Compensability

Alphonso Myers worked as a security guard and was injured in that position.  He applied for and received social security disability benefits.  In his application, he advised the Social Security Administration that he was in pain all the time during the period of his application, he could only stand for twenty minutes and could only walk for 10 to 15 minutes.  He said sometimes his pain was so severe that he needed to remain at home and lie down.  Since 2005 he was unable to lift more than 10 pounds.

While Myers was applying for social security disability benefits, he was also applying or a job with Knight Protective Service for a position as an armed security guard.  As part of the post-offer process, Myers indicated he had no relevant disabilities. A supervisor noticed that Myers seemed to be in pain on the job.  Myers admitted that he had undergone neck and back surgeries and had recurrent pain.  The supervisor became concerned that Myers was not fit for the job of a security guard because someone might grab his weapon or even take him hostage.  Myers was told that the company wanted him to pass a fitness examination.

For reasons that are unclear, the company never set up the fitness examination, and Myers felt that he was effectively terminated by the company.  He sued under the ADA and claimed that he was discriminated against based on disability.  The trial court rejected his suit, and Myers appealed.  The U.S. Court of Appeals, 10^th Circuit, affirmed the dismissal of the law suit.

First, the court said Myers was not able to show that he was qualified for the position that he sought at Knight Protective Service.  “As he acknowledged in his written application with Knight, the essential functions of his job as an armed security guard required him to engage in frequent and prolonged walking, standing, and sitting; to react quickly to dangerous situations; to subdue violent individuals; and to lift heavy weights.”

The court emphasized that Myers represented to the Social Security Administration that he was in pain frequently and could often only stand for 20 minutes.  “When a plaintiff makes seemingly inconsistent statements like those before us he must offer a ‘sufficient explanation’ for the apparent contradiction.”  The court made clear that every plaintiff should have an opportunity to explain apparently contradictory statements on a social security application under the case of Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 805 (AD Cases 941) (1999).  But in this case Myers was unable to reconcile his statements to the Social Security Administration with his assertions in court that he could do his job.  In fact, there was no dispute that since 2005 Myers had been unable to lift more than 10 pounds.

The lessons from this case are worth remembering.  First, there is great value in post-offer medical examinations.  Fitness-for-duty examinations are also invaluable, but the mistake the company made in this case was not setting up the examination.  Secondly, employers who face workers’ compensation or disability discrimination suits should always pursue the records of any social security application.  In the workers’ compensation context, employers who may be confronted with fitness issues should always read the claimant’s statements to the various IME physicians as well as the statements that the claimant makes in court regarding limitations in work or non-work activities.  Sometimes claimants make statements in workers’ compensation court or to IME physicians that suggest that the job is continuing to injure them or that they cannot perform the duties of the job safely.  All too often this information does not get to the insured.

This case can be found at Myers v. Knight Protective Serv., Inc., U.S. Court of Appeals, Tenth Circuit, No 12-6056 (December 22, 2014).

The old adage is that New Jersey is a not a partial temp state, but is that really true?  In some states, like New Hampshire, an employee who returns to work but due to disability cannot earn the amount he or she was earning before the work injury may be eligible for significant benefits.  The adjuster may pay the employee 60% of the difference between pre- and post-injury earnings and that may continue for up to 262 weeks.  But this applies to a situation after maximal medical improvement.   New Jersey clearly does not have any requirement like this because New Jersey is not really a wage loss state:  it is a functional loss state which compensates injured workers after maximal medical improvement with dollars that correspond with the percentage of loss of bodily function.

But what about this increasingly common situation?  Ashley Franklin works for Krogers Inc. in the deli department. She earns $20 per hour for a 40-hour week.  She makes $800 per week.  She fractures her leg at work and is out of work for the month of January 2015, receiving $560 per week in temporary disability benefits.  Krogers offers Ashley a modified duty sedentary job for the month of February.  The workers’ compensation doctor restricts her to four hours per day, and she makes $400 per week, half her normal wage, for the month of February. She works half a day for four straight weeks. Ashley calls the adjuster and asks, “what about the other $400 per week I am losing?”

Ashley reaches maximal medical improvement on March 1, 2015.  She contacts a lawyer about her loss of wages in February, complaining as follows: “When I was working the job, I was making $800 per week.  On temporary disability, I was getting $560 per week tax free.  Now I am working on modified duty, limited to half a day by my comp doctor, and I am earning less than I was on temporary disability — and it’s all taxable!”

This question comes up every month in this practitioner’s practice.  Which of the following should the claims examiner tell Ashley?

1. “New Jersey does not have partial temp. You get nothing.”
2. “We will pay you $160 weekly in temp benefits to get you to $560, your temp rate.”
3. “We will pay you $280 in temporary disability benefits weekly, half of what you were paid while on temporary disability.”

To answer this question, the practitioner has to study N.J.S.A. 34:15-38. That is the section which explains how to pay temporary disability benefits.  The question is whether New Jersey compensates only for loss of whole days or fractions of days.  Here is what the statute says:  first you determine the first day that the employee cannot work due to the accident up to the first day the employee can return to work and continue at work.  In Ashley’s scenario that is 28 days.  Then you “subtract from the number the waiting period and any day and fraction thereof the employee was able to work during the this time, and divide the number by seven.”  The statute concludes, “the resulting whole number and seventh will be the required period for which compensation is payable on account of temporary disability.”

The language of the statute is confusing.  On the one hand, it recognizes a partial loss of a day by saying “any day and fraction thereof the employee was able to work.”  That would suggest that Ashley has a valid claim for two weeks of temporary disability benefits because she lost 20 half days. On the other hand, the statute speaks in terms of the “resulting whole number and seventh.”  The intention of the legislature is arguably less than clear in reading this statute.

There are no published decisions on this issue.  In fact, there is only one decision in the Division of Workers’ Compensation directly on point, namely Soto v. Herr’s Foods, Inc., 2012 NJ Work. Comp. LEXIS 4 (September 7, 2012).  That case also involved a situation where the injured worker was limited to four hours per day by the treating doctor while on light duty.  Mr. Soto was getting $683.31 per week on temporary disability but was returned to light duty earning a net payment of $329.43 per week, which was $353.88 less per week than he was earning on temporary disability.  The Honorable Emille Cox ruled in favor of the petitioner:

It seems rather obvious to this Court that if Respondent is responsible for the payment of temporary disability benefits, and, in this case, the amount to which Petitioner is entitled is $683.31 per week, to allow Respondent to provide minimum light duty and only pay the Petitioner an amount less than $683.31 to which he is entitled defeats the purpose of both the temporary disability and the light duty provisions of the workers’ compensation statute.

Judge Cox did not call this temporary partial disability benefits.  His decision was not appealed, no doubt a wise decision by the employer.  The term temporary partial disability refers more to the example at the beginning where an employee returns to work on a full-time basis earning less than he or she earned before the injury well after maximal medical improvement.  The question in Ashley’s scenario is limited to payment before she reaches maximal medical improvement.  It is this:  is temporary disability defined in New Jersey to include only whole days lost or parts of days where the treating doctor will not allow the worker to work more than parts of days?

In this practitioner’s experience, most workers’ compensation judges agree strongly with Judge Cox, and in fact most employers also agree that modified duty when limited to half days by the treating doctor should not result in a financial penalty to workers.  In other words, the employee restricted to working half a day by the workers’ compensation doctor should not see his or her compensation drop below the amount earned in temporary disability benefits.

The general consensus is that something must be done in Ashley’s situation because it seems inequitable for her to earn less on modified duty half days than she was earning while out of work receiving tax free temporary disability benefits. Where there remains some difference in opinion is how much Ashley should be paid over and above the $400 in earnings for half days of work that she has lost. The way Section 38 reads in subtracting any day and fraction thereof that the employee was able to work suggests that if this issue gets to the Appellate Division, the Court would order the employer to pay 70% of the four weeks of half days lost by Ashley in the month of February.  That would mean she would get paid $280 per week in temporary disability benefits.  Every two days lost becomes one day of temporary disability benefits. Adding that to the $400 per week in earnings, she would be earning $680 per week.  Of that amount $400 per week would be taxable, putting her basically in the same position she was in while out on temp earning $560 per week.

In the end, New Jersey needs a published decision by the Appellate Division to resolve this issue.  Absent that, employers have to do what they perceive to be both consistent with the law and fair under the law.

Unlike many states, most settlements in New Jersey are paid out over a period of weeks, often with payments carrying out well into the future.  For example, if an employee receives an award of 40% permanent partial disability, the award is paid over 240 weeks in equal payments beginning with the last payment of temporary disability benefits.  When an employee seeks to accelerate those payments into one lump sum check, this is known as a commutation.  Permission must be obtained from the judge.

A recent case illustrates the issue.  Terrance Jenkins received an award of permanent disability benefits.  He applied to the late Virginia Dietrich, Judge of Compensation, for the sum of $16,000 in commutation funds from the remaining award of $28,000, which was being paid in equal amounts over many weeks.  He contended that he wanted to open a small business selling fish and chips.  He testified in workers’ compensation court that he wanted to build on his mother’s current catering business.  However, he admitted that his mother’s business had few customers, and he needed to purchase equipment and supplies for the business.  Furthermore, he was in arrears on his rental payments for the business premises and needed to pay off his mother’s debts.

Judge Dietrich reviewed the provisions of N.J.S.A. 34:15-25. That section states, “Commutation is to be allowed only when it clearly appears that an unusual circumstance warrants a departure from the normal manner of payment and not to enable the injured employee . . . to satisfy a debt, or to make payment to physicians, lawyers or others.” Applying this standard, the judge rejected the request for commutation concluding that this “would be throwing good money after bad.”  She further found that the petitioner did not have a sound business plan and had managed to get over-extended financially.

The Appellate Division affirmed the rejection of the commutation request because of the reasons provided by Judge Dietrich.  The case shows that it is really quite difficult to obtain a commutation in New Jersey.  Very few requests get approved because judges look out for the best interests of employees.  This case may be found at Jenkins v. L.A. Fitness, A-3570-12T2 (App. Div. February 4, 2015).

It is important for practitioners to realize that a commutation is improper when it is caused by the employer or carrier by mistake.  For example, suppose an employer or carrier is supposed to pay out an award over the next 52 weeks.  Due to a misunderstanding or computer error, the company pays the entire 52 weeks of future payments in one lump sum to the employee.  This amounts to a commutation, and it would be illegal because only a judge of compensation can approve a commutation.

What can a PIP carrier do when it believes the bills it has paid arise from a workers’ compensation case but the injured party has never filed a claim?  In New Jersey, the PIP carrier has a right to file a workers’ compensation claim petition in the name of the injured worker, but there is a catch:  the PIP carrier is subject to the same defenses that the injured worker would be subject to.

In High Point Insurance Company (as subrogor of Kevin Smith) v. Drexel University, A-2030-13T4 (App. Div. April 17, 2015), High Point Insurance paid personal injury protection benefits for injuries suffered by Kevin Smith, a Ph.D. student and Teaching Assistant at Drexel University.  On September 2, 2011, Smith drove a Drexel University vehicle to a site in the Pine Barrens in New Jersey to conduct research for his graduate dissertation.  While driving back to Drexel University, Smith was injured in a car accident.

High Point sought reimbursement of the PIP benefits it paid to Smith by filing a claim petition in the Division of Workers’ Compensation.  Smith himself never filed a claim petition on his own behalf.  Drexel University answered the claim petition with a denial.

The Judge of Compensation observed that the Ph.D. program Smith was enrolled in at Drexel did not require that he work as a Teaching Assistant.  Smith decided to accept that position in an attempt to offset the cost of the Ph.D. program.  The Judge felt that Smith was using the Drexel vehicle to reach the Pine Barrens for his own personal research, not in his role as a Teaching Assistant.  The Judge also noted that there were no classes in session the week of the accident. Judge of Compensation dismissed the workers’ compensation claim petition commenting that High Point never proved any requirement that Smith travel to the Pine Barrens for his work.

On appeal, High Point argued that Drexel “entwined” Smith’s personal graduate studies and teaching assignments to a degree that traveling for his research became work related.  The Appellate Division rejected High Point’s reasoning and held that there was no connection between the accident and Smith’s employment.

The case illustrates a number of interesting procedural points.  The New Jersey Division of Workers’ Compensation is open to a variety of claims by PIP carriers.  A PIP carrier can intervene in an existing litigated claim in the Division of Workers’ Compensation for reimbursement of benefits the carrier has paid.  In addition, the carrier can also file a claim petition in the name of the injured party, even if there is no existing claim petition.  Getting cooperation from the injured party can sometimes prove difficult, but in this case Smith agreed to cooperate and testified.  The problem which High Point had was that it could not show that driving the Drexel vehicle was related to the Teaching Assistant job.  It was more of a personal mission related to Smith’s research for his Ph.D.

Sometimes the seemingly minor cases have significant long-term impact.  The case of Amedeo v. United Parcel Service, A-1013-13T2 (App. Div. April 8, 2015) may be one of those cases.

Thomas Amedeo suffered a work injury in 2009 in the employment of UPS.  He filed a workers’ compensation claim petition and ultimately received an award of 30% partial permanent disability.  He timely reopened the case in October 2012 and sought by way of motion an order requiring UPS to assign an orthopedist to treat him for a degenerative hip condition.  Petitioner relied in his motion on a report from Dr. Frederic Brustein, an internist and physiatrist.  Dr. Brustein stated in his report that he himself would not treat petitioner but that petitioner should seek out other specialists such as university affiliated orthopedists specializing in the hips, the spine, and pain management.

UPS arranged an IME with Dr. Joseph Corona, who said that Amadeo had reached maximal medical improvement and there was no increase in his disability. He found no need for further treatment.

The case was listed on a motion hearing on October 4, 2013.  Petitioner’s attorney requested an adjournment.  The Judge refused that request, noting that petitioner’s attorney had failed to appear on several occasions.  Respondent’s counsel and an attorney covering for petitioner’s counsel appeared and conferenced the case with the judge.  Petitioner himself did not appear at the motion hearing.

The Judge of Compensation dismissed the motion hearing without prejudice.  She determined that the motion papers were insufficient and advised petitioner’s attorney of this opinion.  She also noted that no hearing could take place without the petitioner.  The Judge determined that the motion papers were deficient under N.J.A.C. 12:235-3.2(b)(2).  Dr. Brustein did not state the specific type of treatment being sought; nor was Dr. Brustein the proper physician to advance the motion since he could not treat petitioner himself as a physiatrist and internist.   All Dr. Brustein did was say that petitioner should seek out other specialists.

Petitioner appealed the dismissal of his motion.  The Appellate Division agreed with the Judge of Compensation, stating that the regulation noted above was designed to eliminate non-specific reports by requiring applicants to provide detailed opinions from qualified experts.

Here, we agree with the judge of compensation that petitioner failed to provide evidence adequate to present a prima facie case in support of his motion.  Specifically, Dr. Brustein’s report did not recommend a definite course of treatment, state that petitioner needed a particular medical treatment, or sufficiently support a referral to a specialist. Rather, Dr. Brustein’s report ‘merely suggested several options for other specialists to try.’

The Appellate Division also rejected the petitioner’s request that the case be assigned to another judge.  This decision is likely to change the way practitioners file motions and the way respondents defend them.  It is quite common for claimants to retain doctors in support of treatment motions who themselves cannot treat or lack the specific qualifications to treat.  Instead, they will recommend treatment by other doctors-to-be-named. The Amedeo case puts the onus on the applicant to retain the appropriate physician from the outset, which will also allow employers to adequately respond to such motions.    

The case of Burke v. Investors Bank, A-1551-13T1 (App. Div. March 16, 2015) underscores an important point for New Jersey practitioners:  one is not considered to be at work in a multi-tenant building until one arrives at the employer’s business.

On December 3, 2012, Laura Burke parked her car in the parking garage of the office building in which she worked for Investors Bank.  She did not have an assigned parking space, and Investors Bank did not own or maintain the office building.  The bank was one of five tenants in the 10-story building and conducted its business on the ninth and tenth floors of the building.

Burke walked into the building through one of the two entrances and proceeded through the lobby toward one of several elevators.  The lobby had a security attendant, employed by the landlord, who recorded the entrance of visitors by means of a sign-in book.  The elevators were stationed past the security desk.  The bank did not require that its employees use any particular elevator or stairwell.  Burke pressed the button on the elevator panel and walked toward the open elevator, slipping and falling into the elevator and injuring her knee.

A claim petition was filed by Burke against Investors Bank, and the Judge of Compensation dismissed the claim, concluding that the injury was not compensable.  Burke appealed and argued that public policy dictated that this sort of claim must be compensable.  She also argued that her fall should be covered because this was her only path of ingress to her office.

The Appellate Division rejected Burke’s claim and affirmed the dismissal of this case.  It cited the recent Supreme Court decision in Hersh v. Cnty. Of Morris, 217 N.J. 236, 243 (2014).  It said, “While the petitioner in Hersh was injured on a public street and not an office lobby as was Burke, the principles set forth therein guide our decision in this case.”  The court said that the rule in Hersh applied, namely that public places that are not under the control of the employer are not considered part of the employer’s premises for purposes of workers’ compensation benefits.

The key fact in this case was the Investors Bank did not control the lobby area where Burke fell.  It did not own the office building, nor the parking lot.  It was just one of five tenants in the building.  It also had no exclusive use of the lobby area or the elevator in question.  Burke could take any route she wanted to get into the building and take any elevator she wanted.

Eric Hanisko worked as a superintendent of a 120-acre golf course in West Windsor, N.J.  He accepted a written offer of employment in February 2008 on behalf of BCGM, a corporation specializing in golf course management, and CGC, the owner of the golf club.  His employment package included housing at the club.

On April 11, 2009, Hanisko fractured his ankle slipping and falling on what he described as a defectively-constructed wooden step in his residence.  The accident occurred in the early morning hours in the second-floor bathroom of Hanisko’s residence on the golf course. He filed a civil complaint against CGC for negligence.  Initially, CGC did not raise the workers’ compensation bar as a defense.

Two months later, Hanisko filed a claim petition in the Division of Workers’ Compensation against BCGM, which opposed the claim petition, arguing that the injury did not arise from work.

After discovery concluded in the civil case, CGC moved for summary judgment, contending that the law suit was barred by the exclusive remedy rule.  Essentially, CGC and BCGM argued that they were joint employers of Hanisko, and he could sue neither company civilly.  Hanisko argued that this defense had been waived by CGC because it was not raised until summary judgment.   Plaintiff also argued that the two employers took differing positions in the workers’ compensation case and the civil case and should be estopped from denying responsibility under the civil law suit.  The trial judge disagreed and granted summary judgment to CGC.

The Appellate Division noted that it was not inconsistent for CGC to argue in the civil case that it was petitioner’s employer and for BCGM to argue in the workers’ compensation case that the injury did not arise from work.  However, the Court reviewed the “bunkhouse rule,” which states that when residence is provided to an employee, generally an injury sustained by an employee while using such residence is incidental to employment.  The Court noted that although Hanisko was not required to live on the golf course property, his living there was of mutual benefit to the parties.  He paid no rent or utilities, except cable, and his full-time presence there was of benefit to his employer.  “That the lodging was meant to make the prospect of employment at the club more attractive is supported by the written offer of employment, which featured this benefit.”

The Court also stated that an employer cannot waive assertion of the workers’ compensation bar because jurisdiction is always an issue.  “Subject matter jurisdiction, as the Act’s exclusivity provisions implicate, is a non-waivable defense, which can be raised at any time.”

The Court concluded that Hanisko had two employers:  CGC and BCGM.  CGC paid his salary of $1,730 biweekly, and BCGM provided his benefits.  CGC provided significant control over Hanisko’s activities because he had to report directly to a CGC manager on a day-to-day basis. The manager, Ms. Suozzo, would walk the golf course with Hanisko and others and check on course conditions.  She would ensure that Hanisko and others were doing their job correctly.  Even though Hanisko would report also to BCGM’s regional manager, he would only meet with him monthly.  Suozzo met with Hanisko more often than the BCGM regional manager, and Suozzo extended the offer to Hanisko to “join the team at BCGM and CGC.”

This case has been reported and can be found at Hanisko v. Billy Casper Golf Management, Inc. and Cranbury Golf Club, LLC, A-5053-12T4 (App. Div. September 8, 2014).

Kenneth Nichols worked for Midstates Packaging, Inc. as a mechanic. He was injured on April 7, 2008, while trying to take the transmission out of a Hyster forklift. While underneath the forklift, Nichols heard a pop in his shoulder when the forklift rolled off the blocks and over his left shoulder. He did not notice that his skin was broken by the fork lift; however, he reported the injury to his supervisor immediately and a co-worker drove him to Somerset Medical Center. An x-ray was taken but was negative for fracture, and petitioner was told he pulled a muscle.

Nichols returned to work but continued to feel pain, which he reported to his supervisor. Two weeks later he saw his family doctor, Dr. Berdini, who prescribed antibiotics and pain medication. One week later he saw an orthopedic surgeon, who said that if the pain did not get better, he might need surgery because he had an infection. Nichols developed a sore red lump on his collar bone. In May 2008, his doctor told him he would need to have an abscess drained but Nichols declined because he lacked insurance.

In June 2008, Nichols drove to Virginia for a family funeral, collapsing upon arrival. He was diagnosed in the hospital with liver failure, MRSA, a broken collar bone, some broken ribs and a herniated disc, spending 11 days in the hospital. He needed a PICC line to deliver antibiotics. On returning to New Jersey, he was advised that his job had been terminated.

Nichols denied any prior injuries to his lower back, ribs, clavicle or shoulder, and he denied any prior MRSA condition. He continued to see Dr. Berdini and also continued to develop new health issues, such as infections under his arms and on his scrotum, as well as numbness in his left toes. He had an MRI done at St. Luke’s Hospital which revealed a swollen spine. He was referred to a pain specialist, who noted that his right pinkie finger became completely rigid. He began taking OxyContin and Percocet three to four times a day as well as antibiotics and sleeping pills.

Respondent denied causation between petitioner’s injury and his MRSA condition. When petitioner went to Somerset Medical Center, the history said “pain, pop after lifting heavy object this am.” His Regional Manager testified that Nichols told him he was injured pushing a tow motor. The records from the hospital in Virginia said he had fallen from a forklift about two months ago, injuring his left shoulder.

The diagnosis differed among the experts in the case. Petitioner’s expert, Dr. Theodora Maio, diagnosed a fractured clavicle and fractured rib, although the x-rays of the left shoulder showed no fracture. She thought that the x-rays may not have included the clavicle portion.

Dr. Leonard Joachim, an internist for the petitioner, found that the blunt injury made the skin more vulnerable to MRSA, which he felt was probably contracted at Somerset Hospital Emergency Room.

Respondent produced Dr. Kenneth Peacock, an orthopedic surgeon, who did not believe that the injuries were consistent with the various descriptions of the accident. He noted that the x-rays showed no fracture while acknowledging that the x-rays did not show the medial clavicle. Dr. Peacock felt that it would have been very difficult for petitioner to have carried out daily activities with these fractures had they happened in early April.

Respondent’s internist, Dr. Monroe Karetzky, felt petitioner had MSSA (methicillin-susceptible staphylococcus aureus), not MRSA. He said that the scrotal testicular fistula could not be related to an incident that happened a year before the fistula manifested.

The Judge of Compensation found for petitioner. She said as follows:

Granted, petitioner’s history of the accident varies a little each time he relates it, but the general idea is constant. He hurt his shoulder at work and went to the hospital for treatment immediately. The MRSA infection correlates with the accident in time and area of the body affected as well as treatment in the hospital, a risk factor for MRSA. Unfortunately, petitioner is not the most articulate communicator, nor is he sophisticated as to medical causation. He described the accident as a shoulder injury. The hospital interpreted this to mean the shoulder joint and consequently x-rayed the joint.

The Appellate Division affirmed the ruling for petitioner, stating that the findings of the Judge were supported by credible evidence in the record. It noted that the standard is one of reasonable probability. While there were discrepancies in the petitioner’s history of the accident, the Appellate Division agreed that these were well evaluated by the Judge of Compensation and were found to be of little weight. The Court also noted that the petitioner was under the influence of morphine when he described the accident to the hospital staff in Virginia. The case can be found at Nichols v. Midstates Packaging, Inc., A-2445-12T2 (App. Div. August 1, 2014). It shows how complex MRSA claims can be in workers’ compensation and how important the timeline is in deciding compensability.

In a long awaited decision, the Supreme Court of New Jersey has overturned an award in the matter of James P. Renner v AT&T (A-71-11) (068744).  The case has drawn national attention because it dealt with a stroke claim from an employee who telecommuted quite regularly.

Cathleen Renner worked for AT&T for 25 years as a salaried manager.  She telecommuted three days a week from home and worked the other two days in the office. On September 24, 2007, Ms. Renner worked on a project due the next day.  She spoke with her husband, who was on a business trip, around 11:00 p.m. and told him that she would be working through the night.  Her work was often deadline driven, and she would put in whatever hours were necessary to get the work done on time.

Her son testified that she started working when they got home from dinner on September 24, 2007.  She was still working when he went to bed around 10:30 p.m.

At 7:50 a.m. she took her son to catch a school bus and grabbed her leg in pain while walking out of the house.  At 9:00 a.m. she told a co-worker by email that she did not feel well but would complete the project.  She did in fact complete the project at 10:30 a.m. and sent an email confirming this to her co-workers.

At 11:34 a.m. she called the Edison Township EMS saying she could not breathe.  She was pronounced dead on arrival at the hospital from a pulmonary embolism. An autopsy confirmed that she died of a pulmonary thromboembolism that became lodged in the main trunk of her pulmonary artery.  Her husband filed a dependency claim which eventually led to an award for petitioner at both the Division level and the Appellate Division level.

Petitioner’s expert, Dr. Leon Waller, testified that sitting at her desk the day before and day of her death contributed to her deep vein thrombosis. He said that the sedentary nature of her work “was the precipitant in her getting a pulmonary embolism which resulted in her demise.”  He gave an opinion that the cause of death was a pulmonary embolism caused by deep vein thrombosis.  He said that the clot was large and probably took hours to form, probably originating in her leg.

Respondent’s expert, Dr. William Kritzberg, said Ms. Renner’s death was caused by her morbid obesity, birth control pills, age and an enlarged heart.  He believed that her risk factors contributed more to her death than extended sitting at her desk.  He also disagreed that there was evidence of a clot in the legs or deep vein thrombosis.

The Supreme Court reviewed the relevant statute, N.J.S.A. 34:15-7.2 and the leading decision of Hellwig v. J.F. Rast & Co., 110 N.J. 37 (1995). It said that this section of the law “reinstated the presumption that coronary-artery disease and heart attacks are the result of natural causes.” Further, the Court summarized the operative standard:

To sustain a Workers’ Compensation petition premised upon cardiovascular injury, a claimant must demonstrate that the harm was caused by a work effort or strain involving a substantial condition that exceeds ‘the wear and tear of the claimant’s daily living outside of the claimant’s work responsibilities. Hellwig, supra., 110 N.J. at 42; see also N.J.S.A. 34:15-7.2.

The Supreme Court interestingly did not focus on a comparison between the decedent’s non-work activities and her work activities.  Her husband had testified that his wife was very active with her children both in and outside the home.  Instead, the Court focused on the language regarding a “substantial condition.”  The Court said, “Based on this record, we conclude that there has been no showing that Cathleen’s death resulted from a work effort or strain involving a substantial condition or event.”

The Court found that her extended sitting while working at home “does not constitute a ‘work effort or strain involving a substantial condition, event or happening’ to support a compensable cardiovascular claim.”  It commented that Ms. Renner “was not confined to a specific space or instructed not to move from her workstation.”  The Court reasoned that Ms. Renner “was free to take breaks, during which she could stand, stretch, leave her workstation for a bathroom break or refreshments, or briefly exercise.”

The case is important to practitioners because there are precious few reported workers’ compensation cases involving injuries during telecommuting.  It is also important because it focused on that part of the definition on cardiovascular claims involving proof of a substantial condition, event or happening.

New Jersey has a powerful provision allowing employers to terminate temporary disability benefits on an offer of light duty, provided that the offer is made.  If it is made, the employee must return to the light duty job or temp benefits will be terminated.

But what happens if the light duty offer involves fewer hours than the employee normally worked and less pay than the rate of temporary disability benefits?  There is no published case on this issue but there is a helpful decision in the Division of Workers’ Compensation entitled Soto v. Herr’s Foods, Inc., 2012 NJ Wrk. Comp. LEXIS 4 (September 7, 2012).

Mr. Soto was injured at work on January 29, 2011 and underwent two authorized surgical procedures involving his left knee.  In January 2012, the authorized treating physician wrote a report stating petitioner could return to work light duty.  “I would like to start light duty and see if we can get him back to work, sedentary, four hours a day, and progress to eight hours.”

The employer made a light duty offer for four hours a day.  Petitioner had been earning $976.15 per week at the time of his injury, entitling him to a temp rate of $683.31 per week.  However, his light duty wage was much lower since he was only working four hours per day.  While on light duty petitioner was receiving a net payment of $329.43 per week.  That was $353.88 less per week than petitioner was receiving on temp benefits.

Petitioner returned to the light duty job but also contested in the Division of Workers’ Compensation the right of the employer to pay him less than the amount he was receiving on temporary disability benefits.  The Honorable Emille Cox, Supervising Judge of Compensation, ruled in favor of petitioner, holding that a temporarily disabled worker is entitled to temporary disability benefits of 70% of his or her wage subject to the maximum and minimum limits in effect for the year in question. The Judge reasoned:

It seems rather obvious to this Court that if Respondent is responsible for the payment of temporary disability benefits, and, in this case, the amount to which Petitioner is entitled is $683.31 per week, to allow Respondent to provide minimum light duty and only pay the Petitioner an amount less than the $683.31 to which he is entitled defeats the purpose of both the temporary disability and the light duty provisions of the workers’ compensation statute.

The decision of Judge Cox was not appealed, and had it been, the decision would no doubt have been affirmed.  The reasoning is sound, that one is still temporarily disabled while on light duty and therefore an employee must receive at least as much as his or her temp rate while working light duty until the employee reaches maximal medical improvement or returns to work full duty. Light duty cannot be used to reduce an employee’s wage below the rate of temporary disability benefits.