Most aspects of the New Jersey Workers’ Compensation Act are considered favorably by employers since the law gives employers the right to control medical care and allows termination of temporary disability benefits and medical benefits at maximal medical improvement. One aspect, however, of New Jersey law invariably frustrates employers: reopener claim petitions. These kinds of claims are not common in other states, and many employers are understandably perplexed at the sheer volume of reopeners in New Jersey. The fact is that a high percentage of awards containing a substantial percentage of disability will be reopened for additional benefits.
Technically, the correct term for a reopener is a modification of an award but most practitioners refer to these petitions as reopeners. Here are some basic questions and answers that clients often ask this practitioner.
Question #1: Is it true that only petitioners can file reopeners?
Actually either party can seek modification of a prior award. N.J.S.A. 34:15-27 states that an award may be reviewed on the ground that the disability has diminished. This practitioner has filed on several occasions a petition to modify an award for total disability where the claimant was found working while receiving total disability benefits. Generally, though, reopeners are filed by claimants seeking more medical, temporary or permanent disability benefits.
Question #2: How long does a claimant have to file a reopener?
The claimant has two years from the last payment of indemnity benefits or the last date of authorized treatment, whichever is later, to reopen the award. A period of insanity tolls the statute.
Question #3: What is the legal standard to prove entitlement to further permanency payments?
The claimant must show objective proof that his or her condition has materially worsened since the last award. That kind of proof is the same as proof required in any claim for partial permanent disability such as MRI or x-ray evidence of an impairment, but in a reopener the proofs involve a comparison between those offered at the initial hearing and those at the time of the settlement of the reopener petition. Respondents take the view that mere complaints of increased pain do not satisfy the legal standard for a higher award because pain is subjective. It is important for employers to obtain the transcript created at the time of the initial settlement and then compare those complaints with current complaints. If they have not changed, there may be no basis for additional compensation.
Question #4: When can the respondent resolve a reopener on a Section 20 basis?
Most employers prefer that a reopener claim resolves on a Section 20 because that ends the case and prevents any additional reopener petitions. There is technically no limit to how many times a claimant can reopen a case. A Section 20 in a reopener requires the same standards as any other case for a Section 20: namely, proof of a genuine issue regarding causation, liability, jurisdiction or dependency. Respondent’s counsel will take the position that if its doctor finds no objective change from the prior award, then there is a legitimate issue of liability for a Section 20. Another possible ground for a Section 20 is a subsequent accident since the time of the last award because the current complaints may be from the new accident, not the original accident. Judges of Compensation will generally permit a Section 20 on a reopener if one of the statutory bases has been met and if the claimant lacks evidence of objective changes since the time of the prior award.
Question #5: What should an employer do when the claimant’s attorney files a reopener petition and requests additional treatment?
This is a complicated issue about which there is some difference of opinion. Claimants’ counsel know that without any additional treatment since the prior award, it may be hard to persuade a Judge of Compensation that there is objective worsening. Most reopener petitions contain a request for treatment in spite of the fact that the claimant often has not treated at all since the filing of the petition. Certainly, if the claimant has received substantial authorized treatment following the award but prior to the reopener being filed, the petitioner should almost always be sent back to the treating physician to determine if there is a need for additional causally related treatment.
On the other hand, respondents often consider whether the request for treatment is in connection with what appears to be a “calendar” reopener, one which gets filed just before the two year statute of limitations runs. In that situation, if there has never been any request for treatment for almost two years, and then suddenly a reopener petition is filed with a request for treatment, many respondents will simply decline any request for treatment and set up a permanency exam with the same IME doctor who evaluated for permanency at the time of the original injury. This approach suffices in cases like this because the permanency evaluator can comment on both issues: whether there is a need for additional treatment as well as whether there is additional permanency.
Question #6: Is there any requirement that the respondent send the petitioner back to the treating doctor as opposed to the IME doctor who assessed permanency?
There is no statutory requirement to return the claimant to the treating doctor but it often makes more sense when the medical condition is serious and there has been intermittent post-award treatment. The opinion of a treating doctor is given more weight than that of a one-time IME doctor in respect to many issues, particularly the need for additional treatment. On rare occasions, the IME doctor may also have been the treating doctor. The reason this does not happen very often is that few treating doctors are familiar with New Jersey permanency estimates, and few IME doctors who perform permanency exams have active treating practices.
Question #7: When does it make more sense to return the claimant to the original IME doctor instead of the treating doctor?
Most defense IME doctors in New Jersey workers’ compensation excel at taking a detailed past medical history as well as a history of second jobs, recreational activities, motor vehicle accidents, and other potential causes of injury. The point in time between the entry of the initial award and the reopener petition is a crucial interval period. IME doctors understand what reopeners are about and tend to focus their attention on personal activities, new injuries, or stressors that may be relevant during this interval period of time. So if there are issues of causation regarding other possible injuries during the interval period, an IME doctor may be the better choice than the treating doctor. But if there really is no issue of causation, and genuine issues of treatment do exist, the treating doctor is most often the better choice. Once the treatment issue is resolved, then the employer should send the petitioner to the previous IME doctor to assess whether there is any additional partial permanent disability.