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There is a cardinal rule in workers’ compensation trials that employers and defense counsel must follow: never try a case on reports unless the exposure is minimal. To put it another way, where the exposure is significant, the employer must bring in a medical witness for testimony and cross examine the petitioner’s expert. The employer in Roy v. Marsden & Sons Electric, A-1324-15T1 (App. Div. August 9, 2017) violated that rule by trying the case on medical reports alone and paid the price.
The case involved a reopener of an award of 22.5% permanent partial disability or $31,518. The initial award for an accident on July 26, 2011 was described as being “for orthopedic and neurologic residuals of the lumbar spine for a compression fracture at L1 and L2 and for a bulging disc at L5-S1.” The reopener was timely filed, and petitioner saw Dr. John Gaffney for petitioner and Dr. Francis Meeteer for respondent for reevaluations.
Dr. Gaffney noted in his reexam that petitioner had difficulty transferring positions from a supine to sitting to standing position due to spinal pain. He found spasm and tenderness in the lumbar areas of the spine. He also found sensory deficit with pinprick into the bilateral extremities. He raised his estimate by 45% for residuals of a compression fracture of the superior endplate of L1, and compression fracture of the superior endplate of L2; new progressive lumbar disc injury with bulging discs at L3-4 and L4-L5, and a disc osteophyte complex at L5-S1; persistent and progressive lumbar radiculopathy; lumbar fibromyositis syndrome; and chronic pain in the lumbar spine.” He related all of these findings to the original accident in 2011.
Dr. Meeteer for respondent had not seen petitioner originally. There is no explanation in the appellate division decision on why respondent chose not to use the original physician. Usually respondents return to the same physician on reopener exams. Dr. Meeteer found no spasm, no tenderness, and clinical tests were generally negative. In other words, the two experts had completely different findings. Dr. Meeteer estimated five percent permanent partial disability for a compression fracture at L1 and L5 and disc bulging of the low back.
Petitioner said at the initial 2012 hearing that he experienced a severe, stabbing pain in his back that radiated down to both feet lasting an hour. In the reopener hearing in 2015 he said that the radicular pain was there constantly. In 2012 the pain would awaken him from a night’s sleep occasionally. By 2015 the pain woke him two or three times each night. In 2012 he could walk three miles and lift objects up to 30 to 40 pounds. In his 2015 testimony he could no longer walk long distances due to fear that he might not be able to walk back. He said he used a long shoe horn to put his shoes on because he could no longer bend down to do so. He seldom lifted objects weighing more than a grocery bag.
Petitioner did have treatment after the initial award. Dr. Joseph Zerbo prescribed a course of physical therapy and a work hardening program as well as an FCE which noted that petitioner could return to full-time work. He underwent an MRI on January 8, 2015 which revealed “internal disc derangement at L4-5 and L5-S1 producing discogenic syndrome.” Dr. Zerbo noted that the compression fractures had healed satisfactorily. He recommended a lumbar fusion surgery which petitioner declined.
The Judge of Compensation explained that both counsel had agreed to allow her to decide the case by submitting medical reports without live testimony from any physicians or experts. She noted that the sole issue before her was whether there was an increase in petitioner’s previous award and if so, in what degree. She also noted that petitioner was in obvious distress. She also observed that Dr. Gaffney saw petitioner in 2012 and that Dr. Meeteer had not seen him previously. She found Dr. Gaffney to be more credible partly because he had seen petitioner twice. She further noted that petitioner had seen Dr. Joseph Zerbo after the initial award for treatment. The Judge of Compensation awarded petitioner another 20% for a total of 42.5% or an increase from $31,518 to $121,125 or approximately $89,607 in new money, almost four times the amount of the prior award.
Respondent appealed and argued principally that there were new findings on the MRI in 2015 that were not causally related to the original accident and that there was no credible medical evidence linking these findings to the original accident. Respondent also argued that there was no support for an increase of 20%. The Appellate Division flatly rejected these arguments precisely because respondent agreed to try the case on reports:
. . . Respondent is critical of petitioner’s expert’s reports because the reports’ explanations concerning the extent of petitioner’s increased disability and the causal relation of that increase to the original accident does not contain sufficient elaboration. Yet, by agreeing to present the medical evidence in reports rather than by experts’ testimony, respondent now criticizes the JOC for doing precisely what the parties tasked her with doing; namely, reviewing the documentary evidence as a whole and determining the credibility of conflicting reports based on all the documentary evidence as well as petitioner’s testimony. That is precisely what the JOC did, and her findings are amply supported by the documentary evidence and petitioner’s testimony.
In short, the Appellate Division said that if you say you waive live testimony from the experts, you cannot effectively argue causation issues at trial or on appeal. You are limited to arguing whether there is evidence supporting additional disability. You need expert testimony to assist the trier of fact when it comes to causation issues. Judges are not doctors and cannot decide from paper evidence which findings are work related without live testimony on which to base their conclusion. That has always been the rule. It may cost one or two thousand dollars to produce a medical expert, but the benefit far outweighs the cost in almost every case. In this case respondent apparently had some legitimate arguments to make on causation but failed to bring in the experts to make those arguments.
Here the potential exposure was very high because the prior award was not far from the 30% level where awards become much more expensive in New Jersey. It turned out that the reopener award amounted to nearly four times as much money as the original award. The case was unusual in that petitioner never had major surgery and was able to work full time but obtained an award of 42.5%. The lesson is clear: if a case is worth trying, it is worth bringing in the medical experts to testify.
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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.
Permanency awards in the New Jersey Division of Workers’ Compensation can amount to very significant dollars. An award of 40% partial permanent disability at 2017 rates amounts to $114,720 – tax free. Furthermore, the case can be reopened within two years from the last date of payment for further permanency benefits. If the employee reopens the case and obtains another 10% hiking the 40% award to 50%, the employee will collect an additional $64,680, again tax free. Usually the employee in New Jersey is back doing the same job but is eligible for a substantial permanency award because New Jersey (unlike Pennsylvania and New York) is not a state where proof of lost wages or earning capacity is required for permanency benefits. Rather, it is a loss of physical function state.
Many clients have asked what kind of evidence and testimony does a Judge of Compensation focus on to decide the appropriate percentage of disability. The answer is two-fold: first the judge will review the objective medical studies, i.e., MRI, CT scan, EMG, surgery records along with the medical IMEs from the opposing experts. Next, the judge will focus on the testimony of the claimant in court regarding the effect of the accident on his or her non-work activities or work activities. The claimant needs both to get an award. Assuming that the employee is back to work doing the very same job, the focus will exclusively be on the non-work activities that the employee can or cannot do.
So this is where employers can help themselves immensely. Consider that the testimony of the claimant in court may be that the employee can no longer play basketball, or go to the gym, or garden in a crouched position due to back pain even after surgery has occurred. Those are significant complaints to most judges. They are given at the time of settlement. Defense lawyers and adjusters do not know if these complaints are accurate. Suppose, however, the employer is well aware that the employee is still playing basketball and going to the gym, and suppose the employer has communicated that valuable information to the carrier/TPA and defense counsel? That information becomes crucial on cross examination of the petitioner by defense counsel. It raises issues of credibility and sharply reduces the value of the case because an award of permanent disability must be supported by proof of a material impact on work or non-work activities. Without that, no award can be entered.
Now consider an even greater service that employers can provide for themselves which will lead to enormous savings. As I have already indicated, there must be testimony by the claimant about proof of a material impact on non-work activities – or in rare cases, work activities. The comparison is between the employee’s level of activity before the accident and the level of activity at the time of the settlement. The logic is the employee gets paid money because he or she used to be able to enjoy many things in life, and do many things, that he or she cannot do as a result of the accident. But how can employers establish the level of activity before the accident? If that could be established, wouldn’t it make a huge difference in cases? Yes it would, and it is easy to establish the level of activity before an accident.
Here’s the answer: employers can establish the pre-accident level of activity by use of an employee accident form, signed and filled out entirely by the employee, which asks the employee, among other questions, what recreational or social activities the employee has engaged in during the past few years. The form is also used to ask how the accident occurred, whether there were witnesses and other pertinent information. This form costs nothing at all but can save untold amounts of money for employers in negotiations and at settlement.
Suppose Claimant James Smith has a back injury on January 1, 2016 and fills out an employee accident form right away. To the question about prior recreational and social activities, the claimant says “No sports at all. No gym activities. I only watch television.” At the time of settlement in August 2017, in order to support a substantial award, the employee testifies that he can no longer lift weights in the gym, play basketball or do mountain biking. Those are his three main complaints. The defense attorney, armed with the employee accident form, successfully cross examines the employee on his statement in the employee accident form filled out by the employee himself at the time of the injury! The lawyer enters that document into evidence to prove that this employee did not even play sports, did not belong to a gym, did not lift weights, and just watched TV by his own admission. Defense counsel has attacked the employee’s credibility and now withdraws the settlement offer, arguing under Perez v. Pantasote, that there is no proof of a substantial impact on non-work activities. As noted above, no judge can approve a settlement no matter how much surgery has taken place without establishing a substantial impact on work or non-work activities.
These are winning techniques that quite literally cost nothing and take almost no time, and they can save enormous sums of money for employers. Whether your company has a carrier, or a TPA, or is self-insured, the message is simple: communicate the information your company has to your defense attorney and adjuster about activities that the employee is engaged in: hobbies, sports, gym memberships, and anything else along these lines. And use employee accident forms. The undersigned has a good one for Capehart clients. Unfortunately, most defense attorneys enter negotiations without having any idea what sports or recreational activities an employee engaged in pre-accident or engages in post-accident. The best and most useful information is almost always contained in the workplace itself through co-employees and supervisors, and that information, if extended to defense counsel, can completely change the outcome of any comp case to the benefit of the employer.
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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.
Workers’ compensation claims often lead to complex disability discrimination law suits, and the recent New Jersey Supreme Court case of Grande v. Saint Clare’s Health System (A-67-15) (July 12, 2017) provides a good example of this. The case concerned the termination of a registered nurse by the hospital following a series of work-related injuries involving the nurse.
Maryanne Grande was employed by St. Clare’s from 2000 to July 2010. Her job tending to stroke victims involved maintaining charts, administering medications, providing general care, assisting patients with daily living activities such as washing, bathing, dressing, walking, repositioning patients in bed, and guarding them against falls.
In August 2008, St. Clare’s performed a job system analysis for various nursing positions, resulting in a description of the frequency that nurses performed certain tasks. In the year prior to the job analysis, Grande injured her left shoulder while repositioning a patient in bed. This led to surgery with a three month recovery period at home before returning on a light-duty basis, followed by full duty status in a month.
In May 2008, Grande was repositioning a patient in bed and felt pain in her right shoulder this time. An MRI showed no serious abnormality. But in November 2008, Grande reinjured her left shoulder again while lifting the legs of a 300-pound patient. She underwent a second surgery and returned to full duty approximately six months after the accident.
In February 2010, Grande was caring for an overweight patient. The patient began to fall, and Grande grabbed the patient’s shoulders from behind, injuring her neck. She had surgery on her neck and was out of work four months. On her first day back to work, she left after four hours due to pain. Two weeks later she returned to full-time, light-duty work.
In early July 2010, Grande’s physician, Dr. Joel Spielman, cleared her to return to full-duty work, but the hospital required her to attend an FCE. The FCE professionals understood that her job required her to push, pull and lift from waist to chest frequently (34-66% of the time). She was able to perform these functions occasionally (1-33% of the time). The report documented “mild residual functional issues” but concluded that “it is improbable that this will significantly affect job performance ability.” Given the recent neck surgery, the FCE report suggested that Grande be permitted changes in activities during periods of prolonged or repetitive neck movements. Finally, the report suggested that Grande “seek appropriate assistance with heavier physical activities such as patient transfers, guarding ambulatory patients or handling loads” greater than 50 pounds. She was cleared for medium category work (occasional lift and work up to 50 pounds). The FCE report also deferred to Grande’s treating physician, Dr. Spielman.
Dr. Spielman took contradictory positions in the case. As noted above, his first note approved full-duty return to work before any FCE was done. On July 21, 2010, following the FCE, Dr. Spielman approved Grande to return to work with restrictions as outlined in the FCE. He advised that Grande needed permanent restrictions of lifting up to 50 pounds occasionally and should transfer patients with assistance only.
The hospital proceeded to terminate Grande’s employment because the hospital concluded that she could not perform the essential functions safely. Grande then saw Dr. Spielman again, and this time Dr. Spielman pivoted back to his original note, stating that Grande had no restrictions any longer. St. Clare’s had already terminated Grande and refused to rehire her. The Court ignored Dr. Spielman’s last note because it was issued after Grande had been fired.
Grande sued alleging discrimination based on disability under the New Jersey Law Against Discrimination. The trial court granted St. Clare’s motion for summary judgement. A divided Appellate Division panel reversed. The New Jersey Supreme Court ultimately agreed with the Appellate Division. The Court examined the two main reasons that the hospital terminated Grande. First, the hospital argued that Grande had chronic and excessive absenteeism. In the prior three years, Grande had been out of work for about a year. But the Supreme Court noted that there were issues of fact whether Grande’s absences were sufficiently “chronic and excessive.”
The second reason advanced by St. Clare’s was that the FCE supported its position that Grande could not safely perform the essential job functions. The Court rejected this as well, stating that there was no consistent understanding of the essential job functions. The 2008 St. Clare’s Job Analysis showed that RNs must lift fifty pounds from waist to chest frequently (34% to 66% of the day). It also reflected that there was no activity that is performed at a frequency greater than 66% of the time.
The Court examined the FCE results carefully. It became apparent to the Court that there was an inconsistency between the 2008 Job Analysis and the testing standards of the FCE. The 2008 Job Analysis required lifting 50 pounds from waist to chest frequently. The FCE understood that a nurse must lift 20 pounds constantly, 67% to 100% of the time. There was no requirement for constant lifting in the Job Analysis. Additionally, the FCE understood that there was an occasional requirement of lifting of up to 100 pounds, which did not appear in the Job Analysis at all. In essence, the FCE assumed almost constant lifting, and sometimes at much higher weights, than the 2008 Job Analysis. The FCE referred to a job analysis received from the hospital, but it did not appear to be the 2008 Job Analysis. For her part, Grande said both the 2008 Job Analysis and the FCE criteria were wrong: she contended that the actual physical aspects of her job were less onerous and that she could do the job.
The Supreme Court also noted that the FCE cautioned that the results “may be compatible with mild residual functional issues,” but “it is improbable that this will significantly affect job performance ability.” This language did not support the termination of Grande at all. The FCE deferred to Dr. Spielman, who wrote his second report incorporating the conclusions of the FCE. In essence, Dr. Spielman embraced the FCE recommendations.
Finally, the Court noted that the hospital was concerned about Grande’s potential to injure patients. She had never actually injured any patient when she was injured on the job previously, and the FCE report only recommended that Grande be assisted in lifting more than 50 pounds, notwithstanding that she was able to lift over 100 pounds during testing. St. Clare’s produced no expert indicating that there was a material risk of harm to herself or patients if she returned to work.
The Supreme Court affirmed the dismissal of summary judgment for the hospital and remanded the case for trial. The case is of great importance because the use of FCEs is widespread in New Jersey in helping employers determine whether to return employees to work following work injuries or non-work medical conditions. The issue in this case arises quite often, namely a disagreement over the essential job functions. In this case the hospital did have a good job analysis, but somehow that requirements in the 2008 Job Analysis did not coincide with the requirements of the FCE. Further, the hospital seemed to have reached too far in concluding from the FCE that the employee could not do her job.
What should employers and FCE companies do when an employee disagrees with the essential functions? One idea is to have a document that clearly records the essential functions which has been signed off by the employer and the employee. Getting all parties on the same page would eliminate the main objection in countless situations over what is and what is not an essential job function. FCEs are extremely helpful because they provide scientific data on what an employee can physically do, but if the test does not replicate the job duties, then the test if invalid. More time should be put into confirming the essential functions and then confirming with the employee that he or she agrees with those functions. Creating a sound list of essential functions is critical, and there are companies who can visit work sites and document the essential functions.
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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.
Michael Savio was injured on a job site on June 1, 2006. He stated that he worked for Matthew Giambri for four weeks on two job sites, pouring concrete on one site, and doing plumbing work on the other site. Giambri paid him $150 per day to pour concrete; otherwise, he paid him $100 to $125 per day.
On the day of the accident, Giambri picked up Savio from his home and drove him to a job site. His job that day was to tear off siding on a home. Savio testified that Giambri pointed out what he had to do and then left. He said he had his own tools but there was no evidence that he used them on the job site. He brought no materials with him as everything he needed was there.
After Savio removed the siding, he descended from a ladder which broke, causing Savio to fall two-and-a-half stories and injure his spine. He treated for four years for the injury and was never able to resume construction work. Petitioner filed a petition asserting that he was employed by Giambri, and his employer asserted that he was an independent contractor or a casual employee and therefore not protected by workers’ compensation laws.
The Judge of Compensation and the Appellate Division found that petitioner was an employee. The opinion of the Appellate Division is interesting because the court reviewed 12 factors outlined in the case of Estate of Kotsovska, ex rel. Kotsovska v. Liebman, 221 N.J. 568 (2015).
§ The first factor is the employer’s right to control the means and manner of work performance. The court found that there was evidence that Giambri provided instruction in what to do and how to remove the siding, as well as materials to do the job. The court felt it insignificant that Giambri left the work site while the siding was removed. The court also said that the “control” factor carries less weight than other factors;
§ The court felt that the second and third factors had minimal significance in this case. They involve supervision necessary over the job and skills to perform the job. The court agreed with the Judge of Compensation that Savio had the skills and required little direction;
§ The fourth factor pertains to who furnishes equipment, and this was clearly in Savio’s favor;
§ The fifth factor involves the length of time a worker performs duties for the alleged employer. In this case the court felt that four weeks was sufficient.
§ The sixth factor relates to the method used to pay the alleged employee. Here Savio was paid by cash or personal check, and Gambri gave him a W-2 form at the end of the year. This also favored employment;
§ The seventh factor focuses on the manner in which the work relationship terminated. In this case the petitioner could not return to work because of his injury.
§ The eighth, tenth, and eleventh factors pertain to benefits: annual leave, retirement benefits, and payment of Social Security taxes. There was no evidence in this case regarding these factors.
§ The ninth factor focuses on whether the alleged employee’s work is an integral part of the employer’s business. “Here, the judge found Giambri was a contractor who employed laborers to perform services on his behalf and, thus, the work Savio performed was an integral part of Giambri’s business.”
§ Lastly, the twelfth factor examines the intentions of the parties. The Appellate Division believed that there was a relationship consistent with an employer and employee, even if there was no documentation expressing intention.
The Appellate Division felt that the vast majority of these factors favored employment status and affirmed the decision of the Judge of Compensation. The case is very helpful in resolving disputes of this nature by providing a framework to analyze similar situations. It can be found at Savio v. Giambri, A-0701-15T1 (App. Div. July 12, 2017).
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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.
Roy Hendrickson worked for thirty years at UPS. His first 19 years were as a package car driver making over 100 stops per day to deliver or pick up packages. He injured his back in 1992 but did not file a workers’ compensation claim. In 2002 he injured his back lifting a heavy package, losing two months of work time. He was diagnosed with sprains, degenerative disc disease and stenosis. He received an award of 15% permanent partial disability. He reopened that claim in 2004, settling for 17.5% credit 15% for the prior award.
In 2006 Hendrickson began working as a feeder driver for UPS, driving tractor-trailers to New York City, the Meadowlands, Secaucus, Cranbury and locations in New England. He drove trucks without air ride suspensions, testifying that he felt shocks and vibrations over pot-hole ridden roads. He said this activity caused additional pain in his low back, requiring acupuncture treatment.
In 2008 Hendrickson also began working as a shifter driver, which required backing the truck into a trailer and “hitting the pin” to connect the two. He testified that every time he made the connection, around 75 times per day, there was an impact such that he felt as though he were being punched in the back.
In 2012 Hendrickson was at a mall and collapsed due to pain and numbness radiating down his legs from his low back. His chiropractor sent him for an MRI in August 2013, which showed herniated discs at L3-4 and L4-5 along with severe stenosis. His chiropractor refused to treat him after the MRI study, so Hendrickson saw a surgeon who recommended bilateral nerve blocks. When that failed to relieve his pain, Hendrickson opted for surgery in March 2014 to decompress the disc at L4-5. The surgery provided three months’ relief, but a repeat MRI showed persistent disc herniation at L4-5 with impingement on the L5 nerve root. Hendrickson said he continued to work in pain but avoided any non-work activities that might increase his pain.
Hendrickson filed a Claim Petition and a Motion for Medical and Temporary Disability Benefits, asserting that UPS should pay for his back surgery and lost wages based on occupational injuries over the years. UPS opposed the motion and argued that the claim was time barred because the back problems stemmed from the 2002 trauma. That claim had not been reopened but once, concluding many years ago.
Petitioner produced testimony from Dr. Michael Cohen, who contended that petitioner’s back problems were not the result of trauma suffered in 2002 but rather repetitive occupational stress over the years. Dr. Nirav Shah on behalf of UPS testified that petitioner suffered an injury to his back on April 16, 2014 from lifting packages. However, the record did not support Dr. Shah’s assertion that there was a work accident on April 16, 2014. Dr. Shah testified that petitioner’s back revealed multiple herniations that were the result of chronic degenerative changes in the spine. He said these changes progressed naturally, not from repetitive occupational exposures.
The Judge of Compensation found Dr. Cohen to be more persuasive than Dr. Shah. The judge credited petitioner’s testimony that the 2006 transfer to feeder and shifter work worsened his spine condition. The judge noted that petitioner frequently bounced around in his truck when driving over potholes or bumps in the road. The judge further noted that the action of hitting the pin in connecting vehicles created a sensation of petitioner being hit in the low back. He found Dr. Cohen credible in explaining how driving a tractor trailer objectively worsened petitioner’s low back. The Judge found Dr. Shah less than credible because in part Dr. Shah mistakenly believed there was a 2014 traumatic accident. The judge found that there was aggravation and acceleration of petitioner’s spine from 2006 to 2013 caused by work.
UPS appealed and argued again that petitioner’s claim petition was barred by the statute of limitations because everything went back to 2002 accident. The legal argument was interesting, pitting two major case precedents against each other. UPS argued that this was like the case of Peterson v. Hermann Forwarding Co., 267 N.J. Super. 493 (App. Div. 1993), certif. denied, 135 N.J. 304 (1994). In that case a trauma occurred to a truck driver, whose back got progressively worse after the next five brief trucking jobs he worked, eventually leading to total disability. The Appellate Division placed responsibility in that case on the first employer with the traumatic event, stating that there was no objective proof of worsening over the next five employments. All of the occupational claims were dismissed.
Petitioner relied on the case of Singletary v. WAWA, 406 N.J. Super. 558 (App. Div. 2009). The rule in that case was that “Very short periods of employment . . . may allow no reasonable inference of material contribution to disability. In contrast, long periods of physically taxing employment, such as the five years Singletary worked at WAWA after her December 2001 accident, may reasonably support a finding of material contribution of disability.” The Appellate Division disagreed with UPS and concluded that petitioner’s occupational exposure was largely responsible for causing petitioner’s medical issues. Counsel for Hendrickson, Mr. Richard Schibell, Esq., contended that petitioner’s back pain progressively worsened over the years due to ongoing stressors at work, and that there was no statute of limitations issue since petitioner was still being exposed to occupational injuries when he filed the claim petition.
The case can be found at Hendrickson v. UPS, A-3627-15T2 (App. Div. July 11, 2017). The case shows how an occupational orthopedic disease claim must be proved in order to prevail in workers’ compensation. There must be detailed testimony by the employee or co-employees of credible physical stressors, and then credible medical testimony linking those physical stressors to the medical condition afflicting the claimant.
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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 a surprising but unreported decision, the Appellate Division affirmed an award to a police officer who fell in the municipal parking lot on December 9, 2011 on a day when he was not supposed to be at work. The officer said he came to work to collect his paycheck and also to check his court schedule while he was there. The case is Grawehr v. Township of East Hanover, A-1686-15T3 (App. Div. June 29, 2017).
The accident involved a slip and fall on ice which led to shoulder surgery. The Township denied the claim since petitioner was not working that day, and no one asked him to come to work. The petitioner admitted that he was coming to work to get his paycheck, but he said that he also wanted to check his personal folder for any new subpoenas for scheduled court dates. There had been problems with police officers missing scheduled appearances due to a recent merger with the Township of Hanover. A township Lieutenant testified that it was not uncommon for the more diligent officers to come in on their days off to check on their court files.
Even though Officer Grawehr never failed to appear for court and had not been disciplined (unlike others) for failing to come to court, and even though the next court date was not until December 22, the Judge of Compensation found for petitioner and awarded petitioner 27.5% or $41,187 for permanency and medical expenses. The Appellate Division affirmed. The theory of compensability in this case was the existence of a mutual benefit to the Township and the employee by these impromptu visits to the police department on days off. The Township denied that there was any benefit to it at all.
The “mutual benefit” theory has been questioned as recently as May 1, 2017 in Liu v. 4D Security Solutions, Inc., A-3591-15T1 (App. Div. May 1, 2017). In that similarly unpublished case a different appellate panel found that the mutual benefit doctrine did not survive the 1980 amendments. That appellate panel rejected the doctrine completely just one month before this decision. The decision in Grawehr makes no mention of the Liu decision.
In Grawehr, the Appellate Division struggled mightily to find case law supporting the existence of a mutual benefit doctrine. The only case it cited was a pre-1980 case called Salierno v. Micro Stamping Co., 136 N.J. Super. 172 (App. Div. 1975), where a heart attack experienced by a worker during contract negotiations on behalf of his union was found to be compensable. That case is not really a mutual benefit decision, and it would likely not meet the current law dealing with the requirements for compensability of heart attacks. In essence, the panel in Grawehr assumed the existence of the mutual benefit doctrine even though the issue was whether it exists at all.
It is clear that an injury that occurs when an employee comes into work simply to pick up a paycheck is not compensable. Miller v. Saker Shoprite, A-3746-13T2 (App. Div. November 13, 2015). In this practitioner’s opinion, the Grawehr decision is open to criticism because the appellate panel never really found a case that supported the existence post 1980 of the mutual benefit doctrine in New Jersey. Interestingly, neither could the appellate panel in Liu cited above. This practitioner is aware of only two reported post-1980 decisions where the court based its decision on the existence of the mutual benefit doctrine. One case was Daus v. Marble, 270 N.J. Super. 241 (App. Div. 1994) and the other was Mahon v. Reilly’s Radio Cabs, Inc., 211 N.J. Super. 28 (App. Div. 1986). These cases were not mentioned in this matter or in Liu. We will need clarification from a future reported appellate division panel or the Supreme Court on whether the mutual benefit doctrine, as applied to trips to and from work, still exists – or exists in any other context.
This case illustrates the problem inherent in the mutual benefit doctrine when it is applied to cases involving trips to work on non-work days. The doctrine can be interpreted so broadly that it can create a massive end-around to the requirement that all accidents must meet the test of “in the course of employment.” Anyone who comes into work to retrieve something and falls at work after hours or on days off can argue that there was a mutual benefit conferred on the employer by coming to work. Do both parties have to agree that there was a benefit? The township said there was no benefit in this case. It is an extremely subjective test. The obvious reason the claimant was coming to work in this case was to pick up his paycheck. But that activity alone is not compensable. Further, the next court date was 13 days away, so the decision in favor of compensability makes very little sense under any analysis.
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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 every state, two investigative forms have an enormous impact on helping employers save money and win cases in workers’ compensation: first, a detailed Employee Accident Form filled out entirely by the injured employee and signed by the employee, and second, a detailed Supervisor’s Report Form. This practitioner has tailored both forms for the use of firm clients. I have written extensively in the past about the enormous value of an effective Employee Accident Form, and this blog will explore why a Supervisor’s Report Form also helps win cases and reduces workers’ compensation costs. Clients who use both forms have enhanced their chances of prevailing geometrically.
Many employers traditionally have a combined one-page form for the supervisor to fill out one section and for the employee to fill out another section. Sometimes the supervisor writes what the employee tells him or her, and then the employee only signs the form. This is not effective in court because the employee can reject what the supervisor wrote as inaccurate. It is always better for the employee to complete the Employee Report in his or her own handwriting. It is also hard to tell if the supervisor is writing what he or she thinks or what he or she was told. The abbreviated Supervisor’s Form will ask “How did the accident happen?” and the supervisor may write: “Employee slipped on ice.” Much later it may become clear to defense counsel that the supervisor really did not think this accident ever happened. He wrote just what the employee told him, but the form had no place for the supervisor to raise doubts. So cases get accepted, bills get paid, and surgery ensues when all of this should have been denied. In short, these abbreviated forms are like an appetizer to an entrée. You get much more out of two separate and detailed forms filled out as close as possible to the time of the incident.
So what makes an effective Supervisor’s Report Form? To ask it another way, what information should an employer strive to obtain in a supervisor’s form that will help prepare the defense of a workers’ compensation claim and often help win the claim? In this practitioner’s view, these are the essential elements in a powerful Supervisor’s Report Form:
§ Information that would determine if there is a notice defense or late reporting issue;
§ Detailed information on the time, date and mechanism of injury;
§ A list of witnesses to the incident, if any;
§ Detailed information on what others saw or were told by the employee about the incident or accident;
§ Specific information about the employee’s job duties generally and on the date of the incident;
§ Information on second jobs or other physical activities engaged in by the employee in the years prior to the incident or accident;
§ Information on motor vehicle accidents, home injuries or sports injuries that the employee was involved in during the past few years;
§ Information on whether the employee was offered or declined medical attention.
All of this information – and more — can be easily captured within two pages, and this approach can be used in any state. But in states like New Jersey, where there are no depositions or interrogatories permitted in traumatic claims, a comprehensive Supervisor’s Report Form is imperative! This form and the Employee Accident Form will often be the only useful discovery that employer will ever get in many cases. For employers with a high volume of comp claims, using these two forms will consistently lead to success because patterns develop, and supervisors become more adept at understanding the workers’ compensation process. The carrier, TPA, self-insured employer and defense counsel will be able to make intelligent decisions on whether to deny the claim or accept it, and if denied, how to win the case and not pay for unrelated surgery, lost time and permanency benefits.
There are no reliable statistics on how many comp claims involve some kind of legal issue as opposed to clearly witnessed accidents where there really are no issues other than the extent of permanency. This practitioner believes that perhaps fifty percent to two thirds of claims are unwitnessed or are questionable because the injured employee was known by the employer to have the health condition prior to the accident, or the mechanism of injury simply makes no sense. These are the kinds of claims that bedevil employers and can wreck budgets and explode reserves. Most employers know their employees pretty well and have an instinctive sense when there is something wrong with a claim. Defense attorneys get litigation files well after the claim occurs, and they pore over the supervisor’s report form, only to conclude that there just is far too little information on the form to win the case. Memories fade quickly, and any claims professional or defense lawyer knows how hard it is to resurrect the facts of a claim with a supervisor or witness in a discussion that occurs 12 or 24 months later.
The solution is simple: require a few extra minutes to obtain a more detailed series of questions right up front. Some of the 22 questions on this practitioner’s two-page form require simple yes or no answers, such as “Did you personally observe the incident involving this employee?” and “To your knowledge, was this accident witnessed or unwitnessed?” Some of the questions require a few sentences of description: for example, “If you did not witness the incident but others told you about it, describe exactly what they told you, who spoke with you, and what that individual said.”
How much does this cost to implement? The answer is it costs nothing. This is what it requires: an extra two or three minutes to complete over the traditional one page form. In exchange for an investment of two or three more minutes, employers get a useful form that paints a clear picture of whether the claim should be denied, whether there are strong defenses, and who the witnesses will be to help the employer win the case. It doesn’t matter what state the employer is in, as this approach is universal. There is no training required for supervisors because this kind of supervisor’s form must be self-explanatory and simple.
Clients of Capehart who are interested in reviewing this practitioner’s Employee Accident Form or the Supervisor’s Incident Report Form should contact the undersigned.
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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.
A good Global Positioning System can make all the difference in certain kinds of cases. Longstreet v. County of Mercer, A-3361-152 (App. Div. June 20, 2017) illustrates how effective this technology can be for claims involving injuries while driving work vehicles.
The case involved a claim by a heavy equipment operator against the County of Mercer. Mr. Longstreet reported that he injured his arm when his road grader hit what petitioner believed was a manhole while snow plowing on January 27, 2015. He reported the incident several days later. Petitioner said he started his shift on January 26, 2015 at 7:00 p.m. and was supposed to end his shift at 3:30 p.m. on January 27, 2015. He began the shift loading salt, utilizing a front end loader and was then instructed to begin snow plow operations on grader #57 at midnight. Petitioner claimed the incident occurred during snow plowing at 4:00 a.m. on Nursery Road and that he brought the grader in to the County repair shop to have the blades changed.
The problem with petitioner’s version was that the GPS showed that the vehicle petitioner said he was using to plow at 4:00 a.m. was idle from midnight to six a.m. A county witness testified that grader #57 was parked at the North Salt Dome at Mercer County Airport around midnight. Then it was moved around 2:00 a.m. to Interstate 95 where the vehicle remained stationary until 6:38 a.m. From 7:30 a.m. until 10:17 a.m., the grader was used only on four separate occasions on Nursery Road.
The County argued that the case must be dismissed because petitioner clearly could not have had an accident at 4:00 a.m. using grader #57 since the vehicle was not used at all until the morning hours, and then only briefly. During trial a repair order suddenly appeared for Grader #57. There was no repair time noted on the order. Witnesses at the County Garage could not recall fixing this vehicle that night, but the repair order referred to grader #57.
In spite of the overwhelming evidence that petitioner could not have been injured while using grader #57 at 4:00 a.m., the Judge of Compensation found the case compensable. The judge reasoned that it was possible that petitioner could have begun using Vehicle #57 at around midnight, switched to another vehicle after he brought grader #57 into the repair shop, and then got injured using this new vehicle. The Appellate Division rejected this reasoning since the record showed that petitioner was adamant that he only used one grader to plow, and that was grader #57. He never testified to using another grader, and he insisted that his injury happened in the dark of night at 4:00 a.m.. He also said that he used his personal vehicle to revisit the scene of the accident later in the morning around 10:00 a.m.
The Appellate Division reversed the ruling for petitioner and ordered a retrial of the case. The Court said that the ruling of the Judge of Compensation was without evidential support because the GPS system established beyond any doubt that petitioner was not using Grader #57 at 4:00 a.m. In fact, no one was using Grader #57 between midnight and 6:38 a.m. Petitioner could not have brought Grader #57 to the county shop until after 10:00 a.m. when the vehicle was no longer being used.
The case is fascinating because without the use of a GPS system, this case would have been found compensable, as it would have been merely an issue of credibility. The successful appeal in this case on behalf of the County of Mercer was handled by Capehart Shareholder Lora V. Northen, and her associate, John Pszwaro.
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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.
Clients often ask questions about the permanency phase of the New Jersey Workers’ Compensation system. Frankly our system with respect to awards of permanent partial disability is so vastly different than those of neighboring states that it is no wonder there is confusion. Here are some of the questions this practitioner regularly receives.
Question (1): Why don’t employers settle cases before a workers’ compensation formal petition is filed? Wouldn’t that be more proactive?
Answer: There are two statutory provisions that deal with this issue. The first is N.J.S.A. 34:15-22, which states that “No agreement between an employee and his employer or insurance carrier for compensation shall operate as a bar to the formal determination of any controversy, unless such agreement has been approved by the commissioner (Judge of Compensation).”
The second section is N.J.S.A. 34:15-50, which states “Whenever an employer or his insurance carrier and an injured employee, or the dependents of the deceased employee, shall, by agreement, duly signed, settle upon and determine the compensation due to the injured employee . . . the employer or the insurance carrier shall forthwith file with the bureau a true copy of the agreement. The agreement shall not bind the employer or injured employee, or the dependents of a deceased employee, unless approved by the bureau.”
So the basic answer is that all agreements must be approved by a Judge of Compensation in New Jersey. If an employer and employee reach an agreement without such approval, the agreement is not valid and is not binding on the employee.
Question (2): When the petitioner’s doctor estimate 60% permanent partial disability and the respondent’s doctor estimates 5%, why not use the AMA Guidelines to the Evaluation of Permanent Impairment to resolve the dispute?
This question underscores a basic feature of the New Jersey system: we are one of only a few states where judges do not use the AMA Guides to the Evaluation of Permanent Impairment. This non-use of the AMA Guidelines is by tradition, not statute. There is no statutory prohibition against consulting the Guidelines to inform judges. In fact, it would be helpful if judges did utilize the AMA Guidelines where opinions on disability vary to a large extent. In respiratory claims the guidelines are extremely helpful in assessing permanency because spirometry and other pulmonary function testing are complicated to understand. For instance, the Guidelines provide certain norms for spirometric parameters like the FVC (forced vital capacity), FEV1 (forced expiratory volume in the first second) and FVC/FEV1 ratio. Using the AMA Guidelines would provide more uniform assessments and consistency in certain kinds of cases.
Question (3): What type of evidence matters most to the Judge of Compensation in arriving at an award of permanent partial disability?
Judges look for evidence in two broad categories: first proof of a medical impairment, and second, proof of disability from such impairment. An employee must prove an impairment under N.J.S.A. 34:15-36 by demonstrable objective evidence, but that alone is not enough. If a medical impairment exists but does not affect the employee in his work or non-work life, there is no disability. In this sense, “disability” is a broader concept than impairment. You need both.
The employee must demonstrate that the medical impairment reaches out and affects the employee in the activities of daily living or lessens the employee’s ability to perform work in a material degree. So judges focus on objective medical evidence like MRI results, surgical studies, CT scans, x-ray results, and they pay close attention to how the medical impairment has affected the life of the employee. Has the employee had to give up certain sports or cut back on hobbies or activities that he or she used to enjoy? Has the employee had to reduce hours at work or has the injury caused a reduction in pay? This is the kind of evidence that the judge studies in order to evaluate the degree of permanent disability. That is also why every Judge of Compensation requires testimony to support an order approving settlement regarding the complaints of the employee and the impact on work or non-work activities.
Question (4): Why does surgery drive up the value of a workers’ comp case? Isn’t surgery supposed to make the employee better?
This is a complicated question. Yes we all know people who have had surgery and have been completely healed with little or no lasting restriction. Surgery is often incredibly effective. For instance, a football player with a severe meniscal tear could never return to football again without surgery. A pitcher without ulnar collateral ligament reconstruction, also known as Tommy John surgery, might never pitch again. That is exactly what happened to the great Dodger pitcher, Sandy Koufax, who retired young because there was no Tommy John surgery in the 1960s. Now many pitchers with Tommy John surgery return to pitching at the same high level as before the injury, albeit perhaps with some loss of velocity.
In New Jersey, workers’ compensation practitioners are well aware that an employee has the potential to file a reopener petition should surgery be required in the future. The thinking is that if the injury does not require surgery now, it might not be as significant as it would be down the line when surgery will be required. Our statute under N.J.S.A. 34:15-27 permits the employee to reopen the case and seek additional treatment – often surgery – within two years of the last payment of compensation, as well as additional indemnity benefits. It is true that few if any claimants come to court and testify at settlement that their level of function is the same as they had before the work accident. If they did, they would not be entitled to permanency benefits. The expert for the claimant may point out that in spite of the surgical procedure, the employee has lost function post-surgery. The employee will testify to limitations in work or non-work functions. Hence, unoperated herniated discs are often valued lower than operated herniated discs because the condition has not reached a level requiring surgery.
It is also worth noting that there are many employees who have surgery who never file claim petitions because they feel they have fully recovered and have no complaints post-surgery. We don’t see those cases but must remember that they do exist. Not all employees who suffer work injuries in New Jersey file claim petitions for permanency.
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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.
While the ADA does not require an employer to inquire whether an employee needs reasonable accommodation, the FMLA does require an employer to reasonably determine whether the FMLA may apply to a leave request which does not even mention the FMLA. This burden can be very onerous on an employer as one can see in a recent New York case, Coutard v. Mun. Credit Union, 2017 U.S. LEXIS 2322 (2ndCir. February 9, 2017).
The facts were very simple. The plaintiff worked for MCU, a financial institution, and on January 22, 2013, plaintiff took leave from MCU to care for his 82-year-old grandfather, who had been taken to a hospital on January 22, 2013. Mr. Coutard’s grandfather was discharged from the hospital on January 23, 2013 with bronchitis, but Coutard believed his grandfather, Mr. Dumond, was seriously ill and should not be left unattended. He sought leave until he could obtain the assistance of a home health aide.
When Mr. Coutard requested leave, he did not mention that he had been raised by Dumond beginning at age four when Coutard’s father died, until age 14. MCU advised Coutard that the FMLA did not apply to grandparents and declined the request for leave. It is undisputed that the term “parent” includes not only a biological parent but also “an individual who stood in loco parentis to an employee when the employee was a son or daughter.” 29 U.S.C. 2613.
MCU also suggested that Coutard apply for a short-term leave of absence under a separate MCU personnel policy. Coutard did not make any such application and was terminated on February 4, 2013. Coutard later sued for interference with his FMLA rights.
The federal district court ruled in favor of MCU but the Second Circuit Court of Appeals reversed based on the following language:
[W]e conclude that the obligation of an employee to give notice of his need for FMLA leave is not the obligation, imposed by the district court on Coutard, to provide the employer with all of the necessary details to permit a definitive determination of the FMLA’s applicability at or before the time of the request. Rather, in the absence of a request for additional information, an employee has provided sufficient notice to his employer if that notice indicates reasonably that the FMLA may apply.
Translation: the employer had to ask Coutard whether his grandfather raised him. In making this ruling the Court of Appeals distinguished an identical case which went the other way in favor of the employer, Sherrod v. Philadelphia Gas Works, 57 F. App’x 68 (3d. Circuit 2003). The Court distinguished the Sherrod case, which also involved leave to care for a grandparent, by saying that the Department of Labor changed regulatory language in 2009. The regulation used to say that an employee had to “explain the reasons for the needed leave so as to allow the employer to determine that the leave qualifies under the Act.” In 2009 the regulation at issue was changed to state that an employee need only provide sufficient information to indicate that the FMLA may apply. 29 C.F.R. 825.303.
While the new language seems very similar to the old language, the Second Circuit Court of Appeals felt that the change was significant. The Court concluded that this ever-so-subtle change in language shifted the obligation to the employer to ask further into the relationship between the employee and the grandfather. For these reasons, the Second Circuit Court of Appeals reversed judgment for MCU and remanded the case for trial.
The decision will come as a surprise to many employers. When an employee asks for leave to care for a grandparent and never mentions that the grandparent raised the employee, an employer will have no way to know any of this history. Only the employee knows this information. According to the Second Circuit Court of Appeals, the employer now can be held liable for violating the FMLA, as in this case, if the employer does not know the law well enough to ask further about the past relationship between the employee and his or her grandparent. The case imposes no burden on the employee to volunteer this information initially.
The reality is that this was a situation where neither party really did anything wrong. No violation should have been found. It would be unreasonable to expect the plaintiff in this case to know the in loco parentis definition of a parent under the FMLA, but the plaintiff did certainly know that his grandfather raised him for 10 years and never mentioned this. In response to the leave request, MCU offered plaintiff a leave of absence under another policy but the plaintiff never pursued that option. Yet MCU was held potentially liable for an FMLA violation for not asking detailed historical questions about the employee’s relationship with his grandparent.
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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.
