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Director Wojtenko Issues Memo to All Attorneys on Strict Compliance with the Rules on Motions for Medical and Temporary Disability Benefits

By on October 27, 2016 in Policy with 0 Comments

The Honorable Russell Wojtenko, Jr., Director and Chief Judge, issued a Memo effective October 21, 2016 to all workers’ compensation attorneys advising that the administrative rules on motions for medical and temporary disability benefits will be strictly enforced.  What this means to employers, carriers, third party administrators and practitioners is that motions for medical and temporary disability benefits must be handled right away and forwarded to counsel immediately.  Otherwise respondents will lose motions based solely on failure to meet certain time deadlines noted below.

The Director’s Memo cites N.J.A.C. 12:235-3.2, which says that “a respondent shall file an answer within 21 days of service of the motion or within 30 days after service of the claim petition, whichever is later.”

The respondent’s exam shall be completed within 30 days of receipt of the motion and the report issued in not more than 35 days from receipt of the motion and shall not delay the start of the hearing of the motion except for good cause shown.”

This is not a new rule. The prior rule was amended in 2002 to state exactly what the Director has quoted above.  However, the rule has been seldom enforced since 2002 primarily because it is extremely difficult for respondents to get an exam within 30 days of the filing of the motion and still harder to get a report within 35 days of the filing of the motion.  Some doctors will not schedule within 60 days, much less 30 days, and it often takes a doctor 10 to 14 days to issue a report.

The Director’s memo concludes by stating, “The following requirements on motions for medical and temporary disability benefits shall be strictly enforced.”  We advise that carriers and third party administrators, when served with motions for medical and temporary disability benefits, must send such motions immediately to defense counsel.  An answer must be filed within 21 days, unless the motion comes with the claim petition (in which case the time is extended to 30 days). The time is running from the date the carrier, third party administrator or self-insured receives the motion.  If the carrier holds the motion for 10 days without acting on it, then there remain only 11 days to file an answer, 20 days to get the defense exam and only 25 days to obtain the report.

These timelines will be extremely problematic for all respondents statewide because treating and IME doctors can seldom find scheduling slots within a few weeks and then turn around a report in a few days.  Because of these somewhat unrealistic timelines established in 2002, many employers will soon lose and pay orders on cases for which there were valid defenses.  All employers, carriers, third party administrators and counsel should develop reliable methods to handle motions for medical and temporary disability benefits.  A motion for medical and temporary disability benefits should be treated now like a 911 call.

Practitioners should bear in mind that the Director also reminded claimants’ counsel that a valid motion must contain affidavits or certifications in support of the motion.  The Memo adds that the motion should include reports of a physician, stating the medical diagnosis and the specific type of diagnostic study, referral to a specialist, or treatment sought.  Motions which do not meet these requirements will be rejected.  This is less onerous on petitioners and their counsel because a deficient motion can always be refiled later with adequate paperwork.  But once an order is entered against respondent, the only route left to respondent is an appeal.

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John H. Geaney

About the Author

About the Author:

John H. Geaney, an executive committee member and shareholder with Capehart Scatchard, began an email newsletter entitled Currents in Workers’ Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates.

Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers. The manual is distributed by the New Jersey Institute for Continuing Legal Education (NJICLE). He also authored an ADA and FMLA manual as distributed by NJICLE. If you are interested in purchasing the manual, please contact NJICLE at 732-214-8500 or visit their website at www.njicle.com.

Mr. Geaney represents employers in the defense of workers’ compensation, ADA and FMLA matters. He is a Fellow of the College of Workers’ Compensation Lawyers of the American Bar Association and is certified by the Supreme Court of New Jersey as a workers’ compensation law attorney. He is one of two firm representatives to the National Workers’ Compensation Defense Network. He has served on the Executive Committee of Capehart Scatchard for over ten (10) years.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School. He has been named a “Super Lawyer” by his peers and Law and Politics. He serves as Vice President of the Friends of MEND, the fundraising arm of a local charitable organization devoted to promoting affordable housing.

Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Trenton, New Jersey. The firm represents employers and businesses in a wide variety of areas, including workers’ compensation, civil litigation, labor, environmental, business, estates and governmental affairs.

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