Jersey City Found Not Liable for Accident Resulting from Plaintiff’s Motorcycle Striking its Fire Hydrant

By Betsy G. Ramos, Esq.

Public entities can be liable if they create or allow a dangerous condition to exist on their property. In Bunero v. City of Jersey City, 2015 N.J. Super. Unpub. LEXIS 2784 (App. Div. Dec. 3, 2015), plaintiff George Bunero was injured when his motorcycle was struck in the rear by the defendant DaSilva’s motorcycle, propelling plaintiff’s motorcycle to the side of the road and up the curb. The plaintiff’s right leg struck the nozzle cap of the City’s fire hydrant, located on the sidewalk, causing plaintiff to suffer a leg fracture. The plaintiff sued the City on the basis that the fire hydrant was improperly placed and constituted a dangerous condition.

The City filed a motion for summary judgment, arguing that the fire hydrant did not constitute a dangerous condition of property. The trial court judge concluded that the hydrant was not a dangerous condition and that the City’s actions as to the hydrant were not palpably unreasonable.

Upon appeal, the plaintiff argued that the motion judge erred by granting summary judgment to the City. The plaintiff contended that he had presented sufficient evidence to support his claim against the City.

The Appellate Division found that the motion judge had erred by determining that the fire hydrant was not a dangerous condition. According to the plaintiff’s expert, the nozzle cap of the hydrant was only 1.5 inches from the curb line, which was less that the six inches recommended by the American Water Works Association (“AWWA”), as stated in 1938. In 1970, the AWWA published a statement recommending a set-back of 2 feet from the curb line to the point of the hydrant nearest the curb and that remained the standard in 2010.

Thus, the Court found that the plaintiff did present sufficient evidence from which a reasonable jury could conclude that the hydrant’s proximity to the curb line posed a danger to a person on a motorcycle who veers close to the curb line. Further, a jury could find that the hydrant created a reasonably foreseeable risk of the kind of injury which was incurred.

However, the Appellate Division agreed with the trial court judge that a reasonable jury could not find that the City’s action or inaction with regard to the hydrant was “palpably unreasonable.” Under the Tort Claims Act, a plaintiff has the burden of demonstrating that a public entity acted in a palpably unreasonable manner with regard to an alleged dangerous condition, which is a more onerous showing then ordinary negligence. Here, it was undisputed that the hydrant had been at its location since at least 1939. No evidence had been presented that the hydrant had been the cause of any incident or injury in that time.

Further, the City’s engineer testified that, based upon the City’s diagrams and his own analysis, the City probably could not have installed the subject fire hydrant further from the roadway, due to the adjacent property line and he location of the water main. Although the plaintiff insisted that the movement of the fire hydrant further back from the cub line was not impossible, he failed to show that the City’s failure to do so was a course of action or inaction that “no prudent person would approve of.”

The court considered that the City had thousands of fire hydrants on its properties and it was unclear how many of them were in close proximity to the roadways. However, it noted that the subject fire hydrant had been at its location for more than 70 years, apparently without any reported complaint or injury. Undoubtedly, the City had considerable responsibility for the maintenance of it properties and limited public resources for that purpose.

Hence, the Appellate Division concluded that a reasonable jury could not find that the City’s failure to move the hydrant further away from the roadway was palpably unreasonable. Accordingly, it affirmed the trial court’s order for summary judgment, dismissing the complaint.

Maura Burk Joins Workers’ Compensation Department

maura_burkMt. Laurel, NJ – – Capehart Scatchard is pleased to announce that Maura Burk, Esq. recently joined the Firm’s Workers’ Compensation Department in its Mt. Laurel office.

Ms. Burk, a Mt. Laurel resident, represents insurance carriers and employers in the defense of workers’ compensation claims at all stages of litigation.

Ms. Burk received her law degree from Rutgers University Law School of Law in Camden and her B.A. degree in English from Ithaca College.  Upon law school graduation, Ms. Burk worked as a law clerk to the Honorable Linda L. Lawhun in the New Jersey Superior Court, Cumberland County (Vicinage 15).   She is admitted to practice law in New Jersey and Pennsylvania.

Stephen Fannon Named to Capehart Scatchard’s Executive Committee

stephen-fannonMt. Laurel, NJ – Capehart Scatchard is pleased to announce that Workers’ Compensation Department Shareholder Stephen T. Fannon, Esq. has been named to the firm’s Executive Committee.

Mr. Fannon, a Marlton resident and co-chair of the firm’s Workers’ Compensation Department, has been with the firm for 36 years and concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation defense.

Mr. Fannon received his law degree, with honors, and Order of the Coif, from Drake University School of Law in 1980 and his B.A. degree, cum laude, from Rowan University (formerly Glassboro State College) in 1976. He was also a visiting student at the University of Pennsylvania Law School.

He is a member of the American, New Jersey State, Burlington and Camden County Bar Associations, as well as a Master in the Justice James H. Coleman, Jr. New Jersey Workers’ Compensation American Inn of Court, Master, 2003 – 2005.  In 2013 he was inducted as a Fellow of the College of Workers’ Compensation Lawyers, American Bar Association, Section of Labor and Employment Law, Tort, Trial and Insurance Practice Section, Workers’ Compensation Committee.

Lack of Authority to Hire, Fire or Oversee Routine Employment Decisions Deemed Sufficient to Bar Finding of Joint Employment

Recent Win

Argued / Briefed by Christopher M. Emrich, Esq.

christopher-emrichOn January 22, 2013, the petitioner, a nurse, filed Claim Petition No. 2013-1691, alleging that on March 29, 2012, she slipped and fell in the course of her employment, causing injuries to her lumbar spine and right knee.  She conceded that she fell in the parking lot after finishing her shift and clocking out.  The petitioner was an employee of Corizon, which entered into a contract with Burlington County to provide medical services to the County’s jails.  Corizon denied the compensability of the claim and no benefits were provided.

In September 2014, the petitioner filed a Motion for Medical and Temporary Benefits against Corizon, seeking a total knee replacement.  After a conference with the judge, the petitioner’s attorney filed an amended claim on February 24, 2015, against Burlington County, alleging that Corizon and the County were joint employers.

The matter proceed to trial on April 28, 2015, with the petitioner’s testimony.  Lt. Matthew Leith, was called to testify on behalf of the County on May 19, 2015.  Lt. Leith, a senior officer in the County correctional system, testified regarding the nature of the jails and the relationship between the County employees and the employees of various vendors, including the petitioner.

On June 18, 2015, the petitioner’s attorney subpoenaed Robert Orrick, a senior employee of Corizon, to testify regarding the relationship between Corizon and the County.

After trial, the parties submitted briefs addressing whether the compensability of the accident that took place after the petitioner’s shift in the County parking lot was compensable and the existence of joint employment between Corizon and Burlington County.  A Motion to Dismiss was also filed on behalf of the County for a violation of the statute of limitations, since 2 years passed between the injury and the filing of the amended claim.

Ultimately, Judge Minor found that none of the relevant factors for determining joint employment applied to the petitioner and the County.  In Dismissing the Claim Petition she found the fact that the County did not have the authority to hire, fire or oversee routine employment decisions to be the dispositive factor.  She also agreed with the statute of limitations argument.  Therefore, she dismissed the County.  However, she granted the petitioner’s motion as it relates to Corizon.  Therefore, Corizon is responsible for the petitioner’s total knee replacement and likely any temporary disability payments, and eventually permanent disability benefits with no contribution from the County.

Appellate Division Affirms Trial Court’s Decision Dismissing Claim Petition Due to Fraud

Recent Win

Argued / Briefed by Nicholas A. Dibble, Esq.

nicholas-dibbleThe Appellate Division recently affirmed the decision of the trial court  terminating benefits for fraud pursuant to N.J.S.A. 34:15-57.4(c)(1) when a claimant made a false statement in obtaining benefits.

While cutting down a tree, the petitioner sustained severe injuries and filed a claim for medical and disability benefits.  The respondent denied coverage on the grounds that the petitioner misrepresented that his company was an LLC with no employees.  The petitioner, who was personally involved in the procurement of workers’ compensation insurance, owned and worked at Treeminator Tree Service.   Treeminator was organized in 2007 as a corporation and by 2012, the year of the accident, the company had no fewer than four employees including the petitioner and his girlfriend.  A workers’ compensation policy was issued for Treeminator in 2012, the year of the accident, for a limited liability company with no employees and only a minimum premium.

At trial, this matter was bifurcated by the Honorable Virginia Dietrich to first address the issue of insurance coverage.  The petitioner and his girlfriend testified as well as three individuals from the Barry Rose Insurance Agency who handled Treeminator’s insurance needs.  After hearing all five witnesses over four days of trial Judge Dietrich found that the petitioner made material misrepresentations concerning the nature of his business and the number of his employees.  The Judge of Compensation noted that although the policy procured by Treeminator was for a landscaping company with no employees, Treeminator employed multiple individuals and was actually involved in the far more dangerous business of tree trimming.  As such, Judge Dietrich ordered the immediate denial of benefits due to the false information provided to the insurance carrier during the procurement of the policy.  The petitioner appealed arguing that he had a reasonable expectation of coverage by virtue of paying a premium and a mistake was made by either the insurance broker or the insurance company in issuing a policy for an LLC rather than a corporation.  Since this was not his error, the petitioner posited that he should be afforded coverage.  Finally, the petitioner argued that he never opted out of coverage for himself.

The Appellate Division found that false information was given to the insurance broker during the procurement of the insurance policy.  The Appellate Division affirmed the findings of Judge Dietrich noting that when the petitioner was appraised of the increased costs of insuring a company with employees, the petitioner chose to “take coverage as cheaply as he could find it.  He wanted to pay the least and hoped for the best.”   The Appellate Division ultimately held that Judge Dietrich’s findings were based upon sufficient credible evidence and supported the immediate dismissal of the petitioner’s claim pursuant to the fraud provision found at N.J.S.A. 34:15-57.4(c)(1) of the workers’ compensation statute.

Proof a Petitioner Would be Working But For a Compensable Accident is Prerequisite to the Receipt of Temporary Disability Benefits

By Katherine H. Hellander, Esq.

It is well-established that N.J.S.A. 34:15-12 entitles a petitioner to temporary disability benefits provided petitioner is unable to work for more than seven days due to a work-related accident. This principle is not absolute, however, as courts have placed several limitations on such an entitlement. One such exception, known as the Cunningham rule, dictates that the petitioner must demonstrate that he would be working “but for” the compensable accident. Cunningham v. Atlantic States Cast Iron Pipe Co.  386 N.J. Super. 423 (App. Div.) certif. denied. 188 N.J. 492 (2006)  If a petitioner fails to meet this burden, he is not entitled temporary benefits. While this rule seems concrete on its face, there are several scenarios which fall into an area of Cunningham ambiguity. One scenario that courts have yet to address is whether the reason behind the termination of employment has any bearing on entitlement to temporary benefits.

In Cunningham v. Atlantic States Cast Iron Pipe Co., the petitioner tore his medial meniscus in a work-related accident on October 21, 2003. Following the injury, the petitioner was incarcerated for a brief period of time and was unable to work. Upon his release, the petitioner missed additional time from work due to issues with child care. Employer Atlantic States’ policy mandated that any employee who inexcusably failed to report for work for three consecutive days would be terminated. The petitioner was terminated from employment on two separate occasions pursuant to this policy, only to win reinstatement through his union. The petitioner’s employment with Atlantic States was terminated for the final time on February 3, 2005 when he left work without permission.

Subsequent to his termination, but before he was able to secure new employment, the petitioner was placed out of work by the treating doctor. The employer denied the petitioner’s resulting request for temporary benefits. A Motion for Medical and/or Temporary Disability Benefits was filed and ultimately granted by the Judge of Compensation. The Judge held that a respondent is required to pay temporary disability benefits “…so long as petitioners are incapacitated due to work-related injury and have not reached maximum benefit of treatment.” The Judge went on to opine that the obligation to pay “…continues after they leave the employment irrespective of whether they left voluntarily.” As such, the petitioner was awarded temporary benefits retroactive to February 11, 2005.

On appeal, the respondent argued that temporary benefits are meant to serve as a replacement for actual wage loss. Given that the petitioner was not employed by the respondent at the time he was placed out of work, the respondent maintained that the petitioner could not prove actual lost wages. The Appellate Division noted that the petitioner was working full duty on the date of his termination and that his cessation of employment with Atlantic States was wholly unrelated to his disability. Taking this fact into consideration, the Court reversed the Judge of Compensation and remanded the matter to determine whether the petitioner could prove that he lost actual income due to the work-related accident.

The Appellate Division maintained this line of reasoning in the unreported case of Gioia v. Herr Foods, Inc.  No. A-0667-10T4 (App. Div. October 11, 2011). In Gioia, the petitioner injured his right ankle in a work-related accident and was provided with authorized care. He was cleared to return to light duty less than a week after the accident. However, on the day he was scheduled to return to work, the petitioner was terminated for violation of the employer’s drug policy as his post-accident drug screen was positive for cocaine.

The petitioner filed a Motion for Temporary Disability Benefits which was granted by the Judge of Compensation. The respondent appealed and argued that the petitioner was out of work due to violation of the drug policy, not as a result of the work-related accident. Just as in Cunningham, the Appellate Division held that the petitioner must prove that he would have been working “but for” the compensable injury. Given that the petitioner was out of work as the result of the failed drug test, not because of his disability, the Court held that the petitioner had failed to meet this burden. The Judge of Compensation was reversed, and the case was remanded to allow the petitioner to prove actual wage loss.

Both Cunningham and Gioia are clear that the petitioner must prove that he or she would be working but for the compensable accident. Further, both cases demonstrate that a petitioner who is terminated as the result of a company policy is not entitled to temporary benefits. The Court has yet to decide what happens when a petitioner is terminated pursuant to a company policy regarding exhaustion of leave time when the missed time was for treatment of the work-related injury.  For example, take a petitioner who is not at maximum medical improvement, but is terminated based on cessation of FMLA for a work-related injury.  If the petitioner exhausts all leave time and is terminated pursuant to company policy regarding excessive absenteeism, is he or she entitled to temporary benefits?    That question has not been addressed.

The Cunningham Court found “…no material difference between termination for cause with prior knowledge by the employee that violation of a work rule would result in termination, and voluntary departure.”  Essentially, the Court equated knowingly violating a company policy to quitting one’s job.   It makes a difference whether the employee quit or is fired.

Termination for excessive absenteeism is a reality in the workplace.  According to the EEOC, “an employer does not have to provide paid leave beyond that which is provided to similarly-situated employees.”   FMLA is for both work and non-work related serious health conditions.  Further, the Courts have held that it is unreasonable for an employer to be required to keep open a worker’s job for an indefinite period of time.   Therefore, an employer is not required to provide a petitioner with leave time greater than that of his co-workers, regardless of whether the leave arose out of a work-related accident.    Whether or not a person who is terminated for excessive leave is entitled to temporary benefits remains to be decided.

Light duty issues also come into play here.  If an employee is on light duty but the company policy limits light duty to three months, resulting in the termination of the employee, must the employer provide temporary disability benefits where a petitioner is not at maximum medical improvement?  One must study Harbatuk v. S&S Furniture Systems Installations. That case suggests that an employer must continue to pay temporary disability benefits if the employer can no longer provide light duty but the employee is not yet at maximum medical improvement.   However, this issue has not been specifically decided by the court.

Appellate Division of New Jersey Declines to Exercise Jurisdiction over PIP Reimbursement Action

By Gina M. Zippilli, Esq.

The issue in Yoo v. Travelers of New Jersey, A-5810-13T2 (App. Div. November 17, 2015), is one we have seen before, namely whether the Appellate Court will entertain jurisdiction over reimbursement actions regarding personal injury protection (“PIP”) benefits.  Yoo reaffirms the long standing rule in New Jersey that a trial court’s decision of PIP reimbursement actions will be considered “final,” thereby barring any further review by our courts.

The facts in Yoo are likewise familiar to facts seen in countless other PIP reimbursement actions; overcharging of fees.  Between July and October 2011, the insured underwent 3 “platelet rich plasma” injections.  The medical provider charged $7,500 for each injection for a total amount of over $22,000.   The provider brought a PIP reimbursement action through Arbitration Forums and the matter was handled by a Dispute Resolution Professional (“DRP”).  While the DRP found that the 3 injections were “medically necessary,” the DRP modified the cost per injection to $63.95 reasoning that the provider failed to provide sufficient evidence that the $7,500 per injection was reasonable and customary.  On January 30, 2014, the DRP awarded $472.56 to the provider, plus fees and costs as the prevailing party.

This finding begs the question– how did the DRP arrive at $63.95 per injection?  On January 4, 2013, the Department of Banking and Insurance (“DOBI”) adopted a medical fee schedule that set reimbursement for the particular injection that the insured received at $63.95 per injection.  The DOBI’s regulation was clear that the newly adopted fee schedule was not to be applied retroactively and therefore seemed inapplicable to the facts in Yoo.  During the January 30, 2014 arbitration, the DRP was aware of this newly implemented fee schedule and modified the amount per injection to reflect same.  The DRP’s reasoning: the provider failed to introduce proofs of the usual, customary and reasonable cost of identical injections and the DRP had nothing else on which to rely.

Not surprisingly, the provider appealed the matter to the trial court.  The trial court ruled that the DRP did not exceed his authority in using the fee schedule because his decision in this regard was due to the provider’s failure to supply evidence and not the DRP’s choice to apply the regulation retroactively.  As expected, the provider brought his case before the Appellate Division.  It was there that the Appellate Court reaffirmed the history and purpose behind the Alternative Procedure for Dispute Resolution Act:

Under the APDRA, a party to an alternative resolution proceeding may make application to the Superior Court to vacate, modify or correct the award within certain timeframes… An award can be vacated by a court if the [DRP] committed prejudicial error by erroneously applying law to issues and facts…. Where the trial court confirms, modifies or corrects an award, the Act specifies, there shall be no further appeal or review of the judgment or degree.

While extraordinary circumstances have been found in rare cases to justify an Appellate review, none were present in Yoo.  Indeed, the Appellate Division found that the trial court acted within the bounds of the APDRA statute and declined to extend jurisdiction.

Workers’ Comp Attorneys Present at Seminar in Parsippany, NJ

Mt. Laurel, NJ – – Capehart Scatchard Workers’ Compensation Department attorneys, John H. Geaney, Esq.Stephen T. Fannon, Esq., and Nancy J. Johnson, Esq. were featured speakers at a Millennium seminar event held on December 3rd at the Hilton in Parsippany, New Jersey.

In addition to moderating the one-day program, Mr. Geaney presented “Tips You Need to Know to Defeat Occupational Disease Claims” and “Terminating Employees on Comp Without Violating the ADA, NJLAD and FMLA.”  Mr. Fannon presented “Statutes and Defenses You Need to Know to Win in Workers’ Comp” and also served as moderator for a presentation titled, “A Comprehensive Discussion of IMEs in Workers’ Comp.”  Ms. Johnson presented on “2015 New Jersey Court Decisions You Need to Know.”

A seasoned workers’ compensation practitioner for over 30 years, Mr. Geaney, a Moorestown resident, is the author of Geaney’s New Jersey Workers’ Compensation Manual and A Guide to Employment Issues Under the ADA & FMLA distributed by the New Jersey Institute for Continuing Legal Education.  Mr. Geaney concentrates his practice in the representation of employers in workers’ compensation defense matters, the Americans with Disabilities Act, and the Family and Medical Leave Act.

Mr. Fannon, a Marlton resident and co-chair of the firm’s Workers’ Compensation Department, has been with the firm for 36 years and concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation defense.

Ms. Johnson, a New Jersey resident, concentrates her practice in the defense of workers’ compensation representing major self-insured corporations, insurance companies and clients of third-party administrators.  She is a frequent lecturer on workers’ compensation and Medicare issues.  She is certified by the Supreme Court of New Jersey as a Workers’ Compensation Law attorney, Ms. Johnson is an officer of the New Jersey State Bar Association Workers’ Compensation section and a member of the College of Workers’ Compensation Attorneys and Justice James Coleman Workers’ Compensation Inn of Court.

Thomas Begley Speaks on Medical Malpractice

thomas-begleyMt. Laurel, NJ – Capehart Scatchard Shareholder, Thomas D. Begley III, served as a panelist on November 20, 2015 for the New Jersey Association for Justice’s 2015 Meadowlands Seminar.

Mr. Begley’s panel session was entitled, “Ethical Issues in Medical Malpractice.”  His talk focused on insuring that a litigant’s recovery, especially one who is disabled, is protected after the settlement or judgment.

A resident of Moorestown, Mr. Begley is the Chair of the Trusts and Estates Group at Capehart Scatchard.  He is routinely recognized as one of the top lawyers in New Jersey by a variety of publications including Super Lawyers, SJ Magazine and South Jersey Magazine.  He is a Certified Elder Law Attorney who received his law and undergraduate degrees from Georgetown University.