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New Jersey employers like reopener claims about as much as homeowners like back-to-back blizzards. The general view is that employers have virtually no defenses and have to pay more with each reopener. The truth is that employers can win reopener cases where the petitioner’s expert cannot really prove the petitioner’s condition has worsened since the prior award. Garces v. Mid-State Lumber Corp, A-4199-15T4 (App. Div. April 10, 2018) provides a good example.
Petitioner suffered two compensable accidents on October 16, 2009 and December 11, 2009 leading to an order approving settlement for 66.67 percent partial permanent disability described as orthopedic and neurologic in nature for residuals of a herniated disc L3-4 and L4-5 status post lumbar laminectomy and fusion. Respondent received a credit of 27.5% for previous disability.
On June 15, 2013, some fifteen months after entry of the award of 66.67% petitioner filed to reopen his case. Petitioner testified in the reopener, and he produced two experts. Dr. Becan was petitioner’s orthopedic expert, and Dr. Peter Crain was petitioner’s psychiatric expert. The treating surgeon, Dr. Carl Giordano, saw petitioner and concluded petitioner needed no further treatment.
Dr. Becan saw petitioner twice, once in 2011 before the first award and again in 2014 for the reopener examination. He raised his estimate to 90% of partial total. On the reopener exam he wrote that petitioner’s disability had increased by 20% of partial total. When asked about the objective findings that supported the increase, he said petitioner “walked with a guarded and antalgic gait pattern,” “had a noticeable limp on the right,” and “was unable to heal or to walk on his right leg.” He also found “right-sided sacroiliac joint tenderness.” He noted restrictions when he put petitioner through various maneuvers like straight leg raising.
On cross examination, Dr. Becan conceded that many if not most of his restrictions were the same as they were in 2011. The two reports were compared, and it turned out that petitioner’s range of motion tests were actually better in 2014 than in 2011. Petitioner’s muscle strength testing of the quadriceps and hamstring was better. The right ankle jerk reflex had improved. Backward extension was the same, and straight leg raising improved.
The Judge of Compensation examined the two reports closely and concluded that Dr. Becan’s findings on the new 2014 examination were not worse at all. He further noted that while Dr. Becan said petitioner could not return to work, the doctor did not know what petitioner’s job duties were. The Judge concluded that Dr. Becan had simply offered a net opinion, which is an opinion not supported by any evidence. The Judge also noted that petitioner’s psychiatric expert, Dr. Crain, had done the same thing. He also failed to offer any objective evidence of worsening.
The Judge of Compensation dismissed petitioner’s reopener claim and petitioner appealed. The Appellate Division made short work of the appeal and commented that there was sufficient credible evidence to support the dismissal of petitioner’s case.
The case illustrates an important point. In valuing a reopener claim, practitioners often focus on the percentage increase that the expert for the claimant offers. But the better way to value a reopener case is to look beyond the mere estimate of increased disability and compare the pre- and post- award reports side by side. If the actual measurements, range of motion and findings are the same or better on reopener, it doesn’t matter that the claimant’s doctor raised his or her estimate. The percentage of increase in an IME means nothing if the actual test results appear to be the same. There are other ways to win reopeners as well, such as proving that a new non-work event or new employment has worsened the petitioner’s condition. All of these approaches do give respondents a fighting chance in defending reopeners.
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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.
Skilled practitioners know they must keep an eye on potential employment litigation stemming from workers’ compensation claims. The case of Dallefeld v. The Clubs at River City, Inc., 2017 AD Cases 244151 (D. Illinois 2017) provides a good illustration.
Jason Dallefeld was the Director of Membership Sales, providing tours, selling memberships, and making sure other employees showed up for work at The Clubs. He injured his right knee in 2009 at his previous job but continued to treat while working at The Clubs beginning in 2012. Dallefeld informed the business manager, Ms. Robinson, and the president, Mr. O’Connell, of his knee injury. He sometimes walked with a limp at his job. He told Robinson and O’Connell that he reinjured his knee on the job on four occasions in 2013 and 2014 at The Clubs. The incidents involved slips on water and climbing stairs. Dallefeld did not lose time from work immediately after these incidents.
On March 26, 2014, Dallefeld’s doctor placed him off duty. The physician said that Dallefeld aggravated his prior knee condition while working at The Clubs and would need surgery. On April 1, 2014, Dallefeld traveled to Florida with his girlfriend. Dallefeld’s doctor approved light duty work in May 2014 before a planned knee surgery. The light duty work issue was not resolved until June 2, 2014, when Dallefeld met with Robinson and O’Connell. Dallefeld claimed that O’Connell told him to go have his surgery. However, a termination letter had already been sent to Dallefeld on June 1, 2014. That was never mentioned in the meeting on June 2, 2014. O’Connell testified that the reason for the termination was that Dallefeld was never specific about when he was going to have his knee surgery and that Dallefeld’s job duties needed to be reassigned to two other employees at a busy time for The Clubs.
There was a dispute whether Dallefeld requested leave under the FMLA. At least one other employee had been given FMLA leave. Dallefeld claimed that he had never gotten a handbook, although he had been in meetings where the FMLA was discussed. He essentially argued that he provided enough information to The Clubs that they should have notified him of his rights under the FMLA.
Dallefeld sued under the FMLA and ADA. Regarding the FMLA, The Clubs argued that Dallefeld drove to Florida with his girlfriend during the period that his doctor took him out of work, and he continued to lift weights at The Clubs while out of work. The employer also noted that Dallefeld did not schedule the surgery that his doctor wanted to perform. However, the Court commented that driving and lifting weights did not prove that Dallefeld could give tours, which was one of the essential job functions. The Court also observed that O’Connell claimed that he did not receive the May 21, 2014 work status note from Dallefeld. That was an important issue of fact. Under these circumstance, the Court said that a sufficient amount of disputed fact existed regarding notice by Dallefeld to take FMLA leave to survive summary judgment.
The work status note from May 21, 2014 also became a big issue in the ADA claim. His doctor said in that note that Dallefeld was released to light work modified duty, and that he could not lift or carry more than 20 pounds and was limited to frequent lifting of ten pounds or less. His doctor said that Dallefeld could have worked within these restrictions if The Clubs had given him an accommodation of not walking around and doing tours. Dallefeld argued that this note was a request for accommodation. For his part, Dallefeld said that he could perform duties such as sitting at his desk, answering the phone and using the computer.
The Court concluded that a fact finder could find that Dallefeld’s May 21, 2014 note was in effect a request for reasonable accommodation. For this reason, the Court allowed Dallefeld to proceed to a jury on this issue and denied The Clubs’ motion for summary judgment.
The case shows how problematic it is to terminate employment soon after the employee provides a note suggesting imminent surgery or a need for modified duty. These facts should have alerted the employer to the potential for both FMLA and ADA application, and in the end the Court found potential violations of both laws.
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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.
At least once a week this practitioner gets a call from an employer or adjuster asking whether New Jersey has a defense to accidents where the employee is found to be heavily intoxicated or under the influence of illegal substances. The response is always the same: yes, there is technically a defense, but unfortunately the way the statute is written, it is almost impossible for an employer to prevail.
New Jersey is one of a few states in which the employer must prove that intoxication or the use of controlled dangerous substances is the sole cause of the injury. It is not enough for an employer to prove that intoxication is the main cause or a substantial cause: it must be the sole proximate cause. If any other factor is involved, the employer loses. In most states employers win if they can prove intoxication was a substantial or contributing cause. How weak is the New Jersey defense? There is really only one published case in the last 50 years in which an employer has won on the intoxication defense in New Jersey!
If the employee can show that some other factor besides intoxication contributed in some way to the injury – like bad weather, a slippery floor, exhaustion from working too hard – the employer’s defense fails. Frankly, it is almost impossible to exclude all other causes. That point was driven home by the New Jersey Supreme Court in Tlumac v. High Bridge Stone, 187 N.J. 567 (2006). At the end of the opinion the Supreme Court expressed its own frustration with the regrettable language contained in the New Jersey statute.
In Tlumac the employee’s wife admitted that her husband usually drank 10 beers every weekend. On the day of the accident, petitioner arose at 2:15 a.m. to begin his drive. He drove 30 miles south on Route 31 with 77,000 pounds of Belgian block in his truck and then blacked out. His tractor-trailer traveled 180 feet off the road, jumped the curb and traveled 66 feet on the shoulder, hit the guardrail and rubbed against it for 247 feet, struck a parked truck and then struck a utility pole. The officer on the scene noticed an odor of alcohol, and petitioner admitted to drinking the night before. An expert for the employer extrapolated that petitioner’s blood alcohol level was between .10 and .18 at the time of the accident, well above the legal limit.
The employer denied the claim based on intoxication being the sole cause of the accident. The Judge of Compensation, Appellate Division and the Supreme Court all ruled against the employer and in favor of the petitioner on compensability because the employer could not prove the sole cause defense. Other factors may have played a role in the accident, such as petitioner’s exhaustion from working too many hours in the days prior to the accident. He had worked over 200 hours in the prior two week period of time. He also testified to exhaustion from repairing the roof of his home the night before the accident. Justice Wallace, who wrote the decision, conceded that the New Jersey statute “may no longer comport with current policies at deterring the dangers of drinking and driving. Nevertheless, any change in that interpretation must come from the Legislature.”
Twelve years after the Tlumac decision, nothing has been done by the Legislature to address the situation that Justice Coleman addressed, namely deterring the dangers of drinking and driving. As hard as it is for employers to win on an intoxication defense, it is even harder for employers to win when illegal drugs are found in the employee’s system because it is scientifically impossible for an employer to pinpoint exactly when the illegal substances were used. Many drugs, like marijuana, remain in the system for days, if not weeks.
One must wonder what the social policy was that the Legislature was trying to promote many decades ago when the sole cause language was written into law. A cynic might conclude that the purpose was to sanction the practice of employees coming to work somewhat inebriated. The truth is that intoxicated employees not only risk injury to themselves but may also imperil the lives of others. Yet as of 2018 heavily intoxicated employees who are injured at work or those under the influence of illegal substances remain eligible for workers’ compensation, even if the use of alcohol or drugs was the major cause of the accident. The reason is that the major cause is not the same as the sole cause.
A change in the law to “substantial cause” instead of “sole cause” would benefit all New Jersey residents and would send the correct message that employees must keep alcohol and illegal substances out of the workplace. The present statute was written at a time when the two martini lunch was perhaps considered socially appropriate. But those days should be long gone.
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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.
The concept of reconstructing wages for permanency awards pertains to part-time workers with serious injuries. For example, consider an employee who works 20 hours per week earning $10 per hour. The employee has a serious injury that prevents the employee from earning the same amount of money or prevents the employee from working full-time in the future. The wage is $200 per week giving rise to a permanency rate of $140 per week. Assume that the award is 50% permanent partial disability payable over 300 weeks. Unreconstructed the award would amount to $42,000. (300 times $140). If the Judge were to reconstruct the wage to $400 per week (40 hours times $10 per week in a customary work week), the rate would be $280 per week with the award being $84,000. (300 weeks times $280). That reconstructed award to a 40-hour work week would be double the unreconstructed award.
As a reminder, the New Jersey rate chart that all practitioners have at their desks cannot be used for low wage employees. The front of the rate chart is for high wage earners (those subject to maximum rates due to high wages). If one were to pay based on a 2017 rate chart, the award would be 300 weeks or $179,400. That would be an overpayment of $137,400!
Remember also that the minimum for temporary disability benefits is much higher than the minimum for permanency benefits ($35). In 2017 the minimum rate was $239 for temporary disability benefits but the minimum for permanent partial disability benefits was $35 per week. That minimum rate has been $35 per week for many decades.
So when should a judge reconstruct an employee’s wages? The rule comes from Katsoris v. South Jersey Pub. Co., 131 N.J. 535 (1993). The Supreme Court said, “The critical inquiry is whether petitioner has demonstrated that her injuries, while disabling her from engaging in part-time employment, have disabled or will disable her with respect to her earning capacity in contemporary or future part-time employment.”
Let’s consider a few scenarios:
What happened to Ms. Katsoris? She had a part-time job delivering newspapers, which was the work that caused her serious injury. She was no longer able to do that part-time physical job on account of the work injury. However, she was able to return to her full-time secretarial job. The Appellate Division stated that the wage should be reconstructed, but the Supreme Court reversed and said it should not be reconstructed because petitioner did not prove an impairment of full-time earning capacity since she was able to resume her full-time secretarial job. So the focus must always be on whether there is a material impact on contemporary or future earning capacity.
Here’s the last point to remember about wage reconstruction. One does not always reconstruct to 40 hours per week. That is most common but it could be more or less hours, depending on what is a normal work week. The Supreme Court makes clear in the Katsoris case that the judge should determine the customary number of hours and the customary number of days constituting an ordinary work week before reconstructing. So if the normal work week is 50 hours per week, then the multiplier should be 50 instead of 40.
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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 all know the rules for coverage in New Jersey under the “premises rule,” the rule that replaced the former going-and-coming rule. N.J.S.A. 34:15-36 states that one is covered for workers’ compensation purposes when he or she arrives at a place of employment owned or controlled by the employer. That is easy enough, but what about employees who do not report to the normal place of business of the employer, such as a carpenter who drives to a housing development every morning in a company truck?
The statute has different rules for those workers who report to job sites and not the normal office locations that most of us report to daily. It says this: “… the employment of employee paid travel time by an employer for time spent traveling to and from a job site or of any employee who utilizes an employer authorized vehicle shall commence and terminate with the time spent traveling to and from a job site or the authorized operation of a vehicle on business authorized by the employer.” This sentence says two totally different things:
A. Employees who are paid travel time are covered traveling to and from a job site; this is the old portal-to-portal rule.
B. Employees who use an authorized vehicle may be covered when they are pursuing business authorized by the employer.
This is the only part of the statute in which the use of an employer authorized vehicle actually can turn the outcome of a case. Unfortunately, the statute does not explain what an employer authorized vehicle means. Clearly, it would cover a company car or business truck. But does it mean just a personal vehicle for which the employee gets reimbursed mileage? There is no answer to that question but the likely answer is probably not.
The more one focuses on this language regarding the use of an authorized vehicle, the more one realizes how broad this language is. It goes way beyond just those who are paid travel time. It suggests that travel time is not necessary at all for coverage when an employee is utilizing an employer authorized vehicle on business authorized by the employer and the drive is not to the office of the employer. What if the carpenter above drives to a Home Depot on a Saturday when he is not working to get sheetrock as requested by the supervisor? (Presumably this would be covered). Does it mean that the carpenter who drives to a job site in the morning from his or her home and does not receive paid travel time is covered portal-to-portal because the carpenter is using an employer authorized vehicle on business? The key words are “authorized vehicle on business authorized by the employer.” Again, there is no reported case on point.
Very few employees are actually paid travel time over and above their normal pay. But there are tens of thousands of New Jersey employees who use an authorized vehicle on business authorized by the employer. They often leave home in a company vehicle and report to a job site – and they may be able to argue successfully that they are then covered because they are using an authorized vehicle on business authorized by the employer. As noted above, there is no reported case on this issue.
The statute also says that an employee is covered when he or she is required by the employer to be away from the employer’s place of employment. This is known as the “special mission” exception. So if a defense lawyer is required to go to court by the law firm, the trip is covered because the employee is required to be away from the law firm, which is the employer’s place of employment. The question is this: is a job site considered the same as the employer’s place of employment if the employer does not have a regular office or place of business in New Jersey? Many companies do not have a regular place of employment in New Jersey. There are insurance companies which have no office in New Jersey; there are health care companies which have no office in New Jersey; there are sales companies with no office in New Jersey. Employees of these companies work from their home.
Suppose a health care company has a nurse’s aide who leaves her home and drives to the same patient’s home every day for months using her personal vehicle? The nurse’s aide has no office to report to in New Jersey and is not paid travel time. Is that drive covered for workers’ compensation purposes? Is the nurse’s aide engaged in routine travel to work (not covered) or is she covered because she is reporting to a job site? It would seem that the nurse’s aide will have a hard time arguing that her personal vehicle is an “employer authorized vehicle” if it is not a company car and if she is not paid travel time. The nurse’s aide will also have a hard time arguing that she is required to be away from her employer’s place of business if there is no regular office where she works. The “job site” is where she works every day. So the nurse’s aide may have to argue that her home is her place of employment. She may argue that since she is required to be away from her place of employment (her home), she should be covered on the ride to the patient’s home. This is an interesting situation, and it is more and more common as employees are encouraged to work from home. Unfortunately, the statute is not particularly helpful in providing an answer.
The author wishes to thank Stephen Fannon, Esq., and Judge Richard Hickey for their analysis of this interesting and little known provision of the statute. Any comments from readers are welcome.
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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.
I have written many times about the fact that success for employers in workers’ compensation most often comes down to past medical history and causation analysis. This is particularly true in a state like New Jersey where there is virtually no formal discovery allowed. Employers need to know in a back claim, for example, whether the injured worker has an extensive prior history of chiropractic treatment or car accidents. But what about the importance of reviewing treating notes of various doctors and therapists after the work accident? This is an underrated concept and deserves some consideration.
This practitioner had a case recently where the employee injured her knee at work and was diagnosed with a partial tear requiring no significant treatment. Conservative care ensued and the recovery seemed excellent. Then six months went by and the injured worker suddenly returned back to the authorized doctor stating that her knee had become much more painful. The treating doctor noted the significant worsening in the knee and mentioned that petitioner had seen her family doctor recently. The IME doctors put fairly high estimates on the knee, leading to a potential award of 20% of the leg with the potential for knee surgery on a reopener.
Our office sent a subpoena for the family doctor’s records with particular interest on the visit in the summer noted in the treating doctor’s report. That entry in the family doctor records stated, “Patient was doing some challenging rock climbing over the weekend and jumped from a height landing on her knee, causing intense pain and swelling.” That was the only reference to this new incident, and obviously this constituted a significant event. It accounted for the sudden visit to the treating doctor after six months of no treatment. This information changed the course of the case. It allowed respondent to avoid a significant order approving settlement with reopener rights. Instead the case settled for a nominal Section 20. But for the subsequent family doctor records, this employer would have paid ten times as much money, bought a likely reopener, and eventually a likely knee surgery with a higher award.
Defense counsel, adjusters and employers must scrutinize subsequent treatment records, PT notes, and tools like ISO reports. When an employee like the claimant above reinjures her knee, that new incident amounts to the same thing as a work accident – except it is a non-work event that breaks the chain of causation. If someone falls in a grocery store while shopping and reinjured his shoulder before the case is settled, that subsequent accident may be perhaps of equal significance to the original fall at work that injured the shoulder. The same is true of subsequent car accidents that cause significant treatment, new MRIs, and injections in a person who has already had a work-related back injury.
Subsequent non-work accidents are pivotal in many workers’ compensation case. These accidents often relieve the employer of paying an expensive order approving settlement with reopener rights. The reason is simple: injured workers receive permanent disability benefits for their “current complaints” at the time of settlement. The current complaints incorporate the complaints from the subsequent non-work accident. Employees are not entitled to receive permanency awards for their condition before the subsequent non-work event. Think about it: if a non-work accident has objectively worsened the medical condition originally injured in the work accident, it is impossible to distinguish the effects of the medical condition before the subsequent non-work injury from the effects after the subsequent injury. The employee might have healed if it were not for the subsequent non-work injury. The testimony at settlement regarding present complaints will by definition be closer in time to the events of the non-work accident. For the petitioner to prove that the present complaints are unaffected by the subsequent accident is impossible if the non-work subsequent accident worsened the medical conditions from the work accident. It would be like putting additional ingredients in a basic smoothie, drinking the smoothie for the first time, and then trying to describe what the drink would have tasted like before the ingredients were added.
Practitioners should read PT notes religiously. They often contain amazingly important nuggets of information about non-work activities. Most physical and occupational therapists are prolific note takers. They know how important it is to get the interim medical history, and they write it down. How many times have counsel read PT notes and discovered that the injured worker is complaining of a new injury playing sports over the weekend? That new injury may explain a sudden change in condition and break the chain of causation. It may lead to a Section 20 that otherwise would not have occurred. Nor should the practitioner assume that the IME doctor is going to read the treating notes thus relieving the obligation of defense counsel and adjusters to read them.
Just as prior family doctor and chiropractic records often hold the key to the defense of a workers’ compensation case, so too subsequent treating notes may dramatically lower the defense exposure and lead to enormous savings for employers.
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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.
Brian Sims suffered a terrible injury working for Express Scripts, Inc. (hereinafter ESI) on August 24, 2015 when his hand was caught in an industrial machine, leading to the amputation of his left hand and wrist. He brought a civil law suit against his employer alleging willful and intentional conduct. Express Scripts moved to dismiss the complaint as barred by the exclusive remedy rule in the Division of Workers’ Compensation.
In evaluating the motion to dismiss the complaint, the Court noted that plaintiff did allege that the conduct of defendants was intentional by altering or removing safety features or permitting the non-existence of safety features. The Court said, “Plaintiff makes only conclusory statements that ESI acted ‘knowing with substantial certainty’ that injury would result from its actions; he alleges no facts or circumstances to support that claim. . . “ The Court added that plaintiff failed to indicate what specific safety features were missing, who altered or removed them, and how these safety features might have prevented Plaintiff’s injury. The Court said, “Plaintiff’s mere recital of a requirement of the ‘intentional wrong’ exception cannot survive ESI’s motion to dismiss.”
The Court said it was not enough to just allege that a safety guard was missing: “Here, Plaintiff has not identified what specific safety device was allegedly removed or altered and for what reason, nor that ESI was ‘substantially certain’ that injury to its workers would occur as a result of such conduct.” The Court noted that removal of a safety device standing alone does not equate to “intentional wrong.”
The Court granted ESI’s motion to dismiss without prejudice, allowing plaintiff one more opportunity to provide a factual basis for the alleged intentional harm allegations.
This case underscores a strong theme in New Jersey case law, namely that it remains extremely difficult to surmount the exclusive remedy hurdle in this state. It is not enough to file a complaint that provides the magic words regarding substantial certainty to cause injury. One must provide factual support for the allegations or risk having the case dismissed.
This case can be found at Sims v. VC999 Packaging Sys., D. N.J. (January 24, 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.
Scott Jeannette was an employee of General Mills Progresso. He went into cardiac arrest at work on June 7, 2011 and died nine days later from complications. He left a wife, Nacole, and a four-year-old son, Chase. Nacole filed a dependency claim petition over six months past the two-year statutory filing deadline. General Mills Progresso denied the claim as time barred. The Judge of Compensation denied both the widow’s claim and her son’s claim as time barred, leading to an appeal.
Ms. Jeannette argued on appeal that she experienced a period of temporary incapacity, which should excuse her failure to file in a timely fashion. As to her son, she argued that his claim should be tolled due to his infancy.
The Appellate Division considered the main argument of Ms. Jeannette, which was that a decision by the Supreme Court in a non-workers’ compensation context mandated a more liberal interpretation of the workers’ compensation statute, as it reads, N.J.S.A. 34:15-51 requires claimants to file their petitions in workers’ compensation within two years of the date of the accident. The statute also provides that “proceedings on behalf of an infant shall be instituted and prosecuted by a guardian, guardian ad litem, or next friend.” The statute goes on to provide that any claims not filed within the two-year period are forever barred.
Counsel for Ms. Jeannette argued that the case of Lafage v. Jani, 166 N.J. 412 (2001) should apply to workers’ compensation. In that case the Supreme Court of New Jersey allowed surviving children to bring a claim under the Wrongful Death Act, N.J.S.A.2A:31-1 to -6, for a parent’s death even after the statute of limitations period had expired. The Appellate Division rejected the argument that this wrongful death statute applied to workers’ compensation cases:
While we acknowledge the Court’s directive to apply statutes of limitations flexibly, we cannot ‘rewrite a plainly-written enactment of the Legislature or presume that the Legislature intended something other than that expressed by way of the statute’s plain language.’
(citations omitted). The Court reasoned, “Here, the Legislature did not include a tolling provision for minors in the workers’ compensation statute, and we do not presume the omission was a legislative oversight.” The Court noted that the Legislature must have considered the rights of minors because they did provide for guardians to represent minors in workers’ compensation.
In essence, the Court relied on the clear reading of the workers’ compensation statute and acknowledged that workers’ compensation is a creature of statute. It will be interesting to see if the widow seeks certification from the Supreme Court on this issue. The case can be found at Jeannette v. General Mills Progresso, A-5417-15T2 (App. Div. February 6, 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.
“If you require it, you buy it.” So said the Honorable Ray A. Farrington, former Supervising Judge of Compensation in Hackensack in reference to situations where an employer required an employee to perform a task that would otherwise be clearly not work related. The concept of compulsion is an important one to understand in the law. This concept must be contrasted with mere permission granted by an employer to perform some task or activity.
One of the best examples of compulsion comes from McCarthy v. Quest Intern. Co.,285 N.J. Super. 469 (App. Div. 1995), certif. denied, 134 N.J. 518 (1996). In that case the petitioner was a bookkeeper for Quest International Corporation. Her company purchased Unilever and scheduled a joint company picnic, sending out a memorandum stating that attendance was required. The purpose of the picnic was to help employees in both companies get to know one another.
Ms. McCarthy advised the head of personnel that she did not wish to attend. She was told that a salary deduction could be taken in that case. She was also advised that she should set an example for other employees and attend. The president of the company encouraged employees to socialize with other employees.
Based on this advice, McCarthy attended the joint company picnic. Once there she was asked by the president if she was going to participate in the tug-of-war. McCarthy took this as a mandate and then injured herself during the activity. She filed a workers’ compensation claim and won. Her employer appealed to the Appellate Division, arguing that McCarthy was just engaging in a recreational activity whose purpose was nothing more than promoting morale. The Appellate Division agreed with the Judge of Compensation that the injury was compensable, relying on reasoning of Professor Arthur Larson for the principle that an employer has the power to enlarge one’s job duties by assigning tasks outside the usual scope of employment. By directing the petitioner to perform these duties, the employer in effect bought the injury.
Years later the New Jersey Supreme Court expanded on this principle in Lozano v. Frank DeLuca Const., 178 N.J. 513 (2004). In that case the petitioner, Mr. Lozano, was a skilled mason who could not drive. After a long day of work on a large private property, the owner of the property asked Mr. Deluca, who was Mr. Lozano’s boss, if he wanted to take a ride with him on his large go-cart track. Mr. DeLuca and the owner drove around the go-cart track. Then Mr. DeLuca asked Mr. Lozano if he wanted to take a ride. Mr. Lozano declined because he could not drive. Mr. DeLuca repeated that Mr. Lozano should get in the go-cart and take it for a drive. At this point Mr. Lozano got into the cart, and he proceeded to seriously injure himself by driving into a parked truck. The Supreme Court said “that when an employer compels an employee to participate in an activity that ordinarily would be considered recreational or social in nature, the employer thereby renders that activity a work-related task as a matter of law.”
This principle make sense, but what if the employer is aware of the activity taking place and allows it, and the permitted activity leads to injury? Is that compensable? The Supreme Court said no in Jumpp v. City of Ventnor, 177 N.J. 470 (2003). In that case the petitioner was a pumping station operator who drove around the city inspecting stations. He would pass the town post-office during his drives from one station to the next. He asked the city administrator for permission to pull off the main road and get his personal mail during his route. The city administrator gave him that permission. While walking in the post office parking lot, petitioner fell and fractured his pelvis.
Mr. Jumpp argued that he had permission to make a slight deviation from his route to get his mail. The Supreme Court acknowledged that petitioner had permission to do what he did but felt that this activity constituted a major deviation from work. It said it made no difference whether the employer allowed the activity to take place: the act of getting one’s personal mail constituted a major deviation from work. Permission was not the same as direction.
So too in Sarzillo v. Turner Const. Co., 101 N.J. 114 (1985), a petitioner had permission to play a paddle ball game every day on the construction site during breaks. Mr. Sarzillo was injured while playing the game. The Court said that permission did not change the fact that the activity promoted nothing more than morale. Under N.J.S.A. 34:15-7, activities whose primary purpose is to promote morale or health are not compensable.
Employers must be careful to consider whether they have directed or required an activity or whether they have merely permitted something to occur. If an employer does not want to expand the job duties, the employer should make it clear in memoranda that the activity – whether it is a holiday party, picnic or bowling night — is not required.
This lesson emerged in Rose v. Joey Sinopoli’s Haircutters, No. A-0049-05T1 (App. Div. August 14, 2006), certif. denied, 189 N.J. 426 (2007). The petitioner suffered a serious injury leaving a coffee shop on the way to work. She always stopped to purchase coffee for co-employees and understood that this was part of her job. She was reimbursed for the cost. Her employer testified that if she did not do this, someone else would have had to do so. Again, the decision makes sense because the employee felt a sense of compulsion and employer direction in purchasing coffee each morning. Had the employer not made this a requirement, the injury would not have been held compensable.
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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.
In the past few years there has been a rise in the number of cases where injured workers have been loaned money in advance of their workers’ compensation settlements by private pre-settlement companies. This practice is more common in other states like Pennsylvania, but it is now creeping into New Jersey. Companies which make private advances or loans to injured workers then attempt to appear at settlement and seek judicial enforcement of the amount due their company by placing their company’s loan on the settlement sheet. In that way, the lending company can obtain a court order for direct payment by the employer, carrier or third party administrator.
In our office’s opinion, this recognition on the order approving settlement is improper. We believe that pre-settlement companies have no right to be listed as an expense or payee on a court order, whether on a Section 20 or an Order Approving Settlement. One of my partners has a case now involving a Pennsylvania resident injured in New Jersey who was advanced a large sum of money by a pre-settlement company unknown to any party other than petitioner and his attorney. The claim petition was filed in New Jersey, and the parties have reached a substantial settlement on an order approving settlement under Section 22 (petitioner retains reopener rights). The lawyer for the pre-settlement company appeared in court, asking the Judge of Compensation to include the loan as an expense to be paid by respondent on the order approving settlement. We opposed this request.
N.J.S.A. 34:15-29 states, “Claims or payments due under this Chapter shall not be assignable, and shall be exempt for all claims of creditors from levy, execution or attachments.” Child support liens and TDB liens are recognized as valid obligations in New Jersey. Medical providers by statute also have a right to file a claim for reimbursement in New Jersey. However, there is nothing in the statute or the rules of the Division that permit pre-settlement companies from appearing in court as a represented party to protect their loans or seek enforcement from a Judge of Compensation.
The Division of Workers’ Compensation has an interest in preventing such companies from expanding in New Jersey. These companies do not make such loans out of charity: they do so for reasons of financial gain at the expense of the injured worker. One could argue that the whole practice of advancing a settlement with an injured worker in exchange for subsequent repayment violates the New Jersey Workers’ Compensation Act because under our law, only a Judge of Compensation can approve a settlement. These are in essence private partial settlements between a lending company and petitioner as to future rights of compensation. They really constitute an end around the statute.
Another argument against placing a loan on an OAS is that it contravenes the rules against commutations. An employer cannot make a commutation in New Jersey without filing a motion and obtaining court permission. Paying a lending company in advance on unaccrued monies would be an illegal commutation without a motion for a commutation being first filed by the petitioner. In New Jersey, most settlement are under Section 22. Payments are made in weekly amounts, sometimes over several years, with claimants retaining reopener rights. Pre-settlement lending companies have no right to step in and alter the statutory rules of payment. Settlements in Pennsylvania and many other states involve lump sums, often rather large, but that is not how most settlements in New Jersey resolve.
Our office takes the view that all payments go to the petitioner under the Order Approving Settlement or Section 20 order. This is prescribed under N.J.S.A. 34:15-64. The pre-settlement company has its contract with the petitioner and the petitioner only, and it must negotiate its terms of repayment directly with the petitioner without involving employers, carriers, third party administrators or Judges of Compensation.
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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.