State News : New Jersey

Everyone knows that New Jersey has a minimum rate for temporary disability benefits, but it is not as widely understood that New Jersey also has a minimum rate for permanency.  In 2018 the minimum rate for temporary disability benefits is $241 per week.  But the minimum rate for permanency remains $35 per week, as it has for many decades.

Why is this important?  Part-time employment is at an all-time high in the United States, and millions of Americans have second jobs. There are many situations where an employee will have a high-paying full-time job but the injury occurs on the part-time job.  The question for adjusters and professionals is how to set the rate and thereby determine exposure and reserves.

Consider a cafeteria worker in a private business who works part-time earning $100 per week.  He falls, fractures his hip and develops problems with walking.  What do we pay this worker for temporary disability benefits?  The answer is $241 per week until he reaches maximal medical improvement or can return to work either full-time or on a light duty basis.  It does not matter that $241 per week is higher than the wage of $100 per week.  That is the minimum rate.

Now fast forward to the permanency stage of the case.  The injured worker has had a hip replacement and has permanent gait issues.  The Judge of Compensation has reviewed the permanency estimates for both sides and recommends 50% permanent partial disability as a compromise for settlement purposes.

What do we pay this worker for a 50% award?  He is back to work at the cafeteria job and back to work full-time at his regular job at a grocery store, but he clearly has objective evidence of a significant impariment.  The rate chart which we all have at our desks says that 50% permanent partial disability equates to 300 weeks of compensation at a rate of $657 per week for a 2018 injury for a grand total of $180,600.   But remember that his wage is $100 per week in the part-time job.  That is the wage we focus on, not the worker’s full-time job at the grocery store.  Can we pay less than $241 per week, which is the minimum for temporary disability benefits?  Yes we can because there is a different minimum for permanency purposes.

This is an area of practice that every good practitioner must master.  We do not pay $180,600 over 300 weeks.  That would be an enormous overpayment.  We take the wage of $100 and multiply it by 70% for a rate of $70 per week.  We then multiply $70 per week times 300 weeks and get an award of $21,000.  That is about $160,000 less than the rate chart provides for someone with a 50% disability!

So the lessons in understanding the minimum rate for permanency are crucial to grasp.  Countless workers’ compensation cases get overpaid for failure to understand that the minimum for permanency is far less than the minimum for temporary disability benefits.

*  Remember not to use the rate chart on your desks for low wage employees. The rate chart is only relevant for high wage employees

*  Do not count the other job’s wages in New Jersey in calculating the amount due for temporary disability or permanent disability purposes.  You use the wage for the job where the injury occurred.

*  For permanency awards, take the average weekly wage, multiply by 70% and that becomes what we refer to as the “capped rate.”  The rate never goes higher than that number.  In the above case, the capped rate is $70 per week.

*  Set the wage and rate at the start of the case for both temporary and permanency purposes.  All accurate reserves and exposure analysis depend on this.

*  We do not reconstruct wages for temporary disability benefit purposes.  In some cases a worker’s part-time wage may be reconstructed to a 40-hour week if the worker can show a permanent diminution of working ability.  It is our position that someone who is back to work on both jobs cannot meet this test for reconstruction of wages.

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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. 

On August 24, 2018, Governor Murphy signed a bill that for all practical purposes ends the right of employers to make bona fide offers of permanent partial disability free of counsel fees.  The statute that enabled employers to make bona fide offers within 26 weeks of maximal medical improvement, or return to work, whichever is later, without the offer being feeable, was passed on April 3, 1928.  For almost a century, employers made such voluntary offers to tide injured employees over while their workers’ compensation cases were pending.  The inducement to employers was the savings on counsel fees.  Neither petitioner nor respondent paid a counsel fee on the amount of a timely voluntary offer.

Under the new law signed by the Governor, counsel for petitioners are entitled to a fee on all benefits paid to the petitioner if those payments occur after the date of a signed agreement between counsel and the injured worker.  An employer can still make an offer of permanency if the employer so desires and get a dollar credit, of course, but for practical purposes there will be no way to know whether the voluntary offer will be feeable.  There is no obligation on the part of the injured worker to disclose to the employer or carrier whether he or she has a signed agreement with counsel.  In many cases the adjuster may be well aware that the injured worker has an attorney and can therefore infer that there is an attorney-client relationship.

One question practitioners have is whether an attorney for the injured worker can still agree with the employer or carrier not to take a fee on a voluntary offer of permanency as an inducement for such an offer to be made.  Voluntary offers of permanency are popular with injured workers because they help with the employee’s finances while the case is pending.  This sort of agreement by petitioner’s counsel to waive a fee on an amount offered would almost certainly be honored by a Judge of Compensation, even if there is a written agreement predating the offer of permanency.

One other important legislative development in New Jersey is the potential loss of the “reverse offset.”  New Jersey is one of 15 states that has an agreement with the Social Security Administration giving the offset for total disability payments to the employer.  In most states the offset goes to the Social Security Administration.   In a reverse offset state like New Jersey, workers’ compensation benefits in total disability award cases are reduced by the amount of SSDI benefits in certain circumstances.

The proposed 2019 federal budget eliminates the reverse offsets in the 15 states that currently are permitted to offset against SSDI benefits.  There is a formula that limits the employee to 80 percent of the employee’s average current earnings between workers’ compensation and SSDI benefits.  In New Jersey, the benefit from workers’ compensation is reduced rather than SSDI in achieving the 80% limit.  This has saved employers and carriers countless millions of dollars over the years.  The current budget proposal would eliminate this practice in all 15 states that have a reverse offset.  The reason for the budget proposal is that it will allegedly save the federal government $164 million over 10 years.

Thanks to Craig Livingston, Esq. for bringing this budget proposal to our attention.  Employer groups need to speak to their federal legislators about opposition to this budget proposal.  This would be a very costly change for New Jersey employers, and such a change will generate much more litigation in total disability claims.

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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.

We hear the term “idiopathic claim” quite frequently in workers’ compensation, but what does it really mean?  To begin with, “idiopathic” is a combination of two Greek words:  “idio” relating to “one’s own” and “pathic” suggesting suffering or disease.  It has come to mean any disease or condition of unknown cause.  Lawyers and practitioners have borrowed this term to argue in workers’ compensation that if a condition is idiopathic, it must be considered not causally related.  Yet the word “idiopathic” does not appear anywhere in the New Jersey Workers’ Compensation Act, and there are precious few New Jersey cases that even refer to it.

A more useful way to understand the defense is to think about the two fundamental requirements for any workers’ compensation claim:  the injury must occur during the course of employment, and the injury must arise from employment.  So a police officer is walking down steps at work and feels sudden pain in his knee.  He does not fall; he does not strike the ground.  A piece of bone broke off in the knee spontaneously for no known reason.  Is this compensable?  No, according to Meuse v. Egg Harbor Township Police Department, No. A-4553-90 (App. Div. May 6, 1992).  It is idiopathic, or more precisely, the injury did not arise from the employment.

Another way of restating this is that for an injury to be work related, it must occur during work and the premises at work must contribute to the injury.  In the above Meuse case, work had nothing to do with the injury.  It could have happened anywhere and it was pure accident that the bone broke off while walking at work.  The act of walking which the officer was doing was no different than his walking anywhere else.

Another example:  Iesha is getting ready to go home on a snowy winter day.  Her shoulder has been painful for weeks from heavy shoveling at home.  She puts on her winter coat, and as she raises her right arm, she feels a tear in the shoulder.  She is diagnosed with a rotator cuff tear.  This happened at work, but did work cause the injury to occur?  Arguably no, because Iesha puts on her winter coat all the time, whether at home or at work.  She did not slam into a door or bump into another employee when she was putting on the coat.  The shoulder just spontaneously tore while she was putting her coat on.  This is similar to the Meuse case.  The injury did not arise from work and would be considered idiopathic.

What about an employee who wears three inch platform heels to work.  While walking down the corridor, she turns right to go to the cafeteria for a cup of coffee. As she turns right, her right foot falls out of the platform shoe and she badly sprains her ankle at that very moment.  She does not fall and hit the ground.  Defense would concede that this meets the first test: it happened at work.  But did it arise from work?  Arguably no.  Work did not cause this to happen at all.  The bad sprain was produced by the act of walking with three inch platform heels.

Suppose in the above example that the employee with the platform heels slips and falls as her shoe is coming out.  She braces herself with her right hand, and she fractures the hand in two places while trying to protect herself from the fall on a tile floor.   Is the hand injury compensable?  Well, the injury occurred during work hours, and employees are generally covered while going for a cup of coffee on premises.  The act of falling and striking the hard ground caused the employee to fracture her hand.  This not only happened during work but the work premises – the hard tile floor – caused the hand to fracture in two places.  The floor is part of the work premises, and this hand injury is likely to be found work related.

In short, when we think of idiopathic claims, the better analysis is whether the injury arises from work or just from personal activities that could have happened anywhere.

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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. 

Samuel Kamenette drove over-the-road trucks for Sangillo & Sons.  He was injured on October 9, 2015  in the State of Wyoming. He was driving a load from California to New Jersey.  He slept the night before in his truck, and in the morning he drove for an hour to a Flying J, part of a Pilot Flying J nationwide chain.  He purchased over 50 gallons of fuel, parked the truck, went into the Flying J, and he took a shower.  He then dressed in the shower area preparing to renew his drive.  He sat on a bench to put on his boots, but the bench collapsed causing injuries.  He alerted his employer of the injury and then drove to a clinic for treatment, obtaining pain killers, before driving back to New Jersey.

Kamenette brought a workers’ compensation claim and also settled with Pilot Flying J for $40,000 in a third party action.  He filed a motion for medical and temporary disability benefits in the workers’ compensation case, and the Judge of Compensation ruled in his favor, finding that the accident arose from the employment.  Sangillo and Sons appealed.

At trial Kamenette testified that he needed to take the shower partly because it is an appearance issue.  He represents his company.  He also said that a shower keeps him more alert. The Appellate Division rejected both rationales.  It said that Kamenetti did not testify that he had been drowsy and said that since petitioner had no deliveries to make, the appearance argument also failed.   The Appellate Division felt that his showering was therefore “indistinguishable from the showering of countless on-premises employees in their homes every day before going to work.”   The Court said:

It would not be consonant with the language or intent of the 1979 amendments to extend workers’ compensation to cover employees engaging in pre-work activities that will make them more refreshed, efficient, alert, fragrant, or attractive during the work day, such as bathing, eating breakfast, drinking coffee, exercising, or dressing.  Treating these pre-work activities as covered would contravene the requirement that the employee “engaged in the direct performance of duties assigned or directed by the employer.”

The Appellate Division further commented as follows: “Thus, had Kamenetti stayed in a motel or truck stop with a shower, showered there, and injured himself while dressing, he would be equally ineligible for compensation as an on-premises employee who slept, showered, and dressed at home.  However, he chose to stay at a ‘mom and pop’ truck stop that had no showers, and therefore had to go elsewhere to shower. The choice does not change the result.”

This statement in the preceding paragraph seems to run counter to Johnson-Tucker v. Plainfield Board of Education, No. A-5078-06T3 (App. Div. July 1, 2008).  There a petitioner attended a Board approved seminar in Georgia.  She was unable to get a room in the hotel where the seminar was located.  Before the seminar began, she went to breakfast in her hotel, and the chair she was sitting in collapsed causing injury.  The Appellate Division held that this injury was in fact work related, embracing the theory that injuries in the hotel would be compensable because getting a meal was necessary, even if the petitioner was not at the hotel where the seminar took place yet.

The Appellate Division also rejected the argument that Mr. Kamenetti’s injury was a minor deviation from employment.  The Court distinguished one case involving an off-premises compensable coffee break. In that case the injured employee was a foreman who went to the union hall to discuss a new job with a union instructor.  Since the instructor was busy, the foreman took his break and drove five miles to get a cup of coffee as there was no coffee in the union hall.  He was injured in a car accident on the way.  The Appellate Division found that case compensable on the theory that off-premises employees are entitled to the same coffee breaks as on-premises employees, but it felt it had no application to this set of facts.

In the end, the Appellate Division found that the petitioner’s shower was a “personal activity,” not a duty.  An attorney for COSH filed an amicus curiae brief, arguing that the petitioner’s shower was covered under the “Personal Comfort Doctrine,” which New Jersey recognizes.  Certain activities like going to a restroom, going on a coffee break or smoking a cigarette have historically been accepted in most states under the Comfort Doctrine.  Counsel argued that the need to take a shower for someone who drives across the country fits squarely within this doctrine.  The Appellate Division would not entertain this interesting argument because the issue had not been raised at the Division of Workers’ Compensation level.

This case is not reported but it underscores how challenging it is to differentiate what is or is not a minor deviation.  The five-mile drive for a cup of coffee was considered a minor deviation, but the Appellate Division in this case felt that the shower was purely personal and therefore a major deviation.  The case can be found at Kamenetti v. Sangillo & Sons, A-0394-16T3 (App. Div. August 8, 2018).

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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. 

George Washington, an employee of Runnells Center for Rehabilitation and Healthcare, left work on March 5, 2015 and drove his car to pick up lunch at a nearby restaurant.  Returning from lunch, his car struck a guardrail on a snow-covered access driveway owned by Runnells.  He completed an accident report at the scene, exited his vehicle, then slipped and fell, fracturing his ankle.

In April 2016, Washington sued Runnells, his employer, seeking compensatory damages.  Defendant Runnells surprisingly failed to argue that workers’ compensation was plaintiff’s exclusive remedy.  One cannot sue one’s employer in civil court except for rare exceptions.  Eventually Runnells amended its position in the case to argue that plaintiff could not sue the company in civil court, and the amendment was allowed.  That set the stage for an interesting decision.  Was Mr. Washington at work when he slipped and fell on an access road coming back from lunch?

The Superior Court held that plaintiff could not bring a civil suit against Runnells.  It did not matter that plaintiff was returning from a lunch break.  His car had reached the premises owned or controlled by his employer and he was technically in the course of employment when he was injured.  Therefore his sole remedy was workers’ compensation benefits, something Washington did not desire.

Washington relied on Acikgoz v. N.J. Tpk. Auth., 398 N.J. Super. 79 (App. Div. 2008).  He argued that his case was similar to this 2008 case.  In that case two vehicles collided on an access road owned by the New Jersey Turnpike Authority, and a civil case was allowed.  Both drivers worked for the Turnpike Authority. Acikgoz had completed his shift and was heading home.  Lowden, the other driver, was merely driving to work to pick up his paycheck.

The Court in Acikgoz allowed the civil law suit stemming because it held that Lowden was not in the course of his employment, as he was just picking up a paycheck. He was not there to work.  Further, the access road was open to the public.  The Court found that Lowden used the access road for “convenience” rather than for the benefit of his employer.

The Appellate Division concluded that Washington’s case was not the same as Acikgozat all. The Appellate Court felt that Washington’s civil case was barred because plaintiff was technically at work when he was injured on the employer’s premises.  The court noted that the road he was on was not used by the public.  The Court also held that the civil case should be dismissed without prejudice pending a decision in the Division of Workers’ Compensation on the issue of compensability.  It is noteworthy that the Appellate Division in this case deferred to the Division of Workers’ Compensation for the final say on the application of the premises rule, predicting that the Division of Workers’ Compensation would be in agreement.  That has not been the trend in recent cases where the Superior Court has been faced with workers’ compensation compensability decisions, making their own final determination.

This case can be found at Washington v. Runnells Operating, LLC, A-3996-16T2 (App. Div. July 25, 2018).  It illustrates an important point in workers’ compensation.  The premises rule is a strict rule.  When one is on the premises to work, workers’ compensation laws apply.  It does not matter that one may be returning from lunch or returning from an off-premises shopping errand: the mere presence on the premises to renew work is enough to bring the worker within the protection of workers’ compensation.  In this case Washington fought hard to be outside workers’ compensation because the potential for damages is often far greater in the civil courts than in workers’ compensation.

Thanks to our friend, Ron Siegel, Esq. for bringing this interesting case to our attention.

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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. 

New Jersey has a sensible provision that protects employees of subcontractors who are injured on construction jobs.  If an employee of a subcontractor is injured on a job, and the subcontractor has no workers’ compensation insurance, the injured employee becomes covered by the general contractor’s workers’ compensation policy.  But what if the injured employee instead decides to file a civil suit against the general contractor for negligence?  Does the general contractor’s liability insurance policy cover the civil suit? Can the injured employee sue the general contractor and obtain workers’ compensation from the general contractor?

These questions were answered in DaSilva v. JDDM Enterprises, LLC, David Cohen, t/a JDDM Custom Construction, A-3302-16T2 (July 27, 2018).  The case involved an injury to Mr. DaSilva.  He was working for Hand Brothers on a construction job.  Hand Brothers was a subcontractor of JDDM, the general contractor.  DaSilva fell one story through a cut-out stairwell on the job and suffered injuries.  Hand Brothers had allegedly presented a fake certificate of insurance to JDDM and actually had no compensation coverage.

DaSilva sued JDDM and its principal, David Cohen, seeking damages in a civil action.  JDDM referred the suit to Utica Insurance, its liability carrier.  Utica declined coverage because its policy excluded workers’ compensation injuries.  JDDM and Cohen then filed a third-party declaratory judgment action against Utica, seeking an injunction to compel Utica to defend NJJD and Cohen in the civil action.  Utica then moved for summary judgement arguing that the declaratory judgment suit must be dismissed as Mr. DaSilva’s injuries arose from work. Utica further contended that DaSilva was covered by JDDM under N.J.S.A. 34:15-79 because JDDM was the general contractor.

The trial judge granted summary judgment in favor of Utica.  JDDM and Cohen settled the civil claim with DaSilva and then appealed the decision to let Utica out of the case.  The Appellate Division reviewed the language contained in Section 79.  “Under this provision, a contractor who retains a subcontractor becomes liable for workers’ compensation benefits owed to the subcontractor’s employees if the subcontractor does not provide workers’ compensation insurance.”

The Appellate Division also took note of the fact that JDDM’s workers’ compensation carrier in fact admitted liability under Section 79 to DaSilva. The Appellate Division ruled that Utica’s policy excluding coverage for benefits that are provided or are required to be provided under workers’ compensation was valid.  Since JDDM was required to provide workers’ compensation coverage under Section 79, Utica was well within its rights to deny coverage on the civil suit.

What about the right of DaSilva to sue the general contractor while at the same time asserting coverage for workers’ compensation against the general contractor under Section 79?  Does the exclusive remedy provision apply barring his civil law suit?  The Appellate Division commented as follows: “Because general contractors are not part of an employment contract between a subcontractor and its employees, they are ‘not required to provide workers’ compensation coverage, and do not enjoy the immediate employer’s immunity from tort liability,” citing to Eger v. E. I. du Pont de Nemours Co., 110 N.J. 133, 137 (1988).

So the Court was saying that DaSilva’s civil law suit against the general contractor was not barred under the exclusive remedy provision. That may seem unfair to the general contractor.  However, Section 79 does allow the general contractor to full reimbursement from the subcontractor which failed to carry insurance.  In addition, there would be subrogation issues here under Section 40.  DaSilva had a double recovery here.  He settled his civil suit against the general contractor and obtained workers’ compensation benefits from the general contractor by virtue of Section 79.  Therefore, the worker’s compensation carrier would be entitled to assert subrogation rights and thereby reduce its obligation to DaSilva.

Thanks to our friend Ron Siegel, Esq. for bringing this case to our attention.

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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. 

Lynda Ferrari was injured at work falling down steps in April 2006.  She sought treatment for her right knee and lower back.  Dr. Joan O’Shea performed authorized surgery to address Ferrari’s right-sided herniated discs at L4-5 and L5-S1.  Ferrari experienced increased pain following surgery.  She saw multiple physicians after the surgery, seeking relief for her increased pain.

Ferrari filed a medical malpractice law suit on September 29, 2014 against Dr. O’Shea and Virtua Hospital.  The doctor filed an answer in January 2015 asserting that the law suit was barred by the statute of limitations.  Defendant relied on the employer’s IME in the workers’ compensation case performed by Dr. Anton Kemps in 2009.  In that report, Dr. Kemps opined that Ferrari developed arachnoiditis as a result of the surgery.  He provided an estimate of 5% permanent partial disability.  Defendant argued that more than two years expired from the date of Dr. Kemps’ 2009 report and the filing of the civil law suit.  The trial court ruled in favor of defendant and dismissed the case.

Ferrari appealed and argued that the two year limitations period should not have begun to run in 2009.  Both parties agreed that a medical malpractice case must be filed within two years of the accrual date, but New Jersey law makes clear that the cause of action does not accrue until the injured party discovers that he or she has an actionable claim.  Ferrari argued that the 2009 report from Dr. Kemps did not alert her that the surgery was a failure or that Dr. O’Shea may have committed malpractice.  It just said she developed arachnoiditis.

Ferrari maintained that she had no knowledge of potential malpractice until Dr. Kemps wrote another report in September 28, 2012.  In that second report, Dr. Kemps said that there was no indication that Ferrari “had any material placed within her disc spaces to replace the removed disc.”  He added that a review of the operative report did not show that any stabilization device was inserted to replace the removed disc.  There was also some evidence from a 2013 report of Dr. O’Shea that Ferrari experienced an additional herniation at the site of the operation at L4-5.

The Appellate Division disagreed with the trial judge.  “However, we agree with plaintiff that Dr. Kemps’ September 28, 2012 report was the first concrete information she received suggesting that Dr. O’Shea made a mistake in performing the surgery.  None of the other information defendant cites was reasonably likely to inform either plaintiff or her workers’ compensation attorney that Dr. O’Shea had done anything wrong.”  The Court added, “Until Dr. Kemps’ September 28, 2012 report, none of the doctors suggested that Dr. O’Shea was at fault.”

Based on this analysis, the Appellate Division reversed the dismissal of the civil law suit.  This does not mean that the Court found any evidence of medical malpractice:  it only means that Ferrari will have a chance to prove her medical malpractice case.

The case is interesting because it shows how an IME in a workers’ compensation case for permanency purposes can sometimes create the basis for a medical malpractice claim and indeed start the clock running on the injured worker’s potential civil law suit.  This is one compelling reason why parties need to read IME reports in workers’ compensation very closely.  Sometimes the tendency is to just focus on the overall percentage of disability and potential credits.  But both counsel have to pay close attention to discussions about the effectiveness of surgery.  In this case, the Appellate Division specifically noted that Ferrari’s workers’ compensation attorney would not have been alerted to potential malpractice until he read the September 2012 report.  Moreover, respondent’s lien rights depended on the revival of the medical malpractice law suit, so defense counsel must also be vigilant.  The case underscores why it often does not make sense for workers’ compensation counsel to hold onto IMEs until they get to court at a pretrial hearing.  A report such as this should be sent immediately to opposing counsel, since the Appellate Division in this case concluded that the cause of action accrued the very date of the September 28, 2012 report of Dr. Kemps.

This case can be found at Ferrari v. Joan F. O’Shea, M.D. A-3289-16T2 (App. Div. July 13 2018). We thank our friend Ron Siegel, Esq. for bringing this case to our attention.

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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. 

Victor Campos worked for the Department of Public Works for the City of Passaic.  On December 23, 2013, he was performing maintenance work at City Hall when he began to feel ill.  He made the decision to go home early, but first he had to notify his employer that he was finished for the day and complete paperwork for his supervisor to sign.  On the way back to the DPW office, a car driven by a co-employee, Miguel Cruz, a police officer in the City, ran a red light and collided with Campos’ car.

Campos sued Cruz for his personal injuries, and he also brought a workers’ compensation claim against the City, which he settled on a Section 20 basis. Counsel for the City and Cruz in the civil action argued that the civil suit was barred because Campos was in the course of his employment when the action took place and he was injured by a fellow employee of the City.  The Superior Court dismissed the civil suit as barred under N.J.S.A. 34:15-8.  That provision prevents civil suits against fellow employees.

On appeal Campos argued that he was just returning to the DPW office for personal reasons: namely to fill out paperwork so he could go home.  He argued that his day was done when he finished working at City Hall.  The Appellate Division disagreed and noted that Campos left the City Hall location to submit required paperwork in order to take off a half-day.  Only after completing paperwork would he be permitted to go home.  The Court concluded that Campos was therefore performing duties “assigned or directed by the employer” at the time of the accident.

That plaintiff was not physically at his workplace when the accident occurred is thus of no moment.  Indeed, as a DPW worker, plaintiff could have been working in any part of the City when he was involved in the accident.

The Court held that part of Campos’s job was to complete paperwork to take off the rest of the day. “The City had a policy requiring him to fill out paperwork prior to going home for the day.  Plaintiff was complying with that policy as directed by his employer.”

Campos also tried to argue that a Section 20 settlement does not bar his damages claim against his employer and co-employee.  The Court gave some interesting analysis on this issue, citing Sperling v. Bd. of Review, 301 N.J. Super. 1, 5 (App. Div. 1997).  “Receipt of a lump sum settlement under N.J.S.A. 34:15-20 constitutes an implied acknowledgement that the claimant’s disability was work-related and compensable under the Workers’ Compensation Act.”  The Court stated:

Having recovered a workers’ compensation award for his injuries, plaintiff now seeks to pursue a negligence claim for damages involving the same accident and resultant injuries.  Because plaintiff’s present claims are prohibited by both statute and common law, the trial court did not err in finding that plaintiff’s receipt of workers’ compensation benefits bars any further recovery at law.

The facts are certainly unusual here, but the reasoning of the Court is sound:  petitioner was driving from one city location to his office at the DRW office to fill out paperwork before he could leave work.  Therefore he was still in the course of his employment.  Plaintiff probably thought the settlement on a Section 20 would keep his potential civil suit alive but the Court treated the Section 20 payment as an admission that the car accident was compensable. The more important point was that an employee cannot sue a co-employee when they are both engaged in work activities.  This case can be found at Campos v. Cruz and the City of Passaic, A-3825-16T2 (App. Div. July 12, 2018).

Thanks to our friend Ron Siegel, Esq. for bringing this case to our attention.

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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. 

Dennis Lomet worked for Lawes Coal Company from 1987 to 2012 when he died of lung cancer at the age of 47.  He installed, removed, or repaired heating and air conditioning equipment.  He never smoked cigarettes.  Before he died, he told one of his treating physicians that he thought he had been exposed to chemicals, soot and asbestos in the course of his employment.  One of his friends testified at trial that he believed he and the decedent were exposed to asbestos during the period from 1987 to 1992.

Mr. Lomet’s widow, Michelle Lomet, testified that her husband would be so dirty when he returned home from work that he would need to take two showers.  When he would blow his nose, there was black material on the tissues.

Petitioner’s expert, Dr. William Lerner, did not give strong testimony regarding exposure to asbestos.  He seemed to assume there was exposure to asbestos:  “In somebody who is exposed to chemicals like that and asbestos with no other smoking history and no other known cause for his lung cancer, a reasonable probability of these carcinogens causing Dennis’s lung cancer. . . is not unreasonable as a conclusion.”

Respondent’s expert, Dr. Jack Goldberg, testified that there was no evidence of asbestos exposure in this case.  He said that if asbestos fibers enter the lung and cause cancer, plaques are visualized on radiographical films.  He said there were none in petitioner’s studies.  He also said that none of the pathological studies indicated exposure to asbestos.  Finally, he said that there were no radiological studies showing that the decedent’s cancer was caused by chemical exposure either.

The Judge of Compensation concluded that there was no objective medical evidence showing that asbestos exposure caused or contributed to the decedent’s lung cancer.  The Judge stated that this is “a case where there is zero medical evidence and 100% medical speculation.”

Petitioner appealed and argued that there was sufficient credible evidence in the record showing exposure to asbestos.  The Appellate Division affirmed the dismissal of petitioner’s dependency claim.  “We have examined the evidence, and concur with the judge of compensation’s finding there was no evidence of substance that causally links Dennis’s lung cancer to asbestos or other chemicals to which he may have been exposed while working for Lawes.”  The Court also said that there was also no evidence of the extent of any exposure, even if there was exposure.

The case is interesting in that it focused on the threshold issue in every asbestos-related pulmonary claim: namely proof of asbestos exposure.  The Court did not believe that statements by the decedent and co-worker that they thought they were exposed to asbestos was sufficient proof of exposure.  Rather, they insisted on objective evidence.  There was no proof of any asbestos remediation project and no showing of any asbestos products in the workplace.  By far the most damaging element of the case was that the radiographic studies showed no asbestos-related plaques in the decedent’s lungs.

The case can be found at Lomet v. Lawes Coal Company, A-1169-16T1 (App. Div. July 11, 2018).

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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. 

Patrick Malone began working for the Pennsauken Board of Education in 2007 as a custodian.  He said he would sweep floors, take out the trash, clean the blackboards and desktops, remove gum and shoe marks from floors, sometimes climb ladders, and clean toilets, floors and walls.  He also said in the summer he would remove furniture and filing cabinets and put them in the hallway so that classrooms could be cleaned.  He said he did a lot of kneeling, stooping, and squatting, but he never said how frequently he did any of these tasks.  He had been doing this work for many years with other employers.  By 2012 he began to experience constant pain in both knees and was diagnosed with osteoarthritis in both knees.  In 2012 and 2013 he had both knees replaced.

Malone filed an occupational claim petition against the Pennsauken Board of Education, alleging that his work duties aggravated his preexisting but asymptomatic osteoarthritis, requiring bilateral knee replacements.  The Board of Education, represented by Capehart Scatchard, denied the claim.

Petitioner produced Dr. Ralph Cataldo, an anesthesiologist, as his expert.  Dr. Cataldo said that he found objective findings consisting of surgical scars from the knee replacements and some swelling about both knees.  He said that in his opinion the work duties aggravated petitioner’s preexisting osteoarthritis because petitioner was asymptomatic in 2007 and was symptomatic after performing work duties.  He estimated 70% permanent partial disability in each leg.

Respondent produced Dr. Francis Meeteer, a family and occupational medicine physician, who testified that petitioner’s osteoarthritis condition was chronic, progressive and degenerative and due to the natural aging process, not to work.

The Judge of Compensation found Dr. Cataldo to be more credible.  She commented as follows:

[w]hen called upon to make findings neither the Court or medical experts should ignore commonly known facts to wit:  an extensive amount of bending, squatting, and lifting can cause increased discomfort in one’s knees.  The Court finds the testimony of Dr. Cataldo satisfies the burden of establishing a causal connection with probability that Petitioner’s injuries were aggravated by his occupational duties.

The judge awarded petitioner 55% permanent partial disability credit 20% for prior disability plus one year of temporary disability benefits for the year petitioner was out of work because of his knees.  The permanency award came to $109,214.  Petitioner returned to work for the Board of Education.

Respondent appealed and argued that Dr. Cataldo’s opinion was a net opinion, meaning that he never provided any medical basis for his opinion on causation.  The Court agreed, noting that there was minimal evidence in this case.  “First, there was no evidence concerning how often and to what extent Malone engaged in the various physical activities about which he testified to perform his job duties.  Simply to identify the tasks he performed and that they entailed “a lot” of kneeling, stooping, and squatting fails to impart any reliable information about how arduous and physically demanding Malone’s job actually was.”

The Court added that the medical evidence was also deficient. “Second, the only objective medical evidence Cataldo identified were the surgical scar and the swelling he found around each knee. Neither form of evidence indicates – and Cataldo did not explain – how Malone’s job duties aggravated the underlying osteoarthritic condition.”

The Appellate Division criticized the simplistic analysis on causation performed by Dr. Cataldo. “In the final analysis, the crux of Cataldo’s opinion is that, because Malone’s knees were asymptomatic before but became symptomatic after he began working for the Board, then his knee condition must have been caused by the tasks he performed for the Board.”  The Court said that the record is devoid of the necessary objective medical evidence to establish a causal connection between Malone’s bilateral knee condition and his work duties.

For these reasons, the Appellate Division reversed the award and ruled in favor of the Board of Education.  The Court did not remand the case for further findings.

This case is significant for practitioners and employers because it shows that the focus in occupational orthopedic claims, just like pulmonary claims, must be on medical or scientific evidence supporting or rejecting causation.  In an occupational claim, unlike a traumatic claim, the claimant must show not only that the condition arises from work and occurs during work, but also that the medical condition is produced by causes that are characteristic of or peculiar to work in a material degree.

In the end, Dr. Cataldo based his opinion on timing, not medical analysis.  It is clearly flawed reasoning to assume proof based on timing alone in an occupational disease claim.  His contention was that there was causation merely because petitioner became symptomatic after working with a preexisting osteoarthritic condition. It is the sort of logic that would support a causal connection between the rooster crowing and the rising of the sun. As Lora Northen, Esq. of Capehart Scatchard has often stated in seminars, that sort of logic would mean that sleeping causes carpal tunnel syndrome because the numbness and tingling usually happen at night.

Petitioner lost this case because there was absolutely no testimony at trial regarding any medical studies or literature showing that bending, stooping or squatting worsens preexisting osteoarthritis to the degree that knee replacements are needed. In fact, the Arthritis Foundation promotes an exercise program for those with osteoarthritis. The question is the degree of physical activity which is helpful or harmful. In this case, the record was silent on the extent and frequency of physical activity engaged in by the petitioner.

This case was expertly handled by Adam Segal, Esq. of Capehart Scatchard with assistance on the trial and appellate briefs by the undersigned. The case can be found at Malone v. Pennsauken Board of Education, A-3181-16T1, (App. Div. June 29, 2018).

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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.