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Appellate Court Fine Tunes Standards for Motions for Medical and Temporary Benefits

By on April 15, 2015 in Compensability with 0 Comments

Sometimes the seemingly minor cases have significant long-term impact.  The case of Amedeo v. United Parcel Service, A-1013-13T2 (App. Div. April 8, 2015) may be one of those cases.

Thomas Amedeo suffered a work injury in 2009 in the employment of UPS.  He filed a workers’ compensation claim petition and ultimately received an award of 30% partial permanent disability.  He timely reopened the case in October 2012 and sought by way of motion an order requiring UPS to assign an orthopedist to treat him for a degenerative hip condition.  Petitioner relied in his motion on a report from Dr. Frederic Brustein, an internist and physiatrist.  Dr. Brustein stated in his report that he himself would not treat petitioner but that petitioner should seek out other specialists such as university affiliated orthopedists specializing in the hips, the spine, and pain management.

UPS arranged an IME with Dr. Joseph Corona, who said that Amadeo had reached maximal medical improvement and there was no increase in his disability. He found no need for further treatment.

The case was listed on a motion hearing on October 4, 2013.  Petitioner’s attorney requested an adjournment.  The Judge refused that request, noting that petitioner’s attorney had failed to appear on several occasions.  Respondent’s counsel and an attorney covering for petitioner’s counsel appeared and conferenced the case with the judge.  Petitioner himself did not appear at the motion hearing.

The Judge of Compensation dismissed the motion hearing without prejudice.  She determined that the motion papers were insufficient and advised petitioner’s attorney of this opinion.  She also noted that no hearing could take place without the petitioner.  The Judge determined that the motion papers were deficient under N.J.A.C. 12:235-3.2(b)(2).  Dr. Brustein did not state the specific type of treatment being sought; nor was Dr. Brustein the proper physician to advance the motion since he could not treat petitioner himself as a physiatrist and internist.   All Dr. Brustein did was say that petitioner should seek out other specialists.

Petitioner appealed the dismissal of his motion.  The Appellate Division agreed with the Judge of Compensation, stating that the regulation noted above was designed to eliminate non-specific reports by requiring applicants to provide detailed opinions from qualified experts.

Here, we agree with the judge of compensation that petitioner failed to provide evidence adequate to present a prima facie case in support of his motion.  Specifically, Dr. Brustein’s report did not recommend a definite course of treatment, state that petitioner needed a particular medical treatment, or sufficiently support a referral to a specialist. Rather, Dr. Brustein’s report ‘merely suggested several options for other specialists to try.’

The Appellate Division also rejected the petitioner’s request that the case be assigned to another judge.  This decision is likely to change the way practitioners file motions and the way respondents defend them.  It is quite common for claimants to retain doctors in support of treatment motions who themselves cannot treat or lack the specific qualifications to treat.  Instead, they will recommend treatment by other doctors-to-be-named. The Amedeo case puts the onus on the applicant to retain the appropriate physician from the outset, which will also allow employers to adequately respond to such motions.    


About the Author

About the Author:

John H. Geaney, a shareholder and co-chair of Capehart Scatchard's Workers' Compensation department, began an email newsletter entitled Currents in Workers’ Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates.

Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers. The manual is distributed by the New Jersey Institute for Continuing Legal Education (NJICLE). He also authored an ADA and FMLA manual as distributed by NJICLE. If you are interested in purchasing the manual, please contact NJICLE at 732-214-8500 or visit their website at www.njicle.com.

Mr. Geaney represents employers in the defense of workers’ compensation, ADA and FMLA matters. He is a Fellow of the College of Workers’ Compensation Lawyers of the American Bar Association and is certified by the Supreme Court of New Jersey as a workers’ compensation law attorney. He is one of two firm representatives to the National Workers’ Compensation Defense Network. He has served on the Executive Committee of Capehart Scatchard for over ten (10) years.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School. He has been named a “Super Lawyer” by his peers and Law and Politics. He serves as Vice President of the Friends of MEND, the fundraising arm of a local charitable organization devoted to promoting affordable housing.

Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Trenton, New Jersey. The firm represents employers and businesses in a wide variety of areas, including workers’ compensation, civil litigation, labor, environmental, business, estates and governmental affairs.


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