0

Capehart Scatchard Shareholders Address National Workers’ Compensation Conference

Capehart Scatchard Shareholders, John H. Geaney, Esq. and Lora V. Northen, Esq. recently spoke at the National Workers’ Compensation Defense Network’s (“NWCDN”) National Conference in Minneapolis, Minnesota.

Mr. Geaney, representing New Jersey, participated in a panel discussion entitled, “What is the Value of a Compensable Claim in Your State.”  The panel addressed issues of wage calculations, full and final settlement options, future medical and final settlement options from injuries ranging from sprain/strains to surgical cases.

Ms. Northen, past president of NWCDN, participated in a panel discussion along with Nicole Giddings of Andersen Corporation, Maria Iorlano of Bed Bath & Beyond and Simonetta Leveque of Nordsrom in a presentation entitled, “The Anatomy of a Super Bowl Winning Team.” The panelists discussed the key components to creating and maintaining a collaborative and coordinated workers’ compensation claims team.

A seasoned workers’ compensation practitioner for over 30 years, Mr. Geaney 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.

In addition to her responsibilities as Co-Chair of the Workers’ Compensation Department, Ms. Northen 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.

0

Capehart Scatchard Supports Kids’ Chance of New Jersey

Several attorneys from Capehart Scatchard’s Workers’ Compensation Department recently attended the Sixth Annual Gala for Kids’ Chance of New Jersey.  The event was held on July 26, 2018 at the Hilton East in East Brunswick, N.J.

The Gala was a fundraiser for Kids’ Chance, a non-profit organization, created to provide educational opportunities and scholarships for the children of workers who were fatally or catastrophically injured on the job.  John Geaney and Lora Northen, shareholders in the firm, serve as members of the Kids’ Chance Board of Directors.

The highlight of the Gala featured the presentation of scholarships to students whose parents suffered fatal or physically catastrophic injuries while working.  John Geaney presented a check for $10,000, co-sponsored by Capehart Scatchard, to Will Gardner.  Gardner’s father, Bill Gardner, who worked for Fed-Ex as a truck driver, lost his life in a work- related truck accident.

0

Police Officer Who Could Not Drive Failed In His Disability Discrimination Suit

Jeremy Christensen worked as a patrol officer for the Warner Robins Police Department in the State of Georgia.  He completed a required 12-week certification training program.  However, he experienced shooting pains and leg cramps while driving on September 2, 2013. Nonetheless, he finished the program and began a one-year probationary period required for all new city employees.

Christensen experienced more shooting pains on October 8, 2013, and his hands shook uncontrollably.  Another officer had to drive him home from work.  He was advised to get a medical release from his physician, which he obtained from Dr. Al-Shroof.  However, the doctor did not clear petitioner to drive, so Christensen was assigned to a light-duty desk position in the Criminal Investigations Division. Eventually, Dr. Al-Shroof cleared petitioner to work with no restrictions except for a continued restriction against driving.

The City documented four specific disputes with Christensen during the one-year probationary period, the most serious of which was that Christensen only entered 10 of 270 supplemental reports to the CID’s electronic case management program in 2014.  As a result of these four disputes, the City terminated the employment of Christensen for unsatisfactory performance.

Christensen sued alleging disability discrimination.  The City in turn argued that Christensen was not a qualified individual under the ADA because he could not drive, and driving was admittedly an essential job function for a patrol officer.  Christensen disagreed and argued that he was able to work light duty for 10 months, and that he was qualified to perform the light duty position.  He seemed to argue that he was entitled to indefinite light duty.  The Court disagreed.  “The City accommodated Christensen’s disability by giving him light duty work that did not require him to drive. . . . That accommodation did not enable him to perform the essential function of a patrol officer; he still could not drive.”

Christensen further argued that the City could have continued him on light duty, and its past efforts to accommodate his driving restriction showed that the City could make long-term accommodations.  The Court again disagreed.  “Further, the City’s past accommodations, which exceeded the requirements of the ADA, do not bind the City to anything outside the requirements of the ADA.” The Court also agreed that the City offered valid, non-discriminatory reasons for terminating Christensen’s employment.

For these reasons, the Court granted the City’s motion for summary judgment.  The case shows that the elimination of an essential job functions is never required.  Christensen had to prove he could perform all the essential job functions.  The Court said that the mere fact that the City tried to accommodate Christensen for a lengthy period of time could not be held against the City.  This case can be found at Christensen v. City of Warner Robins, GA., 2018 WL 1177250 (D. GA 2018).

The post Police Officer Who Could Not Drive Failed In His Disability Discrimination Suit appeared first on NJ Workers' Comp Blog.

0

Rules Regarding Future Payments Under Permanency Awards and Commutations

New Jersey adjusters sometimes ask why future benefits under an order approving settlement with a percentage of disability cannot be paid in a lump sum to the injured worker.  In other words, why is there a requirement that future payments be paid out over a period of many weeks or even many years? This question goes to the foundation of the New Jersey system.  The New Jersey Act is social legislation, and Judges of Compensation are required to look out for the best interests of injured workers.  There is a legislative conviction that dependable weekly payments of permanent partial or total disability are almost always in the best interest of injured workers.  The right to reopen workers’ compensation cases is extended until two years from the last payment, (which benefits the employee), and the insistence on weekly payments avoids the temptation to risk a large sum of money in an exercise of bad judgment, perhaps gambling or betting on a hot stock.

If an adjuster were to mistakenly advance, for example, 100 weeks of future payments in one lump sum, this would amount to an impermissible commutation.  There is a procedure under N.J.S.A. 34:15-25 for employees to obtain a commutation of future payments, but an application must be filed with the Director of the Division for judicial permission to commute an award. Usually the Judge of Compensation who approved the settlement hears the commutation request.  The statute reads, “Compensation may be commuted . . . at its present value, when discounted at five per centum (5%) interest, upon application of either party, with due notice to the other, if it appears that such commutation will be for the best interest of the employees or the dependents of the deceased employee, or that it will avoid undue expense or undue hardship to either party. . .”

There are few published cases on commutations, but generally judges focus on whether there is an undue hardship on the injured worker or family or a compelling need that may justify a lump sum commutation.  One example comes from Harrison v. A & J Friedman Supply, Co., 372 N.J. Super. 326 (App. Div. 2004) where the applicant, a dependent spouse, applied for a commutation of a dependency award because the building she resided in was in default to the City of New York, giving her the opportunity to purchase her Manhattan residence for $370,000.  She could obtain a mortgage for about half that amount, but she needed to commute future permanency payments to raise the balance of the purchase price.

The Judge of Compensation reviewed the New Jersey Administrative Code provisions on commutations.  The relevant code provision provided, “No award for total disability or dependency benefits shall be commuted.”  The Judge of Compensation therefore denied the application, and the petitioner appealed.  The Appellate Division disagreed with the administrative code provision.  It said, “A plain reading of this statute, spurred by the absence of any limit on the types of compensation benefits that may be commuted, suggests that the discretion to permit commutation was intended to encompass all types of benefits, including the total disability and dependency benefits specifically referenced in N.J.A.C. 12:235-6.3 (d).”  The Court held that under certain circumstances a commutation may be made in dependency and total and permanent disability cases.

The Court did not order the commutation but it sent the case back to the Judge of Compensation for further proceedings.  “Certainly, upon remand, the parties should be afforded an opportunity to present information regarding the appellant’s financial status, her ability to maintain her lifestyle in the absence of the weekly benefits, the value of the property appellant is desirous of purchasing, the availability of funds other than the dependency benefits, and the availability of other financing that might render commutation unnecessary.”  As one can see from reading this quotation, commutations are not simple matters.  Judges must analyze many different issues and develop an understanding of the injured workers’ financial status before making an informed decision.  It is a case by case analysis often requiring substantial testimony. In actuality, there are surprisingly few commutation requests annually in the Division.

This legislative preference for weekly payments of permanency benefits also explains why annuity companies are less involved in New Jersey than in other state workers’ compensation systems.  In many states, an annuity company may offer an injured worker a stream of payments changing over time, perhaps increasing in future years at a higher rate. But in New Jersey payments must be made according to the statute.  If an award is entered for 60% permanent partial disability, it is paid out over 360 weeks at one set rate.  If an annuity company were to contract with the employer to make those 360 weeks of payments, the annuity company would be required to make the payments at the rate established in the court order.  The annuity company could not vary the rate or increase the rate while shortening the period of payments or make any other material change without the permission of a Judge of Compensation.

Over all, the New Jersey system makes good sense, even though injured workers may sometimes be disappointed that their payments must be spread out over many weeks.  Settlements by lump sum payments do happen frequently in New Jersey, of course, under N.J.S.A. 34:15-20, but these settlements are only available where there is a genuine issue of causation, liability, jurisdiction or dependency.  A smaller percentage of cases is settled under Section 20 than on a percentage basis under N.J.S.A.  34:15-22.

The New Jersey system is designed to provide protection for injured workers and their families by creating a steady and dependable stream of tax free payments over a period of weeks or even years, depending on the severity of the injury and its impact on the employee’s work or non-work life.  Permission to apply for a commutation is potentially available to any recipient of a percentage disability award paid out over future weeks, but the employee must prove to the Judge of Compensation that such a commutation is in his or her best interest.

The post Rules Regarding Future Payments Under Permanency Awards and Commutations appeared first on NJ Workers' Comp Blog.

0

Audience Quiz: Two New Jersey Comp Brain Teasers

Today’s blog contains two interesting workers’ compensation quizzes, which were asked at the April 19, 2018 Millennium Seminar in Mt. Laurel, N.J.  We invite readers to email responses.  Next week the winning answers will be announced.

Question One:

Jane Friedman is a CPA for Best Accountants.  She left her office to visit a client one day.  On the way to the client another car sideswiped her vehicle, causing her serious bodily injuries.  Her employer’s workers’ compensation carrier paid $100,000 in workers’ compensation benefits.  Jane negotiated a third party settlement for the policy limit of $100,000 with the other driver’s carrier without hiring an attorney.

How much does the workers’ compensation carrier get back from the third party recovery?

Question Two:

Standard Oil has a large refinery in New Jersey with a full-time occupational physician on site.  One day Bill Bryson, a laborer, sees the company physician, Dr. Fortunato, for treatment of a work-related foot injury.  Dr. Fortunato notices that the foot appears red and swollen and gives Bill anti-inflammatories.  He tells Bill to come back in three days.  Two days later Bill is rushed to the ER by his wife with a diagnosis of necrotizing fasciitis or “flesh eating disease.”  To save his life the hospital has to amputate his foot.

Bryson files a civil law suit for medical malpractice against Dr. Fortunato.  What is Dr. Fortunato’s best defense to the civil law suit?

The post Audience Quiz: Two New Jersey Comp Brain Teasers appeared first on NJ Workers' Comp Blog.

0

Appellate Division Rejects Reopener of High Percentage Award

New Jersey employers like reopener claims about as much as homeowners like back-to-back blizzards.  The general view is that employers have virtually no defenses and have to pay more with each reopener. The truth is that employers can win reopener cases where the petitioner’s expert cannot really prove the petitioner’s condition has worsened since the prior award.  Garces v. Mid-State Lumber Corp, A-4199-15T4 (App. Div. April 10, 2018) provides a good example.

Petitioner suffered two compensable accidents on October 16, 2009 and December 11, 2009 leading to an order approving settlement for 66.67 percent partial permanent disability described as orthopedic and neurologic in nature for residuals of a herniated disc L3-4 and L4-5 status post lumbar laminectomy and fusion.  Respondent received a credit of 27.5% for previous disability.

On June 15, 2013, some fifteen months after entry of the award of 66.67% petitioner filed to reopen his case.  Petitioner testified in the reopener, and he produced two experts.  Dr. Becan was petitioner’s orthopedic expert, and Dr. Peter Crain was petitioner’s psychiatric expert.  The treating surgeon, Dr. Carl Giordano, saw petitioner and concluded petitioner needed no further treatment.

Dr. Becan saw petitioner twice, once in 2011 before the first award and again in 2014 for the reopener examination.  He raised his estimate to 90% of partial total.  On the reopener exam he wrote that petitioner’s disability had increased by 20% of partial total. When asked about the objective findings that supported the increase, he said petitioner “walked with a guarded and antalgic gait pattern,” “had a noticeable limp on the right,” and “was unable to heal or to walk on his right leg.”  He also found “right-sided sacroiliac joint tenderness.”  He noted restrictions when he put petitioner through various maneuvers like straight leg raising.

On cross examination, Dr. Becan conceded that many if not most of his restrictions were the same as they were in 2011.  The two reports were compared, and it turned out that petitioner’s range of motion tests were actually better in 2014 than in 2011.  Petitioner’s muscle strength testing of the quadriceps and hamstring was better.  The right ankle jerk reflex had improved.  Backward extension was the same, and straight leg raising improved.

The Judge of Compensation examined the two reports closely and concluded that Dr. Becan’s findings on the new 2014 examination were not worse at all.  He further noted that while Dr. Becan said petitioner could not return to work, the doctor did not know what petitioner’s job duties were.  The Judge concluded that Dr. Becan had simply offered a net opinion, which is an opinion not supported by any evidence.  The Judge also noted that petitioner’s psychiatric expert, Dr. Crain, had done the same thing.  He also failed to offer any objective evidence of worsening.

The Judge of Compensation dismissed petitioner’s reopener claim and petitioner appealed.  The Appellate Division made short work of the appeal and commented that there was sufficient credible evidence to support the dismissal of petitioner’s case.

The case illustrates an important point.  In valuing a reopener claim, practitioners often focus on the percentage increase that the expert for the claimant offers.  But the better way to value a reopener case is to look beyond the mere estimate of increased disability and compare the pre- and post- award reports side by side.  If the actual measurements, range of motion and findings are the same or better on reopener, it doesn’t matter that the claimant’s doctor raised his or her estimate.  The percentage of increase in an IME means nothing if the actual test results appear to be the same.   There are other ways to win reopeners as well, such as proving that a new non-work event or new employment has worsened the petitioner’s condition.  All of these approaches do give respondents a fighting chance in defending reopeners.

The post Appellate Division Rejects Reopener of High Percentage Award appeared first on NJ Workers' Comp Blog.

Capehart Scatchard Supports Kids’ Chance of New Jersey

Photo: Fr Left: Will Gardner, scholarship recipient; John H. Geaney, Esq., Workers’ Compensation Department Shareholder.

Several attorneys from Capehart Scatchard’s Workers’ Compensation Department recently attended the Fifth Annual Gala for Kids’ Chance of New Jersey.  The event was held on July 13, 2017 at the Hilton East in East Brunswick, N.J.

The Gala was a fundraiser for Kids’ Chance, a non-profit organization, created to provide educational opportunities and scholarships for the children of workers who were fatally or catastrophically injured on the job.  John Geaney and Lora Northen, shareholders in the firm, serve as members of the Kids’ Chance Board of Directors.

The highlight of the Gala featured the presentation of scholarships to sixteen students whose parents suffered fatal or physically catastrophic injuries while working.  John Geaney presented a check for $10,000, co-sponsored by Capehart Scatchard, to Will Gardner.  Gardner’s father, Bill Gardner, who worked for Fed-Ex as a truck driver, lost his life in a work- related truck accident.

Capehart Scatchard Attorney Addresses HRA of Southern New Jersey

Capehart Scatchard Shareholder, John H. Geaney, Esq., spoke in Vineland, New Jersey at a recent meeting of the Human Resource Association of Southern New Jersey.

Mr. Geaney’s presentation was titled, “Cost Savings and Recent Cases in NJ Workers’ Comp and the Interaction Among Workers’ Comp, ADA and FMLA.”   In his presentation, Mr. Geaney addressed how to control workers’ comp costs and how workers’ comp claims can lead to ADA and FMLA lawsuits.

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.

Michael Certain v. Township of Woodbridge

Clients: Central Jersey JIF and Qual-Lynx

Trial attorney:  John Geaney, Esq.
Brief attorney:  Keith Nagy, Esq.

The petitioner sustained a compensable low back in jury on October 29, 2009 lifting garbage cans at work. He treated with Dr. Giordano who discharged petitioner in January 2010 with a final diagnosis of a sprain and strain superimposed on preexisting degenerative disc disease and disc space collapse at L5-S1.  Petitioner argued that the work injury objectively worsened his spine, leading to an MRI done in July 2010 and then three level fusion surgery in 2014.  Petitioner sought 40% partial permanent disability causally related to the work accident.

Trial commenced in this matter.  At trial, respondent proved that petitioner had a prior MRI in July 2009 which appeared to be related to pain while vacuuming in petitioner’s own home.  Respondent argued that the MRI of July 2009 was essentially the same as the MRI of July 2010, which was proof that there was no objective change between petitioner’s spine caused by the work injury of October 29, 2009.  Judge Robert D. Thuring dismissed the case and found petitioner was entitled to no compensation for his fusion surgery.

Capehart Scatchard Attorney Receives Non-Profit Award

Capehart Scatchard Shareholder, John H. Geaney, Esq., was recently named a Non-Profit Organization Co-Trustee of the Year by the Non-Profit Development Center of Southern New Jersey (NPDC-SNJ) for his volunteer work with Moorestown Ecumenical Neighborhood Development, Inc. (MEND).  The mission of MEND is to provide safe and affordable housing to senior citizens, disabled persons and families with low and moderate incomes.

Mr. Geaney received the award on March 1, 2017 at Adelphia Restaurant in Deptford, N.J., during a ceremony in which NPDC-SNJ honored local nonprofit organization agencies and leaders for excellence in service to nonprofits in South Jersey.

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.

1 2 3 7