motion for Med & Temp") to compel the employer/respondent to provide specific medical treatment or temporary disability wage compensation which was denied.

The respondent has 21 days to file a responsive pleading (or 30 days, if the Motion for Med & Temp is filed at the same time as the Claim Petition). If the respondent wishes to present an IME report in opposition to the Motion for Med & Temp (which is usually the case), the doctor’s examination must be conducted within 30 days of the receipt of the filed motion and the report issued within 35 days.

Disputes about whether specific treatments are "necessary" often require testimony - essentially a "mini-trial" within the litigation. First the claimant testifies, and then the treating doctor (who is seeking to provide some specific treatment to the claimant) testifies, and then the employer's IME doctor testifies. Litigating a motion for Med & Temp can be more costly then just the litigation expense: if a petitioner prevails in their motion, claimant's counsel is due a fee (up to 20% of all the treatment provided pursuant to the motion). It goes without saying that the potential for an attorneys' fee often drives the filing of such motions.

Most of the time such disputes can be resolved informally between the parties. If not, a filed motion will be conferenced in chambers with the presiding judge. If the parties can reach an agreement as to the treatment course, a consent order can be issued resolving the matter.

Sometimes when an agreement can not be reached, the Judge or either party will recommend that a third doctors opinion be obtained - to act as an effective "tie-breaker."

Recent case: Dispute about the "tie-breaker's role."

In a recent case (decided July 27, 2011) the Appellate Panel looked at a very interesting issue: absent the clear consent of the parties to be bound to the opinion of the "tie-breaker", can a judge of compensation "appoint" a court-selected doctor to decide the medical issue?

In the new case, the judge of compensation selected and appointed a physician to perform a physical examination, review the relevant medical records, and provide an opinion as to whether a specific medical treatment (in this case, surgery) was necessary. In their subsequent appellate briefs one side stated that it was agreed by all counsel in chambers that, in light of the conflicting information regarding causation, the court-appointed physician would serve as the "tie-breaker," and that his opinion would be dispositive of the issue. The other side took a contrary position, contending that the court-appointed evaluation and report would be "non-binding."

In other words, on appeal, the parties disputed that they had consented to the appointment of the "tie breaker" doctor and disagreed over whether they were to be bound by the findings of the selected doctor.

The hearing transcript was silent: there was no mention by any counsel or the court of an off-the-record agreement as to the effect of the "tie-breakers's" evaluation and report.

The appellate panel ruled that the workers' compensation judge correctly exercised her discretion by basing her ruling on the report of her appointed "tie-breaker" in conjunction with other competent evidence in the record.

Practical Tips for counsel:

Resolving medical disputes in a cost-effective manner is always a goal - but in this case the appointment of the "tie-breaker" without a clear statement on the record as to the effect of that appointment - whether or not the parties would be bound by the opinion of the new physician - should not be allowed. If a consent order is entered, the employer's counsel should clearly mark the appointment of the new reviewing physician as "without prejudice" on the consent order itself to avoid ambiguity and preserve all defenses.

Case: Thompson v. Quality Et al., 2011 WL 3107767, Docket No. A-1177-10T1 (NJ App. Div.) decided July 27, 2011.

Forensic Investigator Gary Veeder specialized in trace fiber evidence for the New York State Police Forensic Investigation Center. His findings were relied upon by prosecutors and juries in sending people to jail. Unfortunately, a state investigation found that in nearly 1/3rd of all the cases Veeder worked on there were "serious problems" with the evidence provided by Veeder.

A very public scandal erupted following an investigation ("Troopergate" and "Dirty Tricks Scandal") when it was learned that Veeder

"routinely failed to conduct a required test when examining fiber evidence, then falsely indicated in case records that he had performed the test,"

according to the audit of his practices. It appears that Veeder had no knowledge of the tests he was supposed to be conducting, and could not even properly operate a microscope.

A lot of people may have gone to jail because of Veeder's fake evidence.

Veeder first retired and then 15 days later committed suicide by hanging himself in his garage.

His widow claimed that his death was caused by work-related stress and filed for workers' compensation benefits.

Dependency Benefits in New York

Under the New York Workers' Compensation Law, if a worker dies from a compensable injury, the surviving spouse would be entitled to weekly cash benefits. The amount is equal to two-thirds of the deceased worker's average weekly wage for the year before the accident. The weekly compensation may not exceed the weekly maximum, despite the number of dependents.

Suicide

Intentional self-injury is not compensable under the New York Workers' Compensation law. Self-injury or stress related to a negative personnel action (discipline, termination, etc.) is not compensable. However, a line of cases has developed since 1991 finding some suicides compensable. For example, a suicide may be found compensable where:

• There was a work-related injury which caused insanity, derangement, or mental deterioration;
• A depressive condition causally related to the employment (presume causal connection between work and mental illness);
• Work-related stress contributed to a depressive illness (which may have been pre-existent in nature and in which suicidal tendencies were a feature).

See Miller v. Int’l Bro. Of Elec. Workers Local 631, 654 N.Y.S.2d 460 (3d Dep’t 1997).

The widow's claim was denied, on the basis that the stress was the result of personnel actions, which are excluded from workers' compensation eligibility.

The case was appealed and the decision to deny benefits was reversed and the case sent back to the Workers' Compensation Board for reconsideration.

Decision on appeal

The reversal was based upon the fact that at the time of Veeder's suicide, no personnel actions had been implemented. The Appellate court stated that "the unrefuted psychiatric evidence contained in the record, as well as the suicide letters, make clear that decedent's suicide was predominantly the product of the depression and stress he experienced from the employer's inquiry into the inconsistencies in his fiber analysis tests." The state was investigating the situation; they had uncovered problems in Veeder's work, but they were on a narrowly defined "fact finding" mission. No action had been taken against Veeder: he was not suspended or demoted or disciplined in any manner. Thus the stress was purely the result of the investigation, not of any personnel action.

In other words, had the employer simply announced to Veeder that the investigation was the initial phase of a disciplinary process, he would probably not have been eligible for workers comp. The only facts that count: he was under enormous work-related stress (of his own making) and he killed himself as a direct result of the work-related situation.

Based on the decision in the appeal, it appears that Veeder's widow will be eligible for burial and indemnity benefits.

Case: Veeder v. New York State Police, 511128 (N.Y. App. Div decided July 14, 2011).

in a recent case (decided June 20, 2011) the claimant worked for a long time in foreign combat environments. He then took a "safer" job working on the United States Army Kwajalein Atoll in the South Pacific. In 2008 he sustained a neck injury and was admittedly entitled to medical and lost time (indemnity) benefits. The administrative law judge (“ALJ”) had to determine the average weekly wage. The ALJ determined that Claimant’s rate of pay at the time of his injury on the Atoll, a non-hostile environment, would form the basis of his wage calculation under 33 U.S.C. § 910. The claimant appealed, arguing he had earned more when working in more dangerous environments previously.

The Benefits Review Board (“BRB”) upheld the ALJ’s average weekly wage calculation, finding that because the Claimant’s pre-Atoll jobs were performed under different conditions, they would not form the basis for calculating his current wages.

Interestingly, this case is the exact opposite of the typical war zone cases, where a claimant is working in a high-danger job, often at a premium for any hazardous duty, and often for a short time before the disabling accident occurs - in which case the claimant gets the benefit of the higher wages (even if only briefly earned) in establishing his wage rate for the purposes of compensation.

Defining Wages.

The LHWCA defines the term "wages" as the money rate at which the service rendered by an employee is compensated by an employer under the contract of hiring in force at the time of the injury, including the reasonable value of any advantage which is received from the employer and included for purposes of any withholding of tax under subtitle c of the Internal Revenue Code of 1954 (relating to employment taxes). The term "wages" does not include fringe benefits, including (but not limited to) employer payments for or contributions to a retirement, pension, health and welfare, life insurance, training, social security or other employee or dependent benefit plan for the employee's or dependent's benefit, or any other employee's dependent entitlement. 33 U.S.C. § 902(13). This definition does include housing and meals in the calculation of a claimant's wages provided that they were not fringe benefits except in the Ninth Circuit, which holds that the the IRS criteria for deciding whether non-monetary compensation counts as wages. (For more on the definition of "wages" see Chapter 8 of my book, Longshore and Harbor Workers' Compensation Law, 2011 edition.)

Calculating Wages.

In the case where the claimant worked substantially the same employment as the employment he was engaged in at the time of the injury, whether for the insured or another employer, for most of the year the Act provides:

. . . his average annual earnings shall consist of three hundred times the average daily wage or salary for a six-day worker and two hundred and sixty times the average daily wage or salary for a five-day worker, which he shall have earned in such employment during the days when so employed. 33 U.S.C. § 910(a).

Making this determination requires knowledge of whether the claimant was six- or five-day worker. Next, a wage statement should be obtained, with daily and weekly wages if available.
If the claimant did not work in the employment or a similar employment for “substantially the whole part of the year” then his wages will be based on a co-employee of “the same class working the whole of such immediately preceding year in such employment in the same or neighboring place” using the same 260- or 300-day multiples. 33 U.S.C. § 910 (b).

If neither of these metrics fit the fact situation (for example, a new hire working on a new project without a similar project in a neighboring locale) then the wages will be based on the previous earning of the claimant, the reasonable value of the services provided if the claimant was engaged in self-employment, and the wage experience of similar workers.

Wages in Traumatics versus Occupationals

The LHWCA calculates the claimant's average weekly wage differently based on the type of injury sustained.

Traumatic Cases

In a trauma case the employee's average weekly wage "at the time of the injury" is used to compute the claimant's compensation. LeBlanc v. Cooper/T. Smith Stevedoring, Inc., 130 F.3d 157 (5th Cir. 1997). This is relatively easy to do. In a traumatic case where the injury is to the low back, neck, head, shoulder, or psyche, the AWW is very important as the unscheduled disability award will be based on the claimant’s pre- and post-injury earnings. In all cases, claimants will receive more benefits for higher wages, subject to the statutory maximums in place at the time of loss.

Occupationals

In an occupational case the time of injury, is when the claimant became aware of, "or in the exercise of reasonable diligence or by reason of medical advice should have been aware, of the relationship between the employment, the disease, and the death or disability.” Therefore, the wage earned by the claimant at that time (time of discovery) is used. This can be higher than during the period of actual exposure or employment.

Rates: a key the difference between Longshore and the Defense Base Act.

All Longshore compensation rates are based on a calculation of the claimant’s weekly wage. In every case, the actual benefit amount requires reference to the National Average Weekly Wage as a "maximum" on the possible benefits. For accident occurring now (Aug 2011) the maximum is $1,256.84 and the minimum is $314.21. Although the benefits available under the DBA are identical to the LHWCA, there is one key distinction: minimum compensation rates. While the minimum compensation rate under the LHWCA is 50% of NAWW, there is no minimum weekly compensation rate under the DBA.

New Case: Calculating wages under the Defense Base Act.

In a recent case (decided June 20, 2011) the claimant worked for a long time in foreign combat environments. He then took a "safer" job working on the United States Army Kwajalein Atoll in the South Pacific. In 2008 he sustained a neck injury and was admittedly entitled to medical and lost time (indemnity) benefits. The administrative law judge (“ALJ”) had to determine the average weekly wage. The ALJ determined that Claimant’s rate of pay at the time of his injury on the Atoll, a non-hostile environment, would form the basis of his wage calculation under 33 U.S.C. § 910. The claimant appealed, arguing he had earned more when working in more dangerous environments previously.

The Benefits Review Board (“BRB”) upheld the ALJ’s average weekly wage calculation, finding that because the Claimant’s pre-Atoll jobs were performed under different conditions, they would not form the basis for calculating his current wages.

Interestingly, this case is the exact opposite of the typical war zone cases, where a claimant is working in a high-danger job, often at a premium for any hazardous duty, and often for a short time before the disabling accident occurs - in which case the claimant gets the benefit of the higher wages (even if only briefly earned) in establishing his wage rate for the purposes of compensation.

Case: Luttrell v. Alutiiq Global Solutions, BRB No. 10-0555 (2011).