One of the things we try to warn clients about early in a case is being sure that they treat only with authorized physicians, that is, physicians who are appointed by your employer or your employer’s workers’ compensation insurance company.

Under New Jersey law an injured worker does not have the right to choose a treating physician when an injury is accepted as work related by his or her employer. Treatment must be provided by the employer, an important provision of our Workers’ Compensation Act originally enacted in 1911. That Act incorporated a compromise which allowed employers to choose the doctors as a cost saving measure, in return for the injured worker not having to prove that he or she was not negligent, and not having to prove that the injury was someone else’s fault.

There are several types of liens that can be claimed against an injured worker’s compensation file if treatment is provided by unauthorized physicians. This is the first of several blogs that will address this issue. In this first blog I will address ERISA liens.

ERISA is the acronym for the Employment Retirement Income Security Act of 1974. ERISA is a federal law setting minimum standards for voluntarily established pension, health and disability plans in private industry. ERISA plans are employee benefit plans which are funded by either assets of the employer or through a trust funded by contributions from the employer and employees. A union health and welfare plan is almost always covered by ERISA.

ERISA plans are governed by federal law. As such, they can be enforced in the federal courts. They are also not subject to state jurisdiction. This means that even if a judge of compensation enters an order that an ERISA lien is not valid or viable based on the evidence before the judge, it is not binding on that plan covered by ERISA.

Many people may be upset when they hear of this. They generally believe that a judge, even a judge of workers’ compensation can enter an order and that will be the end of the issue. No so with ERISA. ERISA is only subject to federal jurisdiction.

ERISA also has a six year statute of limitations which means that after the last payment of a benefit under an ERISA plan, that plan can go into federal court and sue for recovery of any money they claim was paid for a work related injury. Therefore, although it is often a matter of some considerable delay, any claim for reimbursement of medical benefits by an ERISA plan must be honored and negotiated so that it is hopefully resolved within the workers’ compensation court. This generally means that an attempt must be made to have either the employer’s workers’ compensation carrier reimburse ERISA or that it be reimbursed through the injured worker’s award.

In order to avoid ERISA problems, and, problems generally with the liens to be discussed in this series, it is absolutely necessary that when a worker is injured on the job he or she must immediately notify the employer and treat through the employer’s designated physicians. Unless the employer or its insurance carrier denies the claim, all treatment must be through their providers.

In those situations where unauthorized treatment is obtained through and ERISA plan, steps must be taken to deal with the lien to follow. First, the worker should have a qualified workers’ compensation attorney. After retaining the attorney it is most important that the attorney be notified of the potential of an ERISA lien. That attorney can then take the necessary steps to notify ERISA of the workers’ compensation claim, as is required by law, and then hopefully take steps within the workers’ compensation court to obtain authorized treating benefits for his or her client.

In other situations it might be possible for the attorney to negotiate a compromise of the ERISA lien. However, keep in mind that as federally created plans, any such ERISA plan has the right to reject any and all compromises and insist on full payment even if it means going to federal court. The lesson to be learned here is that anyone covered by an ERISA benefits plan should be extremely careful about obtaining any treatment whatsoever without authorization from a workers’ compensation insurance company.