Key Defenses

Edward Kovalcik worked as a maintenance mechanic at Capital Health-Fuld. He was injured in February 2011 while repairing a door. He said that he twisted to pick up a screw and injured his low back. Dr. Lee Buono, a neurosurgeon at the hospital, came to the scene of the injury and observed Kovalcik writhing in pain on the floor. Dr. Buono ultimately treated Kovalcik for this injury. (more…)

Daniel Cordeiro owned Danny’s Construction Company, which did masonry and concrete work.  The company employed eight or nine employees.  Cordeiro purchased an investment property in Asbury Park, New Jersey.  He listed Danny’s as the repair and renovation general contractor on the construction permits.  As general contractor, Danny’s hired plumbing and electrical subcontractors and paid the going rate for their work.

On June 17, 2010, Cordeiro drove two of his employees to a jobsite where they were supposed to perform concrete work.  Due to jobsite conditions, the work they intended to perform could not be done.  Cordeiro then decided to drive the two workers to the Asbury home where he and one of his co-workers climbed the roof to install a skylight.  While doing cutting work, Cordeiro fell through the roof onto the concrete floor below.  He suffered paraplegia from a spinal cord injury as well as multiple fractures and respiratory failure.  The parties agreed that he was totally and permanently disabled from the fall.

The insurance company, Sentinel, denied the claim and asserted that Cordeiro’s injuries resulted from his personal activities in his own home.  The company also produced an underwriter who identified herself as an employee of The Hartford.  She said that the workers’ compensation insurance policy only covered the installation of concrete slabs for residential homes.  However, there was no specific policy language confirming such a policy limitation.

 The Judge of Compensation ruled for petitioner and Sentinel appealed.  In a fairly brief opinion, the Court affirmed the award of 100% permanent total disability to petitioner.  The Court conceded that Danny’s employees generally performed concrete and masonry work, noting that some of the renovation work done on Cordeiro’s property was beyond the usual scope of work performed by Danny’s.  In this case, Danny’s employees did pour the concrete floor in the room where Cordeiro was injured.

The reasoning of the Court was that Cordeiro should be covered under workers’ compensation because, as an employee of the company, he was performing a task assigned by the employer.  The Court noted that “[t]he language of the [Act] must be liberally construed in favor of employees,” citing Cannuscio v. Claridge Hotel, 319 N.J. Super. 342, 249 (App.Div. 1999).  The holding in this case is not surprising because there are few if any published cases in New Jersey where the defense has been accepted that the activity that the company engaged far exceeded the specific terms of the application of insurance.  The Court rejected the argument that petitioner’s claim should be barred because Danny’s employees only worked more than three feet above ground level doing concrete work.

This case can be found at Cordeiro v. Danny’s Construction, A-2714-11T3 (App. Div. December 13, 2012).

The Judge of Compensation and Appellate Division found that the employee was entitled to no benefits based on his violation of the New Jersey Fraud Act

In Johnnie Jackson v. Township of Montclair, A-2212-11T2 (App. Div. July 5, 2012), the claimant injured his knee while moving large boxes of books at the Montclair Public Library on August 4, 2008.  He immediately stopped working and went to Mountainside Hospital where a brace was put on the right knee.  He was seen by a number of physicians thereafter.  An MRI of the right knee done on August 28, 2008 showed a tear of the posterior horn of the medial meniscus.  Petitioner underwent arthroscopic surgery on September 18, 2008 to repair the meniscal tear.

When the claimant saw Dr. Hatfield shortly after his accident, there was no indication whether he had any prior knee injuries.  When he saw Dr. Mendes, the doctor wrote that he “denied any history of knee injuries or pain in the past.”  When he saw Dr. Colizza, the doctor noted that he “denied any problems with respect to his right knee prior to his work injury.”

Contrary to his assertions to these doctors, the claimant had been involved in an automobile accident on April 13, 2007 and treated with a surgeon, Dr. Vizzone, who ordered an MRI and diagnosed a “tear of the posterior horn of the medial meniscus” and “a partial tear of the anterior cruciate ligament.”  Petitioner was told he would need knee surgery but he did not undergo the surgery.  He did, however, bring a law suit, and he signed answers to interrogatories on December 15, 2008 stating that the injuries he suffered in the car accident “are considered to be permanent” and “continue to limit his activities” and “cause great pain on a daily basis.”  He said in these answers that he suffered pain and discomfort while working, bending, lifting, sitting, and sleeping.

The Township of Montclair referred petitioner to Dr. Carl Mercurio for an IME.  Dr. Mercurio stated that petitioner’s knee problem was causally related to the work injury in August 2008 but that he was aware of a prior car accident and would like to see those records. After he received the records of the car accident, Dr. Mercurio concluded that the work injury only caused a sprain and strain and that the tear of the medial meniscus had already been there before the work injury.  He amended his initial report and opined that petitioner’s 7.5% disability of the leg was all due to the car accident, not the work injury.

Trial ensued in this case.  When the claimant testified he said that prior to the work injury in 2008 his knee had been “feeling great.”  He was confronted with answers to interrogatories in the civil law suit and said that some of his answers had been wrong and he signed them without knowing what they were. He also said he did not recall being told that he had a tear in his knee after the car accident.  He later admitted that Dr. Vizzone had in fact told him he needed surgery for his knee from the car accident. He said he had no idea why Dr. Hatfield, Dr. Mendes and Dr. Colizza had no knowledge of the prior car accident and knee injury.

The petitioner’s expert, Dr. Tiger, was also shown the prior car accident records and admitted that Dr. Colizza had not been given an accurate history of petitioner’s prior knee injury.  He said that without an accurate history, the treating doctors would have been confused on causation.

The Township filed a motion to dismiss the petitioner’s claim for violating N.J.S.A. 34:15-57.4, the New Jersey Fraud Act.  The Honorable Nilda Hernandez, Judge of Compensation, dismissed the case, finding that petitioner made material omissions which constituted “fraudulent conduct.”  She also ordered that petitioner repay temporary disability benefits in the amount of $17,497.71 as well as costs of surgery in the amount of $892.33.  He was permitted to keep $3,262.86 for temporary disability compensation for a sprain of the knee.

Petitioner appealed and argued that the Judge of Compensation erred in not finding that petitioner sustained a permanent injury at work.  He also argued that the Judge relied on impermissible hearsay evidence.  The Appellate Division rejected all these arguments and affirmed the dismissal of the case.  The Court noted that there was ample evidence to support the Judge of Compensation’s finding that petitioner was not trustworthy.  In particular, the Appellate Division noted that petitioner explicitly denied suffering any knee injury prior to the work accident.

The case is an important reminder that the New Jersey Fraud Act can be invoked when a claimant is not forthcoming about prior relevant medical history.  Material omissions or misstatements by either party in a workers’ compensation proceeding may be actionable under the Fraud Act.

New Jersey has a statute of limitations for both traumatic and occupational disease claims. In Millar v. Darren J. Del Sardo, Esq. A-4388-10T1 (App. Div. April 27, 2012), both statutes of limitations came into play. (more…)

The casual employee defense remains viable in New Jersey. It is a difficult defense to make in certain lines of employment such as trucking, real estate agents, newspaper delivery persons and cab drivers, but it remains viable in situations involving home remodeling and home additions. A good illustration is the recent case of Cruz v. Ivania Perez Alonzo, A-0444-11T4 (App. Div. May 9, 2012). (more…)

The statute of limitations is jurisdictional and nothing, other than perhaps insanity, relieves a claimant from the rule

All states have statutes of limitations for filing compensation claims. But are these statutes flexible under certain circumstance? The answer in New Jersey is emphatically no. (more…)

Many states have a provision that allows an employee to file a workers’ compensation claim within two years from the last payment of workers’ compensation benefits. But is this statute absolute?

Kirsten Toth was injured on July 23, 2004 working for Princeton Health Care. She struck her head on her car door while bending to retrieve her security badge. (more…)

The New Jersey Division of Workers’ Compensation has its own fraud act within the workers’ compensation law. The case of Dubrel v. Maple Crest Auto Group, A-3321-10T3 (App. Div. January 30, 2012) illustrates how this law can be invoked where a claimant misrepresents the limitations of his ability to function. (more…)

The answer to this question, at least in New Jersey, is a resounding yes, if you have the right facts.  In Russo v. Hoboken Board of Education, A-1861-10T4 (App. Div. November 29, 2011), the petitioner filed a claim petition on February 24, 2004.  He alleged that pulmonary injuries caused by asbestos exposure principally between 1990 and June 30, 1993 caused his metastatic brain tumor and lung tumor which were diagnosed in 2000 and 2001.  He filed his claim petition on February 23, 2004.

The petitioner taught at various schools in the Board of Education from 1971 to 1993.  He took a leave of absence in 1993 after winning the Hoboken Mayoral Election that year.  He testified that there was an asbestos remediation project in the early 1990s.  That project required the replacement of all ceiling tiles in the building and the removal of all asbestos dust and was carried out during school hours.  He also testified that he thought he was exposed to asbestos while teaching at the Connors School while eating lunch in the basement with other teachers. 

On cross examination the petitioner admitted that he had long been aware asbestos had harmful effects, including lung disease.  He recalled in the 1990s a general ‘buzz going around the building” regarding workers who were wearing “spaceman outfits” to conduct remediation.  He went so far as to attend public meetings and object to the project.  He said that even back in the early 1990s he thought students and teachers were probably being harmed by the asbestos exposure.

The petitioner had been a cigarette smoker since the early 1960s.  When he was diagnosed with a brain tumor in 2000, he underwent radiation and chemotherapy.  About three months after the brain surgery, a cancerous upper lobe in his lung was removed and further radiation and chemotherapy were required.  He was diagnosed with adenocarcinoma with the primary tumor site being in his lung. 

In 2001 or 2002, the cancer returned to his brain and he underwent another surgical procedure.  He required further surgical procedures in the following years. 

 The petitioner testified that his oncologists likely inquired about his employment history and potential exposure to harmful materials before the multiple surgeries and during these treatments. However, he maintained that the doctors never specifically told him that his cancers were related to work. Respondent made a motion to dismiss the case at the end of petitioners’ testimony, arguing the petitioner knew his condition and knew that it was due to work exposures two years before he filed.

The judge of compensation considered that petitioner was not diagnosed with cancer until 2000.  That was clearly when he knew what his medical condition was.  The judge noted that petitioner was aware of the harmful effects of asbestos exposure as far back as the 1970s.  She commented that petitioner was a “well education gentleman, with greater than a Master’s degree.”  She further noted that petitioner was aware of the remediation projects in the 1980s and 1990s and knew he had loss of bodily function from his cancer in 2000 and 2001 but did not file within two years of this knowledge.  Therefore, the judge dismissed petitioner’s claim under N.J.S.A. 34:15-34. 

The Appellate Division reviewed the evidence at trial and affirmed that petitioner knew his medical condition when he was diagnosed with a cancerous tumor in his brain and then a cancerous tumor in his lung.  It rejected petitioner’s argument that he did not know his condition was due to work until much later.  He argued that respondent neither admitted nor denied that he was exposed to asbestos in its answer to his claim.  The Appellate Division noted that only “some reasonable medical support” is required but not medical confirmation.  Lapka v. Porter Hayden Co., 162 N.J. 545, 555-56 (2000).  The court said that it was only necessary that petitioner was aware of facts that would alert a reasonable person to the possibility of a claim. 

The decisive factor in respondent’s favor was that petitioner admitted he was aware that asbestos could cause lung disease and other medical problems as far back as the 1970s.  He had voiced complaints in the early 1990s at board meetings.  The Appellate Division held that in this particular case it was not critical that the treating physicians did not specifically tell petitioner that his cancer was related to the exposure. 

Another key aspect of this decision, if not the most important aspect, is that the judge of compensation was affirmed in her holding that there is no requirement that the judge must hear expert testimony before ruling on a motion to dismiss based on the statute of limitations.  Importantly, the Board of Education never produced experts, and neither did petitioner.  The court nonetheless dismissed the case on the statute of limitations.  This ruling makes this case one that practitioners should study as it may be the only such Appellate Division ruling on the issue of whether expert testimony is needed.  For employers who deal with occupational disease claims, this case and the Huntoon case are powerful reminders that the statute of limitations in occupational claims is alive and well.

In New Jersey employment is favored heavily over independent contractor status. Proof of this rule is Johantgen v. Brandywine Senior Care Center, A-4883-09T1 (App. Div. October 31, 2011).

Diane Johantgen provided hairstyling and grooming services once per week to residents of a long-term nursing home. She fell from a chair and fractured her wrist while hanging Christmas decorations in the area where she did her hairstyling work and filed a workers’ compensation claim against Brandywine Senior Care Center. (more…)