More so than ever, insurance carriers must be diligent when monitoring the progress of authorized medical treatment. In the jurisdictions that I cover, I have observed an increased number in the filings of motions to enforce the terms of prior court orders. Failure to take certain steps can result in the imposition of penalties pursuant to N.J.S.A. 34:15-28.2. Judges of compensation are beginning to more liberally order penalties.
First, an insurance carrier should avoid any significant delay in providing a court ordered diagnostic test such as an MRI, CT scan or EMG. Second, an insurance carrier should avoid any significant delay in scheduling petitioner for a follow-up medical examination with an authorized treating physician following completion of a court ordered diagnostic test. Until this examination takes place, the authorized treating physician is not in a position to confirm a diagnosis, address causal relationship and/or formulate an appropriate treatment plan. Moreover, the decision to pay the employee temporary disability benefits may be dependent upon the outcome of this medical examination. Finally, an insurance carrier should avoid any significant delay in scheduling the employee for a follow-up medical examination with the authorized treating physician following completion of a course of court ordered medical treatment such as physical therapy. Failure to take this action could result in the deterioration of the employee's medical condition as well as the need for additional and/or extended medical treatment.
The above referenced situations can result in the filing of a motion to enforce the terms of an earlier court order. The filing of such a motion can result in the imposition of penalties pursuant to N.J.S.A. 34:15-28.2. A judge of compensation may take the following actions:
1) Impose costs, simple interest on any moneys due, an additional assessment not to exceed 25 percent of moneys due for unreasonable payment delay, and reasonable legal fees, to enforce the order, statute or regulation
2) Impose additional fines and other penalties on parties or counsel in an amount not exceeding $5,000 for unreasonable delay, with the proceeds of the penalties paid into the Second Injury Fund
3) Close proofs, dismiss a claim or suppress a defense as to any party
4) Exclude evidence or witnesses
5) Hold a separate hearing on any issue of contempt and, upon a finding of contempt by the judge of compensation, the successful party or the judge of compensation may file a motion with the Superior Court for enforcement of those contempt proceedings
6) Take other actions deemed appropriate by the judge of compensation with respect to the claim
The most commonly implemented penalties that I have observed include imposition of a monetary penalty made payable to the Second Injury Fund along with the separate assessment of an attorney's fee. More recently, I have observed a judge of compensation order the scheduling of a second opinion medical examination.
In sum, the diligent monitoring of authorized medical treatment is essential following the entry of a court order directing diagnostic testing and/or medical treatment. By taking this approach, an insurance carrier can avoid the filing of a motion to enforce, imposition of penalties pursuant to N.J.S.A. 34:15-28.2, assessment of unnecessary costs and a potential increased exposure.
By: Stephen Yuhas