Delays Doom Continental Employee’s Workers’ Comp Claim

Smile Alvarez worked as an International Service Manager for Continental Airlines.  He flew to Quito, Ecuador on October 21, 2001 and went to check his door to make sure it was in the disarm position.  On entering the airplane’s galley, he tripped and did a near somersault, striking his head, shoulders and neck on the airplane’s floor.  He refused to seek medical treatment in Ecuador.  Instead, he soaked in the hotel hot tub because he felt sore.

When he returned to the United States, he did not treat at Continental’s Whole Health Clinic in Newark.  He had planned an extended leave of absence to care for his ill mother and therefore took his leave.  He noticed sharp pain radiating down his left arm while on leave.  His hand was also numb.

In April 2002, Alvarez returned to his job in Houston, Texas.  He was unable to check in for a series of day flights because the pain in his arm was intolerable.  He saw a doctor at Continental’s Whole Health Clinic who gave him ibuprofen and sent him home.  He then went on sick leave and did not return to work for almost a year.

On April 12, 2002, Alvarez saw Dr. Diaz, a neurologist, who ordered an MRI, which showed a herniated disc.  He filed a workers’ compensation claim in Texas on April 19, 2002.  Continental denied that claim for failure to timely report an injury, or lack of timely notice.

On July 6, 2002, Alvarez underwent cervical fusion surgery.  Later in the month he filed a workers’ compensation claim in New Jersey asserting that he was injured on October 21, 2001.

Respondent filed a motion to dismiss the claim for lack of timely notice but the Judge of Compensation denied the motion.  Alvarez testified three times:  twice before the initial Judge of Compensation and a third time on December 14, 2012 before a second Judge of Compensation, who took over the case after the retirement of the first judge.

On January 25, 2013, the Judge of Compensation dismissed the case for failure to provide timely notice.  Petitioner appealed and argued that his delay in notifying the employer about his accident should be excused because he had been unaware of the causal link between the accident and the injuries he sustained.  The Appellate Division disagreed with petitioner, noting that the New Jersey Workers Compensation Act requires an employee to notify the employer of an injury at the latest within 90 days.  The court further stated:

N.J.S.A. 34:15-17 ‘serves to insulate employers from having to investigate an onslaught of passing accidents that do not result in injury and therefore do not constitute accidents under the statute.’

The Court added:

While the symptomatology emanating from Alvarez’s fall may have worsened over time, Alvarez was aware of the injury he incurred from the moment he struck his head, shoulders, and neck in the airplane galley.  Such injuries are wholly distinct from their latent and insidious progressive counterparts that prey upon their victims without any prior indication that they were even exposed to injury.

The lesson for practitioners is that the notice defense is viable in New Jersey.  It is a very generous defense in that the employee may be sometimes allowed up to 90 days to notify the employer of injury.  The converse is that the employer does not have to prove that the employee knew his diagnosis for the notice defense to be invoked. For the employer to win a notice defense, the employer must show only that a reasonable person would know he or she was injured in the accident and failed to provide notice within the 90-day period.

The case can be found at Alvarez v. Continental Airlines, A-3039-12T3 (App. Div. October 18, 2013).

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Delays Doom Continental Employee’s Workers’ Comp Claim

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County Park Commission Immune under Landowner’s Liability Act for Fall on Golf Course Footbridge

New Jersey Public Entity Law Monthly – Vol. II, Issue 10

By: Betsy G. Ramos, Esq.

The Appellate Division ruled that the Landowner’s Liability Act (“the LLA”), N.J.S.A. 2A:42A-2 et. al., immunized the Somerset County Park Commission (“the Commission”) from a bodily injury claim filed by the plaintiff who fell while crossing a footbridge in the County’s golf course. In Lareau v. Somerset County Park Commission, 2013 N.J. Super. Unpub. LEXIS 2437 (October 9, 2013), the appeals court found that the LLA protected the Commission from this negligence claim.

On March 1, 2009, the plaintiff had been visiting his father-in-law who lived adjacent to the golf course. During the visit, he decided to take a walk on the course to calibrate his father-in-law’s GPS. During the walk, the plaintiff crossed the footbridge over the stream at the eighth fairway. The bridge was covered with a matting that was similar to an indoor/outdoor carpeting and was in disrepair.

According to the plaintiff, the bridge was slippery, it had no handrails, and had a steep slope. As he was descending the bridge, he fell.

The defendant Commission argued that the plaintiff was a trespasser because the course was not open to the general public. The plaintiff, however, contended that he thought it was a “public park” open to all and he had seen others walking their dogs on the course.

In addition to pursuing immunity based upon the Tort Claims Act, the Commission claimed that it was immune from liability based upon the LLA. Under N.J.S.A. 2A:42A-4 of the LLA, an owner owes no duty to keep its premises safe for use by others for sport or recreational activities or to give warning of any hazardous condition of the land in connection with the use of the structure or by reason of any activity on such premises to persons entering for such purposes.

There are exceptions to the LLA, which the court found inapplicable, such as a willful or malicious failure to warn or where consideration is paid to engage in sport or recreational activity.

The Appellate Division stated that the statute was amended in 1991 to make it clear that the LLA applies, whether the land was in a natural or improved state, or whether the land was the site of a commercial enterprise. The LLA was intended to cover premises that were primarily undeveloped, open and expansive rural and semi-rural properties.

However, the Court noted that the LLA had been interpreted to afford immunity to rural and semi-rural or open tracts of land. The golf course in this matter consisted of an open tract of land in a sparsely populated area. The Appellate Division pointed out that the Commission would have difficulty guarding against intermittent trespassers on the course.

Maintenance of an open tract of land and allowance of access by the general public were precisely the types of conduct the Legislature sought to encourage by enacting the LLA. Thus, the Court found that extending immunity to the Commission would encourage it to allow members of the general public to continue to have limited access to the course for some recreational use. Thus, the Appellate Division upheld the trial court’s order granting summary judgment to the Commission and dismissing the plaintiff’s claim.

This case points out another immunity, available to public entities for negligence claims resulting from falls or accidents in public parks or other open tracts of land, under the Landowner’s Liability Act. In addition to the protections of the Tort Claims Act, public entities should keep the LLA in its arsenal of defenses against these types of claims.

Hellander and Pollice-Beyrouty Hired to Firm’s Workers’ Compensation Department

Mt. Laurel, NJ – – Capehart Scatchard is pleased to announce that Katherine A. Hellander, Esq. and Alycia I. Pollice-Beyrouty, Esq. have recently joined the Firm’s Workers’ Compensation Department in its Mt. Laurel office.

Ms. Hellander, a Blackwood resident, and Ms. Pollice-Beyrouty, a Hamilton resident, represent insurance carriers and employers in the defense of workers’ compensation claims at all stages of litigation.

Employer Is Entitled to Reimbursement of Lien Even If Comp Case Is Ultimately Found Not Compensable

New Jersey has a very powerful subrogation provision.  That message was emphasized in Greene v. AIG Casualty Company, A-6287-11T4 (App.Div. October 16, 2013), a published decision rendered by the Appellate Division.  It does not matter that the compensation case is ultimately found non-compensable: the employer still can enforce its lien rights as to prior payments made.

Kelly Greene worked for AIG and was injured on a wet floor in the lobby of the building where she worked.  AIG did not own the building and leased only a portion of the premises.  AIG initially denied the claim but thereafter paid substantial medical benefits without prejudice under N.J.S.A. 34:15-15Greene also put AIG on notice of its subrogation rights under N.J.S.A. 34:15-40.

After investigating the lease agreement further, AIG eventually denied the claim as not arising out of the employment.  In the interim, Greene recovered $225,000 in a civil action against the landlord.  AIG sought reimbursement from Greene for two thirds of its workers’ compensation payments of $118,804.

Greene took the position that AIG was not entitled to reimbursement of its workers’ compensation lien if the case was found not compensable.  Counsel for both petitioner and AIG reached agreement that the case was not compensable given that AIG did not own or control the lobby area where the accident occurred.  The only issue was whether AIG was entitled to $79,203, representing two thirds of its payments. The Judge of Compensation held that since the case was not compensable, AIG was not entitled to its subrogation rights.  The Judge concluded:

Section 40 is a part of the Workers’ Compensation statute.  It is applicable in situations involving workers’ compensation claims and cannot be taken out of context to apply generally.  If the claim is determined not to be compensable, the section is inapplicable.  If it is compensable, the section applies.

AIG appealed from the order denying lien reimbursement.  In a decision of first impression, the Appellate Division reversed the decision of the Judge of Compensation and held that AIG was entitled to reimbursement for  two thirds of its payments of $118,804, notwithstanding that the claim was non-compensable.  The court wrote:

Contrary to petitioner’s argument, nothing in either Section 15 or Section 40 conditions reimbursement of the claim from a third-party settlement on whether the benefits the employer paid were owed in the first place. Section 15 expressly provides that any payments the employer makes are without prejudice to a defense of non-compensability, and Section 40b allows the employer reimbursement from the third-party recovery if the sum recovered by the employee is ‘equivalent to or greater than the liability of the employer.’”

The Court went on to state that its holding is consistent with the remedial purpose of the Act by “making benefits readily and broadly available to injured workers through a non-complicated process.” Tlumac v. High Bridge Stone, 187 N.J. 567 (2006).  The court said that this policy encourages employers to make prompt voluntary payments because it provides much needed medical and wage loss benefits to claimants while their claim is being investigated.  In addition, the court said that its decision is consistent with the policy in New Jersey against double recoveries.

In an interesting twist, petitioner argued that she was penalized by AIG’s voluntary payments in this case because she would have been better off, in retrospect, by directing the medical treatment through her health insurance, thereby not having to reimburse the carrier.  The court disagreed with this view, relying on the collateral source rule, N.J.S.A. 2A:15-97.  “Under our collateral source rule, petitioner would have been obliged to disclose to the court any amounts she received from her health insurer and they would have been deducted from any tort judgment. Perreira v. Rediger, 169 N.J. 399 (2001). Accordingly, had petitioner’s health insurer paid her medical expenses instead of AIG, the benefit would have accrued to the third-party tortfeasor, not to petitioner.”

This case is the only published decision on this rather unusual issue. The undersigned handled the appeal of this case for AIG.

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Employer Is Entitled to Reimbursement of Lien Even If Comp Case Is Ultimately Found Not Compensable

Capehart Scatchard Attorney Addresses Workers’ Compensation Issues in California

Mt. Laurel, NJ – – Capehart Scatchard Executive Committee Member John H. Geaney, Esq. recently spoke at the Focus Customer Conference 2013, sponsored by ISO Crowe Paradis.  ISO Crowe Paradis Services Corporation is a leading provider of Medicare Secondary Payer (MSP) services to the property/casualty insurance industry.  The conference was held at the Hilton Los Angeles in Universal City, CA.

Mr. Geaney participated in a panel discussion on “Exploding Claims:  Early Identification and Intervention.”   The panel addressed strategies for early identification and intervention in handling  workers’ compensation claims.

Trusts & Estates Attorney Joins Capehart Scatchard

Mt. Laurel, NJ – – Capehart Scatchard is pleased to announce that Douglas M. Nelson, Esq. has recently joined the Firm’s Trust and Estates Group in its Mt. Laurel office.

Mr. Nelson, a Delran resident, concentrates his practice in probate litigation, estate administration and estate planning.

Mr. Nelson received his law degree from Seton Hall University School of Law, magna cum laude and his B.A. degree  in Political Science from the University of Delaware.  Upon law school graduation, Mr. Nelson worked as a law clerk to the Honorable Karen L. Suter, Chancery Division, General Equity Part, Burlington County.   He is admitted to practice law in New Jersey and Pennsylvania.

Capehart Scatchard Litigation Attorney Speaks to Public Entities

Mt. Laurel, NJ – –  Capehart Scatchard Shareholder and Executive Committee Member Betsy G. Ramos, Esq. spoke on “Managing Snow and Ice Liability Issues” at a recent seminar sponsored by the University of Wisconsin – Madison, College of Engineering, Department of Engineering Professional Development.   Ms. Ramos focused her presentation on liability concerns in snow and ice removal operations and how public entities can minimize potential for liability.  The seminar was held at the Bear Creek Mountain Resort & Conference Center in Allentown, PA.

Intentional Harm Suit in Death Case Rejected as Barred by the Exclusivity Provision in Workers’ Compensation

Once again a plaintiff has failed to get past the exclusivity provision in the New Jersey Workers’ Compensation Act.  In Estate of Samuel Sellino and Phyllis Sellino v. Pinto Brothers Disposal, LLC., A-2064-12T1 (App. Div. September 23, 2013), the Appellate Division considered whether an employer could be sued for allegedly removing or bypassing a neutral relay switch leading to a tragic death.

Samuel Sellino worked for Pinto Brothers Disposal, LLC (Pinto Brothers).  On October 17, 2008, Sellino was working in Long Beach Township with Chris Pinto.  Sellino was driving the truck, and Pinto was getting on and off the truck to throw brush in to the garbage compactor.  Arriving at one house, Sellino exited the truck, and left the vehicle in drive with the parking brake engaged.  The truck started rolling down the street, and Sellino and Pinto pursued it.  Sellino fell under the wheels of the truck and died.

The company policy was that drivers must remain inside the cab and are not to leave the cab to assist co-workers.  One witness testified that Sellino had been told not to leave the truck before the fatality occurred.

Plaintiffs filed a suit and alleged that Pinto Brothers removed or bypassed a “neutral relay,”  which was an electrical switch that required the vehicle to be in neutral in order for the compactor to function.  The evidence was unclear whether the company did in fact remove or bypass the neutral relay but for purposes of the motion to dismiss the law suit, the court assumed that the company did bypass the switch.  Plaintiff’s expert testified that the death would not have occurred had the neutral safety switch not been bypassed.

Pinto Brothers moved to dismiss the law suit and prevailed at trial, arguing that the suit was barred by the exclusivity provision of the New Jersey Workers’ Compensation Act.  The Appellate Division affirmed that ruling.  The court said, “ . . . bypassing the neutral relay created a risk of injury to its employees.  This falls short of showing that Pinto Brothers acted with knowledge that such action was ‘substantially certain to result in injury or death to the employee.’”  The court noted that just knowing that a workplace is dangerous is not the same as engaging in intentional wrong.

The court also held that the type of accident that happened in this case is a fact of industrial life.  Indeed, Phyllis Sellino, the widow, testified that she was aware of injuries suffered by other garbage truck drivers involving similar factual situations.  Sellino himself was the driver of a truck that ran over an employee in the late 1980s.  “Accordingly, Sellino’s death and the circumstances in which it occurred cannot be considered to be ‘plainly beyond anything the legislature could have contemplated as entitling the employee to recover only under the Compensation Act,’”(citations omitted).

This case underscores a recurring theme that intentional harm suits must meet an extremely high burden of proof  in New Jersey and in fact, it is truly only the most rare case that can meet this standard.

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This blog article was researched and written by John H. Geaney, a member of the executive committee and equity partner at the law firm of Capehart Scatchard. The content of the this article is intended to provide general information on the topic presented, and is offered with the understanding that the author is not rendering any legal or professional services or advice. This article is not a substitute for legal advice. Should you require such services, retain competent legal counsel.

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Intentional Harm Suit in Death Case Rejected as Barred by the Exclusivity Provision in Workers’ Compensation

Capehart Scatchard Attorneys Recognized as Top Rated Lawyers

Mt. Laurel, NJ – – Fourteen Capehart Scatchard  attorneys were named as New Jersey Top Rated Lawyers for 2013, as selected by the prestigious Martindale-Hubble attorney information specialists.  All fourteen received a rating of “AV”, being the highest level of both competence and ethics, and with the further distinction of receiving a Peer Rating of 5.0 out of 5.0, as published in www.law.com. Very few lawyers achieve these peer accolades.

The Capehart Scatchard top rated lawyers are:  Administrative – Glenn Paulsen and John Fiorilla; Alternative Dispute Resolution – Bruce Harrison and Betsy Ramos; Appellate Law – William Wright;  Banking & Finance – Peter Bejsiuk; Bankruptcy – Peter Bejsiuk and Sergio Scuteri; Business & Commercial – Thomas Begley, Peter Bejsiuk, Betsy Ramos, Charles Rizzi, Larry Winne and William Wright; Civil Rights – Bruce Harrison and Alan Schmoll; Commercial Litigation – John Fiorilla, Sergio Scuteri and William Wright; Construction Law – Sergio Scuteri; Education – Alan Schmoll; Environmental – Glenn Paulsen; Family & Elder Law – Amy Goldstein; General Practice – John Fiorilla, Bruce Harrison, Charles Rizzi, Alan Schmoll and Larry Winne; Litigation – Glenn Paulsen, Betsy Ramos and Claire Ringel;  Real Estate Law – Charles Rizzi; Trusts and Estates – Thomas Begley; Workers’ Compensation – Stephen Fannon and Claire Ringel.

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