Louis Dubrel testified that before his work-accident “I used to do it all . . .I used to be Superman . . [but now I’m so disabled] I’m Mighty Mouse.” Unfortunately for Dubrel, following this testimony his employer presented video showing “Mighty Mouse” was actually still “doing it all” - including winning prize money as a jockey racing horses! On Monday, January 30, 2012, New Jersey’s Appellate Division agreed that Dubrel’s fraud was "flagrantly galling" and upheld the denial of all benefits. On January 31, 2012, a state Grand Jury indicted Dubrel for insurance fraud and perjury.  

This case, involving twin brother evidence, horse racing prize money, and surveillance video is a great starting point for talking about the nuts and bolts of trying a case where fraud becomes an issue.

But first, the law.

Under the New Jersey Worker's Compensation Act fraud section (§57.4(c)(1)),

"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."

On my blog I’ve often discussed (see here, and here) the use of videotape surveillance in New Jersey courts. I've also written about the Gross v. City of Neptune decision – a 2005 case in which the employer was barred from using surveillance which was obtained after the trial began because the surveillance was not referred to on the "Pre Trial Memorandum." The Pre Trial Memorandum is executed by the parties and the Judge and lists all of the witnesses both parties will call as well as the issues in dispute. In the Gross case, because the employer did not reveal that they had videotape evidence on the pretrial memorandum the judge of compensation ruled the videotape evidence was “surprise testimony” and could not come into the case. The Appellate Division upheld that exclusion.

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.

Louis Dubrel claimed he sustained permanent injuries to his neck and low back from an injury at work in February 2004. Dubrel testified “Now I’m Mighty Mouse.” According to the claimant, before his debilitating injuries he was able to travel, go fishing with his kids, and ride off-road motorcycles. The petitioner also testified that he used to ride, train, and race horses. At trial in 2009, the petitioner testified that "I can't ride [horses], not a shot." He further testified that he could no longer perform household chores and that it was even a challenge to dress himself.

After testifying that he had to give up his horse racing hobby – the claims adjuster – who happened to be a horse enthusiast herself – found references on a popular horse racing website showing that the claimant had actually jockeyed less than two weeks before he testified – and had recently won prize money! Based on what she learned, the adjuster assigned surveillance.

Surveillance was successful in obtaining videotape of the claimant, as he worked on his farm, doing carpentry, taking care of animals, etc. In the video and according to the surveillance investigator, the claimant was unimpaired in his activities of daily living. The claimant was then presented with the videotape and informed that the employer was going to call the surveillance agent and the adjuster at trial.

The video was shown, over the objections of the petitioner’s counsel. The adjuster testified, too, about what she had discovered on the horse racing websites. In his own defense, the claimant was able to show he actually had a twin brother. However, the petitioner never attempted to demonstrate or argue that it was actually the twin brother who was caught on videotape or engaging in the horse racing activities.

The judge of compensation stated that the claimant had "made an unambiguous claim that he no longer drives horses" but that testimony was made "just one week after he was the driver of [his horse] Finest Firewater in a qualifying race in Delaware" and concluded that there was "no charitable explanation they could characterize these statements made by the petitioner under oath as anything other than false." The judge found that it was clear from the context of the petitioner's remarks that the statements were made to obtain workers compensation benefits fraudulently.

Practice Tips

In this new decision the Appellate Division approved the inclusion of surveillance video obtained after the claimant testified because it was “relevant to prove or disprove a fact in issue.” The Appellate Court found that the video surveillance and the information about the petitioner’s horse racing and prize winnings were not “surprise witnesses” and the Compensation judge had not abused his discretion by letting that testimony into the case.

The Appellate Court ruled that although surveillance tapes made after the start of trial should generally be excluded, an exception arises where the employer could not be aware of the circumstances necessitating the surveillance before the start of the trial.

In cases like this one, where the claimant testifies that he can do “nothing,” denies participation in specific activities, or testifies he is as weak as a fictional cartoon mouse, additional investigation and even surveillance should be considered to disprove those claims.

Decision: Louis Dubrel v. Maple Crest Auto Group, A-3321-10T3 (App. Div. Decided January 30, 2012) 

New York has a "Special Fund for Reopened Cases" to assume liability for reopener workers’ compensation claims. When a claimant moves to reopen a "stale" case, the employer/carrier requests relief from the "Special Fund for Reopened Cases." By shifting cases over to the Special Fund, the carrier/employer shifts the burden for paying compensation to the Special Fund.

Filing requirements.

There are forms available to the employee seeking “reopener” of the closed claim. A new medical record can be sufficient to reopen the case if it provides notice to the Worker's Compensation Board of the change in condition – in that case, Form C-27 (Medical Proof of Change in Condition in Support of Application for Reopening) should be used. The medical report must demonstrate a new condition and not merely the continuing effects of the original disability or injury.

Time factors.

There are time limitations for the shift of exposure to the Special Fund. These rules are as follows:

• 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).
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This is important factor to consider – as the Worker's Compensation Board does not consider payments for medical services "compensation." Oftentimes in a reopener case, the claimant has been receiving ongoing medical care and indemnity benefits have ceased.

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

In 2011 there were at least nine reported decisions on whether or not the workers compensation claim had been "truly closed” by the Worker's Compensation Board and the requisite amount of time had elapsed, thereby creating a viable claim for relief from the Special Fund for Reopened Cases.

Since 2001 the Board has been marking cases as "No Further Action" rather than stating a case is "closed." This "No Further Action" marking  confuses the issue as to whether or not a case is truly closed at the time of adjudication.

• 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).
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Practice tips for adjusters.

First, identify claims where significant time has elapsed from last payment of lost time or permanency benefits. The passage of time is critical to establishing Special Fund exposure.

Next, confirm the case was “truly closed” at a prior proceeding by settlement or by Order of the Workers’ Compensation Law Judge. This will usually involve reviewing old EC-23’s (decisions) in the electronic case file. Knowledge of these reopening rules in the instances where cases been "truly closed" can significantly reduce exposure for New York employers and carriers.

As this issue continues to be raised before the Board and continues to be a steady source of Appellate Division review, it is clear that the rules concerning whether or not cases "truly closed” are nuanced and require a close analysis of the facts and the applicable law in your case.

Consequential injury under the Longshore/Defense Base Act.

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

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

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

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

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

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

Is there a notice defense in New York?

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

What constitutes Employer Prejudice?

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

New Case on employer prejudice.

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

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

What are the time limits on filing an occupational?

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

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

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

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

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

Practical tips.

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

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

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

In the case of Calle v. DeJana Industries, decided October 7, 2011, the New Jersey Appellate Division found that "reconstructing" wages for a part-time seasonal worker to an earning level equivalent to a full-time employee was appropriate based on the claimant's testimony that he was an "off the books" worker elsewhere. The petitioner testified that when not working part-time working for the employer he "would stand on a corner waiting for work" as a day laborer. The Judge of Compensation considered this testimony as proof that the claimant was disabled from all full-time employment even though the claimant was only a part-time worker for the defending employer and did not produce any proofs of the alleged full-time work elsewhere. By making this determination, the claimant's wages were "reconstructed" to a higher rate, entitling him to a much larger award.

When wages are "reconstructed."

The first step in determining the appropriate rate of compensation is to determine "wages" as defined in N.J.S.A. 34:15-37. The rate of compensation may not exceed 70% of petitioner's wages at the time of the accident subject to the maximum and minimum rate in effect for the year the accident occurred.

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.

The New Jersey Supreme Court in Katsoris v. South Jersey Publishing Co., 131 N.J. 535 (1993) instructed 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 from the 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 if 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).

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."

Case where wage reconstruction was rejected.

Another recent case which I've written about reached different conclusion regarding wage reconstruction. 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 only on her part-time work - which would equate to 150 weeks of compensation payable at $66.15 per week, totaling $9,922.50.

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 from the evidence presented, principles of fairness and equity developed to compensate for that lost potential are not implicated and reconstruction of wages is not appropriate."

Applying Gruzlovic to Calle.

The Calle decision reveals a low threshold for the petitioner to prove a loss of future earning power - the claimant in Calle merely alleged that he was a day laborer working full time in other employments. The record does not reveal any wage information, pay stubs, or tax returns which were used to verify this claim. Nonetheless, the Appellate Division accepted the bald assertion of the injured worker that he sought full-time work in essentially unverifiable (and likely illegal) employments, and then relied on that low proof threshold to establish the petitioner's right to reconstructed wages.

Case: Calle v. DeJana Industries, A-0797-10T2 (App. Div. decided October 7, 2011).

An employer can deny a case for lack of notice, lack of employment, wrong carrier, or other jurisdictional or substantive reasons by filing a "notice of Controversy" (Form C-7). Once the C-7 is filed, the case will be set down for an expedited hearing within 30 days. The Act also requires that a "Pre-Hearing Conference Statement" (Form PH-16.2) must be filed 10 days before the Expedited hearing. See 12 NYCRR 300.38(f)(4). If the Pre-Hearing Conference statement is not filed on time, all defenses are waived.

We counsel our clients that if you are denying a case, 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, you have enough information to fill out the Pre-hearing Conference Statement - so go ahead and file the PH-16.2 at the same time.

We think he best practice is to have outside counsel handle the entire process! More commonly, we see 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.

In March I reported on two cases where the Appellate Division upheld the suppression of defenses where the carrier failed to timely file the Pre-hearing Conference Statement. LINK

In a case decided September 29, 2011, the Appellate Division reviewed a situation where the employer denied the case (filed a C-7) but didn't file the PH-16.2 within the time limits. To fix the mistake, counsel immediately filed an "amended notice of controversy" and argued that the originally-scheduled Pre-hearing Conference was therefore "premature" and should have been rescheduled, thereby making the PH-16.2 timely.

The Workers' Compensation Law Judge refused to excuse the late fling, and stripped the employer of its defenses, ultimately establishing the claim.

In a decision dated September 29, 2011, the Appellate Division affirmed this outcome.

Best practice: 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!

Case: Butler v. General Motors, NY Slip Op 06634 (App. Div. 3d Dep't, Decided September 29, 2011).

Judges hearing Longshore and Harbor Workers' Compensation claims have long applied a "true doubt" rule - which shifts the burden of persuasion to the party opposing a benefits claim. Although the "true doubt" rule was thrown out in 1994 with the Supreme Court's decision in Greenwich Collieries (discussed below), there is a pervasive attitude in workers' compensation that fact disputes should always be resolved in favor of the claimant.

While the Greenwich Collieries decision is nearly 20 years old, the bias is so ingrained that recently proposed changes to the Longshore and Harbor Workers' Compensation Act, amend Section 901(a) to state “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.” (See my earlier post on the proposed changes).

In case decided September 6, 2011, the Court of Appeals (4th Circuit) ruled that where both sides presented diametrically opposed but equal evidence, the claimant must lose.

The Green Decision

Robert Green claimed that exposure to loud noises during 23 years of employment as a Longshoreman caused him to develop compensable sensorineural hearing loss. According to Green, he was often removing and installing twist-lock cargo container "shoes" (which fasten one container to another on a cargo ship). Green alleges that the noise of the freed containers contacting the waiting truck chassis, along with normal dock noises - machinery, diesel forklists, etc., - led to his hearing loss.

Green provided the court with the testimony of his audiologist (Joseph Gillespie) who testified that the claimant suffered from hearing losses at specific frequencies and which impacted the claimant's ability to distingish some spoken workds, including "the S's and F's and K's and TH's." He diagnosed "slight to mild sensorineural hearing loss, left greater than right" and calculated a 3.75% binaural hearing loss. Gillespie recommended that Green obtain in-the-ear hearing aids. Green filed a claim for disability benefits under the Longshore and Harbor Workers' Compensation Act.

In response, the employer had Green examined by a second licensed audiologist, who performed comprehensive audiological testing on the claimant. This new testing showed no hearing impairment (0% binaural). The claim for benefits was denied.

A trial ensued. Both audiologists testified that in order for two audiograms to be within "good reliability" there should be no more 5db difference between the two tests. The tests in question showed more than 5db variability at tested frequencies. The claimant's audiologist, Gillespie, testified that the differences between the two tests could be due to

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 claimant's audiologist recommended that the claimant get a new (third) hearing test performed - but he claimant declined to do so.

The Administrative Law Judge found that the audiograms were both credible and "entitled to equal probative value" and so averaged the results to find an overall disability of 1.85% binaural hearing loss. The Benefits Review Board affirmed this decision.

The Appeal.

The employer appealed - arguing that the claimant did not meet his burden of proof under the law. The claimant essentially argued that in the case of a "tie" - two equally credible audiologists with differing views of disability allows the Judge to make a "split the difference" call. The employer argued that the evidence was not simply reliable - that the tests demonstrated too much variability and therefore neither could be relied upon. Further, both audiologists admitted that the variability between the two tests was beyond the threshold for determining reliability - on short, neither test could be considered "reliable" and therefore a Judge averaging two unreliable results could not yield a third, more reliable estimation of disability.

In a new decision issued September 6, 2011, the Appellate Court overturned the decision, citing the Spreme Court's decision in Director, Office of Workers' Compensation Programs, DOL v. Greenwich Collieries (93-744), 512 U.S. 267 (1994), which stands for the proposiiton that when the evidence is evenly balanced, the claimant must lose.

Case: Ceres Marine Terminals, Inc. v. Green, — F.3d —-, 2011 WL 3891891 (4th Cir. 2011).

In New Jersey the employer has the right to direct and control medical care. However, there are limited circumstances where an employer can lose that right to control - specifically, when the employer has failed to provide "reasonable and necessary" curative treatment to a claimant. What usually happens is that an authorized treating provicder requests authorization to perform a specific treatment (such as surgery) and authorization is withheld or delayed, often for good reason.

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.

Forensic Investigator Gary Veeder specialized in trace fiber evidence for the New York State Police Forensic Investigation Center. His findings were relied upon by prosecutors and juries in sending people to jail. Unfortunately, a 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).

Cathleen 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.

Claimant Gerard McGlinsey worked from 1974 to 2001 as a press operator in Pennsylvania. In 1999 he complained to his employer about physical problems he was having, related to the job. The employer told him to file a workers' compensation claim (in Pennsylvania) and pursue treatment. The claimant didn't file anything and kept working as a pressman.
The claimant then worked from 2001-2002 as a pressman in New Jersey, essentially performing the same job. Following this employment, the claimant brought an occupational claim for workers' compensation benefits in New Jersey. The employer filed a motion to dismiss based on a lack of subject matter jurisdiction - stating that the claim should have been brought in Pennsylvania (the claimant called this motion a 'stealth' motion for summary judgment).
During the trial it was established that most of the claimant's work experience was in Pennsylvania, and that only 5% of his work life occurred in New Jersey.
Which state has jurisdiction, Pennsylvania or New Jersey?
The New Jersey Appellate Division just affirmed the decision of New Jersey Workers' Compensation Judge Jose LaBoy. Read More...

In 2006 David Poulton worked for Martec Industries in Rochester, New York, as a laborer. Poulton had a history of low back claims, and had filed workers comp claims in 1998 and 2000. When he visited his treating physician in June 2006, he had the same old complaint: his back hurt, as it had virtually every day since his first injury in 1998. He told his doctor that he re-injured his back at work the prior day while lifting materials.

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.

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.

In a case of importance for all employers, were her injuries found compensable, and thus, did the employer have the benefit of the 'workers' compensation bar'? Read More...

While attending a training conference and after an employer-sponsored dinner, Emily Maher and a group of co-workers took a shuttle into downtown Saratoga and visited three bars on Caroline Street. According to one witness Maher consumed five beers but did not appear drunk. Around midnight, Maher and two of her coworkers took a taxi back to the Gideon Putnam Hotel, where they had overnight accommodations, and eventually worked their way to a second-floor suite occupied by one of the coworkers.
After arriving in the suite, claimant and her two coworkers stepped out onto the roof of the hotel, which was accessible only via the bathroom window in the suite. Approximately 20 minutes later, claimant placed her hands on the railing surrounding the roof, heard a loud crack and fell to the ground below. She brought a claim for workers' compensation benefits against her employer.
Was is compensable? Read More...

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).

Was this correct? Read More...

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.

How did the Appellate Court rule? With the employee - finding her injuries compensable? or with the employer - ruling that the stolen car had nothing to do with work? Read More...

A recent case, decided March 1, 2010, explores what 'good cause' means in the context of 'reinstating' a dismissed New jersey Workers' compensation case. Claims can be dismissed under N.J.S.A. 34:15-54 ('Section 54') for a variety of reasons, ranging from a claimant's failure to provide discovery, for failing to abide by a prior order of Court, or for lack of prosecution. Section 54 also provides that a dismissed case can be restored "within one year" and if the claimant shows "good cause" for reinstatement.

The Compensation Judge in Metrick v. United Parcel Service, A-4132-08T1 (App. Div. Decided March 1, 2010), denied the motion for the claimant to restore the dismissed claimant to the active trial list. According to the compensation judge, the claimant failed to show 'good cause' as to why the claim should be reinstated. The Appellate Division upheld the reinstatement. Read More...

A New York Workers’ Compensation claimant is availed five (5) presumptions. 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. Read More...

Appeals of decisions in New Jersey Workers' Compensation cases are made directly to the Appellate Division. The 'scope of review' by the appellate Division is "the same as that on appeal in any non-jury case, that is, whether the findings made could reasonably have been reached on sufficient credible eveidnece present in the record, considering 'the proofs as a whole,' with due regard to the opportunity of the one who heard the witnesses to judge of their credibility." Close v. Kordulak Bros., 44 N.J. 589, 599 (1965), quoting State v. Johnson, 42 N.J. 146, 162 (1964). Thus, the findings of fcact made by a judge of compensation "are entitled to substantial deference." Ramos v. M & F Fashions, Inc., 154 N.J. 583, 294 (1998).

But how does the appeals Court review cases where there was a significant split - a disagreement - between the doctors who testified in the workers' compensation case? How does the Appellate Divison review a case where the Comp Judge agrees with one side's doctors over the other? Read More...

According to statistics provided by the NJ Division of Workers' Compensation, nearly 30% of all case closures in the average year are dismissals. This does not mean that those cases are closed forever - the claimant has a right to 'restore' a dismissed case when the case is closed for lack of prosecution. A new case explores the discretion a workers' comp judge has in restoring a case when the claiamnt did not move to restore it within the 'one year' time period to get the case back on the active hearing list. Read More...

In a recent published decision, the New Jersey Appellate Division just published a decision finding that injuries arising from an employee's five-mile off-premises trip to run a personal errand - buy a cup of coffee - was compensable. The Court ruled that accidents "occurring during coffee breaks for off-site employees, which are equivalent to those of on-site workers, are minor deviations from employment which permit full recovery of workers' compensation benefits."
This 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.

New York workers who die on the job are entitled to a presumption that the death was ‘work-related’ where the death is unwitnessed or unexplained (Workers’ Compensation Law, Section 21). This section of the statute is meant to encourage employer vigilance regarding employees in dangerous circumstances and encourage proper supervision.
In 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.

In Curtis 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.

In a recent New York case an award for injuries and surgery to claimant's left shoulder was taken away by the Workers' Compensation Board based on a "lack of credibility" demonstrated by the claimant. This case serves as a good review of the hearing and appeal process and the standards relied upon for finding of disability in New York. Read More...

It happens all the time: where no settlement can be reached a case involving the Second Injury Fund is set down for a bifurcated trial. This procedure allows the Trial to take place without a Deputy Attorney general present. This is generally done when the Fund has taken a ‘no pay’ position.
In a recently decided case (Nisivoccia v. County of Essex, A-1946-07T2 (App. Div. 2009), the court took testimony and began proceedings without the Second Injury Fund. The Court ruled that the claimant was ‘totally disabled’ and the Fund got involved in the case. After Trial the judge found the respondent liable for 35% of ‘total disability’ and the Second Injury Fund liable for 65% total disability.
The Fund appealed, arguing that it was denied the opportunity to cross-examine the petitioner’s witnesses.
The Appellate Panel agreed, stating that “administrative regulations cannot be construed to infringe upon the due process rights of either party” which includes the right to cross-examine witnesses. Read More...

The Appellate Division issued a new opinion regarding the Workers' Compensation Board's discretionary power in reviewing cases. We are reporting on this case (D'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.

Two cases, upheld by the New Jersey Appellate Division within days of each other, touch on the same theme: whether subjective complaints given by a claimant are enough to substantiate a claim for permanent disability. In these two cases the Appellate Courts came to opposite conclusions: in one case, they upheld the Judge of Compensation's decision finding that the subjective complaints of the petitioner validated the decision of the Judge of Compensation as to permanency. In the other case, the Appellate Division agreed with a Judge of Compensation who threw out the claims of a petitioner, finding them “just subjective.”
Read More...

In a new case decided June 16, 2009, the Appellate Court ruled that an 'occupational aggravation' of an injury did not constitute a 'second injury' thereby implicating the Second Injury Fund. The case is interesting because the employer/respondent tried to argue that even though the claimant was injured at work ( a specific accident) it was the subsequent occupational exposure at work that worsened the claimant to the point of total disability - and that the occupational worsening should be considered a 'second accident' for the purposes of drawing contribution from the Second Injury Fund. A novel case - with interesting implications for employers in similar situations. Read More...

This entry discusses a recent Appellate decision where the court found that subsequent employment DID aggravate a prior comp injury. Contrast this decision with Zrno, another recently decided case on 'subsequent' injury.
The petitioner in Singeltary v. WaWa, A-5723-07T3, App. Div. decided April 23, 2009 (published version not available as I blog this) worked in a convenience store for 20 years. In 1992 and 2001 she was injured in work-related slip-and-falls involving her cervical spine. At the time of the incidents, AIG was the carrier. In 2002, WaWa became self-insured for workers' compensation purposes in New Jersey. In 2006 the claimant was told she needed a cervical fusion surgery.

The question was: Who was to pay? AIG or WaWa?
Read More...

This entry discusses a recent Appellate decision where the court found that subsequent employment did NOT aggravate a prior comp injury. Contrast this decision with Singletary, another recently decided case on 'subsequent' injury.

In Zrno v. Wegmans (A-4025-07T1)(App. Div. decided April 27, 2009, published version not available as I blog this) the employer (Wegmans) appealed the Order of the presiding workers' comp judge finding that the claimant's current occupational disability was the result of his employment at Wegmans, rather than an aggravation of a prior wc injury. The prior injury was compensated by the prior employer (Wakefern Food Corp.).

The claim petition did not allege that the claimant had actually sustained an injury while employed at Wegmans. Read More...

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. Read More...

A New Jersey appeals court has upheld a no-cause verdict in a negligence suit against a woman whose child injured another child during backyard play while under her supervision. The Appellate Division, in Kane v. Hatch, said the trial judge correctly invoked the parental immunity doctrine, which gives parents a high degree of autonomy in making subjective decisions to carry out their duties and which applies to third-party suits. The defendant "neither placed the children at risk nor exposed them to a commonly inherent danger so as to fall outside the traditional realm of child rearing and therefore outside the protective mantle of the parental immunity doctrine," the judges wrote. The defendant's son was playing tee ball with a wooden bat with two girls, including the plaintiff's daughter. The defendant was supervising from a porch seven feet away. Though the defendant warned the girls to stay away, the boy struck one of the girls with the bat above the eye, causing a scar. Her mother sued the defendant, alleging negligent supervision. The Appellate Division held that the trial court properly instructed the jury to weigh the defendant's conduct against the willful and wanton standard of liability. Parental immunity "protects parents from having to defend against judgment that may be construed as poor or negligent, so long as it is an honest error of judgment that is not wanton or willful." While parental immunity is typically invoked by a parent in a matter involving the injury of their own child, the court applied it here in the third-party context, providing what could be a useful defense for liability insurers, depending upon the circumstances.

One 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

The Appellate Division affirmed the trial court in ‘Cucciniello v. The Sports Authority.’ Greg Lois wrote the Appellate Brief.

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).

Who is a “volunteer” and who is an “employee”? The defense of “non-employment” is one of the few affirmative defenses left under the New Jersey Workers’ Compensation Act. This case explores the distinction between and ‘employee’ (whose injuries are compensable) and a ‘volunteer’ (for whom there is no workers’ compensation liability.)

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
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The Appellate Division affirmed the trial court in ‘Ferrigno v. Tyco.’ Greg Lois co-wrote the Appellate Briefs (with Michael S. Miller, Esq., also of Tompkins McGuire). Decision is here (PDF).

Citation: Ferrigno v. Tyco International, Ltd., App. Div. A-3328-06T3 (Decided Aug. 15, 2008). Download decision (PDF).

In the well known Rova 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.

In a June 26, 2008 opinion from the Appellate Division in the case of Metta v. American Empire Surplus Lines Ins. Co. , the court again affirmed the principle that insurance coverage follows indemnity. Often times, parties seeking additional insured status take the position that when a party is added to another’s CGL policy, they are entitled to the same coverages as the primary insured, without respect to the circumstances underlying a given loss. To the contrary, the court in Metta held that under the pertinent contract, the insured was to indemnify the additional insured only for the insured’s negligence. Thus the court held that since those damages, if any, had not been determined, final resolution had to abide the outcome of the underlying B/I case.

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.

Claimant Orsola Doria, sixty-eight years old at the time of her alleged “accident” filed occupational and specific accident claims against her employer alleging that as a result of her employment as a housekeeper for five years she was totally and completely disabled.

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.
Read More...

A tavern may be liable for negligence if it makes no effort to keep a visibly drunk patron safe, even though his drinking may have been done elsewhere. In a case of first impression, the Appellate Division held in Bauer v. Nesbitt, decided March 20, 2008, that a bar owner can be sued for failing to prevent a patron from getting into a car with another patron who was visibly intoxicated and later caused the passenger's death. The court held that if the bar's employees should have recognized that the passenger was drunk, even if he was not served alcohol there (the passenger only drank a Coke at the bar), there was a duty to protect him from foreseeable injury as the result of an automobile accident by insuring he did not drive and that he did not ride as a passenger with a patron who was similarly impaired. This is the first decision holding that if a patron becomes visibly intoxicated and the bar's employees know or should have known, the patron should not be permitted to leave without trying to find safe transportation.

In Koruba v. American Honda Motor Co., Inc., an Appellate court affirmed dismissal on summary judgment the plaintiff's product liability failure-to-warn lawsuit where, despite an ATV manufacturer's warnings in the owner's manual and oral warnings by the retailer seller at the time of sale, the plaintiff attempted an extreme jump and sustained serious injury. The court found that the plaintiff's expert opinion on the need for on-product labeling was a net opinion on neither epidemiological data or empirical research linking such need to the magnitude of risk associated with jumping. The court also found no basis for the expert's other opinion that Honda's promotional marketing of its ATV sent a mixed message to consumers, resulting in their failure to heed warnings actually given.

In a case currently being considered for publication, Janela v. Roman Asphalt Co., the issue of dual employment arose in the context of a government construction contract. The employer/paving company, Raebeck Construction won a contract for paving at Newark Liberty International Airport, which called for it to exercise direct control over the project and to certify that it did not share staff with any other company. On the date of the accident, an employee was struck in the head by a compressor and killed. His estate was paid dependency benefits by Raebeck. However, the estate also brought suit against another company, Roman, who actually did the paving work. It was revealed that contrary to the contract, Raebeck had no role in the job and essentially leased all workers from Roman. Raebeck did actually pay all of the workers, however. Roman moved for summary judgment on the exclusivity provisions of the Workers Compensation Act. The Appellate Division upheld the dismissal of Roman using a five part fact sensitive test focusing on the control exercised over the employees, to determine whether Roman was also an employer. It found that even though Raebeck violated specific government contract provisions to avoid this precise employment situation, bidding qualifications and contract requirements did not negate the legal rules governing workers' compensation.

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.

In an important decision rendered August 23, 2007, the Appellate Division conclude d that where a car rented in New York and driven by a New York resident was involved in an accident in New Jersey with a New Jersey driver, New Jersey law would apply to shield the vehicle's owner, Avis, from liability. Read More...

Upon the occurrence of a workplace injury involving industrial machinery or equipment, it is often the case that an employee will sue the manufacturer of the machine as a companion to his/her Workers’ Compensation petition. At the same time, the employer might seek to effectuate changes in order to make the culpable machine safer for employee operation. However, before any such changes are made, careful consideration must be given to the potential for a claim for “spoliation evidence” against the employer. Read More...

A panel of Appellate Division judges overruled the Judge of Compensation in this occupational disease death case. The Workers’ Comp Judge found that the decedent, a heavy smoker, was exposed to asbestos when he worked for Mid-State Sprinkler. The Judge of Compensation decided that the asbestos exposure was what caused the cancer that the claimant died from. The Appellate Division disagreed, finding that the plaintiff’s proofs did not establish medical causation and there was no evidence brought out at trial that the decedent had symptoms of asbestosis.
Read More...