• The Motion for Emergent Medical Care & A Swifter, Strong Division of Workers' Compensation
  • March 25, 2009 | Author: Dario J. Badalamenti
  • Law Firm: Marshall, Dennehey, Warner, Coleman & Goggin - Roseland Office
  • On October 1, 2008, Jon S. Corzine, Governor of the state of New Jersey, signed into law certain legislation amending the New Jersey Workers' Compensation Act (the "Act"). In relevant part, this legislation is designed to address recent concerns on the part of the Legislature that the Division of Workers' Compensation (the "Division") has long been ill-equipped to adequately respond to urgent requests for immediate medical care in an effective and timely fashion. In answer thereto, the Legislature has created a new type of pleading of limited application known as the Motion for Emergent Medical Care (the "MEMC") with stringent and clearly defined procedural guidelines.

    In order to better understand the purpose & utility of the MEMC, a bit of background is necessary. Prior to this recent legislation, the Act provided only a single mechanism whereby an aggrieved petitioner could obtain medical benefits from a respondent - i.e., the Motion for Temporary Disability and/or Medical Benefits (the "MTMB"). The Act requires that the MTMB be supported by an affidavit or certification of the petitioner or petitioner's counsel, as well as the report of a physician setting forth the petitioner's medical diagnosis and the treatment being sought. The MTMB is returnable by the respondent within 21 days of the date of service and must be peremptorily listed for hearing by the Division within 30 days of its filing. Though the Act does require that the MTMB "commence and continue in a timely fashion subject to the scheduling constraints of the Division," the procedural pacing of the Motion is left largely at the discretion of the Judge of Compensation. The Act provides little else in the way of procedural guidance.

    Perhaps due to the skillful handling of the Judges of Compensation, the MTMB has proved quite effective in managing requests for medical treatment of a non-urgent nature. The fact that the MTMB remains wholly intact and unchanged by this recent legislation is testament to its effectiveness and the capability of the Judges of Compensation who hear these Motions. However, with its moderately-paced and somewhat vague filing and procedural timeframes, the MTMB, though an excellent tool of general application, is poorly suited to handle truly emergent medical issues requiring swift and certain action. With the advent of the MEMC, the Legislature appears now to have equipped the Division with the proper tool for the job.

    As its name suggests, the MEMC is intended to provide expeditious relief to an aggrieved petitioner who finds himself in need of immediate medical attention. It is a tool of limited application. Whereas an MTMB may be filed in any circumstance involving the need for medical treatment, urgent or otherwise, the Act provides that the MEMC be filed only where the petitioner is in need of immediate medical treatment, the delay of which will result in irreparable harm. The Act requires that the MEMC contain a physician's statement indicating the need for urgent treatment and specify the nature of the irreparable harm which will result if treatment is not immediately rendered. Further, before the Division will entertain an MEMC, the petitioner must first make efforts to amicably obtain treatment directly from the respondent. In fact, the Act expressly provides that the Motion contain a statement by the petitioner or petitioner's counsel of the specific requests for treatment made to the respondent, as well as the names of the person or persons to whom the requests were directed. The MTMB, by comparison, requires no such showing of irreparable harm, nor does it require that efforts first be made to obtain treatment amicably.

    In order to ensure its timely hearing, the MEMC is governed by a very stringent set of filing and procedural guidelines. In response to an MEMC, the respondent must file an Answering Statement within five calendar days from the date of service. The Act requires that an expedited Motion hearing be scheduled by the Division within five days of the receipt of the Motion. As with the MTMB, the respondent is expressly allowed the right to have a medical examination of the petitioner conducted. However, whereas the MTMB allows the respondent 30 days within which to conduct such an examination, the MEMC requires that the medical examination be conducted within 15 days of the date of service. Should the respondent choose to have the petitioner examined, then another hearing will be scheduled by the Division no later than five days from the examination date. If the MEMC cannot be resolved amicably at this hearing, the Judge of Compensation then has the discretion to require "whatever procedures are necessary to ensure that the Motion be timely heard." This includes, but is not limited to, requiring a continuous trial on the Motion - i.e., a trial scheduled on consecutive days. This is in stark contrast to the MTMB which the Act simply requires "commence and continue in a timely manner subject to the scheduling constraints of the Division."

    In addition to the MEMC and its procedural requirements, this recent legislation has armed the Division with the powers of enforcement necessary to ensure compliance therewith. In relevant part, the Act now provides that upon a finding of noncompliance, a Judge of Compensation, in addition to any other remedies provided by law, may impose costs and simple interest on any monies due; levy fines or other penalties; close proofs; and exclude evidence or witnesses. Of greatest significance, the Act now empowers the Judge of Compensation to open contempt proceedings, and upon a finding of noncompliance, file a Motion with the Superior Court for contempt action. Although these powers can be utilized in enforcement of any provision of the Act, it seems clear that the Legislature intended to provide the Division with the means necessary to enforce the MEMC and its stringent procedural guidelines. As the first of these MEMCs are filed and heard by the Division, the success of the Legislature's efforts will be subject to further evaluation.