Geaney: Governor Signs Bill Raising Fees of Evaluating Physicians

Monday, August 7, 2023 | 0

On July 20, Gov. Phil Murphy approved an amendment to New Jersey Statutes Annotated 34:15-64 raising the maximum amount that physicians may be paid for opinions regarding need for treatment or estimates of permanent disability. 

John H. Geaney

The maximum fee had been previously set at $600. Under the new amendment, the maximum fee is now $1,000. The goal of the bill is to provide parity between the amounts that physicians charge respondents for these kinds of medical evaluations and the amount physicians charge claimants.

Employers should take note of this change because the Division of Workers’ Compensation in New Jersey has a customary practice of assessing half of the cost of the examination of claimants on the employer in a percentage of disability settlement.  For example, if the expert for petitioner charges $600 for an examination and report, the employer would pay $300 and the employee would pay $300.

Now the judge of compensation can award $1,000 to the physician with $500 assessed against the employer and $500 assessed against the employee. That amounts to about a 65% increase for employer and employee. 

On Section 20 settlements, the employee pays the entire cost of his or her permanency examination. There are far more percentage settlements in New Jersey than Section 20 settlements, perhaps 2-to-1 in favor of percentage settlements.

The question most asked is this: Where does it say in the law that the employer must pay half of the cost of the petitioner’s examination on a percentage settlement? The answer is that there is no such provision in the law. No statute in New Jersey requires the employer to pay part of the cost of the employee’s medical report. There is no regulation that requires the employee to pay part of the cost of the medical report. It is just an unwritten practice that has prevailed for many decades. I do not know when this custom commenced in New Jersey.

Another key question: Does this new amendment affect cases that were filed before the governor signed the law, or only cases that are filed after the law was passed? The law says this act shall take effect immediately. It makes no comment on retroactivity. The Legislature has a habit of passing laws without addressing specifically when the law is meant to apply.

The language used in this bill is quite common in terms of taking effect immediately, but what was the intent of the legislators as to cases that were filed years ago but not yet resolved? Does it matter if the medical examination took place before the new amendment passed on July 20, 2023?

As a general rule, when there is no specific language prohibiting retroactivity, most laws are given secondary retroactivity as a practical solution rather than going back to the Legislature for clarification. The term "secondary retroactivity" means cases that are already in the system when a new law is passed generally get the benefit of the new legal provision. But no one knows what the intent of the Legislature was specifically on this issue.

Cases that were settled before the law was passed this year and in prior years would not be affected by this new provision. That is true retroactivity. But this is certainly an area of ambiguity that should have been clarified. There may need to be guidance from the division or the Legislature on this issue. Does it apply to exams that took place before July 20, 2023? Does it apply to all cases that were active in the division but only those taking place after July 20, 2023? We don’t know.

The amendment also has a new provision stating as follows:

A psychologist, nurse practitioner or licensed clinical social worker who provides psychological treatment may be paid a fee, as permitted in accordance with the provisions of this section, for a report or testimony concerning that provider’s course of treatment of the injured worker in that provider’s role as a provider of treatment. 

This provision reflects the changing nature of medicine in New Jersey and in other states.

There are more and more cases involving care provided by psychologists, nurse practitioners and licensed clinical social workers. In fact, many occupational medical providers retained by respondents have moved to expand potential medical providers beyond only physicians who have graduated from medical school. 

John H. Geaney is an attorney, shareholder and co-chair of Capehart Scatchard's Workers' Compensation Group in New Jersey. This post appears with permission from Geaney's New Jersey Workers' Comp Blog.