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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).

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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.

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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?

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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.

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Superior Court Decision Refused to Follow Unreported Decision in Dever V. New Jersey Manufacturers

There has been a great deal of controversy about respondent’s lien rights in motor vehicle accident cases since the unreported ruling in Dever v. New Jersey Mfrs. Ins. Co., No. A-3102-11T2 (App. Div. October 23, 2013). In one decision from last summer, an Atlantic City Superior Court Judge rejected the application of the Deverrule in a similar set of facts.

The Atlantic City case, Colmyer v. Vicki S. Abline, Docket No. ATL-L-5766-1 (August 12, 2014), involved a car accident between plaintiff, Timothy Colmyer, and defendant, Vicki S. Abline. The Little Egg Harbor Municipal Utilities Authority, plaintiff’s employer, paid workers’ compensation benefits and asserted a lien in the amount of $31,768. The MUA intervened in the case to protect its lien rights underN.J.S.A. 34:15-40. The defendant argued that N.J.S.A. 39:6A-12 bars the introduction of evidence of amounts “collectible or paid” by Personal Injury Protection. Defendant further argued that it made no difference whether the medical expenses were paid through workers’ compensation or PIP or any other source: the statutory bar precludes evidence of such payments.

The MUA countered that there was a double recovery in this case to the extent of its medical payments and that it was entitled to reimbursement under the statutory formula. Superior Court Judge, Honorable Allen Littlefield, J.S.C., first examined the two statutes. The Judge also noted that both plaintiff and defendant relied upon the unpublished decision in Dever, supra. Judge Littlefield wrote, “In Dever, the Appellate Division held that a plaintiff is statutorily precluded from recovering medical expenses from a tortfeasor where such expenses were paid by the plaintiff’s workers’ compensation carrier.”

Judge Littlefied next observed that Section 12 of Title 39 was adopted after Section 40 of the New Jersey Workers’ Compensation Act. He said that the legislature was fully aware of the provisions of Section 40 when it adopted Section 12. The logic is that the legislature could have abrogated respondent’s lien rights under Section 40 in adopting Section 12, but it did not.

Judge Littlefield further observed that “the Appellate Division decision in Lefkin v. Venturini, 229 N.J. Super. 1 (App. Div. 1988) is still good law and should be followed by the Court.” The rule in Lefkin is “that a plaintiff must pay the medical expense portion of a workers’ compensation lien out of his recovery from the tortfeasor defendant.” The Court in Lefkin said:

Where only workers’ compensation benefits and PIP benefits are available, the primary burden is placed on workers’ compensation as a matter of legislative policy by way of the collateral source rule of N.J.S.A. 39:6A-6. (citations omitted). And when only PIP benefits and tortfeasor liability are involved, the primary burden is placed as a matter of policy on the PIP carrier by N.J.S.A. 39:6A-12.

The court in Lefkin concluded that there is no bar against recovery of the medical expenses collected or collectible in workers’ compensation from the tortfeasor. The Court reasoned as follows:

This is so because PIP benefits are not available to an insured if workers’ compensation benefits are also available to him. Consequently, PIP benefits in that situation are neither collectible nor paid. Hence, N.J.S.A. 39:6A-12, which bars evidence in the third-party action only of ‘amounts collectible or paid’ under PIP coverage, is inapplicable, and there is no other impediment to the plaintiff-insured-employee recovering his medical expenses from the tortfeasor even though that recovery will ultimately be subject to the compensation lien.

Judge Littlefield concluded, “Because MUA is entitled to recover from Plaintiff’s recovery, it logically follows that evidence of Plaintiff’s medical expenses must be admissible at trial. If the medical bills were precluded, the compensation carrier would be unable to secure reimbursement from the Plaintiff pursuant to N.J.S.A. 34:15-40.”

There are now countless cases in New Jersey where plaintiffs who have both workers’ compensation recoveries and settlements in car accidents are refusing to reimburse medical expenses based on the theory advanced in Dever. This decision is not the final word on this subject but it shows that at least one Superior Court has flatly rejected the recent ruling in Dever.

Woman Who Cleaned Medical Office Was Employed by Both Father and Son Physicians and Could Not Sue Either for Negligence

June Chalmers worked at a medical office, cleaning the office space with another colleague.  On August 20, 2010, she fell on a piece of pipe while at work and suffered injuries which led to serious infections.  Chalmers did not file a workers’ compensation claim and obtained treatment on her own.  However, she did file a civil law suit against Dr. Stephen Swartz, (hereinafter “Stephen”) who practiced with his father in the building.  She claimed that she was only employed by Dr. Stephen Swartz’s father, Dr. Harry Swartz, (hereinafter “Harry’), and she argued that she could sue Stephen because he owned the building where the medical offices were located.  Stephen’s attorney filed a motion to dismiss the case on the ground that Chalmers’s suit was barred by the exclusive remedy rule.

The key facts were as follows:  plaintiff Chalmers was hired in 2004 to clean the office.  Both doctors worked on the premises.  Harry began practicing medicine in the building in 1958, and his son Stephen joined the practice in 1987.  Stephen testified in his deposition that he spent ten hours a day treating patients at a local hospital and then saw patients in the medical building in the evening.  Both doctors practiced together, paid all expenses from a joint account, and obtained a workers’ compensation policy naming Harry and Stephen as policy holders.  There were no partnership papers, although the two doctors considered themselves to be in a partnership.

Chalmers contended that only Harry hired her and employed her.  He gave her direction in performing her job.  Harry’s name was on the W-2 forms and he signed her paychecks, although the checks were written on a joint checking account.

In 2006 Harry transferred title to the building to Stephen for a payment of ten dollars.  Stephen did not charge his father rent.

The trial judge ultimately granted the motion for summary judgment filed by Stephen and dismissed the case as barred by the exclusive remedy rule.  Chalmers appealed and argued that she was not an employee of Stephen.  The Appellate Division began by noting that clearly Chalmers was an employee and was not an independent contractor.  The question was whether she was a joint employee of both Stephen and Harry and therefore unable to sue either doctor.

The court did not feel that analogy to case law on joint ventures was appropriate.  “Because a joint venture is typically entered into for a limited, frequently one-time purpose, those principles have limited applicability here, beyond a general instruction to consider the totality of the circumstances.”  Instead, the court adopted “a commonsense view,” in concluding that Chalmers was an employee of both doctors.

She was paid from a joint checking account in the names of both doctors.  She was covered by a workers’ compensation policy in the names of both doctors.  The policy, including the employee notification poster, listed both doctors as her employers. . . Plaintiff’s work served the purposes of both doctors, because she cleaned the entire building in which the medical practice was located, as opposed to limiting her cleaning services to Harry’s work space. Even if Harry directed plaintiff’s work, there is no dispute on this record that she performed her work for the benefit of both Harry and Stephen, and they both paid for her work. (citations omitted).

For these reasons the Court affirmed the dismissal of Chalmers’ suit.  The Court did, however, allow the case to be transferred to the Division of Workers’ Compensation as if originally filed on time in the Division.  It cited the rule in Townsend v. Great Adventure, 178 N.J. Super. 508 (App. Div. 1981) for the proposition that the Division of Workers’ Compensation was the proper jurisdiction for the claim of Chalmers and allowing the transfer, even if out of time, was in the interest of justice.

This case may be found at Chalmers v. Stephen J. Swartz, A-1472-12T4 (App. Div. October 8, 2013).

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

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

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.

________________________________________________________________________

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

Bill Creating Clear Guidelines in Dispensing of Opioid Medications Introduced in New Jersey Senate

Opioid medications have become a major problem in the New Jersey workers’ compensation system.  The number of workers being prescribed opioids has increased dramatically along with other attendant problems, such as addictions to the medications, excessive periods of use, and large numbers of unused opioid pills due to over-prescribing.  Every workers’ compensation professional can attest to these and other problems with opioid medications, not to mention cases where urine testing shows no trace of opioids in the system despite repeated renewals of opioid prescriptions.

On September 30, 2013, Senator Raymond Lesniak and Senator Stephen Sweeney introduced a bill in the New Jersey Senate proposing that medical expenses shall not include coverage of opioid drugs unless the prescribing doctor does the following:

1) takes a thorough medical history and physical examination focusing on the cause of the patient’s pain;

2) does a complete assessment of the potential addiction of the patient to opioids, which would include a baseline urine test and assessment of past and current depression, anxiety disorders and other mood disorders associated with risk of opioid abuse;

3) provides a written treatment plan with measurable objectives, a list of all medications being taken and dosages, a justification for the continued use of opioid medications, a description of the pain relief from the medications, documentation of attempts at weaning, a description of how the patient responds to the medication, and alternative treatments under consideration;

4) provides a description of either sustained improvement in function and pain reduction or consultation with a pain management specialist (if the dosage exceeds 120 mg morphine-equivalent dose or if the duration of treatment exceeds 14 days);

5) provides an explanation to the patient of the risks and benefits of the prescribed medications and expected duration of treatment.

The Act will allow an employer, carrier or TPA to disqualify any physician from its network who fails to provide such documentation.  If approved, this bill would be a major step forward for the New Jersey workers’ compensation system.  New Jersey is a member of the National Prescription Drug Monitoring program, which allows physicians to check on an electronic database for prior or current prescriptions for controlled substances before dispensing narcotic pain medication to a patient.

The PDMP program along with this proposed bill would go a long way to curb the abuse of opioid medications in workers’ compensation, often among patients who have a history of problems with opioids and other controlled substances.  The bill simply establishes a list of best practices that physicians would need to follow in order to prescribe opioids in the workers’ compensation system, as well as in personal injury protection coverage in automobile insurance. It would not prevent the dispensing of medications to those with chronic or short term pain; it would simply require the physician to undergo careful written analysis before making the decision to prescribe opioid drugs.  Many pain management doctors already engage in these practices and require their patients to sign pain management contracts allowing for urine testing.  However, not all physicians who prescribe opioid medications follow these practices, and this bill is aimed squarely at those physicians

The undersigned will keep readers current on the status of this bill.   The bill is number Senate, No. 3003.

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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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Bill Creating Clear Guidelines in Dispensing of Opioid Medications Introduced in New Jersey Senate

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