Compensability

Andrew Mackoff worked  as a salesman and account manager for New Brunswick Saw Services.  One of his duties was to travel to the company’s businesses for meetings and service calls.  On December 3, 2018, Mackoff left his home in Blackwood, Camden County, New Jersey and drove to West Caldwell in North Jersey for a 10:00 a.m. customer meeting.  Following the one-hour meeting, he decided to drive to the Galloping Hill Inn in Kenilworth, N.J. for lunch. He had been going to that restaurant for many years, and he loved their hot dogs.  After lunch he said he planned to go to the company office in Middlesex County because he had not been to the office for a while.

In testimony petitioner said the Galloping Hill Inn was like a “nostalgia place” for him.   He also commented that he was theoretically going to prospect because the restaurant had slicers for sandwiches.   He called the Inn a “potential customer.”  However, he admitted on cross examination that the Galloping Hill Inn was never a customer of his company, and he had no other customers to visit around the Inn.   On the way to the restaurant he was involved in a car accident.

Petitioner filed a claim petition and a motion for medical and temporary disability benefits, seeking treatment for his injuries.   Respondent opposed the motion and denied the claim as not arising from employment.  The Honorable Ingrid French found that petitioner failed to prove a work-related accident.  The Judge was not persuaded that petitioner was really intending to “prospect” the hot dog restaurant.   The Judge commented that petitioner’s “primary purpose for driving to the hot dog place was personal and not work-related.”  She added that petitioner: “unequivocally testified that immediately following his meeting . . . he was going to get his lunch at the ‘hot dog place.’  Then, his attorney prodded him to state that ‘theoretically,’ the ‘hot dog place’ was also a prospective customer.  Specifically, and in support of this ‘theory,’ the petitioner stated that ‘any’ food establishment that sells prepared food is a potential customer.”

The Judge of Compensation found that petitioner had concluded his work day and was simply on his way to lunch. The Appellate Division affirmed the dismissal of the case.  The Court said, “The definition of ‘employment’ under the statute is multi-faceted and includes situations in which the employee is physically away from the employer’s premises, but nevertheless is ‘engaged in the direct performance of duties assigned or directed by the employer.’”

The Court also observed that employees who have been injured in the course of a ‘minor deviation’ have been found to be covered for workers’ compensation purposes.  But the Court did not feel this was a minor deviation case.  The Court noted that petitioner admitted that if he drove to Galloping Hill Inn to get a hot dog and then to his office it would have been about two hours out of his way rather than going directly to the office.  This was a key fact in the conclusion that the primary purposes of the trip was personal and non-work related.

The Court relied mostly on Jumpp v. City of Ventnor, 177 N.J. 470 (2003), noting that Mr. Jumpp’s accident while returning from his post office errand was found not to be a minor deviation even though the stop at the post office was only a few yards away from the road he was traveling on.  The Court said, “ . . . petitioner’s decision to travel an hour east from his West Caldwell meeting because he was hungry and ‘going to get food first’ was not the sort of activity that ‘would have been compensable if carried out by an on-premises employee.’” 

It was interesting that the Appellate Division referenced the decision in Cooper v. Barnickel Enterprises, Inc., 411 N.J. Super. 343, 346 (App. Div. 2010). In that case the petitioner’s car accident was found compensable where he was driving five miles to get a cup of coffee at a deli.  Mr. Cooper was planning to meet with his union instructor but found out that his instructor was tied up teaching a course.  Cooper admitted that he was simply killing time in getting a cup of coffee before meeting with the instructor.  A key difference between the two cases is that Mr. Mackoff’s day was basically done, although he did testify that he planned to visit the company office after lunch.   The Judge of Compensation and the Appellate Division in Cooper felt that petitioner was just taking his coffee break, like any other employee would.  But Mr. Mackoff was driving a much longer distance off the route to his office for a hot dog without having any other business meetings scheduled that day.

This case can be found at Mackoff v. New Brunswick Saw Service, A-3625-19 (App. Div. July 14, 2021).

The post Long Drive To Restaurant For Lunch Following Business Meeting Found Not Compensable appeared first on NJ Workers' Comp Blog.

All too often holiday parties end with some unfortunate injury.  Is such an injury covered in workers’ compensation?  It depends on the circumstances. The Court in Regalado v. F&B Garage Door, A-0083-20, (App. Div. June 8, 2021), found that the injury in this case did not arise out of and in the course of employment.

Some of the facts in the case were undisputed.  On Friday, December 23, 2016, the company hosted its annual holiday party at a local restaurant.  The party was for employees, friends and family.  No company clients or vendors were invited. The owner of the company, Frida Ferrera, said that the purpose of the party was to thank employees for their hard work throughout the year. 

Petitioner, Ms. Regalado, invited her brother as in prior years.  Since neither of them drove, the owner drove them to the party.  The vehicle in which they all drove was owned by Martinez, who was not employed by the company.  Everyone at the party except the owner consumed alcohol. No one was paid to attend the party nor compensated for travel time.

The parties also agreed on the circumstances of the accident.  After the party ended, Ferrara drove first to her own home.  She exited the vehicle and then Martinez, the car owner, got in the driver’s seat.  Minutes later Martinez drove into a parked car, which caused the vehicle to flip over, resting on its roof.  Petitioner and her brother were treated at the ER and petitioner required surgical procedures to her neck and jaw.

Petitioner filed a workers’ compensation claim petition.  She argued that the owner told her she would not receive a holiday bonus if she did not attend the holiday party.  This allegation and others made by petitioner were disputed.  Petitioner also claimed that she received her cash bonus at the restaurant.  During testimony, however, petitioner said that she would not have attended the party if transportation had not been provided.

Respondent produced three lay witnesses.  They all testified that bonuses had already been paid prior to the holiday party.  The owner denied saying that petitioner’s bonus was contingent on attending the party.  The owner testified that the party was optional and there were no job ramifications for refusal to attend. Another employee testified that he attended the party for two years and was never told his bonus was contingent on attending.  He also said the bonus was paid prior to the party.

The only documentary proof offered by petitioner was a bank statement listing her deposit history between December 9, 2016 through January 10, 2017.  Those documents showed $540 was deposited on December 27, 2016.  Petitioner’s math did not add up.  She said this amount represented three days of pay at $60 per day plus a $300 cash bonus received at the party.  That total was $480, not $540.

After hearing testimony on several days, the Judge of Compensation found petitioner not credible nor consistent.  He observed that petitioner testified to receiving different amounts on different days of testimony.  He also thought it was contradictory for petitioner to say that she would not have attended the party without transportation being provided but then maintain that her attendance was essentially mandatory.  As for the bank deposit, the Judge of Compensation noted that there was no showing when petitioner received these funds.  The judge dismissed the case and petitioner appealed.

The Appellate Division explored the requirements under N.J.S.A. 34:15-7.  It noted that for a social activity to be compensable petitioner must prove that there is a benefit to the employer beyond improvement of health and morale. In this case the party was clearly about employee morale since only coworkers, friends and family were invited, not clients or vendors.

That left one remaining legal argument made by petitioner, namely that her attendance was mandatory.  There is a line of cases in New Jersey that establishes compensability when an employee is required to perform some activity, whether recreational or social.  The Court found no evidence that petitioner was in fact required to attend, or that there were threats of reprisal to her for non-attendance.  The Court viewed the party as an informal gathering on an optional basis.  It gave no weight to petitioner’s argument that her bonus was on the line because other witnesses made clear that the bonus was paid prior to the party.  The Court agreed with the Judge of Compensation that petitioner’s statement that she would not have attended the party absent transportation conflicted with the so-called mandatory nature of the party.

The lesson from this case is that employers who wish to host holiday parties and other similar events should make clear in writing that attendance is optional and voluntary and that there are no adverse job consequences for non-attendance.

The post Serious Accident Following Annual Holiday Party Found Not Compensable appeared first on NJ Workers' Comp Blog.

What if two lawyers leave their separate offices to meet at a coffee shop to discuss a case?  Is the commute to the coffee shop compensable for either or both of them?  The answer was no in the context of the facts in Pilone v. County of Middlesex, A-1676-19, (App. Div. March 15, 2021).

Lynn Pilone, an assistant prosecutor for Middlesex County, arrived at her Bayard Street office in New Brunswick between 8:30 and 9:00 a.m. on March 21, 2017.  Later in the day she knew she would be meeting with a victim-witness.  Before that meeting she wanted to discuss the case with a colleague, Helen Zanatakos, a fellow assistant prosecutor with years of experience, who worked nearby in a different office. The two decided to meet at 11:00 a.m. at a donut/coffee shop one block away from Pilone’s office.

At the appointed 11:00 a.m. time Pilone left her office and walked to 25 Kirkpatrick Street to meet Zanatakos in front her office, and then the two of them started walking to the donut/coffee shop one block away. On the way, Pilone fell on the sidewalk in front of a parking lot near Kirkpatrick Street and was taken by ambulance to a hospital.

Pilone filed a workers’ compensation claim which the County of Middlesex denied on the ground that the injury did not arise from petitioner’s employment.  Trial ensued with Pilone testifying that she was not on a lunch break when she fell.  She simply wanted to discuss the case with Zanatakos face-to-face.  It was a common practice for her to discuss cases outside the office as the inside offices were often too busy. Her intent was to buy coffee in the shop and then discuss the file, which she thought she carried with her at the time of her fall.

For her part Zanatakos testified that she also planned to discuss the case with Pilone because she was aware the victim-witness was dissatisfied with how her case had proceeded.  She intended to provide guidance to Pilone.  Sometimes the two of them would discuss personal matters, but this time the discussion was definitely about this particular file.

The Judge of Compensation granted the County’s motion to dismiss the case because petitioner’s fall occurred off work premises. The fall occurred on public property.  On appeal petitioner argued that her fall was subject to the “special mission” exception.  The Court relied on the Supreme Court decision in Hersh v. County of Morris, 217 N.J. 236 (2014).  That case focused on the “situs of the accident” and “the degree of employer’s control.”  The Court pointed out that the County had no control of the public walkway, nor of the coffee shop. 

The Appellate Division noted that petitioner had not been directed to work offsite by her employer. “Although N.J.S.A. 34:15-36 extends compensability to duties assigned or directed by the employer, petitioner did not demonstrate that meeting at the donut shop was assigned or directed by the Prosecutor’s Office.”  The Court distinguished another well-known case involving a drive to a coffee shop, namely Cooper v. Barnickel Enters, 411 N.J. Super. 343 (App. Div. 2010).  In that case the Court noted that petitioner was directed to work away from the primary place of employment while being injured en route to purchase coffee.  The Court said that here petitioner could have decided to meet in the office or outside the office, but there was no employer direction to meet at the donut/coffee shop.

The decision makes sense in not extending the special mission exception to a situation where employees decide for themselves (without employer direction) to meet off work premises.

The post Appellate Court Rejects Compensability Of Assistant Prosecutor’s Fall En Route To Coffee Shop appeared first on NJ Workers' Comp Blog.

Employers, third party administrators and insurance carriers have for months been expending a great deal of time collecting information needed to make compensability decisions in respect to COVID-19 claims.  There are many important questions to be asked in making such decisions.  This blog focuses not so much on specific questions but on areas of inquiry.

PCP and Hospital Records

Primary care physician records as well as hospital records related to COVID-19 are often pivotal in making compensability decisions.  The PCP records often document when symptoms first appeared and what those symptoms were.  The physician almost always asks the patient questions about the source of the coronavirus, specifically whether that source is a family member, friend, work associate, or someone whom the employee was assisting or caring for.  Similarly, initial hospital admission records may assist in confirming the start of symptoms and source information.  

Source and Exposure Identification

Questions should focus on where and how the employee believes he or she contracted the virus. Sometimes the employee knows no specific source and other times the employee is quite certain of the source.  Whether the employee indicates the source is a colleague, patient, or customer, follow-up questions should address how much time the employee spent working with this individual or individuals and how close they physically were.  Was there daily contact and what was the physical work situation?  Does the employee know whether the source has tested positive for COVID-19? Were masks or protective devices being used?

Quarantine Issues

One area of inquiry should be whether any colleagues, close friends or family members have been quarantined within the past month.  If the answer is affirmative, follow-up questions need to focus on the reason for the quarantine and whether the employee is aware of positive or negative test results for the individual who was quarantined.  If the quarantined individual is a family member, it is important to ask about contact which the employee had with the family member before, during and after the period of quarantine.  The dates of the quarantine period should also be identified. 

Travel Issues

Each states has had somewhat different approaches to responding to the coronavirus, so it is important to ask questions about travel both within and outside the employee’s home state and places where the employee visited and stayed.  By the same token, inquiry should be made about any friends or relatives who have visited the employee in the last month and the health of the visitor.

Timeline Questions

The CDC advises that respiratory symptoms of COVID-19 usually appear an average of 5-6 days after exposure, but symptoms may appear in as few as 2 days or as long as 14 days after exposure.  This is important to keep in mind in the event that the employee has just recently tested positive for COVID-19 but is pointing to a source that the employee has not been around for four weeks.   It is often difficult for any of us to remember what we were doing a few weeks ago.  Calendars and emails are often helpful in refreshing recollection. 

                                                    Outside Activities

Questions need to be asked about recent gatherings, whether they be religious, social, or entertainment oriented. Family get-togethers have been documented in many articles as a source of spreading coronavirus.  It is worthwhile to ask the employee whether he or she has been shopping in the past month and worthwhile to confirm that the employee wore a mask or similar covering.

Symptoms and Medications

Questions about symptoms and medications are significant because one can have COVID-19 long before a positive test confirms it.  The questions should document when symptoms occurred, what they were, what medications were taken, and whether symptoms changed over time.  This information can often be checked against family doctor or hospital records.  For those who have had symptoms, it is helpful to pin down the nature and severity of the symptoms.  This information may take on added significance if a claim petition should later be filed in the Division with allegations of impairment of specific bodily organs.  Of course, as has been well documented, some people who are positive for COVID-19 have no symptoms at all.

                                                   COVID -19 Testing

It is necessary to ask about positive and negative COVID-19 test results and the dates of those tests. If a physician or hospital was involved in facilitating the testing, those records should be obtained.

Last Employment Date and Second Jobs

An employee who reports a COVID-19 claim should be asked when he or she last worked, whether the work was performed on site or remotely, and whether the individual has another job.  There are hundreds of thousands of employees in New Jersey who work part-time jobs.  An EMT may work part-time in that position but have another full-time position.  A nurse or technician may work part-time for two hospitals.  Decisions on compensability are obviously much more complicated when someone has two jobs since there may be potential exposure in one or both jobs or no exposure at all.  In multi-employment situations, it becomes critical to obtain a record of the days worked in each position.  That information should be compared with the timeline of symptoms and illness.

Summary

These are some of the key areas of inquiry that will facilitate decisions on compensability.  Employers, third party administrators and carriers should bear in mind that when if a decision is made to accept a COVID-19 claim, that does not mean that the allegations of the formal Claim Petition have necessarily been accepted.  For instance, if an employee has contracted work-related COVID-19 and files a claim petition alleging permanent pulmonary impairment and psychiatric impairment, the pulmonary and psychiatric aspects of the claim petition may still be denied.   Just as in any workers’ compensation claim, there must be a showing of objective evidence of causally-related impairment to support an award in workers’ compensation.

The author has a useful list of questions for clients and readers to help make COVID-19 determinations.  Readers are welcome to send an email to jgeaney@capehart.com for a request for this list.

The post Gathering Information to Make Decisions on Compensability of COVID-19 Cases appeared first on NJ Workers' Comp Blog.

In response to the world-wide coronavirus epidemic, one of
the most remarkable societal changes taking place in America today is the ubiquitous
transition from working in an office to working from home.  The deadly coronavirus is forcing this change,
but many think that even when this crisis passes, American businesses will start
to reevaluate the advantages of telecommuting given the incredible technology
we all have at our fingertips and the potential cost savings in office space.  As tens of millions of new home-based employees
carry on their daily work tasks, many clients have begun to ask about the
ramifications for workers’ compensation. 
The questions this practitioner is receiving almost daily are whether
home workers are covered under workers’ compensation and if so, under what
circumstances?

The starting point on this discussion is N.J.S.A. 34:15-36,
which provides that employment commences when one arrives at the employer’s
place of employment.  However, the
statute continues that when an employee is required by the employer to be away
from the employer’s place of employment, that employee is in the course of
employment when engaged in the direct performance of duties assigned or
directed by the employer. 

In one reported case involving a salesman, the court recognized that the home can be considered the petitioner’s primary place of employment. Wilkins v. Prudential Insurance and Financial Services, 338 N.J. Super. 587 (App. Div. 2001).

Surprisingly, there are not many reported cases dealing with home injuries, although one may safely surmise that this may be about to change.  In Kossack v. Town of Bloomfield, 63 N.J. Super. 322 (Law Div. 1960) the court ruled for a police officer who injured himself cleaning his service revolver at home.  The court found that the officer had a duty to keep his revolver clean, noting that the municipality placed no limitations on time or place in regard to this duty.

In another case involving a police officer, the petitioner was working the 7:00 p.m. to 7:00 a.m. shift and got permission from her Sergeant to drive home for dinner while on duty so long as she remained in radio and telephone contact.  The officer finished her meal, headed out the door of her home, and slipped and fell on black ice on her property.  The court found for petitioner on the grounds that the accident occurred in the course of her employment because she was authorized to take her meal at home.  DeCoursey v. Tp. of Randolph Police Dept., No. A-0915-06 (App. Div. Aug. 14, 2007), certif. denied, 193 N.J. 222 (2007).  

Most home injuries involve traumatic events like a slip and fall, but the New Jersey Supreme Court considered an interesting occupational disease claim several years ago, focusing on an employee who worked extensively on her computer at home.  In Renner v. AT&T, 218 N.J. 435 (2014), Mrs. Renner was authorized to work from home three days per week.  She was working on a deadline project and stayed up and worked all night.  At 7:50 a.m. Mrs. Renner took her son outside to catch the school bus and grabbed her leg in pain while walking out of the house.   At 9:00 a.m. she sent an email to a co-worker stating that she did not feel well but would complete the project.  At 11:34 a.m. she called the Edison Township EMS stating that she could not breathe.  She was pronounced dead on arrival at the hospital from a pulmonary embolism. 

The expert retained by Mrs. Renner’s dependent husband
testified that sitting at a desk for many hours contributed to the decedent’s deep
vein thrombosis and death.  The Supreme
Court accepted the testimony of respondent’s expert that the death was not
caused by work activities and was not a compensable occupational disease.  The Court accepted the notion that petitioner
could be covered for workers’ compensation purposes while working at home, but the
court concluded that in this case there was no causation between prolonged
sitting and her fatal pulmonary embolism. 

One can safely state
that under New Jersey law, injuries that occur in the course of working at home
are on equal footing with injuries that occur in the course of working in the
traditional office. Yet there may sometimes be surprising differences:

• Consider two employees:  Employee W is injured in a large office space
  leaving her immediate work station to converse with a friend on the opposite
  side of the office. She slips and falls near her friend’s work station, 30
  yards away.  Employee H is working in a
  study at home and walks upstairs during a break to speak with his son who is
  home sick.  He slips and falls in the
  bedroom.  Both employees suffer a broken
  arm. Would both cases be compensable?

Employee W would be covered because
she is on the work premises during work hours when she falls.  New Jersey has a strong premises rule.  But Employee H is now outside the study where
he works and is upstairs in his house.  Would
you consider the entire house to be the work premises?  Is that the intention of any employer who
authorizes telecommuting?  Does the
employer lack any formal document at all about what is considered the work
premises?

• Suppose Employee W takes a break at 10:15 to get
  coffee at the on-premises office cafeteria and is jostled pouring the coffee,
  causing severe burns.  The same thing
  happens to Employee H at home in his kitchen.  
  Is the kitchen part of the work premises?

In the office scenario, Employee W’s burns
will be found compensable under the mutual benefit doctrine because there are
some activities that benefit both the employer and employee. Coffee breaks are
one of them.  Further, the employee
cafeteria is on the premises.  An
off-premises slip and fall by Employee W at a Wawa during a break would not be
compensable, however.

But what about Employee H? The court in Cooper v. Barnickel Enterprises, 411 N.J. Super. 343 (App. Div.), certif. denied, 201 N.J. 443 (2010) found that a master plumber who worked on the road was covered when he was injured on his five mile drive to get a cup of coffee while on break.  The theory was that someone who works outside an office should have the same opportunity for coffee breaks or restroom breaks as one who is in the office.   Does Employee H have a strong argument that he should be treated the same as someone in an office?  Probably yes although there is no reported case on point.

You can immediately see that the absence of any
documentation about home office expectations is problematic.  So what actions can employers take to get
some measure of control over home injuries? 
After all, there are not likely to be witnesses to home injuries other
than family members, and there are no security cameras to verify the mechanism
of injury or location of injury.  This
practitioner recommends that employers consider the following issues in
connection with a written understanding for employees who are approved to
telecommute.

• Does the employer intend to authorize the entire
  home as the work site? If not, it would be important to put in writing the
  specific locations that the employee will conduct assigned business, perhaps a
  home office or the kitchen table but not the rest of the house. That will avoid
  claims for slips and falls in the driveway while walking to get personal mail
  or falls in the basement while checking the heater.

• Are there specific hours that the employee is
  permitted to work or does the employer allow work at any time suitable to the
  employee?

• Will the employee be required to clock in online
  and clock out when finished for the day?

• Is the employer responsible to supply and repair
  equipment such as printers, computers, and fax machines?  Will the employer provide ergonomic assistance
  to home employees if that is also offered to office employees who experience
  arm or wrist pain?

• Employers should make clear that all the normal
  reporting requirements must be followed when an injury occurs to a
  telecommuting employee arising out of the employment.  Same day notice is recommended so that the
  employer can contact its third party administrator or carrier for investigation
  and, if appropriate, direction of care.

This practitioner is of the opinion that
telecommuting is here to stay in much larger numbers.  Financial considerations, traffic
considerations, environmental considerations, and enhanced productivity related
to elimination of commuting time all favor the rapid ascent of telecommuting.  From a workers’ compensation standpoint, the
number of home injuries is likely to be far less than those in traditional
office locations particularly if the employer at a minimum designates a
specific area where work is authorized.

The post The Brave New World of Telecommuting and Workers’ Compensation appeared first on NJ Workers' Comp Blog.

Many readers of this blog have inquired recently about the
potential impact of the novel coronavirus on workers’ compensation claims.  Should a surge of serious coronavirus
illnesses occur among New Jersey workers, would such claims be considered
compensable under the law?

The answer to this question depends on whether one is or is
not a public safety worker. Most New Jersey workers would not meet the test of
a public safety worker.  For non-public
safety workers, the likelihood of successfully maintaining an occupational
disease claim under N.J.S.A. 34:15-31 would be very low.  The reason is that a claimant must show that
the medical condition, for instance pneumonia, is more likely than not produced
by causes which are characteristic of or peculiar to one’s occupation in a
material degree.  This test is hard to
meet because it is next to impossible to identify the source of the virus.  Many people who do not even know they have Covid-19
and are not yet symptomatic may be infecting large numbers of individuals in
all sorts of locations.  For an infected
employee, it would be hard to know whether one was exposed to the virus at work,
in a store or some other places of human contact.  It would almost always be pure speculation
where the exposure occurred.

Public safety workers, on the other hand, will have a strong
argument for compensability.  The
legislative intent of the Twenty First Century First Responders Protection Act
was to protect public safety workers. 
That law became effective in New Jersey on July 8, 2019.  This landmark legislation observes that “public
safety workers are required by necessity to take great personal risks of
serious injury, illness and death in their duties to protect the people of New
Jersey from the dangers of catastrophic emergencies, including, but in no way
limited to, terrorist attacks and epidemics.”  Unfortunately, the coronavirus has the
potential to reach epidemic levels in the USA just as the virus has in China
and other nations.

N.J.S.A. 34:15-31.4 defines a public safety worker broadly
to include not just fire and police officers, but also “a Community Emergency
Response Team approved by the New Jersey Office of Emergency Management, or a
correctional facility, or a basic or advanced medical technician of a first aid
or rescue squad, or any other nurse, basic or advanced medical technician
responding to a catastrophic incident and directly involved and in contact with
the public during such an incident. . .”  There are likely to be thousands of public
safety workers in New Jersey who will be part of state efforts to contain any
potential rapid spread of this virus.

N.J.S.A. 34:15-31.5 provides a presumption of compensability
in subsection a. if a public safety worker can demonstrate exposure at work to
“the excretions, secretions, blood or
other bodily fluids of one or more other individuals or is otherwise subjected
to a potential exposure, by the other individual or individuals, including airborne exposure, to a
serious communicable disease, or is otherwise determined to be infected with or
at significant risk of contracting the serious communicable disease. . . “ Readers
should focus on the language “or is
otherwise subjected to a potential exposure” in the preceding
sentence.  The language does not say definite or proven exposure but
rather “potential” exposure.  Public
safety workers, by the nature of their work, are highly likely to have such
potential exposures to those who are infected with coronavirus.

These new provisions of New Jersey’s occupational disease
law demonstrate that public safety workers who may contract coronavirus will
have a strong case for compensability given the presumption provided for in the
statute.  Having a presumption of
compensability is powerful.  When there
is presumption of compensability, the burden of proof shifts to the employer to
show that the exposure is not work related. 
Just as I said earlier that it is hard for a non-public safety worker to
prove exposure, so too it would be very hard for an employer to prove that a
public safety worker more likely than not was infected through non-work exposures.  The employer will have no idea when the
disease was contracted, and it would be speculation to say that the exposure
was not work related.  So the presumption
in a public safety worker scenario will almost certainly lead to compensable
awards.

The statute drives this point home:  “If it is ascertained that the public safety worker has contracted a serious communicable disease or related illness under the circumstances set forth in subsection a of this section, there shall be a presumption that any injury, disability, chronic or corollary illness or death of the public safety worker caused by, attributable to, or attendant to the disease is compensable under the provisions of R.S. 34:15-1 et seq.” 

The CDC has concluded that it is just a matter of time before the coronavirus is considered a pandemic and before it spikes in parts of the United States.  If the CDC is right, New Jersey public safety workers run a high risk of contracting the illness in the course of their employment.  While slightly more than 80% of coronavirus patients have had mild symptoms, the remaining percentage has had serious symptoms.  Sadly, a small percentage of deaths is related to the coronavirus.  It is true that the percentage of deaths from coronavirus may not be any higher than the percentage of deaths from the flu each year in the USA, but there is a difference: there is no current vaccine for this virus and it has proven thus far to be highly contagious.

The post The Potential Impact Of The Coronavirus On New Jersey Workers’ Compensation appeared first on NJ Workers' Comp Blog.

We are in holiday season. 
Many private and public entities have holiday parties this time of year,
and inevitably there will be accidents either going to or from the party or
perhaps slipping and falling on the dance floor.  What do employers need to know and what can
they do to avoid such claims when they schedule weekend or after-work parties?

First, the employee must prove that the event is a regular
incident of employment and that the purpose of the event was to promote an end
greater than improvement of morale.  If
it is all about morale, it is not compensable. 
A fundraiser might be an example of an event whose purpose promotes
something greater than morale. 

But even if the
employee cannot meet this test, the employee will prevail if he or she can show
that attendance was compulsory.  That
which is required is considered to be work-related.  Now realistically, most employers do not send
out invitations to holiday parties saying that attendance is compulsory.  But that is not the only way for an employee
to prove attendance was compelled.  If
the person in charge of the party says, “Hi
Sam, I sure hope you are going to make the holiday party on Saturday,” Sam
may testify at trial that he had a reasonable basis to believe that his
attendance was compelled.  If the person
in charge of the party keeps asking people whether they are attending, and then
presses for explanations on why they are not planning to attend, or suggests
that “the boss will be disappointed,” a Judge of Compensation may very well
find that the employee had a reasonable basis to believe that attendance was
compelled. So the test of compulsion is not whether the words “mandatory
attendance” are on the invitation but whether the employee had a reasonable
basis to believe he or she must attend.

When employers lose cases involving injuries going to or
from holiday parties or slip and falls at the party, it is mostly because the
injured employee can convince the Judge of Compensation that he or she felt
compelled to attend.  If that is the
case, the ride to the party and the ride home is covered by workers’
compensation.  Car accidents are the main
cause of injuries, often very serious ones, and the risk of injury may be
compounded by use of alcohol or wintry road conditions.   Unfortunately, the New Jersey law does not
protect employers from injuries caused largely by intoxication because the
current law requires the employer to prove that no cause – other than the use
of alcohol – contributed to the accident. 
So if you have someone who is intoxicated above the legal limit and the
roads are slippery when the accident happens, the employer will lose because
there is another reason for the accident besides intoxication, namely the
slippery road conditions.  Needless to
say, we are in December.

The best way for employers to insure that they do not have to pay for holiday party accidents is to make it crystal clear that attendance is optional.  Put that language all over the invitation.  Make it clear that there will be no names taken of attendees, and non-attendees, and do not pester people who have no plans to attend.  High level employees should not be walking around asking employees why they are not coming to the party.   This may make it harder to guarantee a number of attendees for the restaurant, but that is far better than having to pay a death claim for someone who is tragically injured driving home from a holiday party.

Bear in mind that holiday parties during work hours are a completely different subject.  These parties where people are actually at work and getting paid during normal work hours are almost always covered.   So if there is a party at lunch at Lincoln Company in the cafeteria, and someone slips and falls on the floor while grabbing an egg nog, that injury will be held to be compensable because on-premises injuries are compensable unless they constitute a deviation from employment.

The post Avoiding Compensable Holiday Party Accidents appeared first on NJ Workers' Comp Blog.

Any decision from the Appellate Division on recreational or social activities is welcome precisely because there have been so few decisions since the 1979 Amendments.  The case of Goulding v. NJ Friendship House, Inc., A-5996-17T3 (App. Div. November 7, 2019) is the most recent decision on this area of law in years.

Kim Goulding worked as a cook for NJ Friendship House, a
non-profit organization providing vocational training for individuals with
developmental issues.  She would
regularly cook and prepare meals for members during lunchtime and afterschool
programs.  She worked Monday through
Friday, from 10:00 a.m. until 3:30 p.m.

The Friendship House hosted its first “Family Fun Day” on
September 23, 2017, and the event was held in the rear parking lot of the
employer’s premises. There were recreational activities, food, music, games, and
prizes for members and their families. 
Volunteers were asked to attend, and some agreed to participate while
others did not.  Goulding volunteered
right away and arrived before nine a.m. to prepare breakfast.  She stepped into a small pothole around
noontime injuring her foot.

Goulding filed a claim petition which her employer denied,
and then she filed a motion for medical and temporary disability benefits.  Friendship House contended that her accident
did not arise out of her employment.

The Judge of Compensation applied the test set forth in
N.J.S.A. 34:15-7. She found that the purpose of the activity was improvement of
morale and that it was not a regular incident of employment.  The claim petition and motion were therefore
dismissed.  Goulding appealed and argued
that she was performing her usual work as a cook at Fund Day, not participating
in a recreational activity.

The Appellate Division first noted that there was nothing
involved in Fun Day that would take this case out of the basic formula for a
non-work recreational event.  This was
not a fundraiser.  It produced no benefit
for the company in terms of public relations. It was the first time ever for
Fun Day and therefore not a regular incident of employment.

The Court further noted that petitioner herself admitted she volunteered and did not feel any compulsion to participate.  To her argument that she was really just doing her regular job as a cook, the Court said, “If an employee chose to help out, the employee could participate in any capacity.  Appellant could have worked at a game, or assisted with prizes.  She chose to set up tables, arrange trays and grill hot dogs.  We cannot conclude the Fun Day was as customary as a lunch or coffee break.”

One of the key factors in this case was that no one was compelled to participate.  The employer handled this the right way in terms of making the whole event optional.  In fact, many employees of the company declined to participate with no adverse consequences to them.  All of the evidence in this case pointed to a recreational activity whose main purpose was improvement of morale.  There was no proof by petitioner of any purpose greater than improvement of morale; nor was Fun Day a regular incident of employment.  Therefore the case was clearly not compensable.

The post Appellate Court Affirms Decision That Company’s “Fun Day” Was Not a Work Event appeared first on NJ Workers' Comp Blog.

In an important decision, the New Jersey Appellate Division
decided on October 16, 2019 that a nurse who was walking from work premises to
a parking lot following her shift at Jersey City Medical Center/ RWJBH was not
in the course of employment when she was struck by a motor vehicle.  Christina Adinolfi Shea, partner with
Capehart Scatchard, won the trial before the Honorable Lionel Simon, Judge of
Compensation, and then argued and won the appeal. Caroline Yount, Esq.,
assisted on both briefs.

Emily Manuel worked as a nurse for Robert Wood Johnson Barnabas Health (RWJBH) and was seriously injured when struck by a motor vehicle using a public crosswalk.  She sustained hip and pelvic fractures, a concussion and other injuries.  She finished her shift at 7 p.m. and then walked across the street to the parking lot where she normally parked. She filed a workers’ compensation claim contending that her injury on Jersey Avenue was covered under workers’ compensation because she was walking from work premises to an alleged employer controlled parking lot. RWJBH denied the claim from the outset and argued that the case was governed by the Supreme Court decision in Hersh v. County of Morris, 217 N.J. 236 (2014). RWJBH denied that it controlled the parking area, nor maintained that area. The PIP carrier also joined in the case seeking reimbursement for approximately $150,000 of medical bills it paid to Ms. Manuel.

The factual background on the parking lot is critical to
appreciate.  In 2010 RWJBH made on-site
parking unavailable to non-essential employees and offered these employees
parking in the Marina Lot located across the street from the hospital.  That lot was owned by Assured Resource
Management, LLC. (hereinafter Assured). RWJBH rented 158 parking spots in the
450-space Marina Lot and paid Assured $13,000 monthly for these parking
spots.  RWJBH made a biweekly payroll
deduction from the employees who were authorized to park in the Marina Lot,
such as Manuel, to cover the lease costs. Employees had to submit an
application for permission to park in the lot.

RWJBH provided an optional shuttle service to transport hospital
employees from the Marina Lot to the hospital’s entrance.  Those employees who did not use the shuttle
could walk across Jersey Avenue by means of a public crosswalk.  RWJBH did not control the means of ingress
and egress from the Marina Lot to the hospital.

Under the terms of the lease, RWJBH issued parking passes to
employees who parked in the Marina Lot. 
The hospital designated those employees who were permitted to park
there.  The hospital reserved the right
to provide an on-site traffic director during morning and evening rush hours,
but the hospital never actually posted a traffic director on the site because
it would have needed municipal approval. 
RWJBH had no control over snow removal, repairs or maintenance of the
Marina Lot.  Employees of RWJBH could
park in the streets near the hospital, in another lot known as the ED lot
(owned by RWJBH) or in the hospital’s visitors’ spots for a fee. 

The Hon. Lionel Simon heard the testimony of petitioner and
a witness for RWJBH and found that the injury was not compensable for the
following reasons:

• While there was language in the lease agreement
  that allowed RWJBH to exercise limited control of the parking garage, the
  garage owners actually exercised daily control and maintenance of the garage.
• Manuel was injured on a public street not under
  the control of RWJBH.
• Manuel was not directed to park in the Marina
  Lot.
• Manuel could have used the shuttle bus but chose
  not to do so.

Petitioner appealed as did the PIP carrier.  The Appellate Division found that this case was controlled by the decision in Hersh.  Both cases involved injuries on public streets, and both involved situations where the employer did not own the parking lots in question, nor control the lots.  Further, in neither case could the injured worker prove that that the employer derived a direct business benefit from facilitating employee parking in the garage.  In Hersh, the County paid for the parking lot but in this case, the employees ultimately paid for the parking by payroll deduction.  Both cases also involved no special hazard in crossing the street.  Many other employees crossed the street who parked elsewhere.  The Court said, “Here, there are sufficient credible facts to show that RWJBH lacked control over the crosswalk used by Manuel, and the Marina Lot, and therefore, her injuries are not compensable under the premises rule. Furthermore, Manuel’s injuries resulted from a vehicular accident that occurred on a public roadway over which RWJBH had no control.”

The Appellate Division specifically affirmed the reasoning of Judge Simon to the effect that the hospital did not require its employees to park in the Marina Lot, and in fact, petitioner declined to use the shuttle service and could have availed herself of other parking options.

The case is an important one in that it shows the strength of the decision in Hersh.  Further, the Court found that it did not ultimately matter that the lease agreement had some language about potential hospital control through a traffic director since the hospital never actually appointed a traffic director in the first place.

The post Robert Wood Johnson Barnabas Health Found Not Responsible For Injury To Nurse In Public Street appeared first on NJ Workers' Comp Blog.

On July 8, 2019, Governor Phil Murphy signed Senate No. 716
into law, a bill which makes sweeping changes to occupational disease claims
for New Jersey public safety employees. 
There are many aspects of the new law, known as the “Thomas P.
Canzanella Twenty First Century First Responders Protection Act.”  The single most onerous provision in the bill
for municipalities, counties and the State is the provision covering firefighters
for a wide range of cancers that will now be presumed to be compensable.

With respect to firefighters, both paid and unpaid, the bill
provides that firefighters under the age of 76 will be presumed to have work
related occupational disease if the firefighter develops cancer, including
leukemia, so long as the firefighter has completed more than seven years of
service.  The presumption means that if
such a firefighter is diagnosed with cancer, the Judge of Compensation must
presume that the cancer is work related. 
There is no need for a firefighter with more than seven years of active
service under age 76 to identify specific exposures or fires that he or she
fought.  The burden of proof does not
rest on the firefighter to prove his or her case.  Rather, the employer will lose unless the
employer can disprove the case by a preponderance of the evidence.  To defeat the presumption created by this
law, the employer has to prove that there is a greater than 50% chance that the
cancer is not due to work exposure.

For a firefighter 75 years of age or under with seven years
of service, the firefighter can seek workers’ compensation benefits for any
type of cancer, even the most common cancers. 
The only limitation is that the
cancer must be a type which may be caused by exposure to heat, radiation, or a
known or suspected carcinogen as defined by the International Agency for
Research on Cancer.  That
organization is part of the World Health Organization.

The problem for public employers in disproving a presumed
cancer claim is that there are any number of contradictory and competing studies
in the medical literature with respect to firefighting and cancer.  Some articles say there is no link between
firefighting and common cancers like prostate cancer and colon cancer, but
others make the connection.   Prostate
cancer is the most common cancer in men, and the incidence climbs with
age.  There is more of a scientific consensus
linking firefighting to certain skin cancers, multiple myeloma, lung cancer, malignant
melanoma, leukemia and non-hodgkins lymphoma. 

A firefighter with less than seven years of service can still file a claim, but he or she must meet a different and new standard pertaining to public safety workers.  That provision states that a public safety worker is covered for workers’ compensation if he or she is exposed to a known carcinogen, cancer-causing radiation or a radioactive substance, including cancer.  This section of the law specifically covers damage to reproductive organs.  Again, there is a presumption of compensability, so the burden of proof shifts to the employer.  But this section requires the public safety worker to show that he or she was exposed due to fire, explosion or other means to a known carcinogen, to cancer-causing radiation or radioactive substances.  In addition, he or she must demonstrate that the injury, illness or death manifested during his or her employment as a public safety worker. The language regarding manifestation during employment is helpful to employers.  However, this language is not included in the previous provision dealing with firefighters who are 75 years old or younger and have seven years of service.

Public safety workers are defined as follows:

1. Member, employee or officer of a paid, part paid or volunteer fire or police department;
2. State police member
3. Community Emergency Response Team member approved by the New Jersey Office of Emergency Management;
4. Member of certain correctional facilities;
5. Advanced medical technicians of a first aid or rescue squad;
6. Any other nurse or advanced medical technician responding to a catastrophic incident who is in contact with the public during such an incident.

Public safety workers who contract a serious communicable
disease or related illness also shall have a presumption of compensability that
the injury or illness is work related and compensable.   The new law protects public safety workers
who are exposed to secretions, blood or other bodily fluids of one or more
other individuals as well as those who are exposed to any pathogen or biological
toxin used in biological warfare or prevalent in epidemics. 

The new law also applies to public safety workers who are
injured or become ill while administering a vaccine including smallpox, or as
part of an inoculation program in the workforce.  Once again there is a presumption of compensability,
but the employer can prevail if the employer can show by a  preponderance of evidence that there is no
link between the medical condition and work exposures.

In all of these new provisions, there is interesting
language stating as follows:  “The employer may require the worker to
undergo, at the expense of the employer, reasonable testing, evaluation and
monitoring of health conditions of the worker which is relevant to determining
. . .  whether the occupational disease
arose from the employment.”  This
language seems to suggest that when the employer is presented with such a
claim, the employer can then test and evaluate the worker going forward.  It is not clear if this means that an
employer can test existing employees who have not brought claims.

Here are a number of
questions that clients are already asking:

Question:  What can a public entity do to make sure that
a public safety job applicant does not have a covered cancer when hired? 

Answer:  Public employers are strongly encouraged to
perform post-offer medical examinations of public safety job applicants using a
detailed questionnaire regarding medical conditions that the employee may
already have.  Readers can consult with
the undersigned for advice on this questionnaire.

Question:  How will employers know if public safety
workers could have exposures to known carcinogens, cancer-causing radiation or
a radioactive substance?

Answer: The new
law requires public employers to maintain records regarding any instance in
which any public safety worker is deployed to a facility or location where the
presence of one or more substances which are known carcinogens is indicated in
documents provided to local fire or police departments  and where fire, explosions, spills or other
events occurred which could result in exposure to those carcinogens.  The law requires that the records must
include the identity of each deployed
public safety worker, and it requires that each worker must be provided
notice of the records.  This requirement
also pertains to firefighters. 

Question:  What if the firefighter or public safety
worker wears respiratory protection when attending a fire, spill or explosion?  Does the employer still have to document all
such workers?

Answer: This law
makes no mention of documenting use of respiratory protection, but it will
obviously be advisable to employers to include this information in
documentation.  Whether or not the public
safety worker used respiratory protection, the new law requires the employer to
document every public safety worker who appears at a fire, spill or explosion
or other potentially hazardous event.

Question:  Will DNA testing be allowed to determine
whether a worker carries a certain cancer gene?

Answer:  There is no discussion of the use of DNA
testing, but this is an issue that will likely be addressed by the courts.

Question:  Is the provision relating to firefighters
limited to existing and active employees?

Answer:  No, firefighters age 75 or younger are
protected so long as they have not been out of active service for more than 20
years.   This means that employers will
be getting claim petitions for cancer-related conditions from firefighters who
have long departed from active service. 
Employers should therefore retain records of exposures for decades.

Question:  What impact will these new occupational
disease laws have on our workers’ compensation programs?

Answer:  The Office of Legislative Services estimates
that the bill will most likely increase annual expenditures by State and local
public entities that utilize public safety workers.  The Office has no idea how much the increase
will be.  In this practitioner’s opinion,
there will be substantial increased costs on public entities for medical, temporary
disability and permanency benefits as well as defense costs and the cost of
oncologists and other defense experts. 
More trials are likely because presumptions tilt the scales in the favor
of workers.

Question:  Does this new law apply to public safety
workers and firefighters who have already retired?

Answer: This law is effective immediately, and the law does seem to apply to those who have already retired.  There is no language restricting this law to existing employees of public entities.  There will certainly be a sharp increase in the filing of workers’ compensation claim petitions in the public sector given that common cancers will now be presumed to be work related.

Question:  How are public entities supposed to defend
cancer claims of this nature?

Answer:   Presumptions are very hard to overcome for
employers.  It will help that the
employer has to disprove the claim by a preponderance of the evidence, as
opposed to the initial draft of the law which required proof by clear and
convincing evidence.   Since cancer cases
are going to be the main focus of the new bill, and since these claims will
always involve high exposure, employers will need to retain lawyers and
oncologists who specialize in complex occupational disease claims.   Aggressive discovery not seen in ordinary
workers’ compensation claims will now be paramount with special interrogatories
almost certainly needed given the inadequacy of form occupational disease
interrogatories.

Question:  Should employers retain board certified internists
as experts in future cancer claims?

Answer:  Retaining board certified internists will not
likely be sufficient to overcome a presumption of compensability since these
cases will center on highly technical epidemiological studies done in many
countries on cancer risks in firefighters and public safety workers.  There will be a great deal of discussion of
current thought by the International Agency for Research on Cancer.  The cases will also center on the reliability
of certain medical journals and studies, and oncologists are more familiar with
these issues than other physicians. 
Although board certified oncologists will be more expensive to retain,
employers will need experts with impeccable credentials in order to overcome
the statutory presumption of compensability.

Question:  Does this law eliminate the statute of
limitations on occupational disease claims?

Answer: No, this bill does not mention or eliminate the provision that an employee has two years to file from the date when the employee knows he or she has a cancer condition and thinks it is related to work.

Public entities and third party administrators may contact the undersigned for additional advice on defending claims under this new statute.

The post Governor Signs New Public Safety Workers’ Compensation Laws Which Will Pose Fiscal And Legal Challenges for New Jersey Public Entities appeared first on NJ Workers' Comp Blog.