About one-in-five of the new cases filed in the New Jersey Division of Workers’ Compensation this year will be a “re-opener” claim. Formally called an “Application to Review or Modify a Formal Award” or “Application for Modification of Agreement” as per N.J.S.A. 34:15-27, these claims are brought by petitioners who allege that they have a need for treatment, have new lost time, or have an increase in the amount of permanent partial disability.
What types of cases are eligible for “Re-Opener?”
Compensable workers’ compensation claims are often resolved by way of an “Order Approving Settlement.” Such a settlement requires the employer/respondent to continue providing medical treatment for the injuries described on the Order Approving Settlement. In addition, a claimant has the right to “re-open” her claim for a period of two years from last compensation paid. Additionally, claims resolved by way of Judgment (award following litigation) are subject to re-opening by the petitioner.
As per the statute:
A formal award, determination and rule for judgment or order approving settlement may be reviewed within 2 years from the date when the injured person last received a payment upon the application of either party on the ground that the incapacity of the injured employee has subsequently increased.
What proofs must the petitioner show on re-opener?
The burden is on the petitioner to show increased disability. The petitioner must present proofs that permit comparison. This means objective medical evidence or updated medical reports. Increased disability can not be based solely upon the estimate of the injured person’s present degree of incapacity such as a repeat IME with a physician chosen by the petitioner. Yeomans v. Jersey City, 27 N.J. 496 (1958).
Information necessary to defend Re-Openers.
N.J.A.C. 12:235-3.8(c) provide that when the petitioner has filed a reopener the respondent has a right to information from the date of the last award or judgment to the filing of the petition for the increase or decrease of disability. Obtaining information about the medical treatment (if any) that was obtained by the petitioner since the Order Approving Settlement or Judgment was entered is key to defending the re-opener claim. Typically, the petitioner has had no medical care in the interim and will support the Application to Review or Modify a Formal Award by only a new IME report from a petitioner-friendly physician.
Discovery allowed in reopened cases.
The Rules (N.J.A.C. 12:235-3.7 et seq.) allow the Respondent to request the following types of discovery form the petitioner alleging an increase in permanent disability:
- Medical records of any new treatment.
- Answers to interrogatories.
- Statement of Pre-Existing Conditions (where total disability is claimed, as per N.J.A.C. 12:235-3.10).
- All prior claims information form the State regarding the underlying workers’ compensation claim and any other claims filed by the petitioner
- A Claims Index Bureau report to confirm that there were no interim (superseding) accidents involving this petitioner.
How are increases in disability paid?
As in all workers’ compensation cases where there is a prior disability, the respondent gets a credit for the pre-existing impairment. The underlying partial disability award doe snot begin to accrue until the date that temporary disability benefits end. The increased award (if any) begins the day the petitioner was eligible for payment of the permanency award. This means that any increased award, where the date of permanent payment was in the distant past, will likely have “accrued money” moving to the petitioner.
Let’s look to a typical example. In our example, after trial the Judge of Compensation awarded 25% of partial total tot he petitioner for a rotator cuff tear injury with surgical repair. This award can be expressed as follows (presume a 2017 injury date and an AWW of $1,000):
25% Permanent Partial Total = 150 weeks of compensation payable at $272.60 = $40,890.00
In our example, the petitioner has undergone repeat surgery since the original award. An Application to Review or Modify a Formal Award was filed. As the repeat surgery was authorized and an increased disability conceded by the Respondent’s examining physician, the Judge of Compensation made a new award finding a 35% disability. The respondent is due a credit for the 25% award already found (and in this simplified example, already paid).
35% Permanent Partial total LESS 25% Permanent partial Total = Net to Petitioner
35% Permanent Partial Total = 210 weeks of compensation payable at $410 per week = $87,780.
$87,780 in new compensation LESS $40,890 original award = $46,890
Respondent must calculate the amount of accrued award at the time the reopener order is entered to determine if there is accrued money moving under the old award. Then, any additional benefits due are paid at the “new” (higher) rate until the term of the new award expires. Remember: this “increased” award is itself subject to be reopened at a future date (within two years from the date of last compensation paid or authorized treatment).
The filing of the re-opener is a great opportunity to position the case for a “full and final” Section 20 resolution. Counsel for the respondent should seize the opportunity to use the proceedings to force a lump sum dismissal under Section 20. Key to this goal is being armed with Yeoman’s v. Jersey City and the argument that a new IME showing increased disability by itself is not by itself justification for an increased award.
- The increased award is still limited by the “maximum” amount of permanent disability compensation based on the petitioner’s average weekly wage. this means that where the petitioner has a low average weekly wage, additional weeks of compensation may not be at an increased rate and there may be no accrual of revised benefit and so very little “new” money moving.
- Risk professionals should be mindful of the two year statute of limitations for the filing of an Application – this can be enlarged unwittingly by the risk professional who approves additional medical visits after the permanent partial disability award has ended.
- The failure of the petitioner to submit responses to discovery must be seized upon as grounds to file Motions to Compel and/or Motions to Dismiss for Lack of Prosecution.
- Where the Law Judge is in favor of finding increased disability, full trial should be considered to obtain reversible error.
- Section 20 lumps-sum dismissals should be the Respondent’s goal in every reopener claim!
- We recommend you utilize the OSCAR calculation program (available free on the Division’s website, here) to calculate awards in reopener cases.