State News : New Jersey

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

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

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

Nicholas A. Dibble, Esq.

Capehart Scatchard

Cases involving parking lot injuries continue to generate divergent results in the Division of Workers’ Compensation and the Appellate Division. Walker v. Saker Shop-Rite, No. A-2770-19 (App. Div. Sept. 7, 2021) illustrates this point yet again.

Ms. Walker, a 70-year-old employee, fell on December 11, 2018 while walking to her car in the leased supermarket parking lot after completing her shift.  Her injury was caused by stepping into a pothole.  A key fact was that petitioner admitted she parked in the side parking lot area rather than in the area designated for store employees out by the street.  She never felt it was safe to park by the street, so she chose to disregard the store’s instructions and park near an area where employees would smoke and drink coffee.  She said there was a “cabana type thing” on the side parking lot where employees gathered for a smoke or a cup of coffee.  That is where she chose to park for 25 years.  She said she mentioned her decision once to an assistant manager of the liquor department years ago. Petitioner said other employees also disregarded the directive to park near the street.

Saker Shop-Rite had a fairly common shopping center lease in that the store agreed to pay a common area maintenance fee to the landlord based on its pro-rata share of the entire shopping center for maintenance, insurance, snow removal and other items.  There were eight or ten other stores in the shopping center.

In 2018 Saker Shop-Rite agreed with the landlord to an amendment of the lease which would allow Saker to repave the parking lot and perform other traffic improvements.  Counsel for Saker Shop-Rite testified that this was done because the landlord did not want to make application to the Planning Board in Neptune.  Saker Shop-Rite agreed to apply to the Planning Board, make the repairs and then submit the cost of repais to the landlord for reimbursement.  Well after petitioner’s fall, the store got approval from the Planning Board and made the repairs.  This was a one-time event.

There was also testimony from the HR Manager about the designated parking area.  She said that new employees were advised to park in the designated area near the street.  The HR Manager also would tell employees that were observed parking in non-designated areas to park near the street in the designated area.  There was additional testimony that certain store employees were responsible for gathering shopping carts scattered in the parking lot.

Following the trial, the Judge of Compensation ruled that petitioner’s fall was not compensable because it occurred in an area not under the control of Saker Shop-Rite. This decision was consistent with the New Jersey premises rule.  The Judge noted that petitioner “consciously chose to ignore Saker’s directive to park in the designated area.”  Petitioner appealed.

The Appellate Division reversed in favor of petitioner, relying on a number of factors, many of which are common to all parking lot leases:

1. The Court said, “The accident occurred in the parking lot used by Saker’s customers, employees and vendors.” 
2. The Court added, “Petitioner was walking to her car in the parking lot used by Saker when she sustained her injury.”
3. In a surprising finding, the Court said, “We find inconsequential that petitioner, like other employees, chose to park in an area different from the area designated by Saker for employee parking.”  The Court excused petitioner’s conduct by observing that she was motivated by reasonable concerns for her own safety.
4. Interestingly, the Court seemed to base its decision largely on Livingstone v. Abraham & Straus, Inc., 111 N.J. 89 (1988).  In that case an employee of a department store in a Mall was required to park in a distant location designated for employees and was struck by a car while walking from the designated lot to the store.  The Court observed that the employer in this case was deemed to have control over the lot because it required petitioner and others to park in a distant location.  However, the Court failed to mention that Ms. Walker was not injured walking from the designated parking area.  She had never parked there for 25 years!
5. The Court further observed that the respondent used the side lot to allow its employees to smoke and gather for coffee.
6. The Court cited the common area maintenance charges, a standard in virtually every lease, as evidence of employer control. 
7. Lastly, the Court felt that the lease amendment allowing Saker Shop-Rite to repave the front parking lot was evidence of control of the lot, even though in the end the landlord had to pay for the work done in the lot.

This decision is unreported and therefore not binding on other courts.  Nonetheless, it adds to a puzzling array of contradictory decisions on parking lot injuries where the employer does not own the lot.  The problem with this decision is simply that it makes no sense to base “control” on the designated parking area near the street in this case.  This petitioner admitted she never parked there for 25 years.  The petitioner inLivingstone was walking from the designated area when struck by a car.  Ms. Walker was walking to an area where customers and some other employees parked in an undesignated area.

It seems that the Appellate Division decision is a far stretch.  “Employer control” was imputed to Saker Shop-Rite merely becausesome employees used the designated parking area – but none of them was filing a workers’ compensation claim for injuries. As to this petitioner, the Judge of Compensation’s reasoning was on point.  Ms. Walker was just walking to her car in an area used by customers and employees, like any other parking lot where an employer leases space for its employees and customers.  There was no added hazard as to her because she avoided the much longer walk by choosing to park close to the store.  As to the designated parking lot, the evidence seemed more like a request than a requirement since many employees apparently ignored the company policy with impunity.

Boilerplate lease issues, like common area maintenance charges, are a part of virtually every lease and clearly irrelevant to employer control.  Only one fact in this case was problematic for the employer. The lease agreement originally entered into in 1992 was amended in 2018 to permit Saker Shop-Rite to repave the front lot.  But that was done for the convenience of the landlord in avoiding the planning board application process.  It was a one-time repaving issue.  In the end, the landlord had to pay for the repairs anyway – and the repairs took place months after the accident.

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

One of the most misunderstood rules in workers’ compensation is the so-called “special mission” exception to the premises rule, which is New Jersey’s successor to the better known “going-and-coming rule.”  The New Jersey premises rule says that one is at work when he or she arrives at the work premises.  The main exception to that rule is the special mission exception.  Confusion abounds on this exception because few read the actual letter of the law.  Many think that the special mission applies when an employee has to drive somewhere out of the ordinary or work hours that are unusual.  That may not be true at all.

Here is what the statute actually says: “…When the employee is required by the employer to beaway from the employer’s place of employment, the employee shall be deemed to be in the course of employment when the employee is engaged in the direct performance of duties assigned or directed by the employer.”  This language comes from NJSA 34:15-36.

Consider some common scenarios:

1. An employee works for a large food distributor reporting every day to a satellite office in Cherry Hill, N.J., but once a year the employee must report to the employer’s headquarters in Jersey City for an annual review.  The employee is injured returning from Jersey City to his home in a car accident.  Special mission?
2. An employee is approved for an educational seminar in Los Angeles, gets to the hotel, takes a warm, hot bath in the evening and slips and falls on the hotel bathroom floor, fracturing her femur. Special mission?
3. The maintenance superintendent for a large rental complex is summoned at nine p.m. to come back to work immediately because there is a power outage in the employer’s building where the superintendent works 9-5.  Special mission?
4. The head of HR leaves work at four p.m. on Friday afternoon but gets a phone call during her drive home and is told to come to work for a special meeting on Saturday at nine a.m.  Special mission?
5. A defense lawyer leaves his home on Monday morning and travels to Paterson workers’ compensation court, where the attorney drives every three weeks to handle a regular list.  On the way she is involved in a serious car accident.  Special mission?

All of these scenarios have one thing in common: they are unusual assignments for the employee either to locations where the employee does not normally work or during hours when the employee does not normally work.  But only two of these scenarios would meet the test of a special mission.  If you guessed numbers two and five, you are correct. 

In number two, the employee is at a location away from the employer’s premise on an approved seminar when the slip and fall occurs.  The employee’s presence in the hotel room is expected and necessary to complete the work assignment.  In number five, the defense lawyer is required by the employer to drive to a location away from the employer’s place of employment to perform court duties.  The accident happens on the way to court.

But examples 1, 3 and 4 would not constitute a special mission.  But why not?  Number one is easy because the employee is reporting to the employer’s work site in Jersey City. It doesn’t matter that this is not where the employee normally works:  The rule says it must be “away from the employer’s place of employment.”  This is the company’s headquarters!  

The same outcome applies for numbers three and four. Although the employees in numbers three and four may consider their assignments to be out of the ordinary and rather taxing (driving to work late at night or having to work on a Saturday), the test is not whether there is a deviation from the ordinary work schedule.  The test is whether the employee is required by the employer to be away from the employer’s place of employment.  They were both reporting to their normal work site.  So for numbers 1, 3, and 4, the normal premises rule applies.

The second part of the special mission exception is easier to understand.  When an accident occurs away from the employer’s place of employment, the employee must be engaged in the direct performance of work duties for the accident to be compensable.   So in the first example, if the employee at the seminar in Los Angeles is a baseball fan and decides to travel by herself to Chavez Ravine one night to watch the Dodgers play the Giants and falls in the stadium, that injury would not be covered because the game has nothing to do with the distant work assignment.   What would be covered on a distant assignment or at a seminar? Courts have found that injuries getting meals at a hotel or walking to one’s hotel room would certainly be covered.   Taking clients out to a different hotel for dinner or to a sporting event while at a seminar would certainly be covered.  That makes sense, but not everything one does on an approved trip is covered, just as not everything that one does in the normal work environment is covered. For example, the fitness-obsessed employee who jumps rope during breaks and falls will not win a workers’ compensation case even if the injury occurs on premises.

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

Andrew Mackoff worked  as a salesman and account manager for New Brunswick Saw Services.  One of his duties was to travel to the company’s businesses for meetings and service calls.  On December 3, 2018, Mackoff left his home in Blackwood, Camden County, New Jersey and drove to West Caldwell in North Jersey for a 10:00 a.m. customer meeting.  Following the one-hour meeting, he decided to drive to the Galloping Hill Inn in Kenilworth, N.J. for lunch. He had been going to that restaurant for many years, and he loved their hot dogs.  After lunch he said he planned to go to the company office in Middlesex County because he had not been to the office for a while.

In testimony petitioner said the Galloping Hill Inn was like a “nostalgia place” for him.   He also commented that he was theoretically going to prospect because the restaurant had slicers for sandwiches.   He called the Inn a “potential customer.”  However, he admitted on cross examination that the Galloping Hill Inn was never a customer of his company, and he had no other customers to visit around the Inn.   On the way to the restaurant he was involved in a car accident.

Petitioner filed a claim petition and a motion for medical and temporary disability benefits, seeking treatment for his injuries.   Respondent opposed the motion and denied the claim as not arising from employment.  The Honorable Ingrid French found that petitioner failed to prove a work-related accident.  The Judge was not persuaded that petitioner was really intending to “prospect” the hot dog restaurant.   The Judge commented that petitioner’s “primary purpose for driving to the hot dog place was personal and not work-related.”  She added that petitioner: “unequivocally testified that immediately following his meeting . . . he was going to get his lunch at the ‘hot dog place.’  Then, his attorney prodded him to state that ‘theoretically,’ the ‘hot dog place’ was also a prospective customer.  Specifically, and in support of this ‘theory,’ the petitioner stated that ‘any’ food establishment that sells prepared food is a potential customer.”

The Judge of Compensation found that petitioner had concluded his work day and was simply on his way to lunch. The Appellate Division affirmed the dismissal of the case.  The Court said, “The definition of ‘employment’ under the statute is multi-faceted and includes situations in which the employee is physically away from the employer’s premises, but nevertheless is ‘engaged in the direct performance of duties assigned or directed by the employer.’”

The Court also observed that employees who have been injured in the course of a ‘minor deviation’ have been found to be covered for workers’ compensation purposes.  But the Court did not feel this was a minor deviation case.  The Court noted that petitioner admitted that if he drove to Galloping Hill Inn to get a hot dog and then to his office it would have been about two hours out of his way rather than going directly to the office.  This was a key fact in the conclusion that the primary purposes of the trip was personal and non-work related.

The Court relied mostly on Jumpp v. City of Ventnor, 177 N.J. 470 (2003), noting that Mr. Jumpp’s accident while returning from his post office errand was found not to be a minor deviation even though the stop at the post office was only a few yards away from the road he was traveling on.  The Court said, “ . . . petitioner’s decision to travel an hour east from his West Caldwell meeting because he was hungry and ‘going to get food first’ was not the sort of activity that ‘would have been compensable if carried out by an on-premises employee.’” 

It was interesting that the Appellate Division referenced the decision in Cooper v. Barnickel Enterprises, Inc., 411 N.J. Super. 343, 346 (App. Div. 2010). In that case the petitioner’s car accident was found compensable where he was driving five miles to get a cup of coffee at a deli.  Mr. Cooper was planning to meet with his union instructor but found out that his instructor was tied up teaching a course.  Cooper admitted that he was simply killing time in getting a cup of coffee before meeting with the instructor.  A key difference between the two cases is that Mr. Mackoff’s day was basically done, although he did testify that he planned to visit the company office after lunch.   The Judge of Compensation and the Appellate Division inCooper felt that petitioner was just taking his coffee break, like any other employee would.  But Mr. Mackoff was driving a much longer distance off the route to his office for a hot dog without having any other business meetings scheduled that day.

This case can be found at Mackoff v. New Brunswick Saw Service, A-3625-19 (App. Div. July 14, 2021).

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

What happens when an injured worker gets a normal MRI study after a work injury but later on a second MRI shows an operable tear? Can the findings on the second MRI be related back to the original injury?  The Appellate Division addressed that issue inCostanzo v. Meridian Rehab, A-5547-18 (App. Div. June 17, 2021). 

Patricia Costanzo slipped and fell on April 1, 2016 while working at Meridian Rehab as a recreational aide. She felt pain in her left knee and underwent an MRI, which showed no tear and no fracture. It did show some prior osteoarthritis in the knee.  Respondent paid for PT and a series of injections, and petitioner returned to work thereafter.  She had a subsequent injury in August 2017 while walking on a beach (unrelated to work) and injured her right knee, requiring a meniscectomy.

The issue in this case arose when petitioner started feeling increased pain in her left knee in January 2018 and underwent a second MRI for the left knee.  She denied reinjuring the left knee in the beach incident that injured her right knee.  On this new 2018 left knee MRI, an anterior cruciate ligament tear and a meniscal tear could be plainly seen.  Petitioner filed a motion for medical benefits for the left knee tear seeking payment from Meridian Rehab for surgery.  Capehart Shareholder,Carla Aldarelli, Esq., handled this case successfully for Meridian Health System.

Petitioner’s expert, Dr. Cary Skolnick, testified that the new tears in the left knee were related back to the original accident of April 1, 2016.  He stated that the action of striking the ground caused petitioner’s arthritis to worsen to the point where additional treatment was needed.  Further, he opined that both the meniscus and ligament were stretched in the 2016 incident to the degree that only a few fibers were holding them together and those fibers eventually broke.

In contrast, the Judge of Compensation credited the testimony of Dr. Shawn Sieler, who diagnosed only a left knee contusion in the April 2016 fall.  Dr. Sieler testified that petitioner fully recovered from this incident.  Dr. Sieler was of the opinion that the meniscal and ACL tears “can only be explained by some subsequent traumatic accident.”  He did not accept Dr. Skolnick’s theory about fibers in the knee being stretched to a breaking point.  He noted that if arthritis was a factor, there was evidence before the April 2016 incident of arthritis in the knee.

The Honorable Salvatore Martino, Judge of Compensation found Dr. Skolnick’s testimony to be lacking in both credibility and logic.  The judge observed that Dr. Skolnick did not directly address some questions posed to him, and he became somewhat argumentative with respondent’s attorney.  Judge Martino said, “While it is clear that more severe pathology currently exists as compared to the time period closer to the injury date, there does not appear to be a reasonable connection between the mechanism of the injury and the current state of her pathology.”  The judge found Dr. Sieler’s testimony on lack of causation to be more credible because it was more consistent with the order of the MRIs.

Petitioner appealed and argued that Judge Martino erred in assessing Dr. Skolnick’s credibility.  The Court wrote, “Contrary to petitioner’s contentions on appeal, there was ample evidence in the record to support the judge’s conclusion that the current condition of petitioner’s left knee was not related to the injury she suffered when she fell at work in April 2016.  At that time, petitioner suffered only a contusion. The MRI taken in June 2016 revealed no meniscus tear and no ACL tear.  Although the MRI showed that petitioner had arthritis in the knee, this was a preexisting condition.”

For these reasons, the Appellate Division endorsed the conclusion of Judge Martino that there was no medical evidence that the arthritis in petitioner’s left knee had worsened as the result of the April 2016 fall. 

The argument in this case occurs quite frequently in workers’ compensation.  While every case is fact sensitive, the general rule for practitioners should be that when there are two MRIs that are vastly different from each other, the MRI closest in time to the work accident will generally control.  If a subsequent MRI shows findings that did not appear in the first MRI close to the time of accident, it makes little sense to draw causation. 

The analogy would be to a car that has a few tiny nicks on the windshield.  A minor car accident occurs at some point and a photo taken a few weeks after the accident shows no change in the windshield at all.  The nicks are exactly as they were. Two years later the owner gets in the car one morning and is shocked to find that there are now giant cracks all over the windshield.  The entire windshield needs replacement.  Under Dr. Skolnick’s theory, the minor car accident would be responsible as opposed to some other intervening event during the past two years.   While anything is possible, the legal standard remains more likely than not.   Under Dr. Sieler’s logic, the dramatic change in the windshield would be more likely due to some intervening event.

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

All too often holiday parties end with some unfortunate injury.  Is such an injury covered in workers’ compensation?  It depends on the circumstances. The Court in Regalado v. F&B Garage Door, A-0083-20, (App. Div. June 8, 2021), found that the injury in this case did not arise out of and in the course of employment.

Some of the facts in the case were undisputed.  On Friday, December 23, 2016, the company hosted its annual holiday party at a local restaurant.  The party was for employees, friends and family.  No company clients or vendors were invited. The owner of the company, Frida Ferrera, said that the purpose of the party was to thank employees for their hard work throughout the year. 

Petitioner, Ms. Regalado, invited her brother as in prior years.  Since neither of them drove, the owner drove them to the party.  The vehicle in which they all drove was owned by Martinez, who was not employed by the company.  Everyone at the party except the owner consumed alcohol. No one was paid to attend the party nor compensated for travel time.

The parties also agreed on the circumstances of the accident.  After the party ended, Ferrara drove first to her own home.  She exited the vehicle and then Martinez, the car owner, got in the driver’s seat.  Minutes later Martinez drove into a parked car, which caused the vehicle to flip over, resting on its roof.  Petitioner and her brother were treated at the ER and petitioner required surgical procedures to her neck and jaw.

Petitioner filed a workers’ compensation claim petition.  She argued that the owner told her she would not receive a holiday bonus if she did not attend the holiday party.  This allegation and others made by petitioner were disputed.  Petitioner also claimed that she received her cash bonus at the restaurant.  During testimony, however, petitioner said that she would not have attended the party if transportation had not been provided.

Respondent produced three lay witnesses.  They all testified that bonuses had already been paid prior to the holiday party.  The owner denied saying that petitioner’s bonus was contingent on attending the party.  The owner testified that the party was optional and there were no job ramifications for refusal to attend. Another employee testified that he attended the party for two years and was never told his bonus was contingent on attending.  He also said the bonus was paid prior to the party.

The only documentary proof offered by petitioner was a bank statement listing her deposit history between December 9, 2016 through January 10, 2017.  Those documents showed $540 was deposited on December 27, 2016.  Petitioner’s math did not add up.  She said this amount represented three days of pay at $60 per day plus a $300 cash bonus received at the party.  That total was $480, not $540.

After hearing testimony on several days, the Judge of Compensation found petitioner not credible nor consistent.  He observed that petitioner testified to receiving different amounts on different days of testimony.  He also thought it was contradictory for petitioner to say that she would not have attended the party without transportation being provided but then maintain that her attendance was essentially mandatory.  As for the bank deposit, the Judge of Compensation noted that there was no showing when petitioner received these funds.  The judge dismissed the case and petitioner appealed.

The Appellate Division explored the requirements under N.J.S.A. 34:15-7.  It noted that for a social activity to be compensable petitioner must prove that there is a benefit to the employer beyond improvement of health and morale. In this case the party was clearly about employee morale since only coworkers, friends and family were invited, not clients or vendors.

That left one remaining legal argument made by petitioner, namely that her attendance was mandatory.  There is a line of cases in New Jersey that establishes compensability when an employee is required to perform some activity, whether recreational or social.  The Court found no evidence that petitioner was in fact required to attend, or that there were threats of reprisal to her for non-attendance.  The Court viewed the party as an informal gathering on an optional basis.  It gave no weight to petitioner’s argument that her bonus was on the line because other witnesses made clear that the bonus was paid prior to the party.  The Court agreed with the Judge of Compensation that petitioner’s statement that she would not have attended the party absent transportation conflicted with the so-called mandatory nature of the party.

The lesson from this case is that employers who wish to host holiday parties and other similar events should make clear in writing that attendance is optional and voluntary and that there are no adverse job consequences for non-attendance.

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

For employers, perhaps the most negative aspect about New Jersey Workers’ Compensation Act is the proliferation of what are called “reopener” petitions.  These do not exist in many states. The injured worker in New Jersey who receives a permanency award can file within two years of the last date of treatment or payment of indemnity benefits for an increase in disability.  One reason employers get frustrated is that it is so easy to file a reopener claim petition in New Jersey even when the injured worker has never requested or received treatment from the date of the award right up to the date the reopener has been filed. 

Modification petitions or “reopeners” comprise a large percentage of claim petitions in the Division.  Either party can file for modification, but rarely do employers ever file to lower a percentage award.  While most small percentage awards are not reopened, most large percentage awards do get reopened.  This blog focuses on questions that employers should consider when faced with a reopener petition in determining whether the medical condition described in the prior award is deserving of additional treatment and ultimately an increase in the percentage of disability. Alternatively, is this a case that should be tried to a conclusion or should it be resolved on a Section 20?

We must start with what are known as form reopener interrogatories that are required to be completed by petitioners.  The 18 questions on the form reopener interrogatories are helpful.  They include questions about medical treatment and hospitalizations since the prior award, subsequent employment, new claim petitions against other employers and a question about new accidents/injuries: “Have you suffered any other accident or injury or occupational condition since the date of your last compensation hearing?”

These are all good questions but they are insufficient. In the opinion of this practitioner, the questions contained in reopener interrogatories are outdated and fail to address some of the most important issues.  Let’s consider the case of a 50-year-old man with preexisting osteoarthritis. He sees his co-employee struggling to lift a heavy box and hurries over to assist.  In so doing he feels sudden pain in his left knee. A partial tear is diagnosed, surgery ensues, and an award gets entered for 25% of the leg.  At the time of the settlement petitioner gives his complaints and testifies that he still enjoys jogging, going to the gym and playing basketball. 

Eighteen months later a reopener is filed with no treatment having occurred during those 18 months.  The petitioner answers “no” to the question about any new accident or injury since the award.  However, the petitioner has had knee pain since the award while working out in LA Fitness where he regularly goes, but the form interrogatories contain no question along those lines.  Here is the problem with the question about subsequent “accidents” or “injuries.”  If you ask 100 people for the definition of an accident or an injury, you will get 100 different answers.  But if you ask whether the petitioner has had pain in his knee during the past 18 months, that is a yes or no question.

Petitioner’s counsel sends a letter to the adjuster requesting a referral back to the former surgeon.  Now what? Options include setting up an exam right away, waiting for answers to form interrogatories before doing anything, or declining the request completely, which may prompt a motion for medical and temporary disability benefits. But there is another option:  before deciding to set up an exam, defense counsel or the adjuster can ask counsel for petitioner some simple questions:

1.      “Has your client been jogging, going to the gym or playing basketball in the past 18 months?”  — remember, he testified to doing this at the time of settlement.

2.      “When did your client begin to experience pain over the past 18 months and what was he doing when he felt the pain?”

Assume that the employee’s attorney responds that his client has in fact been going to the gym and has occasionally felt pain while working out.  Counsel also states that after running sometimes petitioner felt more pain and swelling in his knee but he did not see a doctor.  Is this information potentially important?  The answer is emphatically yes and the examining doctor must consider it.  Would you have gotten this information if you just used form reopener interrogatories.  The answer is probably no.  The point is that one must ask the right questions to get the right information.      

A better interrogatory question than asking for a subjective characterization of whether there was a new accident or new injury would be to ask about the existence of pain in the knee since the award and the connection to any specific activity.  There is a difference between a case where the employee says: “every day since the award my pain has never left me” as opposed to “I had 17 good months and then I was in the gym and the old knee pain suddenly returned.”  

Practitioners know that if someone has a preexisting knee condition but that condition is legally aggravated (objectively worsened) by a work event, the employer is liable.  But that rule works both ways.  If someone gets an award for the knee and then post-award the knee condition is aggravated by running or working out in the gym, the employer may no longer be liable.  Medical experts must comment on the connection between the non-work activities and the worsening in the knee.

Times have changed in the past 40 or more years since reopener interrogatories were created.  Back then there were no gyms in every shopping center and no treadmills and elliptical machines at home.   The hot stocks were IBM and GE, not Nike and Peloton.  It is a significant omission that the form reopener interrogatories have no questions about gym activities, use of home exercise machines, outdoor sports, etc., and no questions about the existence of new or episodic pain since the prior award. For purposes of both treatment and increased disability, treating and evaluating doctors need to get information on physical activities which the petitioner engaged in since the prior award.

What can employers do when faced with a request for treatment 18 months post-award? Defense counsel can ask petitioner’s counsel for information on what physical activities petitioner has engaged in during the past 18 months.  What sports activities has the injured worker engaged in?  Could this be a case where the petitioner has been regularly hiking, jogging, riding a peloton or outdoor road bike?  If so, that information may be highly important to the doctor.  In addition, counsel and the adjuster can ask when the petitioner first felt pain since the award, or was the pain there all along since the time of the award?

Adjusters, employers and defense counsel should resist the temptation to view reopener interrogatories as the only questions that can ever be asked.  Frankly, most petitioners’ counsel want to move the case along and get their clients to treating physicians.  If the questions are reasonable, they will address them.  In the same way, when petitioner’s counsel asks for the personnel file of the petitioner, most employers oblige even though there is no specific rule on this.

New Jersey is a state where the formal discovery is only moderately relevant; therefore informal discovery is critical to engage in.  The doctor selected for the medical examination can also go into questions along these lines, but how many doctors understand what a reopener is?  To put this in perspective, 18 months is a very long time:  there could several hundred visits to the gym during that period of time or a few hundred two mile runs.  What role did these activities play, if any, in the worsening of the knee case discussed above?

The lesson in all this is that in reopener cases employers need to focus heavily on the time period between the award and the date of the reopener.  Social media can assist in certain cases, and interviews with supervisors can help identify possible outside activities. A new ISO is often pivotal.  Unfortunately, the current diagnosis is that New Jersey’s form interrogatories seem rather out of shape and in need of a good workout.

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

For over 100 years it was accurate to say that the New Jersey Workers’ Compensation Act is a benefits law, not an employment rights law – but not for long.  On May 20, 2021, the New Jersey Assembly voted in favor of creating a hiring preference for certain employees who reach maximum medical improvement (MMI).  Under A2617 an employer with 50 or more employees must provide a hiring preference to an injured employee who has reached MMI, is unable to return to his or her own former position, but can perform the essential duties of an existing unfilled position.

When an employment law provision like this gets inserted into the New Jersey Workers’ Compensation Act, one must wonder what is the problem that the legislature is trying to resolve?

Perhaps the rationale was to reinforce existing employment laws under the New Jersey Law Against Discrimination and the ADA?   No, that cannot be the answer because the laws are different.  The NJLAD and ADA require the worker to prove a disability for coverage and the employee has the obligation to make a request for reasonable accommodation.  A2617 does not contain a requirement that covered employees must prove a disability or request a reasonable accommodation. It seems to cover any and all employees who reach MMI and who cannot perform their former job –  but only if their injury arose from work.

Perhaps the rationale was to solve the problem of employees not being able to find new jobs? The sponsors wrote, “Workers’ compensation injuries can be traumatic and devastating.  No injured employee should be left without options for work?”  This cannot be the answer either because the US Bureau of Labor Statistics announced on March 31, 2021, that the number of unfilled jobs in the United States is 8.1 million.  New Jersey’s population is 3% of the nation’s total.  Using three percent as a ballpark percentage for New Jersey, there would be 240,000 unfilled jobs in this state. It is easier today to find a job than it has been in half a century.

Maybe the rationale was to help a narrow category of workers who are financially disadvantaged by injuries? No, that does not make sense. Consider two employees with identical low back injuries who require fusion surgery at L4-5 and L5-S1.  Employee A falls on January 1, 2021 on his deck at home and has fusion surgery. Employee B falls on January 1, 2021 at his work desk and has the same fusion surgery.  Both reach MMI in May 2021.  Employee A is not eligible for the $969 per week for lost time benefits (temporary disability benefits) because the injury occurred at home.  Employee A is also not eligible for full medical coverage and must pay expensive deductibles and co-pays. Finally, Employee A is not eligible for partial permanent disability benefits in workers’ compensation. 

By contrast, Employee B gets $969 per week for temporary disability benefits, has no medical bills to pay under workers’ compensation and eventually settles the workers’ compensation case for 40% permanent partial disability or $124,080 – all of which is tax free.   So which worker did the legislature attempt to provide the job preference to? You guessed it: the one with the advantages of workers’ compensation coverage.

When it comes to the concept of a hiring preference for workers with injuries, there is no logical rationale to distinguish between seriously injured workers who get hurt at home versus those who get hurt at work.  The NJLAD doesn’t make that distinction.  The ADA doesn’t make that distinction.   These employment laws are already adequate, and there is no need for A2617. 

What does this bill do for the welfare of the state? Assuming A2617 in fact creates rights that did not previously exist for employees who cannot perform their job duties due to work-related injuries, one must wonder why would the legislature subject employers to potential for more litigation over and above the cost of workers’ compensation when so many employers in the northeast are already fleeing to more friendly business climates in the south?

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

On Tuesday, April 20, 2021, New Jersey Governor Phil Murphy signed into law a bill co-sponsored by Senators Troy Singleton and Dawn Addiego.  The bill will provide weekly supplemental benefits to surviving dependents of essential employees who contracted COVID-19 through work.  The benefits will be paid by the New Jersey Second Injury Fund.

The prerequisites for a dependent to receive this supplemental benefit are that the decedent must have been an essential employee under New Jersey law, and there must be a court order in the form of a dependency award in the Division of Workers’ Compensation.  While the law itself does not mention the need for a dependency award, the Office of Special Compensation Funds advised Capehart partner Stephen Fannon, Esq. that dependency judgments must first be entered before the Second Injury Fund can pay the supplemental benefits. This is similar to the public safety law, N.J.S.A. 34:15-95.6.

The Office of Special Compensation Funds also advised that the petitioner must fill out several documents which are listed on the Office’s website before the supplemental payments will be made.  The expectation is that counsel for petitioner will fill out the calculation sheet also located on the website of the Office of Special Compensation Funds.  None of this is in the actual law.

The formula for the supplement requires that one should use the workers’ compensation weekly dependency benefit initially awarded as the numerator and use the state’s maximum workers’ compensation death benefit as the denominator.  In 2021 the maximum death rate is $969. Consider then a hypothetical case where an essential employee dies in 2021 from COVID-19. The employee’s wage was $830.57 giving rise to a dependency rate of $581.40, which is 60% of the maximum death rate of $969.  Every year as the maximum death rate rises, a supplemental payment will be made to the dependent so that the dependent’s benefits never drop below 60% of the maximum death rate in effect for subsequent years.  Without that supplement, the dependent’s rate would remain the same every year, as it does for almost all other dependents in New Jersey.

The notice provision of the law was not well thought out. The new law states that the Second Injury Fund must be notified by the insurance carrier or self-insured employer of the need to have the Second Injury Fund make supplemental benefit payments. That notice must be completed not later than the 60^th day after the “date on which it is determined that the payment of supplemental benefits is required pursuant to this section.”  That date clearly will be the date of the dependency award entered by the Judge of Compensation.

But the Office of Special Compensation Funds has already advised that petitioner’s attorney must complete certain forms on their website before payments will be made.  It would seem then that the notice will be coming from petitioner’s attorney.  Yet the law goes on to provide ominously, “If the insurance carrier or self-insured employer fails to notify the division and that failure results in the payment of an incorrect amount of benefits, the liability for the payment of the supplemental benefits shall be transferred from the Second Injury Fund to the employer until the time at which the insurance carrier or self-insured employer provides the required notice.”

The penalty language imposed on the carrier or employer makes absolutely no sense since the forms that need to be completed will be executed by petitioner’s attorney, who will be providing notice through those forms, and no payment can be made until the Fund receives those forms.  One may surmise that there was a communication failure between the bill sponsors and the Office of Special Compensation Funds.  If delays are occasioned by the failure of petitioner’s attorney to submit those forms, why would the insurance carrier or employer be penalized for not giving timely notice?  Given this legislative snafu, employers, self-insureds and their counsel will be well advised to provide notice to the Fund in writing by certified mail immediately after a dependency award has been executed by the Judge — even though the employer and carrier have no control over the submission of the necessary forms that will trigger the supplemental payments. 

What about all the cases that have already been accepted in the past year involving essential employees but have never gone through court?  The Office of Special Compensation Funds advised my partner, Steven Fannon, that court orders will need to be entered for dependents to receive the supplemental payments. Claim petitions will need to be filed to convert the voluntary tender of dependency benefits into a dependency order.

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