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In response to the world-wide coronavirus epidemic, one of the most remarkable societal changes taking place in America today is the ubiquitous transition from working in an office to working from home. The deadly coronavirus is forcing this change, but many think that even when this crisis passes, American businesses will start to reevaluate the advantages of telecommuting given the incredible technology we all have at our fingertips and the potential cost savings in office space. As tens of millions of new home-based employees carry on their daily work tasks, many clients have begun to ask about the ramifications for workers’ compensation. The questions this practitioner is receiving almost daily are whether home workers are covered under workers’ compensation and if so, under what circumstances?
The starting point on this discussion is N.J.S.A. 34:15-36, which provides that employment commences when one arrives at the employer’s place of employment. However, the statute continues that when an employee is required by the employer to be away from the employer’s place of employment, that employee is in the course of employment when engaged in the direct performance of duties assigned or directed by the employer.
In one reported case involving a salesman, the court recognized that the home can be considered the petitioner’s primary place of employment. Wilkins v. Prudential Insurance and Financial Services, 338 N.J. Super. 587 (App. Div. 2001).
Surprisingly, there are not many reported cases dealing with home injuries, although one may safely surmise that this may be about to change. In Kossack v. Town of Bloomfield, 63 N.J. Super. 322 (Law Div. 1960) the court ruled for a police officer who injured himself cleaning his service revolver at home. The court found that the officer had a duty to keep his revolver clean, noting that the municipality placed no limitations on time or place in regard to this duty.
In another case involving a police officer, the petitioner was working the 7:00 p.m. to 7:00 a.m. shift and got permission from her Sergeant to drive home for dinner while on duty so long as she remained in radio and telephone contact. The officer finished her meal, headed out the door of her home, and slipped and fell on black ice on her property. The court found for petitioner on the grounds that the accident occurred in the course of her employment because she was authorized to take her meal at home. DeCoursey v. Tp. of Randolph Police Dept., No. A-0915-06 (App. Div. Aug. 14, 2007), certif. denied, 193 N.J. 222 (2007).
Most home injuries involve traumatic events like a slip and fall, but the New Jersey Supreme Court considered an interesting occupational disease claim several years ago, focusing on an employee who worked extensively on her computer at home. In Renner v. AT&T, 218 N.J. 435 (2014), Mrs. Renner was authorized to work from home three days per week. She was working on a deadline project and stayed up and worked all night. At 7:50 a.m. Mrs. Renner took her son outside to catch the school bus and grabbed her leg in pain while walking out of the house. At 9:00 a.m. she sent an email to a co-worker stating that she did not feel well but would complete the project. At 11:34 a.m. she called the Edison Township EMS stating that she could not breathe. She was pronounced dead on arrival at the hospital from a pulmonary embolism.
The expert retained by Mrs. Renner’s dependent husband testified that sitting at a desk for many hours contributed to the decedent’s deep vein thrombosis and death. The Supreme Court accepted the testimony of respondent’s expert that the death was not caused by work activities and was not a compensable occupational disease. The Court accepted the notion that petitioner could be covered for workers’ compensation purposes while working at home, but the court concluded that in this case there was no causation between prolonged sitting and her fatal pulmonary embolism.
One can safely state that under New Jersey law, injuries that occur in the course of working at home are on equal footing with injuries that occur in the course of working in the traditional office. Yet there may sometimes be surprising differences:
* Consider two employees: Employee W is injured in a large office space leaving her immediate work station to converse with a friend on the opposite side of the office. She slips and falls near her friend’s work station, 30 yards away. Employee H is working in a study at home and walks upstairs during a break to speak with his son who is home sick. He slips and falls in the bedroom. Both employees suffer a broken arm. Would both cases be compensable?
Employee W would be covered because she is on the work premises during work hours when she falls. New Jersey has a strong premises rule. But Employee H is now outside the study where he works and is upstairs in his house. Would you consider the entire house to be the work premises? Is that the intention of any employer who authorizes telecommuting? Does the employer lack any formal document at all about what is considered the work premises?
* Suppose Employee W takes a break at 10:15 to get coffee at the on-premises office cafeteria and is jostled pouring the coffee, causing severe burns. The same thing happens to Employee H at home in his kitchen. Is the kitchen part of the work premises?
In the office scenario, Employee W’s burns will be found compensable under the mutual benefit doctrine because there are some activities that benefit both the employer and employee. Coffee breaks are one of them. Further, the employee cafeteria is on the premises. An off-premises slip and fall by Employee W at a Wawa during a break would not be compensable, however.
But what about Employee H? The court in Cooper v. Barnickel Enterprises, 411 N.J. Super. 343 (App. Div.), certif. denied, 201 N.J. 443 (2010) found that a master plumber who worked on the road was covered when he was injured on his five mile drive to get a cup of coffee while on break. The theory was that someone who works outside an office should have the same opportunity for coffee breaks or restroom breaks as one who is in the office. Does Employee H have a strong argument that he should be treated the same as someone in an office? Probably yes although there is no reported case on point.
You can immediately see that the absence of any documentation about home office expectations is problematic. So what actions can employers take to get some measure of control over home injuries? After all, there are not likely to be witnesses to home injuries other than family members, and there are no security cameras to verify the mechanism of injury or location of injury. This practitioner recommends that employers consider the following issues in connection with a written understanding for employees who are approved to telecommute.
* Does the employer intend to authorize the entire home as the work site? If not, it would be important to put in writing the specific locations that the employee will conduct assigned business, perhaps a home office or the kitchen table but not the rest of the house. That will avoid claims for slips and falls in the driveway while walking to get personal mail or falls in the basement while checking the heater.
* Are there specific hours that the employee is permitted to work or does the employer allow work at any time suitable to the employee?
* Will the employee be required to clock in online and clock out when finished for the day?
* Is the employer responsible to supply and repair equipment such as printers, computers, and fax machines? Will the employer provide ergonomic assistance to home employees if that is also offered to office employees who experience arm or wrist pain?
* Employers should make clear that all the normal reporting requirements must be followed when an injury occurs to a telecommuting employee arising out of the employment. Same day notice is recommended so that the employer can contact its third party administrator or carrier for investigation and, if appropriate, direction of care.
This practitioner is of the opinion that telecommuting is here to stay in much larger numbers. Financial considerations, traffic considerations, environmental considerations, and enhanced productivity related to elimination of commuting time all favor the rapid ascent of telecommuting. From a workers’ compensation standpoint, the number of home injuries is likely to be far less than those in traditional office locations particularly if the employer at a minimum designates a specific area where work is authorized.
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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.
The New Jersey Workers’ Compensation court calendars were suspended March 17, 2020 through April 3, 2020. On Monday, March 30, 2020, the Director of the Division of Workers’ Compensation, Hon. Russell Wojtenko, Jr. advised in a Notice to the Bar that a limited reopening will occur on Monday, April 6, 2020 to permit telephonic case conferences and settlements.
There are 15 vicinages in New Jersey for workers’ compensation hearings. One supervising judge from each district will be available to discuss certain cases telephonically. The emphasis will be on emergent matters as well as settlements by affidavit, motions for medical and temporary disability benefits and certain pretrial conferences.
In the March 30 Notice, the Director made clear that there will be no in-person workers’ compensation proceedings (except for extremely limited emergent matters and certain ongoing motions for medical and temporary benefits and trials in which social distancing will be enforced).
The Director’s Notice to the Bar emphasizes that the goal of the Division is to limit the exposure and spread of the COVID-19 coronavirus to court personnel, attorneys and their staff, as well as litigants, witnesses and members of the public. The Notice observes that New Jersey workers’ compensation courts will continue to be closed to the public and to non-essential court personnel until April 13, 2020.
Employers, third party administrators, carriers and all practitioners should understand that time demands on the supervisory judge in each venue will be significant in attempting to cover multiple court lists each day. Still this Notice is very positive news in that emergent matters and settlements by affidavit can now move forward.
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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.
Justin Wild, a licensed funeral director, was diagnosed in 2015 with cancer and was prescribed marijuana under the New Jersey Compassionate Use Medical Marijuana Act.
In May 2016 Wild was working a funeral when his vehicle was struck by another vehicle that ran a stop sign. Wild advised a treating doctor at the hospital that he had a license to possess medical marijuana. The doctor concluded it was clear that Wild was not under the influence of marijuana and therefore he would not need to be tested to return to work.
Wild returned to work, but several days later Wild was told that the company was unable to “handle” his marijuana use and that he was “being terminated because they found drugs in your system.” The company wrote Wild a letter stating that he had been terminated not because of his drug use but because he failed to disclose his use of medication that might adversely affect his ability to perform job duties. Plaintiff’s mother later heard a rumor going around that Wild was fired because he was “a drug addict.”
Wild sued his employer, Carriage Funeral Holdings, Inc., alleging that his employer discriminated against him based on disability due to his use of medical marijuana off site. His employer tried to stop the law suit in its tracks by moving to dismiss the case for failure to state a claim upon which relief can be granted. The employer argued that the Compassionate Use Act does not contain employment –related protections, relying on language in the Compassionate Use Act that states, “nothing in this Act shall be construed to require … an employer to accommodate the medical use of marijuana in any workplace.”
Wild countered that this language does not mean that the LAD may not impose its own obligations on the employer. Wild said he was not seeking an accommodation to use marijuana in the workplace, only an accommodation that would allow his continued use of medical marijuana off-site and off work hours.
Wild lost at trial but obtained a reversal in the Appellate Division. On March 10, 2020, the New Jersey Supreme Court affirmed the decision of the Appellate Division, allowing Wild to proceed with his case. The Court held that there is no conflict between the Law Against Discrimination and the Compassionate Use Act. It said, “The Compassionate Use Act does have an impact on plaintiff’s existing employment rights. In a case such as this, in which plaintiff alleges that the Compassionate Use Act authorized his use of medical marijuana outside the workplace, the Act’s provisions may be harmonized with the law governing LAD disability discrimination claims.”
This is the first case in which the New Jersey Supreme Court has addressed the right of an individual who uses medical marijuana to pursue employment litigation for termination of employment due to use of medication outside the workplace. While this case did not arise out of workers’ compensation, the case is instructive to practitioners because there are many injured workers using medical marijuana in New Jersey. This is one of the first decisions on the state’s Compassionate Use Medical Marijuana Act.
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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.
The concept of legal causation is fundamental to master in handling claims. If there is no legal causation, the claim should be dismissed. The claimant must prove an accident which arises from the employment. There must be a work connection. When a case poses a serious issue of legal causation, the most common mistake is to send the injured worker immediately to the doctor for an opinion on causation.
Let me explain this further. Let’s say your case involves an employee whose allegation is that she got up from a chair and felt sudden low back pain, or was walking down the corridor to speak with her supervisor when she felt knee pain, or she put on her coat to leave for home and felt sharp pain in her shoulder. These are examples of normal and routine activities that happen at work (and everywhere else in life) that manage to find their way into workers’ compensation files. What is it that all these scenarios have in common? The answer is the absence of legal causation.
The natural impulse of an adjuster or defense lawyer is to get a medical opinion when a claim is filed. That is how we are trained. That impulse must be resisted when there is no legal causation. Why? Because the doctor is going to advise you in the first instance that rising from the chair caused low back pain, in the second instance that walking down the corridor led to pain from some defect in the knee, and in the third instance that putting on the coat may have caused a tear in a weak shoulder. That is medical causation, not legal causation. Opposing counsel will argue: “Why hasn’t this case been accepted? The doctor says the condition is causally related, right?” A deep hole has been dug, and the defense dug it.
After a certain amount of backtracking on why the doctor’s opinion really doesn’t matter, the defense must eventually argue that there is no legal causation. Secondarily, the defense must concede that the medical opinion was unnecessary as it clearly placed the defense in an awkward position in court. In essence, the defense must contend that there was no accident that arose from the employment. Not everything that happens at work arises from work.
Sometimes it helps to look at issues like this from a different vantage point. Imagine sitting comfortably in your chair on a Sunday afternoon watching a football game. At a commercial break, you get up to get a snack and suddenly feel sharp pain in your back as you come to a standing position. You begin a course of treatment for a severe sprain. Would you argue that home caused your back injury? Of course not. People would laugh at such a suggestion because this could have happened anywhere, arising from a chair in church, at a movie or on a bus. It just so happened that it occurred at home during the Sunday ritual of watching a football game, but home was not the proximate cause of any injury. In workers’ compensation there must be a true work connection between the activity performed and the injury experienced. Mere coincidence does not substitute for causation. In contrast, a chair that breaks while one sits in it certainly would meet the test of an accident.
Claims that lack legal causation happen every day in every state and often become the subject of extensive medical, temporary disability and permanency payments. Some routine activity that we all engage in, like bending to tie one’s shoes, causes pain and leads to treatment, but often the activity is not work connected to begin with. A doctor is consulted and gives an opinion on medical causation, and everyone forgets about the legal causation requirement. The claim gains momentum and the costs mount.
Common sense tells us that if an employee turns to look out the window at work or turns to speak with a colleague and feels a spasm in her neck, this is not a workers’ compensation accident. The neck may need treatment nonetheless. Medically speaking, the action of turning one’s neck can occasionally lead to pain but legally speaking, there is no accident arising from work by just turning to look at a person or a thing. So when you encounter a case like this, the best advice is to stop, analyze the facts, and try not to snatch defeat from the jaws of victory, as the old saying goes.
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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.
Many readers of this blog have inquired recently about the potential impact of the novel coronavirus on workers’ compensation claims. Should a surge of serious coronavirus illnesses occur among New Jersey workers, would such claims be considered compensable under the law?
The answer to this question depends on whether one is or is not a public safety worker. Most New Jersey workers would not meet the test of a public safety worker. For non-public safety workers, the likelihood of successfully maintaining an occupational disease claim under N.J.S.A. 34:15-31 would be very low. The reason is that a claimant must show that the medical condition, for instance pneumonia, is more likely than not produced by causes which are characteristic of or peculiar to one’s occupation in a material degree. This test is hard to meet because it is next to impossible to identify the source of the virus. Many people who do not even know they have Covid-19 and are not yet symptomatic may be infecting large numbers of individuals in all sorts of locations. For an infected employee, it would be hard to know whether one was exposed to the virus at work, in a store or some other places of human contact. It would almost always be pure speculation where the exposure occurred.
Public safety workers, on the other hand, will have a strong argument for compensability. The legislative intent of the Twenty First Century First Responders Protection Act was to protect public safety workers. That law became effective in New Jersey on July 8, 2019. This landmark legislation observes that “public safety workers are required by necessity to take great personal risks of serious injury, illness and death in their duties to protect the people of New Jersey from the dangers of catastrophic emergencies, including, but in no way limited to, terrorist attacks and epidemics.” Unfortunately, the coronavirus has the potential to reach epidemic levels in the USA just as the virus has in China and other nations.
N.J.S.A. 34:15-31.4 defines a public safety worker broadly to include not just fire and police officers, but also “a Community Emergency Response Team approved by the New Jersey Office of Emergency Management, or a correctional facility, or a basic or advanced medical technician of a first aid or rescue squad, or any other nurse, basic or advanced medical technician responding to a catastrophic incident and directly involved and in contact with the public during such an incident. . .” There are likely to be thousands of public safety workers in New Jersey who will be part of state efforts to contain any potential rapid spread of this virus.
N.J.S.A. 34:15-31.5 provides a presumption of compensability in subsection a. if a public safety worker can demonstrate exposure at work to “the excretions, secretions, blood or other bodily fluids of one or more other individuals or is otherwise subjected to a potential exposure, by the other individual or individuals, including airborne exposure, to a serious communicable disease, or is otherwise determined to be infected with or at significant risk of contracting the serious communicable disease. . . “ Readers should focus on the language “or is otherwise subjected to a potential exposure” in the preceding sentence. The language does not say definite or proven exposure but rather “potential” exposure. Public safety workers, by the nature of their work, are highly likely to have such potential exposures to those who are infected with coronavirus.
These new provisions of New Jersey’s occupational disease law demonstrate that public safety workers who may contract coronavirus will have a strong case for compensability given the presumption provided for in the statute. Having a presumption of compensability is powerful. When there is presumption of compensability, the burden of proof shifts to the employer to show that the exposure is not work related. Just as I said earlier that it is hard for a non-public safety worker to prove exposure, so too it would be very hard for an employer to prove that a public safety worker more likely than not was infected through non-work exposures. The employer will have no idea when the disease was contracted, and it would be speculation to say that the exposure was not work related. So the presumption in a public safety worker scenario will almost certainly lead to compensable awards.
The statute drives this point home: “If it is ascertained that the public safety worker has contracted a serious communicable disease or related illness under the circumstances set forth in subsection a of this section, there shall be a presumption that any injury, disability, chronic or corollary illness or death of the public safety worker caused by, attributable to, or attendant to the disease is compensable under the provisions of R.S. 34:15-1 et seq.”
The CDC has concluded that it is just a matter of time before the coronavirus is considered a pandemic and before it spikes in parts of the United States. If the CDC is right, New Jersey public safety workers run a high risk of contracting the illness in the course of their employment. While slightly more than 80% of coronavirus patients have had mild symptoms, the remaining percentage has had serious symptoms. Sadly, a small percentage of deaths is related to the coronavirus. It is true that the percentage of deaths from coronavirus may not be any higher than the percentage of deaths from the flu each year in the USA, but there is a difference: there is no current vaccine for this virus and it has proven thus far to be highly contagious.
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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.
Adjusters and employers familiar with other state workers’ compensation laws are often surprised to find out that the New Jersey Workers’ Compensation Act contains no statute requiring employers to pay for transportation costs to get employees to medical appointments and no mileage reimbursement provision.
When an employer requires an injured worker who has moved out of state to come back to New Jersey for an independent medical examination, the employer does not have to pay for airfare, reimburse costs of travel, or reimburse mileage.
Yet there are situations where it may make good sense for employers to consider providing transportation. One such situation occurs when there is an offer of light duty. As readers well know, the Harbatuk case stands for the proposition that an employer can terminate temporary disability benefits on an offer of light duty if the injured employee refuses the light duty offer. Suppose the injured employee is more than willing to accept the light duty offer, but the authorized treating doctor will not permit the injured worker to drive a car as a result of the work injury? Should the employer refuse to pay temporary disability benefits when the employee does not appear for the light duty assignment?
This situation happens quite frequently because many injuries lead to restrictions on driving following surgery or the employee may be taking authorized prescription medications that negate driving. When faced with this issue, most Judges of Compensation will not endorse the termination of temporary disability benefits when an employee wants to come back to work light duty but cannot due to a restriction against driving imposed by the treating doctor. Judges do not consider this to be a refusal to perform light duty, so it may make sense in this situation to provide some means of transportation.
Distance is often the key variable. Many injured workers have long drives to work where no public transportation is available. Some employers will offer to have a fellow employee pick up the injured worker and drive the injured worker to the light duty assignment. In rare situations, employers may even provide an Uber or Lyft driver. Still other employers faced with this dilemma will simply continue to pay temporary disability benefits until the injured worker reaches maximal medical improvement or can return to driving. New Jersey is a state where temporary disability benefits end at MMI or return to work full duty, whichever is earlier.
Another transportation issue arises when the injured worker cannot get to physical therapy or make treating appointments because of a driving restriction placed on the worker by the authorized physician. Again, there is no case law on this issue, nor any statute that addresses it. Employers will often come up with a creative solution because they know that if the employee cannot get to treatment or therapy, the recovery period will be lengthened.
Thus far we have discussed cases involving driving restrictions. But there is a large contingent of New Jersey workers who do not own cars and only get to work through employer provided transportation. When an injury occurs to such an employee, there may be no way to get to the office of the treating doctor. Some employers provide transportation in this situation. It is also worth noting that there are a few occupational health facilities and physicians that provide transportation, picking the employee up for treatment and returning the employee to his or her residence. This is an important service that employers should bear in mind.
The lesson in all of this is that the absence of a statutory provision on transportation has not prevented New Jersey employers from creating practical solutions to challenges in getting employees to work and to medical appointments.
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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.
The recently passed legislation L. 2019, C. 387 increasing the value of hand and foot injuries in New Jersey has generated considerable debate about which cases the law affects. Does it affect only cases filed after the date the law was passed? Or does it affect all cases presently pending in the Division of Workers’ Compensation but not yet subject to a court order?
One point all practitioners agree on is that the law does not affect prior court orders. There is no indication that the law was meant to be primarily retroactive, requiring old orders to be reconsidered. But there remains the question of whether the law is supposed to be secondarily retroactive, meaning affecting all present claims, even those filed before the effective date of the law, but not yet subject to a court order.
The law states that “This act shall take effect immediately.” There is no language specifically stating that the law should have “prospective relief only,” nor any clear language stating that the law should be in any way retroactive. So the focus is on the meaning of the words “shall take effect immediately.”
Practitioners have two reported workers’ compensation cases to consider on this issue. Unfortunately, these two cases seem to be in conflict. Both involve the dependency statute. The first is Harris v. Branin Transport, 312 N.J. Super. 38 (App. Div.), certif. denied, 156 N.J. 408 (1998). In that case, Anne Harris became a statutory dependent back in 1979 when her spouse died in a work-related accident. Under the old law, any income after 450 weeks had to be offset against dependency benefits. Harris was earning $128 per week after 450 weeks, so that amount was deducted from her dependency award.
In 1995 the law was changed removing the earnings credit. Harris applied to end the removal of the earnings credit. The question was whether or not the new law removing the earnings credit would apply to only new dependents after 1995 or to all current and existing dependents. The Appellate Division held that the new law was intended to apply to Harris and others like her who were already receiving dependency benefits, calling this “secondarily retroactive.” The Supreme Court declined to accept the case, so that the Appellate Division stood. If Harris is followed, the hand and foot bill would affect all existing claims in the Division not yet decided.
Nine years later another change in the dependency law occurred. In Cruz v. Central Jersey Landscaping, Inc., 195 N.J. 33 (2008), the Supreme Court considered an amendment that removed the graduated dependency scale. Prior to 2004, one dependent received 50% of wages, two received 55%, three received 60%, four received 65% and five or more received 70% of wages. The new law established that one dependent alone would receive 70% of wages, eliminating the graduated scale.
Four separate cases were tried and eventually were consolidated before the Supreme Court. All four claimants were existing dependents who had filed claims before the law was passed in 2004, and they argued that they should get the benefit of the new law. The Division split on whether the new law was prospective only; the Appellate Division ruled the new law was secondarily retroactive as in Harris above, but the Supreme Court reversed. The very same language appeared in that Act, namely that the law was supposed to have immediate effect. The Supreme Court held that the new law should only apply to those who filed after the effective date of the Act. The Supreme Court said:
Indeed there is nothing in the amendments or in the sponsors’ statements that suggests that the Legislature intended to give the new benefit level retroactive effect of any kind. We certainly see no basis in the legislative history, and in an interpretive framework that includes our prior holding that vesting occurs on the date of death, to conclude that the Legislature intended to effect a reopener of settled awards. Nor is there anything in the directive that the act ‘shall take effect immediately’ to suggest retroactivity. On the contrary, these words bespeak an intent contrary to, and not supportive of, retroactive application.
The Supreme Court interpreted the words “shall take effect immediately” to imply only to those cases filed in the future, i.e., filed after the effective date of the amendment to the Act. The Court was concerned about how far back one goes, stating that retroactive application would mean reaching even beyond pending and non-finalized claims, implying that it could be applied to closed orders in the past. But no one is arguing that the hand and foot bill should affect orders entered in the past. The argument on the hand and foot bill is between secondary retroactivity (existing claims) versus prospective effect. If Cruz is followed, the hand and foot bill will only apply to claim petitions filed after the effective date in late January 2020.
It is very difficult to reconcile the decision in Harris with the decision in Cruz. In Harris the Supreme Court did not take the case and therefore let the Appellate Division stand; In Cruz the Supreme Court took the case and reversed. The decisions were only nine years apart but the reasoning diverged markedly.
This practitioner has spoken with many attorneys and clients about this issue. Defense attorney Joe Soriano took the time to review the legislative history and the sponsor’s statement and notes that there is no clear intention that the bill should be retroactive in any way. He points out the word “retroactive” does not appear anywhere in the legislative history, sponsor’s statement or the legislation itself.
This practitioner has also spoken with several petitioners’ counsel. They make the point that the words “shall take effect immediately” do not mean the same thing as “shall have prospective effect.” The argument from the petitioner side is that if that was the intention, why wouldn’t the Legislature have simply said: “This law shall only apply to claim petitions filed after the effective date.” The meaning of the language “shall take effect immediately “ is open to interpretation.
In the meantime, what should employers and carriers do? Suppose they settle a case without paying the new higher rates on hand and foot injuries, only to receive a decision a year from now from the Appellate Division ruling that they should have paid the increased weeks? In that instance, the award would have to be reopened and corrected. For this reason, it may be wise to reserve for this potential outcome until there is a decision.
What about petitioners’ counsel? Suppose the Judge of Compensation rules that the petitioner is entitled to the benefit of the new law, only for the Appellate Division to rule a year from now that the law is not retroactive. Does the petitioner owe the money back to the carrier? Should an amount be set aside for that eventuality?
The sooner we hear from the courts on this issue the better for all workers’ compensation practitioners. We thank the many counsel who have provided their input on this important issue.
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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 New Jersey a medical provider dispute arising from a work injury can only be filed in the Division of Workers’ Compensation ever since the 2012 Amendments. But the 2012 Amendments to the New Jersey Workers’ Compensation Act failed to answer one fundamental question: how long does the provider have to bring a claim in the name of the injured worker? Are medical providers bound by the same two-year rule that applies to claimants? The Supreme Court provided the final answer on February 3, 2020 in The Plastic Surgery Center, P.A. v. Malouf Chevrolet- Cadillac, Inc.
The case involved several claim petitions filed by The Plastic Surgery Center more than two years after the employee’s accident. The Judge of Compensation ruled that the claims were out of time, but the Appellate Division reversed in favor of the medical providers. The Supreme Court granted certification and heard the arguments last month. In its decision the Supreme Court adopted the reasoning of the Appellate Division wholesale.
First the Court observed that before the 2012 Amendments, medical provider claims were governed by the general six-year statute of limitations which applies to contract claims. The Supreme Court agreed with the two main arguments that the medical providers made to the Appellate Division. The 2012 Amendments could not have been intended to restrict claims to two years because the definition of claimant in the New Jersey Workers’ Compensation Act would have to be expanded to include medical providers.
More importantly, the Court said:
Second, the two-year period simply doesn’t fit: N.J.S.A. 34:15-51 requires that a petition for compensation be filed within two years of ‘the accident,’ but it is likely that an employee might be treated by a medical provider for a period greater than the two-year period following the accident or even not be treated by a particular medical provider until after two years elapsed from the work-related accident. . . . As a result, a provider’s legitimate claim might actually be extinguished before it even accrued. . . . The appellate court declined to interpret legislative silence to produce such a result.
This represents a significant win for medical providers. The result basically guarantees that the number of medical provider claims will continue to rise sharply in the New Jersey Division of Workers’ Compensation. New Jersey remains one of the few states without a medical fee schedule in workers’ compensation. This decision emphasizes the need for employers to work with medical repricing companies which really know the New Jersey market for workers’ compensation treatment in respect to usual and customary charges.
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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.
New Jersey Governor Phil Murphy this week signed into law the long-considered hand and foot Bill, increasing the amount of workers’ compensation benefits paid for injuries producing loss of function for such injuries. The Bill accomplishes the legislature’s goal of providing greater compensation for hand and foot injuries by increasing the number of weeks that an employer will pay. L. 2019, C. 387 also provides modest increases in awards for loss of function of the fingers.
To understand how the new law works, it is important to appreciate that loss of function in New Jersey is compensated with payments of weeks that vary depending on the part of body that is injured. The more weeks one receives, the more money one receives. Injuries producing loss of function to the trunk, head, neck, back, shoulder, and hip (falling under the partial total category on the rate chart) are compensated the highest in New Jersey with each percentage correlating to a payment of 6 weeks. So an award of 50% for loss of function of the back means payments will be made over 300 weeks because each percent awarded is multiplied by 6 to arrive at total weeks.
Historically, hand and foot injuries have been compensated with a relatively small number of weeks compared to those involving the back, neck, trunk, and shoulder as described above. Currently an injury producing loss of function of 1% of the hand is compensated with 2.45 weeks. Under the new law, such an injury is now compensated at 2.6 weeks until the award level reaches 25%. Similarly, under current law an injury producing loss of function of 1% of the foot is compensated with 2.3 weeks. Under the new law, each percent of loss of function of the foot is now compensated at 2.5 weeks until the award level reaches 25%.
Here is the big change. For more serious hand and foot injuries, the new law creates a stepped up number of weeks. This is new to New Jersey law. L. 2019, C. 387 creates a disability threshold at which there is now a second increase in the number of weeks over current law. The threshold is 25% loss of function. Once an award is found to produce loss of function of 25% of the hand, each percentage of the hand is compensated at 3 weeks instead of 2.6 weeks (current law is 2.45 weeks). Similarly, at 25% of the foot, each percentage of the foot is compensated at 2.85 weeks instead of 2.5 weeks (current law is 2.3 weeks). So the big change is that hand and foot injuries, unlike all other scheduled losses (legs, arms, etc) will have two schedules for weeks for compensation. There will be one weekly schedule for loss of function under 25%, and then a new weekly schedule for loss of function of 25% or higher.
This sounds confusing but it is easier to understand by considering an award of 25% of the hand and 25% of the foot. Such an individual will receive 75 weeks of benefits (3 weeks times 25) instead of 65 weeks because there is an upward adjustment in the number of weeks at the 25% level. (Note that current law is 61.25 weeks for 25% of the hand). An injured worker with an award of 25% of the foot will receive 71.25 weeks of benefits instead of 62.5 weeks if there had been no upward adjustment in the number of weeks. (Note that current law is 57.5 weeks for 25% of the foot). This will make a larger percentage difference in dollars as the loss of function rises.
This concept should ring a bell for experienced practitioners who know about the “bump” at 30% permanent partial disability. In 1979, the New Jersey Legislature accomplished the same goal of compensating more serious injuries with higher dollar rates when an injury produces loss of function greater than 30% or above 180 weeks. The hand and foot bill does it differently. It does not increase the dollar rate for each week, but rather it increases the number of weeks of compensation one will receive once an injury reaches the 25% loss of function threshold. An injured worker will receive more weeks of compensation over current law for hand and foot injuries no matter what the percentage, but when the injury produces loss of function of 25% or higher, that injured worker will receive an upward adjustment to his or her weeks starting from week one.
Let’s consider an award of 50% of the hand and 50% of the foot under the new law at 2020 rates versus the current law. One can see that in actual dollars, the new law generates substantially more money to an injured worker on account of the jump in weeks for any award at or above 25%.
Current law – 50% of the hand equals 122.5 weeks or $33,364
New law – 50% of the hand equals 150 weeks or $43,128 (an increase of 29%)
Current law – 50% of the foot equals 115 weeks or $30,969
New law – 50% of the foot equals 142.5 weeks or $40,318.50 (an increase of 30%)
Now let’s compare an award of 15% for carpal tunnel syndrome and an award of 15% for tarsal tunnel syndrome:
Current law – 15% of the hand equals $9,261
New law – 15% of the hand equals $9,828 (an increase of 6%)
Current law – 15% of the foot equals $8,694
New law – 15% of the foot equals $9,450 (an increase of 8%)
Readers can see that the percentage increase in dollars on small awards is far less than the percentage increase on higher awards. The new law also makes some minor changes in compensation for the following finger injuries in terms of adjusting weeks higher:
* 80 weeks of compensation for the low of a thumb (currently 75);
* 60 weeks of compensation for the loss of a first (index) finger (currently 50);
* 50 weeks of compensation for the loss of a second finger (currently 40);
* 40 weeks of compensation for the loss of a third finger (currently 30);
* 30 weeks of compensation for the loss of a fourth (little) finger (currently 20)
There are two other changes to N.J.S.A. 34:15-12 worth mentioning as part of this Bill. Section 12E has been amended to raise from $3,500 to $5,000 the amount paid by the employer in case of death of the person from any cause other than the accident or occupational disease during the period of payments of permanent injury. The remaining payments shall be paid to such of the deceased person’s dependents or, if there are no dependents, the remaining amount due, but not exceeding $5,000, shall be paid for burial or funeral expenses.
In addition, Section 12(c) has been amended to read: “An award of permanent total disability shall not bar an additional amount from being added to an amputation award. The amount of the additional award shall not be subject to subrogation pursuant to R.S. 34:15-40, as it shall not be considered a payment for compensation except for rating purposes.” This clarifies that the so-called amputation bonus is not lienable and is payable even in the case of a total and permanent disability award.
For copies of the new law, feel free to contact the undersigned. This new law is now in effect on all cases.
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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.
This week the New Jersey Appellate Division decided Hager v. M&K Construction, A-0102-18T3 (App. Div. January 13, 2010). The issues of whether an employer must reimburse an injured worker for the costs of medical marijuana and whether such a court order would violate federal law have been the source of much controversy in the Division. Hager is the first published opinion in our state to address these issues.
The facts can be briefly summarized as follows: petitioner, then 28-years-old, was injured in 2001 working on a construction site for M&K Construction when a truck delivering concrete dumped its load onto him. M&K denied the claim and stated that it was investigating the matter. For reasons not made clear in the reported decision, the trial did not begin in workers’ compensation until 15 years later in November 2016. During the course of the trial M&K stipulated that petitioner had sustained a compensable accident. However, the employer opposed petitioner’s claim for total and permanent disability and opposed petitioner’s request to reimburse him for the cost of marijuana under the New Jersey Compassionate Use Medical Marijuana Act (MMA).
During the many years since the date of injury, Mr. Hager endured chronic disabling pain and underwent multiple unsuccessful lumbar surgeries. At trial he described his pain as starting in his lower back and radiating down his entire left leg to his toes. He said that the pain affected every activity of his daily life and that he could only stand for a half hour to an hour at a time. Lying down lessened the pain only marginally. He became dependent on the use of opiates. He sought care with a chiropractor. At various points over the years he was prescribed Oxycontin, Oxycodone, Valium, Lyrica and other pain medications.
Petitioner saw Dr. Joseph Liotta in April 2016, who diagnosed him with post-laminectomy syndrome with chronic pain from a spinal nerve injury. Petitioner was also experiencing side effects from his use of Oxycodone. Dr. Liotta provided the required documentation for petitioner’s enrollment into the New Jersey MMA, providing him with a prescription for medical marijuana. He opined at trial that petitioner will need marijuana to manage his pain for the rest of his life. He also said that chemical addiction to marijuana is very weak compared to the more potent addiction to opioids, which can lead to death and many other severe side effects.
At trial petitioner testified that as a result of the use of medical marijuana, he was able to stop taking Oxycodone. He felt that it provided some relief from incessant pain, and it helped him sleep better. He paid $616 per month out-of-pocket for the prescription of two ounces of medical marijuana. During trial, petitioner sought a court order requiring M&K to reimburse him for the costs of the medical marijuana. M&K argued that such an order would violate federal law.
Three other medical experts testified at trial besides Dr. Liotta. Dr. Cary Skolnick testified for petitioner and opined that petitioner was 100% totally and permanently disabled as a functioning unit with a 65% permanent partial disability for the lumbar spine. Dr. Gregory Gallick testified for respondent stating that petitioner, who was then in his 40s, could perform light duty work or drive a car and was not totally disabled. He opined that petitioner had a 12.5% permanent partial disability.
Dr. Brady, a pain medicine doctor, also testified for respondent. He is certified to prescribe medical marijuana in New Jersey but has never done so thus far for any patient. He testified that users of medical marijuana can experience “cognitive difficulties, problem solving cognition, short term memory loss, . . . hallucinations,” as well as an increased risk of lung cancer. He testified that users of opioids could experience “addiction, tolerance, overdose, death, constipation, depression and sexual dysfunction.” He said that marijuana is less addictive than opioids, and he felt petitioner was addicted to opioids and may be addicted to marijuana. He felt that the use of marijuana had not been shown in the literature to be helpful to people with non-malignant back pain. In his opinion, the only measure petitioner could take for his back pain was physical therapy.
The Judge of Compensation ruled that petitioner was disabled to the extent of 65% of partial total with 50% attributed to his orthopedic condition and 15% attributed to the effects of medical marijuana. The judge ordered M&K to reimburse petitioner for the costs of medical marijuana and related expenses. The judge was not persuaded by Dr. Brady’s position that petitioner should “simply deal with his pain.” The Judge commented that this position was “unacceptable as inhumane and contrary to the law concerning an employer’s obligation to treat.” The judge further noted that the only treatment choices outlined by the experts were opioids and/or marijuana. “This Court concludes that, if the only choice for petitioner is between opioids and marijuana, then marijuana is the clearly indicated option. Both modalities present significant downsides in terms of adverse consequences and risks, but a comparison leads inescapably to a conclusion that marijuana is the appropriate option.”
Both sides appealed aspects of the decision. Regarding the issues raised by M&K, the Appellate Division addressed five separate arguments:
1) Does the Controlled Substance Act (CSA) which makes it a crime to manufacture, possess or distribute marijuana, preempt the New Jersey MMA?
The Appellate Division disagreed with the employer’s argument that it was impossible to comply with the MMA without violating the CSA. The Court began by observing that the MMA decriminalized the possession of a certain amount of marijuana for medical use. One of the Act’s purposes was to protect from arrest and criminal penalties those patients who use cannabis to alleviate suffering. The Court noted that the MMA shields qualifying users of medical marijuana from civil penalties and provides an affirmative defense to patients who are properly registered under the statute but are nevertheless arrested and charged with possession of marijuana.
The Court reviewed two state decisions in New Mexico and Maine dealing with the question of whether their medical marijuana legislation was preempted by the CSA. New Mexico held it was not preempted, but Maine held that it was preempted. The Appellate Division found that the CSA only preempts a state law that requires the performance of an action specifically forbidden by the federal statute. The CSA makes the possession, manufacture, and distribution of marijuana a criminal offense, “But an employer’s reimbursement of a registered MMA patient’s use of medical marijuana does not require the employer to commit those offenses.” The Court added:
The MMA does not require an employer to possess, manufacture or distribute marijuana – the actions proscribed by the CSA. Because it is not physically impossible to comply with the CSA and the MMA, there is no positive conflict between the laws.
2) Does the MMA violate the CSA by aiding and abetting in the commission of a crime?
The Court considered the argument that the MMA puts M&K in the position of aiding and abetting a crime. The Appellate Division gave this argument short shrift:
Under the circumstances presented here, M&K is not an active participant in the commission of a crime. The employer would be complying with an order requiring it to reimburse a person for the legal use of medical marijuana under this state’s law. M&K has not established the requisite intent and active participation necessary for an aiding and abetting charge.
The Court also said that “one cannot aid and abet a completed crime.” Petitioner would have already obtained the medical marijuana before M&K would reimburse him.
3) Does compliance with the court order expose M&K to the threat of federal prosecution?
The Court addressed this argument by observing that there has been tolerance from the federal government of state medical marijuana laws. Since December 2014, “congressional appropriations riders have prohibited the use of any Department of Justice funds that prevent states with medical marijuana programs . . . from implementing their state medical marijuana laws.” The Court said: “Despite the enactment of medical marijuana legislation by the majority of states, M&K could not apprise this court of any federal prosecution against an employer or insurance carrier for its reimbursement of authorized medical marijuana treatment.”
4) Should a workers’ compensation insurer be treated the same under the MMA as a private health insurer?
N.J.S.A. 24:6I-14 states, “Nothing in the MMA shall be construed to require a government medical assistance program or private health insurer to reimburse a person for costs associated with the medical use of cannabis, …” The Appellate Division noted that under Title 17, in defining “health insurance,” the Legislature expressly stated that “health insurance does not include workers’ compensation coverage.” N.J.S.A. 17B: 17-4. The Court said that only two categories of entities may not be required to reimburse the costs of medical marijuana: a government medical assistance program or private health insurer. In essence, the Court held that this argument failed because workers’ compensation is not considered under the law to be equivalent to a private health insurer.
5) Can medical marijuana be considered reasonable and necessary under the New Jersey Workers’ Compensation Act?
The Appellate Division considered a number of precedential cases that have liberally construed medical treatment that has helped patients cope with chronic pain. In this case the Court observed that Dr. Liotta felt petitioner’s pain was irreversible and that he would need to manage pain for the rest of his life. The Court concluded that the use of medical marijuana was reasonable and necessary for the treatment of petitioner’s chronic pain under the circumstances of this case.
The Hager case is now the leading case in the State of New Jersey on the issue of whether the MMA is preempted by the CSA and must be followed by judges in the Division of Workers’ Compensation. If the employer seeks certification from the Supreme Court, it is highly likely that the Court will grant certification.
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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.