Title: "Hot Tips for Hot Litigators."

Entitlement to reimbursement.

Amount of Employer’s (or Carrier’s) Recovery.

Confusion about Burns.

Permission to settle third-party case.

Time limits.

My topics are:

1. The Contextual Background of the Act;
2. Which Entities are Required to Report to the Government;
3. What Information is Necessary for Reporting;
4. The Penalties for Incomplete Submissions or Non-Compliance;
5. The Effects of Reporting on the Litigants and Their Case.

If on account of a disability or death for which compensation is payable under this Act the person entitled to such compensation determines that some person other than the employer or a person or persons in his employ is liable in damages, he need not elect whether to receive such compensation or to recover damages against such third person.

Acceptance of compensation under an award in a compensation order filed by the deputy commissioner, an administrative law judge, or the Board shall operate as an assignment to the employer of all rights of the person entitled to compensation to recover damages against such third person unless such person shall commence an action against such third person within six months after such acceptance. If the employer fails to commence an action against such third person within ninety days after the cause of action is assigned under this section, the right to bring such an action shall revert to the person entitled to compensation. For the purposes of this subsection, the term "award" with respect to a compensation order means a formal order issued by the deputy commissioner, an administrative law judge, or the Board.

Section 33(e) of the LHWCA provides:
Any amount recovered by such employer on account of such assignment, whether or not as the result of a compromise, shall be distributed as follows:

1. The employer shall retain an amount equal to
1. the expenses incurred by him in respect to such proceedings or compromise (including a reasonable attorney's fee as determined by the deputy commissioner or Board);
2. the cost of all benefits actually furnished by him to the employee under Section 7;
3. all amounts paid as compensation;
4. the present value of all amounts thereafter payable as compensation, such present value to be computed as in accordance with a schedule prepared by the Secretary, and the present value of the cost of all benefits thereafter to be furnished by section 7, to be estimated by the deputy commissioner, and the amounts so computed and estimated to be retained by the employer as a trust fund to pay such compensation and the costs of such benefits as they become due, and to pay any sum finally remaining in excess thereof to the person entitled to compensation or to the representative.
2. The employer shall pay any excess to the person entitled to compensation or to the representative.

. . . out of that part of any amount about to be paid in release or in judgment by such third person or his insurance carrier on account of his or its liability to the injured employee or his dependents, the employer or his insurance carrier shall be entitled to receive from such third person or his insurance carrier so much thereof as may be due the employer or insurance carrier pursuant to subparagraph (b) or (c) of this section. Such sum shall be deducted by such third person or his insurance carrier from the sum to be paid in release or in judgment to the injured employee or his dependents and shall be paid by such third person or his insurance carrier to the employer or his insurance carrier. Service of notice, hereinbefore required to be made by the employer or his insurance carrier upon such third person or his insurance carrier, shall be by registered mail, return receipt and in cases other than an individual shall be mailed to the registered office of such other third person or his insurance carrier.

1. How to assert a workers’ compensation lien under N.J.S.A. 34:15-40.
   Serve notice upon the liable third person or that person’s insurance carrier, that compensation has been applied for by the injured employee (or his dependents). As a practical matter, it is a good idea to serve a notice letter upon the plaintiff/worker, as well as the plaintiff’s attorney, usually the same attorney representing the worker in the compensation matter.
   
   How- by registered mail, return receipt requested upon the third person or his insurance carrier or (when not an individual) upon the registered office of such third person or his insurance carrier.
   
   
2. Effect of notice.
   When notice is given, as above, to the liable third party or their insurance carrier, it then becomes the duty of the third person or their carrier to inquire, from the employer or the employer’s insurance carrier, the amount of medical expenses incurred and compensation paid to the injured worker or their dependents. It also becomes the duty of the third person (or carrier) to inquire from the injured worker the amount of attorney’s fees and expenses of suit in the action or settlement against the third person (or carrier) before the third party makes any payment to the injured worker.
   
   Then, out of any amount to be paid by the third person (or carrier) in release or in judgment of the claim, the employer (or carrier) is paid the amount they are entitled to. That amount is deducted from the monies to be paid to the injured worker (or dependents) and paid directly to the employer or carrier.
   
   Failure to strictly comply with notice requirements could preclude your right to reimbursement.
   
   
3. Amount of Employer’s (or Carrier’s) Recovery.
   If the amount recovered by the worker (or their dependents) from the third person is equal to or greater than the employer’s (or carriers) obligation under the Workers’ Compensation Act, then the employer is entitled to be reimbursed for the medical expenses incurred and compensation payments made to the worker or his family less the workers’ expenses of suit and attorney’s fees in pursuing the action against the third person. Usually, this yields a two-thirds recovery, but the recovery can be greater depending on the contingency fee arrangement.
   
   If the amount recovered by the worker from the third person is less than the employer’s obligation, the employer is liable for the difference plus the worker’s attorney’s fees and costs of suit. The employer or carrier is entitled to the recovery from the third person, leaving their obligation to the worker as the difference between the compensation and the medicals paid out and the third person recovery, plus attorney’s fees and expenses of suit in pursuing the third person.
   
   “Expenses of suit” is limited to $750.00, and “attorney’s fee” cannot exceed 1/3rd on the part of the recovery to which the employer is entitled to. The 1/3rd cap does not apply to sums in excess of the employer’s entitlement.
   
   
4. How to assert a lien when the workers does not settle with or file suit against the liable third person.
   If the injured worker does not settle with or file suit against the liable third person within one year of the accident, the employer or carrier must make a written demand that the worker or dependent do so.
   After 10 days of the written notice to the worker (or dependents), the employer (or carrier) can either effect a settlement with, or file suit against, the third person (or the carrier). Any such action can only be for such rights as the injured worker would have had against that third person (Thereafter, the worker is barred from filing a claim on their own behalf).
   
   If the amount obtained from the third person (or carrier) is more than the amount of the employer’s lien and expenses of suit, such excess is then paid to the injured worker (or their dependents).
   Where the worker has instituted an action against the liable third person, but the action is procedurally dismissed, the employer (or carrier) is entitled to have the dismissal set aside and continue the prosecution of the action upon motion or application to the Court within 90 days of the dismissal.
   
   
5. Time to file suit.
   In New Jersey you must file suit against the adverse party within two years from the date of accident, no later, or be forever barred. N.J.S.A. 2A:14-2.

But first, the law.

"if a person purposely or knowingly makes, when making a claim for benefits…a false or misleading statement, representation or submission concerning any fact which is material to that claim for the purpose of obtaining the benefits, the Division may order the immediate termination or denial of benefits with respect to that claim and a forfeiture of all rights of compensation or payments sought with respect to the claim."

New case: showing how “new” video – not revealed on the Pre Trial Memorandum or provided in discovery before trial – can get into a New Jersey case.

Practice Tips

Filing requirements.

Time factors.

• More than seven years from the date of a compensable injury or death and the claim has been disposed of without a compensation award being issued;
• More than seven years has elapsed from the compensable injury or death which was compensated and also more than three years has elapsed from the last date of payment of compensation;
• After death, occurring more than seven years from a compensable injury and either more than three years unless payment of compensation or from acclaimed disposed of without an award.
• Payment for continuing medical care does not bar the transfer of liability under section 25–a (see Beder v Big Apple Circus, decided May 26, 2011, Appellate Division, Third Department).

“Closed” status – not as simple as it could be.

• In the most recent case decided on this topic, Hosey v Central New York DDSO, decided January 5, 2012, the Appellate Division found that the underlying case had not been "truly closed" and therefore the employer could not get the benefit of reimbursement from Special Funds for what they were calling a "reopener claim." In the Hosey decision, the claimant had a 2000 back injury and returned to work in 2002. The claimant continued to work with no additional lost time but had some work restrictions and received ongoing payments for medical treatment. Although his treating physician in 2002 indicated the claimant had a permanent disability referable to the work injury, the issue of permanency was never formally addressed. Although seven years elapsed and the claimant returned to work, the Special Fund argued that the issue of permanent residual disability had remained unresolved and therefore the case was still "open." Despite the fact that no lost time benefits have been issued for the prior seven years, and after three years of litigation on this issue, the Appellate Division upheld the denial of reimbursement for reopener benefits to the employer.
  
• In another case, Sauers v Kmart, decided December 1, 2011, the Appellate Division returned the case to the Worker's Compensation Board for review of a denial of reopener reimbursement. In this decision, the requisite seven year period had elapsed during which time the claimant had not received any medical treatment. Nor had any lost time benefits been issued. However, it was learned that approximately 2 weeks prior to the seven year anniversary of the injury the claimant had seen her treating doctor who recommended she undergo a surgery. The claimant did not want to pursue the surgery that time. Then, a few weeks later, but after the seven year period elapsed, the claimant decided to request the surgery. The employer argued that the case was closed and the appropriate seven-year period had elapsed. They argued that by the claimant decided not to pursue surgery, within the seven year period, the time period had elapsed and the employer should be reimbursed for further medical and lost time. However, the Appellate Division refused to follow that argument and instead referred the matter back to the Worker's Compensation Board for additional proceedings.
  
• The Appellate Division considered whether the case of a claimant who had already pled guilty for fraudulently collecting workers comp benefits while working was “truly closed.” In that case, the claimant made an argument that her condition had worsened and that she was due further benefits. The claimant had a ready been disqualified from obtaining further indemnity (wage replacement benefits) as she had been deemed a fraud after trial pursuant to §114a of the Worker's Compensation Act. In this interesting case, the Appellate Division found because the claimant was a fraud and therefore not do any lost wage benefits the claim was truly closed at that time and that the only payments ongoing were for consequential medical treatment. Therefore, the employer in this case was able to shift responsibility for the alleged reopener or worsening of the claimant's underlying medical condition to the Special Fund for reopener cases. (Palermo v Primo Paint Corporation, decided October 6, 2011).

Practice tips for adjusters.

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

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

What constitutes Employer Prejudice?

New Case on employer prejudice.

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

Practical tips.

New York 

New Jersey

Longshore and Defense Base Act

Asserting a Lien for Past Benefits Conferred

Offsetting Future Compensation Benefits

Increasing Fees on Awards.

New Jersey to reconsider fees on "Voluntary" Compensation.

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.

1. Medical treatment. Emergency and follow-up treatment for their injuries.
2. Wage compensation for earnings lost while they recover from the immediate effects of their injury.
• This wage compensation is called "temporary total" with the claimant is 100% totally temporarily disabled (cannot work at all) OR
• "Partial temporary" when the claimant can do some work – but isn't earning their prior level of wages (usually because they can only work part time or have to work at a job that pays less than the work they were doing at the time of the accident). This is calculated as 2/3rds of the difference between old wages and post-accident wages.
3. Death benefits payable to the dependents (usually wife and kids) of a worker killed during the course of employment. This is 2/3rds of their average weekly wage at the time of injury, subject to maximums and minimums, to the wife for life.
4. "Permanency" benefits – these are payments of money to injured worker to compensate them for the "permanent effects" of an accident. As of January 1, 2012 the “New York State Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity” (2012 Guidelines”) will apply to all cases where there has been no medical opinion finding permanent impairment with a rating based on the 1996 Guidelines (now deprecated).

Valuing Workers' Compensation for Injuries in New York.

Maximum Medical Improvement.

A finding of maximum medical improvement is based on a medical judgment that (a) the claimant has recovered from the work related injury to the greatest extent that is expected or (b) no further improvements in his or her condition is reasonably expected. The need for palliative care or symptomatic treatment does not preclude a finding of MMI. In cases that do not involve surgery or fractures, MMI cannot be determined prior to six months from the date of injury or disablement, unless otherwise agreed to by the parties.

Awards for permanent disability.

Scheduled Loss of Use.

Classification.

Example - Scheduled Loss of Use.

Example - Injury Giving rise to Classification.

What a treating doctor must do.

1. That the injury occurred on-the-job.
2. Functional abilities and restrictions (if any). The physician should measure the claimant’s ability to perform a range of functional abilities. These should include general abilities (lifting, carrying, pushing, etc.) but also general and specific tolerances (climbing, bending, kneeling, stooping, walking, standing).
3. Exertional ability (using standard classification system - ranging from “Sedentary” to “Very Heavy.”)
4. Psychiatric Limitations.
5. Other Limitations, which would include the impact of medications on ability to operate machinery, for example.

Examining Doctors.

1. Review the Guidelines.
2. Review the medical records.
3. Perform a thorough history and physical examination and recount the relevant medical history, examination findings and appropriate test results.
4. State the work related medical diagnosis(es) based upon the relevant medical history, examination and test results.
5. Identify the affected body part or system (include Chapter and Table No. for non-schedule disabilities).
6. Follow the recommendations to establish a level of impairment.
7. For a non-schedule disability, evaluate the impact of the impairment(s) on claimant’s functional and exertional abilities.

What the Workers' Compensation Law Judge does.

Non-schedule/Classification Awards Post-Reform.

The Working Post-reform Claimant.

Example.

LWEC and Maximum PPD Benefit (Chart).

The Non-working Post-reform Claimant.

1. Medical impairment. The medical impairment evaluation must be performed by a medical professional. The medical professional should apply the evaluation criteria laid out by the Board in the 2012 Guidelines. (For more on this topic, see Chapter 2: IMEs). The physician must document the injured worker’s diagnoses and impairment ranking by body part or system and state the medical basis for the impairment classification, including reference to the relevant history, physical findings, and diagnostic test results.



2. Functional ability/loss. The medical assessment of the residual functional abilities and losses is also considered by the Judge in assessing loss of wage earning capacity in the non-working claimant. The functional evaluation (recorded on Form C-4.3) should include the following:
   
   
   1. Functional ability/restrictions: On examination, the physician should measure the injured worker’s performance and restrictions across a range of functional abilities, including dynamic abilities (lifting, carrying, pushing, pulling and grasping), general tolerances (walking, sitting and standing) and specific tolerances (climbing, bending/stooping, kneeling, and reaching). These abilities and restrictions, including specific weight and time limitations, should be recorded on the Form C-4.3. Alternatively, the physician may refer the injured worker to a physical or occupational therapist for completion of the functional measurements and, after the physician’s review, incorporate them into the Form C-4.3.
   
   
   2. Exertional ability: Finally, the physician should rate the injured worker’s residual exertional capacity according to the standard classification system of Sedentary to Very Heavy. The exertional capacities relate to those activities that require lifting and/or pushing or pulling objects. The definitions of each category, which are derived from the Dictionary of Occupational Titles and used in the Social Security system, are as follows:
   
   
   • Sedentary: Exerting up to 10 pounds of force occasionally and/or a negligible amount of force frequently to lift, carry, push, pull or otherwise move objects, including the human body. Sedentary work involves sitting most of the time, but may involve walking or standing for brief periods of time. Jobs are sedentary if walking and standing are required only occasionally and all other sedentary criteria are met.
   
   
   • Light: Exerting up to 20 pounds of force occasionally, and/or up to 10 pounds of force frequently and/or negligible amount of force constantly to move objects. Physical requirements are in excess of those for sedentary work. Even though the weight lifted may only be a negligible amount, a job should be rated light work: (1) when it requires walking or standing to a significant degree; or (2) when it requires sitting most of the time but entails pushing and/or pulling of arm or leg controls; and/or (3) when the job requires working at a production rate pace entailing the constant pushing and/or pulling of materials even though the weight of those materials is negligible. NOTE: The constant stress of maintaining a production rate pace, especially in an industrial setting, can be and is physically demanding of a worker even though the amount of force exerted is negligible.
   
   
   • Medium: Exerting 20 to 50 pounds of force occasionally, and/or 10 to 25 pounds of force frequently, and/or greater than negligible up to 10 pounds of force constantly to move objects. Physical demand requirements are in excess of those for light work.
   
   
   • Heavy: Exerting 50 to 100 pounds of force occasionally, and/or 25 to 50 pounds of force frequently, and/or 10 to 20 pounds of force constantly to move objects. Physical demand requirements are in excess of those for medium work.
   
   
   • Very Heavy: Exerting in excess of 100 pounds of force occasionally, and/or in excess of 50 pounds of force frequently, and/or in excess of 20 pounds of force constantly to move objects. Physical demand requirements are in excess of those for heavy work.


3. Non -medical vocational factors:


• Vocational issues: Education and Training. The Board considers the role of education in a worker’s ability to qualify for different occupations and level of income. The relationship between education and loss of wage earning capacity is complicated by the fact that the impact of education is also generally reflected in workers’ pre-injury wages. Those with more education generally earn more than those with less education, both pre-injury and post-injury. Thus, in determining loss of wage earning capacity, it the court will evaluate the degree that educational achievement affects the impact of a medical impairment on a worker’s earning capacity.



• Vocational issues: Skills. Prior work skills are often as important as formal education in an individual’s qualification for employment. An injured worker with a history of unskilled or semi-skilled work in the past is unlikely to qualify for skilled work post-injury. A worker who has performed skilled work may be able to find other skilled work within his functional limitations, though this depends on the nature of the worker’s job skills. A key consideration is whether the worker’s skills are readily transferable to alternative employment. The transferability of skills from a prior occupation generally depends on the similarity of occupationally significant work activities among different jobs. The similarity can be measured by the level of similarity in the degree of skill involved, the tools and machines used, and the materials, products, processes or services involved.



• Vocational issues: Age. The 2012 Guidelines instruct that age “should be considered in the context of residual function, education, and work experience.” The court will presume that advancing age adversely impacts a person’s ability to obtain employment that involves work that is different from one’s prior work experience or requires developing new skills.



• Vocational issues: Literacy and English Proficiency. The ability to read, write, and speak English fluently is a requirement for many occupations in New York. Those who have limited or no ability to read, write or speak English fluently may still qualify to perform manual labor and other work that does not require interaction with the public or involvement with written documents. Workers who are illiterate or have limited or no English proficiency and, by virtue of their impairment, are rendered unable to perform manual work may have a significant loss of earning capacity.

When wages are "reconstructed."

Case where wage reconstruction was rejected.

Applying Gruzlovic to Calle.

What do the current Guidelines cover?

(1) Medical care for workers' compensation injuries to the neck, low back, mid back, shoulder, and knee must be provided in a manner "consistent with the MTG." This is the standard for doctors and health care providers to follow.
(2) "Consistent with the MTG" means that care is provided within the criteria and based upon a correct application of the MTG. What is "within the criteria" and "a correct application" is left open for the WCB's WC Judges to interpret.

(1) Medical Care. The purpose of medical care is to restore functional ability required to meet daily and work-related activities, to obtain a positive patient response primarily defined as functional gains which can be objectively measured, and to provide effective treatment which includes evaluations and re-evaluations of treatment and which discontinues ineffective treatments.
(2) Treatment approaches. Treatment should emphasize active interventions over passive modalities (i.e., therapeutic exercise instead of manipulation), should include passive intervention as a means to facilitate progress in an active rehabilitation program, and should resort to surgical interventions only when there is correlation of clinical findings, clinical course, imaging and other diagnostic tests.

When are Authorizations Required?

As soon as practicable after June 30 of each year, and in any event prior to October 1 of such year, the Secretary shall determine the national average weekly wage for the three consecutive calendar quarters ending June 30. Such determination shall be the applicable national average weekly wage for the period beginning with October 1 of that year and ending with September 30 of the next year.

The Green Decision

1. the claimant's inattentivieness during the test; or
2. The presence of a cold or other medical condition which could have affected middle ear pressures.

The Appeal.

1. Medical treatment. Emergency and follow-up treatment for their injuries.
2. Wage compensation for earnings lost while they recover from the immediate effects of their injury.
   • This wage compensation is called "temporary total" with the claimant is 100% totally temporarily disabled (cannot work at all) OR
   • "Partial temporary" when the claimant can do some work – but isn't earning their prior level of wages (usually because they can only work part time or have to work at a job that pays less than the work they were doing at the time of the accident). This is calculated as 2/3rds of the difference between old wages and post-accident wages.
3. Death benefits payable to the dependents (usually wife and kids) of a worker killed during the course of employment. This is 2/3rds of their average weekly wage at the time of injury, subject to maximums and minimums, to the wife for life.
4. "Permanency" benefits – these are payments of money to injured worker to compensate them for the "permanent effects" of an accident.

1. "Scheduled loss of use" which relates to injuries to body parts which are listed on this "scheduled loss of use chart" which is attached to this document. This is a fixed amount of compensation for injuries to fingers, toes, hands, feet, arms, ankles, knees, etc.  In other words, the Workers Compensation Law states that if you lose your thumb in accident, you get a fixed benefit – a number of weeks of compensation times your weekly rate – which is determined by the injury.
2. The second type of permanent disability award is called a "classified award” or sometimes it is called a "classification." This term "classification" doesn't really mean anything – it just means you sustained injury to a body part which is not specifically described on the "scheduled loss of use chart." For example, injuries to the head, neck, and low back are considered "classifiable" injuries – and they are compensated in terms of a fixed number of weeks – up to 600 weeks.

Example.

If I made $200 per week and I lose my thumb, according to the scheduled loss of use chart, I would be entitled to 100% loss of the thumb – 75 weeks of compensation. This would be paid at a rate equivalent to 2/3rds (66.6%) of my average weekly wage – or approximately $133.34 per week (two thirds of $200 per week). So in this example, the loss of my thumb would give rise to an award of $10,000 for permanent disability. The other benefit I would get would be medical treatment for life in regards to the lost thumb.
 
Imagine if I sustained an injury to my low back.
 
Assume that the treating and examining physicians all agreed that I was left with a 25% permanent residual impairment. My award would be 2/3rds of my average weekly wage times 25% of 600 weeks (the maximum number of weeks for classifiable injury). So, the award would be $133.34 times 150 weeks of compensation or $20,000.
 
Any amounts already paid to me – the claimant – during the claim for my lost waged – for example, if I lost a few weeks from work – would be subtracted from the overall award.

Settlements

1. Lump-sum dismissals – everything gets closed.

    This is often referred to as a "section 32" settlement after the section of the statute which allows for this type of settlement. This is the preferred way for employer/carrier to close a case. In this type of settlement, the claimant is paid one lump sum – usually agreed upon between the parties and usually a whole number – for example, $50,000 – to resolve all issues. The claimant loses the right to reopen this claim should his condition worsened. The claimant loses the right to seek additional medical treatment which must be paid for by the employer/carrier. The claimant is responsible for paying his own attorney's fee – usually 15% of any settlement – directly to his attorney.
   
   A section 32 settlement must be approved by a judge of compensation. There are number of forms which must be completed and submitted to the court for settlement of this type to take place. Addiitonally, consideration of Medicare's potential future interest must be made - in many cases, a set-aside allocation should be considered.
    
   These forms are:
    
   1. C–32 settlement form.
   2. C–32.1 settlement form
   3. A–9 form.
   4. An addendum document, explaining that the claimant's right further compensation is waived, that medicals are closed, and laying out any other particular aspects of the proposed settlement.
   5. A further correspondence must be sent to the office of Child support enforcement seeking a statement that the claimant does not know any child support payments in the state of New York. This should be simply sent to the Office of Child Support Enforcement – and does not have to be submitted to the workers compensation board except as a copy.

2. Lump-sum dismissals – medical stays open.

   This is still a "section 32" settlement with the only aspect of the case that is closed is the amount and nature of the claimant's permanent residual disability. In other words, we our paying the claimant a lump sum for the amount of permanent impairment to the body part injuries the accident.  The claimant is also giving up the right to reopen the case – he can never come into court and say's condition has worsened and he needs more compensation for increased impairment. However, the carrier remains "responsible" for additional medical treatment should the claimant's condition worsen and require additional care. In this type of settlement, Medicare's potential future insterest does not have to be considered - medical stays open and so the claimant can come back to the medical carrier for any necessary treatment.
    
   The specific forms which must be filed in this case are the same as the lump-sum dismissal of all claims (above at one).
    
   1. C–32 settlement form.
   2. C–32.1 settlement form
   3. An addendum document, explaining that the claimant's right further compensation is waived, that medicals are closed, and laying out any other particular aspects of the proposed settlement.
   4. A further correspondence must be sent to the office of Child support enforcement seeking a statement that the claimant does not know any child support payments in the state of New York. This should be simply sent to the office of Child support enforcement – and does not have to be submitted to the workers compensation board except as a copy.
    

3. Stipulated settlement

   – classification or scheduled loss of use with medical staying open. In this case, we are stipulating to the fact that the claimant has a residual permanent impairment to a "scheduled" body part or to a body part which is "classified." In this case, we complete form 300.5 S completely as possible – describing the injuries, the percentage of permanent pyramid, and all necessary particular facts to establish the award – which will include the average weekly wage of the claimant. In this type of stipulated settlement, we will be granted credit for payments of temporary total or temporary partial wage continuation benefits which were issued during the pendency of the case – while the claimant recovered.
    
   • Forms:  C-300.5

What's good in the decision for employers:

• Judge Dietrich had to decide what the "usual, customary, and reasonable" fees for the surgeries performed was. Judge Dietrich decided to rely on paid fees as appropriate as opposed to billed fees for services rendered.
• In finding what was the "usual, customary, and reasonable allowance" Judge Dietrich also found it was appropriate to look at all payments made to the medical providers rather those exclusively made by commercial carriers.
• Judge Dietrich also found that contractual carriers or government programs should be considered in determining what is customarily accepted by the provider.
• The Judge also suggested that the more payments that are considered, the better - stating "It is only by reviewing every payment that a determination can be made as to what an acceptable payment is.
• Judge Dietrich was reviewing bills relating to very specialized care - she found that

  "[t]he instant case is somewhat unusual because it deals with burn surgeryIn New Jersey there are very few practitioners. There are none in northern New Jersey to compare with. The fact is, however, that the Burn Surgeons do accept all manners of insurance coverage including self-pay, government programs, contractual payers and commercial carriers. It is possible then to compare what the petitioner deems acceptable from other payers.

  This is important for defense practititioners to keep in mind in cases where the petitioenr has been rendered specialized or emergent treatment.

What's bad:

• Judge Dietrich found that

  "In trying these cases it is helpful to have witnesses familiar with coding and billing processes. Dr. Marano was a necessary witness in this case as there was a question as to the work done in the surgery. In those cases in which the dispute is over payment only and not whether the procedures were completed or the manner in which the procedures were completed I find that it is unnecessary to have the doctor testify. The petitioner must produce a party responsible for the data and an expert who can interpret it if necessary."

  This is bad for employers because it means that the doctor who is seeking additional payments does not have to tactually come to court (and thereby lose time she could be spending treating and billing) but can send "a party responsible for the data and an expert to interpret it if necessary" to prosecute her claims.
  
  Case: Burn Surgeons of St. Barnabas v. Shop Rite, decided August 31, 2011. (Note: this is an agency decision and has no precedential value. Burn Surgeons of St. Barnabas has an abolute right of appeal in this case. I will continue to follow this case closely and report on any appellate developments.)]]>Gregory Lois, Esq.New Jersey2011-08-14T20:52:00-04:00www.greglois.com/files/4a484ae8d2c5802977951c408ea5b8be-211.html#unique-entry-id-211www.greglois.com/files/4a484ae8d2c5802977951c408ea5b8be-211.html#unique-entry-id-211
  Under such circumstances, the Rules of the Division of Workers’ Compensation allow an injured employee to file a "Motion for Temporary and Medical Benefits” (AKA, "Motion for Med & Temp") to compel the employer/respondent to provide specific medical treatment or temporary disability wage compensation which was denied.
  
  The respondent has 21 days to file a responsive pleading (or 30 days, if the Motion for Med & Temp is filed at the same time as the Claim Petition). If the respondent wishes to present an IME report in opposition to the Motion for Med & Temp (which is usually the case), the doctor’s examination must be conducted within 30 days of the receipt of the filed motion and the report issued within 35 days.
  
  Disputes about whether specific treatments are "necessary" often require testimony - essentially a "mini-trial" within the litigation. First the claimant testifies, and then the treating doctor (who is seeking to provide some specific treatment to the claimant) testifies, and then the employer's IME doctor testifies. Litigating a motion for Med & Temp can be more costly then just the litigation expense: if a petitioner prevails in their motion, claimant's counsel is due a fee (up to 20% of all the treatment provided pursuant to the motion). It goes without saying that the potential for an attorneys' fee often drives the filing of such motions.
  
  Most of the time such disputes can be resolved informally between the parties. If not, a filed motion will be conferenced in chambers with the presiding judge. If the parties can reach an agreement as to the treatment course, a consent order can be issued resolving the matter.
  
  Sometimes when an agreement can not be reached, the Judge or either party will recommend that a third doctors opinion be obtained - to act as an effective "tie-breaker."
  
  

  Recent case: Dispute about the "tie-breaker's role."

  In a recent case (decided July 27, 2011) the Appellate Panel looked at a very interesting issue: absent the clear consent of the parties to be bound to the opinion of the "tie-breaker", can a judge of compensation "appoint" a court-selected doctor to decide the medical issue?
  
  In the new case, the judge of compensation selected and appointed a physician to perform a physical examination, review the relevant medical records, and provide an opinion as to whether a specific medical treatment (in this case, surgery) was necessary. In their subsequent appellate briefs one side stated that it was agreed by all counsel in chambers that, in light of the conflicting information regarding causation, the court-appointed physician would serve as the "tie-breaker," and that his opinion would be dispositive of the issue. The other side took a contrary position, contending that the court-appointed evaluation and report would be "non-binding."
  
  In other words, on appeal, the parties disputed that they had consented to the appointment of the "tie breaker" doctor and disagreed over whether they were to be bound by the findings of the selected doctor.
  
  The hearing transcript was silent: there was no mention by any counsel or the court of an off-the-record agreement as to the effect of the "tie-breakers's" evaluation and report.
  
  The appellate panel ruled that the workers' compensation judge correctly exercised her discretion by basing her ruling on the report of her appointed "tie-breaker" in conjunction with other competent evidence in the record.
  
  

  Practical Tips for counsel:

  Resolving medical disputes in a cost-effective manner is always a goal - but in this case the appointment of the "tie-breaker" without a clear statement on the record as to the effect of that appointment - whether or not the parties would be bound by the opinion of the new physician - should not be allowed. If a consent order is entered, the employer's counsel should clearly mark the appointment of the new reviewing physician as "without prejudice" on the consent order itself to avoid ambiguity and preserve all defenses.
  
  Case: Thompson v. Quality Et al., 2011 WL 3107767, Docket No. A-1177-10T1 (NJ App. Div.) decided July 27, 2011.
  ]]>Gregory Lois, Esq.New York2011-08-07T22:31:00-04:00www.greglois.com/files/7c3be8975a4354443c34586f004d5946-210.html#unique-entry-id-210www.greglois.com/files/7c3be8975a4354443c34586f004d5946-210.html#unique-entry-id-210a state investigation found that in nearly 1/3rd of all the cases Veeder worked on there were "serious problems" with the evidence provided by Veeder.
  
  A very public scandal erupted following an investigation ("Troopergate" and "Dirty Tricks Scandal") when it was learned that Veeder

  "routinely failed to conduct a required test when examining fiber evidence, then falsely indicated in case records that he had performed the test,"

  according to the audit of his practices. It appears that Veeder had no knowledge of the tests he was supposed to be conducting, and could not even properly operate a microscope.
  
  A lot of people may have gone to jail because of Veeder's fake evidence.
  
  Veeder first retired and then 15 days later committed suicide by hanging himself in his garage.
  
  His widow claimed that his death was caused by work-related stress and filed for workers' compensation benefits.
  
  

  Dependency Benefits in New York

  Under the New York Workers' Compensation Law, if a worker dies from a compensable injury, the surviving spouse would be entitled to weekly cash benefits. The amount is equal to two-thirds of the deceased worker's average weekly wage for the year before the accident. The weekly compensation may not exceed the weekly maximum, despite the number of dependents.
  
  

  Suicide

  Intentional self-injury is not compensable under the New York Workers' Compensation law. Self-injury or stress related to a negative personnel action (discipline, termination, etc.) is not compensable. However, a line of cases has developed since 1991 finding some suicides compensable. For example, a suicide may be found compensable where:
  • There was a work-related injury which caused insanity, derangement, or mental deterioration;
  • A depressive condition causally related to the employment (presume causal connection between work and mental illness);
  • Work-related stress contributed to a depressive illness (which may have been pre-existent in nature and in which suicidal tendencies were a feature).
  See Miller v. Int’l Bro. Of Elec. Workers Local 631, 654 N.Y.S.2d 460 (3d Dep’t 1997).
  
  The widow's claim was denied, on the basis that the stress was the result of personnel actions, which are excluded from workers' compensation eligibility.
  
  The case was appealed and the decision to deny benefits was reversed and the case sent back to the Workers' Compensation Board for reconsideration.
  
  

  Decision on appeal

  The reversal was based upon the fact that at the time of Veeder's suicide, no personnel actions had been implemented. The Appellate court stated that "the unrefuted psychiatric evidence contained in the record, as well as the suicide letters, make clear that decedent's suicide was predominantly the product of the depression and stress he experienced from the employer's inquiry into the inconsistencies in his fiber analysis tests." The state was investigating the situation; they had uncovered problems in Veeder's work, but they were on a narrowly defined "fact finding" mission. No action had been taken against Veeder: he was not suspended or demoted or disciplined in any manner. Thus the stress was purely the result of the investigation, not of any personnel action.
  
  In other words, had the employer simply announced to Veeder that the investigation was the initial phase of a disciplinary process, he would probably not have been eligible for workers comp. The only facts that count: he was under enormous work-related stress (of his own making) and he killed himself as a direct result of the work-related situation.
  
  Based on the decision in the appeal, it appears that Veeder's widow will be eligible for burial and indemnity benefits.
  
  Case: Veeder v. New York State Police, 511128 (N.Y. App. Div decided July 14, 2011).]]>Gregory Lois, Esq.Longshore2011-08-01T19:49:22-04:00www.greglois.com/files/cc4357139d35ad269ef87732f1e35541-209.html#unique-entry-id-209www.greglois.com/files/cc4357139d35ad269ef87732f1e35541-209.html#unique-entry-id-209 in a recent case (decided June 20, 2011) the claimant worked for a long time in foreign combat environments. He then took a "safer" job working on the United States Army Kwajalein Atoll in the South Pacific. In 2008 he sustained a neck injury and was admittedly entitled to medical and lost time (indemnity) benefits. The administrative law judge (“ALJ”) had to determine the average weekly wage. The ALJ determined that Claimant’s rate of pay at the time of his injury on the Atoll, a non-hostile environment, would form the basis of his wage calculation under 33 U.S.C. § 910. The claimant appealed, arguing he had earned more when working in more dangerous environments previously.
  
  The Benefits Review Board (“BRB”) upheld the ALJ’s average weekly wage calculation, finding that because the Claimant’s pre-Atoll jobs were performed under different conditions, they would not form the basis for calculating his current wages.
  
  Interestingly, this case is the exact opposite of the typical war zone cases, where a claimant is working in a high-danger job, often at a premium for any hazardous duty, and often for a short time before the disabling accident occurs - in which case the claimant gets the benefit of the higher wages (even if only briefly earned) in establishing his wage rate for the purposes of compensation.
  
  

  Defining Wages.

  The LHWCA defines the term "wages" as the money rate at which the service rendered by an employee is compensated by an employer under the contract of hiring in force at the time of the injury, including the reasonable value of any advantage which is received from the employer and included for purposes of any withholding of tax under subtitle c of the Internal Revenue Code of 1954 (relating to employment taxes). The term "wages" does not include fringe benefits, including (but not limited to) employer payments for or contributions to a retirement, pension, health and welfare, life insurance, training, social security or other employee or dependent benefit plan for the employee's or dependent's benefit, or any other employee's dependent entitlement. 33 U.S.C. § 902(13). This definition does include housing and meals in the calculation of a claimant's wages provided that they were not fringe benefits except in the Ninth Circuit, which holds that the the IRS criteria for deciding whether non-monetary compensation counts as wages. (For more on the definition of "wages" see Chapter 8 of my book, Longshore and Harbor Workers' Compensation Law, 2011 edition.)
  
  

  Calculating Wages.

  In the case where the claimant worked substantially the same employment as the employment he was engaged in at the time of the injury, whether for the insured or another employer, for most of the year the Act provides:
  

  . . . his average annual earnings shall consist of three hundred times the average daily wage or salary for a six-day worker and two hundred and sixty times the average daily wage or salary for a five-day worker, which he shall have earned in such employment during the days when so employed. 33 U.S.C. § 910(a).

  Making this determination requires knowledge of whether the claimant was six- or five-day worker. Next, a wage statement should be obtained, with daily and weekly wages if available.
  If the claimant did not work in the employment or a similar employment for “substantially the whole part of the year” then his wages will be based on a co-employee of “the same class working the whole of such immediately preceding year in such employment in the same or neighboring place” using the same 260- or 300-day multiples. 33 U.S.C. § 910 (b).
  
  If neither of these metrics fit the fact situation (for example, a new hire working on a new project without a similar project in a neighboring locale) then the wages will be based on the previous earning of the claimant, the reasonable value of the services provided if the claimant was engaged in self-employment, and the wage experience of similar workers.
  
  

  Wages in Traumatics versus Occupationals

  The LHWCA calculates the claimant's average weekly wage differently based on the type of injury sustained.
  

  Traumatic Cases

  In a trauma case the employee's average weekly wage "at the time of the injury" is used to compute the claimant's compensation. LeBlanc v. Cooper/T. Smith Stevedoring, Inc., 130 F.3d 157 (5th Cir. 1997). This is relatively easy to do. In a traumatic case where the injury is to the low back, neck, head, shoulder, or psyche, the AWW is very important as the unscheduled disability award will be based on the claimant’s pre- and post-injury earnings. In all cases, claimants will receive more benefits for higher wages, subject to the statutory maximums in place at the time of loss.
  

  Occupationals

  In an occupational case the time of injury, is when the claimant became aware of, "or in the exercise of reasonable diligence or by reason of medical advice should have been aware, of the relationship between the employment, the disease, and the death or disability.” Therefore, the wage earned by the claimant at that time (time of discovery) is used. This can be higher than during the period of actual exposure or employment.
  
  

  Rates: a key the difference between Longshore and the Defense Base Act.

  All Longshore compensation rates are based on a calculation of the claimant’s weekly wage. In every case, the actual benefit amount requires reference to the National Average Weekly Wage as a "maximum" on the possible benefits. For accident occurring now (Aug 2011) the maximum is $1,256.84 and the minimum is $314.21. Although the benefits available under the DBA are identical to the LHWCA, there is one key distinction: minimum compensation rates. While the minimum compensation rate under the LHWCA is 50% of NAWW, there is no minimum weekly compensation rate under the DBA.
  
  

  New Case: Calculating wages under the Defense Base Act.

  In a recent case (decided June 20, 2011) the claimant worked for a long time in foreign combat environments. He then took a "safer" job working on the United States Army Kwajalein Atoll in the South Pacific. In 2008 he sustained a neck injury and was admittedly entitled to medical and lost time (indemnity) benefits. The administrative law judge (“ALJ”) had to determine the average weekly wage. The ALJ determined that Claimant’s rate of pay at the time of his injury on the Atoll, a non-hostile environment, would form the basis of his wage calculation under 33 U.S.C. § 910. The claimant appealed, arguing he had earned more when working in more dangerous environments previously.
  
  The Benefits Review Board (“BRB”) upheld the ALJ’s average weekly wage calculation, finding that because the Claimant’s pre-Atoll jobs were performed under different conditions, they would not form the basis for calculating his current wages.
  
  Interestingly, this case is the exact opposite of the typical war zone cases, where a claimant is working in a high-danger job, often at a premium for any hazardous duty, and often for a short time before the disabling accident occurs - in which case the claimant gets the benefit of the higher wages (even if only briefly earned) in establishing his wage rate for the purposes of compensation.
  
  Case: Luttrell v. Alutiiq Global Solutions, BRB No. 10-0555 (2011).]]>Gregory Lois, Esq.New York2011-07-06T08:12:18-04:00www.greglois.com/files/c785735c692237c72cc8f63b85c86853-206.html#unique-entry-id-206www.greglois.com/files/c785735c692237c72cc8f63b85c86853-206.html#unique-entry-id-206Twice this year the Appellate Division has affirmed the rule that a claimant who is receiving an award for permanent partial disability has an ongoing obligation to show “attachment to the workforce” - that he is actively seeking a job within his restrictions - in order to continue to be eligible for weekly benefits. In both of these cases the Appellate court has instructed that where a claimant fails to seek employment, fails to participate in vocational rehabilitation, and fails to attend to a referral to educational services, the Board’s determination that the separation from the workforce was “voluntary” and therefore on further benefits must be paid by the carrier/employer.
   
   On June 9th, the Appellate Panel ruled that a subsequent medical condition - which left the previously “partially” disabled claimant unable to work in his former industry but still able to do something - extinguished the claimant’s right to benefits.  In that admittedly compensable case, the claimant was collecting a partial permanent disability award for orthopedic injuries to his neck, shoulder, and back (the award was entered pursuant to stipulation). However, the claimant failed to demonstrate search for work within his restrictions.  The claimant also failed to attend to vocational rehabilitation or offered educational services.
   
  The employer argued that benefits should be discontinued as the claimant failed to demonstrate “attachment tot he workforce" in the form of a reasonable work search within his restrictions.  For his part, the claimant argued that he had developed a subsequent health condition which made work as a construction laborer impossible.  The Law Judge found that this factor mitigated the claimant’s obligation to show he was seeking work within his restrictions.
   
  On June 9, 2011 the Appellate court overruled the workers’ compensation judge  - ruling that even a subsequent unrelated condition does not abrogate the claimant’s duty to seek work within his restrictions.
   
  Keep this decision by your side!  
  
  Even in a case where the employer has stipulated to the claimant;s ongoing permanent partial disability, benefits can be withdrawn if the claimant fails to seek accommodated work.  
  
  Remember: the burden is on the claimant to show a evidence of a  job search within his restrictions.
  
  Case:  Bobbitt v. Peter Charbonneau Constr., 2011 N.Y. Slip Op. 04790 (App. Div. Decided June 9, 2011) andMatter of Hester v Homemakers Upstate Group, 2011 NY Slip Op 02091 [82 AD3d 1461] (App. Div. Decided March 24, 2011).
  ]]>Gregory Lois, Esq.Longshore2011-07-05T08:10:39-04:00www.greglois.com/files/484945b09a42eef06f73a33f6c541f7f-205.html#unique-entry-id-205www.greglois.com/files/484945b09a42eef06f73a33f6c541f7f-205.html#unique-entry-id-205A bill to change the Longshore and Harbor Workers’ Compensation Act (LHWCA) was recently referred to the Senate Committee on Health, Education, Labor and Pensions. (Track it!:  S. 669)  This bill is in the first step in the legislative process. Introduced bills and resolutions first go to committees that deliberate, investigate, and revise them before they go to general debate.
   
  What is on the table?
  There is a lot to like in the proposed bill for those of us defending Longshore Act claims:
   
  LIKE IT:  A proposed amendment to the act (adding a new section, “901A”) stating “in a claim brought under this Act, the facts are not to be given a broad liberal construction in favor of the employee or of the employer, and the laws pertaining to a claim brought under this Act are to be construed in accordance with the basic principles of statutory construction and not liberally in favor of either the employee or employer.”  In other words: the “liberality and generosity” usually afforded to the claimant by the “remedial” legislation is not to be taken by the Courts as an excuse to make every inference in favor of the claimant.
   
  LOVE IT:  Extensive revisions to Section 7 (33 U.S.C. 907 et seq.) allowing a carrier to “designate 1 or more participating networks or 1 or more health care panels, or both, for purposes of providing medical services to employees under this Act. An injured employee served by a carrier that has designated an approved participating network under subparagraph (C) or a health care panel under subparagraph (D) shall not be entitled to recover any amount expended by the employee for medical services and supplies unless the employee has secured such medical services and supplies through a physician or other health care provider that is a participant in such network or panel, respectively.”  In other words, medical cost control with the employer/carrier picking the doctors and medical facilities.  Hooray!
   
  GOOD:  The revised law would provide a real defense to intoxication by removing the word  “solely” from the sentence, “No compensation shall be payable if the injury was occasioned solely by the intoxication of the employee or by the willful intention of the employee to injure or kill himself or another”. Section 903(c).  Proving a legally drunk claimant’s injury is “solely” due to his intoxication, in light of other possible factors (fatigue, etc.) makes the current defense illusory.  The proposed changes also add a later section ( 920(a)(3)) Section 920(a)(3) which allows that the the nonintoxication presumption of Section 920(a)(1)(c) can be rebutted, by a refusal of a drug or alcohol test by the employee, by the employee testing positive for illegal drugs, or by  the employee having a blood alcohol concentration level above the permitted driving limit.
   
  OK:  The employer no longer has to show “irreparable harm” in order to obtain a stay of an order under appeal.  Section 921 would read “Disputed amounts required by an award shall be stayed.”
   
  FINALLY:  A proposed change to the way penalties are assessed: The 20% penalty provision of Section 914(f) is changed by striking “within ten days after it becomes due” and inserting instead “within 10 business days after receipt by the employer or carrier of a priority mailing containing the order.”  
   
  So far, so good.  But the proposed bill is not all roses. 
   
  HATE IT: Ending the Second Injury relief of 908(f) except for modifications of existing 8(f) cases.
   
  WHAT THE . . .?: The proposed law would raise the compensation rate to 75% of “spendable earnings” rather than 66.% of average weekly wage.  This introduces a new concept:  “spendable earnings.”  Currently, only six states base workers’ compensation benefits on “spendable earnings” (Rhode Island, Alaska, Connecticut, Iowa, Maine, and Michigan).    The proposed changes calculate “spendable earnings” as follows: first, divide the actual earnings of the employee for the provisos 52 weeks by 52, then subtract “the Federal, State, and local taxes that would have been withheld based on standard deductions and on the domicile of the employee at the time of the injury, and reduced by subtracting the tax that would have been withheld under section 3101 of the Internal Revenue Code of 1986.”  The proposed changes require that a new table be drafted to assist in this calculation.  (Proposed change to Section 10).  Clearly unnecessary and burdensome.
   
  What’s next?  We will continue to monitor the progress of this proposed bill and let you know if it makes it out of committee! 
  
  Full text of proposed changes: Link.
  ]]>Gregory Lois, Esq.New York2011-07-01T08:14:10-04:00www.greglois.com/files/91bb6e83d097601a3c442ed0aba0a475-208.html#unique-entry-id-208www.greglois.com/files/91bb6e83d097601a3c442ed0aba0a475-208.html#unique-entry-id-208Gregory Lois, Esq.New Jersey2011-06-30T08:10:10-04:00www.greglois.com/files/f7149f2739772536e610d29628eaf758-204.html#unique-entry-id-204www.greglois.com/files/f7149f2739772536e610d29628eaf758-204.html#unique-entry-id-204Cathleen Renner died of a pulmonary embolism on September 25, 2007.  Renner’s dependents filed a workers' compensation claim alleging that she literally “worked herself to death” by sitting in a chair at home and working on an assigned project from “the evening” of September 24, 2007 until sometime in the morning of September 25, 2007.  According to the claimant’s paid expert, Renner died of blood clots which formed by “sitting for an extended period of time.”  The case was actually reviewed by the Appellate Division twice: the first decision of the workers’ compensation judge - finding that the decedent had sustained a comepnsable injury and awarding benefits to the survivors based on a  “occupational injuries” theory of causation - was reversed by the appeals panel because the judge applied the wrong standard.  The Appellate court ruled that the claimants had to meet a higher burden of proof imposed by New Jersey’s Section 7.2, which applies in heart attack and cardiovascular cases (N.J.S.A. 34:15-7.2).
   
  On remand, the law judge decided the case again -  this time finding that the claimant’s inactivity was a material cause of her pulmonary embolism and ascribing that injury and ultimately the death to the employment.
   
  As the decedent was 47 years old and likely subject to the maximum rate in effect for statutory year 2007.  Her husband will be paid $1,317,049 should he live to his life expectancy. 
   
  Under the New Jersey Workers’ Compensation Act there is a higher burden for a claimant to meet in cases involving cardiovascular injury (such as pulmonary embolism).  A claimant must show that that “the injury or death was produced by the work effort or strain involving a substantial condition, event or happening in excess of the wear and tear of the claimant's daily living and in reasonable medical probability caused in a material degree the cardiovascular or cerebral vascular injury or death resulting therefrom.”  See N.J.S.A. 34:15-7.2.  In plain English, the claimant has the burden to show, by a preponderance of the evidence, that the work effort which caused the condition was somehow more strenuous than the activities of daily living.  This is because the drafters of the statute envisioned that the “cardiovascular” events brought before the Division of Worker’s Compensation would be heart attacks and strokes - which can be brought on by stress and strain.
   
  For some unponderable reason, the defense counsel in the Renner case conceded that the issue in that case was “whether Cathleen's lack of movement at work was more severe than her lack of movement in her daily living” -essentially, applying the “reverse” of the excess wear and tear factor required by the Act.  Why on earth did defense counsel agree to this? Under the Act, the burden was on the claimant to show that the work activity produced the condition.  Why did defense agree to a weaker position - having to prove that the claimant’s activities of daily living were more strenuous than her work activities?  Considering the fact that the subject of that inquiry - Cathleen Renner - was dead - how exactly was defense counsel intending on proving her activities of daily living?  Through the testimony of her dependents?  
   
  Well, Renner’s  dependents certainly testified in the case, but given their own financial interest in the outcome, could not reasonably be expected to help the defense by volunteering information about Renner’s personal life.  In fact, Renner’s husband testified that in her personal life, his wife was “never sitting on the  couch with me.  She was always up and out, you know, running with the kids and taking them wherever they needed to be. . .  always running.  Always running.” 
   
  The case is also amazing because there is a lack of verifiable (objective) proofs that the decedent was actually working for any of the time period she was allegedly immobile.
   
  According to the facts as accepted by the workers’ compensation court, she “began working at home on the evening of September 24, 2007.”  No specific time is noted anywhere.  There is no statement as to what she was actually doing - Facebook?  Twitter? Farmville?  Work?   Instead, there is a reference to an email sent to a coworker at 12:26AM.  No discussion is provided as to what that email was about.
   
  The next piece of information comes from the decedent’s son, who stated he woke at 7AM on September 25th, 2007 and saw his mother at her desk in her home office.  Her husband was not home to observe any of the alleged “work.”  The son did not testify that she worked through the night - only that she was at her desk in the morning.  There appears to have been no evidence of what actual work she was doing - no computer log files, documents, or network login information.  Even the decedent’s supervisor testified that she had plenty of work to do but did not confirm she was working overnight.  
   
  The decedent next verifiable activity was to email a coworker at 9AM to state she was not feeling well.   Her final act was to email a document to someone at AT&T at 10:30AM.  Shortly after, she called for an ambulance and was taken to the hospital.  She succumbed to pulmonary embolism.
   
  According to the National Heart Lung and Blood Institute(NHLBI) risk factors for pulmonary embolism include: prolonged immobility, obesity, and medications that affect blood clotting times, especially birth control pills.
   
  Cathleen Renner was classified as “morbidly obese” at 300 pounds and on birth control medications at the time of death.  Both of these conditions are considered leading risk factors for developing a pulmonary embolism.
   
  The Appellate Division affirmed  the opinion of the Judge of Compensation that Renner’s death was related to “prolonged inactivity” due to work and therefore compensable.  
   
  The lack of evidence regarding work described in the opinion is disheartening.  The defense should have challenged the lack of a verifiable timeline and lack of documented proofs to show Renner was even working the alleged “overnight” marathon work session claimed.    
   
  The fact that no one seems to have asked the simple question: what was it about the work that prevented the decedent from getting up every hour or so, and walking around for thirty seconds?  She certainly didn’t have a supervisor hovering over her shoulder, forcing her to sit perfectly still for hours on end.
   
  This case is emblematic of the lengths courts will go to find questionable claims compensable. 
   
  The defense in this case agreed to a “made up” legal standard to the case that shifted the burden of proof from the claimant to the employer.  This hurt the employer.  The Workers’ Compensation Act requires that in vascular cases the claimant must show a heightened exertion - something beyond the activity of daily living.  For some reason the employer agreed that if the claimant could show less exertion than daily living, the claimant should prevail.  That is ridiculous.
   
  Next, the defense should have presented facts showing exactly what the decedent was doing for the unknown time period.  Server logs, network logins, and the decedent’s own computer should have been submitted into evidence.  The record as discussed in the Appellate decision is scant.  
   
  Finally, the fact that the claimant was morbidly obese and on medication that affected the clotting characteristics of her blood - known risk factors for embolisms -  should have been used more effectively.  Instead, causation in this case turned on whether Cathleen's “lack of movement at work was more severe than her lack of movement in her daily living” which is an absurd standard not found in the Workers' Compensation Act.
   
  The case is not appealable as of right to the New Jersey Supreme Court as there was no dissenting opinion.  The employer may seek to appeal, and if they do we will update you as to the outcome.
  
  Case: James P. Renner v AT&T,  A-2393-10T (App. Div. Decided June 27, 2011).  Link to full decision.]]>Gregory Lois, Esq.New York2011-06-20T08:13:13-04:00www.greglois.com/files/132a7f1ba6d999778203d0f0636c9495-207.html#unique-entry-id-207www.greglois.com/files/132a7f1ba6d999778203d0f0636c9495-207.html#unique-entry-id-207Gregory Lois, Esq.Workers Compensation2011-06-09T22:05:19-04:00www.greglois.com/files/e01cdb3208efb6e55c51b4f9db2e2d88-203.html#unique-entry-id-203www.greglois.com/files/e01cdb3208efb6e55c51b4f9db2e2d88-203.html#unique-entry-id-203
  

  New York: Special surveillance video rules.

  Under the New York Workers' Compensation Law, making false statements to obtain workers' compensation benefits is illegal and will result in the claim being thrown out (WCL § 114(a)) and the claimant referred for prosecution. The fraud defense will be based on two types of statements made by the claimant: (1) statements made inside a court room and (2) statements made to doctors in examining rooms.
  
  In a recent case, a New York Appellate Court affirmed a disqualification from benefits where video surveillance of the claimant showed him going to and leaving a medical examiner's office with a leg brace and a cane AND A WALKER.  (Wait a second - - -a cane AND a walker?  How could he manage that with only two hands?!?)  While that portion of video showed a severely disabled victim, in later scenes the claimant was able to move his legs freely.  The video revealed that he was not not using a brace,  cane or walker, and showed that he actually had no impairment in his daily activities. 
  
  The Board ruled that the claimant had violated WCL § 114(a) and was disqualified from workers' compensation benefits.  The appellate panel, on review, affirmed that disqualification.  (Case: Retz v. Surpass Chem. Co.,).
  
  Practical note: New York has specific submission requirements for video - it must be in either ".avi" or ".wmv" and submitted to the WCB on a DVD-ROM.  In my experience, the submission will be noted as a "NS-OBJECT" in e-case ("Non-scannable object").  The video must be viewable in "Windows Media Player" or the WCB will reject the video.
  
  
  

  Video in New Jersey: Getting the video into evidence.

  Video surveillance is often relied upon by the defense in New Jersey  to either challenge credibility or to demonstrate that a claimant is not as disabled as he appears from his own testimony or his doctor’s examination.  Video does not have to be disclosed during the normal discovery process, even though adversary counsel may demand copies of videotape.  Under the current rules, video does not have to be revealed unless the respondent intends on using the video and only after the petitioner testifies.
  
  One exception to this is where the respondent has shown the video to an examining or treating physician.  If the video has been shown to an attending or examining doctor prior to the petitioner's testimony, then it is discoverable by the petitioner prior to his testimony.
  
  Practical Tip:  Ever since the decision of Gross v. Neptune the introduction of videotape evidence in contested workers’ compensation trials in New Jersey is limited by the disclosures on the Pre-Trial Memorandum. In Gross, the respondent did not disclose surveillance video on the Pre-Trial memorandum.  During the trial (after the claimant testified), the respondent obtained videotape surveillance of the petitioner.  The video evidence was not admissible due to the failure of the respondent to provide proper notice that the video was to be used.
  
  Best practices:  Whether or not we have surveillance, we always put (on every "green sheet" Pre-Trial memorandum) that the "respondent reserves the right to obtain video surveillance of the claimant after the trial has started as per Gross v. Neptune.
  
  

  Video in Longshore/DBA claims.

  The Federal Rules of Civil Procedure require that surveillance evidence must be disclosed if it is to be used at trial. FRCP 26(b)(1).   However, video used as "impeachment evidence" - to challenge the credibility of the claimant - is not subject to discovery.  So, if you have great video on the claimant, but you only intend to use the video during cross-examination (and not send it to your evaluating doctor, for example), is it discoverable?
  
  The Federal Rules (FRCP 26(a)(3)) clearly excludes from pretrial discovery material which will be used "solely for impeachment purposes;" the obvious rationale for excluding impeachment material from discovery is that their disclosure would substantially impair their impeachment value.  In Fee v. Calcasieu Paper Co., videos of a claimant were obtained by elaborate detective work which included inducing the disabled man to dig, to conceal cameras in fox holes and to surveil on his activities.  That video was deemed admissible by the judge. However, in a recent  case arising under the Jones Act, the Fifth Circuit has held that a surveillance videotape of an injured worker's daily activities constituted substantive evidence subject to disclosure pursuant to a discovery request.  The trial court's admission of the tape solely for impeachment purposes, when the evidence was in part substantive, constituted reversible error. Chiasson v. Zapata Gulf Marine Corp.
  
  The decision whether to admit surveillance films and the weight to be accorded such evidence are matters within the discretion of the judge. 
  
  
  ]]>Gregory Lois, Esq.New York2011-05-03T21:18:04-04:00www.greglois.com/files/mtg-out-of-state.html#unique-entry-id-200www.greglois.com/files/mtg-out-of-state.html#unique-entry-id-200 if the claimant resides out of state they are not applying Medical Treatment Guidelines ("MTG") to the ongoing treatment.  This means that employers and their insurers are not getting the benefit of the MTG in these cases. (Note: If you are unfamiliar with the Medical Treatment Guidelines that went into effect on December 1, 2010, I recommend you read my earlier posts on these topics:
  • The Medical Treatment Guidelines - this is a general overview article;
  • Optional Prior Approval; and
  • The Variance process.
  • Observations on the Variance process.)
  There is no case law examining this issue in light of the controlling statutory authority and the information published by the WCB is simply nonsensical. Why would an out-of-state claimant be entitled to more or less medical treatment than the in-state claimant?
  
  

  What the law states.

  The strongest authority is the Workers' Compensation Law ("WCL") statute itself. Section 13 of the WCL states:
  (b) In the case of persons, injured outside of this state, but entitled to compensation or benefits under this chapter, the provisions as to selection of authorized physicians shall be inapplicable. . . All fees and other charges for such treatment and services, whether furnished by the employer or otherwise, shall be subject to regulation by the board as provided in section twenty-four of this chapter, and shall be limited to such charges as prevail in the same community for similar treatment of injured persons of a like standard of living." None of the cases that cite to this provision indicate that an out-of-state claimant is entitled to less or more medical care than is required under WCL § 13-a.
  
  That first part about the "selection of authorized physcians" just means that when the claimant is treating out-of-state, the treating physicians do not have to be "coded" or otherwise authorized by the WCB to treat the claimant. Nothing in the statute allows for an out-of-state claimant to get more or less treatment then a worker injured in New York.
  
  

  What the WCB says.

  This is where it gets confusing: I found this on the WCB website in a 'Frequently Asked Questions' response under the heading "Out of State" (link):
  "Question: How do the Medical Treatment Guidelines apply if an injured worker lives or receives treatment outside of New York State?
  Answer: If the injured worker either lives or is treated in New York State, the Medical Treatment Guidelines apply. If the injured worker both lives and is treated outside New York State, the Medical Treatment Guidelines do not apply."
  
  There is also this:
  "Question: How can a party compel appearance at a deposition of an out of state provider, when a variance is denied by a health care provider?
  Answer: First, the variance can only be denied by a carrier. It is submitted by the health care provider. Second, If the out of state provider is treating a claimant that both lives and is treated outside New York State, the Medical Treatment Guidelines do not apply. If the Medical Treatment Guidelines do not apply, then there is no need to request a variance and there will be no need to depose such provider. However, if the out of state provider is treating a claimant who lives in New York State, the Medical Treatment Guidelines apply. In that case the methods used to depose out of state providers for all other issues should be used. A subpoena is not necessary if the provider agrees to a date and time to be deposed.
   
  Hmm.  This seems to directly state that an out-of-state claimant is not bound by the MTG.  Remember, answers to "Frequently asked Questions" on the Board's website is not law or even persuasive authority.
   
  

  The Regulations imply that the MTG applies to out-of-state claimants.

  After reviewing the regulations and the MTG, I found only one Regulation that references a claimant who resides out of state in regards to treatment (in this case, IMEs). Here are some references in the Regulations that seem to imply that the Guidelines DO apply to claimants who reside out of state. For example, 12 N.Y.C.R.R. 325-1.4(a)5 states as follows:
  
  In response to requests for authorization for treatment related to an established body part or illness, the self-insured employer or insurance carrier may have the [patient] claimant examined within four business days if the [patient] claimant is hospitalized or [30] thirty days if patient is not hospitalized, by an appropriate [medical board-certified] specialist who is [also] authorized [in such specialty,] by the [chair,] Chair to [treat] conduct independent medical examinations of workers' compensation claimants. If such specialist is not available or where the claimant resides outside of state, consultation may be rendered by [an authorized physician who is acceptable to both the self-insured employer or insurance carrier and the physician requesting authorization, or in the event the parties cannot agree, a physician may be selected by the chair] a qualified provider who may conduct the independent medical examination as provided in Workers' Compensation Law Section 137 (3) (a) and section 300.2 (b) (9) and (d) (7) of this Chapter.
  
  This regulation clearly assumes that the Chair has the power to regulate out of state care, and that a patient who resides out of state (and presumably is getting treatment out of state) can still request authorization for treatment to established body parts.
   
  The Regulations and the individual Guidelines for each body part certainly do not state that claimants who live out of State are treated any differently than in-state residents.
  
  Of course, if out-of-state claimants with established cases were not subject to the MTG they could continue to direct and control their own medical care as they did in the pre-MTG era. Certainly, this creates a situation where the out-of-state claimant would be able to obtain more medical treatment than a similary-situated in-state claimant, which defies common sense.
  
  Have any questions about this article? Contact Greg Lois.]]>Gregory Lois, Esq.New York2011-05-02T21:52:54-04:00www.greglois.com/files/rejecting-variances.html#unique-entry-id-201www.greglois.com/files/rejecting-variances.html#unique-entry-id-201What makes an MG-2 form complete?The MG-2 variance request form is a multi-page document with plenty of small type. Certain information is essential to the Board's internal procedures and if that information is missing or incomplete, the Board cannot process the form. In order for the Board to take action on an MG-2 form, the Board requires that the following fields be completed (required items are denoted by the "checklist" symbol "☑".
  
  Check the MG-2 - if any the following sections are incomplete or missing - issue a denial and alert the Board as to your reasons!
  
  

  Required in Section A:

  ☑ Patient's name, and
  ☑ Insurance Carrier's Name & Address.
  Please note that the Insurance Carrier's or TPA's name and address must match the information the Board has on file.
  
  

  Required in Section B:

  ☑ Individual Provider's WCB Authorization Number for all providers authorized by the New York State Workers' Compensation Board
  
  

  Required in Section C:

  ☑ Date Variance Request Submitted and Method of Transmission,
  ☑ Guideline Reference for the body part followed by the 2 to 4 character corresponding reference in the Medical Treatment Guidelines or followed by the four letters N-O-N-E if there is no listed procedure,
  ☑ Approval Requested For requires a written description of the treatment requested,
  ☑ Statement of Medical Necessity requires a description directly on the form. If there is a supporting medical report in the Board's case file, the requesting physician should enter the date of service or if there is no supporting medical report in the case file, attach a medical report and enter "See attached medical report" on the form;
  ☑ A check box selected for how the carrier was contacted; and
  ☑ the Provider's signature or stamp. Please note that initials next to the signature or stamp are not acceptable.
  
  Also remember that physical therapists are not "medical providers" under the the MTG and cannot issue an MG-2 to request authorization for addiitonal physical therapy visits beyond the Guidelines - only a doctor can issue the MG-2 to request addiitonal PT. Issue a summary denial to any variance request issued by a physical therapist.]]>Gregory Lois, Esq.Workers Compensation2011-05-01T20:56:01-04:00www.greglois.com/files/facebook-frauds.html#unique-entry-id-199www.greglois.com/files/facebook-frauds.html#unique-entry-id-199but was still fighting in the "squared circle" by night as a professional wrestler?
  
  True story, it really happened.
  
  We busted him with videos he posted himself to MySpace showing him engaged in title fights while out of work and collecting temporary total disability. His attorney argued that "wrestling is fake." Needless to say, that case got dismissed at trial.
  
  

  Is using Facebook or MySpace to check claimant activity OK?

  Claimants have no "reasonable expectation" of privacy for information posted to a social networking site like Facebook or MySpace and anything they publicly post there is fair game. A recent 75-page law review article concludes that "just as a workers‘ compensation attorney may use informal discovery to observe an employee in a public place, such as a park or a restaurant, so too is an attorney able to observe and search information publicly available online." Using Facebook or MySpace or any other social network to "check in' on claimants by viewing their publicly-posted photos, videos, or "wall posts" is A-OK, and any useful information you get can be presented in a workers' compensation court (or a fraud proceeding).
  
  

  But what about "private" profiles?

  Facebook accounts can have different settings regarding sharing. If a Facebook account has "low" security settings, the general public can access the individual‘s profile by searching the internet or by searching for the person‘s name on the Facebook website. Attorneys and others can discover the individual‘s list of friends, shared postings, photographs, and videos. If the claimant has set "high" security settings, attorneys may still be able to discover that the individual has a Facebook account, but will not be able to view the individual‘s profile or information. If the claimant has a "private" account, posted information (like videos, photos of the claimant, etc) that are not publicly available can be obtained through the formal discovery process.
  
  

  How about subpoenas to site operators?

  Subpoenas to social networking site operators have been allowed by the courts when the discovery sought is relevant to the lawsuit. Obtaining social networking information from the site operator, however, would likely be a very lengthy and costly process - probably not worth the cost and time. The fact that subpoenas can be served serves as a "check" on the employee‘s ability to destroy or hide social networking information in a workers‘ compensation case.
  
  

  What if the claimant just deletes their profile when we make the request for information?

  Deleting doesn't work - because the social networking site operators keep the information. The Facebook "terms of use" document states:
  "If you want to stop using your account you may deactivate it or delete it. When you deactivate an account, no user will be able to see it, but it will not be deleted. We save your profile information (connections, photos, etc.) in case you later decide to reactivate your account."
  In other words - the information isn't going anywhere even after they delete their "profile"!
  
  

  How about "friending" the claimant to get access to their private posts?

  This is where it gets interesting.
  A lawyer printing out images that a claimant has posted themselves and made "public" on a social network is entirely permissible and the resulting images are admissible, just as a video of the claimant made in public would be.
  A defense lawyer CANNOT friend a claimant - that would violate the ethical rule against communication with a represented party, unless the claimant (through her attorney) permits the activity (unlikely).
  However, if the employer/insurer's INVESTIGATOR "friends" the claimant and obtains useful posts, and then provides these posts to the employer's attorney, no foul (but only if the investigator was not employed, retained, or associated with the defense attorney).
  
  

  Do New Jersey workers' compensation courts permit "social networking" discovery?

  New Jersey is on the leading edge of this issue. Recently a federal magistrate judge in New Jersey found writings shared on social networking sites to be discoverable. In Beye v. Horizon Blue Cross Blue Shield an insurer sought production of all e-mails, journals, diaries, and communications and the judge ordered the plaintiffs to produce all entries on web pages, such as Facebook and MySpace, which the plaintiffs had shared with others. There is precedent for workers‘ compensation courts to permit discovery of all entries on social networking sites that relate to an employee‘s physical abilities.
  
  

  Best Practices for WC in NJ?

  Workers‘ compensation defense attorneys should ask in their interrogatories, or other form of discovery demand pursuant to their state‘s rules governing discovery, for the names of any social networking sites used by the employee and request copies of all relevant photographs, videos, postings, communications, and discussions from social networking sites relating to the employee‘s physical or employment abilities.
  
  However, in NJ, there are no depositions and interrogatories are allowed in certain cases only (occupationals). Therefore, if you suspect your New Jersey claimant may be leading a "double life," and in certain other high-exposure claims, a motion for specific discovery can be filed seeking the names of any social networking sites used by the employee.
  
  

  But, are the information, videos, and photos we obtain admissible in workers' compensation court?

  Workers‘ compensation judges generally have broad discretion and are not bound by state or federal rules of evidence, and therefore social networking evidence may be admitted even more liberally in workers‘ compensation courts than in state or federal court.
  
  

  Recent New York Workers' Compensation case involving Facebook fraud.

  On September 13, 2010, Alexis Muniz was sentenced to three years probation for stealing $8,975 in workers' compensation benefits. It turns out she was working full-time while collecting benefits - and was stupid enough to post about her "dual life" on Facebook - boasting about her income! Click here to see the whole story.
  
  Have any questions about this article? Contact Greg Lois.]]>Gregory Lois, Esq.Publications2011-04-15T07:21:47-04:00www.greglois.com/files/longshore-book.html#unique-entry-id-198www.greglois.com/files/longshore-book.html#unique-entry-id-198

  Longshore and Harbor Workers' Compensation Law

  2011 Edition

  Authored by Gregory Lois
  Edited by Matthew P. O'Malley
  List Price: $19.00 Order now (soft cover) or for Kindle. Coming soon to the iBookstore!
  
  

  From the publisher's description:

  THE MOST PRACTICAL, up-to-date and easy-to-understand guide to Longshore and Harbor Workers' Compensation claims. This guide is written in plain English by an attorney 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 the Defense Base Act, the Medicare Secondary Payer Act, and HIPAA considerations are included. [2011 Edition.]
  Publication Date: Apr 15 2011
  ISBN/EAN13: 1461030447 / 9781461030447
  Page Count: 226
  Binding Type: US Trade Paper
  Trim Size: 6" x 9"
  Language: English
  Color: Black and White
  Related Categories: Law / Labor & Employment
  
  Order now (soft cover) or for Kindle. ]]>Gregory Lois, Esq.New York2011-04-09T12:44:00-04:00www.greglois.com/files/magic-words.html#unique-entry-id-197www.greglois.com/files/magic-words.html#unique-entry-id-197
  (If you are unfamiliar with the Medical Treatment Guidelines that went into effect on December 1, 2010, I recommend you read my earlier posts on these topics:
  • The Medical Treatment Guidelines - this is a general overview article;
  • Optional Prior Approval; and
  • The Variance process.)

  Observation #1: Magic Words

  There is a literalist quality to the review of medical disputes before the Board. The Workers' Compensation Board has always been doctrinaire - and never more so than in the interpretation and application of the new Guidelines. How can we use this to our advantage in controlling runaway medical?
  
  

  Magic words: Challenging treatment during the Optional Prior Approval process

  If you have not "opted out" of the prior approval process, a medical provider can seek "prior approval" to provide treatment where there is a potential that the care is not pre-authorized under the MTG (using form MG-1). If the approval is denied by the carrier, the matter then goes to the Medical Arbitrator who will issue a decision within 8 days. The decision of the Medical Arbitrator is not appealable under WCL Section 23.
  
  The arbitrator who reviews the denial will be in the Medical Director's Office - the review process includes MDO nurses. In our experience, they are looking for documentation of clinical symptoms, correlation of those symptoms to the medical treatment sought, and a statement as to how the proposed medical treatment follows under the MTG.
  
  In our experience, this process can be aided by careful documentation by the carrier and carrier's medical reviewer.
  
  First, a denial of treatment must include a specific reference to which Medical Treatment Guidelines applies. In the case of the carrier seeking to deny care, a statement must be made that the treatment sought is not authorized by the MTG. The denial should include the name of a licensed medical professional (and that could be a LPN, PA-C, MD or RN) who reviewed the medical request. The report supporting the denial should be as detailed and complete as possible - make is easy for the reviewer at the Medical Director's office. This means that specific reference to the MTG "chapter and verse" that applies should be provided, along with references to the treating records as to how the claimant's prior symptomatology and improvement departs from the symptoms and functional improvement documentation required under the MTG.
  
  Second, carefully review the Board's file (e-case) to see what medical records have been submitted to the Board. Often, a supporting MRI report or EMG result is not filed. A treating physician may refer to the report or record and rely on same in formulating an opinion that the medical treatment is necessary. However, if the report is not submitted to the Board - part of the e-case file - the attending doctor's opinion is weakened. The Board should be made aware that supporting diagnostic testing has not been submitted.
  
  Because the reviewers are taking a "literalist" approach to reviewing medical disputes, missing records will be construed against the claimant. Use this to your advantage! If the record is missing be sure to have your reviewing medical professional note that for the Board.
  
  Finally, be mindful of the deadlines in a prior approval request - failure to respond will result in an unappealable determination.
  
  

  More magic words: Defending variance requests

  The carrier must explain any denial of requested variance in Section "E" of Form MG-2. Any reason for denial that is not raised is deemed waived. The possible grounds for denial are:
  • The medical care requested has already been rendered (if the request was submitted after treatment already rendered, an IME or records review is not necessary, See N.Y.C.R.R. 324.3(i)(b));
  • The Treating Medical Provider did not meet the burden of proof (appropriateness and medical necessity);
  The treatment requests is not medically necessary or appropriate for the claimant - this would be coming from your IME or records review; or
  • The claimant failed to appear for the scheduled IME examination. In this situation, the WCB may extend the time for IME by thirty days. See N.Y.C.R.R. 324.3.
  If the denial is based on the grounds that the treatment sought is not medically necessary or appropriate, the carrier must:
  • Have the case reviewed by its own medical professional, independent medical examiner, or records reviewer;
  • Attach the written report of the chosen medical professional;
  • (Optional) Submit citations to peer-reviewed medical journals in support of the denial (if such articles formed the basis of the denial).
  First, be mindful of the time constraints. If the carrier submits a notice of an IME or Medical Records Review within 5 business days of the variance request, the carrier has 30 calendar days to get the IME exam or Medical Records Review and submit Form IME-4. If no notice of an IME or Record Review is submitted, the carrier has 15 calendar days from the date of the request to reply to the variance request. These are extremely short time periods to respond - therefore, prepare, prepare, and prepare. A successful defense requires an action plan - a "go to" medical professional to issue a response. This could be a a physician, registered physician assistant, registered professional nurse, or nurse practitioner licensed in ANY state.
  
  The denial: the carrier must explain why the treatment request was denied and attach the written report of the medical professional that reviewed the variance request. Such report shall include a list describing the medical records reviewed by the medical professional when considering the variance request. The carrier has the option to submit citations or copies of relevant literature published in recognized, peer-reviewed medical journals in support of a denial of a variance request.
  
  Here is where the "magic words" are important. Most variance denials will be for "burden of proof" reasons. Specifically, that the treatment is not medically necessary and appropriate in the individual claimant's situation. This requires the report of a medical reviewer, who must review the medical records (and list in her report the records reviewed). If the claimant failed to respond to prior treatment (for example, physical therapy) and the claimant simply seeks more of the same, the reviewer should note that the request for treatment violates the MTG. Specifically, the reviewer should state that "medical necessity is not established where there is no evidence of functional improvement related to the previously delivered therapy modalities." (This is a reference to the "general principle" common to all MTGs). We have seen the Board adopt this exact language in decisions denying variance requests.
  
  Controverted Claims: If the compensation case is controverted, the carrier must still respond to the variance request timely and in the same manner as requests in non-controverted claims. If the carrier approves a variance request when a claim is controverted or the compensability of the body part is controverted, the approval only relates to medical necessity and shall not be construed as an admission that the condition for which variance is requested is compensable. The carrier shall not be responsible for the payment of medical care which is the subject of the variance request until the question of compensability is resolved.
  
  Failure to Timely Respond to Form MG-2: The variance shall be deemed approved by an Order of the Chair issued by the Workers' Compensation Board if the carrier fails to respond within the time frames specified above. The Order of the Chair is the final decision of the Board.
  
  

  Magic "Missing" words.

  One final caution: "missing" magic words can sink a defense. In a recent case I handled, the claimant's chose physician recommended cervical fusion surgery in a case where the claimant had minimal objective findings and no improvement in his subjective complaints from protracted prior treatment. The IME physcian - an orthopedic surgeon - opined that the claimant's clinical presentation did not warrant surgery and found the claimant able to return to the pre-injury job. The reviewer at the office of the Medical Director was not so concerned about whether the treatment was necessary so much as she was concerned that the IME doctor was not a neurologist. Furthermore, the IME doctor did not record any positive findings regarding a neurological exam.
  
  In other words, the reviewer presumed that because the the IME physician did not enumerate neurological findings, that meant there could be findings. Obviously, this is flawed.
  
  We recommend that IME physicians clearly state where no symptoms are noted. For example, a "checklist" type exam would likely have appeased the institutional bias.
  
  

  Observation #2: No one is an expert. Even the people who are supposed to be experts.

  In a typical scenario, a claimant is seeking additional medical care and the carrier is defending an IME opinion that states the medical treatment sought is unnecessary. A common argument raised by claimant's counsel is that "the treatment sought is covered by the MTG."
  
  Once this argument is raised, carrier's counsel must be ready to respond. Why? Because many judges will simply order "Medical Treatment as per the Medical Treatment Guidelines is authorized." This argument effectively short-circuits the carrier posiiton - that there is not further causally related disability. This often arises in a context where the carrier is seeking to take medical testimony and put the claimant to his proofs.
  
  The defense must be able to explain why the medical treatment is not pre-authorized under the MTG. Alternatively, defense counsel must be able to explain why even if the treatment is pre-authorized under the MTG, the claimant's clinical presentation does not warrant the treatment.
  
  Your best defense will be reliance on your IME opinion and a careful argument as to why the claimant's prior diagnosis and treatment does not meet the requirements for additional care under the MTG.
  
  All too often, both parties are not prepared to explain to the presiding judge as to why the treatment is either covered by the MTG or disallowed. Too often, specific reference to the medical record is not prepared. Many times the parties merely shrug at each other, and the Judge issues an Order stating "All treatment as per the MTG is authorized," effectively sidestepping the issue.
  
  Disputing medical care in a post-MTG world requires more than a shrug of the shoulders and deferral to a judge's inclination. When the treating physician wants to perform an invasive procedure like a surgery, and the IME opinion has stated that the claimant does not have the necessary objective findings to warrant same, a challenge to the proposed treatment, even though it is pre-authorized under the Medical Treatment Guidelines, is essentially a denial based on ripeness (where the he treating doctor believes that the claimant would benefit from medical care that is within the Guidelines but not specified at that point in the claimant's treatment - see N.Y.C.R.R. Sect. 324.
  
  Defense could argue that given the conflict, the treating physician should file an MG-2, which must include information about the body part, the section of the MTG that applies, the specific treatment requested, a statement as to why the treatment is medically necessary, reference to records in the WCB's file, and a certification that the claimant understands and agrees to undergo the proposed medical care. Fight for this!
  
  Where there is a good faith dispute about whether or not the treatment is authorized under the MTG, the carrier must be prepared fully to raise all defenses. Too often available arguments are not raised. If you have an IME that has conflicting clinical findings (neurological test, dermatonal distribution, lack of objective observations, etc) and treatment is an issue knowledge of the specific medical treatment guidelines that apply in your case is a must!
  
  

  Observation #3: Everyone gets one "Do over"

  No matter how old the claim the variance judges have been instructed to treat December 1, 2010 as "day zero" for all claims. Even where the claimant has had three years of physical therapy and pain medications with absolutely no functional improvement - December 1, 2010 begins a "do over." Essentially, all claimants get a "mulligan" and treatment starts over as of that day.
  
  The exception to this will be surgery - "repeat" surgery always requires pre-approval. So, expect that at a variance hearing where the claimant is seeking additional physical therapy, the treatment will be authorized as per the MTG (usually 4-6 weeks for "active" therapy modalities) After this required period, claimant's physician must file reports showing improvement. Where there has been no objective improvement, alternate treatment paths within the MTG should be followed. The game of merely continuing to pursue physical therapy or chiropractic for years after a soft-tissue injury will be tolerated by the variance judges for the initial period allowed by the MTG. After that, the claimant should be moving on to either more invasive (often surgical) treatment paths or be deemed at MMI.
  
  C-8.1s should still be used for treatment falling outside the MTG. This means that when the claimant continues to pursue these modalities of care after the "maximum" period allowed by the MTG (and post December 1, 2010), file your C-8.1s. The attending physician's next step should be to file an MG-2, which should tee up the case for a variance proceeding. Get your review report ready and defend as discussed above!
  
  

  Final thoughts.

  The Guidelines specify an outcome oriented approach with the goal of returning injured workers to employment in a reasonable time frame. While it may seem like common sense, this approach is all new to the judges and medical office staff that are reviewing the disputes that arise under the MTG. The challenge for employers, carriers, and defense counsel is as much changing prevailing attitudes as it is adapting to new procedures.
  
  Have any questions about this article? Contact Greg Lois. Check out the book New York Workers' Compensation Law 2011 available in print here, on Amazon, or for for Kindle or e-reader.]]>Gregory Lois, Esq.Publications2011-04-01T12:14:35-04:00www.greglois.com/files/4fe273d357a95b16b11381ee06b29575-196.html#unique-entry-id-196www.greglois.com/files/4fe273d357a95b16b11381ee06b29575-196.html#unique-entry-id-196I am pleased to report that the Longshore book is in the hands of the publisher . . . I'll be working with my editor to complete the final revisions over the next few weeks. A big thank you to Matthew P. O'Malley, editor extraordinaire.
  
  From the Table of Contents:
  
  Introduction 1
  Who is a Longshoreman? 1
  Who else qualifies for benefits under the LHWCA? 2
  Who is specifically excluded from benefits under the LHWCA? 2
  What benefits are available under the LHWCA? 3
  About this Book 4
  Citations and common usage. 5
  Staying up-to-date! 5
  Chapter 1: Initial Reporting 7
  Overview 7
  Forms & Procedure - Controverting claims. 8
  Appeal. 9
  DLHWC Forms 9
  Notice in specific accident cases. 9
  Giving the report of loss. 11
  Notice as a defense. 11
  Chapter 2: Jurisdiction 13
  How is jurisdiction established under the LHWCA? 13
  Time for Filing 13
  Statute of Limitations in Traumatic injuries 13
  Statute of Limitations in Occupationals 13
  “Status” and “situs.” 14
  Status. 14
  Situs. 15
  "Over water" 15
  "Over land" 15
  LHWCA v. Jones Act (The Merchant Marine Act, 1920) 16
  Jurisdiction expanded under the Defense Base Act. 18
  Exclusions to jurisdiction of the LHWCA. 18
  Chapter 3: Employment 21
  Who is an employee for LHWCA? 21
  Agency 21
  Right to control test. 22
  Relative nature of the work test. 22
  Volunteers. 23
  Owners and corporate officers. 23
  Chapter 4: Arising out of . . . 25
  Defining “arising out of the employment . . .” 26
  Assaults at work. 26
  Punch-In, Punch-Out Claims 27
  Personal Mission 28
  Aggravation of prior conditions. 29
  ...In the course of employment. 29
  Coming and Going Rule 30
  Travel time exception 30
  Parking Lots 31
  Zone of Special Danger 31
  Chapter 5: Defenses 33
  Jurisdiction 33
  Specific Exclusions 33
  The Statute of Limitations 34
  Waiver 34
  Notice & Prejudice 34
  Intentional Injuries 36
  Suicide or self-harm. 36
  Intent to harm another. 36
  Intoxication. 36
  Chapter 6: Medical Benefits 39
  Exceptions to the claimant’s choice of physician 41
  Emergencies 41
  Changing doctors 41
  Requesting treatment. 42
  Judicial review of medical treatment 43
  Independent Medical Examinations 45
  The IME Process 46
  If the claimant refuses to attend an IME 46
  Chapter 7: Indemnity benefits 49
  Waiting Period 49
  Temporary Total Disability. 49
  Temporary Partial Disability. 50
  Death Benefits 50
  Survived only by spouse. 51
  Survived by spouse and children. 51
  Survived by just children. 51
  No spouse or children. 51
  The special case of aliens. 52
  Permanent Total Disability. 52
  Permanent Partial Disability. 53
  Scheduled loss of use - enumerated body parts. 53
  Unscheduled disability. 54
  What happens when a claimant dies while receiving permanent partial benefits? 55
  What if the employer/carrier fails to pay benefits in a timely fashion? 56
  Chapter 8: Wages and Rates 57
  Defining Wages. 57
  Calculating Wages. 58
  Wages in Traumatics versus Occupationals 59
  Traumatic Cases 59
  Occupationals 60
  Rates. 60
  Chapter 9: Traumatic Injuries 63
  Benefits 63
  Medical 63
  Permanent Partial Disability 63
  Total Disability 64
  Chapter 10: Occupational claims 65
  Burden of proof in establishing a compensable occupational disease 65
  “Last on the Risk” doctrine. 66
  Chapter 11: Trial, Settlement & Dismissal 69
  Trial 69
  Evidence at Trial 69
  Use of videotape surveillance at trial 70
  Medical testimony 71
  Witness credibility 71
  Settlements 71
  Approval. 73
  Timing 73
  Contents of a settlement agreement. 74
  Withdrawal of claims 75
  Time to Appeal 76
  First Appeal - Benefits Review Board 76
  Next - the Court of Appeals. 77
  Enforcement of Orders. 78
  Chapter 12: Defense Base Act 79
  Jurisdiction 79
  Arising out of the Course of Employment and the "Zone of Special Danger" 80
  Filing Procedures 81
  Region II — New York 81
  Region IX — San Francisco 81
  Chapter 13: Medicare Secondary Payer Act 83
  Background 83
  The Problem with Settlements 85
  Pre-approval 85
  Set-Asides 86
  Failure to Obtain Approval for Section 20 Settlement 87
  Conditional payments. 88
  Just what does it mean to be “Medicare Eligible”? 89
  What is a “Reasonable Expectation” for entitlement to Medicare? 90
  Need for set-aside. 91
  Best Practices for obtaining a Set Aside 91
  The New Forms (Sept 2009). 91
  FAQs 92
  Chapter 14: HIPAA 97
  A (very) Brief look at Title I: Portability and ‘Look Back’ 97
  This topic in brief: “The Privacy Rule” 101
  Effects on research 102
  Effects on clinical care 103
  Costs of Implementation 104
  Effect on privacy 104
  The Privacy Rule - What You Can Disclose and What You Must disclose 105
  Dates & Deadlines 105
  Notification & Enforcement 106
  So, Who Is a ‘Covered Entity’? 106
  Health Plans. 107
  Health Care Providers. 107
  Health Care Clearinghouses. 108
  Business Associates 109
  So, What is Covered? (What “PHI” do I have to watch out for?) 109
  De-Identified Health Information. 110
  When you CAN disclose PHI. 111
  When you MUST disclose PHI. 113
  In a Nutshell: The Privacy Rule “for Dummies” 113
  Rules for Carriers 113
  The “Enforcement Rule” or “Why Do We care?” 114
  Civil Money Penalties. 114
  Criminal Penalties. 115
  But, do we care? 115
  For Claims Adjusters: Applying the Privacy Rule to Workers’ Comp Claims 115
  Other Types of Claims (non-workers’ comp) 117
  For Carriers and their ‘Business Associates’ 118
  Chapter 15: The Longshore and Harbor Workers’ Compensation Act. 119
  About Tompkins McGuire 209
  NAWW & Rates Chart 211
  2000-2011 Information 211
  About the Author 212
  ]]>Gregory Lois, Esq.Firm News2011-03-31T12:05:12-04:00www.greglois.com/files/7a782029ab7191f075a829d40c5a90cb-195.html#unique-entry-id-195www.greglois.com/files/7a782029ab7191f075a829d40c5a90cb-195.html#unique-entry-id-195
  
  
  If you are having trouble viewing the presentation here, you can view it on iwork.com.]]>Gregory Lois, Esq.New York2011-03-15T09:25:10-04:00www.greglois.com/files/46a1a41debeefb5907b5be41ebcf995c-191.html#unique-entry-id-191www.greglois.com/files/46a1a41debeefb5907b5be41ebcf995c-191.html#unique-entry-id-191
  

  New Jersey: penalties for carrier's actions.

  For failing to follow the order of a Judge or failure to provide benefits under the Act, the Judge of Compensation can:
  • Impose costs and simple interest on any monies due.
  • An additional money penalty up to 25 percent;
  • Fine the parties or their attorneys up to $5,000 for unreasonable delay or continued noncompliance;
  • Close proofs;
  • Suppress defenses;
  • Exclude evidence or witnesses;
  • Allow a reasonable counsel fee to a prevailing party, where supported by an affidavit of services.
  These penalties are bad enough, but the law also allows for a petitioner to seek civil damages for 'bad faith' actions of the employer, the compensation carrier, or its representative.
  
  The general rule in New Jersey allows no direct action available to an injured employee against the employer, or against the employer's insurer when the insurer does what is required under the Workers' Compensation Act and the carrier's insurance policy. Under normal circumstances, injured employees must pursue their exclusive remedies in the Division of Workers' Compensation, even when an employer, acting through its insurer, does not furnish necessary medical treatment when requested to do so by an employee.
  
  This 'general rule' is known as the exclusivity provision and it is enshrined in the New Jersey Workers' Compensation Act at N.J.S.A. 34:15-8.
  
  We recently wrote about the Davis v. OneBeacon case, where a 'bad faith' action was permitted when an employer selected an authorized doctor and then refused to offer the treatment recommended by that doctor. In the wake of this decision it was clear that ‘bad faith’ civil claims are not limited to a situation where a party ignores a court order - a claimant was allowed to make a ‘bad faith’ civil claim when an insurer refused to authorize treatment recommended by their own selected doctor.
  
  In a new decision (published February 1, 2011) the New Jersey Appellate Court reviewed an admitted case where the insurer paid $567,000 in medical and indemnity benefits to the claimant. Scattered medical bills remained outstanding, and the petitioner's attorney filed a motion to enforce the prior orders in the case and requiring the insurer to pay the outstanding bills. The Judge of Compensation ordered the carrier to pay the bills (enforcing his own prior order) and awarded the petititoner's attorney a $2,000 counsel fee. Petitioner's attorney demanded that the judge of compensation sanction and fine the workers' compensation insurer. The Judge of Compensation declined to do so.
  
  Petitioner then brought a civil claim in Superior Court, alleging that he had suffered "pain and suffering" due to the workers' compensation carrier's wanton refusal to abide by the orders of the compensation judge and sought compensatory and punitive damages, plus costs, interest, and attorney's fees.
  
  The Superior Court dismissed the complaint. The Superior Court Judge found that plaintiff was not precluded from returning to the compensation court to seek sanctions and penalties against the insurer, and, if a new Superior Court action is thereafter necessary for enforcement, such action would not be precluded. The Appellate Court agreed with this result, and affirmed the dismissal of the bad faith claim.
  
  The petitioner now can return to the workers' compensation court and seek the maximum penalties against the insurer available under the New Jersey Administrative Code (N.J.A.C. 12:235-3.16). In addition to the penalties described above and upon a finding by the judge of contempt, the petitioner or the judge may file a motion with the Superior Court for contempt action.
  
  

  New York: Defenses suppressed for late filing; Appellate Panels affirm.

  There are many reasons to deny a workers' compensation case in New York (see my chapter on Defenses). Two recent cases demonstrate the danger of failing to file ALL the appropriate forms when you are denying a New York Workers' Compensation claim by filing a Notice of Controversy ("C-7").
  
  When a C-7 is filed, controverting a case for lack of notice, lack of employment, wrong carrier, or other jurisdictional or substantive reasons, the case will be set down for an expedited hearing within 30 days. The Act also requires that a "Pre-Hearing Conference Statement" (PH-16.2) must be filed 10 days before the Expeditied hearing. See 12 NYCRR 300.38(f)(4).
  
  In many cases, the carrier files a C-7 after initial investigation reveals that the claimant did not work for the company, or where either notice or the accident itself is in dispute. Our recommendation: file a Pre Hearing Conference statement at the same time - to avoid the potential for failing to file the Statement (Form PH-16.2) within the 10 days. There is just too much that can go wrong - late notice of the hearing date, no notice at all, etc! If you have enough information to justify a denial, go ahead and file the PH-16.2 at the same time.
  
  Better, have your outside counsel handle the process! It seems that common practice is to have the carrier file a C-7, then refer the claim to outside counsel. This introduces delay and a possible dropped deadline into a time-sensitive process.
  
  Two recent cases (both decided in March 3, 2011) show what can happen when the Pre-hearing Statement is not timely filed the carrier/employer loses the right to assert defenses!
  
  In Smith v Albany County Sheriff’s Dep't, the Appellate Division ruled that because the the carrier submitted an untimely prehearing conference statement the employer waived all defenses to the claim and, upon review of claimant’s medical records, established an occupational injury. In a similar case (Quagliata v Starbucks Coffee) also decided the same day, the Appellate Panel ruled that stripping the carrier of its defenses for failing to file the Pre Hearing Conference Statement on time was "not unreasonable, arbitrary, capricious or contrary to the statute under which it [is] promulgated."
  
  Best practices: be wary of the requirement that the Pre-Hearing Conference Statement be filed ten days prior to the expedited hearing - implement a plan to make sure this is done timely or risk a suppression of defenses!
  
  Have any questions about this article? Contact Greg Lois.
  ]]>Gregory Lois, Esq.Video2011-03-13T09:52:39-04:00www.greglois.com/files/29bf4ef421c2be23f6d31ad709a0feac-194.html#unique-entry-id-194www.greglois.com/files/29bf4ef421c2be23f6d31ad709a0feac-194.html#unique-entry-id-194
  Excellent "kinetic typography" video on the placebo effect. Check out the statistics on "pain."]]>Gregory Lois, Esq.Funny2011-03-13T09:48:18-04:00www.greglois.com/files/d71ccd43247699ba19483d32e6b7988b-193.html#unique-entry-id-193www.greglois.com/files/d71ccd43247699ba19483d32e6b7988b-193.html#unique-entry-id-193
  Regular readers of this blog know that I can not resist linking to hilarious workers' compensation frauds.
  
  Do the claimants really think we're this stupid?
  
  This video captures one of the most bizarre fraud claims ever.
  (From: Inside Edition, running time: 8 minutes, suitable for work.)]]>Gregory Lois, Esq.LHWCA2011-03-13T09:31:38-04:00www.greglois.com/files/a237027b5f65d88e8a4bcc8f6e6f03ee-192.html#unique-entry-id-192www.greglois.com/files/a237027b5f65d88e8a4bcc8f6e6f03ee-192.html#unique-entry-id-192How is jurisdiction established under the LHWCA?The Longshore and Harbors Workers’ Compensation Act ("LHWCA") covers longshore/harbor workers and other "maritime" workers. The Act has also been applied to certain other workers under the Defense Base Act. (See my overview of the LHWCA).
  
  

  “Status” and “situs.”

  The LHWCA set forth the requirements for coverage. "Status" refers to the nature of the work performed; "situs" refers to the place of performance.
  
  

  Status.

  The employee claiming benefits under the LHWCA must be engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, including any harbor-worker including a ship repairman, shipbuilder, and ship-breaker. There are specific exclusion which apply to status.
  
  

  Situs.

  The jurisdictional trigger for a claim under the LHWCA is an injury upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel). Jurisdictional questions based on issues of situs are fact-sensitive.
  
  In a new case, decided last month, the employer argued that the claimant did not satisfy either the status or situs prerequisites of the LHWCA. The Benefits Review Board ruled that the claimant did satisfy the status requirement, because he was maintaining and repairing loading equipment used in Longshoring activity.
  
  However, the claimant worked in a garage, more than 400 feet from any navigable water (the Monongahela River). The employer argued that the claimant did not meet the 'situs' test.
  
  Taking a liberal view, the Circuit Court adopted a broad reading of "other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel," requirement of the Act. In defining "adjoining area," the court held that "[s]o long as the site is close to or in the vicinity of navigable waters, or in a neighboring area, an employee's injury can come within the [Act]. To require absolute contiguity . . . would frustrate the congressional objectives of providing uniform benefits and covering land-based maritime activity." The Board ruled that the garage where claimant was injured was a covered situs, and awarded benefits.
  
  Case: Consolidation Coal Co. v. BRB, et al. [Smith], __ F.3d __, 2010 WL 5176847 (3d Cir. 2010).
  
  Have any questions about this article? Contact Greg Lois.]]>Gregory Lois, Esq.Firm News2011-03-13T09:22:45-04:00www.greglois.com/files/987d7a26e687ff8d51a0aa5dc04213d2-190.html#unique-entry-id-190www.greglois.com/files/987d7a26e687ff8d51a0aa5dc04213d2-190.html#unique-entry-id-1905PM networking, 6PM seminar.
  
  How to attend and more info available from the North Jersey Claims Association.]]>Gregory Lois, Esq.LHWCA2011-03-05T20:57:54-05:00www.greglois.com/files/3f7718a8edd6ca13f8683697e5acbd14-189.html#unique-entry-id-189www.greglois.com/files/3f7718a8edd6ca13f8683697e5acbd14-189.html#unique-entry-id-189
  

  Chapter 6: Medical Benefits under the LHWCA

  Section 907 of the Act requires that the
  . . . employer shall furnish such medical, surgical, and other attendance or treatment, nurse and hospital service, medicine, crutches, and apparatus, for such period as the nature of the injury or the process of recovery may require.
  
  The employer must respond to a request for treatment upon notice of the injury, even if the work-relatedness of the injury is challenged. The duty of the employer to provide medical treatment is absolute. The medical care provided must be both “reasonable and necessary” and appropriate for the injury.   The claimant has the right to choose his own attending physician.
  
  The physician chosen by the claimant must submit a report to the carrier within 10 days.

  The right of the claimant to choose his own physician is only limited by the ‘prohibited’ provider list of physicians and facilities who do not meet standards established by the DOL.
  
  The employer is liable for all medical expenses for any consequences of the compensable injury, including the chosen physician's malpractice.  While an employer is not liable for medical expenses due to the degenerative processes of aging, an employer is responsible for ‘aggravations’ of prior injuries. An employer is responsible for treatment even if the work-related injury only partly causes the need for that treatment, and that is true in psychological injury cases as well as physical injury ones.
  
  Any injury sustained during the course of a medical examination scheduled at the employer's request for an alleged work-related injury is covered under the LHWCA, because such an injury necessarily arises out of and in the course of employment.
  
  

  Exceptions to the claimant’s choice of physician

  Emergencies

  The employer is allowed to select a doctor or facility the claimant can not due to the nature of his injury and the injury requires urgent treatment, the employer is to select a physician for him. The claimant must be incapacitated and in need of emergent treatment for this exception to be invoked. Once the claimant regains his faculties, then he regains the freedom to chose his own attending doctor.
  
  

  Changing doctors

  Once a claimant has made an initial unrestricted choice of a physician, he may change physicians only upon obtaining prior written approval of the employer, carrier, or deputy commissioner. If the claimant fails to obtain the required authorization to switch treaters, the carrier/employer does not have to reimburse the claimant for the costs of the new, unauthorized treatment. Note: referral to a specialist from an attending physician will not invoke a need for new authorization from the carrier.
           
  

  Requesting treatment.

  The claimant must report his injury and request treatment in order to trigger an employer’s responsibility to pay for such care. There are many instances where an employee does not have to formally report his injury - for example, where an employer’s representative is at the scene of the accident. An employer “has knowledge of an injury” when an accident occurs and a reasonable person could conclude that there might be liability for compensation and should investigate further.
  
  Mere knowledge of an accident is not enough to make an employer liable for paying medical bills - accident happen everyday and no treatment is sought. The employee must affirmatively request care in order to trigger responsibility on the part of the employer for any resulting medical bills.
  
  The employee does not have to request treatment when a request would be futile. For example, if the claimant was fired for reporting the accident, there would be no duty on the part of the claimant to seek treatment from the employer.
  
  

  Judicial review of medical treatment

  A claimant only has to present the opinion of a qualified physician that treatment was necessary for a work-related condition to establish a prima facie case for compensable medical treatment. The judge can order the employer to make payment for medical treatments already received by the claimant. The Judge can also order that a specific course of medical care be authorized by the employer. However, a judge can not pick specific medical facilities for the care to take place - that would abrogate the claimant’s right to pick his own doctor.
  
  A judge has no authority to deny a medical expense on the technical grounds such as a particular physician's expertise, whether the fee charged was within the customary range, or where the medical treatment was not documented. The Judge can only rule on the reasonableness of the medical services.
  
  It is up to the employer to raise the reasonableness and necessity of treatment before the presiding judge.
  
  

  What counts as medical treatment?

  Stories are legion and Longshore caselaw is replete with references to dubious medical treatment prescribed by treating physicians and ruled to be the employer’s expense (for example - the install of a jacuzzi for the ‘recovery’ of a claimant, a physician ordered who ordered his patient relocate to a ‘warmer climate,’ or a doctor writing prescriptions for first class travel). The regulations define medical care to include laboratory, x-ray, and other technical services, such as prosthetic devices for the care and treatment of the injury or disease. Treatment does not have to be ‘medically accepted’ but merely “helpful.” The treatment does not have to be administered by a therapist or practitioner with any sort of license. Meeting this rather low burden are pseudo-medical treatments such as biofeedback.
  
  Chiropractors are allowed to treat Longshore patients and are paid for their care only to the extent that it consists of manual manipulation of the spine to correct a subluxation shown by x-ray or clinical findings. Chiropractors are not to be paid for treating shoulders, hips, knees, etc., or administering physical therapy.
  
  Travel to and from medical appointments, as well as special travel needs, are generally compensable.
  Generally, travel will be reimbursed for physicians within 25 miles of the residence of the claimant.
  
  Regulation 20 C.F.R. § 702.403 states:
  In determining the choice of physician, consideration must be given to availability, the employee's condition, and the method and means of transportation. Generally, 25 miles from the place of injury or the employee's home is a reasonable distance to travel, but other pertinent factors must also be taken into account.
  
  

  Independent Medical Examinations

  33 U.S.C. § 907(e) states:
  In the event that medical questions are raised in any case, the Secretary shall have the power to cause the employee to be examined by a physician employed or selected by the Secretary and to obtain from such physician a report containing his estimate of the employee's physical impairment and such other information as may be appropriate. Any party who is dissatisfied with such report may request a review or reexamination of the employee by one or more different physicians employed or selected by the Secretary. The Secretary shall order such review or reexamination unless he finds that it is clearly unwarranted. Such review or reexamination shall be completed within two weeks from the date ordered unless the Secretary finds that because of extraordinary circumstances a longer period is required. The Secretary shall have the power in his discretion to charge the cost of examination or review under this subsection to the employer, if he is a self-insurer, or to the insurance company which is carrying the risk, in appropriate cases, or to the special fund in section 44 [33 USC § 944].
  
  

  The IME Process

  When a medical question is raised, the Secretary may have the claimant examined by a physician employed or chosen by the Secretary and receive a report to determine the diagnosis, estimate the claimant's physical impairment, or comment on whether additional medical treatment is necessary.
  
  Following the initial report, either the claimant or the employer can then request a review or a reexamination of the employee by a different physicians employed or chosen by the Secretary within two weeks.
  
  The findings of the initial examining physician's findings are not binding on any party.
  
  Immediately following the initial exam, the employer or carrier may request, to have the employee examined.
  
  

  If the claimant refuses to attend an IME

  If the employee refuses to submit to the examination, the proceedings shall be suspended and no compensation is paid until the claimant attends the exam. This applies equally to initial exam and employer-requested IMEs. A claimant's failure to attend an exam with the employer's chosen examining physician can not be excused. Claimants have argued that the physician chosen by the employer are biased or incompetent as excuses for not attending exams. A Judge can not excuse a failure to attend an IME on the grounds that the claimant lacks confidence in the physician, although that would obviously be accepted by the court as a reason to not allow the doctor to act as a treating physician.]]>Gregory Lois, Esq.LHWCA2011-02-28T15:01:21-05:00www.greglois.com/files/14f801e91bd95b1dd185443b34946174-188.html#unique-entry-id-188www.greglois.com/files/14f801e91bd95b1dd185443b34946174-188.html#unique-entry-id-188From Chapter Five of my upcoming book, "Longshore and Harbor Workers' Compensation Act":
  
  Jurisdiction
  The following are excluded from coverage under the Longshore and Harbor Workers’ Compensation Act:
  • Master or member of a crew;
  • Small vessel workers;
  • Officers and agents of the federal, state, local, or foreign governments;
  • Clerical/secretarial/security/data processing employees;
  • Employed by a club, camp, recreational operation, restaurant, museum or retail outlet;
  • Marina workers;
  • Employees of suppliers, transporters or vendors;
  • Aquaculture workers;
  Recreational vessel construction repair;
  • Small vessel building/repairing/dismantling.
  
  Waiver
  The claimant’s right to receive benefits under the Longshore and Harbor workers’ Compensation Act by filing a claim for an receiving state workers’ compensation benefits.
  
  Notice & Prejudice
  The claimant must provide notice of injury to the employer within 30 days of the injury except for occupational disease cases. In an occupational claim, the notice period extend to one year from when the employee was aware or should have been aware of the condition and the relationship of the condition to work. The claimant must show that either the employer had knowledge during the filing period, or that the employer was not prejudiced by the failure to file timely notice, or that the failure was excused.
  
  Failure to file notice may be excused by the judge where notice was given to an official of the employer or carrier and no prejudice resulted, even if not given to the designated official.80 This frequently happens where an employee reports an injury to a colleague rather than a supervisor. The notice requirement may also be excused if a satisfactory reason exists as to why such notice could not be given.
  
  The employer can show prejudice when due to a lack of timely written notice the employer was unable to effectively investigate to determine the nature and extent of the alleged illness or to provide medical services.
  
  Despite ‘notice’ being a defense, please note that notice is presumed under the Act and must be affirmatively plead.
  
  Intoxicated Workers.
  In order for this defense to prevail, the employer must show that the intoxication was the sole cause of injury.
  
  Intentional Injuries
  Section 903(c) of the Act states that “ (c) No compensation shall be payable if the injury was occasioned solely . . . by the willful intention of the employee to injure or kill himself or another.”
  
  Suicide or self-harm.
  In order to prevail with this defense, the employer must show that the claimant’s injuries arose out of a willful intent on the part of the employee to harm himself - this is more than just a ‘careless’ attitude towards safety or even willful refusal to use a specific piece of safety equipment. The burden of proof is on the employer to demonstrate that the suicide or self-inflicted injury did not arise out of the employment.
  
  Intent to harm another.
  The employer bears the burden of showing that the      claimant was injured will attempting to harm himself or another. The employer must show willful intent on the part of the claimant, which can be demonstrated by the claimant's speech and physical activity (gestures and contact) at the time of the incident. The burden shifts to an employer seeking to rely on an employee’s own intentional acts.
  
  Intoxication.
  An employee’s own intoxication being the sole cause of the accident is a defense to compensability. However, in order to prevail, the burden shifts to the employer to show that the accident arose solely due to the intoxication of the employee with no contribution from the work.
  ]]>Gregory Lois, Esq.Longshore2011-02-20T09:35:30-05:00www.greglois.com/files/ae44cc07f07644c6f04787464b871602-187.html#unique-entry-id-187www.greglois.com/files/ae44cc07f07644c6f04787464b871602-187.html#unique-entry-id-187

  
  Chapter 1: Initial Reporting
  
  Overview

  • The employee must notify the employer immediately by reporting the accident.
  • If medical treatment is sought, provide the claimant with Form LS-1, which authorizes treatment by a doctor of the employee’s choice.
  • The claimant will then receive medical treatment.
  • The claimant must provide written notice of the injury within 30 days to the employer on Form LS-201. Notice of death must also be given within 30 days. Additional time is provided for certain hearing loss and occupational disease claims.
  • (Optional - does not happen in all cases). To obtain permanency and some other benefits under the Act, the injured worker must file either Form LS-203 or a written statement identifying the alleged injury and stating that the identified claimant is seeking benefits. This must be filed within one year after injury, or, if the employer or its insurer has made voluntary payments, within a year after the last payment. If the alleged condition is an "occupational disease" rather than a specific accident, the filing period is two years from the date it was recognized as employment-related and disabling character.
  
  Forms & Procedure - Controverting claims.
  An employer controverting the right to compensation must file a Notice of Controversion of Right To Compensation10 with the District Director on or before the fourteenth day, after knowledge of the alleged injury or death (from the date the claimant files Form LS-207). following the filing of a Notice of controversy, an informal conference will be scheduled at the District Office and a Longshore claims examiner will preside over an informal conference to discuss and potentially resolve the dispute. If the issues cannot be resolved informally, the parties will be directed to file a Pre Hearing Statement. The case will then be referred to the Office of Administrative Law Judges for a formal hearing. The Administrative Law Judge will issue a formal decision and order regarding the benefits claimed.
  
  Appeal.
  Appeal from the decision of the Administrative Law Judge is to the Benefits Review Board. Appeal of the benefits Review Board’s decision is to the appropriate Circuit Court and finally the Supreme Court of the United States.
  
  DLHWC Forms
  All forms that need to be filed with the Division are available online:
  http://www.dol.gov/owcp/dlhwc/lsforms.htm
  These forms include: wage statement (LS-200), pre-hearing statement (LS-18), and employee’s claim forms (LS-203).
  
  Notice in specific accident cases.
  Notice of an injury or death for which compensation is payable must be given within 30 days after injury or death, or within 30 days after the employee or beneficiary is aware of, or in the exercise of reasonable diligence or by reason of medical advice should have been aware of, a relationship between the injury or death and the employment.12 It is the claimant's burden to establish timely notice. The claimant is provided a presumption that timely notice has been provided.13 Where one injury arises out of an accident has been reported, the claimant does not have to give separate notice of other injuries resulting from the same incident.14
       
  Notice in occupational disease cases.
  In the case of an occupational disease which does not immediately result in disability or death, notice must be given within one year after the employee or claimant becomes aware or in the exercise of reasonable diligence or by reason of medical advice, should have been aware of the relationship between the employment, the disease, and the death or disability. Thus, the period does not begin to run until the employee is disabled. It is possible for an employee to bring an occupational disease claim “post-retirement.” In a post-retirement occupational disease claim, the claimant will be required to show that the retirement was ‘involuntary’ in that the allegedly occupationally-related condition caused him to leave the workforce.
           
  Giving the report of loss.
  The injured worker can provide notice to:
  • The first-line supervisor (including foreman, hatch boss or timekeeper), local plant manager, or personnel office official;
  • Any partner, if the employer is a partnership; or
  • Any authorized agent or officer, therefore, upon whom legal process may be serviced or person in charge of business at the place of injury if the employer is a corporation.
  Notice as a defense.
  Notice to the employer is a requirement. Therefore, the lack of notice to the employer can be a defense to a claim. We discuss using ‘Notice’ as a defense in Chapter 5, infra.
  ]]>Gregory Lois, Esq.Longshore2011-02-18T09:45:56-05:00www.greglois.com/files/b579954f4a9db28428e7dc7c734094af-186.html#unique-entry-id-186www.greglois.com/files/b579954f4a9db28428e7dc7c734094af-186.html#unique-entry-id-186
  Introduction
  

  The Longshore and Harbor Workers' Compensation Act ("LHWCA") was enacted in 1927 to provide no-fault workers' compensation benefits to longshoremen injured in the navigable waters of the United States. These benefits extend to longshoremen injured within three miles of shore which includes the docks along the shore. In the last year for which such statistics are available, there were 27,000 new claims filed and $764M in benefits issued under the LHWCA. Since its inception in 1927, the LHWCA has been amended many times, usually to extend the benefits available under the Act to more workers.
  
  Who is a Longshoreman?
  The LHWCA covers employees in traditional maritime occupations such as longshore workers, ship-repairers, shipbuilders or ship-breakers, and harbor construction workers. The term “Longshoreman” typically refers to maritime workers responsible for unloading or loading ships and who are not a master or member of the ship’s crew. The injuries must occur on the navigable waters of the United States or in the adjoining areas, including piers, docks, terminals, wharves, and those areas used in loading and unloading vessels. Non-maritime employees may also be covered if they perform their work on navigable water and their injuries occur there.  
  
  Who else qualifies for benefits under the LHWCA?
  Congress extended the LHWCA to include other types of employment. Employees covered by these extensions are entitled to the same benefits, and their claims are handled in the same way as Longshore Act claims. The following are the extensions of the LHWCA:

  • DEFENSE BASE ACT - applying to employment at overseas military bases of the United States and to employees of U.S. government contractors working outside the United States in public work projects or in national defense and military operations;
  • OUTER CONTINENTAL SHELF LANDS ACT - applying to employees working on the Outer Continental Shelf of the United States in the exploration and development of natural resources, for example, off-shore oil drilling rigs;
  • NONAPPROPRIATED FUND INSTRUMENTALITIES ACT - applying to civilian employees of non-appropriated fund instrumentalities of the Armed Forces (for example, military base exchanges and morale, welfare, and recreational facilities).
  
  Who is specifically excluded from benefits under the LHWCA?
  The LHWCA specifically excludes from eligibility for benefits the following individuals:
  • Seamen (masters or members of a crew of any vessel);
  • Employees of the United States government or of any state or foreign government;
  • Employees whose injuries were caused solely by their intoxication;
  • Employees whose injuries were due to their own willful intention to harm themselves or others.
  
  We cover these exclusions in depth in our chapter on Defenses. The LHWCA also excludes the following individuals if they are covered by a state workers' compensation law:
  • Individuals employed exclusively to perform office clerical, secretarial, security, or data processing work;
  • Individuals employed by a club, camp, recreational operation, restaurant, museum, or retail outlet;
  • Individuals employed by a marina and who are not engaged in construction, replacement, or expansion of such marina (except for routine maintenance);
  • Individuals who (A) are employed by suppliers, transporters, or vendors, (B) are temporarily doing business on the premises of a maritime employer, and (C) are not engaged in work normally performed by employees of that employer covered under the Act;
  • Aquaculture workers;
  • Individuals employed to build any recreational vessel under sixty-five feet in length, or individuals employed to repair any recreational vessel or dismantle any part of a recreational vessel in connection with such repair;
  • Small vessel workers if exempt by certification of the Secretary of Labor under certain conditions. 
  
  What benefits are available under the LHWCA?
  The LHWCA provides for medical benefits and disability benefits to an injured worker. An injured employee is entitled to reasonable and necessary medical, surgical, and hospital treatment and other medical supplies and services required by the work-related injury or illness, such as prescription medications, diagnostic tests, physical therapy, prostheses, hearing aids, attendant care, and the cost of travel for such treatment. An injured employee is entitled to select a physician of his/her choice to provide medical treatment for the work injury. The LHWCA provides for the payment of compensation for the following four types of disability: temporary partial, temporary total, permanent partial, and permanent total. This compensation can not exceed two-thirds of the employee’s average weekly wage during the period of disability, subject to maximum and minimums.
  
  About this Book
  This book is designed to be a “plain English” practical and up-to-date guide to handling claims under the Longshore and Harbor Workers’ Compensation Act (and Defense Base Act claims).
  
  The chapters in this book are designed to follow the natural timeline of a LHWCA compensation claim: We begin with initial reporting requirements, establishing jurisdiction, and we address ‘compensability.’ We then discuss the benefits available to an injured worker: medical treatment, wage replacement, and special handling considerations for specific types of claims. Finally, the ending chapters in this book discuss trial considerations, types of settlements, judgment and appeal, and related considerations (HIPAA, Medicare Secondary Payer, etc).
  
  Writing a book on Longshore and Harbor Workers’ Compensation Law is like trying to hit a moving target. The law is evolutionary. As this book goes to press in April 2011, we are confident that it represents the most up-to-date edition we have ever published. We encourage you to subscribe to our free newsletter and visit Greg Lois’ website (www.greglois.com) for the very latest updates.
  
  To subscribe to our free newsletter, please send an email to glois@tompkinsmcguire.com.
  ]]>Gregory Lois, Esq.New Jersey2011-02-09T18:30:57-05:00www.greglois.com/files/arising.html#unique-entry-id-184www.greglois.com/files/arising.html#unique-entry-id-184Lou Rosa took the patrol car and went straight to Mary Ann's place of work.  Inside the store, Lou asked to speak with John Brinker, whom he suspected of having a relationship with Mary Ann, saying "John, can I talk to you?"  As Brinker approached from around a partition wall in the showroom, Lou opened up on him - point blank.  Brinker died from gunshot wounds to his back and abdomen.
  
  Rosa rampaged through the store to locate May Ann - finding her in a back room cowering with another co-employee.  Rosa shot Mary Ann - in the arm - wounding her.  Rosa ranted "You won't go out with me, but you'll go out with John . . . " and told Mary Ann that he had "been secretly taping her phone conversations" and knew she  was unfaithful to him. 
  
  When the police finally responded to this awful scene a standoff ensued with a bleeding Mary Ann and her coworker held hostage and police wary of storming the back room with guns blazing.  Finally, Rosa turned the gun on himself, ending the stalemate.
  
  May Ann filed a workers' compensation claim against the furniture store where she worked. 
  
  First things first - the law: under the New York and the New Jersey Workers' Compensation laws an injury "must arise out of and in the course of" employment to be compensable.  "In the course of employment" refers to the time, place, and circumstances of the incident in relation to the employment. This also means that the workers' compensation statutes only extend to those injuries sustained within the scope of the employment.  "Arising out of the employment: refers to the causal origin of the incident - it requires an analysis of the risk which gave rise to the injury and whether such risk is contemplated as incident of employment. 
  
  The workers' compensation Judge found that Mary Ann was entitled to benefits, because "the assailant chose the respondent's place of business because it was the only place of contact between Mary Ann and Brinker, and that, but for that employment and contact, there would not have been any shooting."  The employer wisely appealed, and the case was reversed.  The appellate court ruled that the shooting happened during the employment but did not arise from a risk "related to the employment" - the risk of being attacked by a deranged ex-boyfriend was personal to the employee and had nothing to do with furniture sales.   Mary Ann’s claim for workers’ compensation benefits was dismissed.  Also notable is both John Brinker's dependents and the co-worker held hostage did have viable workers' compensation claims - because their injuries were not related to any factor other than the employment.  (Case cite).
  
   
  In New York, similar claims have been dismissed on like grounds.  Notable is the case of Police officer Brett Robinson, who was shot by his wife while on duty with his own service revolver!  According to witnesses, the couple "erupted into argument" while having lunch together.  Compensation benefits were denied, based on the "purely personal nature" of the dispute, despite the fact that Brett was on-duty and his service gun was the weapon used.  (Cite:  Robinson v. Village of Catskill Police Dept.617 N.Y.S.2d 975 (3rd Dep't 1994).)
  
  
  
  Have any questions about this article?  Call Greg Lois at 973-500-8109 or email him.
  ]]>Gregory Lois, Esq.New York2011-02-03T19:03:08-05:00www.greglois.com/files/34558598887934ca997bb07fed827de4-185.html#unique-entry-id-185www.greglois.com/files/34558598887934ca997bb07fed827de4-185.html#unique-entry-id-185
  The factories that produced those clothes were vast rooms of men, women, and children hunched over sewing machines. On March 11, 1911 a fire ripped through the 'Triange Shirt Waist Company' killing at least 145 workers, trapped inside a factory with doors chained shut. It was the deadliest workplace accident in New York Cityís history. Public opinion (aided by yellow journalism) set the stage for politicians to enact a system iof compulsory insurance providing benefits to injured workers and their dependents - thus creating the New York Workers' Compensation Law - one of the first in the nation.
  
  The story behind the tragedy that led to the law, dramatized into a movie "Triangle Fire," airs on American Experience on PBS Feb. 28, 2011 at 9:00pm on most PBS stations.
  ]]>Gregory Lois, Esq.New York2011-01-08T13:25:50-05:00www.greglois.com/files/40aa716875b7bca6d6ce5256974aa213-183.html#unique-entry-id-183www.greglois.com/files/40aa716875b7bca6d6ce5256974aa213-183.html#unique-entry-id-183every stripper in New York an employee, it does present an interesting set of facts to explore the often hazy line between "employee" and "independent contractor" for workers' compensation purposes.
  
  The Judge in Hart v. Ricks Cabaret (decided December 30, 2010) found that although the cub owner classified the exotic dancers as independent contractors the club was the employer. The club argued that the dancers were not employees as they paid the club to perform there (the performers paid the club "shift fees" to dance there). By classifying the strippers as independents the club avoided numerous regulations and avoided having to pay workers' comepnsation premiums for these dancers.
  
  The exotic dancers argued that the club controlled and directed their performances. For example, the club required them to cover all tattoos while performing, banned gum chewing, specified the height of the heels worn by the performers, and selected the music.
  
  The ruling is expected to impact nearly 1,700 exotic performers and the clubs that employ them in New York, who may be subjected to the New York Labor Laws and Workers' Compensation Act.
  
  The case illuminates the often hazy definition of employee and independent contractor.
  
  Who is an Employee?
  A common question before the WCB is whether or not an injured claimant is an ‘employee’ or an ‘independent contractor.’ Most individuals providing services to a for-profit business will be deemed an employee of that business and therefore must be covered by the employer for workers’ compensation insurance. This applies unless those services are specifically excluded. N.Y. Work. Comp. Law §3. ‘Employee’ includes day laborers, leased employees, borrowed employees, part-time employees, unpaid volunteers (including family members) and most subcontractors. In this case, the club owner was calling all the exotic dancers independent contractors to avoid paying workers' compensation premiums and other costs associated with employees.
  
  The Board considers the following factors in determining whether an injured claimant is an employee or was an independent contractor (and therefore not eligible for benefits):
  
  Who has the ‘Right to Control’ the claimant?
  What was the degree of direction and control the ‘alleged employer’ exercised over the claimant? A person or organization controlling the manner in which the work is to be performed indicates that the task is being performed by an employee. If the person doing the labor controls the time and manner in which the work is to be done this may indicate that the task is being done by an independent contractor.
  Rule of thumb: If an individual is truly independent, the individual generally works under his/her own operating permit, contract or authority.
  
  Was the ‘Character’ of the work performed by the claimant the Same as the Employer?
  Work done consistent with the primary work performed by the hiring business indicates that the labor was done by an employee. Work done by a person that is different than the primary work of the hiring business may indicate the task is being performed by an independent contractor. (For example, someone paving a driveway for a driveway contractor is generally considered the employee of that paver. Conversely, a plumber hired on a one time basis to fix a broken pipe for a retail store owner is generally considered an independent contractor – the character of the plumber’s work is different than the work done by the retailer.) In this case, the "character of the work" performed by the dancers is essentially the same as the services offered by the employer.
  
  What was the Method of Payment?
  Employees tend to be paid wages on an hourly, daily. weekly, or monthly basis. Similarly, employment is indicated if the hiring business withholds taxes and/or provides other employee benefits (Unemployment Insurance, health insurance, pensions, FICA, etc.) Whether the labor is paid using a W2 or 1099 Form for tax purposes does not matter in determining an employer/employee relationship for workers’ compensation purposes. A business paying cash to an individual for services usually indicates that the individual is an employee. Payment made for performance of the task as a whole may indicate the task is being done by an independent contractor.
  
  Who Furnished the Equipment/Materials for the job?
  A business providing the equipment and/or materials used by people in performing the work tends to indicate an employer-employee relationship.
  
  Who has the right to Right to Hire/Fire at the worksite?
  A business retaining the authority to hire and fire the individuals performing the work indicates an employee is performing the work. An independent contractor retains a degree of control over the time when the work is to be accomplished and is not subject to be discharged by the hiring entity because of the method he chooses to use in performing the work. Naturally, an independent contractor’s services may be terminated if the services rendered do not meet contractual requirements,)
  
  All factors may be considered and no one factor alone determines whether a person will be considered an employee under the WCL.
  
  Independent Contractors
  To be considered an independent contractor, and thus not an employee, an individual must meet and maintain all ten of the following conditions:
  
  1. Obtain a Federal Employer Identification Number from the Federal Internal Revenue Service (IRS) or have filed business or self-employment income tax returns with the IRS based on work or service performed the previous calendar year;
  2. Maintain a separate business establishment from the hiring business;
  3. Perform work that is different than the primary work of the hiring business and perform work for other businesses;
  4. Operate under a specific contract, and is responsible for satisfactory performance of work and is subject to profit or loss in performing the specific work under such contract, and be in a position to succeed or fail if the business’s expenses exceed income.
  5. Obtain a liability insurance policy (and if appropriate, workers’ compensation and disability benefits insurance policies) under its own legal business name and federal employer identification number;
  6. Have recurring business liabilities and obligations;
  7. If it has business cards or advertises, the materials must publicize itself, not another entity;
  8. Provide all equipment and materials necessary to fulfill the contract;
  9. Control the time and manner in which the work is to be done; and
  10. The individual works under his/her own operating permit, contract or authority.
  ]]>Gregory Lois, Esq.Firm News2011-01-07T13:21:22-05:00www.greglois.com/files/f426d6ab1f93965de58e2052e274b05f-182.html#unique-entry-id-182www.greglois.com/files/f426d6ab1f93965de58e2052e274b05f-182.html#unique-entry-id-182
  • "New York Workers' Compensation Medical Treatment Guidelines" for Applied Risk/Continental Indemnity, Omaha, Nebraska. January 6, 2011.
  • "New York and New Jersey Workers' Compensation Update" for Great West Casualty Company, South Sioux City, Nebraska. January 7, 2011.
  
  For attendees: Here is a link to sign up for our e-newsletter.]]>Gregory Lois, Esq.New Jersey2011-01-01T08:04:36-05:00www.greglois.com/files/75af8433a6d494da0a4fca604e25d07a-212.html#unique-entry-id-212www.greglois.com/files/75af8433a6d494da0a4fca604e25d07a-212.html#unique-entry-id-212here. (Caution: links to PDF).]]>Gregory Lois, Esq.New Jersey2010-12-06T22:14:00-05:00www.greglois.com/files/847bd47d95baf631855d05827c611cea-177.html#unique-entry-id-177www.greglois.com/files/847bd47d95baf631855d05827c611cea-177.html#unique-entry-id-177Williams v. Port Authority of New York and New Jersey) in an extraterritorial occupational disease case in order to secure jurisdiction of the New Jersey Workers' Compensation Court the claimant must show
  
  • (1) period of substantial work exposure in New Jersey in consideration of the totality of the circumstances and given the nature of the injury;
  
  
  • (2) if the exposure was not substantial then the materials to which the claimant were exposed must be highly toxic; or
  
  
  • (3) the alleged occupational condition o disease must have been disclose door made obvious while working in New Jersey.
  
  Under these tests, the New Jersey workers' compensation judge found that the New Jersey work experience of the claimant was 'de minimis.' The Judge noted that the claimant was well-aware of his conditions and the possibility that those physical conditions were related to his work. The Judge found that the record was barren of medical evidence of 'actual aggravation' of the underlying conditions. Finally, he claimant's doctor (Dr. Ralph Cataldo) issued an opinion that the Judge of Compensation ruled was merely a 'net opinion' and without basis in fact.
  Case: Gerard McGlinsey v. George B. Buchanan Company, A-4653-08T3 (N.J. App. Div. Decided Sept. 30, 2010). Unreported.]]>Gregory Lois, Esq.New Jersey2010-12-05T23:07:26-05:00www.greglois.com/files/d2d8523c59c660793640fcc2250fcde3-181.html#unique-entry-id-181www.greglois.com/files/d2d8523c59c660793640fcc2250fcde3-181.html#unique-entry-id-181On March 11, 2006 the employee had to work overtime. He did strenuous work in a hot environment. While working, he complained to a co-worker of feeling unwell. At the suggestion of the co-worker, the claimant went home early.
  The next day the claimant went to the emergency room and was diagnosed as having had a heart attack. A cardiac cauterization was ordered, and the employee died 11 days later.
  The claimant's widow filed a dependency claim petition, alleging that his death resulted from the strenuous condition and the heart attack. Both sides selected experts. Claimant's expert (Dr. Malcolm Hermele) opined that the heart attack occurred on the day the claimant worked overtime, ad the work effort materially contributed to the attack.
  Respondent's expert opined that the claimant had a long standing unstable angina. According to the employer's expert, unstable angina is characterized by chest pain that develops with activity and subsides with rest.
  After hearing the testimony of both doctors, the Judge of Compensation found that the work effort caused the cardiac event. Although the employer's expert testify that the claimant had unstable angina and that the heart attack would have occurred even if the employee had not worked overtime, the Judge found that the heavy labor occasioned by the overtime work materially contributed to the heart attack.
  This case demonstrates that where your defense expert opines the 'cardiac event would have curried anyway' that is not enough to prevail when the claimant can show (1) increased work effort and (2) that the cardiac event occurred while working.
  Case: Carol Reading v. Glen Gery Shale and Brick Company, A-1525-09T3 (N.J. App. Div. Decided Oct. 22, 2010). Note: I couldn't find a link to the final decision online - just the Appellate Division's notice the decision was issued. Contact me to request a copy of the decision.]]>Gregory Lois, Esq.New Jersey2010-12-05T23:00:01-05:00www.greglois.com/files/94a514e7d5b079d17a0500205bf62d21-180.html#unique-entry-id-180www.greglois.com/files/94a514e7d5b079d17a0500205bf62d21-180.html#unique-entry-id-180Eventually the customer saw the claimant following him and fled the store. The claimant chased after him, breaking into a run. After running about 50 yards, the claimant was out of breath and seeing stars so he broke off the pursuit.
  After doing some personal banking, the claimant returned to the store and complained about being out of breath. An ambulance was called, the claimant was taken to the emergency room. He was released without a diagnosis.
  Two days later the claimant returned to the hospital and was diagnosed as having had an acute stroke or strokes. The claimant now alleges he has no sensation on the right side of his body,has problems remebering things, and needs a cane to walk. He filed a New Jersey claim petition alleging that the 50-yard pursuit of the possible shoplifter through a J.C. Penney store (but not the store he actually worked in) on his day off caused him to have a compensable cardiovascular event.
  The issue before the workers' compensation court was whether the petitioner met his bred of proof under the New Jersey Workers' Compensation Act. The law requires that any claim for cardiovascular event (heart attack, angina attack, stroke, etc) must be proven by a showing that the precipitating event that allegedly caused the cardiac incident was the result of a strain in excess of the wear and tear of the activities of daily living. This effectively shifts the burden of proof to the claimant to make a prima facie showing - and in this case, the expert doctors each had an opinion as to whether the running event caused the stroke two days later.
  The expert doctors hired by each side gave predictably conflicting opinions at the trial. The Judge of Compensation found that the claimant's expert was not as credible as the employer's expert, and the case was dismissed.
  On appeal, the reviewing court found that the Judge of Compensation's reliance on the defense expert was well-placed as the employer's expert was better qualified. The employer's doctors was a board-certified neurologist while the claimant's expert was a psychiatrist.
  Of note: an interesting aside in this case was that the respondent;s expert came up with a new alternate theory of causation on the eve of trial - but the Judge of Compensation refused to allow the expert to testify about the new theory because the defense expert had not provided a supplemental report to claimant's counsel prior to trial. On the stand the defense expert did not testify about his new theory of causation. However, claimant's counsel "opened the door" into this alternate theory of causation by asking the employer's expert to explain "how the stroke occurred." In response, the employer's expert testified based on his new alternate theory. The Judge of Compensation was able to rely upon this previously-barred testimony!
  The Take-away: Never ask an opposing expert to explain their opinion - it opens the door for the opposing expert to expand upon their earlier opinions and maybe introduce a new theory of causation for you to combat at trial!
  Case: Thomas McKeever v. J.C. Penney, A-0992-09T1 (N.J. App. Div. Decided Oct. 18, 2010). Unpublished.]]>Gregory Lois, Esq.New Jersey2010-12-05T22:55:39-05:00www.greglois.com/files/9a459e981233fa00d7b3f5a55d9232c5-179.html#unique-entry-id-179www.greglois.com/files/9a459e981233fa00d7b3f5a55d9232c5-179.html#unique-entry-id-179This is a drop of two dollars ($2) from last year's maximum rate ($794).
  Despite this drop, New Jersey's Compensation Rating and Inspection Bureau (NJ CRIB) announced a 1% rate hike. CRIB blames the 1% increase in rate on rising medical costs as a component of workers' compensation premiums.]]>Gregory Lois, Esq.Video2010-12-05T22:10:43-05:00www.greglois.com/files/da3a7472b7277a9323ff4132e2c97743-176.html#unique-entry-id-176www.greglois.com/files/da3a7472b7277a9323ff4132e2c97743-176.html#unique-entry-id-176]]>Gregory Lois, Esq.New York2010-12-01T22:24:00-05:00www.greglois.com/files/d177502745bf52d87a095996c8c2f48a-178.html#unique-entry-id-178www.greglois.com/files/d177502745bf52d87a095996c8c2f48a-178.html#unique-entry-id-17812 N.Y.C.R.R. 324.3.
  Variance Basics
  A variance is a license to do something that varies from the MTG (Please read my post on the MTG). A treating medical provider must request this approval from the carrier. A variance request must be made even if the claim is controverted or the time to controvert the case has not yet expired.
  A variance request must be made before treatment is provided that differs from the Guidelines. Requests made after treatment that differs from the MTG has already been provided will not be considered.
  A variance will be sought in four circumstances:
  • EXTRA-MTG: The treating doctor believes that the claimant would benefit from medical care that is not within the MTG;
  
  
  • NOT RECOMMENDED BY THE MTG: The treating doctor believes that the claimant would benefit from medical care that is within the Guidelines but not recommended;
  
  
  • NOT YET RIPE: The treating doctor believes that the claimant would benefit from medical care that is within the Guidelines but not specified at that point in the claimant's treatment; or
  
  
  • FREQUENCY: The treating doctor believes that the claimant would benefit from medical care that is within the Guidelines but exceeds the maximum number or frequency limit for that particular treatment.
  Variance requests must be made on Form MG-1, 'Attending Doctor's Request for Approval of Variance and Carrier's Response.' The treating physician must complete all of the sections of the Form MG-2, which includes information about the claimant, employer, carrier, the Medical Treatment provider, the body part, the section of the MTG that applies, the specific treatment requested, a statement as to why the treatment is medically necessary, reference to records in the WCB's file, and a certification that the claimant understands and agrees to undergo the proposed medical care.
  It is possible for attending doctors to request treatment which is not addressed specifically in the MTG. In those cases, the attending doctor is not seeking a variance from the Guidelines as much as they are asking for permission to do something not contemplated by the MTG. In those cases, the attending doctor must show the same proofs as a doctor seeking simple variance. See N.Y.C.R.R. Section 324.5.
  If more than one Treating Medical Provider needs a variance for more than one procedure or test at the same time, Form MG-2.1 should be used. The MG-2 form must be transmitted the same day to the WCB, the carrier, the claimant, and claimant's attorney. Form MG-2 must be sent by either email or fax - mail is acceptable only if the provider does not have fax or email capabilities. N.Y.C.R.R. Section 324.3(a)(3). This is likely to cause problems as the attending doctor is unlikely to have an email address for the claimant or the claimant's attorney. All carriers are required to designate a 'qualified employee' to receive these requests and the WCB is publishing all of the 'qualified employees' contact info on the WCB website.
  The medical provider requesting the variance has the burden of proof to show that the treatment requested is appropriate and medically necessary for the claimant. N.Y.C.R.R. Section 324.3(a)(2). The attending doctor requesting the variance must provide:
  • the basis for the opinion that the specified treatment or test is appropriate and is medically necessary;
  • a statement that the claimant agrees to the proposed medical care;
  • an explanation why alternatives contained within the Guidelines are not appropriate or sufficient; and
  • any signs or symptoms which failed to improve with treatment provided in accordance with the Guidelines; or
  • the objective improvements made by particular treatment and the expected improvements with more of the same treatment. See N.Y.C.R.R. 324.3(a)(3).
  The attending doctor may also submit copies of relevant articles from peer-reviewed medical journals which lend support for the variance request but ONLY for treatments not otherwise addressed by the MTG. If the claimant is seeking a treatment (like discography) which has been specifically eliminated by the MTG, then NO AMOUNT of contrary articles in support of the procedure will be persuasive. The attending doctor must make reference to medical reports that get attached to the MG-2 form or already within the WCB's file (E-case).
  Insurance Carrier Actions
  Each carrier is required to designate a 'qualified employee' who the WCB may contact about any variance requests. The WCB then publishes these contacts on its website. This should aid the treating physicians with identifying who to send the request for variance to.
  Upon receipt of a variance request the carrier must decide if it will obtain an IME or review of the records report. If the carrier is going to obtain an IME or records review, the WCB must be notified within 5 business days of receipt. (Receipt of variance is calculated as 'same day' if email or fax transmission is used; if sent by mail then receipt is 5 business days after treating doctor certified it was mailed). The carrier notifies the WCB that they are obtaining an IME or records review by completing Section "D' of the MG-2 form.
  If the carrier decides not to get an IME or records review, then the carrier must transmit its response within 15 calendars after receipt of the variance request. If the carrier has selected to get an IME or records review, the response is due within 30 days from receipt of variance request. Obviously, this creates an enormous burden for carriers: it will be a challenge to get an IME scheduled and completed and a report generated and reviewed within 30 days from receipt of a variance request. One response to this time challenge may be to get examining physicians to set one day aside per month for these 'emergent' variance review IMEs.
  The possible responses to a variance request are:
  • Approval;
  • Denial. Remember to issue a denial even if you have already filed a C-7 to controvert the case - controverting the case is not enough - the WCB can rule on variance requests where no denial was issued.;
  • "Grant without prejudice." This is only available if the claim has been controverted or the time to controvert the claim has not yet expired.
  • Do nothing. if this happens (you do not respond within the time limitations) the Chair will issue an Order of the Chair. This decision will likely result in an approval of the variance. An Order of the Chair issued under these circumstances (untimely or no response) is not subject to an appeal under WCL Section 23.
  Denials
  The carrier must explain any denial of requested variance in Section "E" of Form MG-2. Any reason for denial that is not raised is deemed waived. The possible grounds for denial are:
  
  • The medical care requested has already been rendered (if the request was submitted after treatment already rendered, an IME or records review is not necessary, See N.Y.C.R.R. 324.3(i)(b));
  • The Treating Medical Provider did not meet the burden of proof (appropriateness and medical necessity);
  • The treatment requests is not medically necessary or appropriate for the claimant - this would be coming from your IME or records review; or
  • The claimant failed to appear for the scheduled IME examination. In this situation, the WCB may extend the time for IME by thirty days. See N.Y.C.R.R. 324.3.
  If the denial is based on the grounds that the treatment sought is not medically necessary or appropriate, the carrier must:
  
  • Have the case reviewed by its own medical professional, independent medical examiner, or records reviewer;
  • Attach the written report of its own medical professional, independent medical evaluator, or records reviewer;
  • Submit citations to peer-reviewed medical journals in support of the denial (if such articles formed the basis of the denial).
  What Happens After a Denial?
  There are three pathways for resolution to a denied variance request. The first path to resolution is 'informal' discussions between the medical care provider seeking the variance and the carrier. The parties have 8 business days to attempt an informal resolution - and if the dispute can be resolved, the insurance carrier confirms the agreement by completing Section "G" ('Carrier's Granting of Attending Doctor's Variance Request after Initial Denial').
  If 'informal' resolution fails, the treating doctor notifies the claimant and claimant's counsel. The claimant can then seek review of the denial by the Board. If the claimant decides to request review, a request for review must be filed within 21 business days of the receipt of denial (once again, 'receipt' is deemed the date of transmission of the denial was sent via fax or email and 5 business days of the denial was sent via mail). If the claimant is represented, the request for review must be on the Form MG-2 (Section F). if the claimant is not represented, the request for review must be in writing (but does not have to be on Form MG-2).
  When informal resolution fails and the claimant requests a review, there are two pathways the review can take:
  
  • Submission to a medical arbitrator if both parties agree in writing to the submission; or
    
  • By a Workers' Compensation Law Judge through the expedited hearing process ("Rocket Docket").
  The choice of either medical arbitration or 'rocket docket' is up to the claimant - the claimant elects the method for resolving the dispute on Section "F" of Form MG-2. If the claimant is not represented then they have 14 days after the WCB responds to select either an expedited hearing or medical arbitration. If the claimant makes no choice the case is set for an expedited hearing.
  The carrier may also elect either expedited hearing or medical arbitration - but in the case of arbitration the claimant must agree to it. The 'default' position is that if the carrier makes no election, the case will be set down for expedited hearing.
  Medical Arbitrator Process
  By agreeing to have the denial of waiver decided by a medical arbitrator, the parties give up the right to an expedited hearing and accept a final decision that CANNOT be appealed under WCL Section 23 (so don't file an RB-89 if you are unhappy with the outcome!). The review is conducted without participation of the parties - the arbitrator reviews the request for review, variance request, and denial (and all papers including medical reports, IMEs or record reviews, and articles from peer-reviewed journals). The Medical Arbitrator then issues a notice of resolution setting forth the ruling and the basis for the ruling.
  Expedited Hearing Process
  The expedited hearing will be held within 30 days after the period of informal resolution has ended and the matter could not be resolved informally. One or both parties must request the expedited hearing (or not waive the right to expedited hearing). Medical testimony will be taken. If the claimant is unrepresented then medical testimony is always taken at the hearing. if the claimant is represented, then medical testimony may be by submission of deposition transcripts at the hearing (the transcripts must be submitted to the WCB at or before the expedited hearing). Adjounrments are possible, but only for up to 30 days and only for cases in involving complex medical issues of causation or diagnosis.
  Which Should I choose: Medical Arbitrator or Expedited Hearing?
  At the time of this writing (November 2010) there is no way of knowing which of the the formal paths to resolution will work most to the favor of the carrier. However, I Director recommend that medical arbitration be considered. Why? Because the medical arbitration is conducted by the offices of the Medical Director. The Medical Director was behind the new Medical Treatment Guidelines, so if a 'strict' interpretation of the MTG is desired, one would hope the party that had a large hand in drafting the new MTG would be inclined to affirm the medical treatment paths under the MTG.
  Ultimately, the choice will reside with the claimants: unless the claimants agree to medical arbitration, the matter goes to expedited hearing.
  
  

  Important timelines for variance requests:

  • 5 (five) business days to respond if obtaining an IME;
  • 15 (fifteen) days for a final response if not obtaining an IME;
  • 30 (thirty) days for a final response along with a copy of the IME;
  • 8 (eight) business days to discuss denial informally;
  • 21 (twenty one) business days for claimant to request review.
  
  Questions? Contact me.]]>Gregory Lois, Esq.Video2010-11-14T20:38:50-05:00www.greglois.com/files/5fe9e3b0c76e08f3e984b29f7e799ca3-175.html#unique-entry-id-175www.greglois.com/files/5fe9e3b0c76e08f3e984b29f7e799ca3-175.html#unique-entry-id-175
  ]]>Gregory Lois, Esq.Events2010-11-09T16:19:15-05:00www.greglois.com/files/bc1ba05ab948025d4fb0806276451731-171.html#unique-entry-id-171www.greglois.com/files/bc1ba05ab948025d4fb0806276451731-171.html#unique-entry-id-171
  • "New Jersey Workers' Compensation 101" for North American Risk Services, Maitland, Florida. November 5, 2010.
  
  
  • "Workers' Compensation Update" for Gallagher Bassett Services, North Syracuse, New York. November 8, 2010.
  
  For attendees:
  Here is a link to sign up for our e-newsletter.]]>Gregory Lois, Esq.New York2010-11-08T21:35:15-05:00www.greglois.com/files/97c2e438984517ecc201777f046fbfc3-174.html#unique-entry-id-174www.greglois.com/files/97c2e438984517ecc201777f046fbfc3-174.html#unique-entry-id-174Medical Treatment Guidelines (MTG) are the mandatory standard of care for injured workers regardless of the date of injury. All medical care to the neck, mid- and low back, shoulder and knee must be consistent with the MTG. All medical care required by the MTG is deemed 'authorized' by the respondent, with the exception of 13 treatments/procedures which require carrier authorization.
  
  The Optional Prior Approval process allows a medical treatment provider the opportunity to confirm that medical treatment is consistent with the MTG. See N.Y.C.R.R. 324.4. While participation in this process is voluntary, as of the date of this writing all carriers have been "opted in" to this system. In order to 'opt out' a carrier or third-party administrator must issue a written notice of the desire to get out, and must give the Chair 60 days notice.
  
  The carrier must provide a qualified employee as a point of contact for the medical providers. The required point of contact information is to be placed on the WCB's website. Medical providers must submit a written form (Form MG-1 for the first request and Form MG-1.1 for all subsequent requests) and are encouraged to call the qualified employees directly to discuss authorizations.
  
  Medical providers must use Form MG-1. Form MG-1 must be sent using "same day transmission" (either fax or email) to the carrier. The carrier has eight (8) days to respond. The carrier can respond one of three (3) ways:
  
  1. Grant the request;
  
  
  2. Grant the request Without Prejudice; or
  
  
  3. Deny the Request.
  If the request is denied because the requested medical treatment departs from the MTG, further explanation is not required - the carrier should note which specific MTG section supports the denial. The denial must include the name of the medical professional (and that could be a LPN, PA-C, MD, or RN) who reviewed the request along with the MTG section that supports the denial. However, this medical professional (who reviewed the request on behalf of the carrier) does not have to sign the Form MG-1.
  If the request is denied, the medical care provider has 14 days to request a review of the denial. The matter then goes to the Medical Arbitrator who will issue a decision within 8 days. The decision of the medical Arbitrator is not appealable under WCL Section 23.
  Please note: if the carrier fails to respond to the 'Optional Prior Approval Request' a 'Notice of Resolution' will be issued approving the procedure and the carrier loses the ability to challenge the necessity or appropriateness of the treatment later.
  
  This process is only to be used for knee, neck, shoulder, and mid- and low back cases. The claim does not have to be established for this process to be used.
  
  Question about the Optional Prior Approval procedure? Contact me.]]>Gregory Lois, Esq.New York2010-11-08T20:01:52-05:00www.greglois.com/files/3cfb20888919ec8ff59f632835210b15-173.html#unique-entry-id-173www.greglois.com/files/3cfb20888919ec8ff59f632835210b15-173.html#unique-entry-id-173
  In General
  On December 1, 2010, the Medical Treatment Guidelines become the mandatory standard of care for injured workers, regardless of the date of injury or accident. N.Y.C.R.R. 324.2. Medical care providers are required to treat all existing and new workers' compensation injuries in accordance with the Medical Treatment Guidelines (MTG) which are incorporated by reference into the regulations. The MTG body-part specific guidelines are:
  
  
  
  • New York Mid and Low Back Injury Medical Treatment Guidelines, First Edition, June 30, 2010. Link here (Warning: Links to a large PDF file!)
  
  
  • New York Neck Injury Medical Treatment Guidelines, First Edition, June 30, 2010. Link here (Warning: PDF)
  
  
  • New York Knee Injury Medical Treatment Guidelines, First Edition, June 30, 2010. Link here (Warning: PDF)
  
  
  • New York Shoulder Injury Medical Treatment Guidelines, First Edition, June 30, 2010. Link here (Warning: PDF)
  
  Note: all of these Guidelines self-referentially describe themselves as a "First Edition." In training delivered to attorneys by the WCB on November 3, 2010, Elain Sobol-Berger, JD/MD, the WCB's Associate Medical Director, stated that the WCB expects to update these Guidelines as necessary.
  
  Medical care provided to injured workers must satisfy a two-prong test:
  
  (1) Medical care for workers' compensation injuries to the neck, low back, mid back, shoulder, and knee must be provided in a manner "consistent with the MTG." This is the standard for doctors and health care providers to follow.
  (2) "Consistent with the MTG" means that care is provided within the criteria and based upon a correct application of the MTG. What is "within the criteria" and "a correct application" is left open for the WCB's WC Judges to interpret.
  
  The Medical Treatment Guidelines include statements of "General Principles" in each MTG's first section. These are the key principles necessary to apply and interpret the MTGs. There are 23 general principles divided into 6 categories. Of these, the two most important are:
  
  (1) Medical Care. The purpose of medical care is to restore functional ability required to meet daily and work-related activities, to obtain a positive patient response primarily defined as functional gains which can be objectively measured, and to provide effective treatment which includes evaluations and re-evaluations of treatment and which discontinues ineffective treatments.
  (2) Treatment approaches. Treatment should emphasize active interventions over passive modalities (i.e., therapeutic exercise instead of manipulation), should include passive intervention as a means to facilitate progress in an active rehabilitation program, and should resort to surgical interventions only when there is correlation of clinical findings, clinical course, imaging and other diagnostic tests.
  
  When are Authorizations Required?
  All medical consistent with the MTG is pre-authorized and the health care provider is not required to obtain prior authorization. See N.Y.R.R.C. 324.2(d)(1). There are twelve (12) exceptions to this rule which are defined in the regulations and one (1) additional exception defined in the regulations. So, in total there are thirteen official exceptions - 13 specific procedures that a doctor must get pre-authorization to do.
  
  Now, if you pay close attention, you will realize that these "thirteen exceptions" are really 20 exceptions. Check out the WCB's published list of procedures that require the health care provider to obtain pre-authorization.
  
  
  
  • Mid- and Low Back: lumbar fusion, vertebroplasty, kyphoplasty, and spinal cord stimulator;
  
  
  • Neck and Low Back: artificial disc replacement and spinal cord stimulator;
  
  
  • Shoulder: anterior acromioplasty;
  
  
  • Knee: Chrondroplasty, osteochondral autograft, autologous chrondrocyte implantation, meniscal allograft transplantation and knee arthroscopy (total or partial knee replacement); and
  
  
  • Duplicative surgery/treatment.
  
  If you list all these procedures separately, you see that there are actually 20 different procedures or treatment scenarios listed here - 6 for the low back, 4 for the mid back, 2 for the neck, 6 for the knee, 1 for the shoulder, and all 'duplicative treatment.'
  Add them up: 6 + 4 + 2 + 6 + 1 + 1 = 20!
  
  Providers who want to perform one of these procedures must request pre-authorization from the carrier before performing the procedure. In addition, the MT specifically forbids any "medical treatment that is experimental and not approved by the FDA." If the MTG do not address a condition, treatment or diagnostic test for one of the covered body parts, then a variance request can be made to determine whether a carrier will be obligated to pay for the treatment or medical care.
  
  Duplicate surgery or treatment is not 'automatically' authorized. Referred to by practitioners as the "13th Exception" this exception requires a medical provider to seek prior approval for repeat or revision care - for example, removal of hardware in a failed fusion attempt.
  
  Questions about the new Medical Treatment Guidelines? Contact me.]]>Gregory Lois, Esq.Medicare2010-11-08T16:07:29-05:00www.greglois.com/files/09129916da8761481181fe89915541fc-169.html#unique-entry-id-169www.greglois.com/files/09129916da8761481181fe89915541fc-169.html#unique-entry-id-169
  In a recent visit to a client in Florida, I found myself defending the New Jersey practice of having the claimant's attorney obtain any necessary Medicare Set-Aside waivers or approvals. The best defense for this practice is that at least it is a reputable attorney doing the advocacy - with an interest in getting the lowest possible set-aside approved.
  
  You see, I am just not convinced that these 'compliance specialists' are strong advocates for cramming down Medicare's alleged interest. They may come up with the lowest possible future medical cost projections to submit to Medicare but where is the advocacy to fight to get that projection approved?
  
  And what happens if Medicare decides later that the Set-Aside was underfunded? These snake oil salesman will be long gone, and even if they are still around, they have no duty to defend you, and no legal liability for the challenged Set-Asides.
  
  The downside to having attorneys obtain the MSA waivers or approvals is that it is slower.
  
  OK. That may be true, but a little delay is a tradeoff I am willing to make for accountability and advocacy.]]>Gregory Lois, Esq.New York2010-11-01T16:32:04-04:00www.greglois.com/files/f15515050881b80a8f8ebc8d556600d5-172.html#unique-entry-id-172www.greglois.com/files/f15515050881b80a8f8ebc8d556600d5-172.html#unique-entry-id-172
  Put simply, a variance request is where a medical provider is asking for authorization to depart from the medical treatment guidelines in case of emergency or medical plateau without improvement.
  
  Register here.]]>Gregory Lois, Esq.New York2010-10-28T16:17:59-04:00www.greglois.com/files/3d461750cab5ff676448769a69691cb2-170.html#unique-entry-id-170www.greglois.com/files/3d461750cab5ff676448769a69691cb2-170.html#unique-entry-id-170The 2007 changes in the law also created an 'Aggregate Trust Fund.' Under the new law, the carrier must pay the 'present value' of any permanent partial disability directly into the Aggregate Trust Fund, which then doles out the payments to the claimant.
  
  There have been a number of cases where the claimant was injured before March 13, 2007, but not classified as having a permanent partial disability until after July 1, 2007. Employers in this circumstance DO NOT get the benefit of a 'capped' number of weeks - because the injury occurred before the reform legislation became law on March 13, 2007. Employers in this circumstance MUST deposit the 'present value' of the claimant's (potentially) lifetime benefit into the Aggregate Trust Fund.
  
  Employers and insurance carriers argued that the value of the potentially-lifetime benefits was 'speculative' and they would be required to make enormous deposits with the Aggregate Trust Fund.
  
  This matter came before the Appellate Division which ruled that
  (1) cases where the injury occurred before the new law was enacted do not get the benefit of capped weeks; and
  (2) deposit of permanent partial awards not subject to capping must be done. The carriers were directed to deposit funds as computed by the Workers' Compensation Board.
  
  Case: Matter of Garcia v. Wings Digital, (N.Y. App. Div. decided October 14, 2010).]]>Gregory Lois, Esq.Workers Compensation2010-10-18T16:03:48-04:00www.greglois.com/files/9c48d0139c299d4f0d0d94c02d772cc8-168.html#unique-entry-id-168www.greglois.com/files/9c48d0139c299d4f0d0d94c02d772cc8-168.html#unique-entry-id-168A new case (U.S. vs. Stricker, decided September 30, 2010) has established the statute of limitations period for a claim under the Medicare Secondary Payer Act.
  
  The Medicare Secondary Payer Act is a Federal statute that enables Medicare to recover money spent during the pendency of a workers' compensation or civil claim ('conditional payments') or will have to expend in the future (depending on the size and type of settlement). Applying the Medicare Secondary Payer Act to the workers' compensation context has been challenging - we have devoted chapters to this subject in our New York and New Jersey Workers' Compensation handbooks).
  
  We previously reported on the Stricker case back in January. In Stricker, Medicare brought actions against the attorneys and insurance carriers involved in a toxic-tort lawsuit. Medicare argued that the attorneys and the corporate defendants had failed to take Medicare'r recovery interests into account and had disbursed the settlement proceeds inappropriately.
  
  In a stunning decision, The United States District Court for the Northern District of Alabama just ruled that Medicare's claims were to be dismissed for failing to file their lawsuit within the applicable Statute of Limitations time periods.
  
  The Federal Court ruled that under the 'Federal Claims Collection Act' ("FCCA") (28 U.S.C. 2415) a three-year statute of limitations applied to the corporate defendants. The Federal judge also ruled that a six-year statute of limitations applied to the attorney defendants (the attorneys who represented the claimants in those cases).
  
  The federal court also ruled that the statute of limitations started running for the corporate defendants "on the date that the settlement was approved by the state Court." In regards to the attorney defendants, the date of accrual for the statute of limitations was the date they received the first settlement payment. The different defendants each had different applicate statutes of limitations because the FCCA treats 'primary payers' (corporate tort defendants) differently than attorneys, who have a 'express contractual agreement' with the Medicare beneficiaries - namely, the attorney-fee agreement between them.
  
  This outcome means that all of Medicare's claims for reimbursement in this case were dismissed. It is also interesting in that the settlement money pool ($300 Million in all) was funded over a period of years (the corporate defendants are scheduled to contribute additional funds to the settlement fund over a period of nine years - in fact they are still paying into the settlement fund (and will continue to pay until 2013).
  
  For carriers and corporate defendants - this means that MSP has a three-year statute of limitations from the date the settlement is approved by the workers' compensation court or state court. ]]>Gregory Lois, Esq.New York2010-09-27T21:44:25-04:00www.greglois.com/files/515a7e2aacbc1ce4b39704829a5951e6-167.html#unique-entry-id-167www.greglois.com/files/515a7e2aacbc1ce4b39704829a5951e6-167.html#unique-entry-id-167The Colbert ReportMon - Thurs 11:30pm / 10:30cWorkers' Comp Temptationwww.colbertnation.com

  Colbert Report Full Episodes

  2010 Election

  Fox News

  
  
  
  ]]>Gregory Lois, Esq.Events2010-09-26T07:50:32-04:00www.greglois.com/files/9245de18c0e29e63b7396237e2eea6ae-166.html#unique-entry-id-166www.greglois.com/files/9245de18c0e29e63b7396237e2eea6ae-166.html#unique-entry-id-166North Jersey Claims Association on September 23, 2010. I had a really great time sharing with this growing group.
  
  I talked about two new cases and the practical applications for claims professionals. The first case dealt with 'bad faith' on the part of a carrier and the second was on Medicare Secondary Payer (links are to places where I've discussed the two cases - Davis and Jackson, elsewhere).
  
  Some links for attendees:
  Here is a link to my 'checklist' for handling cases with Medicare complications; and
  Here is a link to sign up for our e-newsletter.]]>Gregory Lois, Esq.New Jersey2010-09-20T10:09:53-04:00www.greglois.com/files/e3578816e2f9471ae8853ac57a53cea2-162.html#unique-entry-id-162www.greglois.com/files/e3578816e2f9471ae8853ac57a53cea2-162.html#unique-entry-id-162available to clients for free and the New York book will be offered on Amazon.]]>Gregory Lois, Esq.New York2010-08-20T10:04:47-04:00www.greglois.com/files/f992d7a6982952496cd071023490d2d8-161.html#unique-entry-id-161www.greglois.com/files/f992d7a6982952496cd071023490d2d8-161.html#unique-entry-id-161
  The WCB did not like this at all. In a decision issued last month, the WCB said the new policy "places an additional burden upon an injured worker at a time when the claimant is not medically able to return to the workplace." They called the policy ‘illegal.’
  
  The Collins administration fired back, saying that the board lacks the authority to halt Erie County's new policy and that it will continue, at least for workers with temporary injuries.
  Erie spokesman Grant Loomis blasted the comp board: "We were not surprised that a board full of Albany bureaucrats would raise objections to getting municipal workers back to work as soon as possible."
  
  Loomis said Collins wants to revise the program to call in only the recently injured who might have substantially recovered and can perform light tasks, currently about two dozen people. Collins wants workers to receive their checks directly from their supervisors, who then would ask whether they could return to work in some capacity.
  
  Oh, and where are the employees to pick up their checks? The Sheriff's offices. Maybe that will dissuade any potential fraudsters!
  
  We always recommend that our clients try to accommodate injured employees with ‘light duty’ work restrictions, because we feel that having the employee come to the workplace every day, even if just to sharpen pencils, encourages them to come back to work. In this case, isn’t County Exec Collins trying to do just the same thing?
  
  The fight is in the courts, and we will keep you updated. (More info: http://www.buffalonews.com/city/article85848.ece)]]>Gregory Lois, Esq.Workers Compensation2010-08-11T10:20:51-04:00www.greglois.com/files/09841b8f6387ce53f5c804c95f43f189-165.html#unique-entry-id-165www.greglois.com/files/09841b8f6387ce53f5c804c95f43f189-165.html#unique-entry-id-165
  The case arose on a complicated set of facts. For the purposes of this article, we focus on the facts in the workers' compensation case that led to the ruling finding that an injured worker could proceed in civil court to recover damages against a workers' compensation carrier for delays in treatment.
  
  The general rule in New Jersey allows no direct action available to an injured employee against the employer, or against the employer's insurer when the insurer does what is required under the Workers' Compensation Act and the carrier's insurance policy. Under normal circumstances, injured employees must pursue their exclusive remedies in the Division of Workers' Compensation, even when an employer, acting through its insurer, does not furnish necessary medical treatment when requested to do so by an employee.
  
  This 'general rule' is known as the exclusivity provision and it is enshrined in the New Jersey Workers' Compensation Act at N.J.S.A. 34:15-8.
  
  Here are the facts: On August 11, 2000, Frank Davis, Sr., suffered a serious injury to, among other things, his left shoulder while working for his employer, South Jersey Overhead Door Company (“Overhead Door”), in Vineland, New Jersey. As a result of the accident, Davis filed a claim petition in the New Jersey Division of Workers' Compensation. OneBeacon, identified in Davis's complaint as the workers' compensation insurance carrier for Overhead Door, selected and appointed Dr. Robert Dalsey, an orthopedic surgeon, to serve as the authorized treating physician to care for and treat Davis.
  
  On March 16, 2005, Dr. Dalsey evaluated Davis and recommended an MRI exam of his left shoulder. About a week later, avers Davis, “The Honorable Robert F. Butler, Judge of Compensation, entered an Order Approving Settlement of Plaintiff['s] ... claim for permanent disability benefits arising out of the August 11, 2000 accident, awarding 40% permanent partial total disability including, inter alia, 2.5 % permanent partial total disability stemming from tendinopathy and impingement syndrome of the left shoulder.”
  
  On March 15, 2006, Dr. Dalsey recommended that Davis undergo surgery for his left shoulder as a result of the August 2000 accident. Despite being advised of Dr. Dalsey's recommendation and several requests made by Davis, OneBeacon refused to authorize the surgery. Consequently, on September 20, 2006, Davis filed a Motion for Temporary Disability and Medical Benefits with the Division of Workers' Compensation (or, “the Division”), seeking to compel the treatment recommended by Dr. Dalsey along with temporary benefits.
  
  The Workers’ Compensation Ruling: On April 18, 2007, Judge Butler rendered his decision, finding that OneBeacon was obligated to authorize the shoulder surgery as recommended by Dr. Dalsey, its authorized treating physician, and that OneBeacon's refusal to authorize the surgery violated Section 15 of the Workers' Compensation Act (or, “the Act”), N.J.S.A. 34:15-1 et seq. , and was unconscionable. In reaching its conclusion that OneBeacon's violation of the Act was unconscionable, the Judge explained that OneBeacon's denial of surgery was not predicated on any sound medical basis, was made with disregard to the seriousness of Davis's injury and the possible consequences he could suffer due to a delay in treatment, and defied the recommendations of OneBeacon's own authorized physician.
  Further, Workers' Compensation Judge Butler suggested that, apart from the Act, Davis could pursue a civil remedy for his pain and suffering in another court.
  
  Judge Butler wrote in his opinion:
  
  "The additional and prolonged pain and obvious mental anguish of the Petitioner that has been caused by the appalling and unconscionable conduct of OneBeacon are neither cognizable nor compensable based upon the provisions of the Workers' Compensation Act. Only the nature and extent of the Petitioner's permanent disability following his recuperation from surgery is compensable in this court.
  . . .
  As regrettable as that may be, the Petitioner is not left without a possible source of redress against OneBeacon for his pain and suffering. The Court suggests that Petitioner's counsel direct his attention to the case of Rothfuss versus Bakers Mutual Insurance Company of New York, 107 N.J.Super. 189, 257 A.2d 733 (1969)."
  
  In apparent response to the Judge's opinion, Davis filed a two-count complaint in the Superior Court of New Jersey on April 13, 2009. In the first count, Davis alleges that OneBeacon's egregious refusal to authorize necessary medical treatment has caused him “injuries that are not compensable under the Workers' Compensation Act, including but not limited to, pain and suffering, deterioration, worsening, wasting, inability to return to work sooner, prolonged pain and mental anguish and severe emotional distress.” Further, in the second count, Davis's wife, Carolyn, asserts a claim for loss of consortium. Together, Davis and his wife sought compensatory and punitive damages, among other expenses.
  
  On August 17, 2009, defendant removed Davis's suit to Federal Court.
  
  The Federal Court ruled that an employee has a limited right to maintain a common-law cause of action against an employer's insurance carrier for willful failure to provide medical benefits in a circumstance where it ‘voluntarily undertook to examine and treat an injured employee by its own doctor ....‘ In particular, the court in Rothfuss, the panel clarified, “found that when the carrier failed to provide medical benefits that its own physician had deemed necessary, it opened the door to a common-law cause of action.”
  Under New Jersey law, an employee can state a common law cause of action against an employer's workers' compensation carrier, which was not categorically precluded by the Workers' Compensation Act, by alleging that carrier frivolously, negligently, willfully, wantonly and maliciously failed or refused to authorize the surgery recommended by its own authorized treating physician.
  
  Keep this new decision (decided June 28, 2010) in mind when making treatment decisions!
  
  In the wake of this decision it is clear that ‘bad faith’ civil claims are not limited to a situation where a party ignores a court order - a claimant can make a ‘bad faith’ civil claim anytime an employer selects an authorized doctor and then refuses to offer treatment recommended by that doctor.
  
  Case: Davis v. OneBeacon Insurance, --- F.Supp.2d ----, 2010 WL 2629053 (D.N.J.), decided June 28, 2010).
  ]]>Gregory Lois, Esq.New York2010-08-11T10:17:59-04:00www.greglois.com/files/eb8c411e7f36412da1fb405917f1e82d-164.html#unique-entry-id-164www.greglois.com/files/eb8c411e7f36412da1fb405917f1e82d-164.html#unique-entry-id-164
  At the 1998 appointment Poulton told his doctor he wanted to quit working.
  
  The doctor disabled him from work citing "old injuries and his continued decline." The doctor characterized the situation as involving "episodic increases in pain" that had troubled Poulton for several years. The doctor, in fact, had been encouraging Poulton to stop working prior to this particular visit. Poulton testified that he "had this type of pain even before [he] started working at Martec" and, in fact, had felt the same type of intense pain in the "same area of the body, same area of the back" as recently as one month before the June 7, 2006 incident. Furthermore, claimant's supervisor testified that claimant regularly complained of back pain and that, before June 2006, claimant stated that he might stop working and seek permanent disability benefits as a result of a back injury sustained at his former job.
  
  An independent medical exam determined that Poulton suffered from degenerative disc disease and that his disability was caused primarily by preexisting problems.
  
  So is this a new injury, as reported by Poulton, or simply the recurrence of an old one?
  
  Ruling
  The Workers' Compensation Board ruled in Poulton's favor, determining that the lifting incident at Martec aggravated the pre-existing condition. However, this ruling was reversed by the appellate division of the NY supreme court, which found no evidence of a new injury and remanded the case for further consideration.
  The Appellate Court said "Considering the foregoing and viewing the record as a whole, we conclude that the Board's finding that claimant sustained a new injury on June 7, 2006 is not supported by substantial evidence." In other words - Poulton had a pre-existing degenerative condition.
  
  Poulton is likely to go back into workers' compensation court, and this time will bring in the insurance company from 1998.
  
  The future for Poulton.
  The interesting thing about this decision - finding that there was no "new" injury - is that Poulton may end up with an award against the prior insurer but his lost time wages and scheduled loss of use award will be based on what he earned in 1998, as opposed to 2010. This will likely result in a much lower potential recovery.
  
  Case: Pulton v. Martec, 2010 NY Slip Op 06035, N.Y. App. Div. 3rd Dep't, decided July 7, 2010.
  
  ]]>Gregory Lois, Esq.New Jersey2010-07-07T10:14:30-04:00www.greglois.com/files/496097648cc61704268a2af119009ed4-163.html#unique-entry-id-163www.greglois.com/files/496097648cc61704268a2af119009ed4-163.html#unique-entry-id-163
  In 2001 Huntoon saw a new family doctor, still complaining of pain and numbness in her right hand. The new doctor diagnosed her as suffering from "right carpal tunnel syndrome" and prescribed a wrist brace.
  
  In 2003 Hunoon returned to her doctor, complaining about pain an dumbness in the right hand that would not go away. Once again, she was diagnosed with "carpal tunnel syndrome right keyboard use." Huntoon was referred to a hand surgeon, although she did not make an appointment or follow up on the referral.
  
  On two more occasions Huntoon sought care for her right wrist - again in 2003 and in 2004. She underwent an EMG/Nerve Conduction Velocity test which confirmed a 'severe degree' of carpal tunnel syndrome in the right hand.
  
  In 2007 Huntoon filed a claim petition alleging that she sustained injuries arising from an occupational exposure ("repetitive motion"). The employer filed an answering pleading denying the compensability of the hand injuries.
  
  Trial began in March 2009. During her testimony, the claimant recounted her treatment course (essentially as described above). After trial, the judge of compensation dismissed Huntoon's case - citing the law that requires an employee to file claims for work-related injuries within two years of learning of the condition's relationship to employment. This 'two year' time limit for filing claims is referred to as the 'Statute of Limitations.'
  
  N.J.S.A. 34:15-34 requires that “where a claimant knew the nature of the disability and its relation to the employment” all claims for compensation for compensable occupational disease must be filed within two years after that date.
  
  When an employee suffers and accident but neglects to file a claim petition within the two years, his claim is barred by the statute of limitations.
  
  In the Huntoon case, the judge of compensation found that at the very latest, the claimant knew she had work-related carpal tunnel in 2004, when she underwent testing (EMG/NCS) for the condition.
  
  The claimant appealed the dismissal ruling. On July 28, 2010 the reviewing court (New Jersey Appellate Court) affirmed the dismissal.
  
  This is a great case for the defense! The Appellate Judges rejected the petitioner's argument that the Statute of Limitations did not start running until the date of her last exposure.
  
  The Huntoon case demonstrates the value of a thorough investigation into the prior medical history of the claimant. By obtaining the claimant's lengthy prior medical history, which included the nine-year-old diagnoses of carpal tunnel, the employer was able to show the court that the claimant was well-aware of her allegedly-occupational condition long before she claimed it was work related.
  
  Case: Huntoon v. Borough of Clementon, A-956-09T3 (App. Div. decided July 28, 2010).]]>Gregory Lois, Esq.Medicare2010-06-30T16:40:11-04:00www.greglois.com/files/17ab17a37c1463de65785e67163c65bd-159.html#unique-entry-id-159www.greglois.com/files/17ab17a37c1463de65785e67163c65bd-159.html#unique-entry-id-159We think that the MSP Act applies to third-party liability cases.
  Although Medicare has not traditionally enforced its rights under the MSP with respect to third-party liability cases, it is clear that the Act applies to those cases. Lack of enforcement will likely soon change. All insurers, third-party health plans, self-insured plans, and self-administered plans must identify situations where the Plan is or has been primary to the Medicare program. The requirements of the MMSEA including the carrier/self-insured’s duties to identify claimants and provide “such other information as the Secretary may specify” certainly signal the beginning of an enforcement effort by CMS in third-party liability cases.
  It is true that there is not yet a “formal” CMS process in place for reviewing settlements in the liability arena as there is in the workers’ compensation world. However, CMS offices in Dallas and Atlanta have begun reviewing third-party liability settlements and granting approvals of set-aside agreements. At a CMS “town hall” meeting - a dial-in telephone conference call - which took place on March 16, 2010, CMS stated that “the obligation of liability settlements to protect CMS for past-due and future medical bills is exactly the same as the workers’ compensation side.” CMS said “[w]here future medicals are a consideration in arriving at a settlement, then appropriate arrangements should be made for appropriate exhaustion of the settlement before Medicare is billed for related services.”
  ]]>Gregory Lois, Esq.Medicare2010-06-30T16:37:05-04:00www.greglois.com/files/8ee835877bd82c5c35cb95f87cdd2222-158.html#unique-entry-id-158www.greglois.com/files/8ee835877bd82c5c35cb95f87cdd2222-158.html#unique-entry-id-158Liability insurers, self-insured defendants, and defense attorneys must take all steps necessary to ensure their compliance with the reporting requirements imposed by MMSEA Section 111. The MMSEA imposes substantial fines on ‘Responsible Reporting Entities’ (“RRE”) who fail to report qualifying claims. CMS may seek reimbursement from plaintiffs, defendants, carriers, and both the claimants’ attorneys and defense attorneys.
  Mandatory reporting was initially scheduled to begin July 1, 2009. This was pushed back to April 1, 2010 and now is set for January 1, 2011. RREs must register with CMS, and should have already done so.
  Triggers for reporting requirements include settling a claim with a payee who received Medicare payments. In addition, CMS has set a ‘declining’ table of reviewable claims values: $5,000 in 2010, $2,000 in 2011, and $600 in 2013. In other words, if a RRE is going to settle a claim for $601 in 2013, and the claimant is Medicare-entitled, the settlement must be reported to CMS. Even if the settlement falls below these “threshold” levels, Medicare’s reimbursement rights exist.
  
  
  Noncompliance can result in fines of up to $1,000 per day per claimant.
  
  During settlement negotiations, RREs and their representatives must take care to determine whether a claimant is a Medicare beneficiary and find out if there is a Medicare lien. The lien must be paid from settlement proceeds before money is distributed to the claimant and must be paid within 60 days of payment to the claimant.
  
  My guide for Complying with MMSEA
  
  Each carrier and self-insured must establish protocols to comply with the Medicare reporting requirements imposed by the “Medicare, Medicaid and SCHIP Extension Action of 2007” (‘MMSEA’). Each carrier and self-insured is left to its own devices to come up with these protocols. We have seen many of our clients turn to vendors to review claims and communicate with Medicare.
  My Checklist:
  Carriers must determine which claimants are Medicare beneficiaries and those non-Medicare beneficiaries who have a reasonable expectation of entitlement within 30 months of the settlement date.
  A claims representative should determine entitlement to Social Security and Medicare as early as possible in the file’s life. Warning flags include: (a) Has the claimant been out of work more than six months (SSD); (b) Has the claimant been off work for 30 months or longer (Medicare); (c) Was it a catastrophic injury?; (d) Is the settlement value over $250,000 (including the cost of medicals paid)?; (e) Does the claimant admit to applying for SSD and getting denied or is the SSD denial on appeal?; (f) Is the claimant aged 62 and six months old or older?; and (g) Does the claimant have end-stage renal disease?
  Our rule of thumb is that where the parties negotiate a settlement that terminates the obligation of the self-insured or carrier to pay for future medicals, even if the claimant denies being on Social Security Disability, independent verification should be obtained. A vendor can be used to identify Social Security recipients.
  If the claimant is on Medicare but the settlement is less than $25,000 (and forecloses the possibility of the carrier/self-insured being responsible for future medicals) CMS will not review the settlement and either ‘approve’ a proposed set-aside or ‘waive’ Medicare’s set-aside requirement. In such an instance, the carrier/self-insured can prepare their own set aside agreement with the claimant. At settlement, appropriate consent and/or testimony should be obtained from the payee, making sure they understand that the payee must ‘spend down’ the allocable amount with medical bills prior to submitting bills to the compensated injury to Medicare.
  One way of verifying that a payee is not on Medicare is to ask for copies of recent pay stubs. If the pay stubs are less than six months old, they cannot be a Medicare beneficiary.
  ]]>Gregory Lois, Esq.Events2010-06-17T16:44:30-04:00www.greglois.com/files/923e632168793083b115994bb903e161-160.html#unique-entry-id-160www.greglois.com/files/923e632168793083b115994bb903e161-160.html#unique-entry-id-160presenting on two topics for the Sussex-Warren Society of Human Resource Managers on June 17, 2010. The first topic was "Workers' Comp 101 for HR Pros." The second topic was 'HIPAA for HR Pros." Both presentations were recorded and are available on the SWHRM webiste as an online course for HR profesisonals.
  The course was approved for 1.5 hours of HRCI credits.]]>Gregory Lois, Esq.Medicare2010-06-01T16:11:26-04:00www.greglois.com/files/c4dc202f743b6ab4f3c5118320392ab7-156.html#unique-entry-id-156www.greglois.com/files/c4dc202f743b6ab4f3c5118320392ab7-156.html#unique-entry-id-156
  Background
  Medicare is administered by the Centers for Medicare and Medicaid Services (CMS). This agency was previously known as the Health Care Finance Administration. CMS delegates some of its work, especially work dealing with the collection of overpayments, to private contractors that vary by region and state.
  The MSP seeks to protect Medicare funds by making sure that Medicare does not pay for services when another primary source of coverage - including liability insurance, no fault insurance, and self-insurance, as well as workers’ compensation insurance - is available. Under the MSP, all parties to a settlement are potentially liable to Medicare for reimbursement of medical payments it has made on behalf of a settling claimant.
  Medicare’s position, that its coverage is ‘secondary’ to workers’ compensation, was strengthened by amendments to the Act in December of 2003. The amendments came with the “Medicare Prescription Drug Improvement and Modernization Act” which expanded medicare’s power to enforce the MSP through the Center for Medicare and Medicaid Services (“CMS”). The amendments authorize CMS to seek recovery “against any entity, including a beneficiary, provider, supplier, physician, attorney, state agency, or private insurer that has received any portion of a third-party payment directly or indirectly” if the funds were part of a settlement from a primary insurer.
  In the past, workers, their attorneys, employers, and even insurance companies have ignored or attempted to evade the fact that workers’ compensation and some civil settlements should be considered ‘primary’ to Medicare. There were undoubtedly some instances in which a worker would go into a hospital for treatment of a work-related problem and show a Medicare card, and the hospital would bill Medicare. No one on behalf of the employer or its insurer went out of the way to tell the hospital that the bill should have been sent to workers’ compensation or to reimburse Medicare after it had paid the bill. There were also, undoubtedly, situations in which a worker and an employer agreed to settle a workers’ compensation claim (by way of Section 20) and the worker asked, "What about my future medical expenses?” To which a presumed response was, "Just submit it to Medicare.”
  Medicare expenditures represent about 25 percent of the total budget of the federal government. There is tremendous pressure to reduce Medicare expenses. On several occasions in the last few years, Medicare has, for example, arbitrarily reduced the amount it pays doctors by four percent or more. Medicare has been searching for every way it can to control its costs. In 2000 and 2001, studies by the General Accounting Office pointed out that Medicare was losing money by paying for certain services that should have been covered under workers’ compensation. At about the same time (perhaps in response to the GAO), CMS began to more aggressively enforce its right to have workers’ compensation insurers pay Medicare back when required. 2009’s “Affordable Care Act” passed Congress and removed $500 Billion in Medicare funding. That leaves a significant deficit in Medicare’s revenues and will likely provide more motivation for CMS to aggressively pursue reimbursement.
  With regard to ongoing care when a worker is currently entitled to workers’ compensation, the situation is fairly straightforward: Workers’ compensation should pay and Medicare should not. The situation becomes much more complicated with regard to settlements. When a worker receives a lump sum (Section 20 or Section 32) and an employer is relieved of its liability for future benefits, in most cases, some of the lump sum is for the payment of future medical benefits. Until that amount is exhausted Medicare should not be expected to pay for medical expenses for the covered condition. When that amount is gone, Medicare should begin paying. The problems concern how to determine how much of a settlement should be allocated for future medical expenses and when is that amount exhausted.
  
  Pre-Approval
  In July 2001 CMS issued a memo to its regional offices. It suggests that under certain circumstances parties to workers' compensation claims should not settle those cases until after CMS has had an opportunity to review the settlement and approve the allocation to future medical expenses. The memo discusses the circumstances under which the regional offices will “pre-approve” such an allocation. It discusses pre-approval in two categories of cases:
  (1) Cases in which the workers’ compensation claimant is currently entitled to Medicare benefits.
  (2) Cases in which the injured individual has a "reasonable expectation” of Medicare entitlement within 30 months of the settlement date and the settlement is over $250,000 (Patel 2001, Question 1).
  
  Medicare announced that the ‘threshold’ for reviewing cases was to be set at $25,000. Medicare refuses to provide a pre-approval of set-aside unless the lump-sum payment to the claimant exceeds $25,000. This does not mean that the parties do not have to consider Medicare’s future interest - it just means that Medicare will not review the final determination of the parties. Self-insured and carriers are encouraged to formulate a cost projection for future medicals and allocate a portion of the settlement toward future medical.
  After a case is settled, CMS wants the parties to create some form of “set-aside” arrangement in which the funds for future medical expenses that would be covered under Medicare are placed in a trust or deposited in a separate account. Medicare will begin paying medical bills for the work-related condition only when set-aside is depleted and the funds are accounted for.
  This has caused considerable difficulty for the workers’ compensation system. If a case is settled for more than $250,000, it is reasonable to devote the time and resources necessary to obtain pre-approval and create some form of set-aside agreement. However, the vast majority of workers’ compensation claims are settled for much smaller amounts. The time and effort that pre-approval and set-asides require is very substantial when compared to the amounts involved. The suggested procedures have served to create a serious burden on workers’ compensation.
  An insurance company who fails to make certain that CMS approval has been obtained is on the hook for double the amount of the settlement.
  
  Set-Asides
  You should expect your defense team to: Review the medical situation and prepare a defensible estimate of how much of a lump-sum settlement should be allocated to future medical expenses. This is sometimes called a “life care plan.” More foten, we call this Medicare's "Set Aside."
  
  1) Obtain pre-approval from CMS of the amount of the settlement that will be allocated to future medical expenses.
  
  Create a Medicare set-aside arrangement. These are sometimes formal trusts, sometimes less formal agreements, that pay or keep track of the expenditure of the portion of the settlement that is allocated to future medical expenses. These vendors have played a significant role in the situation. 
Often, a defense attorney will merely monitor the claimant’s counsel’s progress in achieving the milestones discussed above.
  
  Figure 1 shows that the need for a Medicare set-aside arrangement or waiver depends on the type of file closure. The status of conditional payments or payments for medical treatment by Medicare which should have been paid for by the carrier/ self-insured remain the province of Medicare in every case.
  The Medicare statute does not allow Medicare to make a payment if a workers’ compensation policy should be the proper primary payer. In the case of a denied claim, the workers’ compensation carrier will not pay for medical treatment. In such cases Medicare pays for the medical treatment conditioned on the premise that the workers’ compensation carrier must reimburse Medicare if the workers’ compensation carrier has or had the responsibility to make primary payment.
  
  Figure 2 shows a decision flowchart to be used when a claim has reached settlement. The flowchart first requires and answer to the question: “Has Medicare paid for treatment for the disability/injury alleged in the claim?” The answer to this initial query should be provided by petitioner’s counsel. As experience shows that Medicare is most likely to pay for treatments in occupational claims, which are likely to be denied claims, special attention should be paid when dealing with occupational claims.
  
  
  If Medicare has provided treatment, then Medicare’s interest must be considered.
  
  If Medicare has not paid for treatment for the disability/injury alleged in the claim petition, then the next query must be reached. Simply put, the type of closure must be known. As shown above, in figure 1, closure reached via Order Approving Settlement does not foreclose the possibility of medical remaining open, as respondent may be required to provide medical treatment to the claimant for the disabilities alleged for up to two years after entry of the Order.
  As Medicare will treat the judgment of a workers’ compensation judge as final as to compensability and causal relationship, closure by way of Judgment with dismissal does not trigger a Medicare interest. Closure of a claim by way of Section 20 does foreclose the possibility of respondent paying for future (related) medical treatment. See figure 1. Therefore, and following the decision flowchart found at figure 2, if the claimant is “Medicare Eligible” then Medicare’s interests should be considered.
  Figure 2 begs the question: Just what does it mean to be “Medicare Eligible”?
  
  In other words, “Medicare eligible” identifies any claimant who could receive Medicare benefits currently.
  Which in turn, begs the question, Just what is a “Reasonable Expectation” for entitlement to Medicare?
  
  As shown in figure 4, a workers’ compensation carrier has a “reasonable expectation” that a claimant will become entitled to Medicare when (1) the claimant has already applied for SSDI, (2) the claimant was denied SSDI but may appeal that decision of denial, (3) Is currently appealing a decision of denial for SSDI, (4) has end-stage renal disease, and (5) is 62.5 years old (and therefore will be entitled to Medicare in 30 months.
  This set of fact prerequisites establishing a “reasonable expectation” is not likely to be known by the respondent in a pending workers’ compensation case. Defense counsel should have answers to these questions from our adversary when a lump-sum dismissal is considered.
  
  Figure 5 presents the decision flowchart to be employed and combines the previous concepts together. While the previous flowcharts (see figure 2) identified whether Medicare may have held an interest in the lump-sum closure of a claim, the decision process in figure 5 identifies when Medicare review of a claim is required.
  
  The difficulty for carriers and self-insured is that identifying whether your case meets either the $25,000 or $250,000 threshold (thereby triggered submission to CMS for approval or waiver of set-aside) requires looking at both the amount of indemnity to be paid PLUS the amount of medical. This can be tricky, especially in a workers’ compensation context, where a case can settle, and then be ‘re-opened’ much later (and multiple re-opener claims are possible for one date of loss. In the workers’ compensation context, it is the value of the current settlement, PLUS the prior settlement, PLUS the prior medicals paid (all added together) which equal the total value for the purpose of establishing which threshold applies.
  When there is a possibility that Medicare may become responsible for additional (prospective) medical care for an injury or disability which is resolved in New Jersey Workers’ Compensation Court by way of Section 20, Medicare demands that the claimant set-aside money to pay for the future medical costs. If Medicare determines that no set-aside is necessary, then a waiver will be issued.
  
  Best Practices for Dealing with Center for Medicare Services
  On September 26, 2009 Medicare issued guidance as to how Set-Aside proposals "could" be submitted to Medicare. This formalized review process should be considered the ‘current’ 'best practices' for dealing with Set-Aside arrangements.
  Medicare has issued a 38-page 'checklist' including sample forms that it 'recommends' submitters utilize.
  According to CMS, "cases using this or similar format can generally be processed more quickly with fewer errors - resulting in faster determinations at less cost to submitters and the government." The 'recommended' submission form is divided into numbered sections to correspond to the electronic folders in which CMS scans and files documents for review. For submissions by CD-ROM, grouping and naming documents by the CMS conventions is the preferred method of delivery.
  CMS recommends the following numbered sections:
  Section 05 - Cover Letter;
  Section 10 - Consent Form;
  Section 15 - Rated Ages;
  Section 20 - Life Care/Treatment Plan;
  Section 25 - Court/WC Board Documents;
  Section 30 - WCMSA Administration Agreement;
  Section 35 - Medical Records;
  Section 40 - Payment Information;
  Section 50 - Supplemental - Additional Information.
  Medicare has also instructed that it will respect a judicial determination “after a hearing on the merits.” In other words - CMS will accept fact findings made after significant testimony has been produced. “Sham trials” are to be avoided. A recent NJ case (decided May 24, 2010) arose from a plaintiff demanding the trial court ‘allocate away’ Medicare’s lien (the court declined).
  
  Need More Guidance?
  We expect that increased enforcement of the MSP will continue to impact the litigation we are handling.
  We are here to help. Over the past several years, Tompkins attorneys have counseled our clients on Secondary Payer compliance issues. We have also traveled to our clients to present seminars and meet face-to-face to answer your questions. If you would like arrange training for your office call Greg Lois at 973-500-8109 or email contact.
  
  Please review my 'Frequently Asked Questions' section on Medicare.
  
  
  This work is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike License.]]>Gregory Lois, Esq.Medicare2010-05-27T16:32:12-04:00www.greglois.com/files/b98bbb36bd54604340c970c939b53503-157.html#unique-entry-id-157www.greglois.com/files/b98bbb36bd54604340c970c939b53503-157.html#unique-entry-id-1571. When must Medicare’s interest be considered?
  Medicare’s interest must always be considered whenever:
  (A) Medicare has paid for treatment for a disability/injury alleged in the claim petition; and/or
  (B) In the closure of a workers’ compensation case the petitioner is Medicare entitled and future medicals for a disability/injury maintained in the claim petition are being foreclosed.
  
  2. When is a petitioner considered “Medicare entitled”?
  A petitioner is Medicare entitled if he or she is:
  65 years or older (assuming sufficient work quarters); or
  On Social Security Disability (SSD) for 24 months or longer; or
  Suffering from End Stage Renal Disease (ESRD).
  
  3. Is repaying Medicare for conditional payments (or obtaining a waiver) always required when the petitioner has received Medicare benefits?
  Yes. CMS recommends that the process outlined under Question 4 of this memo be initiated as soon as possible for petitioners who have received Medicare benefits. To ensure that a record of any Medicare benefits be established, this process must be initiated in all cases when the petitioner is a Medicare beneficiary. One should also keep in mind that repaying CMS for past /conditional payments Medicare made on behalf of the petitioner is required even when no set-aside allocation review is required. Therefore, pleadings become very important in determining the extent to which past/conditional Medicare payment issues may play a role in resolving a claim. Plaintiffs/Petitioners who allege work injuries or disabilities that clearly cannot be sustained may be subjecting their cases to more extensive CMS/Medicare review and delay for alleged injuries or disabilities that will be found “non-compensable” later in the proceedings. In summary, adequate consideration must be given to the issue of conditional payments in all cases involving a Medicare beneficiary at the time of settlement. This includes cases resolved by Orders Approving Settlement, Section 20 Settlements, Judgments, and Second Injury Fund Awards. As long as the petitioner is a Medicare beneficiary, this issue must be addressed.]]>Gregory Lois, Esq.New Jersey2010-05-11T19:52:00-04:00www.greglois.com/files/c29bfc075df660af1ddc0a225a605743-154.html#unique-entry-id-154www.greglois.com/files/c29bfc075df660af1ddc0a225a605743-154.html#unique-entry-id-154
  Employer's have sought to expand the realm of 'compensable' injuries because if an injury at work is 'compensable' under the Workers' Compensation Act, then generally the employer cannot be sued in civil court. This is important to employers because awards in civil court can include 'pain and suffering' - increased damages - and typically are much higher than awards of compensation.
  
  The area we have seen employers litigate these issues most strongly has been in cases where the employee is injured in a parking-lot slip-and-fall.
  
  In the recently decided cases Rosa Maria Borbon v. Fantasia Industries, the plaintiff alleged a personal injure cause of action against her employer and the landlord. Plaintiff Borbon alleged that the parking lot was 'negligently maintained' which led to her slip-and-fall type accident.
  
  The employer, Fantasia Industries, was the only tenant occupying the property. The terms of the lease held that the tenant (Fantasia Industries) was responsible for property maintenance not he property. The landlord, who was also sued by Plaintiff Borbon, did not have any responsibilities under the lease to maintain the property.
  
  Normally, injuries which occur in an employer's prying lot are compensable. The Statute which controls when and where and injury is compensable states that “[e]mployment [starts] when an employee arrives at the employer's place of employment to report for work and [ends] when the employee leaves the employer's place of employment, excluding areas not under the control of the employer; [unless] the employee is required by the employer to be away from the employer's place of employment, [in which case] the employee [is] deemed to be in the course of employment when engaged in the direct performance of duties assigned or directed by the employer.” See N.J.S.A. 34:15-36.
  
  Parking Lot cases present numerous problems.
  
  As shown in the cases cited below, injuries sustained in parking lots will be found compensable if the employer “maintained and controlled” the parking lot in question, even if the injury was sustained when the employee was released from work duties, and was returning to a parked car at the end of a shift.
  
  In Rosa Maria Borbon v. Fantasia Industries, the employer (Fantasia Industries) admitted that the accident occurred on their premises and was compensable. The Appellate Court found that the landlord was insulated from civil suit under the 'Workers' Compensation Bar' as the property maintenance was the responsibility of the employer. This case demonstrates the strength of the 'workers' comp bar' in repelling claims - in this case the bar was invoked by a defendant who was not an employer but still got the benefit of the compensation bar preventing a civil lawsuit, with the possibility of a higher award against the employer directly.
  Case: Rosa Maria Borbon v. Fantasia Industries, A-5701-08T3 (App. Div. Decided April 20, 2010).]]>Gregory Lois, Esq.New York2010-05-10T19:49:51-04:00www.greglois.com/files/17d5d101f332238918a3a61533d3f1aa-153.html#unique-entry-id-153www.greglois.com/files/17d5d101f332238918a3a61533d3f1aa-153.html#unique-entry-id-153Both the Workers' Compensation Board and the Appellate Division agreed that the injuries did not "arise out of and in the course of employment." See Workers' Compensation Law § 10. Whether a particular activity is compensable is a factual issue for the Board to resolve (See Matter of Pedro v. Village of Endicott, 762 N.Y.S.2d 177 [2003], lv. dismissed 775 N.Y.S.2d 242, [2003], lv. denied 780 N.Y.S.2d 312 [2004] ), “with the test being whether the activity is both reasonable and sufficiently work related under the circumstances” (Matter of Marotta v. Town & Country Elec., Inc., 857 N.Y.S.2d 340 [2008]; Matter of Pedro v. Village of Endicott, 762 N.Y.S.2d 177; Matter of Grady v. Dun & Bradstreet, 696 N.Y.S.2d 258 [1999]).
  
  Looking Deeper
  Although the employer did not raise a defense of 'intoxication,' our review of the case does not indicate that such a defense would be successful. An employee is not entitled to benefits if his injuries are caused solely by his intoxication. This defense is largely illusory, though, because of the word ‘solely.’ If the claimant can show another contributing factor – any contributing other factor – the injuries will be found compensable. For example, if the claimant can show the intoxication along with another factor, such as fatigue caused the injury, the fact that the claimant was drunk at the time of the accident will not be a bar to compensation – the claimant will likely be successful arguing that the fatigue contributed tot he accident and resultant injury and the matter will likely be found compensable. In fact, there is a statutory presumption that the intoxication was not he sole factor in any injury.
  In this case, there was eyewitness testimony that Maher drank "five beers over four hours" - not enough to establish her intoxication. However, diligent investigation should have obtained the blood-alcohol results from the Emergency Room visit so that the defense could have been explored.
  
  Case: Maher v. NYS Div. of Budget, -- N.Y.S.2d ----, 2010 WL 1610380, App. Div. 3 Dept. Decided April 22, 2010.]]>Gregory Lois, Esq.New Jersey2010-05-10T19:46:10-04:00www.greglois.com/files/5219f10012de7f697706b43a348743f5-151.html#unique-entry-id-151www.greglois.com/files/5219f10012de7f697706b43a348743f5-151.html#unique-entry-id-151In practice, claims adjusters should obtain “26-week wage statements” from insured/employers so that an average wage can be computed.
  Determining out the 'rate' at which compensation should be paid is often the central issue in claims involving part-time workers. If a worker makes $100 a week as a part-timer, the permanent disability rate (the rate at which permanent disability benefits is paid) would be $70 per week. For an award of 25% of the hand (at the 2010 rates) a part-time worker earning $100 per week is due an award of $4,285. A full-time worker, earning wages exceeding $290 per week, would be due a 'full' statutory award of $12,585.
  There are many instances where a judge of compensation is persuaded to 'reconstruct' a part-time wage into a full-time wage. This results in a much-higher award (in our example, $4,285 versus $12,585). The Judge of Compensation can be persuaded to 'reconstruct' wages to a full-time rate because the law allows for wages of a part-time employee may be reconstructed for purposes of fixing the rate for permanent partial disability in accordance with N.J.S.A. 34:15-37 based upon "diminished future earning capacity."
  A recent case re-examined the rules regarding reconstructing wages. In Rose Gruzlovic v. Giovani's Trattoria, A-1519-08T1 (App. Div. Decided April 15, 2010), the appeals court reviewed the decision of a Judge of Compensation who had 'reconstructed' part-time wages of a cafeteria worker, resulting in an increased award. In Gruzlovic, the claimant was a 76-year-old woman who worked nine hours per week, earning $10.50 per hour (average weekly wage of $94.50). During the thirteen years the claimant worked for the employer, she did not have or seek additional part-time employment. After the accident at work, the claimant no longer worked, stating simply, "I thought I had my share [of work]."
  The Judge of Compensation awarded Gruzlovic 25% permanent partial total benefits, and 'reconstructed' the rate so that the claimant received the 'full' statutory award ($30,420).
  The Appeals Court overturned this ruling, and ruled that the claimant was only due an award bad on her part-time work - which would equate to 150 weeks of compensation payable at $66.15 per week, totaling $9,922.50. In ruling this way, the appeals panel reviewed the relevant case law, and made some crucial distinctions in this case.
  The Judge of Compensation ruled erroneously by mis-applying an oft-cited New Jersey Supreme Court case (Katsoris v. South Jersey Publishing Co., 131 N.J. 535 (1993)). In Katsoris, the Supreme Court confirmed that workers' compensation courts must confront the issue of whether it is 'appropriate' to reconstruct wages for part-time employees to provide compensation that would have been awarded for full-time employment. The Katsoris decision states that reconstruction of wages is appropriate when necessary to compensate the worker for loss of earning capacity, i.e., diminution of future earning power. The 'loss of earning capacity' includes a loss of 'potential for full employment.' Where an employee, who is permanently disabled due to an injury on a part-time job, also has a full-time job, use of a 'reconstructed' work week is appropriate if there has been an impact on the employee's ability to return to a full-time job. (Citing Mahoney v. Nitroform, 20 N.J. 499 (1956). By contrast, where a worker with a part-time and full-time employment is permanently partially disabled format he part-time employment but able to return to the full-time employment, reconstruction of the work week as if the part-time employment were full time employment is improper. (Katsoris, 131 N.J. at 548).
  In cases involving part-time employees with no full-time work, a judge of compensation must employ the principles of 'fairness and equity' in determining f the circumstances warrant reconstruction of a part-time worker's wages. However, the Appeal court drew a distinction, as did prior cases, for part-time workers - concluding that reconstruction is appropriate when the "permanently disabling accident 'prevents or interferes with later full-time employment.'" (Citing Engelbretson v. AM. Stores, 49 N.J. Super. 19 (App. Div. 1957) aff'd, 26 N.J. 106 (1958).
  In Gruzlovic, the Judge of compensation was reversed and the wage reconstruction was remanded for further proceedings. The Judge was asked to find out whether the accident and resulting residual disability "had any impact on Gruzlovic's capacity or inclination to work full-time as opposed to part-time. Based on the fact that the claimant had only worked one day per week for the thirteen years leading up to the accident, the Appellate Court stated 'there is no basis for an inference' that Guzlovic would have pursued other full- or part-time jobs "but for" her partial disability. The Appeals Panel further stated "When an inference of a loss of potential full-time employment attributable to the accident is not available format he evidence presented, principles of fairness and equity developed to compensate for hat lost potential are not implicated and reconstruction of wages is not appropriate."]]>Gregory Lois, Esq.New Jersey2010-05-07T19:48:00-04:00www.greglois.com/files/f760d5ddbe4290c1ec600183ce445131-152.html#unique-entry-id-152www.greglois.com/files/f760d5ddbe4290c1ec600183ce445131-152.html#unique-entry-id-152The employer provided workers' compensation benefits to the claimant - compensation for time lost from work (temporary tootle disability benefit) and medical treatment. The claimant was returned to work "without restrictions" by his treating doctor on July 20, 1999 - about four months after the original accident. Instead of returning to work, the claimant sought additional medical treatment, which was not authorized. He never returned to the employment of any type, and obtained a Social Security Disability award, effective 2003.
  Among the treatments the claimant underwent (at his own direction) was lumbar nerve blocks for "Reflex Sympathetic Dystrophy" in his left leg (know called 'Complex Regional Pain Syndrome'). The claimant also underwent treatment for "involuntary nighttime movements" of his leg that interrupted his sleeping. The claimant was put on numerous medications, including codeine, Neurontin, Zanaflex, Clonazepam, Klonpin, Oxycontine, Valium, and Prozac. In 2003 he complained of depression and anxiety attacks and treatment for these conditions began.
  At trial, the respondent portrayed the claimant as a malingerer - and even petitioner's doctors agreed, although they differed as tot he extent of the malingering. While the employer's doctor called the claimant's behaviors "flagrantly acting out" the petitioner's doctor described it as a "enormous psychogenic overlay."
  The Judge of Compensation found that the claimant did have a residual disability resulting from the original fractures and RSD, as well as depression. The Judge awarded temporary disability benefits from July 20, 1999 to August 13, 2004 (265 weeks). The employer appealed the award of temporary disability benefits, arguing that the claimant had not demanded payment of those benefits - in essence, arguing that the Judge of Compensation awarded wage replacement that was not asked for or demonstrated in the medical records.
  The Appellate Court rejected the appeal - finding that the 'expert' doctors had testified that the claimant was 'unable to work by reason of his injuries' during the 265 week period and that the award of back-temporary disability benefits was appropriate.
  Case: Mercado v. Atlantic States Cast Iron Pipe Co., A-2774-08T3, (App. Div. Decided April 19, 2010).
  ]]>Gregory Lois, Esq.New York2010-04-29T19:58:00-04:00www.greglois.com/files/abf4a3ebc3dd0851a7f92ccb4bf5134c-155.html#unique-entry-id-155www.greglois.com/files/abf4a3ebc3dd0851a7f92ccb4bf5134c-155.html#unique-entry-id-155A New York Workers’ Compensation claimant is availed five (5) presumptions. New York Work. Comp. Law § 21.
  The first presumption is that an accidents which occurs in the course of employment is presumed to arise out of the employment. This is a temporal/substantive link: if the injury occurs at work and during the work day, it is presumed the injury ‘arose out of and in the course of employment.’
  If the activity the claimant was undertaking at the time of the accident was ‘purely personal’ it would not be within the scope of the employment and the presumption would be rebutted.
  Injuries from purely personal acts are not compensable. This is the “personal risk doctrine.” Activities which demonstrate a purely personal pursuit, do not fall within the scope of employment. An assault occurring at work is accordingly presumed to have also arisen out of the employment, a presumption that can be rebutted with substantial evidence that the assault was motivated by purely personal animosity. See Workers' Compensation Law § 21; Matter of Rosen v. First Manhattan Bank, 84 N.Y.2d 856, 857 (1994); Matter of Turner v. F.J.C. Sec. Servs., 760 N.Y.S.2d 602 (2003).
  In looking at cases where the employer raises this defense, the WCB will consider how work-related the activity was that led to the injury.
  A good example is the retail employee who is attacked at work. If the attacker was a random store customer, or someone who walked into the store to rob it, then the incident will likely be found to be compensable. However, if the employee is attacked by an estranged lover, for purely personal reasons, and the attack just happened to take place at work, then the injuries resulted from a purely personal circumstance and will likely not be found to be compensable.
  Two recent cases applied this rule.
  
  In Wadsworth v. K-Mart Corp., -- N.Y.S.2d ---, 2010 WL 1375231 (App. Div. 3rd Dep't, Decided April 8, 2010), the Workers' Compensation Board found that 'emotional injuries' sustained by a claimant whose car was stolen while she was at work were compensable. Bizarrely, a week after the car was stolen, the claimant saw the car idling in the parking lot at work. When the claimant approached the vehicle, she became involved in a scuffle with the driver. At the same time, a co-worker emerged from the place of work, jumped in the car, and the stolen car took off. The Board ruled against the employer, citing the fact that a co-worker was apparently involved in the theft of the car, and found the matter compensable.
  The employer appealed, arguing that the incident did not arise out of the course of the employment and was purely a personal matter.
  
  The Appellate Court agreed with the employer, and overturned the award. The Appellate Court ruled that while there was a question of fact for the Board to decide, and an award of benefits is proper if “there is any nexus, however slender, between the motivation for the assault and the employment” ( Matter of Baker v. Hudson Val. Nursing Home, 649 N.Y.S.2d 105 (1996), lv. denied 659 N.Y.S.2d 854 (1997); accord Matter of Perez v. Victory Motor Inn, 767 N.Y.S.2d 673 (2003), the decision must be based on “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion” Consolidated Edison Co. v. National Labor Relations Bd., 305 U.S. 197, 229, (1938); accord Matter of Russo v. HRT, Inc. of Orange County, 667 N.Y.S.2d 854 (1998), lv. denied 676 N.Y.S.2d 128 (1998).
  
  The Appellate Court reasoned that "the statutory presumption was rebutted by substantial evidence presented that the motivation for the assault was purely personal animosity between claimant and the individual she discovered driving her stolen vehicle. . . Claimant's assailant was not a coworker or otherwise connected to her employment and there is no work-related explanation given for the altercation." The decision of the WCB was overturned as 'arbitrary.'
  
  In a second case, decided May 6, 2010, the Appellate Division reviewed an award of compensation benefits filed by Deborah Wilson. Deborah Wilson v. General Mills, -- N.Y.S.2d ---, 2010 WL 1791132 (App. Div. 3rd Dep't, Decided May 6, 2010). In Wilson, the Claimant, a general mechanic, filed a claim for workers' compensation benefits after a coworker struck her in the face with what was variously described as an air regulator or valve. Claimant and her assailant had a long history of difficulties. While claimant described repeated harassment due to race and gender, she also testified that the assailant had “defamed” her abilities and work as a mechanic by stating that she was a “bad mechanic,” and influencing other coworkers to believe this was true. Even the affidavit that claimant filed with the Equal Employment Opportunity Commission in support of her discrimination complaint, upon which the employer and its carrier relied upon, suggested that at least some of the assailant's offensive comments and conduct stemmed from a promotion and pay raise that claimant received in 2005.
  
  In Wilson, the Appellate Court found a 'nexus between the employment and the injury' as so found the assault injury compensable.]]>Gregory Lois, Esq.New York2010-04-05T20:28:10-04:00www.greglois.com/files/b1e373482749b0e28e8ffc4252b6b1c9-148.html#unique-entry-id-148www.greglois.com/files/b1e373482749b0e28e8ffc4252b6b1c9-148.html#unique-entry-id-148
  Guz last worked in 2002. Her claim for major depression was initiated in 2007. In the meantime, she had received psychiatric treatment with her own psychiatrist, Dr. Alina Marek, in five occasions beginning after she filed her claim for benefits (she first sought treatment in January 2008). Dr. Marek diagnosed Guz as suffering from major depressive disorder and causally related same to her 2002 employment (Guz allegedly suffered bilateral carpal tunnel syndrome in 2002).
  
  The employer had Guz examined by Dr. Areyek Klahr, who performed two independent medical examinations. Dr. Klahr concurred that the claimant had the condition, but found it would not interfere with her ability to work. Dr. Klahr also testified that the claimant's responses were inconsistent and that her complaints did not correlate to his objective findings. On the stand, Dr. Klahr testified that the claimant did not suffer a work-related disability.
  
  While testifying on behalf of the claimant, Dr. Malek admitted that she had no information about the claimant;s work or her 2002 carpal tunnel injury. Dr. Malek testified that she was unaware of the claimant's prior claims history (which included multiple MVAs, etc) although she agreed that knowing the claimant's prior medical and claims history would be useful in assessing Guz's condition. Further, Dr. Malek stated that she had no information about the claimant's activities of daily living or her personal life history, and admitted that her opinion was based on the claimant’s subjective account of the cause of her depression.
  
  The Workers' Compensation Board found against the claimant. The decision was upheld by the Appellate Division Case: Janina Guz v. Jewelers Machinist, Inc., 2010 NY Slip Op. 01870, App. Div. 3rd Dep't, Decided March 11, 2010.]]>Gregory Lois, Esq.New Jersey2010-04-01T20:23:00-04:00www.greglois.com/files/91dd8f1224246d599ddb186f62fabeff-147.html#unique-entry-id-147www.greglois.com/files/91dd8f1224246d599ddb186f62fabeff-147.html#unique-entry-id-147
  How is jurisdiction established in New Jersey Workers’ Compensation Courts? The Courts look at the following factors:
  1. Residence of the petitioner. This is simple: does the claimant reside in New Jersey? Even if the injured worker was injured in another state, and the contract of hire stated that another state’s workers’ compensation law would be applied, a resident of New Jersey can claim New Jersey jurisdiction based upon residence. In Parks v. Johnson Motor Lines, 156 N.J. Super. 177 (App. Div. 1978), the appellate panel found that the New Jersey residence of an injured worker and the fact that a substantial part of his employment was carried out in New Jersey was sufficient for New Jersey jurisdiction even though the accident occurred in Pennsylvania and the contract of employment provided that North Carolina’s law would govern.
  Residence alone, without the presence of the other factors, is not likely sufficient to create jurisdiction in New Jersey.
  
  2. Respondent’s location. Is the respondent located in New Jersey? If not, the Court will consider ‘significant contacts’ with New Jersey, such as selling products here, soliciting business in New Jersey, or advertising in New Jersey.
  
  3. Place of Hire. A contract of hire made in New Jersey, by itself, is not enough to create jurisdiction in New Jersey workers’ compensation courts.
  
  4. Location of Accident. If the accident which injured the employee took place in New Jersey, while the petitioner was in the course and scope of her employment, then jurisdiction in New Jersey Workers’ Compensation Court is created.
  
  5. Place where the contract of hire was made; and
  
  6. Place where workers' compensation jurisdiction was established by agreement between the parties. Williams v. Port Authority, 175 N.J. 82, 87-88 (2003).
  
  In Catalano the petitioner admitted that he lived in Staten Island, worked out of the Staten Island UPS terminal, and that he was delivering in Staten Island when the injuries occurred. However, the claimant argued that he was a member of a Teamster's local based in New Jersey and the name of the business unit he reported to was the 'Central Jersey Division.' The claimant also stated that he took his initial employment physical at UPS's Edison, New Jersey plant (ten years earlier) and drove as a 'probationary employee' for two weeks in New Jersey at the start of his employment (also ten years before the accident).
  
  The Workers' Compensation Judge ruled that Catalano could not establish jurisdiction for his claim in New Jersey court. The ruling was found that the employment took place in New York, as did the residence of the claimant and the place of injury. The claimant’s minor contact within New Jersey were not enough to establish jurisdiction in NJ WC Court.
  
  Case: Catalano v. UPS, N.J. App Div. 39-2-7061 (Decided March 9, 2010).]]>Gregory Lois, Esq.New Jersey2010-03-30T20:29:00-04:00www.greglois.com/files/6a5de7b265d4df15842d0f3ad35540fc-149.html#unique-entry-id-149www.greglois.com/files/6a5de7b265d4df15842d0f3ad35540fc-149.html#unique-entry-id-149
  A truck driver was injured at home while doing some routine maintenance on his work truck. He claimed that his injuries were compensable because his hauling services agreement with his employer required him to "maintain" his tractor trailer at his own expense. The employer denied the claim, stating that the injuries did not arise out of the 'scope' of employment.
  The driver, Guillermo Chaverri, entered into an exclusive written agreement with Cace Trucking to provide hauling services. Under the contract, the claimant was required to "maintain, register, and insure" his tractor trailer at his own expense. The Agreement also contained a provision requiring the claimant to maintain the tractor in "good and safe condition and in compliance with the relations of all applicable public authorities."
  
  The incident occurred on a weekend day. The petitioner claimed that he injured is right eye while working on his tractor trailer at his home. The claimant alleged that his vision was impaired and that he developed a psychiatric disability. There were no witnesses to the incident.
  
  The Judge of Compensation ruled that Chaverri was an employee of cace, finding that Cace "had total control of the workday, told petitioner exactly what to do all day, and petitioner was precluded from working for anyone else during the time period he worked for Cace." However, the Judge of Compensation found that the eye injury feel outside the scope of employment - finding it significant that the claimant was not on duty at all times, could use the tractor trailer for his own purposes, and was not "in the business of maintaining vehicles." Further, the Judge found that nothing in the agreement between Cace and the claimant required the petitioner to do his own repairs.
  
  The Appellate Division reversed, stating that "Courts have held that certain injuries sustained by an employee while performing a necessary aspect of the job, even if not performed during normal working hours and not on the employer's premise, may be compensable." The Appellate Curt ruled that at the time of the injury, the claimant was "engaged in the direct performance of his duties assigned" under the employment agreement. The case was remanded to the workers' compensation court for further proceedings (most likely a settlement or award for permanent disability).
  Case: Chaverri v. Cace Trucking Inc., App. Div. 39-2-7290 (Decided March 26, 2010).]]>Gregory Lois, Esq.New York2010-03-15T20:19:00-04:00www.greglois.com/files/3383a6e0ad095ab2c36eb991a3130441-146.html#unique-entry-id-146www.greglois.com/files/3383a6e0ad095ab2c36eb991a3130441-146.html#unique-entry-id-146
  Salvatore Laezzo slipped-and-fell, sustaining compensable knee and low back injury, while working for the New York State Thruway Authority in 2002. Medical treatment was provided by his employer. Laezzo's doctor testified that "his morbid obesity has contributed to his knee and back problems and was a broader threat to his survival." The doctor recommended gastric bypass surgery.
  
  The employer challenged that recommendation, arguing that there was no causal link between the surgery and the claimant's injuries.
  
  New York's Workers' Compensation Law requires an employer to pay for claimant's medical care "for such period as the nature of the injury or the process of recovery may require." (WCL Sect. 13a). This means that treatment must be provided so long as it is directed at returning the claimant to gainful employment. Not all medical treatment relates to disabilities that ‘arises out of and in the course of employment’ – and those disabilities that do not arise from the employment (such as those from the natural aging process) are not compensable.
  
  The Workers' Compensation Board and the Appellate Division both agreed that the gastric bypass surgery should be paid for by the employer. The Appellate Court stated that "there is evidence in the record that the claimant has gained a substantial amount of weight since 2002 due to his sedentary lifestyle imposed by the compensable injuries." The Court ruled that "substantial evidence exists for the Board's determination that claimant's weight gain was caused by his compensable injuries and that gastric bypass surgery would assist in his recovery."
  
  In reaching this decision, the Court considered the claimant’s pre-accident state. In this case, the claimant had massive weight gain after the incident at work. The Appellate Court signaled that if the claimant had been obese before the work-injury, they may not have ordered the bypass surgery to correct the condition. However, whether or not a carrier would be liable to treat obesity in a claimant who is obese before the workplace accident is no settled.
  
  In reaching the conclusion that the claimant should be provided gastric bypass surgery, the Appellate Panel cited another case, Stephen Spyhalsky v. Cross Construction (decided april 29, 2002) in which the WCB ruled that the compensation carrier was "liable for certain medical procedures if deemed necessary to impregnate claimant's wife." In Spyhalsky, the claimant sustained nerve damage during surgery to repair a compensable back injury which prevented him from naturally impregnating his wife. In that case, the compensation carrier was ordered to provide artificial insemination services to the claimant's wife. In Spyhalsky, the Court specifically rejected the argument of the employer that the claimant may not have had the ability to naturally father before the workplace accident. In other words, in Spyhalsky, there was no "look back" to before the incident to identify the claimant's health status at that time.
  
  Case: Salvatore Laezzo v. New York State Thruway Authority, Decided March 11, 2010 (App. Div). Link.]]>Gregory Lois, Esq.Workers Compensation2010-03-11T06:03:50-05:00www.greglois.com/files/0da250c4c6d755463ea51a6f3101ffdb-138.html#unique-entry-id-138www.greglois.com/files/0da250c4c6d755463ea51a6f3101ffdb-138.html#unique-entry-id-138article ("Facebook Postings: Proof of Condition") we reported the Canadian case where a woman's Facebook postings were relied upon to disqualify her for benefits. In this issue, we provide the story of of Jacob Bancroft, whose MySpace pictures were used to convict him of fraud. In Georgia, the state Workers' Compensation Board has ruled to allow defense counsel to introduce Facebook and MySpace 'status updates' and pictures to challenge the disability claims of employees.
  
  Taking it one step further, one Georgia employer demanded that an employee respond to a 'production of documents' request that required the claimant to turn over his personal computer to the employer. The insurance company argued that the claimant's hard drive would reveal "photos, evidence of work or physical activity."
  
  The Georgia Workers' Compensation Board ruled that the computer must be turned over to the insurance company. We are not aware of any other jurisdiction allowing such discovery.]]>Gregory Lois, Esq.Workers Compensation2010-03-05T06:11:02-05:00www.greglois.com/files/ba8aa43621c0d7f2110c562d6795e5b9-140.html#unique-entry-id-140www.greglois.com/files/ba8aa43621c0d7f2110c562d6795e5b9-140.html#unique-entry-id-140Gregory Lois, Esq.Workers Compensation2010-03-01T06:19:17-05:00www.greglois.com/files/bb77bb7fe6da85a77f8928bd8b6c2504-143.html#unique-entry-id-143www.greglois.com/files/bb77bb7fe6da85a77f8928bd8b6c2504-143.html#unique-entry-id-143reportedly collected $3,360 in disability and workers' compensation benefits after she quit her job citing 'anxiety and stress-related symptoms' made her unable to work. She claimed that she suffered post-traumatic stress disorder thinking about the robbery she helped to stage!
  
  Her sentencing is expected to take place on April 20.]]>Gregory Lois, Esq.New Jersey2010-02-26T06:22:00-05:00www.greglois.com/files/1ca3acd829a770e8072e658e0d7353dc-144.html#unique-entry-id-144www.greglois.com/files/1ca3acd829a770e8072e658e0d7353dc-144.html#unique-entry-id-144Section 40 governs the credit due a respondent for any third-party recovery by the petitioner and provides in part:
  
  . . . out of that part of any amount about to be paid in release or in judgment by such third person or his insurance carrier on account of his or its liability to the injured employee or his dependents, the employer or his insurance carrier shall be entitled to receive from such third person or his insurance carrier so much thereof as may be due the employer or insurance carrier pursuant to subparagraph (b) or (c) of this section. Such sum shall be deducted by such third person or his insurance carrier from the sum to be paid in release or in judgment to the injured employee or his dependents and shall be paid by such third person or his insurance carrier to the employer or his insurance carrier. Service of notice, hereinbefore required to be made by the employer or his insurance carrier upon such third person or his insurance carrier, shall be by registered mail, return receipt and in cases other than an individual shall be mailed to the registered office of such other third person or his insurance carrier."
  
  The Appellate Division has recently held that where an individual settles an intentional tort suit against an employer, the workers' compensation carrier is entitled to assert its N.J.S.A. 34:15-40 lien with respect to the settlement amount. Specifically, the court found that the tort litigation is equivalent to a third party action and that without the lien the petitioner might receive a double recovery for the injuries. See Calalpa v. Dae Ryung Co., Inc., 357 N.J. Super. 220 (App. Div. 2003).
  
  When an employee does not file a civil suit or obtain a settlement (against a third-party) within one year from the date of accident the employer has the right to file such a suit on behalf of the claimant to assert its right to recovery. In order to exercise this right, the employer must provide 'notice' in written form to the employee of the intention to institute an action or proceeding on behalf of the employee.
  
  In a recent cases (decided February 25, 2010) the New Jersey Appellate Division explored what happens when the employer fails to serve the written notice required by the Act. In the case of Lepera v. Chagnon, A-2730-08T3 (App. Div. decided February 25, 2010) the employer filed a suit against a third-party tortfeasor while the employee's suit was pending, and after failing to provide notice that a suit was going to be filed on behalf of the employee tot he injured employee. The employee was aware of the suit filed under Section 40, and did nothing to have the suit dismissed (and it seems clear that the employee or the target tortfeasor could have had the suit dismissed by citing N.J.S.A. 34:15-40(g)).
  
  After much legal wrangling, the parties reached settlement, with the compensation lien to be satisfied from the proceeds of the suit (from the claimant's settlement). The employee refused to reimburse the compensation carrier, and the trial court allowed the employer to enforce the terms of the settlement (in which the employer was reimbursed under Section 40) despite the fact that the employer's right to file the suit was precluded by the failure of the employer to file the required Section 40 notice that suit would be instituted.]]>Gregory Lois, Esq.Workers Compensation2010-02-20T06:08:17-05:00www.greglois.com/files/1a48121ee14dcce90281541859f4d038-139.html#unique-entry-id-139www.greglois.com/files/1a48121ee14dcce90281541859f4d038-139.html#unique-entry-id-139
  "Wages" of hourly or part-time workers are determined by "multiplying the hourly rate by the customary number of working hours constituting an ordinary day int he character of the work involved" ( New Jersey Workers' Compensation Act N.J.S.A. 34:15-37). What this means is that if an employee earned $10 per hour, and worked 20 hours per week, her 'average weekly wage' would be $200, if the 'ordinary' employee doing that job was part-time worker.
  
  In practice, claims adjusters should obtain “26-week wage statements” from insured/employers so that an average wage can be computed. Why 26 weeks? The Workers' Compensation Act (N.J.S.A. 34:15-37) uses "six months" as the appropriate look-back period for wages.
  
  Wages of a part-time employee may be reconstructed for purposes of fixing the rate for permanent partial disability in accordance with N.J.S.A. 34:15-37 based upon "diminished future earning capacity." An important case, Katsoris v. S. Jersey Publishing Co., 131 N.J. 535 (1993) established the precedent: disability benefits should be adjusted 'up' (reconstructed) when the employee can demonstrate that the disability 'adversely affected' his earning capacity for future temporary or full-time employment.
  
  In a case recently decided by a judge of compensation, there was a significant dispute about the employee's wages. The employer argued that the employee's wages should be based on his actual earnings (as evidenced by tax records) and commission statements (Case: Sormaz v. Alpha Moving and Storage, A-3482-08T3 (App. Div., decided February 18, 2010). The employer argued that the claimant's weekly earnings for the period immediately preceding the accident should be used to establish his benefit rates. The employee argued that the period just before the accident was a "slow time" and that the business (a moving company) did less business in the winter months.
  
  The Judge of compensation, without any controverting evidence presented by the employer, accepted the claims of the petitioner that the claimant's wages were artificially low because the accident happened during a 'slow period' and set benefits rates base don a forty-hour workweek. The Judge did not make any findings or hear any evidence regarding the customary number of hours and days worked int he moving industry. Instead, the judge ruled that the claimant's hours "fluctuated" depending on the time of year and ruled that the claimant's benefit rates should be based on an 'ordinary' 40-hour work week.
  
  The Judge of Compensation was upheld. Reviewing the decision of the Appellate Division, it seems clear that the reviewing panel sidestepped the real issue - that of 'reconstructing' wages for claimants who can show an impact on future earnings - and allowed the Judge of Compensation to base the benefits rates on an 'ordinary' work week. By declaring that the claimant's work week "fluctuated" and then selecting a period of time (the busy summer months) to base earnings on, the Judge of Compensation clearly did 'reconstruct' a fictitious wage.
  
  This (unreported) case must be kept in mind when assessing benefit rate challenges. In this case (Sormaz) the claimant did not show that his future earning capacity was affected by is disability, and got a benefit rate that exceeded his weekly earnings at the time of the accident. Mindful defense counsel should have presented evidence regarding the customary number of hours and days worked in the moving industry, and forced the claimant to demonstrate reduced current earnings at the time of trial.
  ]]>Gregory Lois, Esq.Workers Compensation2010-02-15T06:12:33-05:00www.greglois.com/files/9aeb0eac4932697f179ac3e9cd728e78-141.html#unique-entry-id-141www.greglois.com/files/9aeb0eac4932697f179ac3e9cd728e78-141.html#unique-entry-id-141Going-and-Coming rules
  Employees are not deemed to be in the course of their employment when they are traveling to- and from-work. This rule of thumb is referred to as the ‘going-and-coming rule” or the “portal-to-portal” rule. Basically, there is no ‘door-to-door’ coverage: the risk of travel to and from work is not distinctly related to any specific employment, and so is generally considered not ‘arising out of and in the course of’ any particular employment.
  Exceptions to the ‘Going-and-Coming Rule’
  Of course, there are exceptions. For example:
  Outside workers – like traveling salesmen – who do not work at a fixed location and are required to travel between work locations.
  Special errands – being sent by the employer to do something specific (and work-related).83
  Paid travel expenses – where an employee is paid to use their own car for work-related travel, an injury occurring during that travel may be found to be compensable.
  Some home office situations – the WCB recognizes that it is not unusual for management and professional workers to have home office with links tot he employer’s office, making injuries in those locations compensable.84
  Entering or leaving the employer’s premises – in particular, injuries sustained while the employee is entering the worksite have been held compensable where the entrance to the worksite posed a ‘special hazard.’
  
  In a recent case (Davis v. Labor Ready, 891 N.Y.S.2d 759 (App. Div. 201), decided January 21, 2010, the WCB denied a claim for dependency benefits to the widow and two children of a worker who died in a car accident while traveling in a carpool arranged by his employer to a job site.
  
  The claimant was an employee of "Labor Ready' which provides temporary workers. Labor Ready did not provide the employee with a ride to his work location, or pay for his travel time or travel expenses. Instead, labor ready encouraged employees to 'carpool' to remote locations.
  
  In the Davis case, the claimant was killed in a car accident on the 26 mile return trip. A Workers' Compensation Law Judge awarded benefits to the decedent's widow and two minor children.
  
  The employer argued that the claimant was not in the course of his employment at the time of the accident. Labor Ready argued that the claimant was not paid an hourly wage while he traveled to the wrk site. It was undisputed that Labor Ready did not provide the transportation, and that the claimant was actually paying his co-employee $2 in gas money for the ride to the work site. The driver, a Labor Ready employee, was not paid for driving the co-workers to-and-from the worksite.
  
  The Appellate Division upheld the denial of benefits, stating "we cannot conclude that Labor Ready had 'exclusive control of the conveyance' that was used to provide transportation.
  ]]>Gregory Lois, Esq.Workers Compensation2010-02-13T20:07:50-05:00www.greglois.com/files/a20147fd001557ce163cd7acb1a1705e-136.html#unique-entry-id-136www.greglois.com/files/a20147fd001557ce163cd7acb1a1705e-136.html#unique-entry-id-136
  What did Bancroft do to deserve such punishment? While out of work collecting benefits for a "back injury" the 29-year-old was actually working a job as a construction laborer and volunteering as a firefighter. He wasn't just working - he was also playing. Bancroft was videotaped skydiving. Bancroft posted pictures of himself on his MySpace page showing him hiking while carrying a backpack.
  
  In addition to the criminal penalties (restitution and probation) Bancroft is likely going to be sued in civil court for the difference in benefits paid ($83,000) and the restitution ordered by the court ($54,000). Bancroft faces up to four years in state prison if he does not comply with the terms of his probation and restitution.
  
  Increasingly, social networking sites like MySpace and Facebook are becoming a resource for investigating possible insurance fraud. ]]>Gregory Lois, Esq.Workers Compensation2010-02-11T06:02:26-05:00www.greglois.com/files/e462e9de5dd7f612edadaf3eeb170fe5-137.html#unique-entry-id-137www.greglois.com/files/e462e9de5dd7f612edadaf3eeb170fe5-137.html#unique-entry-id-137
  The accident never happened. Olsen, the security guard, was apparently unaware that the parking lows were monitored by closed-circuit television cameras, which contradicted his claims (there was no accident).
  
  On February 10, 2010 Olsen was sentenced to 30 days in County jail, five years probation, and ordered to make restitution.]]>Gregory Lois, Esq.New York2010-02-06T06:16:00-05:00www.greglois.com/files/21a6dcf88a48f167263b2b194377eda1-142.html#unique-entry-id-142www.greglois.com/files/21a6dcf88a48f167263b2b194377eda1-142.html#unique-entry-id-142To be considered an independent contractor, and thus not an employee, an individual must meet and maintain all ten of the following conditions:
  
  1. Obtain a Federal Employer Identification Number from the Federal Internal Revenue Service (IRS) or have filed business or self-employment income tax returns with the IRS based on work or service performed the previous calendar year;
  2. Maintain a separate business establishment from the hiring business;
  3. Perform work that is different than the primary work of the hiring business and perform work for other businesses;
  4. Operate under a specific contract, and is responsible for satisfactory performance of work and is subject to profit or loss in performing the specific work under such contract, and be in a position to succeed or fail if the business’s expenses exceed income.
  5. Obtain a liability insurance policy (and if appropriate, workers’ compensation and disability benefits insurance policies) under its own legal business name and federal employer identification number;
  6. Have recurring business liabilities and obligations;
  7. If it has business cards or advertises, the materials must publicize itself, not another entity;
  8. Provide all equipment and materials necessary to fulfill the contract;
  9. Control the time and manner in which the work is to be done; and
  10. The individual works under his/her own operating permit, contract or authority.
  
  In the new case, the claimant was a cleaner who worked in a number of buildings owned by the employer. The claimant was paid a fixed a mount per week by check. According to the claimant, he worked for the alleged employer exclusively. Most telling, the claimant was told "where to work as well as what to do." According to testimony, "[we] instructed and supervised the claimant, [and] would ordinarily contact him if he was required to do specific cleaning work."
  
  The Board found that the claimant was an employee and not an independent contractor. The Appellate Court agreed, stating "relevant considerations include the right to control the work, the method of payment, the right to discharge and the relative nature of the work; however, no single factor is dispositive." Id, citing Matter of Park v. Lee, 862 N.Y.S2d 199 (2008).]]>Gregory Lois, Esq.New Jersey2010-02-03T08:36:30-05:00www.greglois.com/files/9eafc40cbd4c4933e39809ec8538973e-135.html#unique-entry-id-135www.greglois.com/files/9eafc40cbd4c4933e39809ec8538973e-135.html#unique-entry-id-135Perez v. Capitol Ornamental, Concrete Specialties, Inc., 288 N.J. Super. 359, 367 (app. Div. 1996) quoting Lightner v. Cohn, 76 N.J. Super. 461, 465 (App. Div. 1962). "So long as the Judge's findings are supported by articulated reasons grounded in the evidence. we must defer to her expertise in assessing disability." Id., citing Lewicki v. N.J. Art Foundry, 88 N.J. 75, 88-90 (1981).
  
  A workers' compensation judge is granted 'deference' because the judge had the opportunity to determine credibility based upon observations of the witness. Perez, supra, at 367. The Appellate Court is obligated to give "due regard to the judge's expertise in the field of workers' compensation and her opportunity of seeing the witnesses and evaluating their credibility." Bradley v. Henry Townsend Moving and Storage Co., 78 N.J. 532, 534 (1979) and Close, supra, at 589. In short, a compensation judge's decision will be affirmed if the appellate court is satisfied that the conclusions the judge reached were supported by sufficient credible evidence at trial.
  
  See gen. Zimbitsky v. County of Morris, A-2429-08T1 (App. Div., decided January 15, 2010).]]>Gregory Lois, Esq.New Jersey2010-02-03T08:07:48-05:00www.greglois.com/files/4c98a827aca927955fd6c1bf0de4a1a3-134.html#unique-entry-id-134www.greglois.com/files/4c98a827aca927955fd6c1bf0de4a1a3-134.html#unique-entry-id-134The New Jersey Workers' Compensation Act permits dismissed claims to be restored "for good cause shown" within one year of the dismissal. N.J.S.A. 34:15-54 provides, in pertinent part:
  
  No petition shall be dismissed for want of prosecution or for failure to formally adjournt he cuase, until after notice shall be served by the respondent on the petitioner or his attorney that unless the cause is moved for hearing within one month from the date of service thereof, the claim will be considered abandoned and the petition dismissed subject, however, to the right to the right to have the petition reinstated for good cause shown, upon application made tot he deputy commissioner before whom the matter was heard or to the Commissioner of Labor within one year.
  
  "Good cause" means "a substantial reason that affords legal excuse for the default." Nemeth v. Otis Elevator Co., Inc., 55 N.J. Super. 493, 497 (App. Div. 1959).
  
  In a recent case a claim was dismissed for 'lack of prosecution' on June 30, 2006. The petitioner then decided to represent herself 'pro se.' The claiamnt signed and mailed a Motion to Restore her claim petition on June 29, 2007. The Motion to Restore was received and filed by the Division of Workers' Comepnsation on July 3, 2007. The employer objected to the case being restored, as the claimant's motion to resore the case was not received until after the one-year deadline set forth in the statute.
  
  The Judge of Compensation granted the motion to restore, despite the fact that the motion was technically "late." The Judge considered the fact that the claimant had signed and mailed the motion before the one-year mark, and attributed the delay in filing to internal office procedures at the Division of Workers' Compensation. Further, the Judge found that "the petitioner attempted to comply, and the statute should be 'liberally construed' to permit the restoration of the motion.
  
  The Appellate Divison that reviewed this case gave deference to the finding of the Workers' Compensation Judge restoring the motion based on the premise that the claimant had 'signed and mailed' the Motion to Restore before the one-year time limit. Further, the Appellate Court noting "the legislative intent and public policy will be furthered by a liberal cionstruction of the Workers' Compensation Act in order to reach a salutory and remedial result favorable to the injured worker, rather than one necessarily dictated by the 'coldly literal import' of the legislation." (Citing Camp v. Lockheed Electronics, Inc., 178 N.J. Super. 535, 546, cert. denied, 87 N.J. 415 (1981).
  
  Case: Zimbitsky v. County of Morris, A-2429-08T1 (App. Div., decided January 15, 2010).
  ]]>Gregory Lois, Esq.Workers Compensation2010-02-03T06:24:21-05:00www.greglois.com/files/21fccb36f223fa4966c47033c55d0df7-145.html#unique-entry-id-145www.greglois.com/files/21fccb36f223fa4966c47033c55d0df7-145.html#unique-entry-id-145Gregory Lois, Esq.Firm News2010-01-30T07:46:20-05:00www.greglois.com/files/ad4a69fe19f5a3debd8efca3e66b8817-133.html#unique-entry-id-133www.greglois.com/files/ad4a69fe19f5a3debd8efca3e66b8817-133.html#unique-entry-id-133
  Greg practices in New Jersey and New York with offices in both states.]]>Gregory Lois, Esq.New York2010-01-25T20:16:53-05:00www.greglois.com/files/501a4ebac1f6af99512c4e4d71d2a368-130.html#unique-entry-id-130www.greglois.com/files/501a4ebac1f6af99512c4e4d71d2a368-130.html#unique-entry-id-130He then filed a negligence action against multiple defendants, including the subcontractor from whom he recovered workers’ compensation benefits. The defendant subcontractor filed a motion for summary judgment, contending the action was barred by the exclusive remedy provisions of the workers’ compensation law. The motion was denied. The appellate court affirmed, finding that the subcontractor's evidence, including the deposition testimony of its president, revealed that there were issues of fact as to the actual identity of the carpenter's employer. The administrative finding that the injured carpenter was entitled to recover compensation benefits from the subcontractor was not conclusive proof that he was employed by them.]]>Gregory Lois, Esq.Medicare2010-01-25T20:14:01-05:00www.greglois.com/files/cf84532bba57823d75a27412966d8f04-129.html#unique-entry-id-129www.greglois.com/files/cf84532bba57823d75a27412966d8f04-129.html#unique-entry-id-129Previously there was no case in which Medicare sought reimbursement of “conditional payments” directly from insurance carriers contributing to a settlement.
  That is no longer the case.
  In the recently-filed U.S. Court action (Untied States v. James J., Stricker) Medicare is seeking recovery of conditional payments based upon the Medicare Secondary Payer Statute (MSP). This Complaint seeks recovery from both the liability carriers and the plaintiffs' counsel.
   In Stricker a class action claim was settled without reimbursing Medicare for conditional payments.
  In addition to seeking the conditional payments, interests and penalty, the government is requesting "[the insurers] must give CMS notice of all future payments to Medicare beneficiaries and [the carriers] must ensure before any future settlement payment is made to any claimant that appropriate payment is made to the United States."
   We think this language signals Medicare’s ultimate goal: to proceed directly against liability carriers for pre and post-settlement Medicare expenses. Our interpretation of the Act has also been that this was possible.]]>Gregory Lois, Esq.New Jersey2010-01-25T20:06:58-05:00www.greglois.com/files/f5c7245dd73c247adae4f6e787901d82-127.html#unique-entry-id-127www.greglois.com/files/f5c7245dd73c247adae4f6e787901d82-127.html#unique-entry-id-127Governors have long used the workers’ compensation bench to reward loyal donors and friends. According to Chief Judge Calderone “the new judges create serious administrative problems.” Simply stated, the Division of Workers’ Compensation has no where to put all of these new judges - there is a lack of courtroom space and administrative staff (according to Calderone). Worse, the newly-hired judges come from all over New Jersey - and assigning these Judges must take into consideration long commute times.
  Chief Judge Calderone stated that current sitting Judges will spend less time on the bench - by taking a mandatory “extra office day” per week - to give the newly-hired Judges something to do. In other words, to make work for the new Judges, the veteran Judges will be given mandatory “rest days.”
  We can also expect that current assignments will be shuffled and that the average number of cases on any one docket will be reduced.]]>Gregory Lois, Esq.New York2010-01-22T13:53:51-05:00www.greglois.com/files/bc574ce55b1fb7359703e71fc4d87401-126.html#unique-entry-id-126www.greglois.com/files/bc574ce55b1fb7359703e71fc4d87401-126.html#unique-entry-id-126The WCB allows certain forms to be attached to emails and sent to wcbclaimsfiling@web.state.ny.us.
  Please note that a separate email is required for each claimant. You must put the case number (the WCB case number) in the ‘subject line’ of the email. Forms that cannot be emailed include those forms that require a verification of original signature.]]>Gregory Lois, Esq.New Jersey2010-01-14T20:28:02-05:00www.greglois.com/files/02ad71c65cc2c737f3df12cf49f5a1e0-132.html#unique-entry-id-132www.greglois.com/files/02ad71c65cc2c737f3df12cf49f5a1e0-132.html#unique-entry-id-132This is an extremely liberal interpretation of the ‘coming and going’ rule in New Jersey.
  The Statute which controls when and where and injury is compensable states: “employment [starts] when an employee arrives at the employer's place of employment to report for work and [ends] when the employee leaves the employer's place of employment, excluding areas not under the control of the employer; [unless] the employee is required by the employer to be away from the employer's place of employment, [in which case] the employee [is] deemed to be in the course of employment when engaged in the direct performance of duties assigned or directed by the employer.” (See N.J.S.A. 34:15-36.) The Act provides exceptions for
  paid travel time;
  employees using an employer-authorized vehicle; and
  travel by emergency personnel (fire, police) traveling to an emergency.
  Generally, off-premises travel to and from work is not compensable, UNLESS the employer provides the transportation.
  Further, injuries that occur during on-site lunch breaks and coffee breaks are generally found compensable by the New Jersey courts.
  In this new case (Cooper v. Barnickel Enterprises Inc., App. Div. Decided Jan 14, 2010) the Court took note of the fact that the claimant was working on a ‘remote’ job site in a “rural area.” Therefore, the claimant’s was entitled to travel a “reasonable distance” from the place at which the off-site employee was waiting to attend his work-related meeting and the coffee break was equivalent to that of an on-site employee.]]>Gregory Lois, Esq.Workers Compensation2010-01-12T20:26:02-05:00www.greglois.com/files/21ca08206c4d8ee1660e0cc742b75354-131.html#unique-entry-id-131www.greglois.com/files/21ca08206c4d8ee1660e0cc742b75354-131.html#unique-entry-id-131While filming Wehnke on his property, Brady was shot by Wehnke. Brady’s injuries included wounds to back, side, and leg. Brady required surgery to recover from his wounds, inflicted by Wehnke’s shotgun.
  Wehnke claims the shooting was accidental and that he was shooting at some turkeys in his field.
  Wehnke claimed that he “didn’t see” Brady crouching in a his field to obtain video surveillance footage. Wehnke claims he was shooting at the wild turkeys which were allegedly present. Challenging Wehnke’s story of an ‘accidental’ shooting is the fact that the turkey season had been over (closed) for months and that he was allegedly using the wrong ammo for hunting turkeys.
  Wehnke has been charged with felony-degree assault and weapons charges. A grand jury handed down three indictments. This is the first case we are aware of in which an insurance investigator was shot.
  Without a doubt, Investigator Brady is due worker’s compensation benefits!]]>Gregory Lois, Esq.Medicare2010-01-11T19:43:00-05:00www.greglois.com/files/6a5c80dd2b52104f747f8c256f567900-125.html#unique-entry-id-125www.greglois.com/files/6a5c80dd2b52104f747f8c256f567900-125.html#unique-entry-id-125
  “The Board has been asked about the use of indemnification or hold harmless provisions in Section 32 agreements to protect a carrier or employer from liability of medicare payments related to an established workers’ compensation claim. The Board will not approve agreements containing such indemnification for payments made by Medicare for services provided prior to the Section 32 agreement.”
  
  Workers’ Compensation Law Section 32 (part b1) directs the WCB to disapprove unfair agreements. We expect the WCB to decline to approve Section 32s where there have been conditional payments made by Medicare and the carrier seeks indemnification. (We also think such a disapproval would be appealable under Section 23). Of course, a Section 3 can be ‘silent’ on the conditional payment issues, but we continue to recommend that the payments be addressed at time of settlement.]]>Gregory Lois, Esq.New York2010-01-08T20:09:58-05:00www.greglois.com/files/ea08ffe777388fc627dd957a6d5c1d7d-128.html#unique-entry-id-128www.greglois.com/files/ea08ffe777388fc627dd957a6d5c1d7d-128.html#unique-entry-id-128As of July 1, 2010 the maximum rate will be adjusted again and will be pegged to the State Average Weekly Wage. as of July 1, 2010 the rate will be two-thirds of the NY State Average Weekly Wage (“SAWW”). The rate will then follow the SAWW.
  New Jersey has long pegged the state ‘maximum’ temporary and total disability rates to the SAWW. This method has resulted in an ever-increasing maximum total disability compensation rate. The 2010 “maximum” rate in New Jersey is $794 per week. Despite the recession, and falling ‘real’ wages, the NJ SAWW keeps rising. How is that?
  The answer is that the New Jersey Department of Labor simply “makes up” a SAWW based on a secret formula. The SAWW number derived has absolutely nothing to do with reality - and differs (significantly) from the SAWW computed by the Federal Bureau of Labor Statistics. Other NJ SAWW figures, using Federal unemployment claims as a basis for determining actual weekly wages, would yield an even lower figure for NJ SAWW.
  So far, no word from NY as to how the NY SAWW is going to computed. If NJ is any example, we can expect that the resulting SAWW figures will not reflect the actual SAWW. The figure has not been announced yet. We will keep you up-to-date with this important information.]]>Gregory Lois, Esq.News2010-01-02T13:25:11-05:00www.greglois.com/files/19adfffd491189766966ad1788bf822d-123.html#unique-entry-id-123www.greglois.com/files/19adfffd491189766966ad1788bf822d-123.html#unique-entry-id-123here for free. System requirements: OS X 10.6 or higher.
  
  ]]>Gregory Lois, Esq.New Jersey2009-12-16T17:07:35-05:00www.greglois.com/files/caed988ed80008826b9819fb70226096-122.html#unique-entry-id-122www.greglois.com/files/caed988ed80008826b9819fb70226096-122.html#unique-entry-id-122one newsletter that will cover New York and New Jersey workers' comp. Check out the new format here. ]]>Gregory Lois, Esq.New Jersey2009-12-07T21:52:00-05:00www.greglois.com/files/322856d995e44e6fbf8828166d1a3724-114.html#unique-entry-id-114www.greglois.com/files/322856d995e44e6fbf8828166d1a3724-114.html#unique-entry-id-114
  What this means is that in many situations, particularly those where there may be dual employment, potential litigation targets bend over backwards to prove that they are, indeed, an employer and therefore responsible only for their portion of workers' compensation costs - and not liable in superior court for a civil judgment. In fact, much of the case law in New Jersey on the topic of "co-employment" or "dual employment" has been generated by targets of litigation fighting to show that they were, in fact, the employer of the injured party and therefore entitled to the "workers' comp bar" (the immunity from civil suit afforded an employer is commonly referred to as the "comp bar.")
  
  In a recent case, the decedent was the superintendent at an apartment building. One business entity, "Lincoln Avenue Corp" provided free rent to the claimant, who was required to live 'on the premises.' Another business entity, "TR Mudnick" actually paid the employee his salary.
  
  While these two entities had different names, the two entities shared the same corporate officers, both paid the claimant wages, and being the same entity, each had control over the way he carried out his duties. In so ruling, the Court found that 'free rent' was akin to paying wages.
  
  The result of this ruling - finding that both 'Lincoln Avenue Corp' and 'TR Mudnick' were employers - meant that the claimant's only recourse against those employers was his workers' compensation claim.
  
  This ruling is an important one for employers in similar situations, and employers who (for example) have one company that "operates" a facility and another that "owns the property" that the facility occupies. In cases where the owner of the property - even if that is the same as the 'actual' owners of the operating entity - may be exposed for civil claims from their employees.
  
  Case: Montalvo v. Lincoln Avenue Corporation and City of Newark, A-0904-08T3 (App. Div., decided October 30, 2009).]]>Gregory Lois, Esq.New York2009-12-06T22:05:12-05:00www.greglois.com/files/deb6c13e1f50739c6cf71dc40740c454-121.html#unique-entry-id-121www.greglois.com/files/deb6c13e1f50739c6cf71dc40740c454-121.html#unique-entry-id-121
  1. Video.
  
  In a recent case, a New York Appellate Court affirmed a disqualification from benefits where video surveillance of the claimant showed him going to and leaving a medical examiner's office with a leg brace and a cane AND A WALKER. While that portion video (a cane and a walker!?! How could he even do that with only hands!?!) showed a severely disabled accident victim, later scenes, in which the claimant is able to move his leg freely, and without a brace, a cane or a walker, showed that he actually had no impairment in his daily activities.
  
  The WCB ruled that the claimant had violated WCL Sect. 114-a and was disqualified from comp benefits. The appellate panel, on review, affirmed that disqualification.
  
  Case: Retz v. Surpass Chem. Co., 834 N.Y.S.2d 389 (2007).
  
  2. Statements - outside of court.
  
  Video can be persuasive, but even better than video is the claimant's own words. In another recent case, an employe neglected to reveal a prior, very significant injury that resulted in neck and back injuries when filling out forms to obtain workers' comp benefits. The claimant repeated answered "No" on multiple daily activities questionnaires that asked "Did you have any injuries, illnesses, or limitations before this workers' comp injury?"
  
  The claimant, who had suffered severe cervical and lumbar injuries just prior to his workers' comp claim, failed to disclose those injuries. The claimant argued that the questions were ambiguous and that he wasn't sure exactly what he was being asked. The WCB determined that the claimant knew he was providing false information in connection with his workers' comp claim and disqualified the claimant from further benefits.
  
  Case: Husak v. New York City Transit Authority, 836 N.Y.S. 2d 319 (2007).
  
  ]]>Gregory Lois, Esq.New York2009-12-03T22:03:00-05:00www.greglois.com/files/6059c535a476549f0249a3ffeac6c993-119.html#unique-entry-id-119www.greglois.com/files/6059c535a476549f0249a3ffeac6c993-119.html#unique-entry-id-119
  In Murphy v. Mt. Sinai Hospital, 829 N.Y.S. 2d 728 (App. Div. 2007) a nurse practitioner sustained multiple injuries in a traffic accident while attending a 'continuing eduction' conference. Attendance at the conference was a 'mandatory' requirement of his position. The claimant had been encouraged to go to the conference by his supervisor. The claimant testified that his supervisor had handed him the brochure advertising the conference.
  
  The employer denied that the injuries were a direct result of the employment - and that attendance at the conference did not 'directly' benefit the employer.
  
  The WCB found that "an act outside of an employee's regular duties which is undertaken in good faith to advance the employer's interests is generally within the course of employment." Therefore, any injuries arising from the act (in this case, a motor vehicle accident) were compensable.
  
  In so ruling, the WCB looked at the factual circumstances surrounding the educational conference. The WCB was impressed by the following: (1) The employer paid remuneration for two "conference days"; (2) the employer 'encouraged' the employee to attend the conference; and (3) attendance was a 'mandatory' requirement for the position.
  
  
  ]]>Gregory Lois, Esq.New York2009-12-01T22:04:00-05:00www.greglois.com/files/ce40d313bee6f8afaa26872c8e2b11f3-120.html#unique-entry-id-120www.greglois.com/files/ce40d313bee6f8afaa26872c8e2b11f3-120.html#unique-entry-id-120
  The decision of the WCB strictly construed that workers' comp law - the 'surviing spouse' langauge. According to the facts of the case, John Langdon and his partner, Neal Spicehandler participated ina 'civl union ceremony' in Vermont in 2000. According to the Vermont 'specil statute' authorizing the ceremony, the participants in the 'union ceremony' are not legal "spouses." Fo that reason, the New York court refused to grant death benefits to Spicehandler.
  
  This is a significant departure from New Jersey law, which specifically includes members of a 'domestic partnership' recognized under New Jersey law (since 2007) - and provides the same benefits to parties in a civil union as to married spouses.
  
  Case: Langan v. State Farm Fire & Cas., 2007 N.Y. App. Div. LEXIS 13242 (N.Y. App. Div. Dec. 27, 2007).]]>Gregory Lois, Esq.New Jersey2009-11-21T22:01:00-05:00www.greglois.com/files/208b6be446c813b0c856c38df52cd4fb-118.html#unique-entry-id-118www.greglois.com/files/208b6be446c813b0c856c38df52cd4fb-118.html#unique-entry-id-118
  The facts of the case established that the petitioner, Lori ross, was the victim of an organized "rumor" campaign at the hands of Cassandra Dickerson. according to the decision, Dickerson was 'jealous' of compliments that a shared supervisor directed to Ross. As a result, she began a smear campaign about the petitioner, allegin sexual indiscretions and crafting stories of escapades which occurred during business travel.
  
  The claimant was also the subject of a pornographic cartoon depicting her relationship with another co-worker. There was also testimony that rather than address these problems head-on, the City attempted to lay off the offended worker.
  
  The petitioner presented evidence that she suffered from 'Adjustment Disorder with Mixed Anxiety and Depressed Mood.' The testifying psychiatrist attributed this condition tot he claimant's employment experiences, which were described as an "unhealthy work environment." The Judge agreed, and found in favor of the claimant.
  
  The facts in this case are extraordinay and show a very dysfunctional workplace in which the claimant can show a pattern of peculiar stresses which amount to more than just a psychiatric reaction to the work itself.
  
  In New Jersey, a psychiatric injury can be compensable by itself - that is, without any physical injury. This was recognized by the Court in Williams v. Western Electric Co., 178 N.J. Super. 571, 577 (App. Div.), cert. denied, 87 N.J. 380 (1981). That doesn't mean that any psychiatric reaction tot he workplace is compensable - just those in which the claimant can meet their burden of proof that the work exposure was a 'material' contributing cause of the alleged psychiatric injury.
  
  The Courts later ruled that the workplace exposures must be 'peculiar' - that is, the workplace conditions must be uniquely linked to the employment, and the medical opinion must be supported by objective evidence. In the Ross case, the work exposures were indeed peculiar: dirty cartoons and an organized smear campaign could not be considered a 'regular' part of a 'normal' employment anywhere.
  
  "regular' incidents of employment, common to all jobs, such as a layoff notice, a bad review, or even a normal dressing-down by a superior, are not the basis for a compensable psychiatric claim in New Jersey.
  
  Workplace psychiatric claims always boil down to a fact analysis. This must be applied on a case-by-case basis. If a claimant can show that the working conditions are 'objectively stressful' and 'peculiar' to that specific employment, the claim may be compensable.
  
  Case: Lori Ross v. City of Asbury Park, A-0379-08T3, (App. Div. Decided Nov. 23, 2009). ]]>Gregory Lois, Esq.New Jersey2009-11-20T22:00:00-05:00www.greglois.com/files/180a69f74a1d38ef79adfd54ae371db7-117.html#unique-entry-id-117www.greglois.com/files/180a69f74a1d38ef79adfd54ae371db7-117.html#unique-entry-id-117
  This sad state of affairs gives rise to a recent decision that examines what happens when an employee collects workers' comp benefits in one state but live sin another, where he recovers under an Uninsured Motorist policy.
  
  In a recent case, a New Jersey state employee was injured while driving a New Jersey-issued car. He recovered New Jersey workers' compensation benefits. Apparently, the vehicle which struck his official vehicle was not identified or did not carry insurance. So, the employee brought a claim for "Uninsured Motorist" benefits against his own (personal) auto policy (a personal policy under Pennsylvania law).
  
  The New Jersey workers' comp insurer asserted a lien against any recovery the petitioner recived from his personal auto insurer.
  
  If the claimant was a New jersey resident, this would be a 'no-brainer': the workers' comp carrier would pay medical, temporary, and permanency benefits and then recover a lien against the UM (uninsured motorist) carrier. However, this claimant accepted new jersey benefits, then recovered under his Pennsylvania auto policy, and then resisted reimbursing the New Jersey carrier, stating that he was entitled to keep both recoveries because Pennsylvania law allowed him to.
  
  The New Jersey workers' comp Judge relied on New Jersey state law - which forbids double recovery - and Ordered the claimant to reimburse the New Jersey Workers' Comp carrier. The claimant appealed.
  
  On appeal, a three-Judge panel (including Judge Maryann Espinosa, formerly a partner at Tompkins, McGuire, Wachenfeld & Barry) ruled that the Judge of Compensation should have performed a 'conflict of laws' legal analysis before summarily ruling that New Jersey law controlled. The case was remanded to the New Jersey workers' comp Judge to make a final decision.
  
  Conflict of laws issues crop up all the time - most often in cases where a claimant live sin one state and works in another. Some states (like New York) have 'carve outs' where specific amounts ($50,000, in New York's case) are immune from subrogation by a comp carrier. The attorneys at Tompkins have been successfully arguing these cases for years - arguing that New Jersey law controls in issues of subrogation. We sty up-to-date on all changes in this area of the law and keep you informed as well!
  
  Case: Terrence Johnson v. State of New Jersey, A-3202-07T3 (App. Div. Decided Nov. 20, 2009).]]>Gregory Lois, Esq.New Jersey2009-11-10T21:58:00-05:00www.greglois.com/files/e6da52a26b5afe4913520435b8c9d042-116.html#unique-entry-id-116www.greglois.com/files/e6da52a26b5afe4913520435b8c9d042-116.html#unique-entry-id-116
  Some facts: the claimant, Richard Holle was a funeral director who was injured at work in 1985, getting an award of 60% partial total (remember: 75% of partial total is deemed 'totally disabled' in New Jersey). Over the next 13 years he succeeded in having this finding of disability increased from 60% to 65% and then 'totally disabled.'
  
  The issue before the court: was the claimant working for the respondent at the time he was deemed 'totally disabled', and if so, how would his wages be computed? This was a huge question because the claimant "sold the business' to family members under an "installment contract" that paid the claimant fixed sums for twenty years - and that in return, the claimant continued to act as a funeral director at the funeral home, meeting clients, residing on the premises, holding a state funeral license, and assisting in making funeral arrangements.
  
  If the claimant was indeed working (as the comp Judge found he was) then the claimant would only be due $5 per week for 'permanent, total disability.' This is due to a 'quirk' in the New jersey law which states that if a claimant can earn wages that exceed the wages he earned at the time he was injured, then the employer must pay only $5 per week to the claimant until such time as the claimant's wages fall below his pre-injury earnings.
  
  In this case, the claimant's pre-injury earnings (in 1985) were MUCH LESS than his income under his 'installment contract.' This means that the Comp Judge's ruling - that the 'installment contract' is really the equivalent of wages given what the claimant is actually doing for the funeral home - would entitle the petitioner to only $5 a week in compensation.
  
  The Appellate Division screwed this one up - finding that the Comp Judge needed to make "further findings . . . as to whether petitioner's receipt of payments under the installment contract can qualify as wages or earnings."
  
  Case: Richard J. Holle v. Jacob A. Holle Funeral Home, A-3632-08T2 (App. Div., decided November 5, 2009). ]]>Gregory Lois, Esq.New Jersey2009-11-06T21:57:00-05:00www.greglois.com/files/3f03dbd58e35dbef4c476ef4c33c0bc4-115.html#unique-entry-id-115www.greglois.com/files/3f03dbd58e35dbef4c476ef4c33c0bc4-115.html#unique-entry-id-115
  This decision hurts Rutgers. Unfortunately, Rutger's counsel apparently waited until AFTER the trial was concluded - and the Judge rendered his decision - to bring up the videotape.
  
  Case: Scott Del Vecchio v. Rutgers, A-2780-08T3 (App. Div., decided November 5, 2009).]]>Gregory Lois, Esq.New York2009-11-03T20:18:00-05:00www.greglois.com/files/5b57f875fd77720b8a5eb9825ead893f-109.html#unique-entry-id-109www.greglois.com/files/5b57f875fd77720b8a5eb9825ead893f-109.html#unique-entry-id-109The employer was able to establish, through the investigator's testimony and the videotape evidence, that the claimant worked at a coffee shop serving customers and regularly made candy which was sold at a candy store.
  While engaging in these activities, the claimant completed questionnaires stating that she was ‘totally’ unable to work, and stated that “she had not engaged in work activity for any employer.” In fact, the claimant completed 11 separate questionnaires during this period of work, in each claiming that she had no employment.
  The WCB ruled that the claimant was a fraud and disqualified her for further benefits. The Board also ordered the claimant to repay the benefits she had already received (pursuant to Workers’ Compensation Law Section 114-a).
  On appeal, the Appellate Court found that the claimant had misrepresented her working ability to obtain benefits. The Appellate panel relied on the findings of the WCB that the claimant was not credible, and her statements that when caught working she was “just helping out a friend” were not believable. Further, they discounted her excuse that “she didn’t think part-time work” counted as work, and that she “didn’t think she had to report part-time work” in answering the questions.
  Practice Tip: Good follow-up here by the carrier - in reviewing the responses of the claimant and assigning an investigator.
  Case: Hammes v. Sunrise Psychiatric Clinic, ___N.Y.S.2d ___ (N.Y. App. Div. 3rd Dep’t, Decided October 29, 2009).]]>Gregory Lois, Esq.New York2009-11-02T20:25:13-05:00www.greglois.com/files/098abcd41d798eea1de299e191ac6ed8-112.html#unique-entry-id-112www.greglois.com/files/098abcd41d798eea1de299e191ac6ed8-112.html#unique-entry-id-112In Frederick v. Lindenhurst, decided october 8, 2009, the Appellate Court reviewed a case where an employee custodian was found dead in the school’s boiler room. An autopsy was performed. According to the autopsy report, the death was attributed to arteriosclerotic heart disease. This disease is frequently referred to as ‘hardening of the arteries’ and comes from a buildup of fatty plaque on the walls of the main arteries. This disease is not ‘peculiar’ to any employment.
  Both the autopsy report and the death certificate found that the decedent’s cause of death was arteriosclerotic heart disease. The employer disputed that the death was related, and the WCB agreed. The decedent’s dependent’s appealed.
  The Appellate Panel found that “substantial evidence” will rebut the presumption that unwitnessed deaths are related tot he employment. In this case, the cause of death was known: arteriosclerotic heart disease. The Appellate Division stated that absent any medical evidence that would call that conclusion into question or otherwise suggest that the decedent’s work and his death were causally linked, the opinion of the WCB must stand. The Appellate Panel repeated the case law that instructs that the employer doe snot have to rebut or meet every allegation presented by the dependents in order to overcome the assumption: in other words, if the claimant alleges that the ‘heat’ of the boiler-room, plus the claimant;s work effort, ‘combined’ to cause his cardiac condition to erupt, the employer doe snot have to meet each theory separately in order to overcome the presumption of compensability, just offer a medically-sound evidence of contrary causation.]]>Gregory Lois, Esq.New York2009-11-02T20:23:39-05:00www.greglois.com/files/3f5a649160404cc9c575d201f00d59bd-111.html#unique-entry-id-111www.greglois.com/files/3f5a649160404cc9c575d201f00d59bd-111.html#unique-entry-id-111Curtis v. Xerox, N.Y.A.D. 3rd Dep’t, ___ N.Y.S.2d ___ (decided October 8, 2009), the claimant alleged that her 33 year employment caused her to develop occupational conditions related to her use of a computer keyboard. The claimant stopped working in July 2005, and thereafter visited the employer’s ‘plant medical department’ receiving treatment. The Workers’ Compensation Law Judge (WCLJ) directed the employer to produce the records of this treatment. The employer failed to do so.
  After trial, the WCLJ issued an opinion denying the claimant’s occupational claims. On appeal, the Workers’ Compensation Board ordered the employer to produce the records within two weeks, or be subject to an ‘inference’ at trial that the occupational disease was causally related to the employment.
  At trial, the employer produced a lay witness to state that no medical records existed for the claimant. Once again, after trial, the WCLJ dismissed the case, stating that there was insufficient proofs to establish the occupational claims.
  Once again, the trial decision was reversed by the WCB, who found that “testimony regarding the non-existence of records” was improper. The WCB found the occupational claims “causally related” to the employment.
  The employer appealed.
  On appeal, the Appellate Division agreed with the employer, that testimony that “there were no records” should not have been precluded. However, the Appellate Division stated that the decision of the WCB was ‘supported by substantial credible evidence’ and they affirmed the award of compensation. The Appellate judges went on to state that WCLJ ‘abused his discretion’ by allowing the employer multiple adjournments to locate the medical records/testimony requested by the Judge.]]>Gregory Lois, Esq.New York2009-11-02T20:21:33-05:00www.greglois.com/files/f526bae35c55193bb9a16c8b241b41ba-110.html#unique-entry-id-110www.greglois.com/files/f526bae35c55193bb9a16c8b241b41ba-110.html#unique-entry-id-110The employer denied the causal relationship of the stroke tot he work. A hearing was held (but no testimony was produced) and the Workers’ Compensation Law Judge determined there was ‘no prima facie medical evidence of causal relationship between the stroke and the employment’ and the claim was NFA’d (designated for ‘No Further Action.’)
  The claimant appealed to the Workers’ Compensation Board (WCB), who affirmed the denial. The claimant appealed the WCB’s denial to the Appellate Division.
  The Appellate panel found that the employer “never refuted the allegation that the onset of the claimant’s symptoms occurred while he was at work” and that therefore the claimant was entitled to the statutory presumption that the stroke arose out of the employment (WCL Sect. 27). The Appellate panel found that the WCB erred by requiring the claimant to establish his case before the employer refuted it: in essence, the panel found that the employer “must . . . .be afforded the opportunity to rebut the presumption [of compensability].”
  Practice tip- in this case, the fact pattern must have been very clear to the employer and the WCLJ: the stroke didn’t happen at work, and the medical records probably bore that out. However, even where the employee fails to establish the ‘seemingly’ bare minimum proofs to establish his claim, the employer must be prepared to present the employer’s proofs - to make a record that will withstand appeal.
  Case: Browne v. New York City Transit Auth., ___ N.Y.S. 2d ___ (N.Y. App. Div. 3rd Dep’t, Decided October 29, 2009).]]>Gregory Lois, Esq.New Jersey2009-11-02T20:12:44-05:00www.greglois.com/files/d3fc82004449ff24bd5a21cff68f62dd-107.html#unique-entry-id-107www.greglois.com/files/d3fc82004449ff24bd5a21cff68f62dd-107.html#unique-entry-id-107After the bank refused to honor the original check, the claimant requested that another draft be issued. the respondent complied, and issued a replacement check on July 26, 2006. The claimant deposited the check and enjoyed the proceeds.
  The claimant then filed a 're-opener' application on August 28, 2007, alleging that her disability had increased since the entry of her February 5, 2005 settlement and that she was entitled to more compensation.
  The respondent raised the statute of limitations as a defense to the re-opener. Under the New jersey Workers' Compensation Act, a claimant has "two years from the date when the injured person last received a payment upon the application of either party on the ground that the incapacity of the injured party has subsequently increased" to file a 're-opener' claim. The respondent argued that the claimant has two years from the date of the original check being issued - not two years from the date the replacement checked was actually cashed - to re-open her claim. Under this reasoning, the claimant was 'out-of-time' on her re-opener.
  The Appellate Court agreed: regardless of when the draft was actually cashed, the claimant's opportunity for re-opener was governed by the date the respondent delivered the original check to the petitioner.
  Case: Paladino v. Pier One Imports, App. Div. 39-2-5671 (Decided October 26, 2009).]]>Gregory Lois, Esq.New Jersey2009-11-01T20:14:00-05:00www.greglois.com/files/48e31bfaae394dc759542fc1d6dbe52a-108.html#unique-entry-id-108www.greglois.com/files/48e31bfaae394dc759542fc1d6dbe52a-108.html#unique-entry-id-108The definition of employee for workers’ compensation purposes has always been fluid: the workers’ comp courts apply a different standard than does the IRS, for example. In New Jersey, the definition of ‘employee’ is “all natural persons . . who perform a service for an employer.” Therefore, a variety of working relationships have been held to be covered by the Act, including those not necessarily confined to traditional employment settings. The courts have frequently ‘revisited’ this definition of ‘employee’ because there are many cases where either the (alleged) employer or the (alleged) employee have sought to have the particular employment recognized - because employers may benefit (in certain cases) from an expanded definition of “employee,” where an ‘expanded’ or “liberally applied” definition of employment may prevent civil claims.
  In the recently-decided Federal case, Kleschick v. Hope Depot, United States District Court 02-3120 (Decided October 9, 2009) , the issue was squarely put to the deciding Judge.
  Kurt Kleshick, owns a company called ‘Hydrate Irrigation’ which installs irrigation systems. On May 16, 2000, his wife Marianne Kleshick was injured while using a tool (a grinder manufactured by ‘Makita’ and sold by Home Depot). Marianne Kleshick brought a suit against Home Depot and Makita for her injuries, which she alleges arise from the use of the allegedly defective tool.
  The Home Depot/Makita implead Kurt Kleshick, owner of Hydrate Irrigation, as a co-defendant. basically, their counterclaim stated that if Marianne Kleshick was injured, it was at least partially the fault of Mr. Kleshick.
  Mr. Kleshick challenged the impleader, stating that at the time of the accident, his wife was a ‘co-employee’ of Hydrate Irrigation, and that a claim against a co-worker was specifically barred by the New Jersey Workers’ Compensation Act.
  Home Depot/Makita argued that Mr. Kleshick was not acting as a ‘co-employee’ at the time of the accident, but instead was merely a “husband helping his wife.” They based this argument on the fact the Mr. Kleshick waived payment for working with his wife on the date of loss. They also raised the possibility that Mr. Kleshick was a ‘causal employee’ - defined as “any job that is not “regular, recurring, or periodic” and in which the services rendered are by chance or by accident” - rather than a legit co-worker.
  The Federal Judge ruled that the parties would have to produce proofs as to the exact roles the Kleshicks were performing - and that Mr. Kleshick was not automatically guaranteed the immunities offered a co-worker under the New Jersey Workers’ Compensation Act.]]>Gregory Lois, Esq.New York2009-10-29T20:27:43-04:00www.greglois.com/files/a1d962db636f6d00d5055456b420bdea-113.html#unique-entry-id-113www.greglois.com/files/a1d962db636f6d00d5055456b420bdea-113.html#unique-entry-id-113Employer IMEs have been facilitated by a group of regulated ‘Independent Medical Examination ‘brokers’ known as IME entities for years. These entities act as go-betweens - findings doctors to perform IMEs, collecting the relevant medical records for the doctor’s review, sending scheduling notices, and collecting the final reports of the physicians to provide those reports to the WCB and the employer (or carrier).
  This process necessarily injects the IME entity into the mix: they coordinate communications with the doctors and are intimately involved in selecting physicians. The entities have also been called in question for practices where they are generating reports for the doctors to sign - commonly ‘transcribing’ the doctors own notes or taped exams. In some instances the IME entities have been accused of generating reports that differ from the doctor’s findings and “changing” IME reports after the doctor has signed off on the report.
  This summer the WCB banned all oral communications between IME entities and the examining physicians - and allowing for all written communications between the parties to be part of the WCB record. This move, coupled with the new IME report form (discussed in out last newsletter) is expected to reduce claims that IME reports are ‘tampered with’ by the IME entities entrusted with facilitating those examinations.
  ]]>Gregory Lois, Esq.New Jersey2009-10-14T09:46:09-04:00www.greglois.com/files/8d44cf9e0c092ed3a644524024d230d0-106.html#unique-entry-id-106www.greglois.com/files/8d44cf9e0c092ed3a644524024d230d0-106.html#unique-entry-id-106
  In a comp-related twist, the partner of Officer Rios, who was present at the beating but didn't take part in it, is being brought up on charges by the Passaic police for allegedly filing a false workers' comp claim in relation tot he incident.
  
  In her New Jersey claim, officer Erica Rivera claims she was struck repeatedly by her partner's baton as he attempted to subdue the victim of the police attack, Ron Holloway. Apparently, Officer Rivera was unaware that the whole incident was caught on tape: the images show Officer Rivera pacing, mostly at a safe distance, during the beating. Her claim alleges she "was struck accidentally several times with a baton about the body & head."
  
  Link to a news report with video of the beating: http://www.youtube.com/watch?v=0lREauR9TvY]]>Gregory Lois, Esq.New York2009-10-01T21:09:00-04:00www.greglois.com/files/cf59a3e2410c710e163e01a22d107c17-101.html#unique-entry-id-101www.greglois.com/files/cf59a3e2410c710e163e01a22d107c17-101.html#unique-entry-id-101In the case of Donovan v. BOCES Rockland County, 880 N.Y.S.2d 783 (June 11, 2009), the claimant alleged injuries to her left shoulder arising out a a physical altercation with a student (the claimant was a 'speech therapist'). The Workers' Compensation Law Judge (WCLJ) found that the 'credible medical evidence' established that the left shoulder injuries were work-related and the surgical repair was 'necessary.' Compensation was awarded. The parties appealed the the Workers' Compensation Board (WCB), which exercised its discretion to review the case as per WCL Sect 123. The WCB found that the left shoulder claims were "not credible" in reversing her award.
  The case was appealed to the Appellate Division by the claimant, who argued that the WCB erred in finding she lacked credibility.
  On the credibility front, the appeals court granted deference to the findings of the WCB, stating that the Board decision would not be disturbed if it was supported by 'substantial evidence, despite the evidence of evidence which may have supported a different result.' The WCB had relied upon videotape evidence of the claimant's condition, as well as a pattern of "exaggerations which lacked consistency and escalated in magnitude over time." The Appeals panel found that the WCB's decision - that the claimant lacked credibility- was amply supported by the record.
  The claimant also objected that she did not have the opportunity to present her arguments the WCB before the Board reviewed (and reversed) the Workers' Compensation law Judge's decision. The Appellate Court informed the claimant that "it is well settled that the Board's broad jurisdiction includes the power, on its own motion or on application, to modify or rescind a WCLJ's decision."
  Practice tips: First, make use of the application to the WCB for review of unfavorable decisions rendered by a Workers' Compensation law Judge. Next, the employer in this case was well-armed: videotapes can be powerful evidence of malingering. When added together with a penchant for exaggeration, a 'credibility' challenge may be possible. Finally, it is easier to defend a decision of the WCB - so long as it is based on 'substantial' material evidence- than it is to appeal such a decision to the Appeals Court.
  ]]>Gregory Lois, Esq.New Jersey2009-10-01T21:02:00-04:00www.greglois.com/files/8df5859ea8b23e98d228227f8f846cda-99.html#unique-entry-id-99www.greglois.com/files/8df5859ea8b23e98d228227f8f846cda-99.html#unique-entry-id-99Cong Su v. David’s Cookies, 2009 N.J. Super Lexis 2145 (Aug. 10, 2009), serves as illustration of the original purposes of the workers’ compensation system.
  The concept of ‘workers’ compensation’ embodies a historic tradeoff: a compromise between the rights of employees to sue for negligent harm suffered at the hands of a co-worker or employer balanced against the need to deliver medical and wage continuation benefits to injured workers in a timely manner and regardless of fault. The workers’ compensation system is a compromise: employees can’t sue their employers for injuries they sustain at work, and in return, employee are guaranteed medical and wage-continuation benefits regardless of fault. There is an exception to this ‘compromise’ system: an employee can sue their employer for injuries sustained in the workplace if the employee can show that the injuries were ‘intentional.’ In other words, if the employee can show that the employer’s actions were ‘substantially certain’ to place the employee in harms way where injury could result, and the injury was plainly beyond anything the Legislature intended the Workers’ Compensation Act to immunize’ the employee can sue the employer in civil court (where, presumably, a trial by jury could yield an award for pain, personal injury, and economic damages far in excess of the ‘scheduled’ loss the claimant could recover in workers’ compensation court.
  It is because of this delicate compromise of rights that cases where the employee claims to have been ‘intentionally injured’ are scrutinized so carefully. Cong Su is such a case.
  The claimant in Cong Su operated a biscotti machine for her employer. While operating the machine, her hand came into contact with a sharp blade causing severe injuries.
  To prevent a hand from entering the area where the blade was housed, a metal guard was on the machine. The metal guard was designed to keep the workers’ hands nine inches from the metal blade.
  The claimant filed a civil suit against the maker of the machine and her employer. The employer (David’s Cookies) moved to dismiss her claims, arguing that the claimant’s remedy was through the New Jersey Workers’ Compensation Act.
  In the civil suit, the claimant produced an expert who opined about the safety devices on the biscotti machine. According to the claimant’s expert, the metal guard protecting the operator’s hands was insufficient: a worker could easily slip their hand under the metal guard, through a one-and-one-half inch gap and into the cutting blade. Further, petitioner's expert testified that the claimant was illiterate, and was unable to read any warning signs or messages (also, the claimant spoke no English). Finally, it was argued that the claimant injured her hand on the first day on the job, and was inadequately trained to operate the biscotti machine.
  As to ‘foreseeability,’ claimant’s expert testified that “it was not only reasonably foreseeable but substantially certain that somebody would have been seriously injured by this machine.”
  Despite this opinion, the Trial court dismissed the claimant’s action against her employer, finding that her sole remedy against her employer was through workers’ compensation proceedings.
  The claimant appealed this decision.
  The appellate court reviewed the trial testimony, including testimony that no other worker had ever been injured by the biscotti machine.
  The Appellate Court ultimately ruled to affirm the Trial court. In its decision the appellate court found:
  
  • The employer could assume that a rational person would not stick their hand into a running electrical machine without first turning off the power;
    ▪ The failure to “train” the employee did not arise to a level of being ‘certain’ to bring about a specific harm;
    ▪ The failure to supervise the claimant also did not amount to a ‘certainty’ that physical harm would occur;
    ▪ The failure to warn an employee about the potential danger (despite the fact that the employee was illiterate and did not speak English) was not ‘substantially certain’ to cause the employee harm; and
    ▪ No OSHA citations had ever been received in regards to the machine, which militated in favor of the employer’s uncertainty of the machine’s safety (i.e., no citations means the employer could presume the machine safe).
    
  The workers’ compensation claim was the sole remedy for this petitioner.]]>Gregory Lois, Esq.New Jersey2009-09-28T20:51:00-04:00www.greglois.com/files/044cc8d65dffc4dce69f9b9e277ec9cd-97.html#unique-entry-id-97www.greglois.com/files/044cc8d65dffc4dce69f9b9e277ec9cd-97.html#unique-entry-id-97History.
  In July 2001 CMS issued a memo to its regional offices. It suggests that under certain circumstances parties to workers' compensation claims should not settle those cases until after CMS has had an opportunity to review the settlement and approve the allocation to future medical expenses. The memo discusses the circumstances under which the regional offices will “pre-approve” such an allocation. It discusses pre-approval in two categories of cases:
  Cases in which the workers’ compensation claimant is currently entitled to Medicare benefits.
  Cases in which the injured individual has a "reasonable expectation” of Medicare entitlement within 30 months of the settlement date and the settlement is over $250,000 (Patel 2001, Question 1).
  This enforcement of a previously-quiescent right to reimbursement (or set-aside) was new, and it has considerably impacted the handling of workers’ compensation claims since. As the Social Security system (and Medicare) approach the “funding gap” currently projected to be reached in 2018, we can expect that CMS will get more creative in their demands for set-aside and conditional payment reimbursement and increasingly draconian in enforcing their rights.
  Medicare announced that the ‘threshold’ for reviewing cases was to be set at $25,000. Medicare refuses to provide a pre-approval of set-aside unless the lump-sum payment to the claimant exceeds $25,000.
  
  Set-Asides.
  After a case is settled, CMS wants the parties to create some form of “set-aside” arrangement in which the funds for future medical expenses that would be covered under Medicare are placed in a trust or deposited in a separate account. Medicare will begin paying medical bills for the work-related condition only when set-aside is depleted and the funds are accounted for.
  The New Forms.
  Medicare has issued a 38-page 'checklist' including sample forms that it 'recommends' submitters utilize. According to CMS, "cases using this or similar format can generally be processed more quickly with fewer errors - resulting in faster determinations at less cost to submitters and the government." The 'recommended' submission form is divided into numbered sections to correspond to the electronic folders in which CMS scans and files documents for review. For submissions by CD-ROM, grouping and naming documents by the CMS conventions is the preferred method of delivery.
  
  CMS recommends the following numbered sections:
  
  Section 05 - Cover Letter;
  Section 10 - Consent Form;
  Section 15 - Rated Ages;
  Section 20 - Life Care/Treatment Plan;
  Section 25 - Court/WC Board Documents;
  Section 30 - WCMSA Administration Agreement;
  Section 35 - Medical Records;
  Section 40 - Payment Information;
  Section 50 - Supplemental - Additional Information.
  
  We are constantly providing guidance to clients regarding Medicare obligations and liabilities. By publishing these new 'recommendations' we expect that service providers drafting set-aside agreements and claimant's attorneys will be better prepared to obtain CMS approval of set-asides.
  The CMS ‘sample submission’ and ‘checklist’ can be downloaded here (waring: external link to CMS, link is to a PDF).
  ]]>Gregory Lois, Esq.New Jersey2009-09-27T21:07:00-04:00www.greglois.com/files/ebd0aca1ca4177b5476ca25e7e0e9932-100.html#unique-entry-id-100www.greglois.com/files/ebd0aca1ca4177b5476ca25e7e0e9932-100.html#unique-entry-id-100Gregory Lois, Esq.New York2009-09-20T21:12:00-04:00www.greglois.com/files/895e30b2e26df722e52bb43e57b270a8-102.html#unique-entry-id-102www.greglois.com/files/895e30b2e26df722e52bb43e57b270a8-102.html#unique-entry-id-102four years in prison for cheating his workers' compensation insurer. The owner of "Colt Contracting" allegedly concealed the payroll of eight of his employees in order to perpetrate the fraud. The fraud was discovered on September 9th by the New York Insurance Bureau, the New York Insurance Fund, and the office of the Inspector General of the Workers' Compensation Fund.
  
  A second contractor in Long Island (Stephen Schiavoni) was arrested by local police for allegedly hiding 900,000 in contracting sales to defraud his workers' comp insurer of $44,000 in premiums in a one year period (Story from Sept 18, 2009).
  
  A New York police officer lost his claim for compensation benefits and was indicted on one count of offering a false report for filing (a felony) when it was determined that he stabbed himself to collected WC benefits. Johnson City police officer Matthew Romano claimed to have been stabbed by "two men while investigating a suspicious car" on December 30, 2006. After investigation it was learned that the stab wounds were self-inflicted. The officer has been suspended without pay (Sept 11, 2009). He now faces charges of using the mail system to perpetrate a fraud against the employer city.
  Finally, a story as old as time: Monica Martinez of Freeport is accused of working a full-time at dental offices while collecting $39,000 in total disability benefits for neck and back injuries which allegedly prevented her from working. (Story Sept 16, 2009). She is charged with violating the WCL and could face four years in prison if convicted.]]>Gregory Lois, Esq.New York2009-09-14T21:01:00-04:00www.greglois.com/files/73703653dfe9b73213f152a09fccf561-98.html#unique-entry-id-98www.greglois.com/files/73703653dfe9b73213f152a09fccf561-98.html#unique-entry-id-98Nearly 14,000 claims are currently pending before the Board. Of these active claims, about 50% are for victims of the attacks and about 40% are rescue and clean-up workers.
  Carriers have challenged about 40% of the WTC cases, which is approximately double the rate of other claims. 90% of the claims for rescue and clean-up workers are for respiratory-related conditions.]]>Gregory Lois, Esq.New Jersey2009-09-12T11:57:59-04:00www.greglois.com/files/632e036f2c2c2c45599dbde1e574b33b-94.html#unique-entry-id-94www.greglois.com/files/632e036f2c2c2c45599dbde1e574b33b-94.html#unique-entry-id-94Why is this important?
  
  Temporary disability wage-continuation benefits are one of the three main benefits available to injured workers under the New Jersey Workers' Compensation Act.
  
  Temporary disability payments of 70% of the injured workers’ wages for the year in which the injury occurred or his occupational disease became manifest, subject to the annual maximum and minimum, are payable until she is “able to return to work.” These payments continue even if the contract of hire has expired. Therefore a schoolteacher is entitled to receive benefits during the summer recess or the seasonal worker after the end of the season if she is unable to return to work.
  
  Temporary disability payments continue if an employees’ disability is such that she can’t return to her normal job even if she is capable of performing light work and none is offered. The burden is the employer to show that light work was refused by the employee.
  
  When an employee manifests an occupational disease years after her last employment with the respondent the rate of compensation is fixed by her wages at her last employment with that respondent. The rate of compensation is subject to the maximum and minimum rates in effect at the time of the accident or manifestation of occupational disease.
  
  Temporary disability for a part-time employee is based upon her actual part-time wages subject to the maximum and minimum rates in effect at the time of the accident or manifestation of occupational disease. Russell v. Saddle Brook Rest. Corp., 199 N.J. Super. 186 (App. Div. 1985).
  
  An employee who removes herself from the workforce is not entitled to temporary disability for any period after that removal. Tamecki v. Johns Manville, 125 N.J. Super. 355 (App. Div. 1973), cert. denied, 64 N.J. 495 (1974).
  
  A penalty of 25% of the amount due for temporary disability and a reasonable counsel fee shall be imposed upon the respondent who unreasonably or negligently delays or refuses to pay temporary disability or delays the denial of a claim. A delay of 30 days or more gives rise to a rebuttable presumption of unreasonable and negligent conduct on the part of the respondent.
  
  An award of temporary disability and/or medical treatment during the pendency of a workers’ compensation proceeding may be appealed as of right. Hodgdon v. Project Packaging, Inc., 214 N.J. Super. 352 (App. Div. 1986), cert. denied, 107 N.J. 109 (1987). Temporary disability is payable to an employee until he is “able to resume work” even if the contract of hire would have expired (in this case a school teacher during summer recess). Outland v. Monmouth-Ocean Educ. Svc. Comm’n, 154 N.J. 531 (1998).
  ]]>Gregory Lois, Esq.New Jersey2009-09-10T14:44:13-04:00www.greglois.com/files/97899d28ba5e6488421a9718a1e86f4e-96.html#unique-entry-id-96www.greglois.com/files/97899d28ba5e6488421a9718a1e86f4e-96.html#unique-entry-id-96It’s the number one topic of discussion in most New Jersey workers’ comp courthouses. Has the down economy resulted in less claims or more claims? There are two schools of thought: (1) with the down economy, people are more afraid to lose their jobs by filing a workers’ comp claim, so filings will be trending downward; and (2) with the down economy, more laid-off workers will be more likely to file claims. Which one of these is right? Can we expect claims to fall or increase?
  First, we have to admit that there is a data problem. The Division of Workers’ Compensation only published 19 years of historic data, so there isn’t a like period of downturn (the last time unemployment crested 9% Reagan was newly-elected president in 1981). Without hard numbers to crunch (unemployment rate versus number of claims filed) we are left with a statistical analysis of the figures we do have. Even this analysis is going to be severely flawed: New Jersey has been a harbinger of the greater workforce trend of the last thirty-years: the demise of ‘blue collar jobs’ and the rise of the ‘knowledge worker.’ New Jersey’s manufacturing, construction, farm, and trade labor categories have shrunk every year for the past two decades while government (number one growth industry in terms of jobs), professional, academic, and health professions have gained workers. The drop in cl
  aim petitions filed has followed this trend over the past two decades: from 53,637 new claim petitions field in 1990 to only 35,566 new formal claim petitions filed in 2007. Extrapolating from this years’ current inventory of filed claim petitions (23,000), 2009 is on pace for approximately 34,500 claims - which seems in line with last year’s filings. In other words, the gross number of filed claim petitions is likely to fall in 2009-2010, but this is more likely indicative of the general trend of job loss in high-risk industries like manufacturing and construction, rather than reflecting a trend where employees are more timid in suing their employers.
  ]]>Gregory Lois, Esq.New York2009-09-01T21:17:00-04:00www.greglois.com/files/fae9a548f0539cae664b19d231811760-104.html#unique-entry-id-104www.greglois.com/files/fae9a548f0539cae664b19d231811760-104.html#unique-entry-id-104Gregory Lois, Esq.New Jersey2009-09-01T14:40:28-04:00www.greglois.com/files/fb00e9c5813a8d2e0c02a5b2b15b8216-95.html#unique-entry-id-95www.greglois.com/files/fb00e9c5813a8d2e0c02a5b2b15b8216-95.html#unique-entry-id-95The ‘reform’ legislation passed in October 2008 laid the groundwork for this new power. Specifically, Section 79 of the Act allowed the Division of Workers’ Compensation the authority to issue proposed rules describing how the power to ‘stop work’ would be restrained and authorized.
  The proposed rules allow for a stop-work order to be issued if the employer ‘knowingly’ violates the Workers’ Compensation Act. The stop-work provision appears to allow the issuance of the order in the following circumstances:
  Where the employer had workers’ comp insurance but allowed the insurance to lapse or cancelled coverage;
  Where the employer was told by the Division of Workers’ Compensation or another State agency of the need to obtain workers’ comp coverage;
  Where the employer had prior instances of failing to insure;
  Where the employer misrepresents the number or type of employees in order to reduce premium costs;
  where the employer misrepresents thew work classifications of employees to reduce premium costs.
  The stop-work order is to be issued to the particular work-site where the infraction occurred. It is not known (not set out in the proposed rules) whether or not there actually has to be a workplace injury for the Division of Workers’ Compensation to issue a stop-work order. In other words, it is unknown whether this proposed rule is meant to increase compliance with the laws regarding mandatory workers’ compensation coverage or if this proposed rule will merely become another arrow in the quiver of union forces and disgruntled employees.
  New York allowed its Workers’ Comp Board the power to issue stop-work orders in May 2007. Since that time more than 1,000 stop-work orders have been issued and approximately $7 Million in penalties have been issued to New York employers. ]]>Gregory Lois, Esq.New York2009-08-30T21:18:00-04:00www.greglois.com/files/4bec631aed70662201aadc920d1fa5b3-105.html#unique-entry-id-105www.greglois.com/files/4bec631aed70662201aadc920d1fa5b3-105.html#unique-entry-id-105Gregory Lois, Esq.New York2009-08-20T21:14:00-04:00www.greglois.com/files/88b301d1921b6d7eb907050360a60b7e-103.html#unique-entry-id-103www.greglois.com/files/88b301d1921b6d7eb907050360a60b7e-103.html#unique-entry-id-103D'Errico v. New York City Board of Corrections, 883 N.Y.S.2d 828 (Aug. 20, 2009) because the issue of WCB review is important to the practice of Workers' Compensation Law in New York.
  In D'Errico, a city corrections officer alleged that his employment experiences caused him to suffer permanent "major depressive disorder with psychotic features, post-traumatic stress disorder, and panic disorder." The WCB ultimately denied his claims - finding that the claimant was no exposed to a 'greater' amount of work stress than any other 'normally-stuated' correctional officer. The claimant applied for a full Board review.
  Appeal of from a Workers’ Compensation Judge’s decision is not to the appellate court. The first opportunity for review is to a WCB panel.
  Either side may seek administrative review of the decision within 30 days of the filing of the Judge’s decision. There is no specific form for this – but it must be done in writing. A panel of three Board Members will review the case.
  The employer’s attorney does not have to make a record (by taking exceptions, etc) below in order to ‘preserve’ issues for appeal. The WCB panel does a ‘fresh look’ at all of the evidence from the hearing below in reaching their decision. It is the written findings of fact and law of the panel that becomes the record for appeal to the Supreme Court.
  This three-judge panel may affirm, modify or rescind the Judge’s decision, or restore the case to the calendar for further development of the record. In the event the panel is not unanimous, any interested party may make application in writing for mandatory review of the full Board. The full Board must review and either affirm, modify or rescind such decision. In addition, following a unanimous decision of the Board panel, a party may file an application for discretionary full Board review. The application for discretionary full Board review will either be denied by the Board or, when warranted, the Board panel decision may be rescinded by resolution of the full Board. When the original Board panel decision is rescinded a new panel decision will be issued.
  In D'Errico, the claimant asked for a full-Board review - and his request was denied.
  The Appellate Court upheld the denial of 'full Board review' - finding that the claimant could not (1) show that newly discovered evidence existed; (2) that he had a 'material change in condition'; or (3) or that the Board improperly failed to consider issues raised in the application for review in making its initial determination. The Appellate Court also noted that in 'rare instances' the WCB was found to have abused its discretion in not granted a review of a prior board decision - but those 'rare instances' were confined to cases where the Bard failed to consider new evidence or disregarded a material change in the claimant's condition. The Appellate panel found that the WCB had properly exercised its discretion and ruled that the claimant was not due a second review of his case by the WCB.
  
  Two of the three Judges on the appeals panel agreed that the claimant was out of luck - that the Board did not have to review its decision. The third judge issued a 'dissenting' opinion - laying the foundation for the claimant to seek appeal to New York State's highest court, the Court of Appeals. The dissenting opinion argued that the WCB had failed to 'fully consider' the issues in the first hearing the WCB granted the claimant. Specifically, the third judge questioned "whom" the 'average correctional worker' was that comprised the 'normally-situated correctional officer' baseline used by the WCB to determine that the claimant was not exposed to 'extraordinary' occupational stressors.
  We will continue to monitor the progress of this case (decided August 20, 2009) and report on any future developments in this area of the law.]]>Gregory Lois, Esq.New Jersey2009-08-11T22:49:40-04:00www.greglois.com/files/943978aefb755584e84418ff0d00afe5-91.html#unique-entry-id-91www.greglois.com/files/943978aefb755584e84418ff0d00afe5-91.html#unique-entry-id-91
  The second rule is that an alleged disability must be shown by "demonstrable objective medical evidence." While this sounds scientific, it is not. The courts have consistently held that "range of motion tests" and other subjective tests (relying on the judgment of the 'tester') are to be considered "demonstrable objective medical evidence.” However, our case law is quite clear: a judge must have at least some objective medical evidence of permanent disability - and must specifically cite tot hat objective medical evidence in her decision - in order to be upheld.
  
  Finally, the third rule is that even if the claimant can’t show an impact on his ability to work, he is still entitled to an award of permanency. So, even if petitioner failed to establish lessening to material degree of his working ability, he can still be found to be 'permanently disabled.' This neatly defeats employer’s arguments in cases where the claimant is now working more hours, or at a more physically demanding position, than he was before the alleged 'disabling incident.' Obviously, this rule values the subjective (the claimant’s testimony about his ability to work) over the objective (the employer showing that the employee is actually working longer hours or in a more demanding job).
  
  All of these rules (taken directly from the prevailing case law) combine to make findings as to permanency very unscientific, not to say unpredictable. The two cases decided this July are interesting because in each case the appealing party argued that the Judge of Compensation's decision was incorrect in how the judge valued subjective testimony. In the first case we discuss (Thomas), the Judge was also affirmed, but on the grounds that the petitioner's case was rightly thrown out of court because it was based on only subjective complaints. In the second case we talk about, the Judge’s reliance on 'subjective' complaints in light of contradictory objective proofs (videotape evidence) as the basis for disability was upheld.
  
  Thomas v. Newark Public Schools Systems.
  
  In Thomas, the Judge of Compensation decided that the claimant, a former teacher, was not eligible for benefits for her alleged pulmonary disability. In Thomas, the claimant alleged that her employment with the Newark Public Schools System from 1984 to 2000 worsened a pre-existing asthma condition. the claimant testified that she was exposed to fumes and inhaled substances during her employment. Specifically, the claimant stated that she sometimes notice fumes that smelled 'like gasoline or a furnace smell.' The claimant testified that the ceilings in some rooms in the school building leaked, causing the rooms yo be damp and moldy.
  
  A teacher union inspector visited the school building about six months after the claimant;s last day of work and documented elevated levels of carbon dioxide, obstructions in front of some air vents and limited water damage. The claimant also presented the testimony of a pulmonary expert who opined that she suffered from 'chronic occupational asthmatic bronchitis' and obstructive pulmonary disease.
  
  The Judge listened to the claimant, but found that her testimony was full of "self serving statements" and uncorroborated. The Judge also decided that the claimant's medical expert relied exclusively on information provided by the claimant, and that his opinion was not based on 'any objective medical evidence.' The Judge noted that the claimant’s condition did not improve after she left the employment, which undermined the claim that the employment environment worsened the claimant;s condition. Finally, and most damning, the Judge stated that the claimant had presented only "subjective characterization of the workplace environment."
  
  The claims were dismissed.
  
  The Appellate Division, reviewing this case, agreed with the Judge of Compensation finding that the petitioner "has done no more than offer subjective characterization of her work environment [and] failed to provide quantitative evidence concerning the level of pollution she was exposed to, the component elements of the pollution, or the duration of exposure in any measurable manner." The case remains dismissed.
  
  Case Two: Worth v. UPS
  
  In the second case, the Judge of compensation discounted the surveillance videotapes made of the claimant by the respondent, and instead relied upon the claimant’s statements about his current condition in giving the claimant an award. This case is a strong contrast to the first because here the Judge of compensation found the claimant had increased disability despite the fact that the objective evidence strongly controverted the petitioner's claims.
  
  In Worth, the claimant testified that a leg injury sustained at work had worsened and that he was due additional compensation. The employer provided medical treatment,, including injections onto the claimant;s leg. During the trial, the claimant testified that he "could not walk up or down stairs without using a railing" could not "enter and exit trucks without the assistance of a hand bar" and stated that "he did not believe he could continue to perform his [work] duties."
  
  After this testimony, the employer produced a videotape which "clearly shows the petitioner climbing stairs and getting in and out of truck without the use of a handrail." In short, the claimant exaggerated his complaints, telling the Judge his condition was worse than it actually was in order to obtain a larger award.
  
  The Judge of Compensation issued a decision stating that although he believed the claimant was lying about how bad his condition actually was, he was still entitled to compensation based on the report of his expert physician (the claimant’s hired expert), and gave the claimant an increase over the pre-existing disabilities.
  
  The Appellate Division, citing 'deference' to the findings of the Judge of Compensation, agreed with the Judge of Compensation, and did not disturb this ruling.
  
  Conclusions.
  
  These two decisions help form a picture of the New Jersey workers' Compensation System: in one case, the 'subjective' nature of the proofs offered by the claimant were discounted by the Judge and the case dismissed. In a second case, decided just six days before, a Judge ignored the objective evidence and awarded increased compensation to a claimant who was clearly lying about his complaints under oath. In both cases, these decisions of the Judge of Compensation were then affirmed by the Appellate Division. While one of these claims was an occupational claim (and therefore, the burden of proof was on the claimant) in each case the Judge had to consider what weight, if any, to grant to a claimant’s testimony. In the first case, the Judge gave no weight to the claimant’s purely subjective and 'self-serving' testimony. In the second case, the Judge gave the claimant an award even though the objective proofs (the videotape evidence) directly contradicted the subjective complaints.
  
  What this means for handling cases: the weight given to subjective evidence by a Judge of Compensation will vary from Judge to Judge, from vicinage to vicinage. As these cases illustrate, trial strategy, even in cases where the employer has a killer video showing the claimant working or recreating in an unimpaired manner, must consider the latitude given to the Judge of Compensation in deciding these cases.
  
  Cases cited: Thomas v. Newark Public Schools System, A-4877-07T1 (App. Div. July 16, 2009); Worth v. United Parcel Service, A-0292-08T1 (App. Div. July 10, 2009).]]>Gregory Lois, Esq.Funny2009-08-01T22:53:00-04:00www.greglois.com/files/455ac5df36c8d0d5ef4ea6c1dc703b2d-92.html#unique-entry-id-92www.greglois.com/files/455ac5df36c8d0d5ef4ea6c1dc703b2d-92.html#unique-entry-id-92]]>Gregory Lois, Esq.Publications2009-07-27T18:37:20-04:00www.greglois.com/files/248a2afa947aea216e19035f36f71a82-93.html#unique-entry-id-93www.greglois.com/files/248a2afa947aea216e19035f36f71a82-93.html#unique-entry-id-93Amazon.
  Product description (from Amazon): The most practical, up-to-date and easy-to-understand guide to workers' compensation claims in New York. Tackling issues like employee fraud, this book is designed for employers, attorneys, claim adjusters, physicians, self-insured employers and vocational rehabilitation workers. This guide is written by a New York State attorney 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 and HIPAA considerations are included.
  
  Paperback: 174 pages
  Publisher: CreateSpace (July 27, 2009)
  Language: English
  ISBN-10: 1448670659
  ISBN-13: 978-1448670659
  Product Dimensions: 9 x 6 x 0.4 inches
  
  Special thanks to John Grayson for the cover photograph. Check out John's digital gallery of photography and artwork at suffocate.us.]]>Gregory Lois, Esq.New Jersey2009-07-03T22:28:52-04:00www.greglois.com/files/cbd52731aa53c1b35793e728208d7039-90.html#unique-entry-id-90www.greglois.com/files/cbd52731aa53c1b35793e728208d7039-90.html#unique-entry-id-90
  The Second injury fund was established to encourage employers to hire workers who had prior disabilities. After World War I, there were a great many former soldiers returning to employment. Many had amputated limbs, internal injuries, and other conditions. Employers did not want to hire these former soldiers because they feared that a new industrial incident, such as the loss of another limb in a machine accident, could leave the employer exposed for paying 'total disability' benefits to the soldiers.
  
  So, the Second Injury Fund was established. The Fund was instructed to pay compensation for "pre-existing illness, injury, or disease" when the pre-existing disability, considered together with the effects a new accident or injury, made the employee totally disabled. For example, imagine a fact scenario where a factory hires a worker who was missing a lower leg. The employee is then injured while working for the new employer - losing his other lower limb. Under the New Jersey Law ("loss of any two limbs shall constitute total disability") the claimant is 'totally disabled.'
  
  Under the current law, the employer compensates the claimant for the percentage of overall disability contributed by the employer's accident. In this case, presume that figure to be 50%. Applying the Second Injury Fund law, the State of New Jersey's fund then compensates the claimant for the rest of his life - starting to pay once the employer's contribution is exhausted (i.e., the 50% award has been paid out).
  
  The Second Injury Fund pays in only the following situations:
  (1) The claimant is now totally disabled;
  (2) The claimant had a measurable disability before he came tot he employment; and
  (3) It was the combination of the prior disability plus the employment accident which now renders the claimant totally disabled (in other words, the Second Injury does NOT pay where the claimant is totally disabled as a result of the 'last accident' alone).
  
  In the case decided June 15, 2009, the respondent argued that yes, the claimant did sustain a compensable injury at work (he hurt his neck in 1998). The respondent went on to argue that the claimants subsequent employment duties (which were off-and-on during 1998 and 1999) worsened the claimant, causing him to be permanently and totally disabled. Basically the employer was asking the Court to find that the original work accident was the 'pre-existing disability' and that the "subsequent work-related aggravation of the condition" due to "occupational aggravation" was the 'final accident.' According tot he respondent's argument, these two separate injuries combined to make the claimant totally disabled, thereby triggering exposure (and contribution from) the Second Injury Fund.
  
  The Judge of Compensation held that the respondent could not show 'subsequent occupational aggravation' and that it was the natural progression of the first, specific incident, which caused the claimant's total disability. By ruling this way, the Judge of Compensation denied the employer the possibility of reduced exposure - because the employer could not 'shift' part of it's exposure to the Second Injury Fund.
  
  Case: Falk v. Central Jersey Mechanical, Inc., A-4467-07T1 (App. Div. June 16, 2009).
  
  ]]>Gregory Lois, Esq.New Jersey2009-06-02T17:35:29-04:00www.greglois.com/files/ddd080848a79f97497cd6b51cc0e2358-87.html#unique-entry-id-87www.greglois.com/files/ddd080848a79f97497cd6b51cc0e2358-87.html#unique-entry-id-87This case is interesting because it addresses a fairly common situation. In this case, if the landlord won, the employer would have already paid the injured employee his workers’ compensation benefits, and then would have to pay again (by reimbursing the landlord for any money the landlord had to pay the employee for maintaining the premises in a negligent fashion).
  The Court, in throwing out the ‘indemnification claim’ against the employer ruled that (1) The ‘indemnification provision’ in the lease was so broad and vague it was unenforceable; and (2) that the New Jersey Workers Compensation Act prevented this indemnification which would essentially abrogate the ‘exclusive remedy provision’ of the New Jersey Act.
  Question about an indemnification provision or a third-party action involving on of your employees against your landlord? Contact Greg Lois.]]>Gregory Lois, Esq.New Jersey2009-06-01T16:51:52-04:00www.greglois.com/files/a5bc064c93c0f28dffef55d294426dc9-86.html#unique-entry-id-86www.greglois.com/files/a5bc064c93c0f28dffef55d294426dc9-86.html#unique-entry-id-86Continental Casualty Co. v. Ameritemp, Inc., the Appeals panel found that a Pennsylvania employer had to provide New Jersey workers’ compensation benefits to their employees who ‘occasionally traveled to New Jersey in the course of their employment.’ Also at issue was the payment of premiums to secure coverage in New Jersey.
  
  Here are the facts regarding the employees:
  
  • The employees were hired in Pennsylvania;
  • The employer was located in Pennsylvania;
  • The employees lived in New Jersey; and
  • The employees occasionally traveled to New Jersey during the course of their employment.
    
  
  The Pennsylvania employer did not want to pay premiums for a New Jersey workers’ compensation policy. Initially, the workers had been viewed as Pennsylvania employees, and the employer did not pay New Jersey premiums for them.
  Then, two of the employees got injured at work, and filed claims for benefits in New Jersey. The court decision (cited above) resulted from that litigation.
  The Judge of Compensation ruled that there were six grounds on which the applicability of a ‘specific states’ Workers’ Compensation Act could be asserted:
  
  1. That the local state is place where the injury occurred;
  2. That the local state is the place of the making of the contract of employment;
  3. That the local state is the place where the employment relation exists or is carried out;
  4. That the local state is the place where the industry is localized,
  5. That the local state is the place where the employee resides; or
  6. That the local state is the place whose statute the parties expressly adopted by contract.
     
  
  In reviewing this particular case, the Judge found that the employees “lived in New Jersey and the employment relationship exists or is carried out in New Jersey” and so concluded that the employees could bring claims for workers’ compensation benefits under the New Jersey Workers’ Compensation Act. The reviewing court went on to note that the employee could have brought claims for benefits under Pennsylvania law, as well. (New Jersey law allows a claimant to maintain multiple claims in any jurisdiction for injuries relating to the same accident, but that the multiple awards/settlements would be ‘set off’ against each other).
  In conclusion, this case is a good restatement of the basic formulation (the ‘six factors’ laid out above) used by the New Jersey courts in determining whether a claimant is considered a ‘New Jersey’ employee for the purposes of collecting benefits available under the New Jersey Workers’ Compensation Act.
  Questions regarding this case? Contact Greg Lois.]]>Gregory Lois, Esq.New Jersey2009-06-01T16:45:17-04:00www.greglois.com/files/2faf5f11b9b6985ec42025fe1e2db8ff-85.html#unique-entry-id-85www.greglois.com/files/2faf5f11b9b6985ec42025fe1e2db8ff-85.html#unique-entry-id-85The respondent argued that it was the claimant's pneumonia, combined with the fact that the claimant had AIDS, which caused the need for the 2003 surgery that further disabled the claimant.
  The undisputed facts are that in 2003 M.G. was hospitalized with pneumonia. He couldn't breathe and was hypoxic. Obviously, this was life-threatening for someone with AIDS. M.G. was intubated. Upon extubation, M.G. was "found to be quadriparetic, could not move his right upper extremity other than some muscle twitches . . .and could move his left upper extremity and his legs but only with difficulty." Surgery was conducted to relieve spinal cord compression caused by the intubation.
  M.G. argued that the quadraparesis resulted from the underlying (pre-existing) workers' compensation injuries to his neck.
  Respondent argued that there was an intervening cause for the claimant's disability: a complication of intubation and extubation, necessitated by the claimant's respiratory problems.
  The Appellate Panel (Cuff, Fisher) agreed with the employer: The claimant's respiratory problems were brought about by HIV, not the workplace injury, and the complications flowing from the respiratory treatment were not the responsibility of the employer (who last employed this claimant nine years earlier).
  Petitioner's attorney (predictably) argued that the respiratory condition merely 'aggravated' the claimant's underlying cervical injuries, and that the employer should have been held liable. The Appellate Panel, applying a 'but for' test, stated that "the petitioner did not require surgery in question until after he contracted pneumonia, was intubated for his respiratory distress and then extubated . . . the pneumonia and the medical actions taken to address petitioner's respiratory problems were not caused by the work-related injury but because the petitioner was HIV-positive."
  
  Case: M.G. v. JLL, App. Div 39-2-3908, Decided May 21, 2009. Questions about this case? Please contact me directly.]]>Gregory Lois, Esq.New Jersey2009-05-21T08:17:53-04:00www.greglois.com/files/fc002df5f597d8fc2a91c95c95e74d42-84.html#unique-entry-id-84www.greglois.com/files/fc002df5f597d8fc2a91c95c95e74d42-84.html#unique-entry-id-84previously reported on the changes to the Workers' Comp Act made in October 2008 (following a string of articles in the news railing against the NJ WC system) that created an 'emergent motion' for Med & Temp when a claimant is alleged to suffer 'irreparable harm' of medical care is denied by the employer.
  
  According to figures provided by Chief Judge Calderone and revealed at the 2009 Workers' Compensation Conference (held May 15th at the Borgata in Atlantic City) only 31 'Emergent' motions were filed since the passage of the law. Of those 31 motions, only 11 were found to have met the criteria of 'irreparable harm' required to be considered 'emergent' by the Courts.
  
  Figures like these (against a backdrop of more than 200,000 work-related accidents reported and more than 30,000 claim petitions for compensation filed) show just how unnecessary the October 2008 "reforms" were in assuring that cases where irreparable harm is possible get addressed by the Court.]]>Gregory Lois, Esq.New Jersey2009-05-21T08:07:47-04:00www.greglois.com/files/6a90182fb3c68c631feaea4931f65ea7-82.html#unique-entry-id-82www.greglois.com/files/6a90182fb3c68c631feaea4931f65ea7-82.html#unique-entry-id-82Only two sectors showed job growth: Government added 1,400 new jobs and 'Education and Health' (also government-spending-driven) added 900 new jobs.]]>Gregory Lois, Esq.New Jersey2009-05-15T08:10:18-04:00www.greglois.com/files/Permalink.html#unique-entry-id-83www.greglois.com/files/Permalink.html#unique-entry-id-83
  Chief Judge Calderone reported the following statistics to the crowd of Judges and attorneys:
  
  
  • In 2008, 47% of cases were closed by an 'Order Approving Settlement' pursuant to N.J.S.A. 34:15-22 ('Section22').
  • In 2008, 32% of cases were closed by way of 'Section 20 Lump-Sum Dismissal' (N.J.S.A. 34:15-20).
  • In 2008, 20% of all filed cases were dismissed (for Lack of Prosecution, lack of jurisdiction, etc.)
  • In 2008, 2% of all cases were tried (reached Judgment).
  ]]>Gregory Lois, Esq.New Jersey2009-05-08T14:49:11-04:00www.greglois.com/files/e8063c1ef845d9d265dc27e7dbbe3114-79.html#unique-entry-id-79www.greglois.com/files/e8063c1ef845d9d265dc27e7dbbe3114-79.html#unique-entry-id-79
  A trial on causation was held. The claimant's neurosurgeon testified that "Singletary's work duties from January 2002 forward aggravated and accelerated the underlying pathology at C4-5 resulting in her need for surgery." The Doctor also testified that if the claimant had stopped working or taken a sedentary job after the 2001 accident, she probably would not have needed surgery.
  
  The Judge of Compensation ruled that the work duties from 2002 onward had indeed worsened the claimant, and that WaWa (as a self insured) was responsible for her medical bills, compensation for time lost from work, and award of permanent disability.
  
  The Appellate Panel affirmed the Judge's decision, stating that there was credible medical evidence int he record to support the finding that the injuries were causally related to the petitioner's work after 2002. The Panel specifically stated "this is not a case where the subsequent employment 'merely cause[d] pain from pre-existant conditions to be manifested' . . . rather, Singletary suffered additional [new] physical insult every day she worked at WaWa due to the heavy lifting and other stressful tasks required by the job."
  
  This decision has similar facts but reaches the exact opposite conclusion as the Court did in Zrno, discussed in my blog. What was the difference/ Two things: (1) First, the claimant in Singletary had an easier time showing a worsening because she was actually getting invasive surgical treatment where the claimant in Zrno was taking Tylenol every other week; and (2) the medical proofs in Singletary are so much more compelling. There is a big difference when a credible, treating neurosurgeon (like Dr. Dellasotta in the Singletary case) is on the stand providing an opinion of causation as opposed to hired experts (always the same ones, it seems) trotted out in the Zrno case.
  ]]>Gregory Lois, Esq.New Jersey2009-05-08T14:11:25-04:00www.greglois.com/files/75bf6225bb0f1db884ad46756cbe217a-78.html#unique-entry-id-78www.greglois.com/files/75bf6225bb0f1db884ad46756cbe217a-78.html#unique-entry-id-78Instead, the claimant alleged that his employment at Wegmans "aggravated" and worsened his pre-exitsing disability, which was actually related to the compensable workers' compensation injury the claimant experienced while working for Wakefern. Wegmans, of course, argued that it was not responsible for any aggravation of the prior disabling condition caused by the prior employment.
  
  The Judge of Compensation found that the new job 'aggravated' the injury from the prior employment, and because of that awarded the claimant disability benefits.
  
  The Appellate Panel (Axelrod and Lihotz) disagreed.
  
  This case is blog-worthy because the logic applied by the Appellate Court should be used in any case where an 'aggravation' is alleged against a subsequent employer.
  
  First: the facts. Claimant Ivo Zrno accepted a settlement of 27.5% PPT for an April 13, 2000 back injury sustained while working for Wakefern. At the time of the accident, the claimant worked in a supermarket as a 'selector' for Wakefern. In April 2001 the claimant took a job with Wegmans, also a supermarket, as a selector for 40 hours per week. In 2004 Zrno filed worker compensation claims against Wegmans and a 're-opener' claim against Wakefern (remember: he had already accepted about $25,000 to settle his case against Wakefern).
  
  The claim against Wegman alleged that "occupational exposures" (no specific injury) caused "injury to his lumbar spine." Wegmans filed an Answer denying any such injuries.
  
  At Trial, Zrno testified that his back pain had worsened as a result of his subsequent employment with Wegmans and that his pain had gotten "stronger." However, claimant admitted that his "treatment" consisted of taking Tylenol "approximately every other week for pain." The claimant also testified that in terms of injuring himself at his new job "I cannot say I remember one day I injured myself or had something bad happen to me which I would remember . . . I cannot say that because I do not remember that."
  
  Following this testimony, Zrno presented his paid expert doctors who testifie dthat his condition was "much worse' than before his job at Wegmans.
  
  The Workers' Comepnsation Judge awarded this claimant $24,027.00 (approximately 32$ PPt with a credit for the prior award of 27.5% PPT).
  
  The Appellate Division, exercising its limited jurisdiction to redress judicial mistakes where a comp judge rules in a way "manifestly unsupported by or inconsistent with competent relevant and reasonably credible evidence so as to offend the interests of justice." [quoting the Supreme Court in Rova Farms Resort v. Investors, Ins. Co. of Am., 65 N.J. 474 (1974) - the first time I have seen the App Div quote Rova to establish the standard of review in NJ -gl] overturned the ruling of the Judge of Compensation.
  
  In short, the Appellate Panel relied on the ruling in Peterson v. Hermann Forwarding Co., 267 N.J. Super. 493 (App. Div. 1993) cert den. 135 N.J. 304 (1994). Finding that causation was the issue, the Panel stated: "although the work at Wegman's may have caused more pain that the claimant would have felt if he just remained sedentary, 'the subsequent employment was performed without the intervention of additional trauma or physical insult.'" The Panel found insufficient medical evidence of any trauma or physical insult to the claimant's low back while working for Wegmans,
  
  ]]>Gregory Lois, Esq.Firm News2009-04-30T17:47:00-04:00www.greglois.com/files/90595a155236905ca6fd6c385c3fc7dd-88.html#unique-entry-id-88www.greglois.com/files/90595a155236905ca6fd6c385c3fc7dd-88.html#unique-entry-id-88Gregory Lois, Esq.New Jersey2009-04-24T15:42:26-04:00www.greglois.com/files/4573f256a476d49190e13279bbb48f21-80.html#unique-entry-id-80www.greglois.com/files/4573f256a476d49190e13279bbb48f21-80.html#unique-entry-id-80When an employee is totally disabled as a result of a long string of employments which cumulatively injured him, New Jersey law holds that the employer last on the risk' pays the full freight for the claimant's award. This doctrine, known as the 'Bond Doctrine' after the Court's decision establishing it in Bond v. Blue Ribbon Co., is a common sense approach to those cases where all of the employments probably contributed to the overall disability.
  
  In Nolan v. Kleinknecht Electric Co., A-5347-03T3, decided April 17, 2009 (not yet published as I blog this) the petitioner was a union electrician who held a long list of employments. (As a brief aside - it always seems that it is union contractors that file these types of claims because they often have dozens of employers over the years, have no personal loyalty/affinity toward any of them, and the union hall keeps a track of the employers which facilitates filing post-retirement occuputional disability claims easy-gl). Following the fashion, and nearing retireent age, Nolan filed a claim against all of his prior employers alleging that his work duties left him no permanently and totally disabled.
  
  Unlike the typical case, Nolan actually experienced and reported an actual specific injury to his left shoulder (in 1998) and filed a claim against AMP Electric in which he recovered about $25,000 (approximately 27.5% PPT).
  
  Nolan went back to work. eventually working for Kleinknecht Electrical in 2000. In 2001, he was told his spine was compromised and required treatment to avoid permanent effects. In September 2001 the claimant began surgical treatment for disc herniations, and never returned to work.
  
  At Trial, the claimant presented Dr. Martin Riss (a general practitioner) who opined that "although the petitioner's work for Kleinknecht [the "last" employer] did not involve heavy lifting or construction work, it nonetheless contributed substantially to the deterioration of his back and to his ultimate disability." Dr. Riss described the work as "the straw that broke the camels back."
  
  The Judge of Compensation believed Dr. Riss and apportioned all disability against Kleinknecht, despite the fact that the claimant had received prior medical treatment for his low back while working for previous employers. In essence, the Judge of Compensation relied solely on the 'Bond Doctrine' and found all of the petitioner's alleged disability was the result of the last employment.
  
  The Appellate Court found that the reliance on 'Bond' was a mistake. Instead, the Court stated that "in the context of a progressive condition, the final employer 'can no longer be held subject to the entire risk f liability for total disability when it is established by competent evidence that there is previous measurable [which then may not be total] disability.'" The Appellate Court here is citing the rule in Levas v. Midway Sheet Metal, a case I discuss at lenght in my book.
  
  The case was remanded for proceedings consistent with the Apellate Court's findings.
  
  ]]>Gregory Lois, Esq.New Jersey2009-04-08T14:04:58-04:00www.greglois.com/files/797eb5bf91b46e5238731aefad6c4f84-76.html#unique-entry-id-76www.greglois.com/files/797eb5bf91b46e5238731aefad6c4f84-76.html#unique-entry-id-76Illiteracy;
  Inability to speak English;
  Low intelligence;
  Lack of formal education;
  Low job skill transferability;
  Lack of training.
  Other.
  ‘Odd Lot’ claims have one other prerequisite: before the ‘Odd Lot’ doctrine can be triggered, the claimant’s disability relative to the work accident must be at least 75% of total. That is to say, the physical disability must be significantly (and nearly totally) disabling by itself. This reduces the opportunity for fraud and abuse by litigants who would “trump up” their alleged ‘personal handicaps.’ Also, in a state with a large illiterate/non-English-speaking worker population (New Jersey released ‘official’ state figures last week admitting to at least 500,000 undocumented foreign nationals living and working in New Jersey) the potential for abuse of the ‘Odd Lot’ provision is present.
  In a March 4, 2009 decision, the Appellate Court found that the petitioner in Thomas v. Newark Board of Education had no grounds to appeal based on the Judge’s refusal to apply the ‘Odd Lot’ doctrine and find him totally disabled. In Thomas, the claimant alleged that all of his prior work experience was in heavy manual labor jobs and that he lacked job skills.
  The Comp Judge refused to listen to that argument, and found the claimant only 22.5% disabled, and so the ‘Odd Lot’ doctrine was not applied.
  ]]>Gregory Lois, Esq.New Jersey2009-04-01T14:09:43-04:00www.greglois.com/files/94341d0119c54836109ada371bb85124-77.html#unique-entry-id-77www.greglois.com/files/94341d0119c54836109ada371bb85124-77.html#unique-entry-id-77The ruling stems from a grievance filed in 2006 and involving overtime disputes going on for six years. Specifically, the EEOC routinely offered days off instead of issuing overtime. The EEOc stated that employees were ‘requested’ to take time off to ‘balance out’ overtime worked.
  EEOC employee asserted that the ‘requests’ were really fiction and that after being pressured to work longer hours no additional pay was provided.
  No word as of yet from the arbiter as to whether the EEOC is going to be fined. AN EEOC spokesman stated that the overtime practices were going to be ‘reviewed.’]]>Gregory Lois, Esq.Commercial Litigation2009-03-20T12:10:50-04:00www.greglois.com/files/dc38a30740ce705251625e8f5da3fc19-11.html#unique-entry-id-11www.greglois.com/files/dc38a30740ce705251625e8f5da3fc19-11.html#unique-entry-id-11The facts of Campbel were founded on two slip-and-fall accidents in the parking lot of a surgery center. Under its lease, the surgery center agreed to name the landlord as an additional insured on its general liability policy, which it did. Under the lease, the landlord was required to maintain the parking lot, including snow removal. It was undisputed that the plaintiffs were both patients of the surgery center and were injured due to slipping on ice in the parking lot.
  
  The Appellate Division reviewed four of its prior published opinions in this area, in an effort to determine whether the surgery center's carrier was obligated to defend and indemnify the landlord. Ultimately, the court found that the plaintiffs' activities "arose out of" the surgery center's use of the premises, thereby bringing the landlord within the center's policy. Quite frankly, this was not a surprising result, given the court's prior decisions. However, the court went on review the two policy types and determined that the center's insurance policy was not a "true" excess policy, but rather a "primary insurance policy with an excess insurance clause." The court then examined the the "other insurance" clauses of both policies The tenant's policy, issued by Lexington Insurance company, mandated that if other insurance applied to the loss, the other insurance must pay first. Thus, according to its terms, the tenant's Lexington policy only provided excess coverage to additional insureds. An examination of the language of the landlord's own Maryland Casualty policy revealed that it was to be excess over any other primary insurance providing coverage for damages arising out of premises for which the insured had been added as an additional insured. The Campbel court concluded that since by its terms the tenant's policy only afforded the landlord excess coverage, there was no other primary insurance available. Therefore, the condition limiting the coverage of the landlord's own policy was not met and that policy must provide primary coverage.
  
  WHY IS THIS IMPORTANT? This decision can be viewed as a significant roadblock at efforts to tender landlord's defenses to tenants and their insurers for fall-downs which arise out of a tenant's use of the premises. Tompkins, McGuire, Wachenfeld & Barry, LLP routinely counsels both property owners and tenants, as well as their insurers, on matters of general liability and insurance coverage. We would be happy to discuss the facts of your particular case as they might be affected by this new decision.
  
  This entry contributed by: Joseph K. Cobuzio and Jared P. DuVoisin]]>Gregory Lois, Esq.Workers Compensation2009-03-20T11:24:00-04:00www.greglois.com/files/62af3314ad2a737e1e63a94e1eb31be2-4.html#unique-entry-id-4www.greglois.com/files/62af3314ad2a737e1e63a94e1eb31be2-4.html#unique-entry-id-4Joseph K. Cobuzio and Greg Lois. Click here to request a complementary copy.]]>Gregory Lois, Esq.Workers Compensation2009-03-10T11:20:00-04:00www.greglois.com/files/43b1f2ff90987d1e577dc654f532d91f-2.html#unique-entry-id-2www.greglois.com/files/43b1f2ff90987d1e577dc654f532d91f-2.html#unique-entry-id-2
  This means we can expect that already overtaxed Second Injury Fund lists to grow in size and for adjournment of "recently" filed cases to be more likely.
  
  Tompkins McGuire continues to maintain Second Injury Fund lists in every vicinage.  We are pleased to report that none of Tompkins' Second Injury Fund lists are being cancelled or re-assigned. 
   ]]>Gregory Lois, Esq.Insurance2009-03-04T12:30:00-05:00www.greglois.com/files/3080818bdfdd20fc1274e85a64795b59-0.html#unique-entry-id-0www.greglois.com/files/3080818bdfdd20fc1274e85a64795b59-0.html#unique-entry-id-0
  Why are we reporting on this? Because it affects many claims: New Jersey workers' compensation carriers made $3.5 Million in child support payments in 2008.
  
  The State is phasing out half of the centralized computer system that the Workers' Comp clerks have access to. Now, when the docket shows a child support arrearage, and the amount is in dispute, the petitioner's attorney will have to resolve the dispute with the applicable county probation department.
  
  A common dispute occurs when a claimant is due workers' compensation benefits and a child support lien for past-due support has been placed on the court docket. The claimant (nearly always) asserts that "he paid that money, that is an old lien." In the past, the Workers' Comp clerk could directly access the child support ledger for that individual claimant - and the dispute could be resolved on the spot (and 99.9% of the time the claimant was behind in his payments and the docket was correct).
  Now, the process will likely take longer, as claimant's attorney will have to directly follow up with individual probation departments. The Administrative Office of the Courts will continue to maintain their child-support tracking system, but that system is notoriously out-of-date; in fact, the Office of the Courts' "half" of the database could never be relied upon (by itself) for an accurate statement of current arrearages.
  
  Expect claims with child-support liens to requires additional time to close, probably in the realm of several weeks.]]>Gregory Lois, Esq.Workers Compensation2009-03-04T11:23:00-05:00www.greglois.com/files/71047a91e0b29913d0cd5fa276b4e7bc-3.html#unique-entry-id-3www.greglois.com/files/71047a91e0b29913d0cd5fa276b4e7bc-3.html#unique-entry-id-3The claimant, Maria R. Natale, alleged that as a result of her occupational exposures while employed by the respondent she suffered from permanent residual disability. Six insurance carriers wrote coverage for the employer over the period of employment (1980 to 2001). Normally, the Judge of compensation will rely on the "Bond Doctrine" and hold that the "last carrier on the risk" is responsible for the overall disability.
  
  However, in the Natale case, the claimant had "actual manifestation" of her "erosive osteoarthritic condition" during three specific periods of her employment. The "actual manifestation" was demonstrated by periods of actual treatment while employed (rare in a cumulative occupational disability case).
  
  The Appellate Court found that the apportionment approach (rather than the Bond approach) was appropriate because the claimant's disability was 'fixed, measurable, and arrested' during periods of manifestation and those manifestations occurred during specific periods of coverage.
  
  Link to full case: (caution - link is to PDF): Natale v. Celanese.]]>Gregory Lois, Esq.New Jersey2009-02-04T11:55:00-05:00www.greglois.com/files/a69f34d06e59dd3ba8dac44b1a09319e-5.html#unique-entry-id-5www.greglois.com/files/a69f34d06e59dd3ba8dac44b1a09319e-5.html#unique-entry-id-5 S-1916 now requires that “emergent” requests for medical treatment be heard within 10 days of the request being filed with the court. What classifies as an ‘emergent’ motion for medical and temporary benefits? One where a doctor states that a worker is in need of emergent medical care and that “delay in treatment will result in irreparable harm and damage.” The respondent will have five days to file an answer to such a motion and the matter will be listed for hearing “within five calendar days of the filing of an answer.” A penalty of $2,500 will be assessed for each employer or insurance carrier who fails to designate a ‘contact person’ for such motions.]]>Gregory Lois, Esq.Insurance2009-01-23T13:43:09-05:00www.greglois.com/files/64923984fc6fa520a9db15202e3bdd90-44.html#unique-entry-id-44www.greglois.com/files/64923984fc6fa520a9db15202e3bdd90-44.html#unique-entry-id-44Gregory Lois, Esq.New Jersey2009-01-19T11:57:14-05:00www.greglois.com/files/d5ede0b44da746d6beaf09895893e4ec-6.html#unique-entry-id-6www.greglois.com/files/d5ede0b44da746d6beaf09895893e4ec-6.html#unique-entry-id-6Gregory Lois, Esq.Insurance2009-01-14T13:42:18-05:00www.greglois.com/files/6829e78a5411a91c3ee34a9c44c4ddcd-43.html#unique-entry-id-43www.greglois.com/files/6829e78a5411a91c3ee34a9c44c4ddcd-43.html#unique-entry-id-43
  This case will no doubt be cited by plaintiffs' attorneys in New Jersey (most likely with success) to gain access to claims processing software and related tools from insurance carriers. ]]>Gregory Lois, Esq.Insurance2008-12-21T13:39:54-05:00www.greglois.com/files/2350289edb9be84c19565158abafe0f4-41.html#unique-entry-id-41www.greglois.com/files/2350289edb9be84c19565158abafe0f4-41.html#unique-entry-id-41Gregory Lois, Esq.New Jersey2008-12-21T12:59:00-05:00www.greglois.com/files/4233b6007690e1255b3a8d4caa64fc25-15.html#unique-entry-id-15www.greglois.com/files/4233b6007690e1255b3a8d4caa64fc25-15.html#unique-entry-id-15Of what value is video surveillance? The answer to that question is “as much value as the Judge places on it.”
  
  Video surveillance is often relied upon by the defense in New Jersey Workers’ Compensation cases to either challenge credibility or to demonstrate that a claimant is not as disabled as he appears from his own testimony or his doctor’s examination. A recent case (Gross v. Neptune) has been relied upon by plaintiff’s attorneys to limit the introduction of videotape evidence in contested workers’ compensation trials in New Jersey.
  
  In Lance v. City of Camden Police the claimant alleged a closed-head injury resulted in “post-concussion syndrome” leaving him unable to perform his duties as a Camden Police Officer. The claimant’s treating doctor, (Dr. Richard Sadwin) testified that although objective testing of the claimant (EEGs, MRIs, and CT Scans) was normal, based on psychological testing and clinical observation the claimant was unable to return to work as a Police Officer.
  
  The City of Camden countered with the testimony of Dr. Dhiraj Panda who opined that the claimant had “no residual neurological’ impairment.
  
  The case was tried.
  
  On the last trial day, the respondent City of Camden introduced a video into evidence. The video was one hour long and showed the claimant installing an air-conditioner unit, driving a truck, operating a high-lift/boom lift, climbing a tree, and operating a backhoe, all while “totally disabled” according to his testifying doctor (Dr. Sadwin).
  
  The Judge of Compensation viewed the video and then immediately read a pre-written decision, finding the claimant totally disabled due to the head injury. The videotape evidence was mentioned in the oral decision, but the Judge stated that the video “does not show any activity involving the use of the brain.”
  
  The employer appealed the decision, arguing that the Judge of Compensation denied the City of Camden its due process rights by ignoring video-tape evidence and refusing read the employer’s trial brief.
  
  The appellate court found that the Judge of Compensation handled the case “expeditiously” and should have reviewed the trial brief of the employer’s counsel. However, the appellate panel also stated that the failure of the Judge to read the brief was not a reversible error “clearly capable of producing an unjust result” (quoting R. 2:10-2). The Appellate court also found that the Judge’s reading of a decision that was written before the Judge ever saw the videotape evidence was acceptable because the Judge referred to the video in his oral decision and “simply did not find the video persuasive enough to negate the inference that [the claimant] was incapable of returning to work.”
  
  In reviewing the Appellate decision, it is striking that the claimant was not cross-examined with the video evidence - that is, his testimony as to his working ability was not challenged by the video showing him clearly capable of operating heavy machinery and perform various types of work. The surveillance video in this case would have had impeachment value to attack the credibility of the claimant. In light of the fact that the medical diagnosis was based on subjective “observation” and psychological testing, a direct challenge to the credibility of the claimant may have been more fruitful in challenging the nature and degree of permanent disability in this case. Instead, defense counsel appears to have waited until all testimony was concluded before the video was introduced, which severely limits the impact of such evidence (for example, it could have been sued to cross-examine the petitioner’s testifying doctors, etc.).
  
  Case: John J. Lance v. City of Camden Police Department, A-6606-06T3 (App. Div. decided October 17, 2008)(Judges Winkelstein & Fuentes, unpublished as of blog date).]]>Gregory Lois, Esq.Employment Law2008-12-19T11:59:37-05:00www.greglois.com/files/0655f4058b93c314f26f74ed83999e6b-8.html#unique-entry-id-8www.greglois.com/files/0655f4058b93c314f26f74ed83999e6b-8.html#unique-entry-id-8
  Seasonal workers hired by nation’s retailers in November 2006: 427,000
  
  Seasonal workers hired by nation’s retailers in November 2007: 458,000
  
  Seasonal workers hired by nation’s retailers in November 2008: 217,200
  
  Source: ‘The Record,’ B-1, December 9, 2008.
  
  FAQ: Is there a minimum number of weeks worked to receive WC benefits pay or is a seasonal employee entitled to compensation if he gets hurt on day one?
  
  Answer: If an employee is hurt in the first minute he “punches in” he is entitled to exactly the same medical, wage replacement, and permanent disability benefits as if he had worked for the employer for 50 years.]]>Gregory Lois, Esq.New Jersey2008-12-17T13:40:59-05:00www.greglois.com/files/2b32e225d9aba000f3dfebbb64f98153-42.html#unique-entry-id-42www.greglois.com/files/2b32e225d9aba000f3dfebbb64f98153-42.html#unique-entry-id-42Gregory Lois, Esq.New Jersey2008-12-17T11:58:44-05:00www.greglois.com/files/8a69747cffc7ebe0cf20dd77b3087bef-7.html#unique-entry-id-7www.greglois.com/files/8a69747cffc7ebe0cf20dd77b3087bef-7.html#unique-entry-id-7Gregory Lois, Esq.Employment Law2008-12-03T12:01:25-05:00www.greglois.com/files/fe955b7e75dfc819dc19e160656b579d-9.html#unique-entry-id-9www.greglois.com/files/fe955b7e75dfc819dc19e160656b579d-9.html#unique-entry-id-9One of the most basic questions we always ask when looking at a new claim is: Did the injuries arise out of the employment? There are probably more reported decisions on disputes about this question than any other issue in New Jersey Workers’ Compensation. I dedicate an entire chapter of my book to this subject and blogged extensively on this subject.
  
  In an interesting new decision, an Appellate Panel found that that an employee’s injuries did not arise out of the course of employment while he was on a personal errand.
  
  The claimant, William Garcia, was riding in his employer’s vehicle which was being driven by his foreman. The claimant was on his way to a bank to cash his paycheck. The claimant also alleged that he was riding between job sites or was going to return to the original job site at the time of the accident.
  
  The claimant relied on the following facts to establish that he was actually working at the time of his accident:
  • He was actually being driven in an employer-owned vehicle at the time of the accident;
  •He was driven by his foreman; and
  •He was on his way to or from a job site.
  
  The workers’ compensation judge found that the claimant was not engaged in or assigned to work directed by the employer at the time of the accident. The Appellate Division agreed with this reasoning, and affirmed the denial of workers’ compensation benefits.
  
  The Appellate Panel explored the possible legal arguments that would support the petitioner’s claims for benefits. First, they determined that the claimant failed to show “that the employee was performing his or her prescribed duties at the time of the injury.” (Quoting Jumpp v. City of Ventnor, 177 N.J. 470 (2003).
  
  Next, the Appellate Panel discussed the Supreme Court’s decision in Sager v. O.A. Peterson Construction Company, 182 N.J. 156 (2004) and compared the facts in Sager to the facts of the Garcia case. In Sager, the claimant was “directed” by his site supervisor to extend his workday and have dinner with his co-employees and was injured while returning to the worksite after dinner. The Panel found that unlike the facts in Sager, no one ‘directed’ the claimant to go to the bank and cash his check (they found it to be a personal errand).
  
  Finally, the Panel considered whether it was possible the claimant had a “reasonable belief” that his employer wanted him to go to the bank and cash his paycheck. This consideration was necessary in light of the Supreme Court’s decision in Lozano v. Frank DeLuca Construction, 178 N.J. 513 (2004), which held that even if an employee is not directly told to do something, the act may be found to be “in the course of employment” if the employee had a reasonable belief that his employer wanted the act done.
  
  After considering every possible way that the accident could be considered “arising out of the employment” the Appellate Panel concluded that it did not. The decision of the workers’ compensation Judge dismissing this case was rightly affirmed.
  
  Case: William Garcia v. Wagner Land Expansion, App. Div. A-3595-07T1, decided November 6, 2008 by Judges Stern, Waugh, and Newman. (Note: this blog entry discusses an ‘unpublished’ decision).
  
  Statute discussed: N.J.S.A. 34:15-36
  
  Contributed by: Greg Lois]]>Gregory Lois, Esq.Employment Law2008-12-01T12:08:30-05:00www.greglois.com/files/bd40209e4912d7966aec756694a13cf7-10.html#unique-entry-id-10www.greglois.com/files/bd40209e4912d7966aec756694a13cf7-10.html#unique-entry-id-10
  According to the same study, the average woman works 7.8 hours.
  
  The average American spends 2.6 hours a day watching TV.]]>Gregory Lois, Esq.Workers Compensation2008-11-24T12:53:44-05:00www.greglois.com/files/346eef3967294c32599beba3b3dde015-13.html#unique-entry-id-13www.greglois.com/files/346eef3967294c32599beba3b3dde015-13.html#unique-entry-id-13What is a “commutation”? Simply stated, a ‘commutation’ is the legal term for a petitioner asking the Court to accelerate the payment of an award to answer some pressing need of the claimant.
  
  Commutation reduces exposure in two ways:
  
  1)Any commuted payment made is discounted 5%. Therefore, payments of compensation which are made under Order For Commutation saved the insured money.
  2)The payment of commutation is deemed to shorten the period of overall benefits. A claimant, under the New Jersey Workers’ Compensation Act, has two years to re-open a claim from the time last payment was paid. By commuting payments, the period for re-opener is shortened.
  
  Generally speaking, a respondent does not usually object to paying a commuted award.
  
  A recent case, Piskorz v. Beno Stucco Systems Corp., discussed the availability of commutation in a specific case. The Petitioner filed a motion for commutation of his workers’ compensation award, stating he wanted to leave America and open a business in Poland. According to the petitioner, he needed his money NOW because he had obtained the promise of a financial subsidy from the European Regional Development Fund for $60,000.00 to open the business, however, as a condition of the approval, he had to provide his own matching personal funds of $60,000, otherwise he will not receive the subsidy.
  
  The Judge of Compensation inquired as to whether the petitioner (1) had the matching funds, or (2) had any experience running a business. The petitioner could not verify that even with the grant of a commutation e would have the funds necessary to get a matching grant and had no experience running a business.
  
  The Judge of Compensation denied the motion because the petitioner failed to prove: (1) he planned to actually remove from the U.S., and (2) his particular circumstances warranted a departure from the usual method paying a workers’ compensation award.
  
  Case: Piskorz v. Beno Stucco Systems Corp., 06-6559 decided August 15, 2008 by the Honorable Philip A. Tornetta, J.W.C. (Note: this blog entry discusses an agency decision which is not binding law).
  
  Statute discussed: N.J.S.A. 34:15-25
  
  Contributed By: Greg Lois]]>Gregory Lois, Esq.Firm News2008-11-18T12:56:05-05:00www.greglois.com/files/a1250618d8de7233d97495500759c5d9-14.html#unique-entry-id-14www.greglois.com/files/a1250618d8de7233d97495500759c5d9-14.html#unique-entry-id-14Greg Lois & Joe Cobuzio led a Seminar entitled ‘Introduction to New Jersey Workers’ Compensation’ on November 18th, 2008 at Chubb’s Parsippany location. Does your team need a 'refresher' on the changes to the Workers' Compensation Act? Contact Joe to schedule a seminar!]]>Gregory Lois, Esq.Firm News2008-10-16T13:00:55-04:00www.greglois.com/files/61b4edc735e1f0dcd705af1ef53a4bdc-16.html#unique-entry-id-16www.greglois.com/files/61b4edc735e1f0dcd705af1ef53a4bdc-16.html#unique-entry-id-16Greg Lois or Joe Cobuzio to set up a training for your human resources/workers' compensation team.]]>Gregory Lois, Esq.Workers Compensation2008-10-11T13:46:57-04:00www.greglois.com/files/46326eb95f5ba2a7ea001f8c3f51bbc3-45.html#unique-entry-id-45www.greglois.com/files/46326eb95f5ba2a7ea001f8c3f51bbc3-45.html#unique-entry-id-45
  Three of the new laws (S-1914/A-2962, S-1915/A-3059 and S-1918/A-2970) create new reporting requirements, create a new prosecutorial power, and increase penalties on employers who fail to provide workers comp coverage for all their own employees (or see that it's provided for their subcontractors' workers). These laws can be said to address the situations where an employer has no coverage or issues of coverage are in doubt. These laws are in direct response to the Star Ledger series of articles which focused on cases where benefits were delayed because the claimant’s employment status and coverage issues were questioned.
  
  (1) S-1915 requires that “every corporation, limited partnership, LLP, or other employer” must submit proof of workers’ compensation coverage with their annual reports filed with the state of new Jersey. According to the new law, a “valid proof” is one of the following: (a) documentation of a current order from the Commissioner of Banking and Insurance authorizing the employer to be a self-insured employer pursuant to N.J.S.A. 34:15-77; or (b) a letter from an insurance carrier which includes the name of the carrier, insurance policy number, and date of commencement under the policy. This new law takes effect January 1, 2009.
  
  (2) S-1915 gives the Office of the Insurance Fraud Prosecutor the power to investigate cases where an employer failed to provide workers’ compensation coverage “after being given a reasonable opportunity to obtain that coverage.”
  
  (3) S-1914 raises the criminal penalties for not carrying workers’ compensation insurance to a crime of the fourth degree and expands liability to “any officer who is actively engaged in the corporate business.” Most troubling, the new law creates a “rebuttable presumption” that an employer has established a successor firm (under certain conditions) and allows the Uninsured employers Fund a right to pursue subrogation against any successor firm, corporation, or partnership. This law also creates a power whereby the Division of Workers’ Compensation can request proof of coverage at the time of trial. If no coverage s found the Division may issue a penalty of $5,000 for every ten days of no coverage (a 500% increase in penalties over the prior law).
  
  Three of the new laws deal with the speed at which benefits are provided. S-1913 will permit workers comp judges to penalize parties who drag their feet in processing cases. S-1916 holds benefit payments to a time line based on a medical diagnosis. And S-1917 adds representatives of labor and taxpayers to the insurance industry-dominated Compensation Ratings and Inspection Bureau, which sets insurance premiums for workers compensation.
  
  (1) A Judge of Compensation always had the power to enforce Orders under N.J.A.C. 12:235-3.14 (administrative code rules). The new law (S-1913) raises the amounts of penalties (from $1,000 to $5,000) for “unreasonable delays” by an insurer in issuing payments. In addition, a Judge of Compensation may now hold contempt proceedings, issues judgments for contempt, and then directly file a motion with the Superior court for enforcement of the contempt proceeding. Legal fees for such proceeding may be awarded by the Judge up to 20% of the award.
  
  (2) S-1916 now requires that “emergent” requests for medical treatment be heard within 10 days of the request being filed with the court. What classifies as an ‘emergent’ motion for medical and temporary benefits? One where a doctor states that a worker is in need of emergent medical care and that “delay in treatment will result in irreparable harm and damage.” The respondent will have five days to file an answer to such a motion and the matter will be listed for hearing “within five calendar days of the filing of an answer.” A penalty of $2,500 will be assessed for each employer or insurance carrier who fails to designate a ‘contact person’ for such motions.
  
  (3) S-1917 changes the makeup of the ‘Compensation Rating and Inspection Bureau’ (CRIB) to include union representatives (among others). This is an important change because CRIB has the power to institute proceedings against employers and to audit payrolls and set rates.]]>Gregory Lois, Esq.Employment Law2008-10-10T13:02:46-04:00www.greglois.com/files/6110f65138a951e133e48b898595aced-17.html#unique-entry-id-17www.greglois.com/files/6110f65138a951e133e48b898595aced-17.html#unique-entry-id-17
  We have blogged before on this topic (here and here)- the way the Feds and the State calculate ‘average weekly wage’ is different with the net effect that the NJ State Temporary Total disability rates are artificially high.
  
  How high? Well the state of New Jersey just released figures showing a state average weekly wage of of $1,031.28. (Figures released August 22, 2008).]]>Gregory Lois, Esq.Firm News2008-09-24T14:51:43-04:00www.greglois.com/files/f5e7361d4332faecf1d81031e8735444-46.html#unique-entry-id-46www.greglois.com/files/f5e7361d4332faecf1d81031e8735444-46.html#unique-entry-id-46
  The Appellate Court found that a subsequent aggravating incident was not a “new injury” sufficient to break the chain of causation. This unpublished decision departs from the prior case law and basically holds that a superseding, new incident will not break the causal chains unless a doctor directly told the claimant not to engage in a specific activity.
  
  Adjusters and risk managers are warned NOT to apply the reasoning of the Appellate Panel in reviewing specific cases; the poor reasoning employed by the Appellate courts basically serves to annihilate the ‘superceding/intervening’ defense which is one of the most well-settled tenets of western law/civil law.
  
  Citation: Cucciniello v. The Sports Authority, App. Div. A-1235-07T3 (Decided September 24, 2008).]]>Gregory Lois, Esq.New Jersey2008-09-15T14:53:22-04:00www.greglois.com/files/9e52eb5d887c047431ae22526899a998-47.html#unique-entry-id-47www.greglois.com/files/9e52eb5d887c047431ae22526899a998-47.html#unique-entry-id-47
  The salient facts of the Flores v. Paragon case are as follows:
  
  •Flores was an undocumented (illegal) worker who was employed by general contractor Bredbenner from April to November of each year. Bredbenner’s business was installing gutters.
  •Returning to America after his usual winter stay in Mexico, Flores sought work with Bredbenner.
  •Here the story conflicts: Bredbenner testified he had no gutter work for Flores, and instead offered to hire Flores to work at his hose, doing yard cleanup for two days. Pay was $100 per day. Flores testified that he was hiredin his usual capacity as ‘laborer’ without limitation or qualification on the amount or type of work to be done.
  •Flores did do yard work for Bredbenner.
  •After two days of yard work, Flores accompanied Bredbenner to a gutter worksite. According to Bredbenner, the gutter installation was for a ‘friend’ and the work was unpaid (although Bredbenner was reimbursed for materials).
  •According to Bredbenner, Flores offered to help at the gutter installation job, and Bredbenner accepted the offer.
  •Flores fell off the roof at the job site, breaking both arms, his nose, and one leg.
  
  Bredbenner argued that Flores was a ‘volunteer’ at the time he fell of the roof - not an employee. Bredbenner argued that Flores ‘offered’ to help and there was no promise of payment for his help. The Judge of Compensation found that Flores was an employee of Bredbenner at the time of the accident. The Appellate Panel agreed.
  
  The legal decision was based on the following factors:
  1. Credibility. Basically, the trial judge found Flores more credible than Bredbenner.
  2. The statutory definition of employee. N.J.S.A. 34:15-36 defines an employee as “a servant . . . who performs a service for financial consideration.”
  3.The prior employment relationship. Flores was able to show a two-year history of working for Bredbenner.
  4.The circumstances of the incident. Flores was transported to the work site by Bredbenner, used materials and tools provided by Bredbenner, and worked under the ‘direction and control’ of Bredbenner.
  
  All of the judges acknowledged that the lack of a contract and the fact that Flores was a seasonal employee who had only been back in Bredbenner’s employ for two days complicated the decision.
  
  Case: Flores v. Paragon Construction and Restoration, App. Div. A-1035-07T3, decided September 15, 2008 by Judges Payne and Alvarez. (Note: this blog entry discusses an ‘unpublished’ decision). Also note: I can’t find a copy of this decision online, either at the Rutgers Law Library or the Appellate Division’s page. If you would like a copy of this decision, please contact me directly - my office # is 973-622-3000.
  
  Statute discussed: N.J.S.A. 34:15-36
  NEW CASE: FLORES V. PARAGON CONSTRUCTION - DEFINING “EMPLOYMENT”
  9/15/08
  New Case - Employment - Who Is an ‘Employee’?
  
  
  
  Picture: View from via Del Corso, Rome, Italy
  The materials presented by this web site are for informational purposes only and are not offered as legal advice as to any particular matter. No reader should act on the basis of these materials without seeking appropriate professional advice as to the particular facts and applicable law involved. The materials are not represented to be correct, complete, or up-to-date. Opinions presented by this web site are the opinions of Greg Lois. Neither the use of this web site nor the transfer of information to or from this web site shall create or constitute an attorney-client relationship between Greg Lois and any person. You should not send any confidential information to this web site until after you have entered into a written agreement for the performance of legal services.
  
  
  
  
  ]]>Gregory Lois, Esq.Workers Compensation2008-09-11T13:38:36-04:00www.greglois.com/files/7544b2000899f56b80c3fc8f073ba027-40.html#unique-entry-id-40www.greglois.com/files/7544b2000899f56b80c3fc8f073ba027-40.html#unique-entry-id-40
  Ultimately, the lesson taught by Serpa for carriers with insureds who work with public entities is that the public entity's right to a credit for workers compensation payments made to injured employees must be taken into account before conceding as to whether a settlement proposal is reasonable. In this case, counsel for the employer should have argued that a settlement of $600,000 was appropriate. ]]>Gregory Lois, Esq.Insurance2008-08-21T14:55:50-04:00www.greglois.com/files/da3def26b77368d0b156f4d815e7c030-50.html#unique-entry-id-50www.greglois.com/files/da3def26b77368d0b156f4d815e7c030-50.html#unique-entry-id-50
  The law (N.J.S.A. 34:15-27) states that the worker can ‘re-open’ their claim for “two years from the date compensation was last paid” which includes payments for medical benefits.
  
  In the Pollock case, the claimant received ‘accelerated’ compensation payments, representing accrued benefits and interest (for late payment) on March 28, 2002. The carrier paid out all the benefits in one lump sum as ‘accrued’ based on a practice known as ‘filling in the gaps.’ In the ‘filling in the gaps’ practice, the payments due under an award (in this case, 203 weeks) are retroactively applied to periods of ‘accrued partial permanency benefits.’ In practice, this means that the carrier ‘looks back’ to periods where the claimant was not receiving temporary disability wage compensation and “fills in” those periods with permanency payments. This serves to decrease the number of payments due the claimant.
  
  The claimant then filed a re-opener claim on September 7, 2004.
  
  The carrier argued that the ‘accelerated’ “filling in the gaps” payments had reduced or shortened the statutory time period for re-opener. The carrier argued that the claimant had two years from the date the last payment was made (March 28, 2002) to re-open his case.
  
  The claimant argued that the ‘filling in the gaps’ practice could not reduce/foreshorten his time for re-opener and that the time period for re-opener runs consecutively from the date of the award.
  
  The Trial Judge and the Appellate Panel found that the period for re-opener should run consecutively from the date of award or settlement. This effectively ends the practice of ‘filing in the gaps.’
  
  Case: Pollock v. Tri-State Motor Transit, Inc., 2008-WL-3539972 (App. Div. decided Aug. 15, 2008)(Judges Winkelstein & LeWinn, unpublished as of blog date). Link to: PDF version.
  
  Statutes discussed: N.J.S.A. 34:15-27]]>Gregory Lois, Esq.Workers Compensation2008-08-21T14:54:19-04:00www.greglois.com/files/be3852de82bb183bea5c92c8e52b7f72-48.html#unique-entry-id-48www.greglois.com/files/be3852de82bb183bea5c92c8e52b7f72-48.html#unique-entry-id-48
  This represents a 4.2% increase in compensation rates (on the ‘maximum side; interestingly, the ‘minimum’ rate only rises 4%). ]]>Gregory Lois, Esq.Workers Compensation2008-08-15T14:55:07-04:00www.greglois.com/files/bbb9a8c0bc1a539ed36da75e9a67f26c-49.html#unique-entry-id-49www.greglois.com/files/bbb9a8c0bc1a539ed36da75e9a67f26c-49.html#unique-entry-id-49
  Citation: Ferrigno v. Tyco International, Ltd., App. Div. A-3328-06T3 (Decided Aug. 15, 2008). Download decision (PDF).]]>Gregory Lois, Esq.Personal Injury2008-08-13T13:37:44-04:00www.greglois.com/files/d1bb58cde0984ff1b4cc7d14bfd2af5a-39.html#unique-entry-id-39www.greglois.com/files/d1bb58cde0984ff1b4cc7d14bfd2af5a-39.html#unique-entry-id-39
  As a practical matter, this case should be cited by any PIP carrier seeking reimbursement for payments, especially when there is resistance on the basis that there is a pending personal injury case. The Appellate Division has made clear that there is no reason for a PIP reimbursement arbitration to await the outcome of the underlying tort case. ]]>Gregory Lois, Esq.New Jersey2008-08-11T14:57:45-04:00www.greglois.com/files/277fd355f06dfbe9dd72e86045dc5b25-51.html#unique-entry-id-51www.greglois.com/files/277fd355f06dfbe9dd72e86045dc5b25-51.html#unique-entry-id-51These figures show almost no changes in the numbers of filed cases over the past year, but do reflect an increase in reported accidents year-over-year (approximately 20,000 more accidents reported in 2007).]]>Gregory Lois, Esq.Appellate Practice2008-07-26T13:34:39-04:00www.greglois.com/files/1591b6d9e9c9a7ac37d5c3c48edf3e28-37.html#unique-entry-id-37www.greglois.com/files/1591b6d9e9c9a7ac37d5c3c48edf3e28-37.html#unique-entry-id-37Rova Farms decision, the New Jersey Supreme Court held that a liability insurer who in bad faith refuses to accept a plaintiff's reasonable settlement demand, will be liable for the amount of any judgment above and beyond the insured's policy limits. In an opinion approved for publication on June 30, 2008, the Appellate Division held that a UM carrier cannot be exposed to Rova Farms liability in refusing to settle with an insured. The court in Taddei v. State Farm, was faced with a case where the plaintiff/insured made a settlement demand after non-binding UM arbitration of $87,500. A jury eventually awarded the plaintiff $2.6 million. However, the trial judge molded the verdict to the $100,000 policy limit. On appeal , the plaintiff argued that the carrier had acted in bad faith, in light of the refusal to settle. The Appellate Division was un-persuaded, reasoning that the Rova Farms bad faith model is inapplicable in the UM and UIM context because the insured is the claimant and, therefore, not exposed to an award in excess of the policy limit. ]]>Gregory Lois, Esq.Insurance2008-07-13T13:36:13-04:00www.greglois.com/files/aa8db6acb537aaa41f6d18114d8fa56d-38.html#unique-entry-id-38www.greglois.com/files/aa8db6acb537aaa41f6d18114d8fa56d-38.html#unique-entry-id-38
  It is important to remember this point of law in determining whether to accept an adversary's tender demand. Very rarely will it be that one party has agreed to indemnify another for the latter's negligence. Thus, the Metta court would advise that an additional insured should only be provided coverage where the primary insured is found negligent. However, all too many times, especially in the case of snow removal contracts and the like, tender demands are accepted prematurely and it is ultimately found that the contractor was not negligent. The carrier is then left to pay the judgment against an entity it does not insure.
  
  Tompkins McGuire frequently advises insurers and TPAs on indemnity issues and related insurance coverage concerns. For more information, please contact Joseph Cobuzio, Esq. ]]>Gregory Lois, Esq.Workers Compensation2008-07-03T14:58:43-04:00www.greglois.com/files/01f3f6a14b8d3aa3cf324d68d1674b21-52.html#unique-entry-id-52www.greglois.com/files/01f3f6a14b8d3aa3cf324d68d1674b21-52.html#unique-entry-id-52
  There was no dispute that the decedent died “in the course of employment” and that his weekly wages were sufficient to give rise to a dependency rate of $227.98 per week.
  
  The dispute arose as to whether or not the claimant’s mother, who lived in Peru was “solely dependent” on the decedent as she claimed. If she could prove dependency, she would received $227.98 per week until she died. The claimant testified that the decedent sent her $600 per month for her support, plus $600 for her birthday and $1,000 at Christmas.
  
  The claimant was unable to provide any evidence that she had ever received any money of any kind from the decedent. It turns out that all the monies were transferred to her in cash through a “middleman” and no records could be produced. Regardless of the lack of proof, the Judge of Compensation gave full credence to the claims of the mother, and awarded her full dependency benefits.
  
  The employer appealed, arguing that the claimant failed to prove she was the claimant’s mother. The Appellate Court found that the Judge of Compensation was correct in awarding lifetime benefits and that counsel for the employer waived the issue of parentage by failing to raise it at trial.
  
  Lesson for adjusters: choose counsel wisely!
  
  Case: Estrada v. Quik Chek, A-1927-07T2 (App. Div. decided July 3 2008)(Judges Lisa & Lihotz, unpublished as of blog date).
  ]]>Gregory Lois, Esq.Appellate Practice2008-07-02T15:01:25-04:00www.greglois.com/files/fa6ef9d0673414fc5b40e8ce6af67bc9-54.html#unique-entry-id-54www.greglois.com/files/fa6ef9d0673414fc5b40e8ce6af67bc9-54.html#unique-entry-id-54
  “occupational exposure to dust, fumes, pulmonary irritants, bending, lifting, repeated manipulations, standing, stress, strain, adverse environment causing occupational conditions and diseases . . . .she alleged impairment to her “chest, lungs, nose, throat, neck, back, knees, arthritis, nervous system, neurosis, and complications arising therefrom.”
  
  The claimant presented the testimony of three doctors. Dr. Ahmad, an orthopedist, diagnosed “spinal sprain, arthritis, and [muscle pain.” Dr. Latimer, a psychiatrist, diagnosed her as suffering from “post concussion syndrome, chronic headaches, fatigue and depression” and Dr. Friedman, found that the claimant had “chronic bronchitis.”
  
  Respondent’s doctors found no disability except for 2.5% of permanent partial total for “post-concussion syndrome” related to an incident where a ceiling tile fell on the claimant’s head.
  
  After eight (8) trial days, the Judge of Compensation found a permanent partial disability of 30% of partial total and dismissed the petitioner's claims against the Second Injury Fund. The claimant appealed.
  
  The Appellate Panel cited the standard of review (exhaustively discussed in our book) found in Tlumac v. High Bridge Stone, stating that the appellate court will not disturb the fact findings of a Judge of Compensation provided they “are supported by substantial credible evidence in the record and not so wide off the mark as to be manifestly mistaken.”
  
  Post-Tlumac, the ‘threshold’ for appellate review has been raised. A party seeking review of the decision of a Judge of Compensation has a difficult bar to surmount. The decision in Doria (above) should lend support to a Judge applying common-sense to a trumped-up claim.
  
  Case: Doria v. Bayonne Hospital, A-4874-06T1 (App. Div. decided June 27, 2008)(Judges Coburn, Chambers, and Waugh, unpublished as of blog date). Attorneys for the claimant: Freeman & Bass.]]>Gregory Lois, Esq.Workers Compensation2008-07-02T14:59:39-04:00www.greglois.com/files/bb088cf0a276e59781e6a3cc11c26154-53.html#unique-entry-id-53www.greglois.com/files/bb088cf0a276e59781e6a3cc11c26154-53.html#unique-entry-id-53
  In the case of Vassilatos v. Mercer Wrecking Recycling Corporation, decided July 2, 2008, the Appellate Judges (Judges Fuentes and Grall) reviewed whether the workers’ compensation judge made specific-enough findings as to whether two intervening accidents “caused or contributed” to the claimant’s permanent disability.
  
  The claimant in Vassilatos suffered injury to his right ankle and leg. He received medical treatment and was released from treatment approximately one year after the accident. The claimant then suffered a number of subsequent accidents - including claims for falling due to the “bad leg giving out.” The claimant underwent multiple surgical procedures to both knees and both shoulders and treatment to his cervical, thoracic, and lumbar spine regions.
  
  The Judge of Compensation decided that the claimant was totally disabled and ordered total disability compensation be paid by the employer at the time of the original accident. The Judge of Compensation acknowledged that the petitioner had sustained subsequent accidents, and the injuries ( for which the majority of treatment occurred after) but failed to parse out exactly what degree of disability was related to the subsequent incidents (Id. at page 13). The case was sent back to the Judge of Compensation by the Appellate Court for the Comp Judge to “articulate, with particularity, what effect the 1999 and 2000 accidents had on the petitioner’s physical and psychiatric well-being.”
  
  The remand of this case will allow the Respondent employer to argue that the petitioner’s condition worsened by an intervening accident which was not “directly connected in a physical chain of physical causation with the compensable injury.” In Vassilatos the claimant re-injured himself slipping on “wet stairs” in his apartment building (for which he maintained a civil action).
  
  Case: Vassilatos v. Mercer Wrecking Recycling Corporation, A-4952-4878-06T3 (App. Div. decided July 2 2008)(Judges Fuentes & Grall, unpublished as of blog date).]]>Gregory Lois, Esq.Personal Injury2008-06-21T13:32:51-04:00www.greglois.com/files/ebc3c4192d0d055865ac8dec94951a7b-35.html#unique-entry-id-35www.greglois.com/files/ebc3c4192d0d055865ac8dec94951a7b-35.html#unique-entry-id-35
  Therefore, allocation or apportionment of each driver’s negligence or fault must be assessed, even if there is a possibility that the public entity may not be liable for damages. Put a different way, although no damages can be awarded against a public entity or employee for pain and suffering if the injuries caused by an accident do not meet the threshold set by the TCA, the public employee is, nonetheless, a tortfeasor pursuant to JTCL and the CNA and this affects the judgment against the private tortfeasor.]]>Gregory Lois, Esq.Commercial Litigation2008-06-21T13:12:56-04:00www.greglois.com/files/e1d4cdce1081f5e75ce5f6e95a85018c-21.html#unique-entry-id-21www.greglois.com/files/e1d4cdce1081f5e75ce5f6e95a85018c-21.html#unique-entry-id-21Gregory Lois, Esq.Personal Injury2008-06-14T19:29:26-04:00www.greglois.com/files/d3bb9a6d8f267e4d3dadaba2db52290a-34.html#unique-entry-id-34www.greglois.com/files/d3bb9a6d8f267e4d3dadaba2db52290a-34.html#unique-entry-id-34Gregory Lois, Esq.New Jersey2008-06-11T13:33:52-04:00www.greglois.com/files/aa79ae818b89f1d6ad203679cab16355-36.html#unique-entry-id-36www.greglois.com/files/aa79ae818b89f1d6ad203679cab16355-36.html#unique-entry-id-36
  In such cases, as soon as one defendant reaches a punitive-damages settlement with the plaintiff, that agreed-upon figure will be used to calculate a ceiling on the punitive damages the other defendants may be assessed. For example, should a defendant judged 20 percent liable for a harm agree to pay the plaintiff $100,000 in punitive damages, then the maximum punitive damages the plaintiff could receive would be $500,000, and no defendant would be liable for more than the share of that $500,000 corresponding to his or her comparative liability.
  
  TMWB is monitoring the progress of this important piece of legislation. ]]>Gregory Lois, Esq.Personal Injury2008-05-21T13:28:23-04:00www.greglois.com/files/d9838756794907d85d14b0053eea688a-33.html#unique-entry-id-33www.greglois.com/files/d9838756794907d85d14b0053eea688a-33.html#unique-entry-id-33This is a published opinion and will constitute binding precedent going forward. It is noteworthy, insofar as the court uncharacteristically enforced a policy exclusion. However, this was most likely due to the fact that alternate coverage was in place. ]]>Gregory Lois, Esq.Employment Law2008-05-13T15:04:21-04:00www.greglois.com/files/fee5477e0d233cc95d10c881282babd5-56.html#unique-entry-id-56www.greglois.com/files/fee5477e0d233cc95d10c881282babd5-56.html#unique-entry-id-56http://www.njleg.state.nj.us/2008/Bills/A1000/873_I1.HTM]]>Gregory Lois, Esq.Professional Liability2008-05-13T13:27:14-04:00www.greglois.com/files/d161d308c6fb5c54f5122969f64e1445-32.html#unique-entry-id-32www.greglois.com/files/d161d308c6fb5c54f5122969f64e1445-32.html#unique-entry-id-32
  Tompkins McGuire, regularly represents numerous industries as well as their insurers in professional malpractice claims. For more information on this case as well as other developments in this area, please contact us. ]]>Gregory Lois, Esq.Workers Compensation2008-04-30T15:05:16-04:00www.greglois.com/files/3c784c37a4eee9b89653dedef8f7a0a8-57.html#unique-entry-id-57www.greglois.com/files/3c784c37a4eee9b89653dedef8f7a0a8-57.html#unique-entry-id-57
  In Scott v. Foodarama, 398 N.J. Super. 441 (App. Div. 2008), the Appellate Division found that the claimant was merely driving to work when the accident happened, and was barred from receiving compensation for injuries sustained on his commute. In other words, the claimant was engaged in his normal commute. The fact that his commuting expenses were paid by the employer did not make the claim fall "within the course of" his employment.
  
  What makes this case notable is that the claimant was actually reimbursed for his commuting expenses by the employer. (Decided February 27, 2008, link to full decision: http://lawlibrary.rutgers.edu/courts/appellate/a3936-06.opn.html)]]>Gregory Lois, Esq.Insurance2008-04-25T13:26:05-04:00www.greglois.com/files/99744ff43e2d086796051247c9aa0fad-31.html#unique-entry-id-31www.greglois.com/files/99744ff43e2d086796051247c9aa0fad-31.html#unique-entry-id-31Gregory Lois, Esq.New Jersey2008-04-23T15:06:22-04:00www.greglois.com/files/baae8bb249d4ba78d02fb2b1e1d715e8-58.html#unique-entry-id-58www.greglois.com/files/baae8bb249d4ba78d02fb2b1e1d715e8-58.html#unique-entry-id-58
  To summarize, the Star-Ledger articles were highly critical of the Department of Labor and the Division of Workers' Compensation - calling our adversarial benefits-litigation process "slow," "inefficient," and "harmful." The stories in the three-part series focused on claimants who waited long periods of time for benefits (including one claimant who died while awaiting medical treatment). Statistics from the Division of Workers' Compensation show that the average claim scheduled for a pre-trial conference is adjourned 15 times before final settlement!
  
  The Star-Ledger examined the legal education and professional experience of the current Judges of compensation and noted that very few had actually practiced workers' compensation law before they became workers' comp judges. Most had political connections and appointments before they were nominated for the bench; the article called the appointment of comp judges a purely "political" process.
  
  In a related article ("Secretive Board of Insiders Steers Workers' Comp", date: May 4, 2008) the Star-Ledger investigated the New Jersey Compensation Rating and Inspection Bureau (NJCRIB), finding that the Board of Directors is dominated by insurance executives and that rate hikes had occurred in the last seven years while the national average premium had actually declined (link).
  
  One possibility that insiders have speculated about has been the creation of a "Workers' Comp Ombudsman" to assist injured workers as they navigate the system and the institution of an "alternate dispute resolution" process (without attorneys representing the employer or employee). Stay tuned.]]>Gregory Lois, Esq.New Jersey2008-04-21T13:25:11-04:00www.greglois.com/files/2d9865c3ae28e8516a12ac7ae2986f5b-30.html#unique-entry-id-30www.greglois.com/files/2d9865c3ae28e8516a12ac7ae2986f5b-30.html#unique-entry-id-30Gregory Lois, Esq.Workers Compensation2008-03-21T15:07:19-04:00www.greglois.com/files/85910a7d1085b8f1e0198d51e3ea18df-59.html#unique-entry-id-59www.greglois.com/files/85910a7d1085b8f1e0198d51e3ea18df-59.html#unique-entry-id-59Gregory Lois, Esq.Commercial Litigation2008-03-21T13:24:12-04:00www.greglois.com/files/95c1d3f643480185d2362b7edbe51a76-29.html#unique-entry-id-29www.greglois.com/files/95c1d3f643480185d2362b7edbe51a76-29.html#unique-entry-id-29
  This was an important victory for insurance carriers in New Jersey, as juries will no longer be left to determine whether low impact collisions correlate to serious medical conditions, especially in the spine, which often times are pre-existing. However, it remains important for defense counsel to insist that their biomechanical experts rely upon the most recent and up-to-date empirical evidence.
  
  TMWB maintains an extensive automobile liability defense practice, representing insureds on personal auto, as well as commercial policies. ]]>Gregory Lois, Esq.Insurance2008-03-15T13:22:58-04:00www.greglois.com/files/33b0e48624a5501c49a13003a6dca7ef-28.html#unique-entry-id-28www.greglois.com/files/33b0e48624a5501c49a13003a6dca7ef-28.html#unique-entry-id-28
  [T]here is no coverage under this policy for ‘bodily injury’ or ‘property damage’ sustained by any contractor, self-employed contractor, and/or subcontractor, or any employee, leased worker, temporary worker or volunteer help of same.
  
  This particular language had never been passed upon by a New Jersey court. The court's decision was based primarily on the fact that immediately above the quoted language, was a requirement that the insured's subcontractors meet certain insurance requirements, or coverage would not apply. The obvious question then was why require subcontractors to carry certain insurance, when they were not covered in the first place? Under the facts of the particular case, the insured was itself a subcontractor on a construction site where a worker was killed. The worker was not an employee of any of the insured's subcontractors, but the carrier denied coverage anyway, exposing the insured to a potential multi-million dollar verdict. With this ruling by the Appellate Division, TMWB, lead by partner Joe Cobuzio, ensured a defense and indemnification for the insured.
  
  TMWB regularly handles declaratory judgment actions on behalf of both insurers and insureds in the State and Federal courts of New Jersey. ]]>Gregory Lois, Esq.Insurance2008-01-21T13:22:04-05:00www.greglois.com/files/390a862b9d75f520a255d4304fb545be-27.html#unique-entry-id-27www.greglois.com/files/390a862b9d75f520a255d4304fb545be-27.html#unique-entry-id-27Gregory Lois, Esq.Personal Injury2008-01-21T13:20:18-05:00www.greglois.com/files/a712d0215a7c03f27144e41755b0fb73-26.html#unique-entry-id-26www.greglois.com/files/a712d0215a7c03f27144e41755b0fb73-26.html#unique-entry-id-26Gregory Lois, Esq.Commercial Litigation2007-12-16T13:19:06-05:00www.greglois.com/files/e0db2a6192a2deccac2b593cc501260d-25.html#unique-entry-id-25www.greglois.com/files/e0db2a6192a2deccac2b593cc501260d-25.html#unique-entry-id-25Gregory Lois, Esq.Commercial Litigation2007-12-13T13:17:07-05:00www.greglois.com/files/31ae7622c210d1d5679d0ed381ab9b70-24.html#unique-entry-id-24www.greglois.com/files/31ae7622c210d1d5679d0ed381ab9b70-24.html#unique-entry-id-24
  BUSINESS IMPACT:
  This decision further demonstrates New Jersey courts' willingness to overlook unambiguous policy language in favor of obtaining a result in the best interest of the insured. Carriers must be careful not to include exclusionary provisions, even if clearly drafted, which can be seen as effectively excluding the main operations for which the insurance is purchased.
  
  Contributed by: Joseph K. Cobuzio and Jared DuVoisin]]>Gregory Lois, Esq.Workers Compensation2007-10-21T13:15:45-04:00www.greglois.com/files/5a30a936b74f8754f8543e06a4aefaba-23.html#unique-entry-id-23www.greglois.com/files/5a30a936b74f8754f8543e06a4aefaba-23.html#unique-entry-id-23
  Application:
  
  When analyzing a new claim involving dual employment, an immediate and comprehensive investigation of the employment relationship is essential. Obtaining documentation such as contracts, job descriptions, employment handbooks, payroll records, and even incorporation documents is an essential strategy in evaluating the claim. Also, early identification and interviews of the owners, managers and contractors can further assist in determining the degree of control each entity had over the injured worker. ]]>Gregory Lois, Esq.Insurance2007-10-13T13:14:14-04:00www.greglois.com/files/ec16d95466e636c7a5571c1366cbdeb9-22.html#unique-entry-id-22www.greglois.com/files/ec16d95466e636c7a5571c1366cbdeb9-22.html#unique-entry-id-22
  Tompkins McGuire will keep you updated as this important case makes its way through the courts. ]]>Gregory Lois, Esq.Commercial Litigation2007-09-21T13:11:31-04:00www.greglois.com/files/e42f9d0eda0b9652d0bfc5272ef1679d-20.html#unique-entry-id-20www.greglois.com/files/e42f9d0eda0b9652d0bfc5272ef1679d-20.html#unique-entry-id-20Gregory Lois, Esq.Insurance2007-09-12T13:10:34-04:00www.greglois.com/files/dcc228f87f3b8b2fccadf6b8b302c407-19.html#unique-entry-id-19www.greglois.com/files/dcc228f87f3b8b2fccadf6b8b302c407-19.html#unique-entry-id-19Gregory Lois, Esq.Employment Law2007-08-17T13:08:38-04:00www.greglois.com/files/06f0368cd31eebfee08b76f6fb68dfbc-18.html#unique-entry-id-18www.greglois.com/files/06f0368cd31eebfee08b76f6fb68dfbc-18.html#unique-entry-id-18
  In Gilleski v. Community Medical Center, 336 N.J.Super. 646 (App. Div. 2001), the plaintiff sustained injuries while in a hospital x-ray room when a chair collapsed. After the accident, the defendant-hospital disposed of the chair to the detriment of the plaintiff's claim against the manufacturer. However, it was found by the court that there was no duty to preserve evidence. The record was clear that the defendant did not accept responsibility for the evidence with knowledge of a potential or pending lawsuit. While hospital staff received calls from the plaintiff complaining of the incident, there was no request that the chair be preserved, nor was there any indication that a lawsuit was forthcoming against the hospital or the manufacturer of the chair. The defendant did not receive notice of a potential suit until fourteen months after the incident occurred, when it received a letter from the plaintiff’s attorney. However, no mention was made of a potential claim against the manufacturer of the chair, nor did the attorney request that the defendant preserve the chair for purposes of a third-party action. Accordingly, the court determined that no liability for the chair’s disposal should attach.
  
  Similarly, in Allis Chalmers Corporation Product Liability Trust v. Liberty Mutual Insurance Company, 305 N.J.Super. 550 (App. Div. 1997), an employee was killed on the job while operating a forklift. The decedent’s wife subsequently instituted a Workers’ Compensation petition along with a products liability action against the manufacturer of the forklift. At the outset , the Workers’ Compensation carrier along with the plaintiff’s products liability counsel agreed to split the cost of inspecting the forklift. Thereafter, the employer offered to sell the forklift to the Workers’ Compensation carrier to preserve it for the pending lawsuit. The employer further advised that if the forklift was not purchased, it would be “scrapped.” The Workers’ Compensation carrier refused to purchase the forklift and did not advise the employer to preserve the forklift. Following settlement of the products liability action, the manufacturer of the forklift brought an action against the Workers’ Compensation carrier for spoliation of evidence under both fraudulent concealment and negligence theories. The carrier successfully moved for summary judgment, with the court declining to impose a duty on the carrier to affirmatively obtain ownership and control of the forklift for the defense of the manufacturer.
  
  Conversely, in Callahan v. Stanley Works, 306 N.J.Super. 488, 498 (Law Div. 1997) the plaintiff, a Home Depot employee, was injured while moving a pallet of storm doors with a forklift truck. The doors tipped off the forklift and struck the plaintiff. Immediately after the accident, Home Depot voluntarily took steps to preserve the pallet in connection with investigating the inevitable Workers’ Compensation claim. However, at some point, the pallet was destroyed. The plaintiff subsequently sued the distributor of the doors and added Home Depot to the lawsuit, claiming that it lost or destroyed the pallet which was the “instrument of the injury." In light of the fact that Home Depot attempted to preserve the pallet and also asserted a lien on any damages recovered by the plaintiff in the third-party action, the court concluded that there was a duty to preserve the evidence, and reasoned that “a jury could find that Home Depot should have foreseen that the evidence was material to a potential civil action.”
  
  Conclusions: Practical Applications
  
  Where an employer makes post-accident modifications/repairs, absent knowledge of an impending suit concerning a given piece of machinery or an agreement to preserve the same, a claim for negligent spoliation should not be feared. Consequently, it becomes of great importance to document when any modifications/repairs are made in comparison to when notice of suit is received. Additionally, it is ill-advised to enter into any agreement wherein an employer promises to preserve a given piece of evidence for purposes of contemplated or pending litigation. Equally important, upon receipt of a request to preserve evidence from a prospective litigant whether it be a plaintiff or defendant, an employer should promptly reply in writing that it takes no responsibility for evidence preservation so as to obviate any potential claim that the employer’s silence equated to acquiescence to the request. Finally, upon receipt of a formal or informal notice that a lawsuit is forthcoming, it is best to forward written notice to all potential litigants prior to making any modifications/repairs and affording an opportunity to inspect the implicated machinery in the presence of counsel.
  
  Contributed by: Jared DuVoisin and Joseph K. Cobuzio]]>Gregory Lois, Esq.Employment Law2007-05-15T15:24:04-04:00www.greglois.com/files/3d8e59988af23d26646facb6533e0354-75.html#unique-entry-id-75www.greglois.com/files/3d8e59988af23d26646facb6533e0354-75.html#unique-entry-id-75Gregory Lois, Esq.Employment Law2007-04-30T15:23:23-04:00www.greglois.com/files/ee4f736bb480b8d224f47e60de4a68e0-74.html#unique-entry-id-74www.greglois.com/files/ee4f736bb480b8d224f47e60de4a68e0-74.html#unique-entry-id-74Gregory Lois, Esq.Employment Law2007-04-21T15:19:45-04:00www.greglois.com/files/c4217a75d6ef2c5688ea62a5c24cd44c-72.html#unique-entry-id-72www.greglois.com/files/c4217a75d6ef2c5688ea62a5c24cd44c-72.html#unique-entry-id-72
  On November 22, 2005, the very first day he worked for the respondent, the claimant was injured (his right foot was amputated). The petitioner was loitering in the Bravo Supermarket parking lot in Orange, looking for work when he was approached by three employee of Reliable. The claimant reported to work at the Reliable premises.
  
  According to the petitioner, he was to be paid “$100 per day” to cut wood with a power saw. According to the employer’s representative, the claimant was told (in the Supermarket parking lot) to get into a van. The claimant was allegedly told that he would find out his daily wage when he got to the worksite.
  
  The Judge of Compensation found the issue to be “primarily one of credibility.” Finding that the respondent’s witnesses were “less than credible” due to conflicting testimony, the Judge found that the wage was $100 per day.
  
  The decision of the Judge of Compensation was upheld by the Appellate Division. In light of the fact that the employer was unable to produce documentation of the wage to be paid, and in light of the lack of credibility of the respondent’s witnesses, the Appellate Division gave credit to the decision of the judge of compensation who was able to gauge the demeanor of the witnesses.]]>Gregory Lois, Esq.Employment Law2007-04-15T15:20:40-04:00www.greglois.com/files/ce01ad558260714e19653bec1be4c577-73.html#unique-entry-id-73www.greglois.com/files/ce01ad558260714e19653bec1be4c577-73.html#unique-entry-id-73Gregory Lois, Esq.Workers Compensation2007-04-13T15:18:37-04:00www.greglois.com/files/4826924b1c91e72b78866730c3da6a5e-71.html#unique-entry-id-71www.greglois.com/files/4826924b1c91e72b78866730c3da6a5e-71.html#unique-entry-id-71The facts in Valcarcel are important to understanding the judges’ decision.
  The claimant in Valcarcel was employed by FSA managing a residential apartment complex in Bridgewater. The petitioner was supplied with the use of a company vehicle (a Ford pickup truck). Occasionally the claimant would perform maintenance at other properties owned and operated by FSA.
  The claimant also operated a personal business: home remodeling, which he pursued after normal work hours. FSA did not allow the claimant to use the Ford truck for his personal business.
  On the date of accident the claimant was instructed to travel to Highland Park on behalf of his employer. Instead of driving straight to Highland Park, the claimant diverted his route and stopped at a private job site in Plainfield where he had been remodeling a private residence. After leaving that job site, the petitioner was involved in a motor vehicle accident in Plainfield.
  Judge Gottlieb dismissed the claim petition, finding that the claimant had embarked on a personal errand. The petitioner argued that at the time of the accident, he was headed to Highland Park (as he had been originally instructed by his employer). The Appellate Division found this argument unpersuasive and upheld Judge Gottlieb, noting “that surely is not a dispositve fact, for it would logically signify that Valcarcel would likewise be entitled to coverage if, say, he had traveled several hours away for personal business to Cape May or to Connecticut before heading to Highland Park.”]]>Gregory Lois, Esq.Workers Compensation2007-03-21T15:17:34-04:00www.greglois.com/files/0ad6f63277e7f485ba56bfb25f437a7b-70.html#unique-entry-id-70www.greglois.com/files/0ad6f63277e7f485ba56bfb25f437a7b-70.html#unique-entry-id-70
  The law firm that filed to complaints quietly settled with Melard (Ginarte, O’Dwyer, Winograd & Laracuente) for an ‘undisclosed’ sum. That left the federal lawsuit pending against the 84 factory workers who filed the allegedly fraudulent claims. On February 21, 2006, a default judgment was obtained against the workers, who did not appear or defend the case on their own behalf.
  
  Three weeks later, Federal (U.S. District) Judge Stanley Chesler entered a judgment of $2,264,691 against the workers (of which $350,678 was attorneys’ fees for Melard’s lawyers).
  
  The saga as it stands now? The lawyers who brought the claims settled their portion of the case and moved on. The 84 workers were not so lucky. The federal judgment against them, likely uncollectable, stands.
  
  More interesting is the fate of the two former-employees who continued to pursue their workers’ compensation claims against Melard (and were provided a court-appointed attorney, Gregory Jachts, Esq.). Two of those claimant received awards of compensation after trial (Judge Beverly Karch, Presiding Judge of Comepnsation, Paterson). In other words, the Compensation Judge found that the claimants had compensable injuries. Nonetheless, under the terms of the RICO judgment, the awards obtained by the employee were the results of a tainted claim, and the employees who recovered owe Melard triple their award!
  We will continue to follow this story as it develops. ]]>Gregory Lois, Esq.Workers Compensation2007-03-18T15:15:55-04:00www.greglois.com/files/56907b3201ce90a62ae524b401ec1e63-68.html#unique-entry-id-68www.greglois.com/files/56907b3201ce90a62ae524b401ec1e63-68.html#unique-entry-id-68
  Credibility is King . . . Patel v. Federated Logistics, App. Div. February 7, 2007 (not approved for publication)
  
  Petitioner Yogina Patel claimed that exposure to "dust, fumes, pulmonary irritants, bending, lifting and repeated manipulations" while working for three years as a checker in a dusty warehouse caused her to become permanently disabled.
  
  During a full trial, the claimant presented the testimony of her physicians, who testified that the petitioner suffered from "inflammation of the soft tissues of the muscles" and "chronic bronchitis."
  
  The employer presented the testimony of its Human Resources manager, who disputed the claimant's descriptions of the premises and her claims that the warehouse was "dusty."
  
  The Judge of Compensation dismissed the case, finding that the claimant's description of the warehouse was not true and her complaints were therefore not credible.
  
  Practice tip: In defending occupational disease claims, the testimony of an employer-representative to dispute specific facts asserted by the claimant may be powerful evidence for the defense.
  
  . . . Objective Medical Evidence- Larsen v. City of East Orange, App. Div., February 13, 2007 (not approved for publication)
  
  East Orange firefighter Kenneth Larsen brought a claim for occupational exposures to asbestos resulting in colon cancer and pulmonary disabilities which he alleged were related to his employment.
  Both parties retained experts. During the trial, respondent's expert admitted that he could "not rule out" the claimant's workplace exposures as a possible cause of the Larsen's cancer and disability.
  
  There was no dispute that the claimant worked in a facility with "free asbestos" present.
  
  Based upon the lack of disagreement between the experts and the presence of the admittedly cancer-causing substance in the workplace, the Appellate Division affirmed the decision of the Judge of Compensation finding a causal relationship between the cancer and the work exposures.]]>Gregory Lois, Esq.Workers Compensation2007-03-08T15:16:56-05:00www.greglois.com/files/cb5f14bc47f5e8396f7d1c0211bab399-69.html#unique-entry-id-69www.greglois.com/files/cb5f14bc47f5e8396f7d1c0211bab399-69.html#unique-entry-id-69
  Quest said that 3.8% of the 9 million tests administered came back positive.]]>Gregory Lois, Esq.Workers Compensation2007-02-22T15:15:10-05:00www.greglois.com/files/efeed51e671f95282f8d4a35dd93645c-67.html#unique-entry-id-67www.greglois.com/files/efeed51e671f95282f8d4a35dd93645c-67.html#unique-entry-id-67
  The Act provides exceptions for (1) paid travel time; (2) employees using an employer-authorized vehicle; (3) travel by emergency personnel (fire, police) traveling to an emergency. Generally, off-premises travel to and from work is not compensable, UNLESS the employer provides the transportation.
  
  A recent case, decided February 22, 2007, discusses the application of the going-and-coming rule in the context of a familiar set of facts.
  
  In Lawhead v. Harleysville Insur. Co., App. Div. February 22, 2007 (not approved for publication), defense attorney Mark Lawhead appeared in workers' compensation court in Newark to represent his employer, Harleysville Insurance Company. He was busy in court until 2:45pm. He was scheduled to appear the following day in Freehold workers' compensation court, and because he did not have the necessary files, he drove in a company-owned vehicle from Newark to his office in Somerset to pick them up. After retrieving the files, he was injured while driving from his office to his home in Tinton Falls (again, in the company-owned vehicle).
  
  The Judge of Compensation found Lawhead's injuries compensable by deciding that Lawhead was "engaged in an activity for his employer's benefit when he had his accident" and because Lawhead was operating a company-owned vehicle at the time of the accident.
  
  The Appellate Division panel disagreed and reversed the Compensation Judge, finding that the petitioner was "merely in the course of traveling from his office to his home at the end of a normal workday." The Appellate Division found that the claimant was "engaged in his regular commute" and therefore not entitled to benefits.
  
  Practice tip: The facts surrounding an off-premises accident are of paramount importance in determining whether the claim is compensable.
  
  Tompkins McGuire continually monitors the decisions of the workers' compensation courts. Any questions? Feel free to contact us!]]>Gregory Lois, Esq.Workers Compensation2007-02-21T15:14:25-05:00www.greglois.com/files/58d8084a69620f036e00731c9e5b4843-66.html#unique-entry-id-66www.greglois.com/files/58d8084a69620f036e00731c9e5b4843-66.html#unique-entry-id-66From Director Calderone’s February 5, 2007 memo:
  
  “The current law requires that a petitioner or the petitioner's attorney make a request for payment in writing to the Commissioner of Labor and Workforce Development before the Uninsured Employer's Fund (UEF) can comply with an order for petitioner benefits, counsel fees or other costs. To have each individual petitioner or petitioner attorney prepare separate letters for payment has created unnecessary benefit delays and expenses for the parties.”
  
  The Division has created a new form that all UEF attorneys will have available at the time a judgment or order for UEF benefits is entered. The UEF attorney will bring the completed form back to the Division to commence the payment process. No additional letters or mailings will be required by the parties.
  ]]>Gregory Lois, Esq.Workers Compensation2007-02-21T15:03:15-05:00www.greglois.com/files/a1c6681aebc9210b651348f2cb0840f8-55.html#unique-entry-id-55www.greglois.com/files/a1c6681aebc9210b651348f2cb0840f8-55.html#unique-entry-id-55
  The facts in the case are important to the ruling of the Appellate Judges. The decedent worked as a sprinkler pipe installer for 29 years with different companies (ultimately, working for himself for the last fifteen years of his employment). The claimant was also a smoker: he smoked from age 15 to age 25, quit for about ten years, and then began smoking again for two years before he was diagnosed with cancer (small-cell type)in 1996.
  
  Various witnesses were called who testified about the working conditions the claimant experienced. A union leader who testified on behalf of the plaintiff described the potential for exposure to asbestos. In addition, doctors testified about the epidemiology of cancer (Dr. Neugut for the claimant). The plaintiff’s medical experts testified that the “heavy smoking” combined with the exposures to asbestos to cause the claimant’s lung cancer.
  
  The plaintiff’s medical expert testified that it was asbestos exposure and cigarette smoking “acting in synergy” which caused the claimant’s lung cancer.
  
  Another medical expert, Dr. Kritzberg, who testified for the defendant Mid-State Sprinkler, said that the type of cancer (small-cell carcinoma) is closely linked to smoking, not asbestos exposure. Dr. Kritzberg also testified that the the claimant’s CT scans and x-rays did not show changes in the lungs consistent with asbestosis or asbestos exposure. Dr. Kritzberg testified that the medical records he reviewed showed that the claimant smoked “4 or 5 packs a day” from age 15.
  
  The Judge of Compensation found it was “more probable than not” that the claimant’s exposure to asbestos caused his lung cancer.
  
  The Appellate Judges reversed: they said that the medical proofs were insufficient to establish causation. Specifically, the Appellate Judges found that ‘small cell carcinoma’, like the cancer the plaintiff had, is not causally linked to asbestos exposure. Further, the “synergy” theory of causation was dismissed as not based upon scientific evidence.
  
  Case: Leonard v. Mid-State Sprinkler, A-4952-06T2-06T2 (App. Div. decided May 20, 2008)(per curiam, unpublished as of blog date).]]>Gregory Lois, Esq.Workers Compensation2007-01-11T15:13:38-05:00www.greglois.com/files/af0995e789a5b6ef080a9e4f566cb154-65.html#unique-entry-id-65www.greglois.com/files/af0995e789a5b6ef080a9e4f566cb154-65.html#unique-entry-id-65Gregory Lois, Esq.Workers Compensation2007-01-10T15:13:00-05:00www.greglois.com/files/38d4383052abb21b8cead2c815ad6fd8-64.html#unique-entry-id-64www.greglois.com/files/38d4383052abb21b8cead2c815ad6fd8-64.html#unique-entry-id-64Gregory Lois, Esq.Workers Compensation2007-01-01T15:12:08-05:00www.greglois.com/files/21bc957686371204dc35f7814a49cd66-63.html#unique-entry-id-63www.greglois.com/files/21bc957686371204dc35f7814a49cd66-63.html#unique-entry-id-63Gregory Lois, Esq.Firm News2006-11-10T15:10:51-05:00www.greglois.com/files/788d2b2ac636c55a89b6d54f3936f7a3-62.html#unique-entry-id-62www.greglois.com/files/788d2b2ac636c55a89b6d54f3936f7a3-62.html#unique-entry-id-62Gregory Lois, of the Tompkins workers’ compensation department led a discussion with the claims professionals at Gallagher. ]]>Gregory Lois, Esq.Publications2006-10-30T15:09:58-05:00www.greglois.com/files/3f6f94f397bd2419965061f41e0230dc-61.html#unique-entry-id-61www.greglois.com/files/3f6f94f397bd2419965061f41e0230dc-61.html#unique-entry-id-61Gregory Lois, Esq.Firm News2006-05-11T15:08:39-04:00www.greglois.com/files/32bab5f2ffd82938edfa958c5e600351-60.html#unique-entry-id-60www.greglois.com/files/32bab5f2ffd82938edfa958c5e600351-60.html#unique-entry-id-60