Video: Top Tips for Medical Provider Claims in New Jersey

Attorneys Joe Jones and Gregory Lois present practical methods for closing New Jersey Medical Provider Claims. The attorneys discuss recent case law developments, tactics for negotiating closures, and trial strategy. The video and handout materials (below) are from the live presentation provided to the Firm’s clients on May 6, 2019.

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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).

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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

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

IME Watchdog Materials Held Privileged

On March 19, 2019 the Appellate Divison of New York’s Supreme Court ruled that the materials held by and created by a third-party observer to an independent medical evaluation were protected by litigation privilege. The observer, a service called “IME Watchdog” was hired by the plaintiff’s counsel in a civil action. The service describes itself as “a weapon against insurance companies and their hired gun IMEs.”

This is a case of first impression in New York and can be found atMarkel v. Pure Power Boot Camp. In Markel, the plaintiff appeared for a physician exam with an IME doctor chosen by the defense. The plaintiff’s attorney hired a person from IME Watchdog to be present. The defense then served a subpoena on the IME Watchdog service seeking notes, reports, and other materials. The IME Watchdog ultimately prevailed in having the subpoena quashed as the court found that the qualified litigation privilege applied.

The court ruled that the materials (including the notes and reports created by the IME Watchdog and which were the subject of the subpoena) were created in preparation for litigation. The court found that the IME Watchdog was an agent of plaintiff’s attorneys and therefore the materials were protected under CPLR 3101(d)(2).

Defending Employers