Second Injury Fund
Bifurcated Trials: Going away?
Sunday, September 27, 2009
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...
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...
New case: Does Second Injury Fund contribute where 'continuing to work' was the second injury?
Friday, July 03, 2009
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...
‘Odd Lot’ Thrown Out in Thomas v. Board of Education
Wednesday, April 08, 2009
The “Odd Lot” doctrine permits an employee to recover
benefits when a work-related injury, in combination
with “personal factors” creates a total disability.
What is a “personal factor”? The doctrine, traceable
to line of cases, defines a ‘personal factor’ as “a
personal handicap.”
The ‘personal handicap’ is not a physical limitation. For employees that have a pre-existing disability, and then become totally disabled as a result of their pre-existing disability and a workplace accident, Second Injury Fund benefits are available.
The ‘Odd Lot’ doctrine refers to ‘personal handicaps’ for other-than-physical conditions. The cases law states that a worker is eligible for Odd Lot benefits when “viewed in the context of the market place, his inability to sell his labor is traceable to his personal background superimposed on his physical disability.”
Qualifying “Odd Lot” conditions are: Read More...
The ‘personal handicap’ is not a physical limitation. For employees that have a pre-existing disability, and then become totally disabled as a result of their pre-existing disability and a workplace accident, Second Injury Fund benefits are available.
The ‘Odd Lot’ doctrine refers to ‘personal handicaps’ for other-than-physical conditions. The cases law states that a worker is eligible for Odd Lot benefits when “viewed in the context of the market place, his inability to sell his labor is traceable to his personal background superimposed on his physical disability.”
Qualifying “Odd Lot” conditions are: Read More...
Trial practice - new case
Wednesday, July 02, 2008
Many Second Injury Fund Cases end with a Judge of
Compensation ruling that the Fund is dismissed from
the case. This usually happens when the Judge
determines that (a) the claimant is not totally
disabled, or (b) the claimant was totally disabled as
a result of the last accident alone, or (c) the
claimant’s pre-existing conditions were not
disabling.
Read More...
Read More...
