State News : New Jersey

NWCDN is a network of law firms dedicated to protecting employers in workers’ compensation claims.


NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.  


Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.


Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.


New Jersey

CAPEHART SCATCHARD

  856-235-2786

Coverage Issues in Workers’ Compensation

A common issue arises where an employee works for an employer who does not maintain proper workers’ compensation coverage and alleges that there is a general contractor with coverage from whom they will seek benefits. As noted in our recent article, https://njworkerscompblog.com/how-to-properly-cancel-a-workers-compensation-policy/, claims that are denied for lack of coverage based on a cancelled policy often result in ongoing litigation regarding issues related to whether the policy was cancelled effectively. In these cases, the claimant’s counsel will often seek to bring any potential entity with whom the petitioner’s employer worked with and argue that they are liable for benefits as a “general contractor.” Therefore, an issue that can be simultaneously tried in connection with whether a policy was appropriately cancelled is whether there is a liable entity pursuant to Section 79.

Section 79 of the Workers’ Compensation Statute provides for penalties to employers who fail to carry workers’ compensation insurance but also provides a pathway for liability to a general contractor when a subcontractor they work with does not have coverage. The language of Section 79 provides:

Any contractor placing work with a subcontractor shall, in the event of the subcontractor’s failing to carry workers’ compensation insurance as required by this article, become liable for any compensation which may be due an employee or the dependents of a deceased employee of a subcontractor. The contractor shall then have a right of action against the subcontractor for reimbursement.

N.J.S.A. 34:15-79. The purpose of the foregoing is to protect the employee by permitting him to recover from a general contractor who gets direct benefit of the employee’s work.

In order for Section 79 to apply, three essential elements must be met: “(1) a contractor, (2) a subcontractor, and (3) failure by the subcontractor to carry workman’s compensation insurance.” Gaydos v. Packanack Woods Development Co., 64 N.J. Super. 395, 399 (Cty. Ct. 1960). “A contractor is ‘[o]ne who formally undertakes to do anything for another; specifically, one who contracts to perform work, or supply articles.” Jordan v. Lindeman & Co., Inc., 23 N.J. Misc. 194, 196 (Cty. Ct. 1945). A subcontractor is noted to be “one who enters into a contract with a person for the performance of work which such person has already contracted with another to perform. In other words, subcontracting is merely ‘farming out’ to others all or part of work contracted to be performed by the original contractor.” Brygidyr v. Rieman, 31 N.J. Super. 450, 454 (App. Div. 1954).

The foregoing criteria are highly fact sensitive and will often result in a number of fact witnesses testifying as to the issue of whether there was a general contractor/subcontractor relationship. As a result, some of the following examples provide guidance to litigants.

In Pollack v. Pino’s Formal Wear & Tailoring, 253 N.J. Super. 397 (App. Div. 1992), Pino’s Formal Wear decided to expand their business and have an extension put on their building to add dry cleaning services. Pino’s Formal Wear arranged for the co-respondent, Ernest Polgardy, to purchase the dry-cleaning machinery and to have the machinery installed. The decedent-employee was hired by Ernest Polgardy to install burners and to hook up the machines. The decedent-employee fell from a ladder and was injured. He ultimately passed away shortly thereafter from a number of conditions related to alcohol withdrawal and liver failure. The petitioner-dependent argued that that due to the decedent-employee’s fall, he was not able to drink which resulted in liver failure and death.

The petitioner-dependent filed claim petitions against Pino’s Formal Wear alleging that Pino’s Formal Wear was liable for benefits as the general contractor and that Ernest Polgardy, his direct employer, was an uninsured subcontractor.  The Appellate Division found that Pino’s Formal Wear was not a general contractor within the meaning of N.J.S.A. 34:15-79. It noted that Pino’s Formal Wear relied upon Ernest Polgardy’s skill and knowledge to purchase and install the dry-cleaning machinery with no restrictions placed on Ernest Polgardy. The relationship between Pino’s Formal Wear and Ernest Polgardy was that of owner and contractor, not general contractor and subcontractor. Therefore petitioner’s claim was dismissed.

In Brygidyr v. Rieman, 31 N.J. Super. 450 (App. Div. 1954), the petitioner was injured while washing windows for a building that was owned by Respondent Schwaben Halle. The petitioner filed claim petitions against Schwaben Halle and Federal Window Cleaning Company as an alleged uninsured subcontractor. The petitioner testified that he was regularly employed by another company but that in his free time he worked for Federal Window Cleaning Company and that on their instructions he was washing the windows of Schwaben Halle. Schwaben Halle, however, asserted that it was a cultural and singing society which owned and operated the building. The Appellate Division found that under these circumstances, Schwaben Halle could not have been a contractor and that “the washing of windows was not in the line of Schwaben’s regular business, and the contention that it had contracted to keep the windows clean is without merit… To hold otherwise would mean that any property owner who contracted for services would be liable for injuries sustained by the contractor’s employees.” Id. at 453-54.

In a more recent matter involving an action in the Superior Court filed by the carrier asserting that an employer withheld material information about its operations and use of subcontractors and thereby underpaid its workers’ compensation premiums, the Appellate Division affirmed the trial court’s order of the policyholder to pay the carrier additional unpaid premiums, plus interest, costs, and counsel fees in the amount of $145,231.00. In Fournier Trucking, Inc. v. New Jersey Manufacturers Ins. Co., No. A-1353-18T2, 2020 WL 1802840 (App. Div. Apr. 9, 2020), certif. denied, 244 N.J. 161 (2020), the trial court found that the employer-policyholder, a freight company that facilitated the transport of goods, was liable under N.J.S.A. 34:15-79 to provide workers’ compensation coverage for the employees of uninsured motor carriers it used for hauling of shipments to its customers. The Appellate Division noted that customers hired the employer-policyholder “to consolidate and transport goods; Fournier Trucking consolidates the goods itself, and then subcontracts with the carriers to perform the transportation. Therefore, Fournier Trucking is a contractor, and the carriers it uses to fulfill part of its contracts with shippers are subcontractors.” Id. at *12.

The policyholder-employer attempted to argue that the carriers it contracted with are independent contractors and therefore are not liable for workers’ compensation benefits. However, “to the extent that the carriers maintain employees, those carriers are statutorily obligated to maintain workers’ compensation coverage, as is any other employer within the state. By operation of N.J.S.A. 34:15-79(a), to the extent those carriers fail to satisfy their statutory obligation, Fournier Trucking, as the general contractor, is obliged to provide benefits to any carrier employee who suffers an injury while providing services under Fournier Trucking’s general contract. Ibid. In discussing the argument that the carriers were independent contractors, the Appellate Division stated that “a company can choose to use its own workers to carry out its responsibilities, or it can retain independent companies who may also qualify as subcontractors to discharge some of those tasks. When it does the latter, the law of our State requires the contracting company to assure that the subcontractor’s employees have adequate workers’ compensation insurance.” Id. at *14.

The issue of Section 79 liability for alleged general contractor/subcontractor disputes involve the various parties exchanging information regarding the petitioner’s work, the work site or assignment wherein the petitioner was injured, and investigation into any and all entities who were involved in the business which was related to the petitioner’s work. Carriers should perform initial investigation with their insureds regarding any possible subcontractors that they work with and claimant’s counsel should investigate with their client any information they may have regarding their work. Readers with questions regarding issues related to coverage and potential general contractor liability can reach the undersigned at knagy@capehart.com.

 

-------------------------------

Keith E. Nagy, Esq., is a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Mr. Nagy concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation matters. Should you have any questions or would like more information, please contact Mr. Nagy at 856.840.4928 or by e‑mail at knagy@capehart.com.

There are few cases in the Division that discuss penalties for late payments of permanency awards, so the recently published Appellate Division decision in Ripp v. County of Hudson, No. A-2972-20 (App. Div. June 3, 2022) should be studied by workers’ compensation practitioners.

The Ripp case was not about delayed temporary disability benefits, which are subject to a potential 25% penalty for delays over 30 days.  This case was about a delay in paying a permanency award on a total disability claim. On January 26, 2021 the Judge of Compensation entered an Order for Total and Permanent Disability.   The County was required to pay Ripp the sum of $173,480 for accrued permanency benefits within 60 days of the entry of the Order followed by weekly benefits for life. The County failed to pay the Order within 60 days. The County made the payment on the 76th day after the award, a delay of 16 days.   

Ripp filed a motion to enforce the Order.  He sought simple interest on the settlement and an additional assessment of 25% of the moneys due.  The County explained that delays were due to the failure of the third party administrator to submit the payment request in a timely manner, changes in adjuster assignment on the case, and delays due to the pandemic.

There were also substantial delays before the Order was entered in terms of the County’s formal approval of the total disability award.  Ripp and his wife wrote to the judge to complain about how long it was taking the County to get authority to settle the case.  The Judge of Compensation noted that the delays had a severe effect on the family, which had no wages for four years. This also had an impact on the couple’s disabled child.  Although the County had agreed in early 2019 that Ripp was totally disabled, authority did not come through for many months.  The Judge of Compensation noted that the failure of the County to obtain authority further delayed the computation of Ripp’s “average current earnings” calculations from the Social Security Administration. That information was necessary to complete the final court paperwork.

In deciding the appropriate penalty, The Judge of Compensation considered the delays in getting approval for the settlement as well as the 16-day delay in paying the final Order.  The judge relied on N.J.A.C. 12:235-3.16 in assessing against the County an additional 25% of the accrued payment amount due or $43,370.  The County appealed.

The Appellate Division began by stating, “The Workers’ Compensation Act does not require that payment of settlement benefits must be made within a specific period of time.”  Yet N.J.S.A. 34:15-28 (cited by the Court) states: 

Whenever lawful compensation shall have been withheld from an injured employee or dependents for a term of sixty or more days following entry of a judgment or order, simple interest on each weekly payment for the period of delay of each payment may, at the discretion of the Division, be added to the amount due at the time of settlement.

Practitioners generally advise clients that all permanency awards must be paid within 60 days.   The Court also observed that N.J.S.A. 34:15-28.2 provides:

If any employer …. Fails to comply with any order of a judge of compensation ….. a judge of compensation may, in addition to any other remedies provided by law:

a) Impose costs, simple interest on any moneys due, an additional assessment not to exceed 25% of moneys due for unreasonable payment delay, and reasonable legal fees, to enforce the order, statute or regulation;

b) Impose additional fines and other penalties on parties or counsel in an amount not exceeding $5,000 for unreasonable delay, with the proceeds of the penalties paid into the Second Injury Fund;

The New Jersey Division of Workers’ Compensation added N.J.A.C. 12:235-3.16 (h) (1) (i) which allows a judge to “impose an additional assessment not to exceed 25 percent on any moneys due if the judge finds the payment delay to be unreasonable.”

There are two key parts to the Appellate Division decision in the Ripp case.  First, the Appellate Division fully endorsed the Judge of Compensation’s right to assess a 25% penalty in this case.  Second, the Court clarified that only the 16-day delay could be considered for the penalty.  The Court did not endorse any penalty for failure to obtain authority in a timely manner. The Court requested that the Judge of Compensation reconsider an appropriate penalty “for the minimal, yet ‘unreasonable payment delay’ in this case.”

For practitioners, this decision is a strong reminder that awards must be paid within 60 days, notwithstanding the statement in this decision that the New Jersey Act does not prescribe a specific time period to pay an award.  The practice in place in all insurance companies, third party administrators and self-insured entities is to make sure awards get paid within 60 days. 

This case sends a message that if a motion to enforce is filed, the employer will pay not only simple interest but also potentially 25% on the total amount due – depending on how long the delay is.  While the Appellate Division made clear that it thought a penalty of $43,370 was too high for a 16-day delay, the Court did not provide guidance on what amount was too low.  The case has been remanded to the Judge of Compensation to reconsider a new penalty amount on the County. 

 

-------------------------------

John H. Geaney, Esq., is a Shareholder and Co-Chair in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.

What happens if an employee dies during the pendency of the open and ongoing workers’ compensation claim? The answer to this depends on a few factors. The first consideration is when the petitioner died (during treatment/ before permanency exams, after permanency exams, or after an Order Approving Settlement for permanency has been entered). The second consideration is whether the cause of death is, or is not, work related.

Below are various potential situations regarding dependency/ death cases, and how we would recommend handling each scenario.

Scenario 1: Petitioner dies from a cause not related to his workers’ compensation injury while he is under authorized treatment. Permanency exams have not yet occurred on either side. Who gets paid benefits, and what type of benefits are they owed?

It is our general position in this scenario that all that is owed is a contribution to funeral expenses as set forth in N.J.S.A. 34:15-12(e) (up to $5,000). In almost all cases like this, it is difficult for a petitioner to prove permanency without permanency examinations.

There are exceptions of course. In certain circumstances (such as a case involving a truly catastrophic accident), permanency could possibly be assessed without permanency exams, but these circumstances are quite rare. In most cases, permanency cannot be assessed without permanency exams where the employee is examined and provides their current complaints.

Since permanency benefits are based on current complaints as provided to permanency experts and testimony or a settlement affidavit, it is difficult to assess permanency without permanency exams on both sides having occurred, and without current complaints given to permanency experts. Generally, permanency cannot be attributed in a case where petitioner was under ongoing authorized treatment when he passed away.

We generally maintain that an employee is not entitled to permanency if the employee was still in treatment and had not medically plateaued, since he cannot sustain his burden of proof that he sustained permanency from the work accident.

Case Study/ Example: Logan is treating for a work-related tendinopathy condition. Treatment is progressing with physical therapy. Logan dies from a non-work related motor vehicle accident halfway through physical therapy. Does the employer owe permanency? No, because there is no way to prove permanency. Who could say that Logan would have had permanency when treatment was not even finished?

Scenario 2: Petitioner died from a cause not related to his workers’ compensation injury after permanency exams have occurred. Who gets paid benefits, and what type of benefits?

The difference between Scenario 1 and Scenario 2 is that in this scenario, permanency can be reasonably assessed and negotiated, based on the permanency exams that have occurred on both sides and the expert reports. Therefore, in this case, permanency can be assessed and negotiated between the parties.

Pursuant to N.J.S.A. 34:15(12)(e), when an employee dies from a non-work related cause after permanency exams, permanency payments are paid to the decedent’s dependents.

This is supported by the case law of Cureton v. Joma Plumbing & Heating Co., 38 N.J. 326 (1962), where the parties both obtained permanency reports with both experts assessing disability.

Scenario 3: Employee dies during the course of authorized treatment due to the work-related incident, and the work accident is the cause of death.

First, we note that a dependency claim can be filed when death is caused directly or indirectly from a work injury and it does not have to be the sole or primary cause of death.  As long as the work accident is a contributing cause, there can be a valid dependency claim. Also of note is the statutory time period in which a dependency claim must be filed under N.J.S.A. 34:15-51, which states that a claim must be filed within two years of the date of the accident. In a dependency claim, the dependency claim petition must be filed within two years from the date of death.

The compensation to a dependent (once the individual is determined to be a dependent, subject to N.J.S.A. 34:15-13(f)) is based on 70% of the employee’s wages at the time of death.

Dependency interrogatories should be served on any individual filing a dependency claim petition, to investigate the nature or the relationship between decedent and potential dependent and to confirm that the individual qualifies as a dependent as defined by Section 13. Employers should obtain a copy of the autopsy report and death certificate. Information should also be obtained regarding decedent’s treating physicians.

Scenario 4: Employee dies after an Order Approving Settlement is entered.

After an employee passes away, the remaining permanency payments are paid to the dependents. Cureton v. Joma Plumbing & Heating Co., 38 N.J. 326 (1962), referenced above, holds that any permanency benefits that were accrued but not yet paid at the time of death become part of the estate.

But ongoing un-accrued permanency benefits owed to an employee after the date of death are paid to dependents. An individual has no “dependents” until after he has passed away.

Case Study/ Example: Joan gets an Award of 15% permanent partial disability on January 1, 2022. The date of last temporary disability benefits was January 1, 2021, so one year of accrued permanency benefits exists. Joan’s accrued permanency benefits are paid over 90 weeks. Joan dies on January 2, 2022 from a non-work related cause. Who gets the permanency Award? The estate gets the portion of the accrued amount for the dates of January 1, 2021 through January 2, 2022. The statutory dependents get the future payments due after January 2, 2022.

Employers must always keep in mind when and how an employee passes away, to determine potential exposure, and the type of benefits that may be owed, and to whom the benefits might be owed.

 

-------------------------------

Maura Burk, Esq., is a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Ms. Burk concentrates her practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation matters.  If you have any questions or would like more information, please contact Ms. Burk at 856.840.4941 or by e‑mail at mburk@capehart.com.

 

NJ Workers’ Comp Legislative Update

The New Jersey Assembly recently introduced legislation, A2886, which would provide employment protections for paid first responders diagnosed with work-related post-traumatic stress disorder.  The bill states as follows: An employer shall not discharge, harass, or otherwise discriminate or retaliate or threaten to discharge, harass, or otherwise discriminate or retaliate against an employee with respect to the compensation, terms, conditions, duties, or privileges of employment on the basis that the employee took or requested any leave related to a qualifying diagnosis of post-traumatic stress disorder.  Following a period of leave related to a qualifying diagnosis of post-traumatic stress disorder, an employer shall reinstate an employee whose fitness to return to work has been documented by a licensed physician or licensed mental health professional to the position and duties held by the employee prior to the leave.

The bill makes clear that the PTSD condition must arise from work by stating as follows:

b.   A diagnosis of post-traumatic stress disorder is qualified under subsection a. of this section if:

(1)        the diagnosis is made by a licensed physician or licensed mental health professional; and

(2)        as determined by the licensed physician or licensed mental health professional, the post-traumatic stress disorder arose:

(a)        as a direct result of the employee experiencing or witnessing a traumatic event during and within the scope of the performance of regular or assigned duties of the employee; or

(b)        due to vicarious trauma experienced by the employee as a direct result of the performance of regular or assigned duties of the employee.

A2886 would apply only to paid first responders, which of course includes law enforcement officers, firefighters, emergency and paramedic personnel, but also extends to 9-1-1 dispatchers, who may only “witness” trauma by telephone. 

The first question is why did the Legislature focus solely on medical leaves for PTSD?  What about medical leaves for spinal surgery, which are equally common, if not more common? Legislation by diagnosis can become an endless trend.  Moreover, federal law under the Family and Medical Leave Act already provides job protection for covered leaves.

This bill calls to mind A2617 which was signed into law on September 24, 2021.  That bill provided: “Following a work-related injury, an employer shall provide a hiring preference to an employee who has reached maximum medical improvement (MMI) and is unable to return to the position at which the employee was previously employed for any existing, unfilled position offered by the employer for which the employee can perform the essential functions of the position.”

The problem with A2886 and A2617 is that neither bill is needed since New Jersey law already forbids such discrimination.  New Jersey already has powerful anti-discrimination laws, namely the New Jersey Law Against Discrimination and N.J.S.A. 34:15:39.1. Both of these laws protect employees from discrimination. Section 39.1 is contained within the New Jersey Workers’ Compensation Act and protects employees who file workers’ compensation claims from wrongful discharge or discrimination related to the making of a workers’ compensation claim. 

The question that legislators must answer is what holes have they suddenly found that need to be filled in the expansive New Jersey Law Against Discrimination?   

For more information on the progress of this proposed legislation, contact the undersigned at jcottell@capehart.com.

-------------------------------

Jennifer A Cottell, Esq., is a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Ms. Cottell concentrates her practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation matters.  If you have any questions or would like more information, please contact Ms. Cottell at 856.914.2087 or by e‑mail at jcottell@capehart.com.

Practical Advice In New Jersey Workers’ Compensation

The general rule is that an injured worker is entitled to TTD for the time frame that the authorized treating doctor placed the employee out of work.

Pursuant to Monaco v. Albert Maund, Inc., 17 N.J.  Super. 425 (App. Div.), 21 N.J. Super. 443 (App. Div. 1952), generally, TTD continues until the employee is able to resume work or until the employee “is as far restored as the permanent character of the injuries will permit” [placed at MMI], whichever happens first. This means that TTD can cease in either of the following situations: a. The employee is placed back to work and authorized treatment is ongoing and continuing; or b. The employee is placed at MMI from treatment, even if the employee is discharged with permanent work restrictions (irrespective of whether the restrictions can be accommodated).

In addition to the above rule, there are some tricky situations where TTD benefits may be stopped for other reasons.  Below are hypothetical situations regarding TTD, and how we would recommend handling each scenario.

Scenario 1: Bob works for a large retailer and is injured on February 2, 2022. Bob is receiving authorized treatment and is initially not placed out of work. On March 14, 2022, Bob is caught stealing from the register at work, as well as stealing $4,000 worth of merchandise from the electronics department. The authorized doctor places Bob out of work as of March 17, 2022; it is anticipated he will be out of work for a few months. After an investigation into the theft, Bob is terminated for cause on March 28, 2022. The employer pays TTD from March 17, 2022 through the date of his termination, March 28, 2022. Bob alleges that he is owed TTD from March 17, 2022 onward, as he was placed out of work by the authorized doctor on March 17, 2022 and has not yet been returned to work.

Our position is that Bob is owed TTD only for the date range of March 17, 2022 through March 28, 2022, the date of the termination.

There are quite a few cases dealing with this issue. In all of the cases, the main point comes down to this: The purpose of TTD is to compensate for actual lost wages. As such, in a situation like this, our position would be that Bob is not owed TTD after March 28, 2022.

The most important case on this scenario is Cunningham v. Atlantic States Cast Iron Pipe Co., 386 N.J. Super. 423 (App. Div.), certif. denied, 188 N.J. 492 (2006), where the Court stated that Cunningham must “prove that he actually lost income…because of his disability”. The Court noted that TTD is wage replacement for “actual lost wages”, and not “theoretical or fictitious wage loss”.

The Court in Cunningham was guided by the holding of Outland v.  Monmouth-Ocean Educ. Serv. Comm’n, 154 N.J. 531 (1998). In Outland, the Court held that in order for a teacher who teaches during the school year to be entitled to TTD during the summer months, she must prove that she would have had summer employment. The case of Gioia v. Herr Foods, Inc., No. A-0667-10T4 (App. Div. October 11, 2011) also deals with an employee terminated for misconduct (in that case, violation of the employer’s drug policy), and the holding of Gioia makes it clear that TTD is for actual lost wages, not theoretical lost wages. In a case where an employee is terminated for cause, at the point of his termination, he no longer has wages. If there is no actual wage loss, TTD is not owed.

Scenario 2: Nate has been placed out of work by the authorized doctor and is not working. TTD is being issued. The authorized doctor, on May 15, 2022, recommends that Nate undergo a shoulder surgery. Nate receives all surgical clearance and on May 22, 2022, the authorized doctor schedules the surgery to occur on June 5, 2022. However, Nate has a pre-planned vacation June 4- June 18. Then he is moving residences during the end of June, and then will have family visiting during July as well as various other summer activities, so he wants to push the surgery back until at least August 15. Nate asserts that he is entitled to TTD during the time frame of May 22, 2022 through August 15, 2022.

Our position is that Nate is not entitled to TTD during the time frame of May 22, 2022 through August 15, 2022.

Nate is refusing treatment, for reasons that are not related to any health or medical issues. An employee not complying with the authorized doctor’s treatment plan, and treatment schedule, based on a personal reason or personal preference, is not entitled to TTD benefits.

Our position is that if petitioner is not actively treating, or is missing appointments, he is not entitled to TTD under N.J.S.A. 34:15-19, which states that after an injury, an employee must submit himself for physical examination within this state, as often as may be reasonably requested, and, “the refusal of the employee to submit to such examination shall deprive him of the right to compensation during the continuance of such refusal”. Since Nate is failing to, or refusing to, comply with treatment and is not cooperating with authorized treatment, he is not entitled to TTD during his non-cooperation.

Scenario 3: Ronald, an electrician, was injured on January 15, 2022. The authorized doctor places Ronald out of work February 10 through March 1, 2022. On March 2, 2022, Ronald is released to work light duty; the doctor noted that full duty was anticipated on or around April 2, 2022. The employer can accommodate light duty work and can pay Ronald his usual salary in his temporary light duty position; Ronald was offered the light duty position on March 2, 2022. Ronald refuses the light duty position, as he does not want to work “desk duty”; Ronald maintains he is owed TTD from March 2, 2022 through April 2, 2022 (or whenever he is in fact returned to work full duty).

Our position is that Ronald is not entitled to TTD as of March 2, 2022, the date that light duty was offered, and declined.

We recommend relying on Harbatuk v. S & S Furniture Systems Insulation, 211 N.J. Super. 614 (App. Div. 1986) in a situation like his. If the employee is offered a light duty job, and the employee refuses the light duty job, the employer can terminate TTD upon the refusal. For this reason, it is a good idea to put the light duty offer in writing, dated, and reference the date that the authorized doctor placed the employee back to work light duty, and the date light duty could be accommodated, particularly as under Williams v. Topps Appliance City, 239 N.J. Super. 528 (App. Div. 1989), “the burden is on the employer to show that light work was offered to [the employee] and that it was refused”.

The above scenarios re-emphasize two important things to keep in mind with respect to issuance of, and entitlement to, TTD benefits: (1) TTD is to compensate for actual lost wages; and (2) An employee’s refusal to comply with offered light duty and/or the authorized doctor’s recommended course of treatment may be cause for TTD to be terminated.

 

-------------------------------

Maura Burk, Esq., is a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Ms. Burk concentrates her practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation matters.  If you have any questions or would like more information, please contact Ms. Burk at 856.840.4941 or by e‑mail at mburk@capehart.com.

Often cases are referred to this insurance defense attorney where the policy was cancelled prior to the alleged date of loss. The claimant-petitioner has retained an attorney and has filed a Claim Petition in the Division of Workers’ Compensation. The petitioner’s counsel has reviewed the New Jersey Compensation Rating and Inspection Bureau website and found the policy which would have been in effect at the time of the date of loss and has named that carrier. The carrier retains counsel and seeks to deny the claim for lack of coverage.  The question is whether there is sufficient evidence to prevail on a Motion to Strike Carrier.

Prior to filing a Motion to Strike Carrier, there are certain steps and documents which should be reviewed between counsel and the carrier regarding the effectiveness of the cancellation. In New Jersey, there is a strong public policy favoring uninterrupted workers’ compensation coverage for all employees. As a result, an insurance carrier must strictly comply with all statutory and regulatory mandates regarding any cancellation of a policy.

It is therefore beneficial to review N.J.S.A. 34:15-81, Cancellation of Contract. The Statute lays out three individual steps which must be followed in order for cancellation to be effective. Section 81 states that no policy for workers’ compensation coverage is deemed cancelled until the following three criteria are met:

  • (a) At least ten days’ notice in writing of the election to terminate such contract is given by registered mail by the party seeking cancellation thereof to the other party thereto; and
  • (b) Until like notice shall be filed in the office of the commissioner of banking and insurance, together with a certified statement that the notice provided for by paragraph “a” of this section has been given; and
  • (c) Until ten days have elapsed after the filing required by paragraph “b” of this section has been made.

While the foregoing three steps appear to be straightforward, there are various ways in which a potential issue may arise and therefore result in a finding of improper cancellation. The New Jersey Supreme Court has held that there needs to be strict compliance with the Statute in order for cancellation to be effective. Sroczynski v. Milek, 197 N.J. 36 (2008).

Consider an example of a policy issued to an employer for a policy period beginning on February 1, 2019 through February 1, 2020. During the policy period, the employer fails to make payments on the policy leading to a cancellation. The carrier sends a notice to the employer on July 1, 2019 stating the following:

“We hereby notify you that the policy identified above will be cancelled effective 12:01 a.m. July 30, 2019 in accordance with the cancellation condition of the policy and that all liability of the Company under such policy will cease at that time. Premium adjustment will be made to the date of cancellation and statement rendered. The reason for this action is: Nonpayment of Premium.”

With respect to the first step in cancelling a policy, a notice needs to be generated by the carrier and sent to the employer with at least 10 days’ notice of the date of the cancellation. So far, our cancellation example appears to comply with subsection (a) of the Statute as the notice is sent on July 1, 2019 and gives more than 10 days’ notice.

Subsection (a) of the Statute also states that this notice must be sent by “registered mail.” The Statute does not define “registered mail.” In practice, the carrier should send the notice to the employer by certified mail. The carrier should retain any and all transmittal information with the USPS regarding sending of the notice of cancellation as these documentary proofs are vital in the carrier’s Motion to Strike Carrier for Lack of Coverage.

The sending of the notice of the cancellation to the employer is not the end of the journey for the carrier. The carrier must also submit a “like notice” to the office of the Commissioner of Banking and Insurance. The Statute does not require “exact same notice,” but rather states “like notice.” The Commissioner of Banking and Insurance in New Jersey has designated the Compensation Rating and Inspection Bureau (CRIB) as the entity to receive the like notice.

CRIB requires that the like notice be submitted electronically and has provided a reference form to be used by carriers for the submittal of like notice.

You can download the above form and note that at the bottom of the submittal there is a certification for which the carrier must provide a signatory. The certification is required in the like notice submittal to CRIB. Subsection (b) of the Statute has two clauses which must be adhered to in order for the cancellation to be effective. The first is that the like notice is filed with CRIB, the second is a certified statement must be provided by the carrier that the employer was provided notice in accordance with subsection (a), i.e., that the employer was provided notice of the election to terminate via registered (‘certified’) mail with at least 10 days’ notice.  These steps are required.

Finally, the Statute requires one last step for the policy to be effectively cancelled. Subsection (c) of the Statute requires that at least 10 days have elapsed since the filing of the notice with CRIB prior to the cancellation being effective.

Let us return to our example policy which is being cancelled by our hypothetical carrier. The policy period is for the year February 1, 2019 through February 1, 2020 and, due to nonpayment of premium, the policy is being cancelled. The notice of cancellation is sent to the employer via registered mail on July 1, 2019 stating that the policy will be cancelled effective July 30, 2019.

The carrier should at that time submit the like notice to CRIB that the policy is being cancelled with the effective date of cancellation being reported as July 30, 2019.

What then occurs if the like notice to CRIB is not submitted until August 15, 2019 and an injury occurs to an employee at the company on August 5, 2019 and the company did not obtain replacement coverage? In this practitioner’s experience, any issue with the filing of the like notice creates strong arguments by petitioner’s counsel that the policy was not effectively cancelled. The carrier will try to argue that the policy was effectively cancelled July 30, 2019 per the notice to the employer and that it is incumbent upon the employer to obtain proper coverage.

The New Jersey Workers’ Compensation Act provides certain timelines and a procedure which must be strictly complied with in order for the policy to be cancelled. In this example, the carrier did not provide the like notice to CRIB until after the date of the loss. As a result, the carrier cannot show compliance with subsection (b) and subsection (c) of the Statute.

Let us move the date of loss then to August 20, 2019 and the like notice still is submitted to CRIB on August 15, 2019. The carrier can now show that the loss occurred after the date of cancellation and after the filing of the like notice with CRIB. However, again, this fact scenario will likely result in an improper cancellation and a covered loss. Subsection (c) of the Statute requires that at least 10 days have passed since the filing of the notice with CRIB. In this example, only 5 days have expired. As a result, the petitioner will have a strong argument that the policy was still in effect at the time of the loss despite the policy being cancelled as of July 30, 2019.

While the foregoing examples appear to result in simple solutions, Section 81 of the Statute often results in lengthy litigation regarding proper proofs of cancellation. As a result, the carrier should retain detailed documentary proofs and evidence of each step of the cancellation in order to properly seek to be stricken for lack of coverage from a pending claim.   Readers with questions on cancellation can reach the undersigned at knagy@capehart.com.

 

-------------------------------

Keith E. Nagy, Esq., is a Shareholder and Co-Chair in Capehart Scatchard's Workers’ Compensation Group.  Mr. Nagy concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation matters. Should you have any questions or would like more information, please contact Mr. Nagy at 856.840.4928 or by e‑mail at knagy@capehart.com.

The concept of legal presumptions in workers’ compensation is not new in New Jersey.  The first presumption legislation in New Jersey was passed in 1964 concerning volunteer firefighters who contract respiratory disease in certain circumstances. The second presumption legislation was passed in 1988 in regarding to firefighters with cardiovascular or cerebrovascular injuries or death in responding to a law enforcement, public safety or medical emergency.  More recently the 2019 Thomas P. Canzanella Twenty First Century First Responders Protection Act and the 2020 Essential Employees Law have generated a great deal of discussion among workers’ compensation professionals, carriers and employers on what legal presumptions in workers’ compensation really mean.

In virtually all workers’ compensation claims (excepting presumption claims), the petitioner has the burden of proof on the issue of compensability as well as on the issue permanency, but in cases involving a legal presumption, the burden shifts to the employer to disprove compensability.  In a COVID claim petition involving a presumption, the petitioner must prove that he or she meets the definition of an Essential Employee and that he or she contracted COVID.  At that point the respondent must offer its proofs and attempt to rebut the claim by showing more likely than not that the virus was not contracted at work.  Hence the notion that the presumption is “rebuttable.” 

It is helpful to study the precise language of the New Jersey Essential Employees Law with respect to rebuttable presumptions:  The law says:  “This prima facie presumption may be rebutted by a preponderance of the evidence showing that the worker was not exposed to the disease while working in the place of employment other than the individual’s own residence.”  The last six words simply mean that employees will not receive a presumption for exposure to COVID while working at home.

Some state COVID-19 presumption laws spell out the proofs which legislatively rebut the COVID presumption.  For example, the Illinois COVID-19 Essential Employees Law provides specific examples of rebuttal evidence:

  1. The employee was working from his or her home, on leave from his or her employment or some combination thereof, for a period of 14 or more consecutive days immediately prior to the employee’s injury, occupational disease or period of incapacity resulting from exposure to COVID-19, or:
  2. The employer was engaging in and applying to the fullest extent possible or enforcing to the best of its ability, industry-specific sanitation, social distancing, and health and safety practices by the Centers of Disease Control and Prevention or Illinois Department of Public Health; or
  3. The employee was exposed to COVID-19 by an alternate source.

New Jersey’s COVID presumption law does not address what sort of evidence may rebut a COVID-19 presumption claim unlike the Illinois law cited directly above.  Professor Michael Duff from the University of Wyoming College of Law provides an interesting state-by-state survey on the differences in COVID presumption statutes in his essay entitled “Workers’ Compensation Emerging Issues Analysis.”  He points out that the problem with presumption language in states like New Jersey is that judges of compensation have no legislative guidance on types of evidence which statutorily rebut a presumption.

Among the possible kinds of evidence which may rebut a New Jersey claim for COVID-19 are the following:

  1. The gap between petitioner’s last day of work and the contraction of COVID is too great according to current medical guidelines;
  2. The employee engaged in certain non-work activities that provided a much greater risk of COVID-19, such as travel to other states with high rates of COVID exposure or attendance at large gatherings where a COVID-19 breakout occurred;
  3. The employee was around family members or friends who were diagnosed with COVID before the employee was diagnosed with COVID;
  4. The employee had a second job with a more likely exposure to COVID-19;
  5. The employee had small children whose schools closed due to COVID-19 outbreaks and whose children became symptomatic with possible COVID.

These are just some examples of evidence that may, in a given case, rebut the legal presumption.  One important question that Professor Duff raises is this:  what happens to the presumption if the employer does offer strong rebuttal evidence?  Does the presumption then disappear with the result that the burden then shifts back to the employee to prove how he or she was exposed at work? The New Jersey statute is silent on this question.  The practical answer is that any good petitioner’s attorney who has evidence demonstrating a work source of COVID-19 would then offer such proofs in the face of strong rebuttal evidence. 

Trials will eventually occur in the Division of Workers’ Compensation in COVID-19 cases given that thousands of claim petitions have already been filed.  Judges will deal with the employer’s proofs on rebuttal of presumptions on a case-by-case basis.  One difference between a COVID-19 case and other workers’ compensation cases has to do with medical records.  In the ordinary workers’ compensation case the focus is only on the claimant’s medical condition.  But in a COVID-19 case, in order to disprove a claim by the more likely than not standard, the employer will often have to argue that someone in close contact to the petitioner was COVID-19 positive. That medical evidence may be pivotal.  It may prove challenging in some cases to prove that a non-party to the case to whom the petitioner may have been exposed to COVID was in fact COVID-19 positive.    

No discussion on COVID-19 litigation should end without mention of one crucial point.  Even if the injured worker is an Essential Employee and compensability is found in favor of the employee, the burden of proof on permanent partial disability always rests on the employee.  This means all the same proofs apply as in other compensation claims, namely proof by objective medical evidence of a restriction in the body as well as a significant impact on the employee’s work or non-work life activities.  As COVID-19 continues to spread in the United States, one of the observations physicians and scientists have made is that many Americans have contracted COVID a second time or even a third time. How does second non-work-COVID impact litigation and negotiation? Well, consider a case involving a worker who injures his back lifting at work but then has a subsequent non-work back injury before being examined by an expert. That second accident almost always lowers the value of the claim, and in some cases may erode all the value depending on the severity of the second accident.   What about someone who has COVID-19 arising from work and then contracts COVID a second time from a home exposure prior to medical evaluation?  How does a claimant with second COVID from a home exposure separate the current complaints from the impact of the earlier work COVID?  This phenomenon is already happening in COVID cases in New Jersey and in other states.  Employers must always ask for all treating records up to the present in any COVID litigation for this very reason.

 

-------------------------------

John H. Geaney, Esq., is a Shareholder and Co-Chair in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.

For those readers who are interested in learning about current issues in workers’ compensation, I highly recommend the 2021 LexisNexis book entitled “Workers Compensation Emerging Issues Analysis.”  I was asked to review this book and found it to be chock full of cutting-edge articles written for attorneys, employers, physicians, adjusters, carriers and third party administrators.

The book consists of a collection of well-written articles by prominent authors from around the nation in the field of workers’ compensation law. A large portion of the book is devoted to COVID-19 pandemic issues ranging from how to analyze compensability of COVID-19 occupational disease claims, what presumptions really mean, and the impact of the pandemic on the traditional going-and-coming rule.  Among the most enlightening articles was one written by Michael C. Duff, Professor of Law at the University of  Wyoming.  The author discusses how presumptions actually work in the law, comparing the specific language in presumption laws from various states, and focusing on how employers may attempt to rebut the statutory presumptions. 

In addition to the analysis on pandemic issues, there are also many other articles of interest to practitioners, including the impact of medical marijuana and opioid laws, understanding the AMA Guidelines in workers’ compensation, (used in most states but not in New Jersey), ride-sharing and the independent contractor defense, as well as a summary of state laws dealing with weekly limits on total disability in workers’ compensation.

One of the most impressive sections contained in this book is the state-by-state legislative and case law analysis.  For each state there is a section called “trends analysis” and a section that reviews cases of interest to practitioners and employers since 2020. I liked reading the developments in each state because it makes it easy to spot and track legal trends in workers’ compensation.  For attorneys, claims managers, supervisors and employers with business in several states, the book is absolutely essential. 

“Workers’ Compensation Emerging Issues Analysis” was co-edited by Mr. Thomas Robinson, Esquire and the National Workers’ Compensation Defense Network (NWCDN).  Mr. Robinson is the esteemed co-author of Larson’s Workers’ Compensation Law (LexisNexis) and Larson’s Workers’ Compensation, Desk Edition (LexisNexis).  The NWCDN is a nationwide network of independent law firms dedicated to promoting excellence in the practice of workers’ compensation law.  NWCDN runs some of the best seminars available to member practitioners and employers at various venues around the country.As an avid reader of all things workers’ compensation, I enjoyed the fact that there was so much original thought in this book. The articles raise many questions that employers and practitioners will be trying to answer in the coming years. Frankly, anyone involved with workers’ compensation will benefit by reading this book. 

 

-------------------------------

John H. Geaney, Esq., is a Shareholder and Co-Chair in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.

The NWCDN has a lengthy history of sponsoring cutting-edge seminars addressing incisive topics that are timely to the business of Workers’ Compensation.  The NWCDN will continue this tradition on April 28, 2022 in Philadelphia at the Hilton at Penns Landing.  The theme of the conference is “Philadelphia Freedom.” The speakers will address complex issues that face the industry today with an eye toward the developments of tomorrow.  

This one day seminar moderated by Lora Northen of Capehart Scatchard and John Ellis of Heckler & Frabizzio features an exciting array of Industry leaders.  Bruce Hamilton, the President of the NWCDN, will get things started with a few opening remarks followed by Caryl Russo, Ph.D.-Senior Vice President at RWJBarnabas Health who will discuss the anatomy of a national award winning workers’ compensation program. Robert Wilson-President & CEO of WorkersCompensation.com will then offer his unique perspective on recent trends in the workers’ compensation industry as well as what he sees on the horizon.   The morning will be rounded out with a session by Max Koonce – Chief Claims Officer at Sedgwick who will discuss the evolution of the workers’ compensation system as well as its future.

The afternoon session will kick off with Sarah Sherman the Assistant General Counsel for Maxim Healthcare Staffing Services and Bert Randle of Franklin & Prokopik discussing lessons they have learned in managing professional relationships.  Kenneth Kutner, PhD, ABPP-CN a Clinical Assistant Professor of Neuropsychology  at Weill Cornell Medicine- Cornell University and the lead author of the Sideline Concussion Checklist with then draw from his 28 years of experience as the team neuropsychologist for the New York Giants to provide all attendees with the opportunity to learn from a true “giant” in the industry on how to approach head injury claims.  The final panel will feature Lisa Thompson the Workers’ Compensation Claims Manager at Campbell’s and William Abate the Corporate Risk and Safety Manager at Holman Enterprises and be moderated by Lora Northen.  This panel of industry experts will discuss the “dos and don’ts of handling claims” and even reveal some of their secrets to crafting a successful workers’ compensation program.  I hope to see you in Philadelphia this April.  

 

Nicholas A. Dibble, Esq.

Capehart Scatchard

Here in New Jersey we have seen a significant number of claim petitions filed in the Division of Workers’ Compensation seeking benefits arising from alleged exposure to COVID-19 in the workplace. 

The Essential Employee Law

The landscape for the COVID claims drastically changed when the New Jersey Legislature signed The Essential Employees bill into law on September 14, 2020.  The law is retroactive to March 9, 2020 and creates a presumption of compensability for certain categories of employees.  These categories include:

A.    Public safety workers or first responders, including fire, police, or other emergency providers;

B.    Those involved in providing medical and other healthcare services, emergency transportation, social services, and other care services, including services provided in health care facilities, residential facilities or homes.

C.    Those who perform functions which involve physical proximity to members of the public and are essential to the public’s health, safety, and welfare, including but not limited to transportation services, hotel and other residential services, financial services, and the production, preparation, storage, sale and distribution of essential goods such as food, beverages, medicine, fuel and supplies for conducting essential business and work at home, or;

D.    Anyone deemed an essential employee by the public authority declaring the state of emergency.

The effect of this presumption is that the burden of proof does not rest on the Essential Employee to prove that he or she contracted COVID from work.  It is now presumed to be work related.  The burden instead shifts to the employer to disprove the case.  The law provides that the presumption is “rebuttable.” An employer could rebut the presumption, for example, if the Judge of Compensation were to find that the employee more likely contracted the virus from another job or prior to the effective date of the law (March 9, 2020).

The petitioner still has the Burden to Prove Permanent Partial Disability

The petitioner always has the burden of proof with respect to permanent partial disability.  The Essential Employee Law did not change that.  One does not automatically get an award of permanent partial disability for having work-related COVID.  There must also be proof of an impairment which substantially limits one’s activities of daily living or materially impacts one’s working ability. 

The End of the Presumption

One important question now facing practitioner is when this presumption will end. My position is that this presumption was terminated when Governor Murphy declared the end of the public health emergency on July 3, 2021 as the basis for the Essential Employee Law rested on the public health emergency and refers to it in the law itself.   While the Governor never specifically said on July 3, 2021 that the COVID presumption in workers’ compensation was terminated, many workers’ compensation professionals contend that the presumption must have ended because the law was in response to the existence of a public health emergency.

Currently, the end of the presumption does not mean all that much because many claim COVID petitions are still being filed.  Without a presumption, the petitioner must prove more likely than not that he or she contracted the virus at work.  That is just like any other occupational disease claims in New Jersey where the burden rests on the petitioner to prove his or her case on compensability.  

Defending COVID Claims

Rebutting the presumption of compensability requires an investigation into the petitioner’s relevant medical history and the circumstances that led to his or her exposure. In all occupational claims, including COVID claim petitions, both parties can propound interrogatories on the other side to answer.  Unfortunately, the standard occupational interrogatories used in New Jersey are mostly outdated with no questions about family exposure, travel exposure, mask use or community exposure in the approved form interrogatories. Counsel for the respondent should prepare relevant interrogatories customized to address each individual COVID claim petition. 

These interrogatories must address exposure potential at home with relatives or friends, dates and locations of travel, holiday gatherings, dates of positive testing, quarantine periods, secondary employment, and volunteer work, the timing of the diagnosis and current symptoms and treatment. 

No one really knows what the long term effects of COVID are.   The COVID virus seems to frequently attack preexisting medical conditions.  For this reason it is important to obtain family doctor records to assess the prior medical diagnosis.  Family doctor records may have very important information about prior conditions and also about initial conversations regarding the possible sources of the COVID exposure. 

Depending on the allegations in the particular case, it may be necessary to obtain prior treatment records from other specialists as their findings may be directly relevant to causation.