Is It Time For A Delay Of Game Penalty And Workers' Compensation?
Workers' Compensation
Delay has always been a problem when injured workers need medical treatment. Traditionally, insurance companies, especially in hard economic times, have sought to hold onto their money and not distribute benefits. In a recent New Jersey workers' compensation case, the Appellate Division refused to allow the insurance company to "snow" the court with excuses for not providing medical care to an injured worker.
NINE MONTHS OF LOST TIME
A worker was seriously injured when struck by a forklift and pinned against the wall by the machinery. An MRI indicated that the injured worker suffered a right hip anterior labral tear, and the worker was conservatively treated with injections and chiropractic care. After nine months of lost time, he could return to work part-time with a restricted limit to lifting 20 pounds.
Six months after his return to work, while merely walking through deep snow, he suffered a re-occurrence of the right hip pain and limitation of motion of the limb. Arthroscopic hip surgery was required. Before surgery, the workers' compensation carrier denied responsibility and refused to provide medical care.
MOTION FOR TEMPORARY AND MEDICAL BENEFITS
The worker was required to file a notice of motion to seek reimbursement for medical treatment and temporary disability benefits. The respondent denied a causal relationship raising the defense of an intervening superseding event. The respondent also claimed the motion was moot since the medical treatment had already occurred. The Division Workers' Compensation issued a written decision in December 2007, 22 months after the respondent refused to provide medical treatment. An appeal was taken nine months later before the Appellate Division of the State of New Jersey, and the trial court decision was affirmed. The process took 29 months.
The Appellate Division, in its decision, did not address the issue of why the system takes a long. Still, it commented that the defenses raised by the respondent did not meet the threshold level to reverse the trial court's decision. The Appellate Division indicated that the motion was not moot merely because the medical treatment was subsequently rendered and that the employer did not establish that the injured workers suffered an independent and subsequent injury in February of 2006.
DELAY
This case highlights that the workers' compensation process has a major failure. While the State of New Jersey has perennially attempted to address these issues, legislation has not been enacted to improve the system. The process is fraught with problems and does not keep up with the advancements in medical science and the delivery of modern medical care expeditiously and efficiently. The hurdles the injured worker has to j navigate provide substantial barriers for injured workers and their advocates. A system that was supposed to be remedial, efficient, and summary, has now turned into a dilatory litigation machine utilized by employers to defeat claims. The same employers complain that reimbursement of medical benefits through secondary payers, such as the Centers for Medicare and Medicaid Services, has made a simple process into a complex and painfully slow remedy. The practice of snowing the court with meritless defenses, without penalty, i.e., pre-judgment interest, contributes to the further destruction of the workers’ compensation program.
Cuccineillo v Sports Authority, 2008 WL 4329874 (N.J. Super. App. Div.) Decided September 24, 2008. [Unreported decision]
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The author, Jon L. Gelman, practices law in Wayne, NJ. He is the author of NJ Workers’ Compensation Law (Thomson-Reuters) and co-author of the national treatise Modern Workers’ Compensation Law (Thomson-Reuters). For over five decades, the Law Offices of Jon L Gelman 1.973.696.7900 jon@gelmans.com have represented injured workers and their families who have suffered occupational accidents and illnesses.
Recommended Citation: Gelman, Jon L., Is It Time For A Delay Of Game Penalty And Workers' Compensation? , www.gelmans.com (2008),
https://www.gelmans.com/ReadingRoom/tabid/65/ArtMID/1482/ArticleID/530/preview/true/Default.aspx
© 2001-2023 Jon L Gelman. All rights reserved.
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