SIMPLY THE MOST PRACTICAL, up-to-date and easy-to-understand guide to New Jersey workers' compensation claims. Tackling issues like employee fraud, this book is designed for employers, attorneys, claims adjusters, physicians, self-insured employers and vocational rehabilitation workers.

This guide is written in plain English by New Jersey attorneys and provides a detailed analysis of relevant statutes and regulations; a complete recap of recent court decisions; and a full description of current practice and procedure. This book provides a behind-the-scenes look at the complicated issues and makes the law understandable for business owners.

Updated chapters on OSHA regulations, new "emergent" motions for medical benefits, the Medicare Secondary Payer Act, and HIPAA considerations are included. Available in print here.

Longshore and Harbor Workers' Compensation Law

2011 Edition

Authored by Gregory Lois
Edited by Matthew P. O'Malley
List Price: $19.00 Order now (soft cover) or for Kindle. Coming soon to the iBookstore!

From the publisher's description:

THE MOST PRACTICAL, up-to-date and easy-to-understand guide to Longshore and Harbor Workers' Compensation claims. This guide is written in plain English by an attorney and provides a detailed analysis of relevant statutes and regulations; a complete recap of recent court decisions; and a full description of current practice and procedure. This book provides a behind-the-scenes look at the complicated issues and makes the law understandable for business owners.

Updated chapters on the Defense Base Act, the Medicare Secondary Payer Act, and HIPAA considerations are included. [2011 Edition.]
Publication Date: Apr 15 2011
ISBN/EAN13: 1461030447 / 9781461030447
Page Count: 226
Binding Type: US Trade Paper
Trim Size: 6" x 9"
Language: English
Color: Black and White
Related Categories: Law / Labor & Employment

Order now (soft cover) or for Kindle.

I am pleased to report that the Longshore book is in the hands of the publisher . . . I'll be working with my editor to complete the final revisions over the next few weeks. 212 pages, 198 footnotes, and a big thank you to Matthew P. O'Malley, editor extraordinaire and hater of single quotes.

Read More...

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.

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 second chapter (note: all cites & footnotes have been removed):

Chapter 1: Initial Reporting

Overview

• The employee must notify the employer immediately by reporting the accident.
• If medical treatment is sought, provide the claimant with Form LS-1, which authorizes treatment by a doctor of the employee’s choice.
• The claimant will then receive medical treatment.
• The claimant must provide written notice of the injury within 30 days to the employer on Form LS-201. Notice of death must also be given within 30 days. Additional time is provided for certain hearing loss and occupational disease claims.
• (Optional - does not happen in all cases). To obtain permanency and some other benefits under the Act, the injured worker must file either Form LS-203 or a written statement identifying the alleged injury and stating that the identified claimant is seeking benefits. This must be filed within one year after injury, or, if the employer or its insurer has made voluntary payments, within a year after the last payment. If the alleged condition is an "occupational disease" rather than a specific accident, the filing period is two years from the date it was recognized as employment-related and disabling character.

Forms & Procedure - Controverting claims.
An employer controverting the right to compensation must file a Notice of Controversion of Right To Compensation10 with the District Director on or before the fourteenth day, after knowledge of the alleged injury or death (from the date the claimant files Form LS-207). following the filing of a Notice of controversy, an informal conference will be scheduled at the District Office and a Longshore claims examiner will preside over an informal conference to discuss and potentially resolve the dispute. If the issues cannot be resolved informally, the parties will be directed to file a Pre Hearing Statement. The case will then be referred to the Office of Administrative Law Judges for a formal hearing. The Administrative Law Judge will issue a formal decision and order regarding the benefits claimed.

Appeal.
Appeal from the decision of the Administrative Law Judge is to the Benefits Review Board. Appeal of the benefits Review Board’s decision is to the appropriate Circuit Court and finally the Supreme Court of the United States.

DLHWC Forms
All forms that need to be filed with the Division are available online:
http://www.dol.gov/owcp/dlhwc/lsforms.htm
These forms include: wage statement (LS-200), pre-hearing statement (LS-18), and employee’s claim forms (LS-203).

Notice in specific accident cases.
Notice of an injury or death for which compensation is payable must be given within 30 days after injury or death, or within 30 days after the employee or beneficiary is aware of, or in the exercise of reasonable diligence or by reason of medical advice should have been aware of, a relationship between the injury or death and the employment.12 It is the claimant's burden to establish timely notice. The claimant is provided a presumption that timely notice has been provided.13 Where one injury arises out of an accident has been reported, the claimant does not have to give separate notice of other injuries resulting from the same incident.14
     
Notice in occupational disease cases.
In the case of an occupational disease which does not immediately result in disability or death, notice must be given within one year after the employee or claimant becomes aware 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. Thus, the period does not begin to run until the employee is disabled. It is possible for an employee to bring an occupational disease claim “post-retirement.” In a post-retirement occupational disease claim, the claimant will be required to show that the retirement was ‘involuntary’ in that the allegedly occupationally-related condition caused him to leave the workforce.
         
Giving the report of loss.
The injured worker can provide notice to:

• The first-line supervisor (including foreman, hatch boss or timekeeper), local plant manager, or personnel office official;
• Any partner, if the employer is a partnership; or
• Any authorized agent or officer, therefore, upon whom legal process may be serviced or person in charge of business at the place of injury if the employer is a corporation.

Notice as a defense.
Notice to the employer is a requirement. Therefore, the lack of notice to the employer can be a defense to a claim. We discuss using ‘Notice’ as a defense in Chapter 5, infra.

The first chapter of my new book - "Longshore and Harbor Workers' Compensation Act and Defense Base Act Claims 2011 Edition" is off to the publisher and we are finalizing the cites and references for the 2011 editiion. The publication will ship in April 2011(note references below). Here's a sneak preview of the introductory chapter:

Introduction

The Longshore and Harbor Workers' Compensation Act ("LHWCA") was enacted in 1927 to provide no-fault workers' compensation benefits to longshoremen injured in the navigable waters of the United States. These benefits extend to longshoremen injured within three miles of shore which includes the docks along the shore. In the last year for which such statistics are available, there were 27,000 new claims filed and $764M in benefits issued under the LHWCA. Since its inception in 1927, the LHWCA has been amended many times, usually to extend the benefits available under the Act to more workers.

Who is a Longshoreman?
The LHWCA covers employees in traditional maritime occupations such as longshore workers, ship-repairers, shipbuilders or ship-breakers, and harbor construction workers. The term “Longshoreman” typically refers to maritime workers responsible for unloading or loading ships and who are not a master or member of the ship’s crew. The injuries must occur on the navigable waters of the United States or in the adjoining areas, including piers, docks, terminals, wharves, and those areas used in loading and unloading vessels. Non-maritime employees may also be covered if they perform their work on navigable water and their injuries occur there.  

Who else qualifies for benefits under the LHWCA?
Congress extended the LHWCA to include other types of employment. Employees covered by these extensions are entitled to the same benefits, and their claims are handled in the same way as Longshore Act claims. The following are the extensions of the LHWCA:

• DEFENSE BASE ACT - applying to employment at overseas military bases of the United States and to employees of U.S. government contractors working outside the United States in public work projects or in national defense and military operations;
• OUTER CONTINENTAL SHELF LANDS ACT - applying to employees working on the Outer Continental Shelf of the United States in the exploration and development of natural resources, for example, off-shore oil drilling rigs;
• NONAPPROPRIATED FUND INSTRUMENTALITIES ACT - applying to civilian employees of non-appropriated fund instrumentalities of the Armed Forces (for example, military base exchanges and morale, welfare, and recreational facilities).

Who is specifically excluded from benefits under the LHWCA?
The LHWCA specifically excludes from eligibility for benefits the following individuals:

• Seamen (masters or members of a crew of any vessel);
• Employees of the United States government or of any state or foreign government;
• Employees whose injuries were caused solely by their intoxication;
• Employees whose injuries were due to their own willful intention to harm themselves or others.

We cover these exclusions in depth in our chapter on Defenses. The LHWCA also excludes the following individuals if they are covered by a state workers' compensation law:

• Individuals employed exclusively to perform office clerical, secretarial, security, or data processing work;
• Individuals employed by a club, camp, recreational operation, restaurant, museum, or retail outlet;
• Individuals employed by a marina and who are not engaged in construction, replacement, or expansion of such marina (except for routine maintenance);
• Individuals who (A) are employed by suppliers, transporters, or vendors, (B) are temporarily doing business on the premises of a maritime employer, and (C) are not engaged in work normally performed by employees of that employer covered under the Act;
• Aquaculture workers;
• Individuals employed to build any recreational vessel under sixty-five feet in length, or individuals employed to repair any recreational vessel or dismantle any part of a recreational vessel in connection with such repair;
• Small vessel workers if exempt by certification of the Secretary of Labor under certain conditions. 

What benefits are available under the LHWCA?
The LHWCA provides for medical benefits and disability benefits to an injured worker. An injured employee is entitled to reasonable and necessary medical, surgical, and hospital treatment and other medical supplies and services required by the work-related injury or illness, such as prescription medications, diagnostic tests, physical therapy, prostheses, hearing aids, attendant care, and the cost of travel for such treatment. An injured employee is entitled to select a physician of his/her choice to provide medical treatment for the work injury. The LHWCA provides for the payment of compensation for the following four types of disability: temporary partial, temporary total, permanent partial, and permanent total. This compensation can not exceed two-thirds of the employee’s average weekly wage during the period of disability, subject to maximum and minimums.

About this Book
This book is designed to be a “plain English” practical and up-to-date guide to handling claims under the Longshore and Harbor Workers’ Compensation Act (and Defense Base Act claims).

The chapters in this book are designed to follow the natural timeline of a LHWCA compensation claim: We begin with initial reporting requirements, establishing jurisdiction, and we address ‘compensability.’ We then discuss the benefits available to an injured worker: medical treatment, wage replacement, and special handling considerations for specific types of claims. Finally, the ending chapters in this book discuss trial considerations, types of settlements, judgment and appeal, and related considerations (HIPAA, Medicare Secondary Payer, etc).

Writing a book on Longshore and Harbor Workers’ Compensation Law is like trying to hit a moving target. The law is evolutionary. As this book goes to press in April 2011, we are confident that it represents the most up-to-date edition we have ever published. We encourage you to subscribe to our free newsletter and visit Greg Lois’ website (www.greglois.com) for the very latest updates.

To subscribe to our free newsletter, please send an email to glois@tompkinsmcguire.com.

I am pleased to report that the fully revised and updated 2011 editions of my New York Book and the New Jersey Book (co-authored with Joseph K. Cobuzio) are at the publisher. I am reviewing proof copies now. I expect the final publications to be ready for clients by the end of October. As in the past, both books will be available to clients for free and the New York book will be offered on Amazon.

"New York Workers' Compensation Law [2009 ed.]" is published and now available on Amazon.
Product description (from Amazon): The most practical, up-to-date and easy-to-understand guide to workers' compensation claims in New York. Tackling issues like employee fraud, this book is designed for employers, attorneys, claim adjusters, physicians, self-insured employers and vocational rehabilitation workers. This guide is written by a New York State attorney and provides a detailed analysis of relevant statutes and regulations; a complete recap of recent court decisions; and a full description of current practice and procedure. This book provides a behind-the-scenes look at the complicated issues and makes the law understandable for business owners. Updated chapters on OSHA regulations and HIPAA considerations are included.

Paperback: 174 pages
Publisher: CreateSpace (July 27, 2009)
Language: English
ISBN-10: 1448670659
ISBN-13: 978-1448670659
Product Dimensions: 9 x 6 x 0.4 inches

Special thanks to John Grayson for the cover photograph. Check out John's digital gallery of photography and artwork at suffocate.us.

The 2009 edition of 'New Jersey Workers' Compensation Law for Adjusters and Risk Managers' has been published. The introductory guide, now reaching 270 pages, includes a copy of the scheduled loss charts for 2009 and a new chapter on 'Motions for Med & Temp' and the new-for-2008 'Emergent Motion for Med & Temp.' Authored by: Joseph K. Cobuzio and Greg Lois. Click here to request a complementary copy.

The New Jersey Workers' Compensation system was the focus of an investigation conducted by the Star-Ledger Newspaper , one of the most widely-read newspapers in New Jersey. The articles (which ran consecutively in April) concluded that "bureaucratic delays, politics and poor state oversight have left thousands of injured workers waiting years for the relief promised by the compensation system." The three-part article has led to a New Jersey Senate Labor Committee hearings scheduled to begin May 5th in Trenton to examine ways to "reform" the workers' comp system in New Jersey. Read More...

The 2007 edition of the ‘Introduction to Workers’ Compensation’ is published. The book, produced by the Tompkins McGuire workers’ compensation department, provide a ‘soup-to-nuts’ overview of the workers’ compensation system in New Jersey, and includes valuable practice tips for claims professionals handling workers’ compensation claims in New Jersey.

The 2007 edition contains updated and expanded information regarding the intersection between OSHA and workers’ compensation, recent information regarding the Medicare Secondary payer Act, and case summaries of all recent decisions of the Appellate Courts. For more information about the book, or to request a free copy, please see this page.

Also, if your “revision” number on the front of you copy is lower than # 11.xx.xxx, please contact us to request an updated copy. The Medicare Secondary Payer chapter, Chapter 12, changed considerably and the newest revision, reflects the new information. Read More...