ffective Tuesday, July 6, 2004 the NJ Division of Workers' Compensation is operating under new rules concerning: initial pleadings; motions for temporary & medical benefits; suveillance tapes; substitutions of attorney; and the Uninsured Employers Fund. Administrative discussion of the comments submitted and the new rules are listed below.
NEW JERSEY REGISTER
VOLUME 36, NUMBER 13
TUESDAY, JULY 6, 2004
DIVISION OF WORKERS' COMPENSATION
RULES OF THE DIVISION OF WORKERS' COMPENSATION
REQUESTS FOR CAMERA AND AUDIO COVERAGE OF PROCEEDINGS; FORMAL CLAIMS; UNINSURED
Adopted Amendments: N.J.A.C. 12:235-3.1, 3.2, 3.9, 3.10 7.2, 7.3, 7.4, 7.6 and 7.7
Adopted New Rule: N.J.A.C. 12:235-1.4
Proposed: March 15, 2004 at 36 N.J.R. 1350(a).
Adopted: June 11, 2004 by Albert G. Kroll, Commissioner, Department of Labor.
Filed: June 11, 2004 as R.2004 d.263, without change.
Authority: N.J.S.A. 34:1-20, 34:1A-3(c), 34:1A-12(b) and (c) and 34:16-64 et seq.
Effective Date: July 6, 2004.
Expiration Date: March 9, 2006.
Summary of Hearing Officer's Recommendations and Agency Responses:
A public hearing on the proposed regulatory amendments was held on April 6, 2004 at the Department of Labor, John Fitch Plaza, Trenton, New Jersey. Frederick S. Cohen, Regulatory Officer, was available to preside at the hearing and to receive testimony. One individual, Jay H. Bernstein, Esq., of the firm Spevack and Canaan P.C., appeared at the public hearing. His comments are summarized below. The hearing officer recommended that the proposed rules be readopted without change. The public hearing record may be reviewed by contacting Frederick S. Cohen, Regulatory Officer, Department of Labor, PO Box 110, Trenton, New Jersey 08625-0110.
Summary of Public Comments and Agency Responses:
One individual, Jay H. Bernstein, Esq., of the firm of Spevack and Canaan P.C., proffered the following comments at the public hearing:
COMMENT: With regard to the proposed amendments to N.J.A.C. 12:235-3.2(h) and (j), Motions for Temporary Disability and/or Medical Benefits, Mr. Bernstein noted his support therefor.
RESPONSE: The Department appreciates Mr. Bernstein's stated support.
COMMENT: Mr. Bernstein expressed his objection to the proposed amendment of subparagraph (a)4i of N.J.A.C. 12:235-3.9, Pre-trial conference, which states that a party is not required to provide or exhibit electronic information, including surveillance tapes, to another party prior to the party's testimony under oath. Instead, Mr. Bernstein suggested that the parties should be required to review such information in camera prior to the receipt of the party's testimony.
RESPONSE: The Division believes that Mr. Bernstein's suggestion is not a workable one, since it could prove detrimental to a respondent's trial strategy and case defense. The Division believes that the best course is that set forth in the proposed rule since it gives a respondent the option to share or disclose such information before a party testifies, but it does not impose an obligation upon the respondent to do so. Moreover, the Division is of the opinion that the proposed rule is consistent with current New Jersey Supreme Court policy regarding disclosure of electronic information.
Written comments were submitted subsequent to the public hearing by Mark B. Zirulnik, Esq. of the firm of Passman, Dougherty and Zirulnik:
COMMENT: Mr. Zirulnik opined that proposed N.J.A.C. 12:235-3.9(a)4ii, which permits a party to move to amend the pre-trial memorandum to include any necessary changes including the introduction of electronic materials obtained subsequent to the pre-trial order, is unnecessary since no rule presently precludes the foregoing.
RESPONSE: The Division respectfully disagrees with Mr. Zirulnik's position. Rather, it believes that the proposed rule is both useful and necessary since it formally provides, in regulatory format, a practice which, while hitherto permitted, has never been codified.
COMMENT: Proposed N.J.A.C. 12:235-3.10(a)1i allows for a substitution of one attorney for another attorney by filing the Division of Workers' Compensation substitution of attorney form anytime up to the commencement of a trial. The rule states that when a substitution of attorney is requested at the time of trial or after trial has commenced, it must be approved by the Judge of Workers' Compensation. This proposed rule change has the flavor of "designated counsel" mandated by the Workers' Compensation Judge, not unlike the rule in the Superior Court. Given the different nature of our practice, there is no reason why attorneys from one firm cannot be interchangeable in the ongoing cyclical trial procedures of the Workers' Compensation Court. If "designated counsel" is not the intent of this rule change, Mr. Zirulnik respectfully suggests that clarification in the wording of the rule be considered so that no room is left for misinterpretation.
RESPONSE: Proposed N.J.A.C. 12:235-3.10(a)1i was reviewed by the Division's Advisory Council, as well as others in the Workers' Compensation community without misunderstanding as to the rule's requirements. Therefore, it is not necessary to add further clarification to the proposed rule. Moreover, it should also be noted that the proposed rule does not preclude appearances by other attorneys from the same firm or per diem counsel as long as the firm or listed attorney remains as the attorney of record.
COMMENT: Mr. Zirulnik objects to the amendment to N.J.A.C. 12:235-3.2(h). The latter would permit a Judge of Compensation to order one of a number of respondents to pay a petitioner benefits based on a motion for medical and temporary disability benefits filed in a case where the only remaining issue is which respondent is liable financially to petitioner. Thus, said respondent would pay without prejudice and he or she could subsequently be monetarily reimbursed if a different respondent is later found to be liable for the payment of the benefits in question. More specifically, Mr. Zirulnik states that ". . . the rule change will encourage petitioner's counsel to seek out more than one respondent to file against in each and every matter involving a motion for medical and temporary benefits, and then declare that the only issue is which respondent is liable."
RESPONSE: The Division must disagree with Mr. Zirulnik's objection to the proposed rule. It should first be noted that the proposed rule has already been reviewed by the Division's Advisory Council and others, and no one else has arrived at the concerns expressed in his letter. The Division believes the proposed rule strikes a fair and equitable balancing of the interests of all the parties involved in such cases and, in fact, saves time and costs to all parties. Since reimbursement will be provided if the proofs later show a different respondent is responsible for the benefits, there is no constitutional violation or unfairness in ensuring that a petitioner in need of medical treatment and/or temporary benefits receives such compensation without delay when there is no dispute over the need and work causality of the disability.
Other written comments were also received from John J. Marchioni, Director of Government Affairs and Compliance of Selective Insurance Company of America:
COMMENT: Mr. Marchioni expressed his objection to N.J.A.C. 12:235-3.2, which refers to motions for temporary disability and/or medical benefits. Specifically, he objects to subsection (h) which would allow a Judge of Compensation to order one of a number of respondents to pay benefits to a petitioner based on a motion for medical and temporary disability benefits filed in a case where the only remaining issue is which respondent is liable therefor. Mr. Marchioni claims that the latter subsection is unnecessary and would unfairly shift the burden of proof to the chosen respondent requiring that he or she ultimately demonstrate that he or she is not the responsible party and, therefore, entitled to an order of reimbursement in his or her favor.
RESPONSE: For a number of reasons, the Division disagrees with Mr. Marchioni's recommendation to either remove the proposed rule in its entirety or add some additional requirements. Firstly, the proposed rule has already been reviewed by the Division's Advisory Counsel and others, and found to be satisfactory. Secondly, the rule as written serves the interests of all parties by allowing a petitioner to receive necessary and reasonable treatment as soon as possible and allows his or her return to work in the shortest possible amount of time.
Thirdly, the Division believes that the proposed rule strikes a fair and equitable balancing of the interests of all the parties involved in such cases and, in fact, saves time and costs to all parties. Since reimbursement will be provided if the proofs later show a different respondent is responsible for the benefits, there is no constitutional violation or unfairness in ensuring that a petitioner in need of medical treatment and/or temporary benefits receives such compensation without delay when there is no dispute over the need and work causality of the disability. Fourthly, the Division does not foresee that the proposed rule would result in any abuse or unfair shifting of a burden of proof to the respondent chosen by a Judge of Compensation because the proposed rule only calls for the chosen respondent to pay benefits without prejudice and subject to reimbursement. And finally, the Division does not believe that the additional requirements proposed as an addition to the end of the proposed rule are necessary because an objecting party can be heard on the record in the same manner that a party can be heard on any other motion or proceeding. The Division believes that allowing oppositional testimony at the juncture proposed would defeat the main purpose of the proposed rule, that is, to expedite the process of delivering workers' compensation benefits while the exact identification of which respondent(s) should pay is being determined.
COMMENT: Referencing subparagraph (a)4i of N.J.A.C. 12:235-3.9, Pre-trial conference, Mr. Marchioni asserted that the rule should be stricken as unnecessary. In particular, he stated that the flexibility provided by existing rules dealing with the use of electronic media have served the Court and all parties well.
RESPONSE: The Division disagrees with the latter conclusion and believes that the proposed rule is useful and necessary for stating in rule form what had previously been the practice of the Division in permitting a party to amend the pre-trial memorandum. The Division also believes that the rule will actually add flexibility by ensuring that all parties have timely notice when a party intends to use electronic media at trial.
Lastly, Deborah Wean, Esq., Assistant Counsel for the NJM Insurance Group submitted the following written comment:
COMMENT: Ms. Wean stated that N.J.A.C. 12:235-3.9(a)4, which requires that any party intending to use electronic media at trial must indicate such intent in writing on the pre-trial memorandum and identify the witnesses who will authenticate and testify about same, represents a departure from current practice. She further asserts that the proposed rule will hinder an insurance carrier's ability to conduct full and thorough fraud investigations.
RESPONSE: It is the position of the Division that the adoption and implementation of the proposed rule will result in an equitable balancing of the interests of all litigant parties as they pertain to the disclosure of surveillance video tapes and related information. Moreover, the proposed rule effectively codifies what has been the normative practice within the Division. Thus, the Division is of the opinion that the proposed N.J.A.C. 12:235- 3.9(a)4 should be adopted in its present form.
Federal Standards Statement The adopted amendments and new rule do not exceed standards or requirements imposed by Federal law as there are no such standards or requirements applicable thereto.
Full text of the adoption follows:
<< NJ ADC 12:235-1.4 >>
12:235-1.4 Still and television camera and audio coverage of proceedings
(a) All requests for still and television camera and audio coverage of proceedings shall be forwarded to the Chief Judge.
(b) Such requests shall be considered in accordance with the "New Jersey Supreme Court Guidelines for Still and Television Camera and Audio Coverage of Proceedings in the Courts of New Jersey," incorporated herein by references as amended and supplemented which may be obtained by requesting: Vicinage Operations Directive #10-03, October 8, 2003 from the Administrative Office of the Courts, Hughes Justice Complex, 25 West Market Street, PO Box 037, Trenton, New Jersey 08625-037.
<< NJ ADC 12:235-1.5 >>
<< NJ ADC 12:235-3.1 >>
12:235-3.1 Initial pleadings
(a)-(b) (No change.)
(c) Petitions and answers filed electronically shall be accepted by the Division in lieu of paper pleadings provided:
1.-2. (No change.)
3. The filer makes an identical paper copy of the electronically submitted pleading and obtains thereon a verification by oath, affirmation or certification of the petitioner or respondent, as applicable, as to the accuracy of the information set forth therein.
4. The filer shall retain, as an officer of the court, the duly verified pleading and shall make available to the Division and/or his or her adversary upon request.
5. (No change.)
(d)-(e) (No change.)
(f) Claim petitions will be assigned in the following priority order: the vicinage for the county where the petitioner resides; the vicinage for the county where the respondent is situated; or the vicinage for the county where the accident or exposure occurred.
(g) A copy of the claim petition shall be forwarded by the Division to the respondent either electronically for electronic filers, by regular mail, or by registered mail return receipt requested if served pursuant to N.J.S.A. 34:15-55.1. Where a motion for default has been filed, the petitioner must provide proof that the claim petition and motion for default have also been served personally on the respondent, its agents, and/or corporate officers as applicable, pursuant to R. 4:4-4 of the New Jersey Rules of Court.
<< NJ ADC 12:235-3.2 >>
12:235-3.2 Motions for temporary disability and/or medical benefits
(a)-(g) (No change.)
(h) For motions where it appears the only issue involved is which carrier or employer is liable to petitioner for the benefits sought, a judge of compensation may order one carrier or employer to pay benefits without prejudice and subject to an order of reimbursement if another party is later held liable for such benefits.
(i) (No change in text.)
(j) Every carrier and self-insured employer shall designate a contact person who is responsible for responding to issues concerning medical and temporary disability benefits where no claim petition has been filed or where a claim petition has not been answered. The full name, telephone number, address, e-mail address, and fax number of the contact person shall be submitted to the Division. Whenever any of this information about the contact person needs to be updated, such updated information shall be submitted to the Division. After an answer is filed with the Division, the attorney of record for the respondent shall act as the contact person in the case.
<< NJ ADC 12:235-3.9 >>
12:235-3.9 Pre-trial conference
(a) In any formal proceeding, the Division shall schedule a pre-trial conference where the following shall be accomplished:
1.-3. (No change.)
4. A pre-trial memorandum on a form prescribed by the Division shall be executed.
i. Any party that intends to utilize videos or other electronic media, including surveillance tapes, must indicate that such media will be utilized at trial and identify the witness who will authenticate and testify concerning the materials to be presented in the "Other Witness" section of the pre-trial memorandum or as an addendum to the pre-trial memorandum. A party is not required to provide or exhibit electronic information, including surveillance tapes, to another party prior to the other party's testimony under oath.
ii. A party may move to amend the pre-trial memorandum to include any necessary changes including the introduction of electronic materials obtained subsequent to the pre-trial; or
5. (No change.)
(b)-(d) (No change.)
<< NJ ADC 12:235-3.10 >>
12:235-3.10 Conduct of formal hearings
(a) The following concern appearances:
1. Only an attorney at law licensed to practice in the State of New Jersey shall act as attorney of record.
i. A substitution of attorney is permitted by filing a Substitution of Attorney (WC-10) form any time up to the commencement of a trial when another attorney is being substituted to represent a party. At or after the commencement of trial, a substitution of attorney must be approved by a Judge of Compensation.
ii. An attorney who has entered an appearance for a party must file a motion to be relieved as counsel when another attorney is not being substituted. Notice of such motion, including the date of the hearing, shall be given to the client to afford an opportunity to be heard on the motion.
2. Unless otherwise required by law to be represented by counsel and, subject to (a)1ii above, when an attorney has entered an appearance, a party may appear pro se.
3. (No change.)
(b)-(q) (No change.)
(r) Forms of subpoena, bearing the seal of the Department, shall be made available at all district offices. A party may prepare a subpoena and authorize its service, in accordance with the New Jersey Rules of Court, in the name of the Judge of Compensation assigned to the case, to compel the attendance of witnesses and the production of books and papers and such other items as shall be subject to production. However, the return date of such subpoena will be the date of the workers' compensation proceeding instead of the date of deposition referred to by the New Jersey Rules of Court. A copy of the subpoena shall also be provided to the Judge of Compensation whose name appears on the subpoena.
(s)-(x) (No change.)
<< NJ ADC 12:235-7.2 >>
12:235-7.2 Filing notice of an uninsured claim; personal service; subpoena duces tecum; third party joinder
(a) Petitioner or petitioner's attorney shall contact the Compensation Rating and Inspection Bureau for coverage information in writing within 30 days after the petitioner or the petitioner's attorney knew or should have known that the employer was uninsured or has received confirmation that the employer was uninsured on the date of the accident or occupational exposure alleged in the claim petition. A copy of the Rating Bureau's response shall be included in the motion to join the UEF.
(b) If benefits may be sought from the UEF, the petitioner or petitioner's attorney shall notify the UEF in writing within 30 days after the petitioner or petitioner's attorney knew or should have known that the employer was uninsured on the date of the accident or occupational exposure or has received information from the Compensation Rating and Inspection Bureau showing that the employer was uninsured on the date alleged.
(c) In order to secure reimbursement of a petitioner's temporary disability benefits from the Uninsured Employers Fund, the petitioner shall file a motion to join the UEF in an action brought against the uninsured employer.
1. When filing a motion to join the UEF, the petitioner's attorney or petitioner shall attach a copy of the inquiry and response of the Compensation Rating and Inspection Bureau.
2. (No change.)
3. A copy of the motion to join the UEF shall be served upon the Fund in the Office of Special Compensation Funds, PO Box 399, Trenton, New Jersey 08625- 0399.
(d)-(f) (No change.)
<< NJ ADC 12:235-7.3 >>
(a) Petitioner shall submit a certification when filing a motion for an uninsured claim. The certification shall be specific, and shall contain the following information if known or available to the petitioner and should be supplemented as such information becomes known or available to the petitioner:
1. The date of hire immediately preceding the date of the accident, injury or occupational exposure;
2. (No change.)
3. Copies of petitioner's W-2 forms for all dates of employment during the year in which the accident occurred;
4. Pay stubs for or other documentation in support of all wages received from respondent for the six months immediately preceding the date of the accident or occupational exposure;
5. The total wagers received from respondent for 12 months immediately preceding the accident, which includes salary, gratuities, services, in lieu of wages, meals or lodging;
6. The name, address (business and personal) and phone number of the respondent and any corporate officer or manager of the company;
7.-9. (No change.)
10. The address and/or other identifying information about where the injury occurred, including the name of the owner of the property and the reason why the employee was at the location where the injury occurred;
11.-12. (No change.)
13. The date on which a medical provider was first contacted concerning injuries sustained in the accident or occupational condition;
14.-16. (No change.)
17. A detailed listing of medical expenses which have been paid, the dates the medical services were provided, the names of individuals and entities providing such services, and the sources and amounts of such payments; and
18. Whether or not the petitioner is receiving or has applied for Social Security, unemployment compensation, temporary disability insurance, disability insurance, pensions or any other wage-related benefits.
<< NJ ADC 12:235-7.4 >>
12:235-7.4 Medical bills; physician's examination
(a) (No change.)
(b) The UEF may order an independent medical examination of a petitioner by a physician at any time when the UEF is involved or when it appears the UEF may become involved in a case. The examining physician may be asked to offer an opinion on:
1. The causal relationship between the alleged accident or occupational exposure and the petitioner's current medical condition;
2. The necessity of petitioner's previous and current medical treatment and the reasonableness of charges for such treatment for the alleged accident or occupational exposure;
3. (No change in text.)
4. Whether the petitioner is able to return to work;
5. Whether or not petitioner required further treatment to reach maximum medical improvement; and
6. Any other pertinent issues or information.
(c) Fees for the independent medical evaluation ordered by the UEF shall be paid by the UEF.
(d) If it appears that the petitioner may be entitled to benefits from the UEF, then the UEF may direct the petitioner to the appropriate authorized treating physician for treatment.
1. Treatment obtained by petitioner from any physician other than the one authorized by the UEF shall be deemed to be unauthorized treatment, and costs for such treatment shall not be payable by the UEF.
(e) The UEF may provide for medical care to assist the petitioner until he or she has reached maximum medical improvement.
<< NJ ADC 12:235-7.6 >>
12:235-7.6 Payments from the UEF
(a) Payments from the UEF shall be made only in accordance with N.J.S.A. 34:15-120.4.
1. The UEF shall not reimburse governmental agencies for benefits paid to or on behalf of the petitioner except for benefits or expenses conditionally paid under the New Jersey Temporary Disability Benefits Law (N.J.S.A. 43:21-25 et seq.), New Jersey Medicaid reimbursement statute (N.J.S.A. 30:4D-7.1), and the Federal Medicare Secondary Provider Statute (42 U.S.C. § 1395y). Such reimbursements for medical expenses are subject to the limitations set forth in N.J.A.C. 12:235-7.4(e).
2. Payments under (a)1 above can be made only after a Judge of Compensation has ordered the uninsured employer to reimburse the agency or agencies making the conditional payments and the uninsured employer has defaulted on making such reimbursements within the time period set forth by N.J.S.A. 34:15- 120.3 and 34:15-120.4.
<< NJ ADC 12:235-7.7 >>
12:235-7.7 Attorney fees
(a) An attorney fee may be payable from the UEF to the petitioner's attorney when the petitioner is found eligible for UEF benefits by the Commissioner and shall exclude any fees awarded in association with permanent disability benefits.
(b) An attorney shall make an application to the Commissioner for payment of the attorney fee awarded by the Judge of Compensation for obtaining the medical and/or temporary benefits assessed against the respondent.
36 N.J.R. 3294(a)