Claims

The New Jersey Appellate Division decided an important case on January 17, 2019 entitled The Plastic Surgery Center, PA. v. Malouf Chevrolet-Cadillac, Inc,.  The case centered on how long a medical provider has to file a claim petition in the Division, namely whether providers have two years, like claimants, or six years.  The case has been reported.

The Court first noted that suits on contracts in New Jersey have a six-year statute of limitations under N.J.S.A. 2A:14-1.  When the New Jersey Legislature amended the New Jersey statute in 2012 granting exclusive jurisdiction over disputed medical charges to the Division of Workers’ Compensation, the Legislature never addressed which statute of limitations would apply.

New Jersey Manufacturers argued in this case that it should be two years because that is how long a claimant has under the statute, namely two years from the date of injury, or if compensation has been provided by the employer, then two years from the last payment of compensation.   Counsel for the Plastic Surgery Center argued that it should have six years like any other contract claim.

The Court gave several reasons for its conclusion that medical providers should have six years to file in the Division.   It began by noting that the Legislature could have expressed but did not express its intent to apply the two-year time bar to medical providers when it gave the Division exclusive jurisdiction over medical provider claims.  The Court also noted that the Legislature did not expand the two-year statute of limitations provision to specifically reference medical providers as falling with that rule.  Instead, the rule only mentions claimants.

Most importantly, the Court said that the rationale for two years does not fit N.J.S.A. 34:15-51, which is the statute of limitations provision in New Jersey.  “…We  are most persuaded that the Legislature intended to leave unaltered the time within which medical-provider claims must be commenced because the Act’s two-year-bar simply doesn’t fit.”   It said that such a rule would sometimes mean that the statute would run on the rights of the medical provider to file before the medical service is even provided because the medical provider might not render its service until after two years from the date of accident.

New Jersey Manufacturers argued that the Court should consider the alternative language of the statute, which provides “two years from the last payment of compensation.”  The Court said that language applies to claimants who receive compensation.  It does not fit the concept of a medical provider who renders a service to a claimant.  “By arguing that the time-bar operates differently for medical-provider claims – that the action accrues on the date of service instead of the employee’s accident – the respondents must concede that medical providers are different types of claimants than employees.”  The Court said that adopting this approach would “rewrite” the statute, something the Court said it does not have a right to do.

The issue is of great importance because one of every five claim petitions in New Jersey is a Medical Provider Claim, and that percentage is rising rapidly.   It is hard to say whether this ruling will increase the number of filings by true New Jersey medical providers because this practitioner does not believe that there were many New Jersey medical providers sitting on the sideline waiting for a ruling on the statute of limitations.  Many practitioners always thought that the six-year statute of limitations on contracts applied to medical providers.

But this decision will give great greater impetus to a noticeable trend: out-of-state medical providers are moving satellite offices to New Jersey and choosing to do medical procedures in New Jersey even though many of the workers they are treating were injured in and worked in New York and Pennsylvania.  In many cases the injured New York and Pennsylvania workers also live out of state.  The only connection with New Jersey is the fact that the procedure was scheduled in New Jersey for higher reimbursements.  This trend is directly traceable to the fact that New Jersey has no fee schedule and reimbursements are therefore much higher here. The next issue that the Appellate Division needs to address is jurisdiction where the only contact with our state is the location of the treatment.

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Just six years ago, former Governor Chris Christie signed into law a bill which vested exclusive jurisdiction within the Division of Workers’ Compensation over any disputed medical charge arising from any claim for compensation for a work-related injury or illness.  That was the beginning of what we now call “Medical Claim Petitions” or MCPs filed by providers and medical facilities.  In the early years following the passage of the bill, perhaps one or two percent of all workers’ compensation claims were MCP cases.

Fast forward to 2018:  20% of all formal claim petitions filed in the Division this year are MCP cases!  You read that right: one out of every five formal claim petitions filed in 2018 in the Division of Workers’ Compensation is a petition filed by a medical provider or medical facility disputing a payment. Already through November 2018, over 6,300 MCPs have been filed in the Division in the first eleven months.

The Judges of Compensation have learned a great deal over the years about how to deal with provider disputes. They ably manage not only a high volume of formal claim petitions filed by petitioners but an ever escalating volume of MCP cases.   If the current rate of growth of MCP cases continues, one can project that in a few years one in three formal claim petitions will be an MCP case.

Why are there so many MCP cases in New Jersey when New Jersey employers have control over medical care?   That is the question this practitioner put to Kelly Royce, Senior Vice President of Managed Care Operations for First MCO, a leading managed care and medical repricing company in New Jersey.  Royce said that the key for New Jersey employers and carriers is to have robust physician and facility networks.  In that case, MCPs do not generally get filed. “You look at the contract, and that ends almost all such disputes,” she said.

But Royce pointed out that there are many situations where emergency care is provided, and the doctor and facility would not likely be in network.  When the employer or carrier receives the bills, they may be repriced based on reasonable and customary charges in the geographic area, but the provider or facility often disagree on the determination of reasonable and customary, leading to the filing of an MCP.  The amounts in dispute are often tens or even hundreds of thousands of dollars.

Royce also pointed out that even if the physician is in network, the medical facility where the procedure or surgery takes place is often not in network.  That means that the physician’s charge will be covered by the network agreement, but the facility charge may not be.  She recommends that employers spend time trying to determine where network physicians operate and making sure that these facilities are in network.

Linda Woods, VP of Bill Review Operations for First MCO, added that the determination of reasonable and customary is not uniform.  There are many different data bases such as Fair Pay and Wasserman which may have different criteria on what is reasonable and customary.  She added that Medicare has its own schedule, and PIP has its own schedule, and sometimes these schedules are also considered.  The determination of reasonable and customary may vary significantly depending on the resource that is used.

There are a number of cases that have been decided on what constitutes reasonable and customary charges.  The leading case at the Division level remains Burn Surgeons of St. Barnabas v. Shoprite, C.P. # 2009-16548, 2011 N.J. Wrk. Comp. LEXIS 10 (August 26, 2011).  In that case the physicians who were contesting the level of reimbursement by the carrier were co-surgeons, and they testified in court in support of their charges.  Each surgeon felt that he should have been paid 87.5% of usual and customary charges.  The amount in dispute was very significant.

Attorney Ann DeBellis, Director/Supervising Attorney for New Jersey Manufacturers, successfully represented NJM and argued that her company was correct in paying each co-surgeon 73.6 percent of the charged amount in this case, which was a percentage in line with payments made by other commercial carriers and well above payments from government programs.  The late Honorable Virginia Dietrich, Administrative Supervising Judge of Compensation, rejected the argument by the burn surgeons that additional monies should be paid to account for the difficulty of the procedures, the severe illness of the patient and the expertise required.  The judge ruled that all of these considerations were taken into account when the codes were prepared.

When MCP cases do get filed, the data relied on by the parties are often complicated to understand, requiring defense counsel to master obscure terminology.   On the claimant side, there are several law firms which specialize in this area of law and generally work on contingent fees.  Because of the contingent nature of the representation, the providers and facilities incur no cost in filing MCPs.  They only pay counsel if there is a recovery.

Capehart Scatchard decided several years ago to create an MCP team headed by partner Claire Ringel, Esq., to oversee these increasingly complicated claims which often involve hundreds of thousands of dollars in dispute.  One claim petition that Ms. Ringel resolved this year involved a charge by a New Jersey medical provider for $960,000 for a complex surgery.  She resolved this claim for less than 10% of the charge.  Ms. Ringel has also filed more than 50 motions to dismiss MCP cases this year where all contacts are in the State of New York (hiring, injury and work), but the MCP cases were filed in New Jersey simply because the medical procedure occurred in New Jersey and the provider was unsatisfied with the New York fee schedule.

The reality is that MCP cases are here to stay and the volume is sharply rising.  There are complicated issues of appropriate levels of payment as well as many claims with jurisdiction as the principal issue.  Defense firms need to develop the expertise to successfully represent employers, and employers need to work with companies that have great networks and repricing skills.

The post The Amazing Rise of Medical Claim Petitions in New Jersey Workers’ Compensation appeared first on NJ Workers' Comp Blog.

Victor Campos worked for the Department of Public Works for the City of Passaic.  On December 23, 2013, he was performing maintenance work at City Hall when he began to feel ill.  He made the decision to go home early, but first he had to notify his employer that he was finished for the day and complete paperwork for his supervisor to sign.  On the way back to the DPW office, a car driven by a co-employee, Miguel Cruz, a police officer in the City, ran a red light and collided with Campos’ car.

Campos sued Cruz for his personal injuries, and he also brought a workers’ compensation claim against the City, which he settled on a Section 20 basis. Counsel for the City and Cruz in the civil action argued that the civil suit was barred because Campos was in the course of his employment when the action took place and he was injured by a fellow employee of the City.  The Superior Court dismissed the civil suit as barred under N.J.S.A. 34:15-8.  That provision prevents civil suits against fellow employees.

On appeal Campos argued that he was just returning to the DPW office for personal reasons: namely to fill out paperwork so he could go home.  He argued that his day was done when he finished working at City Hall.  The Appellate Division disagreed and noted that Campos left the City Hall location to submit required paperwork in order to take off a half-day.  Only after completing paperwork would he be permitted to go home.  The Court concluded that Campos was therefore performing duties “assigned or directed by the employer” at the time of the accident.

That plaintiff was not physically at his workplace when the accident occurred is thus of no moment.  Indeed, as a DPW worker, plaintiff could have been working in any part of the City when he was involved in the accident.

The Court held that part of Campos’s job was to complete paperwork to take off the rest of the day. “The City had a policy requiring him to fill out paperwork prior to going home for the day.  Plaintiff was complying with that policy as directed by his employer.”

Campos also tried to argue that a Section 20 settlement does not bar his damages claim against his employer and co-employee.  The Court gave some interesting analysis on this issue, citing Sperling v. Bd. of Review, 301 N.J. Super. 1, 5 (App. Div. 1997).  “Receipt of a lump sum settlement under N.J.S.A. 34:15-20 constitutes an implied acknowledgement that the claimant’s disability was work-related and compensable under the Workers’ Compensation Act.”  The Court stated:

Having recovered a workers’ compensation award for his injuries, plaintiff now seeks to pursue a negligence claim for damages involving the same accident and resultant injuries.  Because plaintiff’s present claims are prohibited by both statute and common law, the trial court did not err in finding that plaintiff’s receipt of workers’ compensation benefits bars any further recovery at law.

The facts are certainly unusual here, but the reasoning of the Court is sound:  petitioner was driving from one city location to his office at the DRW office to fill out paperwork before he could leave work.  Therefore he was still in the course of his employment.  Plaintiff probably thought the settlement on a Section 20 would keep his potential civil suit alive but the Court treated the Section 20 payment as an admission that the car accident was compensable. The more important point was that an employee cannot sue a co-employee when they are both engaged in work activities.  This case can be found at Campos v. Cruz and the City of Passaic, A-3825-16T2 (App. Div. July 12, 2018).

Thanks to our friend Ron Siegel, Esq. for bringing this case to our attention.

The post Appellate Division Bars Civil Claim by DPW Worker Who Planned to Leave Work Early But Was In A Car Accident on the Way Back to DPW Office To Fill Out Paperwork for Supervisor to Sign appeared first on NJ Workers' Comp Blog.

Dennis Lomet worked for Lawes Coal Company from 1987 to 2012 when he died of lung cancer at the age of 47.  He installed, removed, or repaired heating and air conditioning equipment.  He never smoked cigarettes.  Before he died, he told one of his treating physicians that he thought he had been exposed to chemicals, soot and asbestos in the course of his employment.  One of his friends testified at trial that he believed he and the decedent were exposed to asbestos during the period from 1987 to 1992.

Mr. Lomet’s widow, Michelle Lomet, testified that her husband would be so dirty when he returned home from work that he would need to take two showers.  When he would blow his nose, there was black material on the tissues.

Petitioner’s expert, Dr. William Lerner, did not give strong testimony regarding exposure to asbestos.  He seemed to assume there was exposure to asbestos:  “In somebody who is exposed to chemicals like that and asbestos with no other smoking history and no other known cause for his lung cancer, a reasonable probability of these carcinogens causing Dennis’s lung cancer. . . is not unreasonable as a conclusion.”

Respondent’s expert, Dr. Jack Goldberg, testified that there was no evidence of asbestos exposure in this case.  He said that if asbestos fibers enter the lung and cause cancer, plaques are visualized on radiographical films.  He said there were none in petitioner’s studies.  He also said that none of the pathological studies indicated exposure to asbestos.  Finally, he said that there were no radiological studies showing that the decedent’s cancer was caused by chemical exposure either.

The Judge of Compensation concluded that there was no objective medical evidence showing that asbestos exposure caused or contributed to the decedent’s lung cancer.  The Judge stated that this is “a case where there is zero medical evidence and 100% medical speculation.”

Petitioner appealed and argued that there was sufficient credible evidence in the record showing exposure to asbestos.  The Appellate Division affirmed the dismissal of petitioner’s dependency claim.  “We have examined the evidence, and concur with the judge of compensation’s finding there was no evidence of substance that causally links Dennis’s lung cancer to asbestos or other chemicals to which he may have been exposed while working for Lawes.”  The Court also said that there was also no evidence of the extent of any exposure, even if there was exposure.

The case is interesting in that it focused on the threshold issue in every asbestos-related pulmonary claim: namely proof of asbestos exposure.  The Court did not believe that statements by the decedent and co-worker that they thought they were exposed to asbestos was sufficient proof of exposure.  Rather, they insisted on objective evidence.  There was no proof of any asbestos remediation project and no showing of any asbestos products in the workplace.  By far the most damaging element of the case was that the radiographic studies showed no asbestos-related plaques in the decedent’s lungs.

The case can be found at Lomet v. Lawes Coal Company, A-1169-16T1 (App. Div. July 11, 2018).

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In Marano v. Clifford J. Schob, M.D., A-33915-16T2 (App. Div. June 20, 2018), the Appellate Division held that New Jersey’s lien provision does apply to funds that an injured worker received in a medical malpractice suit pursuant to the terms of a “high/low” agreement.  The case affirmed a prior ruling in Pool v. Morristown Memorial Hospital, 400 N.J. Super. 572 (App. Div. 2008) but dealt with a new regulation that was passed after the Pool decision.

The case stemmed from a work-related injury to a police officer employed by the Union Township Police Department.  The Township was a member of the Garden State Municipal Joint Insurance Fund (GSMJIF).  PMA was the third party insurance administrator for the GSMJIF.  Officer Marano injured his back on July 12, 2010 arising from work and received $51,779.81 in workers’ compensation benefits, including $5,403.07 for nurse case management charges.

Marano filed a suit in the law division alleging that Dr. Clifford Schob was negligent in failing to advise him to visit an emergency room and was negligent in not properly diagnosing his condition.  The parties to the medical malpractice suit agreed to arbitrate the suit with the agreement that following the arbitrator’s decision, plaintiff would receive at least $250,000 (the “low”) but no greater than $750,000 (the “high”).  The arbitrator arbitrated the case over two days and found no cause of action against Dr. Clifford Schob and dismissed the law suit.  However, based on the high/low agreement, plaintiff was paid $250,000 even though Dr. Schob was found not to be at fault.

The issue in this published decision arose because plaintiff refused to reimburse PMA Insurance Company and the Garden State Municipal Joint Insurance Fund its statutory two thirds of the $51,779.81 paid to Marano.  The GSMJIF refused to compromise the lien, so plaintiff filed an order to show cause and a verified complaint in the Law Division seeking a declaration that the payment in the high/low agreement was not subject to any workers’ compensation lien.

The thrust of the argument made by plaintiff was that this issue was not the same as one previously decided in Pool above.  Plaintiff argued that N.J.A.C. 11:1-7.3(a) was passed after Pool was decided. That regulation provides that a medical malpractice insurer must notify the Medical Practitioner Review Panel of any medical malpractice settlement, but not in a high/low agreement where the arbitrator found no liability on the part of the medical practitioner. That language excluding the notification provision for no cause decisions in high/low agreements was added in 2009 after Pool.  Plaintiff argued that fewer high/low agreements will be negotiated if Marano is ordered to reimburse the GSMJIF.  He said that future plaintiffs will have to demand higher “low” figures to take into account lien obligations.

The Appellate Division affirmed the trial judge stating:  “That concern has no relationship to a compensation carrier’s rights under Section 40 to impose a lien on the recovery.” The Court noted that there is a strong public policy in New Jersey preventing double recovery.  It said that “whether an alleged tortfeasor is ultimately held to be liable does not affect the enforceability of a lien.”

As to the nurse case manager fees, the court remanded to the Law Division to decide whether those charges should be considered medical expenses under the New Jersey Workers’ Compensation Act.

This case was an important win for employers, and it was handled successfully by Christopher Carlson, Esq. of Capehart Scatchard on behalf of PMA and the Garden State Municipal Joint Insurance Fund.  The case shows that employers need to be prepared to sue to enforce their lien rights when plaintiff’s counsel refuses to reimburse the employer/carrier for their statutory lien.  The JIF wisely refused to compromise its lien in this case and in the end prevailed at trial and on appeal.

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The failure to report a claim in a timely manner generally leads to powerful defenses that help employers prevail in workers’ compensation court.  But lack of timely notice is seldom one of those defenses in New Jersey.  That sounds like a conundrum.  Shouldn’t lack of timely notice be the first defense that jumps to one’s mind when a claim is not reported within 30 or 60 days?  It should, but unfortunately the way the New Jersey notice statute is written, employers almost never win on that limited defense.  Employers do often win cases that are not timely reported for completely different reasons discussed below.

Think of lack of timely notice under N.J.S.A. 34:15-17 as an ironclad rule.   A worker could legitimately have a work injury on January 1, 2018, but if that employee for whatever reason fails to report the work injury within a certain period of time the employer automatically wins.  Here’s the rub:  the New Jersey statute allows so many extensions on reporting that the notice defense is generally toothless.

The statute begins by stating that an employee must report a work injury within 14 days, and no compensation is due until the employer becomes aware of the injury.  That sounds good until you read the rest of the provision.  If the employee reports the claim after 14 days but before 30 days, the employer only wins on notice if it can show it suffered prejudice due to the late reporting.  But wait – the statute next proceeds to water down the previous language even further.  If the employer becomes aware of the injury within 90 days and there is no prejudice to the employer caused by the late notice, the employer cannot win on the notice defense.

In effect this notice provision has two meaningless stages:  14 days and 30 days.  Proving prejudice to the employer is not easy, so employers are effectively left with a 90-day notice rule.  Further, the statute does not define what the word “prejudice” means, and there are really no cases on it.  Frankly, it is unfair to employers that the statute allows up to 90 days to report a claim.  How can an employer investigate any claim that is reported one month or even several months late?  Memories fade, and potential witnesses forget.  This practitioner recalls only one trial in decades where the employee actually testified to not reporting the injury to her employer or anyone in supervision for more than 90 days and therefore lost her case.

Yet failure to report a claim in a timely manner should raise red flags and almost always leads to powerful defenses.  The two main defenses that should leap to an employer’s mind when a claim is not reported timely are first, that there is no evidence that an accident happened, and second that even if an accident did take place, it was not significant enough to account for the present pathology.  Most employers train their employees over and over to report work injuries within 24 hours.  So when an employee reports a work injury 35 or 40 days after it happened, it seldom makes any sense.  An employer will deny such a claim on the basis that there was no accident.  If it did happen, why would the employee who has been trained to report claims within 24 hours wait so long to notify the supervisor or HR representative? Often that same employee has promptly reported other work injuries that have occurred over the years, so the employee clearly knows the reporting procedures.

Suppose an employee says that he bumped his knee at work on July 1, 2017 and felt pain in his knee right away but it quickly diminished. He never treats in July or August. He does not lose any time at all from work.  In mid-September, he reports for the first time to his employer that he bumped his knee at work 75 days ago and needs to see a doctor.  The employer asks why the employee waited so long. The employee says he thought it was nothing at all, so he never mentioned it to anyone.  The pain went away and was barely noticeable for months.  But in the past week the knee has become very painful.   An MRI shows a medial meniscal tear that needs surgery.  The employer probably will not win on the technical notice defense because the notification came within 90 days and the employee will argue that there was no prejudice to his employer by the delay.  Yet this claim should be denied, and the employer may very well prevail.  Here is the issue:  how could the bumping incident on July 1^st that caused no lost time and led to no treatment for months be responsible for a meniscal tear that manifests in mid September?

Causation is often the dominant issue in delayed reporting cases. The employer will want to look into past medical treatment to see if the employee has a history of knee problems.  Perhaps this is a recurring issue with the employee.  The employer will look into activities between July 1^st and September which the employee engaged in as possible causes for the tear.  What sports or activities did the employee engage in during that bridging period?  Does the employee jog or work out at a gym?  A medical expert will be asked to give an opinion whether bumping the knee in July which led to no treatment for months was the likely cause of a meniscal tear that shows up in mid-September.  Was the mechanism of injury (bumping the knee) consistent with a torn medial meniscus?  Is it likely that a tear occurred on July 1^st with no need for initial treatment and caused minimal pain for months only to become very painful in mid-September?  These are valid questions for the expert.

This sort of fact pattern happens quite frequently.  Employers should not be dismayed when they learn that New Jersey allows notice sometimes up to 90 days. That does not mean delayed reporting cases are compensable.  It just means that the employer will not win on the defense of notice.  The stronger defense is not lack of timely notice but whether there is any causal relationship between the alleged injury and the present knee pathology.  Good discovery and investigation may also lead the judge to conclude that there is insufficient evidence of any work accident at all.

In short, employers should continue to stress the need to report injuries within 24 hours.  It doesn’t matter that the New Jersey notice statute is exceptionally weak.   A timely reporting policy is very important and helpful to both employers and defense counsel.  Such a policy helps win cases because when an employee waits 15, 30, or even 60 days to provide notice in the face of a prompt reporting policy, it often suggests that the incident may never have happened or that the incident was simply inconsequential.

Thanks to our friend, Scott Tennant, of Arthur J. Gallagher for bringing this topic to our attention.

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We all know the rules for coverage in New Jersey under the “premises rule,” the rule that replaced the former going-and-coming rule.  N.J.S.A. 34:15-36 states that one is covered for workers’ compensation purposes when he or she arrives at a place of employment owned or controlled by the employer.  That is easy enough, but what about employees who do not report to the normal place of business of the employer, such as a carpenter who drives to a housing development every morning in a company truck?

The statute has different rules for those workers who report to job sites and not the normal office locations that most of us report to daily.  It says this: “… the employment of employee paid travel time by an employer for time spent traveling to and from a job site or of any employee who utilizes an employer authorized vehicle shall commence and terminate with the time spent traveling to and from a job site or the authorized operation of a vehicle on business authorized by the employer.”  This sentence says two totally different things:

A. Employees who are paid travel time are covered traveling to and from a job site; this is the old portal-to-portal rule.

B. Employees who use an authorized vehicle may be covered when they are pursuing business authorized by the employer.

This is the only part of the statute in which the use of an employer authorized vehicle actually can turn the outcome of a case.  Unfortunately, the statute does not explain what an employer authorized vehicle means. Clearly, it would cover a company car or business truck.  But does it mean just a personal vehicle for which the employee gets reimbursed mileage? There is no answer to that question but the likely answer is probably not.

The more one focuses on this language regarding the use of an authorized vehicle, the more one realizes how broad this language is.  It goes way beyond just those who are paid travel time.  It suggests that travel time is not necessary at all for coverage when an employee is utilizing an employer authorized vehicle on business authorized by the employer and the drive is not to the office of the employer.  What if the carpenter above drives to a Home Depot on a Saturday when he is not working to get sheetrock as requested by the supervisor?  (Presumably this would be covered). Does it mean that the carpenter who drives to a job site in the morning from his or her home and does not receive paid travel time is covered portal-to-portal because the carpenter is using an employer authorized vehicle on business?  The key words are “authorized vehicle on business authorized by the employer.”  Again, there is no reported case on point.

Very few employees are actually paid travel time over and above their normal pay.  But there are tens of thousands of New Jersey employees who use an authorized vehicle on business authorized by the employer.  They often leave home in a company vehicle and report to a job site – and they may be able to argue successfully that they are then covered because they are using an authorized vehicle on business authorized by the employer.  As noted above, there is no reported case on this issue.

The statute also says that an employee is covered when he or she is required by the employer to be away from the employer’s place of employment.  This is known as the “special mission” exception.  So if a defense lawyer is required to go to court by the law firm, the trip is covered because the employee is required to be away from the law firm, which is the employer’s place of employment.  The question is this:  is a job site considered the same as the employer’s place of employment if the employer does not have a regular office or place of business in New Jersey?  Many companies do not have a regular place of employment in New Jersey.  There are insurance companies which have no office in New Jersey; there are health care companies which have no office in New Jersey; there are sales companies with no office in New Jersey.  Employees of these companies work from their home.

Suppose a health care company has a nurse’s aide who leaves her home and drives to the same patient’s home every day for months using her personal vehicle? The nurse’s aide has no office to report to in New Jersey and is not paid travel time.  Is that drive covered for workers’ compensation purposes?   Is the nurse’s aide engaged in routine travel to work (not covered) or is she covered because she is reporting to a job site?  It would seem that the nurse’s aide will have a hard time arguing that her personal vehicle is an “employer authorized vehicle” if it is not a company car and if she is not paid travel time.  The nurse’s aide will also have a hard time arguing that she is required to be away from her employer’s place of business if there is no regular office where she works.   The “job site” is where she works every day.  So the nurse’s aide may have to argue that her home is her place of employment.  She may argue that since she is required to be away from her place of employment (her home), she should be covered on the ride to the patient’s home.  This is an interesting situation, and it is more and more common as employees are encouraged to work from home.  Unfortunately, the statute is not particularly helpful in providing an answer.

The author wishes to thank Stephen Fannon, Esq., and Judge Richard Hickey for their analysis of this interesting and little known provision of the statute.  Any comments from readers are welcome.

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