Re: Can I Be Forced to Attend a Permanency Exam While I Am Still Treating with My Doc
Those are not acceptable conditions to base a claim - You must have a condition that can be proven with objective medical evidence.
I was diagnosed with Fibromyalgia, sever myofascial pain syndrome
Fibromyalgia, sever myofascial pain are based on subjective evidence and not a basis to sustain a claim.
Permanent Partial Disability Benefits
In Perez v. Pantasote, Inc., 95 N.J. 105 (1984), the Supreme Court held that entitlement to permanent partial disability requires that:
[T]he employee must first prove by demonstrable objective medical evidence a disability that restricts the function of his body or its members or organs. Second, he must establish either that he has suffered a lessening to a material degree of his working ability or that his disability otherwise is significant and not simply the result of a minor injury.
A second criterion is whether there has been a disability in the broader sense of impairment in carrying on the "ordinary pursuits of life." See Perez, supra.
A subjective complaint of pain or discomfort without accompanying "demonstrable objective medical evidence," does not satisfy a petitioner's burden of proving the existence of partial-permanent disability. See Colon v. Coordinated Transport, Inc., 141 N.J. 1 (1995) (range of motion tests are subjective evidence and do not, standing alone, satisfy the statutory requirement of demonstrable objective medical evidence). See also Porter v. Elizabeth Board of Education, 281 N.J. Super. 13, App. Div. 1995), cert. denied 142 N.J. 455 (1995) (an employee who underwent cervical disc surgery demonstrated objective medical evidence of disability); Perez v. Monmouth Cable Vision, 278 N.J. Super. 275 (App. Div. 1994), cert. denied, 140 N.J. 277 (1995) (a "hands-on" examination demonstrating loss of range of motion and strength is sufficient to satisfy requirement of demonstrable objective medical evidence); and Rakip v. Madison Ave. Food Town, 272 N.J. Super. 590 (App. Div. 1994) (modest findings of restriction of flexion, extension and bending, and complaints of continuing pain in his low back that interfered with his activities of daily living, were sufficient to sustain award of permanent partial disability).
Where there is a conflict of medical testimony the court will give greater weight to that of the treating physician. See Pellegrino v. Monahan McCann Stone Co., 61 N.J. Super, 561 (App. Div. 1959); and Mewes v. Union Bldg. & Construction Co., 45 N.J. Super. 88 (App. Div. 1957), certif. denied 24 N.J. 546 (1957).
Based on what you've posted, I would say they can demand you attend a Permanency Exam or close your claim (I'm surprised it's still open.)
You can treat with your private insurance forever as long as your comp claim is denied.
What are my legal right that ensure that I can continue with my treatment with private insurance until I get better?
If you win your comp claim, your private insurance can seek reimbursement for every dime they've paid.
Private insurance will not cover a work related injury.
Moderator Responses are based on my personal bias, experience and research - They do not represent the views of the admin nor may be accepted in the legal community, always consult an attorney.