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New Jersey



It is not uncommon for a claimant to file an occupational disease claim but then at trial attempt to prove a case that is much more like a traumatic injury claim.  The reverse is also sometimes true.  How do courts treat these shifting proofs? 


            In Rivera v. United Parcel Service, the claimant began with UPS in 1992 initially loading trucks.  He became a commercial driver in 1999 delivering packages that weighed between one ounce and 190 pounds. On May 3, 2004, Rivera filed a claim petition alleging that constant bending and lifting caused an occupational back condition.   UPS filed an answer denying the claim petition.


            Trial ensued and petitioner said during his testimony that there was one particular day in July 2003 that was the cause of his back problem.  He said he was picking up for a company named Albees and felt sharp pain while lifting a 15-20 pound box.   He said he notified his supervisor,  Mr. Sam Battista, of his injury.  Nonetheless, he continued working and finished the day “with pain.” 


Petitioner further alleged that Battista told him to go home the next day because he was still in pain. That was a Friday and he rested over the weekend and returned to work on Monday.  Rivera claimed that he was unable to get clearance to see a doctor at  Concentra, the company approved facility for workers’ compensation, on Monday because Battista’s manager was not working that day.   Rivera said he went to see his union shop steward, Mr. Chris Eltzholtz, who instructed him to see a personal physician using his health insurance. 


Rivera obtained treatment through health insurance, including back surgery at NYU Medical Center.  NYU later intervened in the workers’ compensation case to obtain reimbursement of $49,525.35 for medical treatment it contended should have been paid in workers’ compensation.


During trial the following discussion took place on the record about the inconsistency between the claim petition and the proofs:


[The Court]:  The claim petition in this matter alleges occupational exposure on or about 1/2003?


[Counse]: Correct.


[The Court]:  Did I mishear when I heard July, 2003? . . . . Well, in other words, the direct testimony, July, 2003, picking up at Albees? . . . . But yet the claim petition talks about January 2003, an occupational?


[Counsel]:  Right.  Those are not inconsistent. He also said, even after he finished picking up the box at Albee’s, he continued to lift boxes and continued to have problems.  That was the particular day when his back got really bad but he was having problems since January 2003, which is consistent with the treating records. . .


UPS called Battista as a witness.  He said he did not recall any conversation with Rivera about a back injury in July 2003.  He denied being petitioner’s supervisor at that time.  Battista also said that it did not ring true that the shop steward would have told petitioner to see his own personal physician.  There was apparently no testimony at trial from the shop steward.


Petitioner produced testimony from Ricky Lezott, a center manager employed by UPS.  Mr. Lezott said that Rivera was out of work from January 4, 2003 until April 21, 2003 and from August 12, 2003 to December 26, 2003.  He did not know whether the absences were work related.


The Judge of Compensation considered all the evidence and found that petitioner had sustained a compensable accident with UPS in July 2003.  He found petitioner to be credible in his testimony.  He also found that Rivera did not “precisely follow and adhere to UPS policy and procedures” in reporting and treating his injury but found that petitioner did report the incident to Mr. Battista.   This was a critical finding by the judge because it negated any notice defense that UPS might have had.


The case was ultimately concluded by another judge as the first trial judge retired.  The succeeding Judge of Compensation awarded petitioner 35% credit 5% for his back.  UPS was also ordered to reimburse NYU for $49,525.35.


UPS appealed and argued that there were inconsistencies in the claim petition and petitioner’s testimony that should have disqualified Rivera from an award. The Appellate Division addressed these inconsistencies:


We acknowledge that petitioner’s claim petition referenced an occupational claim manifesting in January 2003, while Judge Rosamond’s finding of compensability hinged upon the occurrence of a work-related injury in July 2003.  However, Rivera’s testimony alleged a specific accident in July 2003, and the case was tried as such.  Essentially, the judge disregarded this inconsistency and amended the pleadings to conform to the evidence.  In so doing, we perceive no error.


The Court also rejected the argument that it was unfair surprise to UPS for petitioner to discuss a July 2003 accident for the first time at trial since there was a treating report from Dr. Ferrer of August 5, 2003, furnished during pre-hearing discovery, referencing an incident in July 2003.  The case shows that judges will generally conform the pleadings to the proofs at trial.  In essence, the judge disregarded the language on the claim petition and focused on whether a work-related accident occurred pursuant to the proofs at trial.  There are risks to both parties when this happens:  if the trial judge had found that Rivera failed to provide timely notice of a specific accident, there would have been no award.  Lack of notice is a defense in New Jersey to traumatic claims but there is no notice defense in occupational disease claims.


The case can be found at Rivera v. United Parcel Service, A-0710-12T1 (App. Div. December 17, 2013).