S3818

An Act concerning contingency fees in workers’ compensation cases and amending R.S.34:15-64.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. R.S.34:15-64 is amended to read as follows:

34:15-64. a. The commissioner, director and the judges of compensation may make such rules and regulations for the conduct of the hearing not inconsistent with the provisions of this chapter as may, in the commissioner's judgment, be necessary. The official conducting any hearing under this chapter [may] shall allow to the party in whose favor judgment is entered, costs of witness fees and [a reasonable] an attorney fee[, not exceeding 20%] of 25% of the judgment, order for payment of medical and temporary disability benefits on motion, or order approving settlement of any kind; and a reasonable fee not exceeding $400 for any one witness, except that the following fees may be allowed for a medical witness:

(1) (a) A fee of not more than $600 paid to an evaluating physician for an opinion regarding the need for medical treatment or for an estimation of permanent disability, if the physician provides the opinion or estimation in a written report; and

(b) An additional fee of not more than $400 paid to the evaluating physician who makes a court appearance to give testimony; or

(2) (a) A fee of not more than $450 paid to a treating physician for the preparation and submission of a report including the entire record of treatment, medical history, opinions regarding diagnosis, prognosis, causal relationships between the treated condition and the claim, the claimant's ability to return to work with or without restrictions, what, if any, restrictions are appropriate, and the anticipated date of return to work, and any recommendations for further treatment; and

(b) (i) An additional fee of not more than $300 per hour, with the total amount not to exceed $2,500, paid to the treating physician who gives testimony concerning causal relationship, ability to work or the need for treatment; or

(ii) An additional fee of not more than $300 per hour, with the total amount not to exceed $1,500, paid to the treating physician who gives a deposition concerning causal relationship, ability to work or the need for treatment.

b. (1) No fee for an evaluating physician pursuant to this section shall be contingent on whether a judgment or award is or is not made in favor of the petitioner.

(2) No evaluating or treating physician shall charge any fee for a report, testimony or deposition in excess of the amount permitted pursuant to the provisions of this section.

c. A fee shall be allowed at the discretion of the judge of compensation when, in the official's judgment, the services of an attorney and medical witnesses are necessary for the proper presentation of the case. In determining a reasonable fee for medical witnesses, the official shall consider (1) the time, personnel, and other cost factors required to conduct the examination; (2) the extent, adequacy and completeness of the medical evaluation; (3) the objective measurement of bodily function and the avoidance of the use of subjective complaints; and (4) the necessity of a court appearance of the medical witness. When, however, at a reasonable time, prior to any hearing compensation has been offered and the amount then due has been tendered in good faith or paid within 26 weeks from the date of the notification to the employer of an accident or an occupational disease or the employee's final active medical treatment or within 26 weeks after the employee's return to work whichever is later or within 26 weeks after employer's notification of the employee's death, the reasonable allowance for attorney fee shall be based upon the amount of compensation, theretofore offered, tendered in good faith or paid after the establishment of an attorney-client relationship pursuant to a written agreement, and the amount of the judgment or award in excess of the amount of compensation, theretofore offered. When the amount of the judgment is less than $200, an attorney fee may be allowed not in excess of $50.

d. All counsel fees of claimants' attorneys for services performed in matters before the Division of Workers' Compensation shall be 25% of the value of the money judgment, order for payment of medical and temporary disability benefits on motion, or order approving settlement of any kind, whether or not allowed as part of a judgment, and shall be first approved by the judge of compensation before payment. The Court may exercise discretion as to the allocation of payment of counsel fees between claimant and employer. Whenever a judgment or award is made in favor of a petitioner, the judges of compensation or referees of formal hearings shall direct amounts to be deducted for the petitioner's expenses and to be paid directly to the persons entitled to the same, the remainder to be paid directly to the petitioner.

(cf: P.L.2018, c.105, s.1)

2. This act shall take effect immediately and shall apply to all pending traumatic accident claims or occupational disease or injury cases which have not yet been adjudicated by a workers’ compensation judge or approved for settlement under R.S.34:15-22 on or after the date of enactment of P.L. , c. (pending before the Legislature as this bill).

STATEMENT

This bill revises the workers’ compensation law to increase counsel fee awards to a prevailing party in workers’ compensation matters from a cap of 20 percent to a nondiscretionary award of 25 percent, and it expands the application of the fee to orders for payment of medical and temporary disability benefits on motion and orders approving settlement of any kind. This legislation is intended to address the ruling in the unpublished case of Garzon v. Morris County Golf Club, App. Div. Docket #A-1100-21, concerning the basis for the award of counsel fees in the workers’ compensation system.

Attorneys for injured workers are compensated on a contingency fee basis, to encourage the vindication of the rights of injured workers to medical treatment, temporary total disability, permanent disability, and dependency benefits under a beneficent and remedial system. The cost of denying these benefits to injured workers poorly situated to paying hourly counsel fees is to be borne by the employer when appropriate and to the extent appropriate, as determined by a workers’ compensation judge.

According to the sponsor, the purpose of this bill is to incentivize attorneys to zealously represent injured workers and their families in every case compensable under the workers’ compensation law, and to create a disincentive for employers to deny or delay medical, temporary, and permanency benefits without legal defense or cause. Per the sponsor, since the original contingency cap of 20 percent was passed by the Legislature, attorneys for injured workers have been given additional duties by changes in the statutory and regulatory structures on both State and federal levels. The availability of additional attorney fees takes into account increased duties of attorneys for injured workers. It is the sponsor’s position that a successful litigant should receive 25 percent as the counsel fee for securing these essential benefits for the injured worker if the court determines the efforts of counsel resulted in the payment of these benefits.