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) 

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).

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.

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.

Using surveillance video at trial in New York, New Jersey, and Longshore/DBA workers' compensation claims.

New York: Special surveillance video rules.

Under the New York Workers' Compensation Law, making false statements to obtain workers' compensation benefits is illegal and will result in the claim being thrown out (WCL § 114(a)) and the claimant referred for prosecution. The fraud defense will be based on two types of statements made by the claimant: (1) statements made inside a court room and (2) statements made to doctors in examining rooms.

In a recent case, a New York Appellate Court affirmed a disqualification from benefits where video surveillance of the claimant showed him going to and leaving a medical examiner's office with a leg brace and a cane AND A WALKER.  (Wait a second - - -a cane AND a walker?  How could he manage that with only two hands?!?)  While that portion of video showed a severely disabled victim, in later scenes the claimant was able to move his legs freely.  The video revealed that he was not not using a brace,  cane or walker, and showed that he actually had no impairment in his daily activities. 

The Board ruled that the claimant had violated WCL § 114(a) and was disqualified from workers' compensation benefits.  The appellate panel, on review, affirmed that disqualification.  (Case: Retz v. Surpass Chem. Co.,).

Practical note: New York has specific submission requirements for video - it must be in either ".avi" or ".wmv" and submitted to the WCB on a DVD-ROM.  In my experience, the submission will be noted as a "NS-OBJECT" in e-case ("Non-scannable object").  The video must be viewable in "Windows Media Player" or the WCB will reject the video.

Video in New Jersey: Getting the video into evidence.

Video surveillance is often relied upon by the defense in New Jersey  to either challenge credibility or to demonstrate that a claimant is not as disabled as he appears from his own testimony or his doctor’s examination.  Video does not have to be disclosed during the normal discovery process, even though adversary counsel may demand copies of videotape.  Under the current rules, video does not have to be revealed unless the respondent intends on using the video and only after the petitioner testifies.

One exception to this is where the respondent has shown the video to an examining or treating physician.  If the video has been shown to an attending or examining doctor prior to the petitioner's testimony, then it is discoverable by the petitioner prior to his testimony.

Practical Tip:  Ever since the decision of Gross v. Neptune the introduction of videotape evidence in contested workers’ compensation trials in New Jersey is limited by the disclosures on the Pre-Trial Memorandum. In Gross, the respondent did not disclose surveillance video on the Pre-Trial memorandum.  During the trial (after the claimant testified), the respondent obtained videotape surveillance of the petitioner.  The video evidence was not admissible due to the failure of the respondent to provide proper notice that the video was to be used.

Best practices:  Whether or not we have surveillance, we always put (on every "green sheet" Pre-Trial memorandum) that the "respondent reserves the right to obtain video surveillance of the claimant after the trial has started as per Gross v. Neptune.

Video in Longshore/DBA claims.

The Federal Rules of Civil Procedure require that surveillance evidence must be disclosed if it is to be used at trial. FRCP 26(b)(1).   However, video used as "impeachment evidence" - to challenge the credibility of the claimant - is not subject to discovery.  So, if you have great video on the claimant, but you only intend to use the video during cross-examination (and not send it to your evaluating doctor, for example), is it discoverable?

The Federal Rules (FRCP 26(a)(3)) clearly excludes from pretrial discovery material which will be used "solely for impeachment purposes;" the obvious rationale for excluding impeachment material from discovery is that their disclosure would substantially impair their impeachment value.  In Fee v. Calcasieu Paper Co., videos of a claimant were obtained by elaborate detective work which included inducing the disabled man to dig, to conceal cameras in fox holes and to surveil on his activities.  That video was deemed admissible by the judge. However, in a recent  case arising under the Jones Act, the Fifth Circuit has held that a surveillance videotape of an injured worker's daily activities constituted substantive evidence subject to disclosure pursuant to a discovery request.  The trial court's admission of the tape solely for impeachment purposes, when the evidence was in part substantive, constituted reversible error. Chiasson v. Zapata Gulf Marine Corp.

The decision whether to admit surveillance films and the weight to be accorded such evidence are matters within the discretion of the judge. 

Did I tell you the one about the petitioner in one of my New Jersey cases who was too disabled to work by day but was still fighting in the "squared circle" by night as a professional wrestler?

True story, it really happened.

We busted him with videos he posted himself to MySpace showing him engaged in title fights while out of work and collecting temporary total disability. His attorney argued that "wrestling is fake." Needless to say, that case got dismissed at trial.

Is using Facebook or MySpace to check claimant activity OK?

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

But what about "private" profiles?

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

How about subpoenas to site operators?

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

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

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

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

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

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

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

Best Practices for WC in NJ?

Workers‘ compensation defense attorneys should ask in their interrogatories, or other form of discovery demand pursuant to their state‘s rules governing discovery, for the names of any social networking sites used by the employee and request copies of all relevant photographs, videos, postings, communications, and discussions from social networking sites relating to the employee‘s physical or employment abilities.

However, in NJ, there are no depositions and interrogatories are allowed in certain cases only (occupationals). Therefore, if you suspect your New Jersey claimant may be leading a "double life," and in certain other high-exposure claims, a motion for specific discovery can be filed seeking the names of any social networking sites used by the employee.

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

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

Recent New York Workers' Compensation case involving Facebook fraud.

On September 13, 2010, Alexis Muniz was sentenced to three years probation for stealing $8,975 in workers' compensation benefits. It turns out she was working full-time while collecting benefits - and was stupid enough to post about her "dual life" on Facebook - boasting about her income! Click here to see the whole story.

Have any questions about this article? Contact Greg Lois.

Proving depression is related to the employment is difficult for New York claimants. The claimant bears the burden of establishing, by competent medical evidence, a causal relationship between his or her employment and the psychiatric disability. In a recent case claimant Janina Guz alleged her employment at Jewelers' Machinist, Inc., caused her to develop a psychiatric disability: major depression.

Guz last worked in 2002. Her claim for major depression was initiated in 2007. In the meantime, she had received psychiatric treatment with her own psychiatrist, Dr. Alina Marek, in five occasions beginning after she filed her claim for benefits (she first sought treatment in January 2008). Dr. Marek diagnosed Guz as suffering from major depressive disorder and causally related same to her 2002 employment (Guz allegedly suffered bilateral carpal tunnel syndrome in 2002).

The employer had Guz examined by Dr. Areyek Klahr, who performed two independent medical examinations. Dr. Klahr concurred that the claimant had the condition, but found it would not interfere with her ability to work. Dr. Klahr also testified that the claimant's responses were inconsistent and that her complaints did not correlate to his objective findings. On the stand, Dr. Klahr testified that the claimant did not suffer a work-related disability.

While testifying on behalf of the claimant, Dr. Malek admitted that she had no information about the claimant;s work or her 2002 carpal tunnel injury. Dr. Malek testified that she was unaware of the claimant's prior claims history (which included multiple MVAs, etc) although she agreed that knowing the claimant's prior medical and claims history would be useful in assessing Guz's condition. Further, Dr. Malek stated that she had no information about the claimant's activities of daily living or her personal life history, and admitted that her opinion was based on the claimant’s subjective account of the cause of her depression.

The Workers' Compensation Board found against the claimant. The decision was upheld by the Appellate Division Case: Janina Guz v. Jewelers Machinist, Inc., 2010 NY Slip Op. 01870, App. Div. 3rd Dep't, Decided March 11, 2010.

A new case (decided February 18, 2010) addresses one of the most common disputes in New Jersey Workers' compensation cases:s calculating wages for part-time or seasonal employees. Settling the 'average weekly wage' for a claimant is an important first step in calculating overall exposure, because for low-wage earner (usually part-time employees) the final award for permanency, and the amount that is paid for temporary total disability, will be based on the actual average weekly wage earned. The rate of compensation may not exceed 70% of petitioner's wages at the time of the occurrence of the accident subject to the maximum and minimum rate ($35.00 for partial permanent disability) in the year in which the accident occurred. 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...

Based on the claimant's testimony at trial, Rutgers was ordered by a Comp Judge to provide a knee surgery to a claimant. Rutgers argued that a surveillance video they obtained showed that the claimant lied during his testimony - and that the Judge didn't give the video enough weight (the Judge viewed the video after he had ruled that the surgery was necessary). The appellate Court upheld the Judge of comp - stating that even if Rutgers was right, that Rutgers would only be allowed to seek reimbursement for expenses associated with treatment obtained through fraud.

This decision hurts Rutgers. Unfortunately, Rutger's counsel apparently waited until AFTER the trial was concluded - and the Judge rendered his decision - to bring up the videotape.

Case: Scott Del Vecchio v. Rutgers, A-2780-08T3 (App. Div., decided November 5, 2009).

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.

New York Claimant Rufus Browne, a railroad track employee, was bending down to pick up a rail flag when he experienced weakness on the left side of his body. He went to the hospital the next day and was diagnosed as having had a stroke. Browne filed a workers compensation claim, alleging that his stroke ‘arose out of and in the course of’ his work.
The employer denied the causal relationship of the stroke tot he work. A hearing was held (but no testimony was produced) and the Workers’ Compensation Law Judge determined there was ‘no prima facie medical evidence of causal relationship between the stroke and the employment’ and the claim was NFA’d (designated for ‘No Further Action.’)
The claimant appealed to the Workers’ Compensation Board (WCB), who affirmed the denial. The claimant appealed the WCB’s denial to the Appellate Division.
The Appellate panel found that the employer “never refuted the allegation that the onset of the claimant’s symptoms occurred while he was at work” and that therefore the claimant was entitled to the statutory presumption that the stroke arose out of the employment (WCL Sect. 27). The Appellate panel found that the WCB erred by requiring the claimant to establish his case before the employer refuted it: in essence, the panel found that the employer “must . . . .be afforded the opportunity to rebut the presumption [of compensability].”
Practice tip- in this case, the fact pattern must have been very clear to the employer and the WCLJ: the stroke didn’t happen at work, and the medical records probably bore that out. However, even where the employee fails to establish the ‘seemingly’ bare minimum proofs to establish his claim, the employer must be prepared to present the employer’s proofs - to make a record that will withstand appeal.
Case: Browne v. New York City Transit Auth., ___ N.Y.S. 2d ___ (N.Y. App. Div. 3rd Dep’t, Decided October 29, 2009).

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...

The claimant in Cong Su operated a biscotti machine for her employer. While operating the machine, her hand came into contact with a sharp blade causing severe injuries.
To prevent a hand from entering the area where the blade was housed, a metal guard was on the machine. The metal guard was designed to keep the workers’ hands nine inches from the metal blade.
The claimant filed a civil suit against the maker of the machine and her employer. The employer (David’s Cookies) moved to dismiss her claims, arguing that the claimant’s remedy was through the New Jersey Workers’ Compensation Act.
In the civil suit, the claimant produced an expert who opined about the safety devices on the biscotti machine. According to the claimant’s expert, the metal guard protecting the operator’s hands was insufficient: a worker could easily slip their hand under the metal guard, through a one-and-one-half inch gap and into the cutting blade. Further, petitioner's expert testified that the claimant was illiterate, and was unable to read any warning signs or messages (also, the claimant spoke no English). Finally, it was argued that the claimant injured her hand on the first day on the job, and was inadequately trained to operate the biscotti machine.
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...

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...

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...

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...