S3375

An Act concerning medical treatments arising from workers’ compensation claims, supplementing chapter 15 of Title 34 of the Revised Statutes, and amending various sections of the statutory law.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. R.S.34:15-53 is amended to read as follows:

34:15-53. Within 20 days after the filing of an answer, or the expiration of the time for filing an answer if no answer is filed, the secretary of the division shall fix a time and place for hearing the petition, or shall send the petition and answer or a transcript of the petition and answer to the director, a deputy director or 1 of the referees, in which case such director, deputy director or referee, within 20 days after the filing of the answer, shall fix a time and place for the hearing of the petition. Such time shall be not less than 4 weeks nor more than 6 weeks after the filing of the petition, provided however, that in cases where the extent of permanent disability, total or partial, is an issue, the determination of such issue shall be deferred as provided in section 34:15-16 of this Title. The petition shall be heard either in the county in which the injury occurred or in which the petitioner or respondent resides, or in which the respondent's place of business is located, or in which the respondent may be served with process. When a time and place has been fixed for such hearing, the director, deputy director or the referee to whom the cause has been referred shall give at least 10 days' notice to each party of the time and place of hearing. Unless the petitioner or respondent gives good cause to the director, deputy director, or the referee that an in-person proceeding is necessary for the proper administration of justice, any administrative matter, conference, or hearing to approve a settlement shall be conducted by telephone or video conferencing. The director, deputy director or any referee to whom a cause has been referred, shall have power to adjourn the hearing thereof from time to time in his discretion.

(cf: P.L.1956, c.141, s.7)

2. R.S.34:15-64 is amended to read as follows:

34:15-64. a. The commissioner, director and the judges of compensation may make such rules and regulations for the conduct of the hearing not inconsistent with the provisions of this chapter as may, in the commissioner's judgment, be necessary. The official conducting any hearing under this chapter may allow to the party in whose favor judgment is entered, costs of witness fees and a reasonable attorney fee, not exceeding 20% of the judgment; and a

reasonable fee not exceeding $400 for any one witness, except that the following fees may be allowed for a medical witness:

(1) (a) A fee of not more than $600 paid to an evaluating physician for an opinion regarding the need for medical treatment or for an estimation of permanent disability, if the physician provides the opinion or estimation in a written report; and

(b) An additional fee of not more than $400 paid to the evaluating physician who makes a court appearance to give testimony; or

(2) (a) A fee of not more than $450 paid to a treating physician for the preparation and submission of a report including the entire record of treatment, medical history, opinions regarding diagnosis, prognosis, causal relationships between the treated condition and the claim, the claimant's ability to return to work with or without restrictions, what, if any, restrictions are appropriate, and the anticipated date of return to work, and any recommendations for further treatment; and

(b) (i) An additional fee of not more than $300 per hour, with the total amount not to exceed $2,500, paid to the treating physician who gives testimony concerning causal relationship, ability to work or the need for treatment; or

(ii) An additional fee of not more than $300 per hour, with the total amount not to exceed $1,500, paid to the treating physician who gives a deposition concerning causal relationship, ability to work or the need for treatment.

b. (1) No fee for an evaluating physician pursuant to this section shall be contingent on whether a judgment or award is or is not made in favor of the petitioner.

(2) No evaluating or treating physician shall charge any fee for a report, testimony or deposition in excess of the amount permitted pursuant to the provisions of this section.

c. A fee shall be allowed at the discretion of the judge of compensation when, in the official's judgment, the services of an attorney and medical or expert witnesses are necessary for the proper presentation of the case. In determining a reasonable fee for medical or expert witnesses, the official shall consider (1) the time, personnel, and other cost factors required to conduct the examination or expert services; (2) the extent, adequacy and completeness of the medical evaluation or expert services; (3) the objective measurement of bodily function and the avoidance of the use of subjective complaints; and (4) the necessity of a court appearance of the medical or expert witness. When, however, at a reasonable time, prior to any hearing compensation has been offered and the amount then due has been tendered in good faith or paid within 26 weeks from the date of the notification to the employer of an accident or an occupational disease or the employee's final active medical treatment or within 26 weeks after the employee's return to work whichever is later or within 26 weeks after employer's notification of the employee's death, the reasonable allowance for attorney fee shall be based upon the amount of compensation, theretofore offered, tendered in good faith or paid after the establishment of an attorney-client relationship pursuant to a written agreement, and the amount of the judgment or award in excess of the amount of compensation, theretofore offered. When the amount of the judgment is less than $200, an attorney fee may be allowed not in excess of $50. Any fees that the judge of compensation determines are necessary for the proper presentation of the case shall not be limited by any other provision of chapter 15 of Title 34 of the Revised Statutes.

d. All counsel fees of claimants' attorneys for services performed in matters before the Division of Workers' Compensation, whether or not allowed as part of a judgment, shall be first approved by the judge of compensation before payment. Whenever a judgment or award is made in favor of a petitioner, the judges of compensation or referees of formal hearings shall direct amounts to be deducted for the petitioner's expenses and to be paid directly to the persons entitled to the same, the remainder to be paid directly to the petitioner. In a matter in which compensation, including compensation for medical services, is denied or not promptly provided, and the compensation is paid after a motion claiming the compensation is filed on behalf of the petitioner, the respondent shall pay the actual costs in presenting the motion, including but not limited to the costs of all expert witnesses, together with a counsel fee to the petitioner’s counsel in the amount of 20 percent of the expense of all medical and temporary benefits paid by the respondent after the motion filing.

(cf: P.L.2018, c.105, s.1)

3. (New section) When an employer furnishes treatment pursuant to R.S.34:15-15, the relationship between treating physician and injured employee shall be deemed the same as if privately contracted between physician and patient, except that the employer shall pay the usual, reasonable, or customary charges for reasonable and necessary treatment causally related to the injury or occupational disease as further provided under this section. Any employer, insurance carrier, or third-party administrator who hires, contacts, designates, or manages medical treatment shall provide the time, date, and substance of any communications with the treating physician to the patient or the patient’s legal representative as soon as is practicable. Any written or electronic communication shall be provided contemporaneously to the employee or the employee’s designated representatives upon request by employee or employee’s authorized representatives. Nurses or rehabilitation professionals who attend medical treatment appointments either personally or via electronic means shall be authorized to do so by the patient or the patient’s legal representative. The substance of nurse or rehabilitation professional participation shall be revealed to the patient or the patient’s legal representative. No medical provider shall withhold any communication from an employer or its insurance carrier, or third-party administrator, to a treating physician, from an injured worker or legal representative of an injured worker upon request, without documented therapeutic medical reason for the withholding that record. Any willful or repeated violation of this section shall be punishable pursuant to section 1 of P.L.2008, c.93 (C.34:15-28.2) and section 9 of P.L.2001, c.326 (C.34:15-128.5).

4. (New section) Once an employer, its carrier, or its third party administrator authorizes treatment or medical services, or the Division of Workers’ Compensation determines the treatment or medical services are the responsibility of the employer, the employer, carrier, or third-party administrator shall not delay or deny authorization for any treatment, diagnostic studies, procedures, therapies or medications recommended by an authorized medical care provider. No employer, carrier or third-party administrator shall de-authorize any medical care provider authorized to treat or provide services to a petitioner without first securing an order from a judge of compensation. A violation of this section shall be punishable pursuant to section 1 of P.L.2008, c.93 (C.34:15-28.2).

5. This act shall take effect immediately.

STATEMENT

This bill concerns medical treatment arising from workers’ compensation claims.

The bill increases the transparency of medical providers’ communications with injured workers. Specifically, the bill provides that any employer, insurance carrier, or third-party administrator, who hires, contacts, designates, or manages medical treatment, must provide the time, date, and substance of any communications with the treating physician to the patient or their legal representative as soon as is practicable thereafter. Any written or electronic communication shall be provided contemporaneously to the employee or their designated representatives upon notice from the employee or the employee’s authorized representatives. Under this bill, no medical provider shall withhold any communication from an employer or its insurance carrier, or third-party administrator to a treating physician, from an injured worker or legal representative of an injured worker upon request, without documented therapeutic medical reason for withholding that record.

The bill also mandates non-interference with medical treatment. Once treatment or medical services have been authorized by the employer or its carrier or its third party administrator or determined by the Division of Workers’ Compensation to be the responsibility of the employer, no employer, carrier or third-party administrator shall delay or deny authorization for any treatment, diagnostic studies, procedures, therapies or medications recommended by any authorized medical care providers. No employer, carrier or third-party administrator shall de-authorize any medical care provider authorized to treat or provide services to a petitioner without first securing an order from a judge of compensation.

The bill also amends existing law to provide for compensation for expert witnesses in workers’ compensation hearings, and to allow these hearings to utilize telephone or video conferencing.