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Friday, March 25, 2016

Workers’ Compensation Coverage Required for New Jersey Employers

The purpose of this post is to help assist those with questions they have concerning their business or medical practice. The Callagy Law team is knowledgeable in many law practice areas and will frequently post topics ranging from Medical Revenue Recovery, PIP, Workers Compensation, and Commercial Insurance. We hope to have this blog shed a light on many common questions.

The State of New Jersey Department of Banking and Insurance requires that New Jersey employers post notice of workers’ compensation insurance coverage or qualification as a self-insured employer. The only New Jersey employers except from the requirement of workers’ compensation coverage or the qualified self-insurance are those covered by Federal programs. Moreover, this requirement extends to out-of-state employers under certain circumstances. These situations include out-of-state employers who hire employees to perform work in New Jersey. Also included are out-of-state employers who have entered in employment contracts in the state of New Jersey. Finally, New Jersey employers must provide information to their employees regarding the procedures to be followed in the case of a worker related incident. Such information must include the following: (1) Where to seek medical treatment; (2) The proper procedure for reporting an injury while working; and (3) Information explaining workers’ compensation insurance coverage and benefits. Employees and managers should be made aware of this information upon being hired and during the course of employment.

We hope you found the information provided in this article helpful to various questions you may have had concerning the healthcare industry. For information pertaining to our services for medical providers, please click here. Please note, Callagy Law has recovered over $185,000,000 for medical providers, and that number grows daily. Please free to reach out to Sean Callagy of Callagy Law at any time for questions you may have concerning personal and business matters. Callagy Law offices are located conveniently in Paramus, NJ. Beyond the scope of information, Sean Callagy has developed multiple areas of our healthcare legal practice and business coaching. Feel free to connect with us on Facebook, Twitter or LinkedIn! Additionally you can subscribe to our daily videos on YouTube.

Workers’ Compensation Coverage Required for New Jersey Employers

Monday, December 28, 2015

Promises and Failure to Perform | Callagy Law

Expanding the legal analysis beyond contract law limitations.

The following article was written by Callagy Law’s Legal Team, and will focus on many common questions and concerns surrounding new developments, legal matters, and other procedures within the business and commercial litigation. Our mission is to answer any questions and give knowledge to many different aspects of these matters.

When most lawyers are given a factual situation that includes a promise, their mind will undoubtedly begin to analyze it as a potential contract. Promises, in the legal world, are tricky things. Most first year law students spend the better part of a semester distinguishing when a promise is an enforceable contract vs. mere banter. As any of those first year law students will (hopefully) be able to tell you by the end of that semester, is that if the promise lacks “consideration” – or something of value (either a promise, an act or an object) that a promisor receives from a promisee in return for his promise – it is generally unenforceable as a contract. While this is a vast oversimplification of centuries of contract law, it is safe to say that issues involving a promise are almost always analyzed under theories of contract.

This tendency to analyze promises under a contract theory leads to several limitations. First, unless the court finds sufficient consideration, any claims arising from the promise will fail. Second, the damages one may recover under a contract theory are usually limited.

In certain situations however, a promise, and the subsequent failure to deliver on that promise, is still actionable. Instead of a contract, though, the promise is actually considered under a “tort” theory, specifically, a claim for fraud. For example, in Arizona, to prevail on a constructive fraud claim, a plaintiff must prove: (1) Defendants had a fiduciary or confidential relationship with Plaintiffs that gave rise to a legal or equitable duty; (2) Defendants breached that duty; (3) the breach tends to deceive others, violates public or private confidences, or injures public interests; and (4) the breach induced detrimental and justifiable reliance.” Dawson v. Withycombe, Provided that the Plaintiff can prove the first three elements, a promise to perform, which is not ultimately fulfilled, can be used to satisfy the fourth element.

It is the general law that to constitute a fraudulent misrepresentation, the representation must be relative to a present or preexisting fact and cannot be based on unfulfilled promises or statements as to future events. Law v. Sidney. However, a promise made without a present intention to perform the promise, is considered to be a matter of fact which exists in the present. Starkovich v. Noye and Ahmed v. Collins. Many states in addition to Arizona provide for recovery under a similar set of facts and circumstances.

As such, a promise which does not meet the formalistic requirements of a contract cause of action can still be used as the basis of a cause of action under a constructive fraud theory. The limitations on damages which are present in a contract cause of action are also replaced by those applicable to a tort theory – which may include punitive damages.

We hope you found the information provided in this article helpful to your everyday life and business. Please free to reach out to Sean Callagy or the Callagy Law team at any time for questions you may have concerning personal and business matters. Callagy Law’s headquarters is located conveniently in Paramus, NJ. Beyond the scope of information, Sean Callagy has developed multiple areas of business legal practice and business coaching, if you need help with anything, please reach out to us by calling 201-261-1700 or by emailing us here. Feel free to connect with us on Facebook, Twitter or LinkedIn! Additionally you can subscribe to our daily videos on YouTube by clicking here.

Learn More About Callagy Law Here:

Promises and Failure to Perform | Callagy Law

Wednesday, December 9, 2015

The NJ Workers’ Compensation Act | Callagy Law

Examining the Exclusive Remedy Provision of New Jersey’s Workers’ Compensation Act

The following article was written by Callagy Law’s Legal Team, and will focus on many common questions and concerns surrounding new developments, legal matters, and other procedures within the field of healthcare law Medical Revenue Recovery, PIP, Workers Compensation, and Commercial Insurance. Our mission is to answer any questions and give knowledge to many different aspects of these matters.

In view of N.J.S.A. 34:15-8, it has been understood that the Division of Workers’ Compensation (“the Division”) is vested with exclusive jurisdiction over claims arising out of employment related injuries. In relevant part, N.J.S.A. 34:15-8 states:

34:15-8. Election surrender of other remedies. Such agreement shall be a surrender by the parties thereto of their rights to any other method, form or amount of compensation or determination thereof than as provided in this article and an acceptance of all the provisions of this article, and shall bind the employee and for compensation for the employee’s death shall bind the employee’s personal representatives, surviving spouse and next of kin, as well as the employer, and those conducting the employer’s business during bankruptcy or insolvency.

If an injury or death is compensable under this article, a person shall not be liable to anyone at common law or otherwise on account of such injury or death for any act or omission occurring while such person was in the same employ as the person injured or killed, except for intentional wrong.

In a recent case, the New Jersey Supreme Court found that the Superior Court had jurisdiction to make a threshold determination as to whether an injured worker was an employee or an independent contractor. See: Estate of Kotsovska v. Liebman, 221 N.J. 568 (2015). The Liebman case involved a wrongful death action brought by the estate of the deceased worker. At issue was whether the decedent was an employee or independent contractor. Significantly, the estate had not filed a petition with the Division. The Court held that when “there is a genuine dispute regarding the worker’s employment status, and the plaintiff elects to file a complaint only in the Law Division of the Superior Court, the Superior Court has concurrent jurisdiction to resolve the dispute.” In its analysis, the Court emphasized that “there was no claim pending before the Division over which it could assert jurisdiction.” The Court further reasoned that the doctrine of primary jurisdiction was inapplicable on the grounds that the question of a worker’s employment status is often determined by trial judges and juries, the Division is in no better position than the Superior Court to determine a worker’s employment status, and there was no risk of inconsistent rulings because a petition had not been filed with the Division.

It is expected that this decision will result in increased filings of workplace injury lawsuits in the Superior Court where the worker is claiming to be an independent contractor to avoid some of the limitations on redress in the Division.

We hope you have found this information helpful and interesting. Please reach out to us here with any questions or comments regarding healthcare legal matters, or if you are a medical provider that has questions regarding Medical Revenue Recovery, PIP, Workers Compensation, and Commercial Insurance.. Feel free to search us on Facebook, Twitter or LinkedIn! Additionally you can subscribe to our daily videos on YouTube.

Learn More About Callagy Law Here:

The NJ Workers’ Compensation Act | Callagy Law

Tuesday, December 1, 2015

Failure to Cooperate – IME No Show | Callagy Law

The purpose of this post is to help assist healthcare providers and the public with questions they have concerning topics related to Medical Revenue Recovery, PIP, Workers Compensation, and Commercial Insurance.. The Callagy Law team is knowledgeable in all aspects of these sorts of legal matters and will frequently post topics in this field. We hope to have this article shine a light on many common questions.

There are many times when a provider will receive a notification from the patient’s insurance company notifying them that benefits are terminated due to the patient’s failure to appear for a scheduled Independent Medical Examination (“IME”) appointment. Insurance companies, patient and providers alike have to adhere to N.J.A.C. 11:3-4.7 in regards to the scheduling of an IME however, and however should know that there are several defenses available that will negate the carrier’s denials.

No notice to provider of carrier’s plan provisions regarding IME attendance

The carrier may allege that the patient and the provider were notified of the obligation to appear for an IME via its Decision Point Review Plan (“DPRP”). (Read more about DPRP’s in thei blog post). There is a legal requirement, however, that the carrier must show that the DPRP was in fact sent to the patient and the provider by submitting letters addressed to each. N.J.A.C. §11:3-4.7(c) provides in pertinent part: “(c) A decision point review plan filing shall include the following information: [ . . . ] 3. Copies of the informational materials described in (d) below and an explanation of how the insurer will distribute information to policyholders, injured persons and providers at policy issuance, renewal and upon notification of claim” (emphasis added).

If an insurance company cannot prove that these letters were sent, the denial of benefits based on an alleged failure to cooperate will be overcome.

No proof of delivery of IME Scheduling Notices

N.J.A.C. 11:3-4.7(e)(7), provides the following, “Insurers may include in their decision point review plan a procedure for the denial or reimbursement for treatment, diagnostic testing or durable medical equipment after repeated unexcused failure to attend a scheduled physical examination. The procedure shall provide for adequate notification of the insured and the treating provider of the consequences of failure to attend the examination.” This essentially requires insurers to provide adequate notification of scheduled IMEs.

The insurance company must submit proof that correspondence was sent to the patient and the provider indicating the time and date of the IME and any receipts or confirmations of delivery of same (i.e. certified mailings). Without such correspondence, there is no tangible proof that the patient or the treating provider were sent the scheduling letters and therefore the scheduling letters cannot be used to terminate benefits, and an alleged failure to cooperate will be overcome

IMEs not timely scheduled

Additionally, N.J.A.C. 11:3-4.7(e) provides: “A physical examination of the injured party shall be conducted as follows: 1. The insurer shall notify the injured person or his or her designee that a physical examination is required to determine the medical necessity of further treatment, diagnostic test or durable medical equipment…2. The appointment for the physical examination shall be scheduled within seven calendar days of receipt of the notice.”

IME scheduling letters that set the date of the exam significantly further out than seven days have been found by certain arbitrators to have violated the statutory requirements, and have, therefore, been ruled to not be an effective means of terminating the patient’s benefits.

Draconian remedy not established

Lastly, New Jersey’s Appellate Division ruled in New Jersey Auto. Full Ins. Co. v. Jallah, 256 N.J. Super. 134,141 (App. Div. 1992) that a dismissal of an otherwise deserving claim for failure to submit to a statement should be reserved for egregious breaches, referring to the dismissal of a claim as a draconian remedy.

An insurance company’s evidence must demonstrate that the patient’s failure to appear shows that the patient was non-cooperative and egregiously breached his/her duty to cooperate and therefore warrants such a drastic remedy as denial of payment.

Without a showing of an egregious breach, some arbitrators have found that a failure to show at an IME is not sufficient to terminate the patient’s benefits.

Conclusion

If providers become aware that a carrier is seeking to examine a patient, the provider should encourage the patient to attend the examination, as such is required under the policy. If, however, the patient does not attend, there are still several possible defenses to the carrier’s eventual termination of benefits. Callagy Law has been successful at advancing each of the defenses above, depending on the circumstances of the case.

We hope you have found this information helpful and interesting. Please reach out to us here with any questions or comments regarding healthcare legal matters, or if you are a medical provider that has questions regarding Medical Revenue Recovery, PIP, Workers Compensation, and Commercial Insurance.. Feel free to search us on Facebook, Twitter or LinkedIn! Additionally you can subscribe to our daily videos on YouTube.

Learn More About Callagy Law Here:

Failure to Cooperate – IME No Show | Callagy Law

Monday, October 19, 2015

Drafting Contracts To Avoid Litigation Later

Businesses need to be proactive in choosing vendors and drafting and finalizing contracts to protect themselves from expected and even far-fetched litigation risks. The risk of contracts leading to litigation may be the last thing on the minds of busy employees who are on deadline to get projects moving. However, businesses need to be mindful of avoiding unnecessary risk in writing contracts as well as monitoring the progress of these agreements.

Front-end or Back-end Investment

In drafting (or writing) contracts as well as negotiating contracts there are tradeoffs in how much time and effort the parties should expend in setting highly precise terms versus more generic or vague terms. While it may be easier to use more generic terms that can be applicable for multiple contracts, it is risky because those generic terms may lead to confusion and conflict between the two contracting parties.

To avoid litigation, it may be advantageous to put more time into negotiating and simply discussing terms up front to avoid confusion later between the two businesses. When parties use only vague terms they push issues into the back end which generally means that the disputes end up in litigation.

Businesses need to think long and hard about whether they are willing to take the potential risk of costly litigation in the event of contract litigation.

Litigation can be very time-consuming in addition to financially costly so business leaders need to take the overall inconvenience and risk of this into account when preparing contracts. So, investing in the front-end, while inconvenient and time-consuming, can more predictable than the risk, even if it is relatively unlikely, of litigation at some unknown time in the future.

Maintaining Good Records is Also Key

In addition, it is important to keep good records regarding business relationships and contracts. The contract itself with signed versions should be kept in a safe and accessible location whether that is in hard copy files or electronically.

Also, records showing invoices, payments made, and other relevant information about the contract are important to show whether or not your business, or the other party, is adhering to the terms of the contract. Even documents such as emails or notes from meetings between the two contracting parties can be helpful in determining what the parties actually meant in drafting contracts or how those obligations may have evolved over time. All of these records are potentially important in determining liability as well as damages.

Of course, keeping good business records is simply a good practice for all sorts of other reasons as well. Good business records are important for tax purposes as well as for monitoring revenue, costs, and the overall health of the business.

Contact a Knowledgeable Attorney Now for Guidance

In order to make sure that you are minimizing litigation risk and know exactly what you are getting into when you are negotiating a contract with another business partner, contact one of the knowledgeable lawyers at the Callagy Law firm.

Learn More About Callagy Law Here:

Drafting Contracts To Avoid Litigation Later

Monday, October 12, 2015

Employee Handbooks or Employee Contracts?

Most employees are classified as what is called “at-will” employees meaning that at the will of either the employee or the employer the employment agreement between the two parties can be ended at any time.

However, in some jurisdictions, certain factors have the potential of turning at-will employment into a contract or permanent employment situation.

Probationary Periods

Many employers have probationary periods of 30, 90, or some other set number of days during which the employer closely evaluates the employee’s performance and behavior while providing regular feedback. At the end of that probationary period, the employer may summarily terminate the employee or permit him or her to continue working at the firm indefinitely.

The issue is that in some cases, once an employee is no longer probationary, it is assumed that the employee is a permanent employee who should only be terminated for cause. Courts may find that the employer has offered a contract for permanent or something more secure than at-will employment based on a probationary period.

Some human resource experts believe that foregoing probationary periods altogether may be a better option. Or, employers can introduce certain benefits in stages, such as health care benefits after 30 days, and retirement benefits after 90 days, to minimize costs associated with hiring employees who do not work out.

Employee Handbooks as Employment Contracts

It is a common business practice for businesses to create employee handbooks that lay out the responsibilities and rights of employees at the business. These handbooks discuss any number of topics such as non-discrimination statements, dress codes, vacation and sick leave rules, as well as performance appraisal information. Additionally, these handbooks may include information on the terms of employee or the procedures for termination of employment.

In some situations, it is possible to argue that that the handbook creates an employment contract that supersedes the at-will default rule. Employers need to be careful to explicitly state that the handbook is not a contract and that the handbook is not intended to change the nature of the employment arrangement or supercede at-will employment. It is possible to inadvertently create an employment contract that creates additional burdens on employers.

So, why bother writing an employee handbook in the first place? While there are risks in writing down policies because there may be unintended consequences, there are significant risks in failing to provide written documentation on job requirements and expectations to employees. Without written standard language for employees to reference, there is the potential that employees will not know what is expected of them or that terminated or disgruntled employees may pursue litigation against the company alleging that he or she was somehow mistreated or discriminated against as there were no clear policies to follow or that each employee was treated differently in some sort of discriminatory and illegal manner.

Contact a Skilled Law Firm for Help Now

Creating and maintaining a business can be a daunting endeavor. The experienced and dedicated attorneys at Callagy Law are ready to help answer your questions about forming a business or ensuring that your existing business is in compliance with the law. Contact Callagy Law now for legal guidance.

Learn More About Callagy Law Here:

Employee Handbooks or Employee Contracts?