The New Jersey Appellate Division recently rendered a decision on October 10, 2019 dealing with the quality of proofs required when filing a Med/Temp Motion or the opposition to same. While the decision is “unpublished” and therefore not binding precedent upon any court, the takeaways from the Appellate Division’s decision are useful for claims professionals and attorneys when obtaining proofs, considering proofs and ultimately submitting proofs to the court in opposition to Motion for Medical and Temporary Disability benefits.
NJ Workers’ Compensation rules provide that affidavits, certifications or medical reports may be submitted in support of, or in opposition to, a Motion for Medical and Temporary Benefits but those proofs must meet certain standards to be considered by the Court.
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.
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).
In general, the Federal Employers Liability Act preempts the New York Workers’ Compensation Law unless the parties waive their federal rights and claims. The Board lacks the authority to rule on jurisdictional issues regarding federal claims (such as whether or not the claimant is an employee of the interstate entity. This is because WCL § 113, states that “[t]he provisions of [the New York Workers’ Compensation Law] shall apply to employers and employees engaged in intrastate, and also interstate and foreign commerce for whom a rule of liability or method of compensation may be established by the congress of the United States . . . provided that awards according to the provisions of this chapter may be made by the board . . . in case the claimant, the employer and the insurance carrier waive their admiralty or interstate rights and remedies.”
In a recent case, McCray v. CTS Enterprises, 166 A.D.3d 1356 (3d Dep’t 2018) the court reversed a Board panel decision finding that the Board lacked the jurisdiction to determine issues of employment for employees engaged in interstate railway work because federal law preempted the state workers’ compensation law.
On 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).