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Cortes v. Interboro Mutual Indemnity Insurance Co.

Decided: July 8, 1988.

ALFREDO CORTES AND CARMEN CORTES, PLAINTIFFS-RESPONDENTS,
v.
INTERBORO MUTUAL INDEMNITY INSURANCE COMPANY, DEFENDANT-APPELLANT, AND DR. WALTER FLAX AND DR. JACK SIEGEL, DEFENDANTS



On appeal from Superior Court of New Jersey, Passaic County, Law Division.

Gaulkin, Gruccio and D'Annunzio. The opinion of the court was delivered by D'Annunzio, J.A.D. Gruccio, J.A.D., dissenting.

D'annunzio

Defendant (Interboro), a workers' compensation insurance carrier, appeals a judgment in the amount of $110,000 entered against it on a jury verdict in the Superior Court, Law Division.

Plaintiff, Alfredo Cortes (Cortes), sustained an injury arising out of and in the course of his employment. Interboro was the workers' compensation carrier for Cortes' employer. Cortes' claim against Interboro was based on an alleged delay in providing necessary medical treatment. On appeal, Interboro's sole contention is that Cortes' exclusive remedy was under the Workers' Compensation Act and, therefore, the Law Division lacked jurisdiction.*fn1

Defendant injured his lower back in June 1981 in a lifting incident. He commenced treatment under Dr. Fernand and returned to work in August 1981, but in September 1981, his symptoms became exacerbated. In October 1981, Fernand recommended a CAT scan and sought authorization from Interboro. In February 1982, Interboro authorized a myelogram which was performed in March 1982. In April 1982 Fernand excised a herniated disc between L-4 and L-5.

Cortes' symptoms worsened after the surgery. Dr. Fernand, in November 1982, was of the opinion that Cortes' continuing problems were the result of scar tissue or a new disc herniation at the L-5, S-1 level. Fernand testified that it was necessary to determine whether the problem was scar tissue or a new disc herniation. If scar tissue was the problem, then surgery would be contraindicated. If Cortes' difficulty was the result of a new disc herniation, then surgery was indicated and there was

a substantial probability of a good result. Consequently, in January 1983, Fernand asked Interboro for authority to perform diagnostic tests, including a myelogram.

Interboro's response was to refer Cortes to Interboro's consultants, Dr. Siegel and Dr. Flax, for a second opinion. Dr. Flax advised Interboro that the diagnostic procedures were unnecessary and, therefore, Interboro did not authorize them.*fn2

Based on the evidence, the jury could have found that Interboro's consultants changed their minds about the necessity of the diagnostic procedures in August 1983, but that Interboro persisted in its refusal to give authority for a myelogram. The myelogram eventually was performed in December 1983. Dr. Fernand testified that the myelogram established that Cortes' symptoms were the result of a "recurrent L-4, 5 left with extruded disc fragment", but by that time, December 1983, it was too late for effective surgical intervention. According to Dr. Fernand, the passage of time, allegedly due to Interboro's failure to authorize the diagnostic tests, made it unlikely that the surgery would yield a good result. Dr. Fernand also testified that development of a recurrent disc herniation was one of the risks of disc surgery and that the "ten percent failure rate includes the recurrent disc herniation." Dr. Fernand's testimony established that the second disc problem was related to the compensable initial disc herniation.

The substantive issue is whether the exclusive remedy for Interboro's refusal to authorize diagnostic tests was by a proceeding within the Division of Workers' Compensation (Division).

N.J.S.A. 34:15-15 obligates the employer to provide necessary medical treatment. The Division's control and superintendence of the employer's treatment obligation is emphasized in

that statute. Thus, an employer is not obligated to furnish or to pay for doctors' services in excess of $50 or for hospital services in excess of that amount unless the worker files a petition with the Division and the Division determines "that such physicians' and surgeons' treatment and hospital services are or were necessary, and that the fees for the same are reasonable and shall make an order requiring the employer to pay for or furnish the same."

Regulations governing the Division's practice implement N.J.S.A. 34:15-15 through the authorization of a petitioners' motion for temporary disability payments or medical benefits. N.J.A.C. 12:235-5.2. The regulation, in subsection (d), requires that the motion be heard "peremptorily within 30 days" after filing and that a decision be rendered within 15 days of the hearing. Substantively, subsection (e) of the regulation eases the petitioners' burden. It provides that affidavits and medical reports filed in support of the motion "shall constitute a prima facie case. . . ."

N.J.S.A. 34:15-15 also authorizes a worker to secure necessary treatment if the employer refuses to furnish it and to seek payment or reimbursement from the employer after treatment has been rendered.

Thus, the legislature has established a right to treatment and a remedy within the Division to enforce that right. In Rothfuss v. Bakers Mut. Ins. Co., 107 N.J. Super. 189 (App.Div.1969), this court, in affirming dismissal of the first two counts of the complaint held:

The first and second counts of the complaint charge defendant with failing to furnish prompt and adequate medical treatment. The remedy for such alleged wrongs lies within the provisions of the Workmen's Compensation Act, N.J.S.A. 34:15-15 and 34:15-15.1, and a suit at common law cannot be maintained N.J.S.A. 34:15-7 and 34:15-8.

Recently, in Dunlevy v. Kemper Ins. Group, 220 N.J. Super. 464 (App.Div.1987), certif. den. 110 N.J. 176 (1988), we held that the Division had exclusive jurisdiction to consider a claim that a

compensation carrier had wrongfully with intent to harm terminated plaintiff's ...


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