Consequential injury under the Longshore/Defense Base Act.

When an employee sustains an injury at work followed by a subsequent injury or aggravation outside of work, the employer is liable for the entire disability and for medical expenses due to both injuries if the subsequent injury is the natural or unavoidable result of the original work injury and would have occurred notwithstanding the subsequent injury. If the subsequent progression of the condition is not a natural or unavoidable result of the work injury, but is the result of an intervening cause, the employer is relieved of liability for disability attributable to the intervening cause.

Widow claims husband's death was "natural result" of work injury.

In a notable recent case, a longshoreman had an admitted leg injury at work. The employer voluntarily paid temporary total disability and medical benefits. The claimant was prescribed pain medications (Fentanyl patch, oxycodone). Two-and-a-half years later, the claimant underwent an (unrelated) tonsillectomy. He was prescribed pain medications following the (unrelated) surgery, which he took in addition to his "work related" pain meds. Three weeks later, he was dead. The autopsy revealed that Employee died from a multi-drug overdose related to his use of pain killers for both the leg injury and the subsequent non-work related surgeries. The widow filed a claim for death benefits.

Failure to comply with doctor recommendations was an "intervening cause" of death - case dismissed.

At trial the employer was able to prove that the decedent did not tell his doctors that he was taking pain pills for both the work injury and the non-work injury. The trial judge found that the decedent’s failure to inform his doctors of his pain killer abuse was the action that led to his death. The decision was upheld on appeal to the benefits Review Board.

Case: Sinegal v. Island Operating Company, BRB 11-0199 (Decided October 25, 2011).

Is there a notice defense in New York?

New York employers must provide statutory benefits to employees who have an accident and sustain an injury, which arises out of and in the course of employment. The employee must provide notice to the employer within 30 days after the accident. WCL § 18. Timely notice gives the employer the ability to fully investigate the circumstances of the accident when information is available and witnesses can recall the event. Failure to give proper notice may prejudice the rights of the employer to the extent that it may be found to be relieved of its obligation to provide benefits under the law.

What constitutes Employer Prejudice?

Notice must come within 30 days – but the claimant can report it later – and get benefits – if the employer is not prejudiced by this late reporting. Whether or not late reporting prejudices the employer is a fact question for the Board.

New Case on employer prejudice.

In a new case decided December 15, 2011, the Appellate Division reviewed the denial of a claim based on the failure of the claimant to provide timely notice to the employer. In Dudas v. Town of Lancaster, the claimant allegedly injured his ankle in a slip on ice while working at Town Hall on February 28, 2007. The employee continued to work and did not seek medical treatment until 10 days later. The claimant reported the injury as work-related on June 27, 2007. The employer filed denial pleadings raising "notice" as a defense (see my "best practices" recommendations for filing denial pleadings). The employer also obtained the original emergency room intake records, in which the claimant was recorded as stating he was injured when he "fell off a porch" - a story at odds with his "slip on ice at Town Hall" claim.

Here, the Board disallowed the claim and the Appellate Division upheld that denial, as the claimant's failure to report the injury within the time period required by law (30 days) prejudiced the employer's ability to investigate the underlying accident.
Case: Dudas v. Town of Lacaster, 2011 Slip Op. 09050 (N.Y. App. Div., Decided December 15, 2011).

What are the time limits on filing an occupational?

In New Jersey, occupational disease claims must be filed "within two years after the date the claimant first had knowledge" of the nature of his disability and its relation to his employment. Knowledge means recognition of the most notable characteristics of the disease sufficient to bring home a substantial realization of its extent and seriousness. Knowledge of the "nature" of a disability includes knowledge that the injury is compensable. In Earl v. Johnson & Johnson, 158 N.J. 155 (1999)., the Court found that although petitioner's respiratory problems began in 1989, the petitioner was not aware that the condition had deteriorated into a permanent disability until undergoing pulmonary function tests in 1993 and it is from that time that the statute of limitations runs.

When will an out-of-time defense be sucessful?

The New Jersey Appellate Division just upheld the dismissal of a high school teacher's lung cancer claim despite the fact that the teacher was able to demonstrate asbestos exposure over a twenty year period. The workers' compensation judge focused on the petitioner's knowledge of knowledge of exposure and cognizance that his lung cancer condition might have been related to the asbestos exposures in his workplace

The petitioner argued that "knowledge" of causation could not be imputed to him. However, the Respondent was able to demonstrate that the claimanthad "better than a master's degree," an intimate familiarity with the school environment including the ongoing remediation programs he personally observed, and the fact that the claimant actually testified about the asbestos exposure hazards in the school in public hearings that took place before the school board.

Given this backdrop of obvious knowledge regarding the workplace exposure to asbestos, the Workers' Compensation Law Judge ruled that waiting until 2004 to file his workers' compensation claim was beyond the statute of limitations, because the claimant was diagnosed with cancer in 2000, and the statute started running at that time. The petitioner did not file his claim within the two year limitation of the Act, and his case was dismissed. The Appellate Court upheld the dismissal.

Practical tips.

In the asbestos case, the employer was well armed with the petitioner's own prior testmony, given directly to the employer (remeber: the claimant was a teacher and the respondent was the school board), in which he publicly declared his knowlege of the hazardous condition in the workpace. IN most cases, public declaratiosn made by a pettiioner years before he or she files an occupational claim, publicaly acknoweleging their understanding of a specific hazard in the workplace, will not be available. But another case, also recently decided, demonstrates that good claim investigation can uncover similar evidence that a claimant knew of the alleged occupational injury long before the filing of their formal claim.

In Graf v. Mtichell Park Flooring, decided December 19, 2011, the claimant brought an occupational claim against a sucession of employers, alleging that use of a floor sander at work created a permanent residual disability. He recieved treatment with a chiropractor in 1999, and the record of that care was obtained by the employer. The Judge of Compensation relied on that record as demonstrating that the claimant "knew the nature and extent of his claimed disability" at the time of that treatment (in 1999). The Appellate Division upheld dismissing his workers' compensation claim, which wasn't filed until 2004, as being filed beyond the two-year statute of limitations.

Cases: Russo v. Hoboken Board of Education, A-1861-10T4 (N.J. App. Div., Decided November 29, 2011) and Graf v. Mtichell Park Flooring, A-1775-10T1 (N.J. App. Div., decided December 19, 2011).

Most-Requested Articles of 2011 . . .

New York 

10) Challenging Wages in Concurrent Employment Cases Post reform.
9) Overview of the New Permanent Disability Guidelines Effective January 2012.
8) When Are "Exotic Performers" not Employees in New York?
7) New York Workers' Compensation settlements.
6) Suicide and Compensation.
5) Applying the "Attachment to the workforce" test to ongoing benefits.
4) Effective Use of video at trial in New York.
3) Applying the Medical Treatment Guidelines to Out-of-state claimant
2) Rejecting Variances Based on Defective Filings.
1) The Medical Treatment Guidelines in Practice.

New Jersey

9) Using Facebook and other Social Media to Nail Frauds in New Jersey.
8) Attorneys' Fee Trends in New Jersey.
7) Reconstructing Wages in New Jersey.
6) Trying a Medical Provider Claim - the Burn Surgeon's Case.
5) Using a "Tie-Breaker" to Resolve a Medical Treatment Dispute.
4) Was It Too Much Facebook or Too Much Work that Killed Cathleen Renner?
3) Using Video at Trial in New Jersey.
2) Penalties for Carrier's Actions in New Jersey and New York.
1) Love and Bullets for Valentines Day.

Longshore and Defense Base Act

5) Initial Reporting under the Longshore Act.
4) Defenses under the Longshore Act.
3) Calculating Wages under the Defense Base Act.
2) The "True Doubt" Rule.
1) New Longshore Rates in Effect.

The workers’ compensation law provides two separate ways for a compensation carrier to obtain reimbursement from the proceeds of a claimant’s third-party settlement:

1. Assert a lien against the recovery for the amount of benefits already disbursed by the carrier. N.Y. Work. Comp. Law § 29(1); or
2. Offset the claimant’s future compensation benefits by the amount of the claimant’s net recovery in the third-party action. N.Y. Work. Comp. Law § 29(4).

Asserting a Lien for Past Benefits Conferred

The workers compensation carrier “shall have a lien on the proceeds of any recovery from” a third party settlement less reasonable and necessary expenditures, such as attorney’s fees. N.Y. Work. Comp. Law § 29(1). The employee may apply on notice to the lienor to the court for an order apportioning reasonable and necessary expenditures including attorneys fees. The court shall apportion such expenditures equitably between the employee and the lienor. Id.

Offsetting Future Compensation Benefits

The carrier must affirmatively preserve its right to offsets, or it may involuntarily waive such right. See Hilton v. Truss Systems, Inc., 82 A.D.2d 711, 444 N.Y.S.2d 229 (3d Dep’t 1981), order aff’d, 56 N.Y.2d 877, 453 N.Y.S.2d 428, 438 N.E.2d 1143 (1982). The claimant’s third-party settlement recovery less the carrier’s lien is credited by the carrier against future compensation payments. The net amount the claimant receives offsets future compensation payments, and no future payments will be made until the credit is exhausted. The carrier may waive the lien or the offset. N.Y. Work. Comp. Law § 29.

SIMPLY THE MOST PRACTICAL, up-to-date and easy-to-understand guide to New Jersey workers' compensation claims. Tackling issues like employee fraud, this book is designed for employers, attorneys, claims adjusters, physicians, self-insured employers and vocational rehabilitation workers.

This guide is written in plain English by New Jersey attorneys and provides a detailed analysis of relevant statutes and regulations; a complete recap of recent court decisions; and a full description of current practice and procedure. This book provides a behind-the-scenes look at the complicated issues and makes the law understandable for business owners.

Updated chapters on OSHA regulations, new "emergent" motions for medical benefits, the Medicare Secondary Payer Act, and HIPAA considerations are included. Available in print here.

The Appellate Division issued a decision last week in a case where a post-2007 claimant had average weekly wages of $3.56 per week in the primary employment (the employment where she sustained the injury). The claimant had another job - a part time position at a retail clothing store, where she earned an average weekly wage of $77.13.

Added together, the Board found a wage of $80.69 per week. The Law Judge issued awards at a temporary total rate of $80.69 per week. The employer appealed - arguing that the award should have been based on the primary wage only - $3.56 per week - because reimbursement for compensation paid for additional amount attributable to the concurrent employment are no longer reimbursable from the Special Disability Fund (as per Section 14(6) of the WCL).

In this case the Appellate Panel ruled in favor of the claimant, finding that there was concurrent employment pursuant to Workers' Compensation Law § 14 (6) and that claimant's benefits were properly calculated based upon both employments.  Despite the weekly wage in the primary employment being nly $3.56 per week, the claimant got the benefit of a much higher rate based on both employments.

Case: Hazel Hope v. Warren County Board of Elections, 512524 (App. Div. Decided Nov. 23, 2011). 

Have a question about calculating wages or rates in a case where there is concurrent employment? Contact Greg Lois.

There may be recession on, but New Jersey's petitioner's attorneys will not be feeling the pinch!  Petitioner's attorneys are moving forward on two fronts to skim more money from the compensation system.

Increasing Fees on Awards.

Attorneys fees in New Jersey are controlled by N.J.S.A. 34:15-64, which states that an attorneys fee must be "reasonable" and can not exceed 20% of the total award.

In practice, the Division issues a memorandum each year that sets a threshold fee. In the past, if a petitioner's attorney wanted to get a bigger fee than the "threshold" he or she was required to present an affidavit of services, detailing exactly what they did to earn that money. In practice, Judges of Compensation nearly always award the maximum fee.

Last year, the "no questions asked" fee threshold was $40,000. For 2012, the "no questions asked" fee jumps to $42,000. Also, under the new practice (effective January 3, 2012), petitioner's attorneys will no longer have to submit an affidavit of services - just make some sort of argument for why they are due an enhanced fee on the record.

New Jersey to reconsider fees on "Voluntary" Compensation.

When an employer knows (with certainty) that an employee has been injured and will suffer some degree of permanent injury (for example, when there has been loss of a limb), a voluntary tender, made at the appropriate time, may be offered to reduce exposure for attorney’s fees when the underlying claim is disposed of.

N.J.S.A.34:15-64 provides (in part):

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 only that part of the judgment or award in excess of the amount of compensation, theretofore offered, tendered in good faith or paid.

There is now a pending proposed amendment to Section 64 which would grant an attorney a fee on this voluntarily tendered payment.

In other words - even where the petitioner did not have an attorney at the time a voluntary tender was issued - if he later retained counsel his attorney would be due a fee on any money already paid to him or her.

As recently as 2005 the Appellate Division affirmed the decision of the workers’ compensation judge to deny the employer the benefit of a reduced contribution to the petitioner attorney’s fee award because the employer’s voluntary tender of disability benefits was untimely when it occurred slightly beyond the twenty-six week period allowed by statute.  In reviewing the statutory history of N.J.S.A. 34:15-64 and viewing that statute together with N.J.S.A. 34:15-16, the Appellate Division concluded that when the NJ Legislature amended this statute in 1979 it intended to create a “bright line” timeframe and set a clear and certain deadline an employer must meet to reduce its contribution to an attorney fee award by invoking the “26-week rule.”  In other words - most voluntary payments to injured workers have been shielded the increased costs associated with attorneys fees - and that may change.

The law has not changed yet - but the proposed legislation change will be discussed in committee on December 8th.

Of course, we will continue to monitor this proposed change and keep you updated on any significant developments.