All posts by Greg Lois

Greg Lois is the managing partner of LOIS LLC and dedicates his practice to defending employers and carriers in New York and New Jersey workers' compensation claims. Greg is the author of a popular series of "Handbooks" on workers' compensation, and is the co-author of the 2016 & 2017 Lexis-Nexis New Jersey Workers' Compensation Practice Guide. Greg can be reached at 201-880-7213 or glois@loisllc.com

Apply Apportionment to Reduce Exposure in New York

Apportionment is allowed under the Workers’ Compensation Law Section 44 to ensure that compensation is proportionally awarded to the amount of causal contribution made by the employer. This is intended to prevent windfalls to employers and can be applied to both permanent partial disability awards (“PPD”) or loss of use (Scheduled Loss of Use awards). In general, and despite the clear statutory authority, it remains challenging to secure apportionment to non work-related disability except for scheduled loss of use.

For the defense, apportionment should be considered where it can result in a lower wage (and lower benefit rate), where a statute of limitation defense becomes available, and where this is sucessive or prior coverage to which liability can be ascribed.

Continue reading Apply Apportionment to Reduce Exposure in New York

New York Law Change: Protecting the Employer’s Right to Credit

In April 2017 the New York Legislature amended WCL § 15(w) to provide that a credit will apply to the statutory cap for permanent partial disability claims if temporary partial benefits are paid beyond 2.5 years (130 weeks). This is good news for employers and carriers in New York who should see several benefits from this law change. This article and the live question-and-answer webinar we have scheduled for August 14th is to help risk professionals, adjusters, and employers protect their right to this credit which will begin in some cases as early as October 9, 2019.

Continue reading New York Law Change: Protecting the Employer’s Right to Credit

New Jersey Supreme Court Awards Lost Wages to Volunteer with No Paying Job

Attorney Gregory loisIn a decision that will cause significant hardship to many municipalities in New Jersey, the state’s highest court ruled that a municipal volunteer who had no paying job is entitled to wage replacement benefits at the highest statutory rate when injured, despite the fact that there is no actual lost time from any paying employment. This decision will have a big impact on New Jersey, where most of the 565 small towns and municipalities have various volunteer organizations providing ambulance and firefighter service. While the decision falls in line with the wage-replacement benefit for volunteer first responders in neighboring New York and Pennsylvania the ruling will have a big impact on the highly-taxed small towns in New Jersey where this is a reversal of more than 100 years of precedent. Continue reading New Jersey Supreme Court Awards Lost Wages to Volunteer with No Paying Job

New Jersey Appeals Court Limits Payments to Ambulatory Surgery Centers

In a decision issued January 29, 2019 a New Jersey Appellate Court has ruled that even though Medicare includes a CPT code and pays for specific treatment rendered in a ambulatory surgery center this does not obligate a New Jersey auto insurer to make payment for medical treatment billed under such code. At issue were bills submitted to an auto insurance carrier for treatment allegedly rendered in an out-patient facility to the claimant’s low back. The medical fees in dispute involved invoices from the facility not the doctor.

In this case, the facility, Specialty Surgery Center of North Brunswick, sough $32,500 in reimbursement from an automobile insurer for CPT code 63030, which refers to “lower back disc surgery.” The New Jersey Appeals Court ruled that the CPT code provided for reimbursement of physicians only, and not to ambulatory surgery centers. The court further found that despite Medicare’s position on reimbursement for that code, the surgery center was not entitled to payment under New Jersey’s personal injury protection (“PIP”) fee schedule promulgated by the New Jersey Department of Banking and Insurance for automobile claims.

While not mentioning the implications for medical provider claims in New Jersey workers’ compensation cases, this case stands for the proposition that where an ambulatory surgery center is seeking payment for fees that greatly exceed the normal reimbursement and justify those claims by referring to Medicare or other jurisdictional rules, the workers’ compensation carrier can argue that New Jersey’s PIP fee schedule should be relied upon by the workers’ compensation judge as a reasonable estimate of costs (where the surgery center accepts PIP payments). Case discussed: New Jersey Manufacturers Ins. Co. v. Specialty Surgical Center of North Brunswick, A-0319-17T1, A -0388-17T1 (N.J. App. Div. Jan. 29, 2019).

New Jersey Medical Provider Claims Have a Six-Year Statute of Limitations

Attorney Greg LoisOn January 17, 2019 the New Jersey Appellate Division ruled that medical providers filing a “Medical Provider Application for Payment or Reimbursement of Medical Payment” seeking additional money from workers’ compensation insurance carriers have six years to file their claims. This is longer than the two year Statute of Limitations which applies to the underlying workers’ compensation claim. This decision will increase the number of Medical Provider Claims filed in New Jersey.

Reasoning of the Appellate Court.

In The Plastic Surgery Center, PA. v. Malouf Chevrolet-Cadillac, Inc, the New Jersey Appellate Division decided that a medical provider has to file a claim in the Division of Workers’ Compensation within six years of the service provided. The case has been reported.

The Court noted that suits on contracts in New Jersey have a six-year statute of limitations under N.J.S.A. 2A:14-1. When the New Jersey Legislature amended the New Jersey statute in 2012 granting exclusive jurisdiction over disputed medical charges to the Division of Workers’ Compensation, the Legislature never addressed which statute of limitations would apply. The Court found that the rationale for a two year statute of limitations does not fit N.J.S.A. 34:15-51, which is the statute of limitations provision in New Jersey. The Court ruled that

“[w]e are most persuaded that the Legislature intended to leave unaltered the time within which medical-provider claims must be commenced because the Act’s two-year-bar simply doesn’t fit.”

The Court found that a two-year rule could mean that the statute would run on the rights of the medical provider to file before the medical service is even provided because the medical provider might not render its service until after two years from the date of accident.

Impact of this Decision.

According to the statistics provided by the Division of Workers’ Compensation, one of every five claim petitions in New Jersey is a Medical Provider Claim. This decision will likely embolden medical providers, working outside of New Jersey but closely watching the medical provider claim action in this State because they are covetous of the “usual and customary” (extremely high) payment scheme, to accelerate the trend of opening satellite offices in New Jersey and with he plan of continuing to persuade their patients to “cross a river” and seek ambulatory surgery, procedures, and treatment in New Jersey at a much higher cost to the carrier.

This decision does not address the payment to be reimbursed where the claimant’s only contact with the state of New Jersey is the place of treatment rendered. Right now there are conflicting decision issued by trial-level judges (Judge of Compensation) in the many workers’ compensation courts (vicinages).

New Case Decision: New Jersey Workers’ Compensation Carriers Can Subrogate Minor Injuries Even Where Petitioner Could Not

In a decision released December 4, 2018, a New Jersey appeals court ruled that a workers’ compensation carrier can sue the tortfeasor in an auto accident case even though petitioner, who wasn’t permanently injured, could not. This decision will be of interest to all workers’ compensation carriers in New Jersey. Continue reading New Case Decision: New Jersey Workers’ Compensation Carriers Can Subrogate Minor Injuries Even Where Petitioner Could Not