Settlements or judgments entered in the Division of Workers’ Compensation may include the right to “reopen” the claim, depending upon the type of award. As explained in Chapter 10, only a lump sum settlement under “section 20” of the Workers’ Compensation Act is final and cannot be revived to obtain additional benefits. If you received a workers’ compensation award in the past and cannot recall whether it included a right to reopen, you should contact your attorney or look at the Court Order you received at the time of settlement. If the paperwork you received at the settlement hearing is entitled “Order Approving Settlement with Dismissal NJSA 34:15-20,” then you cannot reopen your case to receive additional medical treatment or benefits through workers’ compensation.
If you received judgement or settlement which includes a right to reopen the claim you must file an “Application for Review or Modification of Award” within two years. See, Appendix J. The two year deadline starts to run as of the date you received your last workers’ compensation benefit, including authorized medical care. Thus, it is often a “moving” deadline, since you may have additional time to file if the workers’ compensation carrier subsequently authorizes you for more medical treatment, or if your settlement benefits for partial permanent disability benefits continue to be paid out for a period after the Order is entered. The following examples illustrate this point:
You will then be receiving all of the weekly benefits up front, less costs and fees, within 60 days of the entry of the Order. The deadline for reopening this claim is 2 years from the date your one and only check is received.
In this scenario, you will receive one check for all past due benefits, and thereafter will be entitled to weekly benefits, until the award has been paid in full. The deadline for reopening this claim is 2 years from the date your last check is received. Thus, if you are receiving weekly permanency benefits for a three year period, you will have approximately 5 years to file an application to reopen the claim from the date the OAS was first entered.
If you returned to active medical treatment after the entry of the OAS, the deadline for filing a reopener application may be pushed back even farther. Remember, the cut-off date for filing is two years from the date you received any type of workers’ compensation benefits, including authorized medical treatment. The medical records and bills will provide proof of the last date of treatment. Note that the deadline is based upon the actual date of treatment, rather than the date the medical bills are paid by the carrier.
In all of the above examples, it is advisable to keep a copy of the last check you received, with the check stub and the post-marked envelope, to prove the date permanent disability benefits were last paid. To ensure that the medical treatment you received was authorized by workers’ compensation, it is advisable to obtain a copy of your doctor’s billing records, to confirm that payment was issued by the workers’ compensation carrier.
You are not entitled to receive additional permanent disability benefits because you continue to suffer from the same pain and limitations for which you received your compensation award. You were previously paid for the complaints you were experiencing at the time your original settlement award was entered. If there is no change in your complaints or limitations, and you have not received any significant medical treatment, it is unlikely that the Court will award you additional permanency benefits. However, you are certainly not prohibited from filing an Application to Modify Your Award. It would be up to the Court to decide whether or not there is objective medical evidence sufficient to prove that your permanent disability level has increased. If it is questionable whether disability has gotten worse, the carrier may offer you a lump sum settlement in exchange for closing your claim forever. Please note however, that the attorney who handled your original claim is not obligated to file an application to reopen the claim if she does not believe it is economically worthwhile to do so.
You should file an “Application for Review or Modification of Award” if your condition significantly deteriorates and your permanent disability level increases. Even if you do not believe that medical treatment can cure you, it is advisable for you to return to the doctor, preferably the authorized workers’ compensation physician, to document your condition. If the previously authorized physician believes that you need additional medical treatment which relates back to the original work accident, the workers’ compensation carrier should pay for this treatment.
Unless you receive a “Section 20” lump sum award, you will be advised at the time of the settlement hearing that you have the right to receive medical treatment related to the accident in the future. Unfortunately, many carriers ignore requests to return to treatment. You should therefore document all of the attempts you make to obtain authorization from the carrier for additional treatment. Initially, you should call the insurance carrier with your claim number in hand and ask to be connected to the claims adjuster currently assigned to your case. Do not be surprised if you are only able to reach his voicemail, and he never returns your call. Keep a written, chronological log of your efforts to reach the adjuster and call your attorney. Either you or your attorney should send a certified letter to the workers’ compensation carrier, formally requesting authorization for additional medical treatment, and warning that you will seek treatment with the provider of your choice if you are not directed to a particular doctor.
If your request is still ignored by the carrier, you should contact the physician who primarily treated you after the work accident to request an appointment through your health insurance. Some physicians will not even schedule an appointment unless it is preauthorized through workers’ compensation. However, others are only too happy to bill your health insurance if the treatment involves an “old” work injury for which the workers’ compensation claims file is now closed.
If the doctor believes that you need additional medical treatment related to the accident, be sure to obtain a copy of his office note and provide it to your attorney. That office note may be used to file a Motion for Medical Treatment with the Court, to force the workers’ compensation carrier to pay for the recommended treatment. If the Motion is granted, your health insurance carrier has the right to be reimbursed by the workers’ compensation carrier for any benefits paid on your behalf.
If your medical bills are paid by health insurance, your health insurance may assert a lien on any future settlement you receive through workers’ compensation and has the right to directly seek reimbursement from the workers’ compensation carrier. The likelihood of a health insurance lien being asserted diminishes as more time passes between the original accident date and the medical treatment.
Medicare/Medicaid recipients may also obtain medical treatment outside of workers’ compensation. However, federal law provides that treatment covered by Medicare must be reimbursed through workers’ compensation. Similarly, New Jersey law requires Medicaid recipients to reimburse the state for any benefits paid for a work related injury out of the proceeds of any monetary award received from workers’ compensation. Accordingly, if you are a Medicare/Medicaid recipient, it is even more important for you to first request treatment through workers’ compensation.
If you resume active medical treatment, and you believe that you cannot work due to your injuries, then you should request an “out of work” note from the doctor, even if you do not currently have a job. However, there are several scenarios which occur after a settlement or judgment is entered, which make it increasingly difficult for claimants to obtain temporary disability benefits:
The workers’ compensation carrier will inevitably argue that your subsequent employment is exacerbating your injury, and will use it as an excuse to deny temporary disability benefits if you are taken out of work again when you return to active medical treatment. Unless you were involved in a new specific accident, the mere fact that your symptoms flared up while you were employed elsewhere is not a basis to terminate the obligation of the workers’ compensation carrier to provide you with additional benefits. However, if there was a specific, discrete incident in which you reinjured yourself at your new job, which may be classified as an accident, you should report it and file a new claim. Let your doctor sort out whether your symptoms relate back to the original work accident, or the new incident. If your inability to return to work relates back to the original work accident, you are entitled to again receive temporary disability benefits on that claim. You should provide your attorney with a copy of your last paystub prior to being taken out of work.
Many claimants make the mistake of mentioning to their doctor that that are out of work at their first visit to the doctor, who then fails to comment upon temporary disability. To be eligible for unemployment benefits you must be “ready, willing, and able” to work. So if you are physically unable to work, your temporary disability benefits should resume, and your unemployment benefits should stop.
If your physician recommends additional treatment and you honestly do not believe that you could perform a job in your chosen profession if one was offered to you, then you should request an “out of work” note from the doctor. Your attorney should then forward the out of work note to the workers’ compensation carrier, together with proof that you are currently collecting unemployment benefits. If the carrier fails to begin payment of benefits, a Motion for Medical and Temporary Disability Benefits should be filed. Once temporary disability benefits are paid, you must reimburse the Division of Unemployment if there is any overlap in the dates you were paid workers’ compensation and unemployment benefits.
Even if you receive additional medical treatment after the initial settlement of your claim, there may not be a change in your overall permanent disability level. To determine whether your disability level has increased you must be reevaluated by medical experts familiar with the New Jersey compensation schedule – preferably the same experts who examined you for the first permanency award you received. You will be set up for examinations with your own experts as well as the insurance carrier’s experts to determine whether they believe that your disability level has increased since the date of your last examination.
Each medical expert will review a copy of medical records of the treatment you received since the entry of the last settlement or judgment you received in the Division of Workers’ Compensation. Based upon the results of the physical examination, the medical records, and your complaints regarding the injury, each expert will generate a narrative report, setting forth their opinion regarding your current permanent disability level. The Judge of Compensation will analyze the value of your reopened claim by comparing the increase in disability, if any, found by each expert.
One difficulty faced by injured workers in reopener claims is caused by the inflated permanent disability ratings estimated by Petitioners’ experts in the original case. The Court will compare the “increase” in the disability ratings found by each expert, rather than the overall estimate of disability. Thus, if the Petitioner’s expert previously evaluated your disability at 75% partial total and you are still working at the time you attend reopener evaluations, the expert does not have much room to increase his permanent disability rating.
Unless you underwent significant additional medical treatment, such as surgery, most insurance carrier experts will not find a substantial increase in permanent disability. It is typical for insurance carrier experts to remind the Court that additional medical treatment does not necessarily equate to an increase in permanent disability, especially given that the purpose of the medical treatment was presumably to increase function.
If the insurance carrier expert finds no increase in your permanent disability level, the carrier may only offer you a minimal lump sum settlement under “section 20,” in exchange for a final dismissal of your claim. At a Trial, your attorney would need to present objective medical evidence, such as a change in your MRI or EMG findings, to prove that your disability level has increased.
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