Shareholder Lora Northen Addresses National Workers’ Compensation Conference

Lora V. NorthenMt. Laurel, NJ – – Capehart Scatchard Shareholder, Lora V. Northen, Esq. recently spoke on “How to Settle Future Medicals and Comply with the Medicare Secondary Payer Act” at the National Workers’ Compensation Defense Network’s (“NWCDN”) Spring 2015 Conference in Nashville, Tennessee.

Currently serving a two-year term as President of NWCDN, Ms. Northen participated in a panel discussion with three other attorneys from around the country discussing current issues impacting workers’ compensation from a Medical Secondary Payer standpoint.

In addition to her responsibilities as Co-Chair of the Workers’ Compensation Department, Ms. Northen, a Pennsauken resident, focuses her practice in the representation of employers, self-insured companies, and insurance carriers.  Certified as a trial attorney by the Supreme Court of New Jersey in Workers’ Compensation Law, Ms. Northen is a member of the New Jersey, Pennsylvania, Burlington County and Camden County Bar Associations.  Ms. Northen is also a Fellow of the College of Workers’ Compensation Attorneys for the American Bar Association.  She is a frequent speaker on workers’ compensation issues before a myriad of trade organizations.

Recent Win: Mary Grace Lawson v. New Jersey Sports and Exposition Authority

Client: New Jersey Sports & Exposition Authority

Case Tried by Prudence M. Higbee, Esq.

The Petitioner alleged that on August 14, 2009, while working at her part-time job as an usher/ticket-taker, she was struck by the closing doors of a freight elevator causing her to fracture her left femur.  The compensability of this claim was accepted.  Since the parties were not able to agree on the calculation of petitioner’s average weekly wage, trial commenced on the issues of whether petitioner’s wages from her part-time job with NJSEA should be reconstructed to reflect a full-time work week and whether she is capable of maintaining full time employment.  At trial we maintained the position that an award of permanent disability must be based on petitioner’s actual earnings and hours and that the petitioner’s earning capacity was not diminished by this accident.

Petitioner testified at trial that she was hired by the New Jersey Sports and Exposition Authority as a part-time usher and ticket taker.  Petitioner testified that she would work approximately six hours on Saturday, Sunday and depending on the time of year, maybe one other day during the week.  This is typical for any part-time usher/ticket-taker. Petitioner’s duties as an usher included frequently performing seat checks, which required her to walk up and down the stadium steps repeatedly. Petitioner’s duties as a ticket checker required her to stand in one spot for approximately three hours while checking tickets. Of significance, Petitioner stood the entire time during her six hour shift.

At trial, the petitioner conceded that she was never given any permanent work restrictions by the treating physician.  She also agreed that she would return to a full time position if one was offered to her.  In fact, she testified to applying for numerous full time positions and receiving unemployment benefits following her discharge from treatment.  By receiving unemployment benefits she repeatedly certified that she was ready, willing and able to work.

At trial, petitioner’s medical expert conceded that although most petitioners he evaluates have a loss of permanent function, a majority return to work.  Although petitioner’s expert testified that an assessment of permanent disability involves an assessment of petitioner’s level of function, he conducted an inadequate and cursory investigation into petitioner’s recreational activities and job duties. Specifically, he testified that he was unaware of important details concerning petitioner’s return to work, her active lifestyle that included daily walks and swims, and her ability to perform household maintenance including cutting the grass for her parents.

Respondent’s medical expert testified that petitioner was capable of working on a full-time basis.  He based his opinion on the review of the medical records, including the treating physicians and the physiotherapy notes, diagnostic studies, which revealed the fracture had healed and the objective examinations.  Specifically, he noted the treating physician cleared petitioner for part-time work with restrictions in April 2010 and approximately one month later, on May 5, 2010, petitioner was cleared to resume work.

Respondent’s medical expert further testified that petitioner’s left leg condition had improved following a second surgery.   He based his opinion on the review of the medical records, including the treating physicians and the physiotherapy notes and diagnostic studies, which revealed the fracture had healed and the objective examinations.  Specifically, he relied upon a therapy note indicating that petitioner was able to move her left leg more after having the hardware removed as well as a report for the treating physician who discharged petitioner on June 10, 2014 without noting any restrictions.

Our trial brief highlighted the fact that an award of permanent disability must be based on petitioner’s actual earnings and hours.  We also emphasized the petitioner’s discharge from treatment without permanent restrictions, her collection of unemployment benefits certifying that she was ready, willing and able to work, her demonstrated return to her job and perform household chores and even her own admission during trial that her earning capacity was not diminished.

The Court denied the petitioner’s request to reconstruct these wages.   The Judge of Compensation predicated this conclusion on the lack of credible evidence in the record to support a finding that the petitioner has a permanent diminution of full-time wage earning capacity and is unable to work on a full-time basis because of her disability.  The Court agreed with our position and found the petitioner earned an average weekly wage of $106.19 at the time of the August 14, 2009 work accident.  These part-time wages gave rise to a capped permanency rate of $74.33.  By not having to reconstruct the wage respondent saved thousands of dollars.  For example, 35 percent of partial total at a reconstructed wage of $570 is $75,810.00. However, at the actual wage of $106.19, 35 percent of partial total is only $15,609.30.  As you can see, winning on this issue is huge!

Recent Win: Anitre Dorman v. Nordstrom

Client: Nordstrom

Case tried by: John H. Geaney, Esq.

The petitioner filed three claim petitions in connection with this matter.  In the first the petitioner alleged her occupational duties as a sales manager caused hand problems and left and right elbow problems, specifically ulnar nerve compression.  The compensability of the elbow claim was accepted.  In the second claim the petitioner alleged occupational exposure from turning, twisting, bending and lifting resulted in cervical herniated discs as well as injuries to both arms.  This claim was denied.  In the third claim the petitioner alleged that on December 28, 2005 she was pulling a bin filled with winter coats when she injured her cervical spine. This claim was also denied.  Since the parties stipulated to the compensability of the first claim the primary issues at trial were compensability and permanency relative to the petitioner’s second and third claims alleging cervical injuries.

The trial in this matter commenced on August 7, 2013 and included nine days of testimony from seven witnesses before concluding on October 22, 2014.  Petitioner was the first to testify and she described pain in both her left arm and right arm.  The pain extended from her elbows to her fingers.  She also experienced muscle spasms in her neck along with difficulty moving her neck as well as tightness in both shoulders.  She described difficulty at home preparing meals, cleaning, dressing and sleeping.  She also indicated she no longer participates in physical activities such as bowling, swimming and volleyball.

Petitioner’s orthopedic medical expert testified to examining the petitioner on three separate occasions.  He testified that his estimate of permanency changed after each evaluation.  While he initially found the petitioner to be permanently and totally disabled he later limited his findings for the cervical spine to only one third of partial total.

Petitioner’s neurologic and psychiatric expert also testified to examining the petitioner on three separate occasions.  She estimated permanency at thirty percent of partial total due to a combination of the petitioner’s occupational exposure and the December 28, 2005 incident.

The testimony of respondent’s two lay witnesses ultimately proved pivotal to the Court’s decision.  First, the human resource manager at the store where the petitioner formerly worked offered her testimony.  She informed the Court that all new employees including managers attend a new hire orientation seminar where injury reporting procedures are reviewed.  The procedures require all employees to report any injuries directly to her.  She testified that while the petitioner reported injuries to her arms, she never reported that she injured her neck.

A senior technical examiner for the respondent testified on respondent’s behalf.  She indicated that if any injury was reported to her she would inform the human resources manager.  She described a conversation with the petitioner where the bilateral elbow claim was reported, but testified that the petitioner never informed her of a cervical claim.

Respondent’s orthopedic medical expert also testified during the course of trial concerning the existence of any orthopedic permanency. He questioned causal relationship between the alleged cervical claims and the petitioner’s work.  After reviewing the petitioner’s job description, medical records and performing a physical examination he diagnosed the petitioner with degenerative disc disease unrelated to her work.

The final witness was a neurologic expert for the respondent who addressed the existence of any neurologic or psychiatric permanency.  He found that the petitioner had no causally related disability to her neck.  He also found that due to petitioner’s significant pre-existing history of anxiety and depressive disorders, there was no evidence of work related permanent psychiatric disability.

Our trial brief highlighted the testimony of respondent’s human resource manager and senior technical examiner to show the petitioner never reported the alleged cervical injury and concentrated on the treating medical records to show that the petitioner did not mention a cervical injury less than a week after the alleged incident.  We also highlighted that the petitioner never offered the testimony of her co-worker who had allegedly witnessed the December 28, 2005 incident.

The Court ultimately determined that the petitioner did not suffer an injury to her neck as a result of either the alleged occupational exposure or the alleged December 28, 2005 incident.  The Court found the petitioner’s testimony in this regard to lack credibility while also finding the testimony of respondent’s human resource manager, senior technical examiner and medical experts to be credible.  In contrast, the Court found petitioner’s experts to be unconvincing.  Accordingly, the Court entered a dismissal with prejudice for both of the cervical claims that were at issue.

A Stronger Defense Against Motions for Medical Treatment: Why a Doctor’s Report may no Longer be Sufficient to Support a Petitioner’s Request for Treatment

By Daniel A. Abelson, Esq.

The Appellate Division recently released its decision in the case of Amedeo v. UPS, No. A-1013-13T2 N.J. Super. Unpub. LEXIS 753 (App. Div. April 8, 2015). In Amedeo, the court reshaped the evidentiary standard for a petitioner to prevail on a Motion for Medical Treatment and/or Temporary Disability Benefits (hereinafter called a “Motion for Medical Treatment”). The Court’s decision will likely have a great impact on the way practitioners file motions and the way respondents defend them.

In Amedeo, the petitioner was originally involved in a work accident wherein he sustained injury to his hip. The original case settled, and in October 2012, petitioner reopened his claim alleging a worsening of his hip pain, and requesting additional medical treatment for same. Petitioner obtained a report from an internist and psychiatrist, Dr. Brustein, to determine the need for orthopedic hip surgery. The doctor recommended additional treatment, including an evaluation with a university affiliated orthopedist specializing in hips, a spinal specialist, and a pain management specialist. Petitioner then filed a Motion for Medical Treatment, and included Dr. Brustein’s report in support of his Motion.

In a written statement, the judge of compensation found petitioner’s Motion was deficient under N.J.A.C. 12:235-3.2(b)(2). Amedeo, at 4. The judge reasoned Dr. Brustein was not an orthopedic surgeon but practiced internal medicine and physiatry, and “had no intention to treat the petitioner” because any proposed treatment to the injured areas would be outside of “his area of expertise.” Id. Rather, the judge found that Dr. Brustein’s report merely suggested that petitioner seek out other specialists such as a “university affiliated orthopedist” specializing in hips, a spinal orthopedist, and a pain management specialist. Id. at 5. The Judge of Compensation further found N.J.A.C. 12:235-3.2(b)(2) that was designed to eliminate non-specific reports, such as Dr. Brustein’s, by requiring applicants to obtain precise and detailed opinions by appropriate experts. Id.

Petitioner appealed the Judge’s decision to the Appellate Division, who ultimately agreed with the Judge of Compensation in their unanimous decision. Id. at 7. The Court reasoned Dr. Brustein’s suggestions were not sufficient to satisfy N.J.A.C. 12:235-3.2(b)(2), which requires specificity in order for the compensation judge to evaluate and appraise the validity of such motions. Id at 8. Therefore, the Appellate Court upheld dismissal of petitioner’s Motion without prejudice. Id. at 7.

The decision in Amedeo requires stricter interpretation of the existing rule stated in N.J.A.C. 12:235-3.2(b)(2). N.J.A.C. 12:235-3.2(b)(2) states in part “The notice of motion for temporary disability or medical benefits shall…contain the report of a physician stating the medical diagnoses and the specific type of diagnostic study, referral to specialist, or treatment being sought.” The holding in Amedeo adds to this standard by interpreting N.J.A.C. 12:235-3.2(b)(2) to eliminate non-specific medical reports, such as those that merely suggest several options for other specialists to try. Id. at 5 and 8. Thus, in order for a petitioner to show with sufficient proof he requires additional treatment causally related to his work accident, the petitioner must obtain precise and detailed opinions by appropriate experts.

Before Amedeo, a report from a doctor with a medical diagnosis and treatment recommendation, even if only recommending treatment by other doctors-to-be named, was sufficient to support a prima facie need for treatment under N.J.A.C. 12:235-3.2(b)(2). All too often, the petitioner would obtain a doctor’s report from one of their regular permanency evaluators, an internist, or a pain management specialist, who recommends the petitioner be evaluated by an orthopedist to determine whether surgery is necessary. Under such circumstances, the respondent was compelled to schedule its own need for treatment evaluation, often times with an expensive specialist who is an expert in the medical field where treatment is being sought. In effect, the respondent was being compelled to do petitioner’s homework by seeking out the appropriate doctor to evaluate the petitioner.

That is no longer the case after Amedeo. Respondents can now successfully argue a recommendation from petitioner’s doctor to see a specialist to determine the appropriate medical treatment is insufficient evidence to support a need for causally related treatment, prima facie or otherwise. Thus, the respondent may be able to avoid scheduling its own treatment evaluation. In effect, Amedeo cuts out the doctor who essentially acts as a “middle man,” and increases the burden on petitioner, encouraging him to use treating doctors who are experts in providing the treatment he is requesting from the outset.

Context is important. For example, suppose a petitioner requests lumbar spine surgery. The petitioner sees an orthopedist who does not recommend surgery, but does recommend pain management treatment in the form of an epidural steroid injection to be performed by a pain management specialist. In this scenario, it was reasonable for the petitioner to see the orthopedist at the outset, as he was requesting lumbar spine surgery. Further, as the orthopedist evaluated petitioner and did not recommend surgery, it was reasonable for him to recommend he see a pain management specialist to determine alternative treatment options. Thus, this will likely not conflict with the new Amedeo standard.

However, what if the doctor who evaluates petitioner has limited experience in that specialty? For example, suppose petitioner requests orthopedic surgery for his alleged work injuries, and is evaluated by an internist. Is the internist’s opinion regarding the need for orthopedic surgery still good under the Amedeo standard? Probably not.

In light of the Amedeo decision, respondents should carefully review which doctor petitioner is using to support his request for treatment. Raising the defense that petitioner’s doctor is not recommending any actual treatment, or is not qualified to make the appropriate treatment recommendation being sought, carries a greater weight under the heightened standard in Amedeo. This is a great case for respondents.

Merry-Go-Round Found Not to Be a Dangerous Condition under Tort Claims Act

By Betsy G. Ramos, Esq.

The plaintiff Brianna Ackerman, a minor, was injured during recess, while using her middle school’s playground merry-go-round. In Ackerman v. Franklin Twp. Board of Education, 2014 N.J. Super. Unpub. LEXIS 2978  (App. Div. Dec. 30, 2014), the plaintiff argued that the merry-go-round was a dangerous condition of the defendant Board of Education’s property and that defendant should be liable for negligent supervision. The trial court granted summary judgment and the plaintiff appealed.

The minor plaintiff, while a 6th grade student at Franklin Township Middle School, along with her classmates, was using the merry-go-round located on the playground during recess. She slipped off when she had bent over to tie her sneaker and another girl got on. She landed on her right arm and fractured her humerus.

There had been 8 prior instances where students were injured while using the merry-go-round. Some of the students were injured when they disregarded the posted rules for the safe use of the merry-go-round. The minor plaintiff, however, testified the safety rules were never discussed with her and they were not posted or regularly enforced because students using the merry-go-round were not always directly supervised. While the nurse contended there were usually up to 6 teachers and two aides on the playground during recess, the minor maintained that only 2 aides were present the day she was injured.

The Appellate Division rejected the plaintiff’s argument that the merry-go-round constituted a dangerous condition of public property. It found that the Legislature did not intend to impose liability for a condition merely because danger may exist. The plaintiff was injured during her use of equipment on the property, not from a condition of the property itself.

However, the Appellate Division did find that a fact question existed as to whether there was negligent supervision. The defendant has a duty to supervise its students at recess. The question as to whether that duty is breached is a question for the factfinder. A factual issue existed as to how many adults were supervising the children on that date. Because there was a fact question as to the level of supervision, the Appellate Division remanded the case back to the trial court for a trial as to the issue of supervision.

Federal Court Rules that NJ’s Wage and Hour Law Allows for Filing of Private Overtime Claims

By: Ralph R. Smith, 3rd, Esq.

In a case of first impression, a Federal District Judge has ruled that New Jersey’s Wage and Hour Law allows for a private right of action to be brought by employees for a claim of non-payment of overtime.

The Plaintiff in Thompson v. Real Estate Mortgage Network, Inc., 2015 U. S. Dist. LEXIS 67186 (D.N.J., May 22, 2015) worked as an underwriter for the Defendant.  On behalf of a class of approximately 100 other underwriters, Plaintiff brought suit claiming that Defendant had misclassified their position as exempt and deprived them of numerous hours of overtime because such persons frequently worked in excess of 40 hours per week, including nights and weekends.  Defendants moved for judgment on the pleadings, arguing that the New Jersey Wage and Hour law did not allow employees to bring legal claims for unpaid overtime, contending that the law only allowed for the filing of claims for minimum wage violations.  Along with bringing a claim under New Jersey law, the Plaintiff also sought overtime compensation under the Federal Fair Labor Standards Act (“FLSA”) which, unlike New Jersey’s statute, expressly allowed for the filing of such claims by employees who contend that they have not been properly paid due overtime.

Based upon (1) the language of New Jersey’s law; (2) the broad interpretation of the law previously adopted by New Jersey state courts in interpreting the state law consistent with the FLSA; and (3) the numerous past New Jersey state court decisions that, while not expressly stating so, assumed that such a private right existed by ruling on such overtime claims under New Jersey’s law, the Federal District Court concluded that a private right of action indeed existed. This now means that Plaintiff can continue to pursue her state law claim for unpaid overtime in addition to her FLSA claim on behalf of herself and the requested certified class.

The Court’s decision in Thompson highlights the importance of properly classifying employees as either exempt or nonexempt to avoid potential lawsuits for unpaid compensation.  Employers are wise to constantly monitor the job duties of their employees to ensure that those employees for payroll purposes are properly classified based upon the actual tasks that they are performing.  Regularly conducted desk audits of employee functions are strongly encouraged, and the use of legal counsel in that process maximizes the achieving of the desired result of proper classification. In sum, as Thompson shows, employees (or more apropos, their legal counsel) are always seeking new ways to gain advantages in the workplace, so employers must remain ahead of the curve by ensuring that their workforce is properly being compensated under all applicable wage and hour laws.

Shareholder Thomas Walls Addresses NovaCare Attendees

Thomas J. Walls Jr.Mt. Laurel, NJ – – Capehart Scatchard Shareholder Thomas J. Walls, Jr., Esq. recently addressed attendees at a conference sponsored by NovaCare in Burlington, New Jersey.  His presentation was entitled “The Industrial Athlete.”

Mr. Walls spoke on recent cases and trends in workers’ compensation.  Additionally, he addressed workers’ compensation case law in New Jersey on the premises rule and statute of limitations.

Mr. Walls, a Hamilton Township resident, is certified by the Supreme Court of New Jersey as a Workers’ Compensation Law attorney. He focuses his practice in workers’ compensation matters defense matters and also has extensive experience in the litigation of personal injury matters.

16th Annual Blaine E. Capehart Legal Writing Award Presented to Rutgers Camden Student Winner

Mt. Laurel, NJ – Robert J. 16th Annual Blaine E Capehart Legal Writing AwardNorcia was the recipient of the 16th Annual Blaine E. Capehart Legal Writing Award, presented at the law firm of Capehart Scatchard on May 19th.  The award recipient graduated from Rutgers School of Law in Camden on May 21, 2015.

The Mt. Laurel-based firm presented Mr. Norcia with a $2,500 award in recognition of his exemplary legal writing and research abilities.  The Firm offers this award to a graduating Rutgers – Camden law student on an annual basis in honor of the late Blaine E. Capehart.

Managing Shareholder Peter S. Bejsiuk opened the ceremony with a few introductory remarks before calling Bruce L. Harrison to the podium. Addressing the audience gathered for the presentation of the award to Mr. Norcia, Mr. Harrison, Co-Chair of the Mediation and Dispute Resolution Department, said that he wanted to share the original motivation for the award.  Specifically, Mr. Harrison indicated that there were three intersecting principles behind the award, those being celebrating, (1) the amazing career of Mr. Capehart; (2) his values, especially the importance he placed on excellence; (3) how the firm’s relationship with Rutgers is integral to preserving Mr. Capehart’s values, especially excellence.  On the last point, Mr. Harrison noted that 33 percent of the firm’s 90 lawyers are Rutgers graduates, and that Rutgers alums regularly demonstrate the maturity, work ethic and character Mr. Capehart so highly valued.

Shareholder Gina Zippilli Named a 2015 “New Leader of the Bar”

gina-zippilliCapehart & Scatchard is pleased to announce that Gina Zippilli, Esq. was nominated and then selected as one of 50 attorneys that were designated as “New Leaders of the Bar” state-wide.  A seven-judge panel reviewed all nominations throughout New Jersey and narrowed their list down to reflect only those attorneys that exhibited the qualities and experience that make each of them a 2015 New Leader.

Gina is the first attorney from Capehart to be selected as a New Leader of the Bar.  She is a shareholder of the firm and practices in its Litigation Department.  Presently, her clients have retained her to provide a defense in personal injury, premises and tort defense liability cases.  However, her background is one of versatility, having litigated cases involving complex commercial disputes, legal malpractice and intellectual property retention.  Her client base is mainly devoted to national corporations as well as liability and property insurance carriers.

Gina is also well known for her litigation blog “Legally Speaking.”  It provides readers with informative and well-written summaries of relevant changes in case law and legislation pertaining to litigation defense.  On the lighter side, her blog is usually accompanied by a hand-drawn cartoon entitled  “falsely accused,” created and drawn by Gina, and is a spoof of situations all trial attorneys will recognize.

Gina is admitted in the State of New Jersey; the Commonwealth of Pennsylvania; the United States District Court the District of New Jersey; the United States District Court for the Eastern District of Pennsylvania; and the Third Circuit Court of Appeals.  She is also in the process of obtaining her law license in New York.

Gina attended and graduated from Rutgers School of Law in Camden, New Jersey, where she was the Case Law Editor of the Rutgers Law Review.  She earned her undergraduate degree in Psychology at Rutgers University in Camden, NJ where she selected to join “Psi Chi,” the National Honors Society in Psychology.  Afterwards, she was selected as the Law Clerk to the Honorable Sylvia B. Pressler, Presiding Judge of Administration, New Jersey Superior Court, Appellate Division, from 2002-2003.

Gina is also a Certified Chaplin for Disaster Relief Counseling and received her training through Billy Graham Ministries.  In her earlier years, she was employed through the Moorestown, New Jersey public school system as a counselor teaching behavioral techniques to children with autism.

The selected New Leaders of the Bar will be profiled in a magazine article in July of this year, and will gather to be honored in person on September 17, 2015 at the Brooklake Country Club, 130 Brooklake Road, Florham Park, NJ.

Capehart Scatchard Builds Litigation Practice with Associate John Hewlett

JHewlett-WebCapehart Scatchard is pleased to announce that John R. Hewlett, Jr., Esq. has recently joined its Litigation Department as an associate in the Mt. Laurel office.

Mr. Hewlett, a Philadelphia resident, focuses his practice in general litigation throughout the courts in Pennsylvania and New Jersey with a concentration on tort defense matters.

Mr. Hewlett received his law degree from Widener University School of Law and his Bachelor of Business Administration degree from Temple University, Fox School of Business.  He is admitted to practice law in Pennsylvania and New Jersey.