Defending Occupational Claims in New York.

The burden is on the claimant to establish entitlement to benefits by showing causal relationship between the alleged exposures and the injury claimed. Occupational diseases/conditions can be compensable if they result from the nature of the employment and were caused by the employment. See WCL § 2(15), WCL § 39. The condition must be caused by a distinctive feature of the employment – there must be a clear link between the condition and the peculiar character of the job. See Leventer v. Yeshiva of Flatbush, 684 N.Y.S.2d 658 (App. Div. 1999).

Similarly, health conditions contracted from contact with co-employees are not compensable. See Paider v. Park Movers, 280 N.Y.S.2d 140 (1967).

Injuries found compensable.

Although any disabling condition contracted at work which resulted from exposure to some workplace hazard is compensable, the following diseases and conditions have been found compensable:
  1. Orthopedic injuries resulting from repetitive movement;
  2. Silicosis;
  3. Pulmonary diseases - including pulmonary fibrosis, pulmonary asbestosis, emphysema, bronchitis, and asthma.
  4. Hearing Loss;
  5. Dermatitis;
  6. Hernia produced by repetitive straining;
  7. Nervous system injuries;
  8. Infectious disease, such as hepatitis or tuberculosis when the exposure was to patients (for example, in a hospital setting) or infected materials.
  9. Blood poisoning, such as lead poisoning.

Pre-existing conditions.

The pre-employment “health state” of the employee is not considered when assessing the compensability of an allegedly occupational condition – whether or not the employee is pre-disposed to some condition is not important. However, if the claimant had a pre-existing condition this may be considered by the COurt. There is a distinction in the case law between pre-existing dormant and active conditions.

Environmental claims excluded.

Occupational claims related to the location or environmental conditions are not compensable under this law – because if all the employees were exposed to some condition (for example, poor ventilation) then it is not possible to say that a resultant pulmonary condition was related to the peculiar nature of the work rather than to the nature of the location. However, exposure to specific agents, like carcinogenic compounds, which then caused a related condition – will be found compensable.

Determining which factors are "merely environmental" and which are truly "peculiar" to the work is done on a case-by-case basis. To establish a claim for workers’ compensation benefits allegedly resulting from occupational disease the claimant must provide a recognizable link between the disease and a distinctive feature of the employment. Shared risks (like heat and cold) - common to all employments - as well as risks that are not common to the particular work - will not be found to be "occupational" in nature and therefore not compensable.

Generally, claims related to incidental exposures - for example, during a building renovation in which construction dust is in the workplace for a short time - are more likely to be characterized as a "specific " accident rather than an occupational.

Benefits Payable.

Benefits payable for occupational disease are the same as those payable for traumatic specific injury claims. See WCL § 39. Where the occupational disease (like silicosis) leads to a panic disorder (or other psychiatric manifestation of the condition) then the resulting mental condition is considered part of the underlying occupational condition.

New York's "Last on the Risk Doctrine."

In an occupational claim, the last employer pays the entire award to the claimant. Then, that last employer can seek apportionment against the claimant’s prior employers (who exposed the claimant to the same condition leading to the occupational disease). See WCL § 44.

Investigation into apportionment.

Enabling this apportionment, the claimant must provide the last employer with the names and addresses of all his prior employers; the failure to provide those prior employer’s contact information may result in the claimant being stripped of all compensation until he complies with the request. WCL § 46.

Defense plan for occupational claims.

Occupational claims are generally denied. The filing of the C-7 denial pleading (for FROI/SROI-04) will result in the matter being listed for a PreHearing Conference (if the claimant has filed medical).

The Statute of Limitations in an occupational claim.

The two-year statute of limitations (WCL § 28) applies to occupational claims. The statute begins to run "from the date of disablement and within two years from the date the claimant knew or should have known that the disease is due to the nature of the employment." This is important because fixing the claimant's knowledge of the alleged occupational condition is important to defending against these claims. Specifically, we are looking for any documentation showing that the claimant was advised of the alleged condition and the relationship of the condition to the work.

Investigation.

Investigation is the key to defending against occupational claims. A strong medical opinion (IME) on causal relationship is needed. In order to provide counsel and the IME doctor with the most useful information possible, defense should be provided with the following:
  • Results of any environmental (for example, air quality testing) studies performed at the location;
  • Any ergonomic studies;
  • A complete job description for the claimant, with description of work duties;
  • Any OSH filings for the location, including MSDS (material safety data sheets) or SDS (safety data sheets) for all materials in location;
  • Information regarding any abatement or remediation projects at location;
  • Any internal surveillance depicting conditions within location;
  • Employee health records;
  • Employee human resources/personnel file;
  • Information about any union membership of claimant (because medical records/health information may be domiciled at union);
  • Information regarding prior employers (usually a resume submitted tot he current employer);
  • Prior medical information;
  • Information about other similar claims for the same employer/insured location;
  • Contact information for witnesses who can testify about the claimant's actual work activities;
  • surveillance of the claimant;
  • prior claims history of the claimant (usually an ISO claims index bureau search report).

The medical expert.

The defense medical expert is usually an IME physician. However, consideration should be given toward obtaining reports/testimony from ergonomic experts, environmental testing experts/laboratories, etc., and presenting that information to the defense medical expert to help inform the opinion in regards to causality.

Role of the defense.

The defense should obtain information relating to any prior workers' compensation or other claims filed by the claimant. Even if the body parts alleged in the instant occupational claims are not implicated, prior medicals may contain information about prior disease/illness manifestation.

In an environmental disease claim, the defense team should visit the insured location to assess the risk.

You should expect defense to subpoena or obtain by way of medical release authorization prior medical records. The purpose of such an investigation will be to obtain information that the condition is pre-existing/arose during a prior period of employment. Employers can use prior medical documentation to argue that the claimant's condition manifested during a prior period of employment or that the claimant "know or should have known" about the injuries and their relationship to the employment for purposes of raising a Statute of Limitations defense (WCL § 28).

At trial, defense counsel must be prepared to vigorously cross-examine the claimant and her expert witnesses.

For more on this and other related topics in New York workers' compensation, join my mailing list:

Stopping benefits when a claimant fails to attend an IME exam.

A recent Board Panel Decision addresses the termination of benefits where a claimant fail to attend to repeated IME exams.

The carrier or employer is "entitled to have the claimant examined by a physician authorized by the chair…at a medical facility convenient to the claimant and in the presence of the claimant's physician, and refusal by the claimant to submit to such independent medical examination at such time or times as may reasonably be necessary in the opinion of the [Board, bars] the claimant from recovering compensation for any period during which he or she has refused to submit to such examination.” See WCL § 13-a(4)(b) see also 12 NYCRR 300.2(d)(8).

When a claimant frustrates the employer's right to engage an independent medical consultant, a suspension of payments for the challenged injuries is warranted. See Matter of Jasmine v Rainbow Grill, 115 AD2d 862 (1985). In contrast, there is no basis to bar payments where the claimant's failure to attend an IME is not due to a refusal to submit to such examination, or where the claimant's refusal is reasonable. See Matter of Ferguson v Fruehauf Corp., 156 AD2d 880 (1989).

If the claimant simply fails to appear for an exam, benefits can not be terminated (as WCL § 137(10) states as follows: “The ability of a claimant to appear for an exam or hearing shall not be dispositive in the determination of disability, extent of disability or eligibility for benefits.”) Instead, the exam should be rescheduled. if the claimant fails to attend a rescheduled exam, an RFA-2 (“Request for Further Action on behalf of the Carrier/Employer” - warning, links to a PDF) should be filed to get the matter listed for a hearing. At the hearing, counsel should request that benefits be suspended until the claimant attends to an exam.

Who does the Judge listen to? Treating versus IME doctors in New Jersey.

In New Jersey, treating physicians’ opinion are given more weight than an IME physicians’ or records reviewers‘ when the treating physician has seen and treated the claimant on multiple occasions.

The New Jersey Supreme Court instructs that when Judges of Compensation review conflicting medical opinions in a workers’ compensation case,
“…opposing medical opinions cannot be considered apart from the factual framework of the entire case. Their probative force must be evaluated by a number of factors. In the process of evaluation, a criterion of recognized significance is the greater opportunity of a treating physician, as compared with a doctor who conducts a single examination in order to become an expert medical witness, to know, understand and decide upon the producing cause of the patient's condition.”
Bober v. Independent Plating Corp, 28 N.J. 169, 168 (1958), citing Fusco v. Cambridge Piece Dyeing Corp., 135 N.J.L. 160, 162 (E. & A. 1947).

Of course, the treating physician’s opinion can be challenged as contradicted by other evidence, based on subjective complaints, etc., but generally speaking, the Judges of Compensation afford more weight to treating rather than examining doctors.

For more on this and other related topics in New Jersey workers' compensation, join my mailing list:

Be careful when considering a "tie-breaker" medical opinion in New Jersey.

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.

IME Presentation for North Jersey Claims Association

My partner Marc Pakrul and I presented to the North Jersey Claims Association on March 31st. Marc presented on IMEs in liability claims; my part of the presentation focused on the use of IMEs in challenging medical treatment in New York and New Jersey proceedings. We had a really great time and the questions were great! Here are our slides.



If you are having trouble viewing the presentation here, you can view it on iwork.com.

Medical treatment and IMEs under the Longshore and Harbor Workers' Compensation Act

My book - "Longshore and Harbor Workers' Compensation Act and Defense Base Act Claims 2011 Edition" is getting ready for publishing and we are finalizing the cites and references for the 2011 editiion (shipping: April 2011). Here's a sneak preview of the Chapter 6: Medical Benefits (note: 43 footnotes with citations have been removed):

Chapter 6: Medical Benefits under the LHWCA

Section 907 of the Act requires that the
. . . employer shall furnish such medical, surgical, and other attendance or treatment, nurse and hospital service, medicine, crutches, and apparatus, for such period as the nature of the injury or the process of recovery may require.

The employer must respond to a request for treatment upon notice of the injury, even if the work-relatedness of the injury is challenged. The duty of the employer to provide medical treatment is absolute. The medical care provided must be both “reasonable and necessary” and appropriate for the injury.   The claimant has the right to choose his own attending physician.

The physician chosen by the claimant must submit a report to the carrier within 10 days.

The right of the claimant to choose his own physician is only limited by the ‘prohibited’ provider list of physicians and facilities who do not meet standards established by the DOL.

The employer is liable for all medical expenses for any consequences of the compensable injury, including the chosen physician's malpractice.  While an employer is not liable for medical expenses due to the degenerative processes of aging, an employer is responsible for ‘aggravations’ of prior injuries. An employer is responsible for treatment even if the work-related injury only partly causes the need for that treatment, and that is true in psychological injury cases as well as physical injury ones.

Any injury sustained during the course of a medical examination scheduled at the employer's request for an alleged work-related injury is covered under the LHWCA, because such an injury necessarily arises out of and in the course of employment.

Exceptions to the claimant’s choice of physician

Emergencies

The employer is allowed to select a doctor or facility the claimant can not due to the nature of his injury and the injury requires urgent treatment, the employer is to select a physician for him. The claimant must be incapacitated and in need of emergent treatment for this exception to be invoked. Once the claimant regains his faculties, then he regains the freedom to chose his own attending doctor.

Changing doctors

Once a claimant has made an initial unrestricted choice of a physician, he may change physicians only upon obtaining prior written approval of the employer, carrier, or deputy commissioner. If the claimant fails to obtain the required authorization to switch treaters, the carrier/employer does not have to reimburse the claimant for the costs of the new, unauthorized treatment. Note: referral to a specialist from an attending physician will not invoke a need for new authorization from the carrier.
         

Requesting treatment.

The claimant must report his injury and request treatment in order to trigger an employer’s responsibility to pay for such care. There are many instances where an employee does not have to formally report his injury - for example, where an employer’s representative is at the scene of the accident. An employer “has knowledge of an injury” when an accident occurs and a reasonable person could conclude that there might be liability for compensation and should investigate further.

Mere knowledge of an accident is not enough to make an employer liable for paying medical bills - accident happen everyday and no treatment is sought. The employee must affirmatively request care in order to trigger responsibility on the part of the employer for any resulting medical bills.

The employee does not have to request treatment when a request would be futile. For example, if the claimant was fired for reporting the accident, there would be no duty on the part of the claimant to seek treatment from the employer.

Judicial review of medical treatment

A claimant only has to present the opinion of a qualified physician that treatment was necessary for a work-related condition to establish a prima facie case for compensable medical treatment. The judge can order the employer to make payment for medical treatments already received by the claimant. The Judge can also order that a specific course of medical care be authorized by the employer. However, a judge can not pick specific medical facilities for the care to take place - that would abrogate the claimant’s right to pick his own doctor.

A judge has no authority to deny a medical expense on the technical grounds such as a particular physician's expertise, whether the fee charged was within the customary range, or where the medical treatment was not documented. The Judge can only rule on the reasonableness of the medical services.

It is up to the employer to raise the reasonableness and necessity of treatment before the presiding judge.

What counts as medical treatment?

Stories are legion and Longshore caselaw is replete with references to dubious medical treatment prescribed by treating physicians and ruled to be the employer’s expense (for example - the install of a jacuzzi for the ‘recovery’ of a claimant, a physician ordered who ordered his patient relocate to a ‘warmer climate,’ or a doctor writing prescriptions for first class travel). The regulations define medical care to include laboratory, x-ray, and other technical services, such as prosthetic devices for the care and treatment of the injury or disease. Treatment does not have to be ‘medically accepted’ but merely “helpful.” The treatment does not have to be administered by a therapist or practitioner with any sort of license. Meeting this rather low burden are pseudo-medical treatments such as biofeedback.

Chiropractors are allowed to treat Longshore patients and are paid for their care only to the extent that it consists of manual manipulation of the spine to correct a subluxation shown by x-ray or clinical findings. Chiropractors are not to be paid for treating shoulders, hips, knees, etc., or administering physical therapy.

Travel to and from medical appointments, as well as special travel needs, are generally compensable.
Generally, travel will be reimbursed for physicians within 25 miles of the residence of the claimant.

Regulation 20 C.F.R. § 702.403 states:
In determining the choice of physician, consideration must be given to availability, the employee's condition, and the method and means of transportation. Generally, 25 miles from the place of injury or the employee's home is a reasonable distance to travel, but other pertinent factors must also be taken into account.

Independent Medical Examinations

33 U.S.C. § 907(e) states:
In the event that medical questions are raised in any case, the Secretary shall have the power to cause the employee to be examined by a physician employed or selected by the Secretary and to obtain from such physician a report containing his estimate of the employee's physical impairment and such other information as may be appropriate. Any party who is dissatisfied with such report may request a review or reexamination of the employee by one or more different physicians employed or selected by the Secretary. The Secretary shall order such review or reexamination unless he finds that it is clearly unwarranted. Such review or reexamination shall be completed within two weeks from the date ordered unless the Secretary finds that because of extraordinary circumstances a longer period is required. The Secretary shall have the power in his discretion to charge the cost of examination or review under this subsection to the employer, if he is a self-insurer, or to the insurance company which is carrying the risk, in appropriate cases, or to the special fund in section 44 [33 USC § 944].

The IME Process

When a medical question is raised, the Secretary may have the claimant examined by a physician employed or chosen by the Secretary and receive a report to determine the diagnosis, estimate the claimant's physical impairment, or comment on whether additional medical treatment is necessary.

Following the initial report, either the claimant or the employer can then request a review or a reexamination of the employee by a different physicians employed or chosen by the Secretary within two weeks.

The findings of the initial examining physician's findings are not binding on any party.

Immediately following the initial exam, the employer or carrier may request, to have the employee examined.

If the claimant refuses to attend an IME

If the employee refuses to submit to the examination, the proceedings shall be suspended and no compensation is paid until the claimant attends the exam. This applies equally to initial exam and employer-requested IMEs. A claimant's failure to attend an exam with the employer's chosen examining physician can not be excused. Claimants have argued that the physician chosen by the employer are biased or incompetent as excuses for not attending exams. A Judge can not excuse a failure to attend an IME on the grounds that the claimant lacks confidence in the physician, although that would obviously be accepted by the court as a reason to not allow the doctor to act as a treating physician.

Rules Change: Communications between IME Doctors and IME entities

A common practice - communications with IME doctors by the contracting entities that send them cases - is falling under increased scrutiny after the WCB banned virtually all verbal communications between the doctors and the IME entities.
Employer IMEs have been facilitated by a group of regulated ‘Independent Medical Examination ‘brokers’ known as IME entities for years. These entities act as go-betweens - findings doctors to perform IMEs, collecting the relevant medical records for the doctor’s review, sending scheduling notices, and collecting the final reports of the physicians to provide those reports to the WCB and the employer (or carrier).
This process necessarily injects the IME entity into the mix: they coordinate communications with the doctors and are intimately involved in selecting physicians. The entities have also been called in question for practices where they are generating reports for the doctors to sign - commonly ‘transcribing’ the doctors own notes or taped exams. In some instances the IME entities have been accused of generating reports that differ from the doctor’s findings and “changing” IME reports after the doctor has signed off on the report.
This summer the WCB banned all oral communications between IME entities and the examining physicians - and allowing for all written communications between the parties to be part of the WCB record. This move, coupled with the new IME report form (discussed in out last newsletter) is expected to reduce claims that IME reports are ‘tampered with’ by the IME entities entrusted with facilitating those examinations.