Compensability

Clients ask about the following scenario frequently: Bob injures his low back working for Company A on January 1, 2013, arising out of and in the course of employment. He earns $400 per week working 20 hours per week. Company A pays temp benefits at $280 per week, and the authorized doctor indicates that Bob will be out of work for eight weeks while he recovers from a herniated disc. (more…)

The New Jersey Assembly is considering a bill which would create presumptions that cancers and other medical conditions experienced by public safety workers are work related.  New Jersey already has laws creating presumptions in favor of compensability for firefighters and certain public safety workers in regard to respiratory conditions, heart attacks and strokes.  The new bill under Assembly, No. 1196, would create an entirely new category of presumptions.  Costs for employers and taxpayers could be tens of millions, if not hundreds of millions, of dollars over time.

One of the provisions of the bill pertains solely to firefighters and states, “Any injury, illness or death of a firefighter which may be caused by cancer, including leukemia, shall be presumed to be an occupational disease compensable . . . if the firefighter has completed not less than five years of services as a firefighter.”  This provision would apply to any cancer whatsoever at any time in the life of the firefighter.  Firefighters with less than five years of service would fall in the following provision:

Any injury, illness or death of a public safety worker which may be caused by exposure to a known carcinogen, cancer-causing radiation or a radioactive substance, including cancer and damage to reproductive organs, shall be presumed to be compensable . . . if the worker demonstrates that he was exposed, due to fire, explosion, spill or other means, to a known carcinogen, cancer-causing radiation or radioactive substances in the course of the worker’s employment as a public safety worker.

This provision applies to all public safety workers and is not limited to those with five years of service.  The word “may” is important in the first sentence.  All of the provisions in the bill use “may” instead of “is” caused by cancer. The use of the word “may” creates some confusion over the need for a clear medical diagnosis and also suggests that the worker does not have to offer any scientific proof that a specific cancer (prostate cancer, for example) has actually been proven to be work related.  The diagnosis appears to be enough.  This provision suggests that prostate cancer, the second leading cause of death in American men, would be presumed to be compensable if diagnosed in a public safety worker.

The bill allows the employer to rebut the presumption but only with “clear and convincing proof” to the contrary.  This “clear and convincing proof” standard is new.  The current law in N.J.S.A 34:15-43.2 concerning respiratory diseases uses the standard for rebuttal “by satisfactory proof.”  The “clear and convincing proof” standard would make it extremely difficult for an employer to defeat any cancer-related claim.

One of the more confusing provisions of the bill attempts to create a presumption of compensability in favor of public safety workers who suffer injury or death in responding to a catastrophic emergency.  Unfortunately, the language of this section is so meandering that it is difficult to tell what the drafters intend:

There shall be a presumption that death, injury and disability, including disability arising from post-traumatic stress disorder, and all treatment, including psychological and social counseling and care, are compensable for the purposes of chapter 15 of Title 34 of the Revised Statutes if the death, injury or disability arises from the physical or psychological impact of stress or injury experienced by a public safety worker engaged in a response to a terrorist attack, epidemic, or other catastrophic emergency, whether or not a state of emergency was declared, in which the worker is exposed to pathogens or biological toxins used in, or related to biological warfare or epidemics, hazardous chemicals or materials used in, or related to, chemical warfare, or cancer-causing radiation or radioactive substances, or witnesses death and suffering of a magnitude sufficient to cause significant psychological trauma, whether or not the catastrophic emergency was caused by terrorist attack.

There are a number of problems with this particular provision. A first reading might suggest that the public safety worker must prove exposure to toxins or chemicals related to biological warfare for the presumption to apply.  But the word “or” is included as noted by the language in bold (note, this is not bolded in the actual text).  That word suggests that there is a presumption of compensability if the worker witnessed death that caused psychological trauma.

The other problem concerns the language “if the death, injury or disability arises from the physical or psychological impact of stress or injury” (also bolded above, but not in the actual text).  This is tautological.  In essence, it says that the death or injury shall be presumed to be work related if the death or injury is work related.

The bill is worthy of a great deal of study since its impact on workers’ compensation benefits and premiums will be enormous.  New Jersey law already allows a claimant to file an occupational disease claim for a condition that manifests many years later so long as the claim is filed within two years from when the claimant is diagnosed with the condition and believes it to be work related.  A common example is a claim petition for pleural mesothelioma by a former asbestos worker. There is a long latency period for this disease, so claims are often filed 20 or 25 years after last exposure.  Science clearly links pleural mesothelioma with exposure to asbestos, making compensability a relatively easy issue for the court to address.  Yet there is no statutory presumption of compensability currently in the law.

This bill relies on no science whatsoever in making every cancer among public safety workers likely compensable and substitutes a presumption of compensability in lieu of legal proof.  It also prevents employers from overcoming the presumption by requiring “clear and convincing proof,” a standard nowhere else seen in the New Jersey Workers’ Compensation Act.

As written, the proposed bill would create massive future exposure for public employers and taxpayers since cancer is rated as either the first or second leading cause of death for Americans, depending on the study and group.

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This blog article was researched and written by John H. Geaney, a member of the executive committee and equity partner at the law firm of Capehart Scatchard. The content of the this article is intended to provide general information on the topic presented, and is offered with the understanding that the author is not rendering any legal or professional services or advice. This article is not a substitute for legal advice. Should you require such services, retain competent legal counsel.

Defining what is a flare up from a new injury as opposed to objective worsening in the condition has always been more art than science.  In Allison v. L&J Contracting Company, A-1352-11T4 (App. Div. September 27, 2012), the petitioner Allison injured his low back falling in a hole on July 27, 2006.  He filed a claim petition against L&J, which admitted the accident.

L&J subsequently moved to join a subsequent employer, Baumgardner Floor Covering, for two accidents occurring in June 2007 and March 2008.   Petitioner had returned to work for Baumgardner and found that his normal activities on that job and at home were worsening his back and leg.  He claimed he was injured in June 2007 and in March 2008 while working for Baumgardner, but he never reported either incidents to Baumgardner, nor did he seek treatment.  He himself thought these incidents were flare ups of his previous symptoms.

An MRI was done in 2006 showing small disc herniations at L4-5 and L5-S1 as well as a bulging disc at L3-4.  Petitioner treated with Dr. Steven Valentino for the 2006 injury and got three injections of cortisone. Dr. Valentino did not observe radicular pain during his treatment in 2006.

When Dr. Valentino saw petitioner in November 2007, he noted that petitioner’s symptoms had increased.  He gave him epidural injections. Dr. Valentino saw petitioner in February 2008 but did not recommend surgery.

On March 17, 2008, petitioner saw Dr. Valentino and reported lifting a 92 pound bag of sand at work (during Baumgardner’s employment) and experiencing low back pain with sciatic pain. Dr. Valentino found definite worsening related to lifting the 92-pound bag.  A new MRI in April 2008 showed no change in the discs other than some increase at L4-5.

Dr. Valentino continued to treat petitioner and eventually performed surgery on October 3, 2008, consisting of a laminectomy at L4-5.  After his surgery, petitioner experienced improvement.

The petitioner’s expert, Dr. Henry David, found an 80% disability, apportioning 65% to L&J and 15% to occupational exposures at Baumgardner.  Baumgardner produced testimony from Dr. Tim Pinsky, who found that all of the disability was from the first accident with L&J.  He said that petitioner had ongoing problems from the time of his first accident. Dr. A. Gregory McCluretestified for L&J, making no attempt to apportion disability between the two employments.

The Judge of Compensation found that all of petitioner’s back problems stemmed from his 2006 accident.  He said that the incidents in June 2007 and March 2008 were “descriptive of occupational activities” rather than “accidents or traumatic events.” The judge said that nothing petitioner did while working with Baumgardner was any different than his normal everyday occupational activities.  The Judge assessed all responsibility for the claim against L&J, which filed an appeal.

The Appellate Division reviewed the rule in Peterson v. Hermann Forwarding Co., 267 N.J. Super. 493 (App. Div. 1993).  In that case the first employer in a series of employments was held responsible for petitioner’s disability where the claimant continued to work after the original injury and the subsequent employments were not shown to have materially worsened his condition.  The Appellate Division held that as in Peterson, the petitioner here got worse over time simply by the progressive worsening of his condition, not necessarily by the subsequent work.  The Court said that there was only proof of one compensable accident in 2006 against L&J.  Although the court does not discuss this point, it was no doubt problematic that petitioner never reported either incident, nor sought treatment for the two alleged subsequent incidents.

This case shows how difficult it can be to render subsequent employers liable after a significant initial injury.  It is clear that this was a close case.  One factor that no doubt hurt L&J was that its own expert did not apportion disability between the two employers.  Most of all courts focus on objective testing, and there were legitimate differences of opinion among medical experts as to whether the second MRI showed any material difference from the MRI done immediately after the first incident in 2006.

Luz Lukasik agreed to provide house cleaning services for Marguerite Hollaway and two others. Respondents contacted Lukasik after hearing about her from an acquaintance. At that time she was cleaning five or six other houses and one office building on a regular basis. Petitioner Lukasik and her daughter went to the home of respondents and examined the house. A discussion occurred about the potential for doing laundry, but petitioner declined, stating that she would consider that in the future. The parties did agree to $100 per day for cleaning services. (more…)

In Hersh v. County of Morris, A-1442-10T4 (App. Div. July 24, 2012), the Appellate Division affirmed an award for claimant,Cheryl Hersh, who worked for Morris County. For the first two years she worked for the County beginning in 2002, the County paid for parking at a private lot located behind her work site at the Administration Building. Then the County assigned her free parking at a private garage on Cattano Avenue, two blocks from the Administration Building. (more…)

In the case of Marra v. Ryder Transportation Resources, A-5724-10T4 (App. Div. July 2, 2012), the Appellate Division affirmed a holding that the employer was solely responsible for total disability stemming from a groin injury that occurred 15 years ago.

The petitioner, Gerard Marra, originally injured himself at work lifting a loading gate.  On January 6, 1998 he underwent a left inguinal hernia repair, which was complicated by a nerve condition.  That nerve condition resulted in what was termed an “exuberant scar formation” which entrapped the ilioinguinal nerve and caused burning in the testicle extending into the upper thigh, inner thigh with numbness, and an electric shock sensation in those areas.  The condition is known as ilioinguinal syndrome.

Petitioner had previously been a supervisor and mechanic.  He was returned to work in April 1998 but was given work he could not physically perform and stopped working shortly after his return.  He never worked again.  He underwent a second surgery on the nerve on March 30, 2000.  He had scarification that caused additional problems with the nerve.  Petitioner received an award for his injury but the percentage is not noted in the opinion.  However, Dr. Tiger only estimated 35% for the condition in 2000.

The case was reopened in 2003 for additional disability.  The petitioner had undergone a series of three injections into the nerve site.  These injections proved more harmful than beneficial.  Petitioner developed extreme testicular pain and nausea.  He would have debilitating attacks of severe pain six times a month that lasted a day and a half.  He was never free from discomfort.  His pain management doctor put him on Lidoderm patches, Oxycontin, and Vicodin.  His psychiatrist prescribed Neurontin, Welbutrin,  Zoloft,  Klonopin, and Provigil for depression related to the constant pain.

Both petitioner and his wife testified at trial.  His wife said her husband underwent a personality change, had little energy, was short-tempered and was in constant pain.  Dr. Peter Crain, for petitioner, testified petitioner was 100% disabled on a neuropsychiatric basis.  He conceded that petitioner had some prior injuries but said that these prior injuries (which were the basis of the Fund application) did not impair petitioner.  Dr. Tiger, for petitioner, stated that petitioner had developed complex regional pain syndrome.  He estimated 60% for the work injury and 100% overall considering prior conditions.

Ryder produced Dr. Sidney Bender, a neurologist, who testified that petitioner could return to work with restrictions from a neurological standpoint.  Dr. Arthur Canario also testified for respondent and said that petitioner was capable of working and should not be treating with opiates.  Finally, Dr. Charles Semel, a psychiatrist, testified for respondent and stated that petitioner had a 2.5% psychiatric disability consisting of depression related to a chronic pain syndrome.

The Judge of Compensation found petitioner was now totally and permanently disabled from his groin injury and assessed no liability against the Second Injury Fund.  The effect of this decision was to assess life-time indemnity benefits against Ryder. Although petitioner did have prior awards for his hand and leg, the Judge found that the total disability status was due to the last compensable accident, not due to the combination of the groin and prior injuries.  The Fund was therefore dismissed.

Petitioner appealed and the Appellate Division affirmed the award of 100% total and permanent disability without the Fund, emphasizing that there was substantial evidence that petitioner’s exuberant scarification had entrapped the nerve increasingly over time, accelerating petitioner’s pain.  The Court also noted that there was sufficient credible evidence to support the finding that petitioner suffered from chronic depression due to pain.  The Court founnd no evidence to hold in the Second Injury Fund.

Ryder also argued that the Judge of Compensation erred in not permitting the entry into evidence of a surveillance video done after petitioner testified.  Ryder argued that the video would be important because it showed petitioner could do more than just change a light bulb, which was his assertion at trial.  The Court held, “Belated surveillance tapes should not be admitted unless ‘the employer can show that it was unaware, and could not have been aware, of the circumstances warranting surveillance before the hearing.’” Gross v. Borough of Neptune, 378 N.J. Super. 155 (App.Div. 2005). The Court said that Ryder had been well aware before trial that petitioner was claiming he could not work or engage in daily activities and should have done the surveillance well before trial.

The case illustrates several key points for practitioners.  The Second Injury Fund will fight applications for Fund benefits where it believes that the total and permanent disability status is due to the last compensable accident.  Merely having some prior workers’ compensation awards will not trigger Fund liability unless those prior awards can be shown clearly to have contributed to the total disability.  Of equal importance is the finding that post-testimony surveillance cannot be introduced unless the employer can show that there was something new of which the employer had not been unaware until testimony.

In Van Dunk v. Reckson Associates Realty Corporation, (A-69-10) (066949), the Supreme Court of New Jersey on June 26, 2012 reversed an appellate division decision that had promised to breathe life into suits against employers for intentional harm. (more…)

In the case of Marra v. Ryder Transportation Resources, A-5724-10T4 (App. Div. July 2, 2012), the Appellate Division affirmed a holding that the employer was solely responsible for total disability stemming from a groin injury that occurred 15 years ago. (more…)

Plaintiffs’ counsel continue to assault the citadel that is the exclusive remedy defense in the New Jersey Workers’ Compensation Act. Once again a New Jersey court has held that no intentional harm was proven. (more…)

The exclusive remedy provision is a powerful one in New Jersey.  It is the rare case where a plaintiff successfully proves intentional harm.  Nonetheless, a well-plead complaint will often survive a motion to dismiss as is shown in Blackshear v. Syngenta Crop Protection., et. al. 2011 U.S. Dist. LEXIS 125505 (D.N.J. October 31, 2011). 

The facts are fairly straightforward:  plaintiff Jeanette Blackshear filed suit on her own behalf and as administrator of her late husband’s estate and as guardian ad litem for her minor children.  She claimed that her husband was exposed to toxic chemicals while working as an exterminator for Corbett Exterminating, which exposures allegedly caused his death.  To overcome the exclusive remedy provision of the New Jersey Workers’ Compensation Act, her complaint alleged that Corbett knew and intentionally concealed “the hazardous nature of or the extent of the hazardous nature of the chemicals that decedent used in his work.”

Further aspects of the complaint contained allegations that Corbett knew the risk inherent in the use of the chemicals, failed to disclose that risk to decedent, and failed to supply him with certain safety equipment.  In support of her complaint plaintiff attached a certification regarding her husband’s death, Material Safety Data Sheets, and expert reports showing a link between exposure to chemicals and her husband’s fatal illness. 

The District Court reviewed the leading cases dealing with the standards on intentional harm in New Jersey, including Laidlow v. Hariton Mach. Co., Inc. 170 N.J. 602 (2002).  This case establishes both a conduct and context prong for evaluating intentional harm cases. 

The plaintiff’s complaint met the first prong dealing with conduct, according to the court, because the pleadings sufficiently alleged that Corbett knew that exposure to chemicals in the workplace were substantially certain to lead to the illness and death of the decedent.

The plaintiff’s complaint met the second prong as well, which requires that “the resulting injury and the circumstances of its infliction on the worker must be (a) more than a fact of life of industrial employment and (b) plainly beyond anything the Legislature intended the Workers’ Compensation Act to immunize.” Laidlow at 617. The court scrutinized the complaint, which alleged that Corbett withheld information about the risks of harm from the decedent and failed to provide him with safety devices.  “Taken as true, this allegation indicates not only that Corbett turned a blind eye to the risks inherent in the use of the chemicals but actually went as far as to hide those risks so that decedent would not know they existed.  Such concealment is hardly an expected fact of life in industrial employment, and accordingly, this court finds that it is not the type of risk that the New Jersey Legislature likely envisioned as being barred under the Workers’ Compensation Act.”

It is important to understand that this case did not deal with the merits of the case at all. It simply focused on the attempt by the defendant to dismiss the complaint at the initial stage of the litigation as being barred by the exclusivity provision of the New Jersey Workers’ Compensation Act.  The court denied the defendant’s motion to dismiss.  Whether the plaintiff can prove her case remains to be seen.