Strippers are not independent contractors, and therefore are eligible for workers' compensation benefits, said a New York court in a recent case. Although this ruling doesn't make every stripper in New York an employee, it does present an interesting set of facts to explore the often hazy line between "employee" and "independent contractor" for workers' compensation purposes.

The Judge in Hart v. Ricks Cabaret (decided December 30, 2010) found that although the cub owner classified the exotic dancers as independent contractors the club was the employer. The club argued that the dancers were not employees as they paid the club to perform there (the performers paid the club "shift fees" to dance there). By classifying the strippers as independents the club avoided numerous regulations and avoided having to pay workers' comepnsation premiums for these dancers.

The exotic dancers argued that the club controlled and directed their performances. For example, the club required them to cover all tattoos while performing, banned gum chewing, specified the height of the heels worn by the performers, and selected the music.

The ruling is expected to impact nearly 1,700 exotic performers and the clubs that employ them in New York, who may be subjected to the New York Labor Laws and Workers' Compensation Act.

The case illuminates the often hazy definition of employee and independent contractor.

Who is an Employee?
A common question before the WCB is whether or not an injured claimant is an ‘employee’ or an ‘independent contractor.’ Most individuals providing services to a for-profit business will be deemed an employee of that business and therefore must be covered by the employer for workers’ compensation insurance. This applies unless those services are specifically excluded. N.Y. Work. Comp. Law §3. ‘Employee’ includes day laborers, leased employees, borrowed employees, part-time employees, unpaid volunteers (including family members) and most subcontractors. In this case, the club owner was calling all the exotic dancers independent contractors to avoid paying workers' compensation premiums and other costs associated with employees.

The Board considers the following factors in determining whether an injured claimant is an employee or was an independent contractor (and therefore not eligible for benefits):

Who has the ‘Right to Control’ the claimant?
What was the degree of direction and control the ‘alleged employer’ exercised over the claimant? A person or organization controlling the manner in which the work is to be performed indicates that the task is being performed by an employee. If the person doing the labor controls the time and manner in which the work is to be done this may indicate that the task is being done by an independent contractor.
Rule of thumb: If an individual is truly independent, the individual generally works under his/her own operating permit, contract or authority.

Was the ‘Character’ of the work performed by the claimant the Same as the Employer?
Work done consistent with the primary work performed by the hiring business indicates that the labor was done by an employee. Work done by a person that is different than the primary work of the hiring business may indicate the task is being performed by an independent contractor. (For example, someone paving a driveway for a driveway contractor is generally considered the employee of that paver. Conversely, a plumber hired on a one time basis to fix a broken pipe for a retail store owner is generally considered an independent contractor – the character of the plumber’s work is different than the work done by the retailer.) In this case, the "character of the work" performed by the dancers is essentially the same as the services offered by the employer.

What was the Method of Payment?
Employees tend to be paid wages on an hourly, daily. weekly, or monthly basis. Similarly, employment is indicated if the hiring business withholds taxes and/or provides other employee benefits (Unemployment Insurance, health insurance, pensions, FICA, etc.) Whether the labor is paid using a W2 or 1099 Form for tax purposes does not matter in determining an employer/employee relationship for workers’ compensation purposes. A business paying cash to an individual for services usually indicates that the individual is an employee. Payment made for performance of the task as a whole may indicate the task is being done by an independent contractor.

Who Furnished the Equipment/Materials for the job?
A business providing the equipment and/or materials used by people in performing the work tends to indicate an employer-employee relationship.

Who has the right to Right to Hire/Fire at the worksite?
A business retaining the authority to hire and fire the individuals performing the work indicates an employee is performing the work. An independent contractor retains a degree of control over the time when the work is to be accomplished and is not subject to be discharged by the hiring entity because of the method he chooses to use in performing the work. Naturally, an independent contractor’s services may be terminated if the services rendered do not meet contractual requirements,)

All factors may be considered and no one factor alone determines whether a person will be considered an employee under the WCL.

Independent Contractors
To be considered an independent contractor, and thus not an employee, an individual must meet and maintain all ten of the following conditions:

1. Obtain a Federal Employer Identification Number from the Federal Internal Revenue Service (IRS) or have filed business or self-employment income tax returns with the IRS based on work or service performed the previous calendar year;
2. Maintain a separate business establishment from the hiring business;
3. Perform work that is different than the primary work of the hiring business and perform work for other businesses;
4. Operate under a specific contract, and is responsible for satisfactory performance of work and is subject to profit or loss in performing the specific work under such contract, and be in a position to succeed or fail if the business’s expenses exceed income.
5. Obtain a liability insurance policy (and if appropriate, workers’ compensation and disability benefits insurance policies) under its own legal business name and federal employer identification number;
6. Have recurring business liabilities and obligations;
7. If it has business cards or advertises, the materials must publicize itself, not another entity;
8. Provide all equipment and materials necessary to fulfill the contract;
9. Control the time and manner in which the work is to be done; and
10. The individual works under his/her own operating permit, contract or authority.

1. When must Medicare’s interest be considered?
Medicare’s interest must always be considered whenever:
(A) Medicare has paid for treatment for a disability/injury alleged in the claim petition; and/or
(B) In the closure of a workers’ compensation case the petitioner is Medicare entitled and future medicals for a disability/injury maintained in the claim petition are being foreclosed.

2. When is a petitioner considered “Medicare entitled”?
A petitioner is Medicare entitled if he or she is:
65 years or older (assuming sufficient work quarters); or
On Social Security Disability (SSD) for 24 months or longer; or
Suffering from End Stage Renal Disease (ESRD).

3. Is repaying Medicare for conditional payments (or obtaining a waiver) always required when the petitioner has received Medicare benefits?
Yes. CMS recommends that the process outlined under Question 4 of this memo be initiated as soon as possible for petitioners who have received Medicare benefits. To ensure that a record of any Medicare benefits be established, this process must be initiated in all cases when the petitioner is a Medicare beneficiary. One should also keep in mind that repaying CMS for past /conditional payments Medicare made on behalf of the petitioner is required even when no set-aside allocation review is required. Therefore, pleadings become very important in determining the extent to which past/conditional Medicare payment issues may play a role in resolving a claim. Plaintiffs/Petitioners who allege work injuries or disabilities that clearly cannot be sustained may be subjecting their cases to more extensive CMS/Medicare review and delay for alleged injuries or disabilities that will be found “non-compensable” later in the proceedings. In summary, adequate consideration must be given to the issue of conditional payments in all cases involving a Medicare beneficiary at the time of settlement. This includes cases resolved by Orders Approving Settlement, Section 20 Settlements, Judgments, and Second Injury Fund Awards. As long as the petitioner is a Medicare beneficiary, this issue must be addressed.

Independent contractors are not covered by New York Workers' Compensation Law (Section 3). A recent case (Lai Pock Lew v. Younger, 893 N.Y.S2d 367 (App. Div. 2010) decided January 21, 2010) explores the boundary between employee and 'independent contractor.' Read More...

Only an employee is entitled to New York workers’ compensation benefits.
Whether or not a claimant is an ‘employee’ or not is a fact issue for the WCB. The WCB will typically consider the following factors:
1. How was the claimant paid? (weekly, monthly, lump sum, etc)?
2. Who furnished the tools used by the claimant?
3. Who furnished the materials used by the claimant?
4. Who had the right to fire or discharge the claimant?
5. Was the relative nature of the work the same as the alleged employer’s business?
Typically, an employer wants a claimant to be considered an employee, to get the benefits of the ‘workers’ comp bar’ against a potential civil suit for injury.
In a recent case (decided October 22, 2009), the WCB found the claimant to be an employee, but the appellate court found that the claimant might have been an independent contractor, and therefore could sue the ‘employer’ in civil court for damages. Read More...

The 2007 Workers’ Compensation Reform Legislation (passed March 17, 2007) raised the maximum compensation benefit indemnity rate paid to claimants for the first time since 1992. The rate had been $400 per week since July 1, 1992. The rate was raised to $500 per week for accidents occurring after July 1, 2007. On July 2008 the rate was raised again to $550 and increased to $600 per week in 2009.
As of July 1, 2010 the maximum rate will be adjusted again and will be pegged to the State Average Weekly Wage. as of July 1, 2010 the rate will be two-thirds of the NY State Average Weekly Wage (“SAWW”). The rate will then follow the SAWW.
New Jersey has long pegged the state ‘maximum’ temporary and total disability rates to the SAWW. This method has resulted in an ever-increasing maximum total disability compensation rate. The 2010 “maximum” rate in New Jersey is $794 per week. Despite the recession, and falling ‘real’ wages, the NJ SAWW keeps rising. How is that?
The answer is that the New Jersey Department of Labor simply “makes up” a SAWW based on a secret formula. The SAWW number derived has absolutely nothing to do with reality - and differs (significantly) from the SAWW computed by the Federal Bureau of Labor Statistics. Other NJ SAWW figures, using Federal unemployment claims as a basis for determining actual weekly wages, would yield an even lower figure for NJ SAWW.
So far, no word from NY as to how the NY SAWW is going to computed. If NJ is any example, we can expect that the resulting SAWW figures will not reflect the actual SAWW. The figure has not been announced yet. We will keep you up-to-date with this important information.

An employee can not sue his employer in civil court for bodily injuries - he can only collect workers' comp benefits. While this exposes employers to the costs associated with medical treatment, temporary disability wage compensation benefits, and permanency benefits, this is far less expense then if employees were able to collect money judgments in civil court for their injuries (well, that is the theory justifying our compulsory system of workers' compensation, anyway).

What this means is that in many situations, particularly those where there may be dual employment, potential litigation targets bend over backwards to prove that they are, indeed, an employer and therefore responsible only for their portion of workers' compensation costs - and not liable in superior court for a civil judgment. In fact, much of the case law in New Jersey on the topic of "co-employment" or "dual employment" has been generated by targets of litigation fighting to show that they were, in fact, the employer of the injured party and therefore entitled to the "workers' comp bar" (the immunity from civil suit afforded an employer is commonly referred to as the "comp bar.")

In a recent case, the decedent was the superintendent at an apartment building. One business entity, "Lincoln Avenue Corp" provided free rent to the claimant, who was required to live 'on the premises.' Another business entity, "TR Mudnick" actually paid the employee his salary.

While these two entities had different names, the two entities shared the same corporate officers, both paid the claimant wages, and being the same entity, each had control over the way he carried out his duties. In so ruling, the Court found that 'free rent' was akin to paying wages.

The result of this ruling - finding that both 'Lincoln Avenue Corp' and 'TR Mudnick' were employers - meant that the claimant's only recourse against those employers was his workers' compensation claim.

This ruling is an important one for employers in similar situations, and employers who (for example) have one company that "operates" a facility and another that "owns the property" that the facility occupies. In cases where the owner of the property - even if that is the same as the 'actual' owners of the operating entity - may be exposed for civil claims from their employees.

Case: Montalvo v. Lincoln Avenue Corporation and City of Newark, A-0904-08T3 (App. Div., decided October 30, 2009).

Pornographic cartoons, rumors of sexual escapades while on a business trips, and a co-worker hell bent on your destruction. No, this is not an episode of Melrose Place: this is working for the City of Asbury Park. On November 23, 2009, the Appellate court found that the Judge of compensation (Hon. Leslie Berich, from the Freehold court) had correctly ruled that the psychiatric conditions that Lori Ross suffered from were related to the hostile working conditions she was exposed to.

The facts of the case established that the petitioner, Lori ross, was the victim of an organized "rumor" campaign at the hands of Cassandra Dickerson. according to the decision, Dickerson was 'jealous' of compliments that a shared supervisor directed to Ross. As a result, she began a smear campaign about the petitioner, allegin sexual indiscretions and crafting stories of escapades which occurred during business travel.

The claimant was also the subject of a pornographic cartoon depicting her relationship with another co-worker. There was also testimony that rather than address these problems head-on, the City attempted to lay off the offended worker.

The petitioner presented evidence that she suffered from 'Adjustment Disorder with Mixed Anxiety and Depressed Mood.' The testifying psychiatrist attributed this condition tot he claimant's employment experiences, which were described as an "unhealthy work environment." The Judge agreed, and found in favor of the claimant.

The facts in this case are extraordinay and show a very dysfunctional workplace in which the claimant can show a pattern of peculiar stresses which amount to more than just a psychiatric reaction to the work itself.

In New Jersey, a psychiatric injury can be compensable by itself - that is, without any physical injury. This was recognized by the Court in Williams v. Western Electric Co., 178 N.J. Super. 571, 577 (App. Div.), cert. denied, 87 N.J. 380 (1981). That doesn't mean that any psychiatric reaction tot he workplace is compensable - just those in which the claimant can meet their burden of proof that the work exposure was a 'material' contributing cause of the alleged psychiatric injury.

The Courts later ruled that the workplace exposures must be 'peculiar' - that is, the workplace conditions must be uniquely linked to the employment, and the medical opinion must be supported by objective evidence. In the Ross case, the work exposures were indeed peculiar: dirty cartoons and an organized smear campaign could not be considered a 'regular' part of a 'normal' employment anywhere.

"regular' incidents of employment, common to all jobs, such as a layoff notice, a bad review, or even a normal dressing-down by a superior, are not the basis for a compensable psychiatric claim in New Jersey.

Workplace psychiatric claims always boil down to a fact analysis. This must be applied on a case-by-case basis. If a claimant can show that the working conditions are 'objectively stressful' and 'peculiar' to that specific employment, the claim may be compensable.

Case: Lori Ross v. City of Asbury Park, A-0379-08T3, (App. Div. Decided Nov. 23, 2009).

A recent federal case, decided October 9, 2009, explored the definition of ‘employee’ in a New Jersey workers’ compensation context. My discussion of this new case serves as a good summary of the law in this area . . . Read More...

New Jersey lost 14,400 jobs in April and unemployment increased from 8.3% to 8.4%.
Only two sectors showed job growth: Government added 1,400 new jobs and 'Education and Health' (also government-spending-driven) added 900 new jobs.

Greg Lois Presented: 'HIPAA Privacy Rules' for Sompo Insurance Company/Broadspire, April 30, 2009.

No, it’s not an April Fools’ Joke: On April 1, 2009 the Equal Employment Opportunity Commission, the federal entity responsible for making sure that the nation’s workers are being treated fairly and according to the laws, was found to have “willfully violated” the Fair Labors Standards Act by offering employees compensatory time off rather than paying overtime.
Read More...

The NJ Legislature passed six bills which we reported on last year. One such bill requires each carrier or self-insured employer to identify a "contact person" to respond to issues concerning medical and temporary disability benefits in cases where a formal claim petition has not yet been filed. This is the so-called "pre-petition" contact. A form with instructions for competing it is available here. Read More...

In Sexton v. County of Cumberland, decided January 9, 2009, the Appellate Division upheld a denial of benefits from a Petitioner who alleged that her pre-existing respiratory illness (COPD) was aggravated by a co-worker spraying perfume into the air of the workplace. The workers’ compensation judge found that such aggravation was not compensable because it did not arise out of the employment but instead arose out of a "personal proclivity" of the petitioner. The Appellate Division reversed his conclusion, finding that such an aggravation was compensable under N.J.S.A. 34:15-7 because it did arise out of this employment.

New Jersey workers’ compensation law makes no distinction between seasonal employees and 50-year veterans in regards to entitlement to compensation for work-related injuries. Seasonal employee have the same rights and protections under our laws as do ‘permanent’ employees.

Seasonal workers hired by nation’s retailers in November 2006: 427,000

Seasonal workers hired by nation’s retailers in November 2007: 458,000

Seasonal workers hired by nation’s retailers in November 2008: 217,200

Source: ‘The Record,’ B-1, December 9, 2008.

FAQ: Is there a minimum number of weeks worked to receive WC benefits pay or is a seasonal employee entitled to compensation if he gets hurt on day one?

Answer: If an employee is hurt in the first minute he “punches in” he is entitled to exactly the same medical, wage replacement, and permanent disability benefits as if he had worked for the employer for 50 years.

In Sroczynski v. John Milek, decided December 17, 2008 the NJ Supreme Court found that there can be no legally effective policy cancellation where a carrier fails to prove that it strictly complied with all of the requirements for canceling a workers’ compensation insurance policy. The NJ Legislature established clear and unambiguous requirements in the cancellation statute, which include the requirement that a carrier file with the Compensation Rating and Inspection Bureau the certified statement required in N.J.S.A. 34:15-81(b). However, the Court also held that only parties that have raised this particular filing issue can be granted relief from improper cancellations - past cancellations that were never challenged on this ground will stand because the policyholders waived their right to challenge them.

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

According to the U.S. Bureau of Labor Statistics, the average man working full-time logs 8.2 hours per day.

According to the same study, the average woman works 7.8 hours.

The average American spends 2.6 hours a day watching TV.

What is a “commutation”? Simply stated, a ‘commutation’ is the legal term for a petitioner asking the Court to accelerate the payment of an award to answer some pressing need of the claimant.

A recent case, Piskorz v. Beno Stucco Systems Corp., discussed the availability of commutation in a specific case. The Petitioner filed a motion for commutation of his workers’ compensation award, stating he wanted to leave America and open a business in Poland. According to the petitioner, he needed his money NOW because he had obtained the promise of a financial subsidy from the European Regional Development Fund for $60,000.00 to open the business, however, as a condition of the approval, he had to provide his own matching personal funds of $60,000, otherwise he will not receive the subsidy. Read More...

Governor Corzine just signed six new laws yesterday which attempt to "reform" certain aspects of the New Jersey Workers' Compensation system. The "reforms" were passed by the Legislature in response to the series of newspaper articles in the Star Ledger which focused on the long wait some New jersey claimant have had to obtain their benefits.

Three of the new laws (S-1914/A-2962, S-1915/A-3059 and S-1918/A-2970) create new reporting requirements, create a new prosecutorial power, and increase penalties on employers who fail to provide workers comp coverage for all their own employees (or see that it's provided for their subcontractors' workers). These laws can be said to address the situations where an employer has no coverage or issues of coverage are in doubt. These laws are in direct response to the Star Ledger series of articles which focused on cases where benefits were delayed because the claimant’s employment status and coverage issues were questioned. Read More...

According to the U.S. Bureau of Labor Statistics, the median weekly earnings of all full-time workers in the United States is $695.00 per week. In New Jersey, the maximum rate of temporary disability for 2008 is $742.00 per week.

We have blogged before on this topic (here and here)- the way the Feds and the State calculate ‘average weekly wage’ is different with the net effect that the NJ State Temporary Total disability rates are artificially high.

How high? Well the state of New Jersey just released figures showing a state average weekly wage of of $1,031.28. (Figures released August 22, 2008).

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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On July 16, 2004 Alfonso Estrada Moron (A.K.A. Eduardo Zambrano) was shot and killed in a hold-up while working for Quik Chek as an assistant manager.

The dispute arose as to whether or not the claimant’s mother, who lived in Peru was “solely dependent” on the decedent as she claimed. If she could prove dependency, she would received $227.98 per week until she died. The claimant testified that the decedent sent her $600 per month for her support, plus $600 for her birthday and $1,000 at Christmas. Read More...

In Whitten v. Sybron Chemicals, Inc., the defendant Sybron hired the plaintiff's employer to perform maintenance on chemical manufacturing tanks. The plaintiff, a foreman, was injured in a fall from a ladder while repairing a piece of machinery inside one of defendant's sludge tanks. He claimed the fall was caused by sludge the defendant's employees failed to clean. Read More...

On Friday, May 3, 2008 New Jersey Governor Jon Corzine signed the nations' third "Family Leave Act" allowing workers up to six weeks off to care for a newborn or newly adopted child, or a sick parent, spouse or child. They could collect up to two-thirds of their pay, up to a maximum of $524 a week. The Bill (A-873) is available here: http://www.njleg.state.nj.us/2008/Bills/A1000/873_I1.HTM

The New Jersey Workers' Compensation system was the focus of an investigation conducted by the Star-Ledger Newspaper , one of the most widely-read newspapers in New Jersey. The articles (which ran consecutively in April) concluded that "bureaucratic delays, politics and poor state oversight have left thousands of injured workers waiting years for the relief promised by the compensation system." The three-part article has led to a New Jersey Senate Labor Committee hearings scheduled to begin May 5th in Trenton to examine ways to "reform" the workers' comp system in New Jersey. Read More...

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.

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...

In Cruz v. Central Jersey Landscaping, Inc., decided by the New Jersey Appellate Division on May 14, 2007, the majority found that amendments to N.J.S.A. 34:15-13 (which went into law effective January 14, 2004 setting a uniform 70% of the decedent’s wages as the death benefit amount in dependency cases regardless of the number of dependents) applied to pending workers’ compensation cases including claims where the worker’s death was prior to January 14, 2004.

A recent nationwide poll of 501 businesses with fewer than 100 employees found that six out of ten businesses paid for workers’ compensation coverage. Of those businesses with more than $1M in revenue, that number rose to more than 9 out of 10.

On March 30, 2007 the Appellate Division decided Ventura v. Reliable Wood Products, A-4554-05T1 (Mar. 30, 2007)(Not Approved for Publication). The cases presented a novel issue: an undocumented worker alleged that his daily weekly wages were $500 per week. The employer alleged that his wage was $6.15 per hour.

On November 22, 2005, the very first day he worked for the respondent, the claimant was injured (his right foot was amputated). Read More...

On April 11, 2007 in Kibler v. Roxbury Bd. of Educ., the New Jersey Appellate Division affirmed the decision of a Superior Court trial judge, holding that a plaintiff injured at work as a result of an altercation between two students was barred from pursuing a civil action for damages against the students. The appellate court held that there was no “genuine issue of material fact” as to whether the teacher’s injuries came within the purview of conditions the New Jersey Legislature intended to exempt from the exclusive remedy provisions of Workers’ Compensation Act. The plaintiff’s exclusive remedy is with the Division of Workers’ Compensation for her work-related accident

On March 14, 2007, the New Jersey Appellate Division decided Valcarel v. FSA Management, A-40001-05T2 (Mar. 14, 2007)(Not Approved for Publication). The issue at bar was whether or not the claimant was “acting within the scope of his employment” when the accident occurred. The Appellate Division agreed with the Judge of Compensation (Judge Joel Gottlieb, New Brunswick) that the petitioner was engaged “on personal business when he was involved in the accident in question” and that no compensation would be payable. Read More...

Two cases decided in February 2007 examined the proofs in an occupational-disability case.

Credibility is King . . . Patel v. Federated Logistics, App. Div. February 7, 2007 (not approved for publication)

Petitioner Yogina Patel claimed that exposure to "dust, fumes, pulmonary irritants, bending, lifting and repeated manipulations" while working for three years as a checker in a dusty warehouse caused her to become permanently disabled.

During a full trial, the claimant presented the testimony of her physicians, who testified that the petitioner suffered from "inflammation of the soft tissues of the muscles" and "chronic bronchitis."

The employer presented the testimony of its Human Resources manager, who disputed the claimant's descriptions of the premises and her claims that the warehouse was "dusty."

The Judge of Compensation dismissed the case, finding that the claimant's description of the warehouse was not true and her complaints were therefore not credible.

Practice tip: In defending occupational disease claims, the testimony of an employer-representative to dispute specific facts asserted by the claimant may be powerful evidence for the defense.

. . . Objective Medical Evidence- Larsen v. City of East Orange, App. Div., February 13, 2007 (not approved for publication)

East Orange firefighter Kenneth Larsen brought a claim for occupational exposures to asbestos resulting in colon cancer and pulmonary disabilities which he alleged were related to his employment.
Both parties retained experts. During the trial, respondent's expert admitted that he could "not rule out" the claimant's workplace exposures as a possible cause of the Larsen's cancer and disability.

There was no dispute that the claimant worked in a facility with "free asbestos" present.

Based upon the lack of disagreement between the experts and the presence of the admittedly cancer-causing substance in the workplace, the Appellate Division affirmed the decision of the Judge of Compensation finding a causal relationship between the cancer and the work exposures.

Quest Diagnostics of Lyndhurst, NJ is the biggest U.S. provider of workplace drug tests. Quest said that in 2006 positive results for workplace drug tests were the lowest since the company began testing.

Quest said that 3.8% of the 9 million tests administered came back positive.