Category Archives: New Jersey

Appeal Win: Greg Lois Prevails in New Jersey Appellate Decision

On July 9, 2019 and in a decision favorable to the employer, the New Jersey Appellate Division vacated an order awarding money benefits to the petitioner and returned the case to the trial court. This remand for new trial, obtained after oral argument presented by Greg Lois, also vacated an order penalizing the employer for late payment of lost time benefits.

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WCB Fee Schedule Changes Address Out of State Medical Provider Claims

Effective April1, 2019, the Workers’ Compensation Board changed the Medical fee Schedule in effect for medical payer reimbursement in New York workers’ compensation claims. This will have a significant impact on the many Medical Provider Claims filed by New Jersey doctors and medical providers seeking reimbursement for services rendered to New York workers’ compensation claimants where the Jersey provider is demanding reimbursement at a much higher (“usual and customary”) rate than would be allowed under New York’s fee schedules.

The Changes to the Fee Schedule.

Changes to General Ground Rule 16 govern reimbursement for out-of-state treatment. The Rule now provides that a claimant who lives in New York State may treat with a qualified or Board authorized out-of-state medical provider when such treatment confirms to the Workers’ Compensation law and Regulations, the MTG’s and the Medical Fee Schedule. Payment shall be made to the medical provider as set forth herein and using the regional conversion factor for the zip code where the claimant resides.

How are fee schedule reimbursements determined?

Simple. The methodology for calculating medical reimbursement fees remains unchanged. Fee schedules are both region and activity-specific. To calculate a fee for a particular procedure:

  • Identify the appropriate conversion factor, which is listed within the respective Ground Rules document. There is a conversion factor for each geographic region and general type of medical service provided (e.g., surgery, radiology, etc.). For example, in the Medical Ground Rules document, you’ll find the conversion factor table on page 12.
  • Once you have the conversion factor you need, find the CPT code for the specific type of service you want to look up.
  • For each CPT code, there is a Relative Value Unit (RVU) listed.
  • Multiply the RVU by the conversion factor to calculate the fee for that service.

The Takeaway.

The New York Workers’ Compensation Medical fee Schedules now specifically address how providers who render treatment to New York residents out-of-state should be reimbursed. This means that a qualified out-of-state medical provider should be reimbursed (paid) at the rate applicable in the region where the claimant resides (in New York). The Board has continuing jurisdiction to resolve disputes between medical providers and insurers for out-of-state medical care and now has set forth a bright-line rule for how those providers will be reimbursed.

Lois Attorneys to Present on “Top Tips for Medical Provider Claims in New Jersey”

On Monday, May 6, 2019 at 1PM EST, Attorneys Greg Lois and Joe Jones discuss Medical Provider Claims in New Jersey. The two seasoned litigators will present practical methods for closing these claims and will talk about case law developments, tactics for negotiating closures, and trial strategy. Participants can join by computer or can call in and listen on the conference line (no computer needed).

Register for the webinar
 

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Workers’ Compensation Carrier Entitled to Reimbursement from Third Party Action Net of Legal Fees

New Jersey’s Appellate Division clarified the longstanding right of a workers’ compensation carrier to recover monies paid for medical, lost time and permanent disability benefits form the proceeds of any third-party settlement obtained by the workers’ compensation petitioner in another action. In Liberty Mutual Insurance v. Rodriguez the Court ruled that the workers’ compensation is entitled to reimbursement net of actual legal fees paid and the statutory $750 in court costs (as per N.J.S.A. 34:15-40). In this case, where the claimant was awarded $1.2M in a civil action, pursuing the full recovery for the carrier resulted in excess of the “normal” 66% reimbursement because the plaintiff in the civil action has a “sliding scale” fee agreement with his civil attorneys.

The Sliding Scale Legal Fee

Rodriguez entered into an Agreement to Provide Legal Services in 2002 that provided the law firm would receive a fee, under the 2012 version of Rule 1:21-7(c), as follows:

  1. 33.33% of the first $500,000 recovered;
  2. 30% on the next $500,000 recovered;
  3. 25% on the next $500,000 recovered;
  4. 20% on the next $500,000 recovered; and
  5. on all amounts recovered in excess of the above by application for a reasonable fee in accordance with the provisions of paragraph (f) hereof.

A settlement was achieved on behalf of Rodriguez with the tortfeasor for $1.2 million dollars. The parties stipulated that Rodriguez’s workers’ compensation benefits totaled $148,590.40.2

The Right of the Carrier to Recovery.

The workers’ compensation carrier asserted its rights to reimbursement of its lien under N.J.S.A. 34:15-40(b) (Section 40) from the third-party settlement. Section 40 makes clear that the remedies provided the employee by the workers’ compensation laws do not preclude an employee from pursuing damages from a tortfeasor, referred to in Section 40 as the “third person”:

In the event that the employee or his dependents shall recover and be paid from the said third person or his insurance carrier, any sum in release or in judgment on account of his or its liability to the injured employee or his dependents, the liability of the employer under this statute thereupon shall be only such as is hereinafter in this section provided.

So, What Was the Fee Actually paid?

All parties admitted that the plaintiff in the civil (third-party) action agreed to a “sliding scale” fee. It was indisputable that the fee actually earned by the plaintiff’s attorney was less than 33.33% of the total amount recovered. To calculate the fee, the court was presented with he following calculation: in the third-party action, the law firm was entitled to 33.33% of the first $500,000 recovered, or $166,666.67; 30% of the next $500,000 recovered, or $150,000; and 25% of the remaining $200,000 recovered, or $50,000, for a total fee of $366,666.67.

The third-party counsel fee equaled 30.56% of Rodriguez’s $1.2 million settlement.

The Takeaway: Get the Civil Attorneys’ Fee Agreement!

In a decision issued April 2, 2019, the Appellate Court ruled that the claimant was entitled to keep 69.44% of his $1.2M award and had to remit 69.44% to the workers’ compensation carrier. This demonstrates that the workers’ compensation carrier can recover MORE than 66% of a third party settlement where a fee agreement or actual fees are less than the “normal” one-third (1/3rd) attorneys’ fee. Kudos to the workers’ compensation carrier for requesting the actual fee calculation used by the plaintiffs in the civil action and demanding that they be reimbursed for all amounts due to the carrier.

Video: The Petitioner is Not My Employee! Defense of “No Employment” Claims in New Jersey

Attorney Gregory Lois discusses the defense of non-employment in New Jersey workers’ compensation claims. We discuss “gig economy” workers, brand employees, and staffing companies in this presentation. The video (below) is from the live presentation provided to the Firm’s clients on April 22, 2019.

Continue reading Video: The Petitioner is Not My Employee! Defense of “No Employment” Claims in New Jersey