This is a question that I am frequently asked by my clients in their New Jersey workers’ compensation cases. My response is usually along the lines of “…wish you could, but unfortunately you cannot.” However, the recent case of Davis v. OneBeacon Insurance Group, 09-cv-4179 (D.N.J. June 28, 2010) might just change my response in the right case. The Davis case stands for the proposition that where an employer/workers compensation carrier selects an authorized doctor— and that doctor recommends certain treatment—the carrier cannot refuse to authorize the treatment without also proving that they had a very good reason to do so.
The facts of the Davis case stem from a Motion for Medical and Temporary Disability Benefits that was filed in workers’ compensation court in New Jersey. Davis requested the treatment that his authorized workers’ compensation doctor had recommended, and the carrier repeatedly refused to authorize it. His attorney filed a Motion and the Judge found that the workers’ compensation carrier was obligated to provide the treatment since it was recommended by the doctor that the carrier had chosen.
Davis then filed a complaint in Superior Court of New Jersey alleging that the workers’ compensation carrier’s actions caused him pain and suffering, mental anguish and emotional distress —all things that are not recoverable in workers’ compensation court. The carrier filed a Motion to dismiss the law suit, and the Judge denied the Motion, allowing the case to move forward. The case is still pending.
Be cautioned that this type of law suit would only be feasible in very limited circumstances; however it is something I would not hesitate to pursue given the right set of facts.