State News : New Jersey

This is a two part analysis of the defense of occupational disease claims in New Jersey workers’ compensation.  The first segment will focus on the proofs in occupational disease cases and why this practitioner believes that these kinds of claims will be filed increasingly in coming years.  The second segment will focus on how employers can win occupational disease claims.

After the New Jersey Workers’ Compensation Act was reformed in 1979, occupational disease was defined in such a way that there are really four proofs that a claimant must make to prevail in compensation court, and language was inserted in N.J.S.A. 34:15-31 which provided some level of protection for employers.  While some practitioners believe it is easier for a claimant to win an occupational disease claim than a traumatic claim, this argument ignores the fact that there are additional proofs in an occupational claim that do not exist in a traumatic claim.

Both types of claims must satisfy the following two standards:

1)      An occupational disease as well as a traumatic injury must arise out of the employment;

2)      An occupational disease as well as a traumatic injury must occur during the course of employment;

3)      However, in an occupational disease claim, the claimant must also prove that the illness was produced by causes which are characteristic of or peculiar to the trade, occupation, or place of employment.

4)      Further, the claimant must show that work contributed in a material degree (not a minor degree) to the illness.

The statute also says, “Deterioration of a tissue, organ or part of the body in which the function of such tissue, organ or part of the body is diminished due to the natural aging process thereof is not compensable.”  If an employer can prove the condition is due to the natural aging process, the employer wins.

After the 1979 Amendments took place, employers began to test the new provisions of the law in response to an enormous number of occupational respiratory claims filed in the 1980s.  These claims were often filed by pipefitters or shipyard workers and generally involved exposure to asbestos, leading to a variety of asbestos-related diseases.  By the mid-1980s into the late 1990s, firefighters, police officers and factory workers around the state began to file thousands of occupational respiratory claims.  These respiratory claims constituted the single largest group of occupational disease claims in the Division of Workers’ Compensation at this point in time. 

Employers began to litigate these respiratory cases in the 1990s leading to fairly strong case law for respondents, particularly Laffey v. City of Jersey City, 289 N.J. Super. 292 (App. Div.), certif. denied, 146 N.J. 500 (1996).  Laffey stressed that courts should not focus just on the petitioner’s own description of the work environment as dusty and dirty, but on evidence of articles, treatises, and medical studies that prove a link between exposure to fumes and dust to complaints of shortness of breath and coughing.  Employers began to win a high percentage of trials, and the volume of such claims declined because the science often was not there to support the claim.

The next big wave of occupational claims occurred in the 1990s with occupational carpal tunnel claims.  These claims have also recently tailed off in volume for different reasons:  first, ergonomic changes in the workplace have created safer work environments for those who use their hands throughout the day.  Secondly, the New Jersey Workers’ Compensation Act continues to undervalue hand injury claims such that a hand injury is worth 2.45 weeks per percentage while an injury to the trunk is worth 6 weeks per percentage.  

The single most devastating case to occupational carpal tunnel claims was Huntoon v. Borough of Clementon, No. A-0956-09T3 (App. Div. July 28, 2010).  That case barred the claim of a clerical worker who filed a claim petition in 2007 alleging carpal tunnel syndrome from continuing typing and paper work.  The respondent’s attorney obtained prior family doctor records which showed in 2004 that petitioner already had a diagnosis of carpal tunnel syndrome. Even though she continued to allege exposures contributing to her illness through 2007, the Judge of Compensation held that the claim petition was time barred because petitioner did not file within two years from when she knew her condition and thought it was work related.  The Appellate Division affirmed. Because of this case, the statute of limitations remains a powerful defense to many occupational disease claims.

Enter the most recent wave of occupational disease claims, which began to form in the past five years.  Some law firms began fairly recently to market occupational disease claims or repetitive stress injuries through print and radio spots, specifically targeting older workers who may have problems with their shoulders, spine, legs and arms. These claims involve allegations that such medical conditions are a result of decades of repetitive work activities.  Prior to 2010, these claims had been occasionally filed in New Jersey but in recent years, the filings are dramatically increasing.  Clever law firms have recognized that employees are working later in life and longer than in the past. The so-called aging workforce is an enormous market in New Jersey and in other states for occupational disease claims of the upper extremities and spine.  This trend is here to stay for economic reasons: folks are working later and longer because they have to in order to survive.  One can expect that occupational disease claims for upper extremities and the spine will constitute an ever rising percentage of formal petitions in the coming years.

What is the main weapon that claimants use to advance occupational claims for the shoulder, spine, arms and legs?  It is the MRI.  The MRI study has probably cost employers nationally in workers’ compensation billions of dollars over the years because employers inevitably end up paying for normal age-related changes. The MRI is a study which provides a fairly accurate and clear picture of the body part:  a partial or full tear, a herniated disc, a torn meniscus or ligament, etc.  But it cannot date the finding or indicate whether the finding on MRI is age related or is the result of years of repetitive physical activity, whether at work or in the gym.  As Dr. Kenneth Peacock has said, “One can look at an oak tree and know that it did not spring up overnight.”  That is true, and employers know intuitively that they are often being asked to pay for normal age related changes on MRI, but the problem is that there is no medical science that can clarify when and why certain abnormalities are found in joints or disc spaces. One cannot simply argue to a judge of compensation that every bulging disc is preexisting and unrelated to physical exertion. Costs also limit the ability of respondents to counter a positive MRI.  For example, seldom does a doctor treating a right shoulder claim for a partial tear order an MRI of the asymptomatic left shoulder to compare the findings in the shoulders.  If this were done, one would often find that both shoulders have identical partial tears due to aging.  But this would be expensive and problematic.

So how does a doctor tell the difference between a joint problem that is caused by a worker who repetitively does a physical task and a joint problem that is caused by the natural aging process? If technology cannot solve the problem, then defense counsel must step in with the help of strong expert witnesses who can provide good medical literature and studies.  Discovery is crucial for employers, and it remains this practitioner’s belief that employers can win occupational disease cases only if they perform aggressive prior discovery.  In the next segment, the focus will be on the steps employers must take to successfully defend such cases, beginning with getting prior family doctor records from as far back as possible.  Without such records it is next to impossible to determine whether the medical condition is preexisting or produced by non-work activities or age-related changes.  Defending occupational disease claims without prior discovery is like picking horses at the race track based on names: you will only win by accident.

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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder 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.