Brittany Atkinson, of The Chartwell Law.

It's very common for workers to live in New Jersey and commute to Pennsylvania or New York for work. Because of the cross over state lines, it's very easy to see how major issues can arise when a worker is injured. Issues that arise out of cross-jurisdiction claims are frustrating for all parties involved but especially for the employer, as it increases potential exposure because now the employer is subject to laws in more than one state. This also makes the practice of workers' compensation more complex as you are faced with having to deal with a conflict of laws.

Dual jurisdiction exists if a claimant is able to establish jurisdiction in two or more states. In order to establish jurisdiction in New Jersey, the claimant must prove the contract of hire occurred in New Jersey; the accident occurred in New Jersey; and a substantial amount of employment for the respondent occurred in New Jersey, see Connolly v. Port Authority of New York and New Jersey, 317 N.J. Super. 315, 320 (1998). But this is not so clear-cut in the practice of law. For example, it has always been understood in the practice of workers' compensation that residency alone was not enough to confer jurisdiction, and the New Jersey appellate court finally solidified that rule in Marconi v. United Airlines, 2019 N.J. Super. LEXIS 119 (July 22, 2019). However, in an earlier appellate opinion, the court found that where the injured worker answered the telephone and accepted the job position over the phone, at his residence in New Jersey, there was sufficient contacts with New Jersey to confer jurisdiction, see Williams v. Raymours Furniture, 449 N.J. Super. 559 (2017).  The claimant in this case, otherwise, had no employment contacts with New Jersey.

When dual jurisdiction is established, it is important to recognize it immediately because it will impact the way that benefits are issued. Most frequently, the claimant will treat pursuant to New York and Pennsylvania law and then file for permanency benefits in New Jersey. There is no rhyme or reason why this occurs and unfortunately, it is permitted, see Bowers v. American Bridge, 43 N.J. Super. 48 (App. Div. 1956), aff'd, 24 N.J. 390 (1957). Perhaps it is because the claimant seeks counsel close to his residence in New Jersey and that attorney files the claim in New Jersey, unknowing that the claim was being issued pursuant to a different state. Or, perhaps, the New Jersey attorney is strategic and understands the wide range of benefits available in New Jersey, including the two-year statutory period to reopen a case after it has been settled. Regardless, the injured worker is essentially permitted to venue shop so that he can get the most from his claim.

Because of the rise in cases being filed in more than one state, one strategy is to seek full and final closures in both states. One of the biggest hurdles for the employer in New Jersey is that even after a case has resolved under an order approving settlement, pursuant to N.J.S.A. 34:15-22, the claim is subject to a reopener period. This means that the injured worker can come back to seek additional benefits and an increase in his award, within two years from the last date of payment of benefits. Statutorily, there is an option to resolve fully and finally pursuant to N.J.S.A. 34:15-20, commonly known as a Section 20 settlement. Section 20 settlements will extinguish future exposure on the claim. The difficulty, however, is that in order to resolve in this fashion, there must be a genuine issue of liability, causation, jurisdiction and dependency. Additionally, in New Jersey, the division judge is statutorily responsible for ensuring that the injured worker receives a fair and just resolution of his claim. The Judges are often reluctant to approve of Section 20 settlements because it, effectively, dismisses the case with prejudice. Therefore, this type of resolution is not always an option. So, when an issue of jurisdiction arises, it may benefit the employer in providing the option to resolve, under the terms of Section 20, on an otherwise compensable claim.

Full and final settlements are both available in New York and Pennsylvania. Therefore, when presented with the issue of dual jurisdiction, it may be best to consider resolving the case in both states, under the respective statutes that enable full and final closures. By resolving in this fashion, the employer is tying up all loose ends and shutting all aspects of the claim down for the same price that it would take to resolve the case in one state. The injured worker is not getting duplicative benefits, so any award he may be entitled in one state should be offset from the award in a different state. The concern in doing this, however, is that the carrier must incur additional litigation costs, as the parties are effectively settling twice. Additionally, the cases cannot be settled simultaneously so there is no way to guarantee that each settlement will go through.

A second major issue that arises when New Jersey residents file claims in New Jersey for out-of-state injuries is the reimbursement rate for medical providers. Because the claimant is able to choose his own doctors, under certain circumstances, pursuant to New York and Pennsylvania law, the claimant is seeking treatment with his own doctors in New Jersey. This is probably done out of convenience. However, when the claim is reported to the carrier, the carrier is processing it in the state where the employer is located and where the injury occurred. When the medical providers submit the bills to be paid, the carrier is paying the bill pursuant to the laws of Pennsylvania and New York. The medical providers then file a claim in the New Jersey workers' compensation court seeking additional money. This is because there is no fee schedule in New Jersey. The New Jersey Workers' Compensation Act provides that all fees and other charges for such physicians' and surgeon treatment and hospital treatment shall be reasonable, and based upon the usual fees and charges which prevail in the same community for similar physicians, surgeons and hospital services. This, almost always, results in the provider receiving a higher reimbursement than what is allowed in other states.

When these medical provider claims are filed, they are typically disputed, based on lack of jurisdiction. Determining whether there is jurisdiction for the medical provider claim in New Jersey is not well-settled law. Often, the parties refer to two popular cases as guidance on the issue. In an unpublished opinion, Progressive Spine & Orthopedics v. Krasdale Foods, 215 N.J. Super. Unpub. LEXIS 1145, the appellate division found that where there is New Jersey jurisdiction for the underlying claim petition, there is jurisdiction for the medical provider claim. Therefore, if the injured worker is able to establish jurisdiction with New Jersey, then the Judges are finding that jurisdiction is appropriate in New Jersey. It is important to note that Progressive Spine & Orthopedics is unpublished and therefore, not binding on the New Jersey workers' compensation court.

The other leading case on jurisdiction is a New Jersey workers' compensation decision, Spiros v. Atlantic Ambulatory Anesthesia Associates and Shrewsbury Surgery Center, Docket No. 2012-22032 & 2013-1069 (Div. of Workers' Comp., 2013). Here, the injured worker was employed in Tennessee and his accident occurred in Tennessee. He also sought benefits in Tennessee. Through his ongoing treatment for the Tennessee claim, he received medical services in New Jersey. The New Jersey providers were paid pursuant to the Tennessee statutory fee schedule and sought additional payments pursuant to New Jersey law. The division judge held that because the provider is localized in the state of New Jersey, that New Jersey has subject matter jurisdiction over the claim. The judge reasoned that New Jersey has a special interest, as the medical providers' services are localized in New Jersey and, therefore, the burdens and costs of work-related injuries fall most directly upon employers and consumers in the area where the industry is centered.

To date, the issue of jurisdiction in connection with medical provider claims has not been decided at the appellate level and until there is binding law, the argument of jurisdiction aids both parties in negotiations.

Brittany Atkinson, a partner at Chartwell Law, focuses her practice on workers' compensation matters in New Jersey. She defends insurance carriers against work-related injuries. Atkinson has defended clients in cases involving chemical exposure, jurisdictional questions and employment issues and has argued such issues up to the New Jersey Supreme Court. Contact her at [email protected].