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The New Jersey Workers’ Comp Blog is published by John H. Geaney, Esq. and focuses on covering all aspects of Workers’ Compensation law in the state of New Jersey.
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The Little Known “Authorized Vehicle Rule” in Workers’ Compensation

I had the pleasure of Speaking on Law Day in Plainfield Workers’ Compensation Court on May 1, 2024 and wanted to share with readers part of the discussion in our session, namely the discussion of the New Jersey authorized vehicle rule contained in N.J.S.A. 34:15-36.  This is one of the most unknown but significant rules pertaining to when work starts and when work ends.  Practitioners, adjusters and employers are far more aware of the premises rule, the special mission rule, and the paid travel time rule than they are about the authorized vehicle rule.

Since the passage of the major overhaul of the New Jersey Workers’ Compensation Act in 1979, there have only been two significant published decisions that addressed in any detail the authorized vehicle rule, both cases involving the New Jersey Supreme Court.  The first was in 1992 in the case of Zelasko v. Refrigerated Express, 128 N.J. 329 (1992).  The case involved a truck driver who owned his own tractor and trailer.  Because his home community prohibited parking a trailer overnight, he had to park the trailer in a neighboring town in a friend’s yard.

On April 12, 1990, Mr. Zelasko made a delivery to Supermarkets General in Woodbridge.  He then drove to the terminal of his employer, Refrigerated Express, in Old Bridge to unload some pallets.  After that he started to drive to the neighboring town where he parked his trailer.  On the way he heard some rattling noises from the remaining pallets and became concerned about a problem.  He pulled off the road and stopped the truck.  He climbed onto the trailer to check the pallets but then fell from the trailer, suffering injuries.

The petitioner argued that his injury was covered under the authorized vehicle rule.  The Court focused on the following language of the statute which actually blends into one phrase two different rules (travel time and the authorized vehicle rule):   “…. But the employment of employee paid travel time by an employer for time spent traveling to and from a job site or of any employee who utilizes an employer authorized vehicle should commence and terminate with the time spent traveling to and from a job site or the authorized operation of a vehicle on business authorized by the employer.”  The Court rejected petitioner’s claim because it concluded that petitioner had concluded his day when he returned to his employer’s place of employment to drop off pallets.  There was a lengthy dissent from Justice Handler, who argued that petitioner’s day was not finished because he still had to drive to a neighboring town, unhook the trailer and safely secure its contents.

Thirty one years later, the New Jersey Supreme Court in 2023 delivered a more detailed opinion on the authorized vehicle rule in Keim v. Above All Termite & Pest Control, 256 N.J. 47 (2023).  The facts were unusual in this case.  The petitioner was a pest control technician who was given a company vehicle to transport pesticides and chemicals needed for work.  His day generally began by checking his iPad for assignments and then leaving from his home to go to the client location for pest control.  However, his employer required all the technicians to refill their pesticides and chemicals at the employer’s location in Monmouth County.  There was a limit to how much pesticide quantity the technicians could keep in their truck due to concerns about spoilage of the chemicals and possible theft.  Technicians would have to make sure they had just enough chemicals in their vehicles to meet the needs of the jobs each day. 

On the date of petitioner’s accident, he was driving to the employer’s location in Monmouth County to refill the supplies in his truck.  Petitioner had concluded that he did not have sufficient supplies to perform his scheduled daily assignments.  He was involved in a car accident on the way to his employer’s location with serious injuries.  The employer argued that petitioner was on his way to work and therefore the premises rule applied.  The Judge of Compensation dismissed the case.  Petitioner appealed and the appellate division reversed in petitioner’s favor.  The Supreme Court then affirmed in favor of petitioner.

The Court did not hold that the drive to work was a special mission, partly because the Court had already decided that this was an authorized vehicle rule case and perhaps partly because the statute says that a special mission must involve a commute away from the employer’s place of employment.  The Court found that petitioner was using an authorized vehicle when the accident occurred, on business authorized by the employer and with authorization from his employer.  The Court said, “Above All provided an authorized vehicle for operation by Keim.  Keim’s operation of that vehicle to the shop on the morning of the car accident was solely for business expressly identified and authorized by Above All, namely, to replenish supplies. The entire arrangement, both as to the vehicle’s location and the need to replenish supplies, reflected a business decision expressly designed by the employer to further the employer’s interests in safeguarding and maintaining the quality of its supplies and in minimizing travel time for employees, thus facilitating a robust appointment schedule.”

Most employees who use their car for business do not have company cars:  lawyers, accountants, sales persons, real estate agents, certain nurses, and others.  Does the authorized vehicle rule require that the company own the vehicle?  The Court said no.  The rule is not limited to just employer provided vehicles. It could apply to a vehicle owned by the employee. The Court did not go into further details about how a personally owned vehicle will be deemed an authorized vehicle but the quote in the preceding paragraph seems to focus future analysis on whether the actions of the employee are furthering the employer’s business interests.

Does this case suggest that the drive to work is now compensable?  The Court addressed this issue, “However, the ‘authorized vehicle rule’ does not apply every time an employee is driving a vehicle authorized by an employer.  And importantly, the ‘authorized vehicle rule’ does not categorically apply when an employee is merely commuting to work in either an authorized personal or work vehicle.”  Drives from home to work and back from work to home will almost always be considered not covered under workers’ compensation.

I want to thank the Director and Chief Judge Maria Del Valle Koch, Judge Fred Hopke and Judge Neme Akunne for hosting this very enjoyable Law Day seminar and for making everyone feel welcome in the very accommodating Plainfield vicinage.  I also want to thank my co-presenter Rick Rubenstein, Esq., and all the lawyers who attended and raised many good questions throughout afternoon seminar.

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A Brief History of the New Jersey Workers’ Compensation Act

For those who do not like workers’ compensation, blame Otto Von Bismarck.  Yes, the man known as the Iron Chancellor, who united all the kingdoms and states into one Germany, passed the first modern workers’ compensation law in 1874.  Other western European nations soon followed, and between 1911 and 1920 every state in America adopted a workers’ compensation law, all of which borrowed from Bismarck’s first modern law.  On April 4, 2024, New Jersey marks its 113th year of workers’ compensation.  Wisconsin was the first state to pass a workers’ compensation law in 1911.  Nine more states, including New Jersey, followed in 1911. 

The significance of having a workers’ compensation law can only be appreciated if you consider how injuries were treated before 1911.  Former Director of the Division of Workers’ Compensation, Peter Calderone, wrote an excellent article in 2011 explaining what life was like before modern workers’ compensation laws.  If an employee’s injury was caused by his own negligence, or by a co-employee’s negligence or was just a fact of business life, the employer paid no workers’ compensation benefits. That meant no medical treatment was offered, no lost wages and no benefits were voluntarily paid.  Fault was the main defense in all cases.  Work injuries quickly led to impoverishment for families.

Since there was no workers’ compensation law until 1911, injured workers would hire litigation lawyers who would sue the employer for medical care and damages.  Courts in every state were jam packed  with thousands of such cases.  Employers would sometimes win the suits and sometimes lose and pay high jury awards.  The process was slow and both labor groups and employers were unhappy with the system. 

While Bismarck may have started the concept of the modern workers’ compensation law, New Jersey owes its own unique version of workers’ compensation law mostly to one man named Walter Edge, who grew up in Pleasantville, Atlantic County, New Jersey and who started his first newspaper as a ten-year-old boy.  At age 17, he purchased the Dorland Agency, an advertising business, and turned it into an international advertising company with offices in the United States and Europe.  He founded the Atlantic City Press at age 22, which he sold for an enormous profit.  He got into politics at age 21.  He was elected to the Assembly at age 36 in 1909 and became a state senator in 1910.  Edge was so passionate about creating a New Jersey workers’ compensation law that he traveled to Germany and other western European countries to learn how each country’s system worked.  When he returned from Europe, he had in his mind a plan for a New Jersey workers’ compensation law.

Edge sponsored the first New Jersey workers’ compensation law in 1911 and lobbied colleagues in both parties to support it.  The legislation would take workers’ compensation out of civil courts and create an administrative remedy.  Edge wrote in 2011:  “It is generally conceded that 20 per cent of all litigation today, clogging the machinery of our courts, consists of suits between employer and employee.”  The legislation was passed with bipartisan support in the Assembly and Senate on April 3, 1911, and then signed into law on April 4, 1911 by Governor Woodrow Wilson. 

New Jersey labor groups hailed the law’s main features, which were to eliminate fault as an issue for receiving compensation benefits and to provide prompt medical benefits after an injury along with temporary disability and partial permanent disability benefits in certain cases.  Edge wrote in 1911, “. . . American citizenship and humanity does not allow an injured man to walk about the streets uncared for; as, at great expense, the public is maintaining, mainly through charity, many institutions to properly look after unfortunate people. The public is paying the bill.”  Provisions also covered permanent and total disability benefits and dependency benefits.  In return for agreeing to a no-fault system, employers received what they wanted.  That was an end the right of an employee to sue his or her employer or co-employee in civil court. This provision is referred to as the “exclusive remedy.”  

Walter Edge would go on to pass many other laws that made a difference to New Jersey residents — both labor groups and employers.  When North and South Jersey could not agree on major capital projects, he managed to forge a compromise that would lead to the construction of the Ben Franklin Bridge and the Holland Tunnel.  He became an early ally of Enoch “Nucky” Johnson (the character on whom “Boardwalk Empire’s” Nucky Thompson was based).  In fact, Johnson became Edge’s campaign manager for Governor in 1916.  Johnson was a Republican power broker in Atlantic County, and Edge was also able to get the support of the state’s leading Democrat, Mayor Frank Hague of Hudson County fame.  Hague thought the Democratic candidate too liberal for his tastes.  Edge won and became Governor, eventually serving two terms as Governor of New Jersey, separated by 25 years.  What does this biographical history of Walter Edge have to do with workers’ compensation?  Not much, but perhaps consider this a minor deviation.

From 1911 to 1979, there really were few changes to the New Jersey Workers’ Compensation Act.  Walter Edge’s vision of workers’ compensation in 1911 has stood the test of time.  There has only been one major overhaul of New Jersey’s law, and that took place in 1979. The overhaul was necessary because New Jersey’s benefit rates were extremely low and were not keeping up with inflation.   An award of 50% permanent partial disability amounted to only $11,000 in 1979.  Even back then, that was not a lot of money.   In 1980 the same award more than tripled to $36,900.  Today an award of 50% permanent partial disability for a high wage earner amounts to over $226,000.  For their part, employers were unhappy with the endless exceptions to the going-and-coming rule and the unpredictable standards for occupational disease claims and also lobbied for change in 1979.  The Legislature passed dozens of major changes to the Act including the following:

  1. Significant rate hikes for temporary disability and permanent partial disability benefits starting in 1980;
  2. Tightening the standards for occupational disease claims to include the requirement that the petitioner show proof of a medical condition that is produced by causes which are characteristic of or peculiar to work in a material degree;
  3. Creating more stringent medical/legal requirements for cardiovascular and cerebrovascular claims;
  4. Requiring proof by objective medical evidence to support any claim for permanent partial disability and eliminating awards based solely on subjective complaints;
  5. Narrowing the countless exceptions to the former “going-and-coming rule” and adopting the “premises rule” instead.

Following these and many other amendments, the Supreme Court weighed in on its interpretation of key provisions passed in 1979, including Perez v. Pantasote, Hellwig v. J. F. Rast & Co., Inc., Saunderlin v. E.I. DuPont Co., and Jumpp v. City of Ventnor.

Where does New Jersey workers’ compensation stand today, 113 years after Walter Edge wrote the first workers’ compensation law in the state?  It remains very much where it stood in 1911 as buttressed by the 1979 amendments.  If one were to list the five main pillars of the New Jersey Workers’ Compensation Act that differentiate our law from that of other states, they would be these:

  1. Permanent partial disability benefits even for workers who are able to return to their job on a full-time basis with no restriction so long as they have proof of a substantial limitation of non-work activities;
  2. The absence of any medical fee schedule;
  3. Employer-directed medical care;
  4. The employer’s right to terminate medical and temporary disability benefits at MMI;
  5. The right of an injured worker to reopen his or her case for further medical, temporary and permanent disability benefits.

All these aspects of the law were set in motion in 1911. Other states have several of these features in their law, but no other state has all five of them.  The state that is closest to New Jersey’s system is Missouri.  Perhaps because Walter Edge was a moderate politician who routinely reached out to both sides of the political aisle throughout his career, he was able to craft legislation that offered advantages to both employees and employers. Neither employers nor employees like every aspect of the New Jersey law.  Few can dispute, however, that New Jersey has a better social policy behind its law.  The overwhelming majority of injured workers do return to work.  The New Jersey Act has its critics.  One of the most serious criticisms is that New Jersey has the highest workers’ compensation medical costs in the nation.  Overall, however, the New Jersey Act is more balanced than workers’ compensation laws of most states and remains true to the spirit of the original 1911 law.

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Appellate Division Rules That Claimants in Certain Circumstances Do Not Have to Reimburse an Employer’s Lien From a Third Party Recovery Until the End of the Workers’ Compensation Case

The unreported case of New Jersey Transit Corp. v. Joseph, No. A-1194-22 (App. Div. March 19, 2024) has thrown a wrench into the common understanding of when to resolve third party liens in New Jersey. The facts that are supplied in the case are not detailed.  Darshelle Joseph was injured on October 23, 2019, during the course of his employment with New Jersey Transit.  The opinion notes that NJ Transit’s carrier notified Joseph on November 11, 2019, of its lien rights as to any third party recovery.  The letter also advised Mr. Joseph to contact the carrier if he should retain an attorney in a third-party case.  The Appellate Division observed that there was no indication in the record whether Mr. Joseph notified either NJ Transit or its carrier of the third-party action, nor does the opinion discuss what, if anything, the third party attorney knew about NJ Transit’s lien when the third party case settled.

NJ Transit paid $7,112.90 in workers’ compensation medical and temporary disability benefits to petitioner, Darshelle Joseph.  The workers’ compensation case had not yet been resolved. Mr. Joseph sued the tortfeasor and recovered $14,000 in settlement with his uninsured motorist insurance policy in December 2021.  His attorney disbursed the full $14,000 settlement amount less counsel fees and costs of $15.10 to Mr. Joseph.  No repayment was made to the New Jersey Transit for its medical and temporary disability benefits lien as of the date of the third party settlement. 

NJ Transit filed a verified complaint in civil court seeking reimbursement of its statutory lien.  It is noted in the decision that the trial court did not hear oral arguments but ruled on the briefs submitted, denying NJ Transit’s application for lien reimbursement as being “premature.”

The trial court and Appellate Division disagreed with NJ Transit’s argument that the employer’s statutory lien must be satisfied immediately upon resolution of the third-party settlement.  The Appellate Division said, “Thus, the statute makes no mention of when the employer’s lien must be satisfied, but it makes clear the specific amount of the lien cannot be determined until the employer’s liability is finalized.”   The Court was referring to N.J.S.A. 34:15-40(b) which states:

b) If the sum recovered by the employee … from the third person … is equivalent to or greater than the liability of the employer … under this statute, the employer … shall be released from such liability and shall be entitled to be reimbursed … for the medical expenses incurred and compensation payments theretofore paid to the injured employee … less employee’s expenses of suit and attorney’s fee as hereinafter defined.

The Court read the above paragraph as being directly applicable to this case because the $14,000 civil recovery was higher than the $7,112.90 paid in medical and temporary disability benefits but the court also noted that the workers’ compensation case had not yet concluded.  The Court said, “Thus, there is no requirement the employer’s lien must be paid following recovery from a third-party tortfeasor.  Indeed, it cannot be fully satisfied until any associated workers’ compensation action is finalized and the employer’s liability under the Act is determined. Thus, an employer’s unperfected statutory lien is not required to be satisfied immediately upon the injured employee’s recovery from a third-party tortfeasor.”

The comment that the Court made about an “unperfected lien” is important to understand for all workers’ compensation practitioners.  The Court was referring to N.J.S.A. 34:15-40(d), which provides that the employer or its carrier may serve notice on the third-party defendant or its insurance carrier of its lien rights as to any third-party recovery arising from the work injury.  When that notice is provided, the third-party defendant or its insurance carrier may not make settlement payments to the injured employee in the civil action until the workers’ compensation lien is satisfied.  This notice provision is what the Court meant by “perfection” of lien rights. The Court said that in this case, there was no proof of any perfection of lien rights.

Current practice in New Jersey is contrary to this decision.  When a third-party settlement occurs – even if the workers’ compensation case is ongoing – the lien is resolved as to the amount of the third-party recovery.  In a case like this, the third-party attorney would repay two thirds of $7,112.90 minus statutory costs, and then the employee would continue to pay one third of future benefits until the amount of the workers’ compensation benefits would reach $14,000 (which was the amount of the UM settlement). Thereafter the employer would pay dollar for dollar on any future benefits. The employer is not actually paying workers’ compensation benefits up to the amount of the $14,000 settlement.  Rather the employer is making its contribution to plaintiff’s counsel fee in the third party case. 

The Court acknowledged that the underlying principle behind N.J.S.A. 34:15-40 was to prevent double recoveries. In this case the plaintiff made a double recovery because he received his $7,112.90 and kept two thirds of the $14,000 UM settlement.  The Court seemed to be suggesting that this problem of double recovery could be addressed at the end of the workers’ compensation case depending on how much more money NJ Transit has to pay to resolve the workers’ compensation claim.  The flaw in that argument is that if NJ Transit should close the file with only a few thousand more dollars in payments, a double recovery will occur and NJ Transit will not receive repayment of its lien. 

The Appellate Division was concerned about the fact that NJ Transit’s lien was not protected in this case because the entire $14,000 settlement was disbursed without holding funds in escrow to satisfy the lien.   It said, “As long as the funds to pay the lien are protected – either deposited into court or deposited in an attorney trust account – there is no prejudice to NJ Transit.”  The Court remanded the case to the trial court to take steps to protect NJ Transit’s lien.  None of this would have been necessary had the lien been taken care of at the time of the third party settlement.

This case is focused on an important issue: namely, the timing of lien repayments when a third-party settlement occurs during an unresolved and ongoing workers’ compensation case. The general principles discussed in this case are far more important to focus on than the outcome in this Appellate Division case because the record here is so sparse.  The opinion does not mention what contact there was, if any, between plaintiff and his lawyer and NJ Transit before the third-party settlement funds were disbursed.

We all know that third-party settlements occur all the time during ongoing workers’ compensation cases.  The Court correctly observed that “perfected” liens must be repaid to the employer at the time of the third-party settlement if notice has been given to the third-party defendant or its carrier of the employer’s lien rights.  In that situation, there can be no attempt to delay repayment until the end of the workers’ compensation case.  Now let’s consider so-called unperfected liens where the third-party defendant and its carrier are not notified of lien rights before they disburse payments.  If both plaintiff’s attorney and the plaintiff have actual notice of the employer’s lien rights at the time of settlement of the third-party case, why would the result be different? Why would there be an opportunity to delay repayment until the workers’ compensation case should end – which might be several more years?  It is the actual notice that should matter. It would be inconsistent to read the statute to mean that a lawyer and plaintiff with actual notice of the current lien amount should be held to a different legal standard than a third-party defendant or its carrier with respect to the timing of reimbursement.

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Private Sector EMTs and Paramedics Are Now Covered Under New Legislation Signed by New Jersey Governor Creating a High Rebuttable Presumption in Favor of Compensability of Strokes or Heart Attacks

The recent passage of A5909 has generated many questions from hospitals and private sector ambulance companies which provide EMT and paramedic services.  The questions focus on the recently passed legislative overhaul of N.J.S.A. 34:15.7.3.  That original 1988 law is entitled, “Cardiovascular or cerebrovascular injury or death of police, fire or emergency personnel in response to an emergency: presumption of compensability.”

On January 16, 2024, Governor Phil Murphy signed a sweeping overhaul of this 1988 legislation, providing coverage for a new category of employees, namely paramedics and EMTs, and extending the coverage to private sector paramedics and EMTs. The new law covers paramedics and EMTs who suffer a heart attack or stroke while responding to a public safety or medical emergency or remediating from one within a 24-hour period after the emergency has ended.

As readers know, a presumption of compensability shifts the burden of proof to the employer to disprove a case.  The original 1988 public sector cardiovascular or cerebrovascular law employed a preponderance of evidence presumption, meaning essentially that if the employer could prove by more than 50% that the heart attack or stroke was not work related, then employer would prevail.  The overhaul law which was passed last week changed the presumption to a much higher legal standard.  Now the employer has to prove by clear and convincing evidence that the heart attack or stroke was not related to work.  This is the first statute in New Jersey history to apply a clear and convincing evidence standard in workers’ compensation. 

What does this new standard mean? Readers can think of clear and convincing evidence as requiring the employer to offer proof that demonstrates by a high probability that the facts or medical evidence offered by the employer are true or accurate. Merely showing that the employer’s position is more likely than not to be accurate (just over 50%) will be insufficient to meet the clear and convincing evidence standard.  The defense must demonstrate a high probability that its position is accurate.

The questions that have been coming into our office have focused on what the new law means when it refers to private sector EMTs and paramedics.   Does this mean every single paramedic and EMT in New Jersey who has a heart or attack or stroke in close time relation to an emergency call is covered by this high presumption?  Unfortunately, this new law does not provide any commentary.  Here is what it says:

Coverage under this law shall apply to “any career emergency medical technician or paramedic, employed by the State, a county, a municipality or a private sector counterpart, who is engaged in public emergency medical and rescue services.”  Some have asked what the word “counterpart” means.  This is not a legal term, so one can study a dictionary definition.  The word “counterpart” is defined as someone who performs a function that corresponds to that of another person.  Example, the Manager of a baseball team is the counterpart to the Coach of a football team.  They perform similar services for their respective teams.  Does this new law mean that every private sector paramedic and EMT is automatically considered a “counterpart” of a public sector paramedic or EMT? 

Sometimes the Legislature adds comments after a new Bill explaining its analysis of the main changes to the bill.  There are no comments to explain why this law, formerly focused only on the public sector, is now applicable to private sector paramedics and EMTs.   It seems clear that this law will apply to a situation when a hospital or a private company enters into a contract with a municipality, county or the State to provide paramedic or EMT services for residents or facilities within the municipality, county or state. What we cannot tell is if a contract with a public sector employer is a threshold requirement.  Example:  a private sector ambulance company enters into a contract directly with a nursing home to perform emergency services.  Does that make the private sector EMT a “counterpart” under the above definition?  Does it matter that perhaps in the past the municipality used to perform these services with its paid or volunteer EMTs for the nursing home?  No one knows the answer, but we do know this:  arguments for a broad interpretation of this new law will be advanced by paramedics and EMTs who suffer heart attacks or strokes.  Those cases will be tried in the courts, which will eventually provide us with an answer.

It is also important to understand two other major aspects of the legislative overhaul of N.J.S.A. 34:15-7.3. First, the former requirement that the public safety official prove that he or she was “acting under orders from a competent authority in effecting a response” has been deleted.   The private sector paramedic or EMT does not have to demonstrate proof that he or she was ordered to respond to the emergency by some superior from work.

The other point to understand is that covered employees, including paramedics and EMTS, are presumed to be covered while “remediating from a law enforcement public safety or medical emergency.”  This language is also new.   The word “remediating” is defined as “leaving an emergency in a reasonable period of time, not to exceed 24 hours from the end of the emergency, to carry out post-injury agency protection and decompression including measures such as ‘critical incident stress debriefing.’”  In other words, if the heart attack occurs within 24 hours after the emergency has ended, most likely the presumption of compensability will still apply.   Again, this presumption is the highest presumption ever applied to any New Jersey workers’ compensation statute.

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Respondent Defeats Alleged Claim of Aggravation and Motion for Medical and Temporary Disability Benefits Seeking Payment for Five Spinal Surgeries

Cases involving aggravation of preexisting conditions are quite common in workers’ compensation and are often complex.  Adequately addressing such claims requires obtaining the pre-accident medical treatment records and obtaining expert opinion on whether the work accident aggravated the prior condition. Donald Smith v. H & H Transportation, Inc., No. A-3568-21 (App. Div. December 20, 2023) presents a scenario in which two highly qualified spine surgeons disagreed on whether there was aggravation caused by the work injury.

The facts were not disputed.  Mr. Smith was injured in a motor vehicle accident on January 7, 2017 while driving a tractor trailer.  Years before this accident, he was treated for his back, starting in 2005. Again in 2009 he received treatment for his back.  A CT scan was done of the mid-back in March 2016 revealing degenerative changes.

After the January 2017 work accident, petitioner saw Dr. Anthony Parks, who ordered an MRI, which showed a “right sided herniated disc at T7-8.”  Dr. Parks suggested a second opinion, which took place with Dr. Ryan Cassilly, an orthopedic surgeon at Garden State Orthopedics. Dr. Cassilly received the previous 2016 CT scan and compared that result to the new MRI in 2017.  He felt that the petitioner’s disc abnormalities at T7-8 were not related to the January 2017 motor vehicle accident because the disc was calcified and because the bone spurs between the vertebra had fused, suggesting to Dr. Cassilly that petitioner had a long-standing degenerative condition.  Dr. Cassilly concluded that there was no need for further causally-related treatment.  Respondent then terminated medical and temporary disability benefits.

On his own, petitioner saw Dr. Gregory Przybylski, a neurosurgeon, who reviewed the 2017 MRI.  Dr. Przybylski believed that petitioner suffered from radiculopathy related to the protrusion at T7-8.  He recommended a CT guided selective nerve block at T7-8.  Dr. Przybylski performed five spinal surgical procedures over the next 28 months, including a fusion procedure.

Petitioner filed a motion for medical and temporary disability benefits.  When asked whether he had told the three physicians involved in this case about his prior medical history, he insisted that he had done so but asserted that all three doctors failed to record the history in their reports.  The Judge did not credit this testimony.  All three doctors testified that petitioner never revealed to them his prior medical history.

The case focused mostly on the testimony of Dr. Cassilly, who performed respondent’s IME, and Dr. Przybylski, who performed multiple surgical procedures on petitioner.   Dr. Cassilly said that he saw no spinal cord compression and viewed the 2017 MRI as showing “multiple osteophytes or bone spurs coming off his thoracic spine.”  He said that these findings were not a result of any acute injury but were degenerative.  He also opined that the five surgeries were not a result of any acute injury and were not related to the 2017 motor vehicle accident.  The two main points Dr. Cassilly emphasized were:

  1. The 2016 (pre accident) CT scan showed that the herniated disc at T7-8 was “fully calcified” well before the 2017 accident.
  2. The size of the bone spurs at T7-8 had not changed at all.

Dr. Przybylski admitted that he had not reviewed the 2016 CT scan when he first testified on the issue of causation. After he reviewed the 2016 CT scan, he retracted his opinion that the 2017 work accident caused the calcified disc and agreed with the opinion of Dr. Cassilly on this issue.  Nonetheless, Dr. Przybylski maintained that petitioner’s symptoms were worsened by the 2017 accident and required the five surgical procedures.  The main point that he raised was that petitioner’s condition improved following the nerve block procedure. That led him to conclude that the 2017 accident had caused a nerve injury. 

The Judge of Compensation was faced with two conflicting opinions on causation from two well respected board-certified spine surgeons, one who performed an IME on causation and need for treatment, and the other who operated on petitioner’s spine on an unauthorized basis.  The issue at hand was whether the 2017 accident aggravated the petitioner’s pre-accident condition at T7-8.  The Judge found that Dr. Cassilly’s opinion was “credible, logical and consistent, both medically and factually.”  She concluded that the medical records indicated “evidence of long-standing degenerative etiology rather than acutely post-traumatic” injury.  In the opinion of the Judge of Compensation, there was no aggravation, exacerbation, or acceleration of the petitioner’s underlying condition because the 2016 CT scan and 2017 MRI showed essentially the same findings.

The Appellate Division affirmed the decision of the Judge of Compensation for all the reasons cited by the Judge of Compensation in her opinion.  The Court first observed case law that states that an employer takes the employee as the employer finds the employee, with all preexisting conditions that may exist. The Court added, “the injury is not compensable if a preexisting condition is its sole cause,” citing Sexton v. Cnty. of Cumberland/Cumberland Manor.

In weighing the experts’ opinions, the Appellate Division noted that Dr. Przybylski changed his position on the issue of prior calcification of the disc once he saw the 2016 CT scan.  Dr. Cassilly arguably had been in a better position to opine on causation because he did review the 2016 CT scan at the time of his examination and report.   

This is one of the best cases to read in years to understand the legal standard of aggravation in workers’ compensation.  The Judge of Compensation focused on whether there was any objective medical evidence of change in the preexisting medical condition caused by the work accident.  That is the legal standard in New Jersey.  Quite apart from what the injured worker may say, when the medical studies are essentially the same pre- and post-accident, aggravation is not likely to be found. Dr. Przybylski conceded that the studies were essentially the same once he learned about and reviewed the prior 2016 CT scan, but he offered an after-the-fact analysis that if petitioner improved from a nerve block, then the work accident must have injured the nerve.  This argument failed to impress the trial and appellate courts.  The other interesting aspect of this case is that the opinion of the one-time IME physician on causation carried the day over the opinion of the surgeon who performed five spinal surgical procedures. 

Practitioners, employers, and adjusters regularly analyze the issue of aggravation of a preexisting condition, and the process can be quite challenging. Each year there are literally thousands of cases in New Jersey that turn on this very issue of aggravation. Getting all the prior medical records is a major challenge, particularly in New Jersey, because our state allows no interrogatories in traumatic injury claims.  New Jersey also permits no depositions of the petitioner, except in extraordinary circumstances. Obtaining past medical history depends heavily on what is asked in the medical examination. But what if the doctors write that they asked about prior treatment history, but petitioner denied any prior medical treatment to the injured body part?  How does the employer or carrier then find out about prior treatment?  That is exactly what happened in this case.  All three doctors testified that petitioner denied any prior mid-back treatment.  For his part, petitioner insisted that he told the doctors about his prior back treatment, but they all failed to record in their reports what he told them.

It is not stated in this opinion how the respondent managed to obtain the prior treating records at issue. We only know from reading the opinion that somehow the records were obtained, thereby allowing the issue of aggravation to be addressed in detail by the Judge of Compensation and Appellate Division. Getting the prior records is not the end of the process.  Once the prior medical records are received, they must be provided to the medical expert, who then thoroughly reviews them along with all post-accident medical records, examines the petitioner carefully and opines on whether the work accident caused objective changes to the preexisting medical condition.  This process may sound easy but in practice it is far more difficult than it sounds. It takes a lot of time and effort to do this right.

The post Respondent Defeats Alleged Claim of Aggravation and Motion for Medical and Temporary Disability Benefits Seeking Payment for Five Spinal Surgeries appeared first on NJ Workers' Comp Blog.

Appellate Division Holds Employee Who Worked and Attended School Is Eligible for Temporary Disability Benefits After Unemployment Benefits Terminated

There are not many cases involving eligibility for temporary disability benefits while attending school. The case of Soto v. Hoosier Care, Inc., No. A-0507-22 (App. Div. December 11, 2023) discusses this issue directly.

The facts in the opinion are threadbare, and the reader will have many more questions than answers after reading this decision. The employee, Ms. Soto, was injured while working as a CNA for Hoosier when a picture frame fell from a wall onto her on April 21, 2018.  She injured various parts of her body, including her neck and shoulder.  The case settled for 25% permanent partial disability apportioned 15% cervical and 10% for the right shoulder.

Petitioner returned to work and began working for Complete Care as a CNA.  She then worked for Interim Agency as a home health aide in the fall of 2019.  In 2020, she started taking classes at Ocean County College 15-25 hours per week.  In July 2021, Interim Agency closed.  Petitioner got a job briefly with Lars Home Care and thereafter she applied for unemployment benefits.  She received unemployment benefits from September 2021 until April 14, 2022. She continued as a full-time student at Ocean County College while she looked for a job.

In March 2022, petitioner filed a reopener petition in the New Jersey Division of Workers’ Compensation seeking further benefits from her 2018 accident.  Petitioner saw Dr. Kris Radcliff on April 7, 2022.  He reviewed her prior MRIs and ordered x-rays.  He diagnosed a disc collapse and observed that the 2018 work injury materially contributed to this diagnosis. Dr. Radcliff felt that an anterior cervical fusion in the neck would be necessary. Petitioner testified that Dr. Radcliff took her out of work on April 7, 2022.  However, this was not stated specifically in the text of the doctor’s report and the doctor never testified.  The report itself said petitioner’s status was “out of work.”  Respondent objected to petitioner’s testimony that the doctor told her not to work as hearsay, but the objection was overruled because Dr. Radcliff’s report had gone into evidence uncontested at trial.

Petitioner filed a motion for medical and temporary disability benefits on May 13, 2022.  Respondent agreed to pay medical benefits but denied the claim for temporary disability benefits.  The Judge of Compensation ordered temporary disability benefits commencing April 15, 2022, which was the day after unemployment benefits ended.  The Judge of Compensation noted in an amplification of his prior decision that petitioner “became unemployed because her employer closed; sought employment while collecting unemployment benefits; attended college; and could not work because of injuries causally related to her 2018 work accident, as Dr. Radcliff found.”

On appeal, respondent argued that petitioner removed herself from the workforce by attending college and argued that petitioner failed to prove that she would have been working but for her work-related disability. The Appellate Division affirmed the decision of the Judge of Compensation. “We conclude Hoosier’s argument is without merit.  It is undisputed that Soto maintained employment from 2019 until the summer of 2021.  As the compensation judge found, Soto ‘worked two jobs after the accident with Hoosier.’ The judge specifically determined Soto became unemployed because her employer, Interim Agency, went out of business in July 2021. Thereafter, she collected unemployment benefits from September 2021 to April 2022, and certified weekly to searching for employment.”

The court also rejected respondent’s argument that petitioner’s college pursuits amounted to voluntary unemployment, stating, “… college attendance alone is not dispositive of her employment status. Soto testified that she started school in the fall of 2020, continued to work while in school, and continued to seek employment while in school.”  The Court rejected the application of Tamecki v. Johns-Manville Products Corporation, 125 N.J. Super. 355 (App. Div. 1973) to the facts of this case.  The court observed that Tamecki involved a college student who was injured during a temporary summer job and received temporary disability benefits only until he returned to school full time, at which point temporary disability benefits were properly terminated. “Here, the judge found Soto credibly testified that her college studies did not change her involuntary unemployment status and that she suffered loss of wages as a direct result of her compensable injury.”

The medical aspect of this case is murky because the surgeon never testified.  All the court had was a medical report.  Respondent focused on the deficiencies of the report of Dr. Radcliff.  That report barely mentioned anything about inability to work other than stating that petitioner was “out of work.”  Those are two different issues. Petitioner came to her own rescue in this case by testifying that Dr. Radcliff specifically told her that she could not work when he saw her on April 7, 2022.  That was the single most important fact in this case because it pertained directly to the claim for temporary disability benefits.  A doctor has to take an employee out of work for an employee to obtain temporary disability benefits.  Without petitioner’s own statement that the doctor told her not to work, petitioner would likely have lost her claim.  Hoosier’s employer objected that this statement from petitioner constituted hearsay.  The Judge and the Appellate Division allowed petitioner’s statement mainly because both parties had agreed to enter into evidence the report of Dr. Radcliff.  Additionally, the Court also noted that the Judge of Compensation found petitioner to be very credible in her testimony.

A review of this unreported opinion suggests that this was a trial apparently in which only one person testified:  the petitioner.  Since Dr. Radcliff did not testify, one will never know if he had been aware when he saw petitioner on April 7, 2022 that petitioner was already out of work on unemployment benefits or knew that she was also going to school 15-25 hours per week.  There is also no discussion in the opinion about how many classes petitioner was taking when she saw Dr. Radcliff and whether these classes took place during working hours.  It is also not explained in the opinion why the unemployment benefits ended on April 14, 2022.  Further, there is no mention of whether surgery ever took place or if it did take place, when the surgery occurred. There are simply insufficient facts in this opinion for a full understanding. The record that the judges had to work with was very limited because apparently only one witness testified. The opinion mentions no testimony from any other witnesses.  Employers will certainly question how an employee who was receiving unemployment benefits for seven months while taking classes would be entitled to receive temporary disability benefits when surgery was recommended for an injury that occurred four years earlier and when the record does not recite whether or when surgery took place or whether her classes continued during working hours after April 7, 2022.  

The dearth of facts in this case makes it hard to understand the outcome in this particular case. Putting that observation aside, the legal principle articulated here is important for all practitioners, employers and adjusters to consider.  This case limited the 1973 decision in Tamecki to its specific facts, namely that a young college student who was injured in a temporary summer job but returned to school full time was not entitled to temporary disability benefits during the college school year.   The court said the Soto case presented completely different facts.  It involved an employee who had a full-time working history while taking classes. The Court concluded that Tamecki does not prevent such an employee from obtaining temporary disability benefits when an employee is injured during the course of employment but also is taking classes.

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Medical Provider Cannot Sue Workers’ Comp Carrier for Breach of Contract to Get Around New Jersey’s Exclusive Remedy for Medical Disputes

Medical claim petitions comprise an increasingly large percentage of New Jersey workers’ compensation claims with over 5,000 being filed in 2023 alone.  One of the problem areas remains jurisdictional issues when a New York or Pennsylvania workers’ compensation case is referred to New Jersey just for a one-time medical procedure. The recent case of Hudson Regional Hospital v. New Hampshire Insurance Co., No. A-0978-21 (App. Div. November 16, 2023) presents an interesting procedural twist in this complicated area of law.

Hudson Regional Hospital in Secaucus, New Jersey provided treatment to five New York residents for injuries that took place in New York while working for their New York employers.  The hospital applied for compensation for the medical treatment of these five patients from the New York Workers’ Compensation Board, which awarded compensation based on the New York fee schedule.  The amount reimbursed to the hospital was less than the charges.  Under Section 13 of the New York Workers’ Compensation Law, medical providers must write off the unpaid balance after fee schedule payments, but the provider can also dispute the compensation awarded by the New York Workers’ Compensation Board through an arbitration procedure.  In this case Hudson Regional did not dispute the compensation for treatment of the five payments through the New York Board.

Instead, Hudson Regional decided to file claims in the New Jersey Division of Workers’ Compensation seeking reimbursement under the New Jersey Workers’ Compensation Act, which does not have a fee schedule.  Hudson Regional argued that they could file in New Jersey because the medical procedure took place in New Jersey.  Since New Jersey has no fee schedule, the state bases payments for physicians, surgeons, and hospitals on services that are “reasonable and based upon the usual fees and charges which prevail in the same community for similar physicians’, surgeons’ and hospital services.”  Hudson Regional sought to be paid the difference between payments under the New York Workers’ Compensation Board and the hospital’s billed charges.

All the New Jersey medical claim petitions were dismissed for lack of jurisdiction since the only connection to New Jersey was the location of the medical procedures.  These were New York workers’ compensation cases in every respect. Hudson Regional did not appeal the dismissals of their medical claim petitions to the Appellate Division.

What happened next makes this case very unusual.  The hospital decided to file a complaint in the New Jersey Law Division against New Hampshire Insurance Company alleging that the five patients were third-party beneficiaries under the insurance policies New Hampshire Insurance issued to their employers.  Hudson argued that the patients were entitled to workers’ compensation benefits under the New Jersey Workers’ Compensation Act, which pays much higher medical benefits to providers than under the New York fee schedule.  The complaint further alleged that New Hampshire Insurance breached the contractual rights of the five patients, was unjustly enriched and engaged in bad faith and unfair claim settlement practices.  The complaint sought payment of $386,961.32.

The trial court agreed with New Hampshire Insurance that the civil complaint had no basis in law whatsoever because the New Jersey Division of Workers’ Compensation has exclusive jurisdiction over claims for reimbursement for medical treatment arising from work-related injuries.  Hudson Regional appealed this decision.  The Appellate Court agreed with the trial judge in its holding that the New Jersey Division has exclusive jurisdiction on issues pertaining to disputes over medical treatment arising from workers’ compensation. The Court rejected the breach of contract suit with some blunt language: “An employee who receives an unfavorable decision from the Division cannot circumvent the comprehensive statutory structure enacted by the Legislature to address work-related claims by filing a suit alleging breach of contract in the Superior Court against their employers’ workers’ compensation carrier seeking workers’ compensation benefits denied by the Division.” 

Having found against Hudson Regional, the Court went on to consider the case of D’Ascoli v. Stieh, 326 N.J.  Super. 499 (App. Div. 1999).  In that case a Pennsylvania resident, employed by a Pennsylvania employer, suffered an injury while working in Pennsylvania but sought treatment in New Jersey from a New Jersey surgeon.  The patient agreed in writing to pay the fees for services for the New Jersey surgeon, regardless of insurance coverage.  The Court read the D’Ascoli case as supporting the right of a New Jersey medical provider to file an action in the Superior Court against an out-of-state patient to recover fees for medical services that were provided for a work-related injury, “even if that patient received workers’ compensation benefits in their home state.” The Court observed that Hudson Regional also had obtained an assignment of workers’ compensation benefits from each of the five patients but chose not to sue the patients.  Rather, Hudson Regional sued New Hampshire Insurance, which the Court said violated the New Jersey Workers’ Compensation Act.

This case is very helpful to practitioners and employers. Hudson Regional no doubt anticipated that an appeal on jurisdictional grounds would have failed.  There have already been decisions in New Jersey making clear that where the only contact with New Jersey is the location of the medical procedure, New Jersey does not have jurisdiction over a medical claim petition.  So, the hospital tried a novel end run with a suit against the workers’ compensation carrier for breach of contract.  That approach has now been soundly rejected.  The hospital could have sued the five individual patients under the above D’Ascoli case for the difference.  There were, however, likely several reasons that the hospital did not want to sue the patients.

It is an understatement to say that there is something unseemly about this recurrent scenario:  a New York resident is injured in New York, works in New York, is hired in New York, and gets treated in New York for his or her work-related injury.  Then the worker is abruptly referred to New Jersey for a medical procedure.  The medical provider then applies for compensation from the New York Board, receives that compensation, and turns around and seeks additional compensation under New Jersey law for the difference between the New York fee schedule payment and the much more generous “usual and customary” non-fee schedule reimbursement in New Jersey.  When the medical provider’s request for additional payments under New Jersey law is rejected, the provider retains counsel and files a medical claim petition in New Jersey.

These attempts to file medical claim petitions in New Jersey on New York cases are unfair and costly to employers, third party administrators and carriers. The referral itself to New Jersey exclusively for the medical procedure must also be puzzling to New York injured workers because all their treatment took place in New York until the procedure and New York City has a widely acclaimed private and public health care system.  Why does this scenario keep happening? The seminal difference between the two states is that New York provides fairly modest reimbursements to medical providers under their state’s  fee schedule, while New Jersey provides among the highest medical reimbursements in the nation. The reimbursement can sometimes be five or ten times higher in New Jersey than New York.

One must wonder how many carriers, third party administrators and employers have unwittingly paid more money on such medical claim petitions, not realizing that there is no New Jersey jurisdiction at all when the only contact in New Jersey is the location of the medical procedure.

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Appellate Division Finds Accident in Pennsylvania Compensable As Petitioner Had Resumed Drive to Customer Location in New Jersey

Petitioner Mario Pozadas was injured on October 14, 2016.  He was the owner of the respondent Capital Iron Associates, LLC., which specialized in fabricating and installing welding materials.  Earlier in the day he was working on a home renovation project taking place in Hightstown, New Jersey.  Mr. Pozadas drove a flatbed truck carrying several workers to that project. Around three p.m. he got a call from a client about doing a project at a funeral home in the same town.  He met with his client at a deli to discuss the job.  Then he dropped off his hourly workers and the flatbed truck at his Trenton, N.J. shop.

Petitioner testified that he planned next to travel back to Hightstown in order to prepare an estimate that afternoon for the funeral home.  He further said that he decided to use a friend’s motorcycle to travel back to Hightstown.  He chose not to drive directly to the funeral home destination.  Because it was a nice day, he decided to drive four miles west from Trenton into Pennsylvania on his friend’s motorcycle.  He exited south on the Route 13 jughandle in Morrisville, Pennsylvania intending to proceed to Hightstown when the accident occurred, resulting in very serious injuries.  The Court noted that a direct route from the shop to the funeral  home was approximately 15 miles, but the longer route via Pennsylvania would have been approximately 26 miles.  

Hartford Insurance denied the claim and argued that petitioner was not in the direct performance of duties at the time of his injury because he had driven west into Pennsylvania instead of driving east to Hightstown.  Respondent argued that the drive to Pennsylvania constituted a deviation from employment.  The Court noted that as the owner, petitioner could choose whatever vehicle he wanted to use and could choose the route he wanted to take. 

The Judge of Compensation ruled for petitioner and held that the accident occurred in the course of employment, and the Appellate Division affirmed.  The Appellate Division noted that this was not a case of someone who had stopped on the way to perform a personal errand and then got hurt.  The Court also noted that the Judge of Compensation made a finding that petitioner was credible in stating that he intended to cross back into New Jersey and drive directly to Hightstown, N.J.

The Court held that petitioner was engaged in the direct performance of work duties and relied on N.J.S.A. 34:15-36, which defines the scope of employment:

Employment shall be deemed to commence when an employee arrives at the employer’s place of employment to report for work and shall terminate when the employee leaves the employer’s place of employment, excluding areas not under the control of the employer; provided, however, when the employee is required by the employer to be away from the employer’s place of employment, the employee shall be deemed to be in the course of employment when the employee is engaged in the direct performance of duties assigned or directed by the employer;

The decision in Pozadas v. Capital Iron Associates, LLC, No. A-0162-22 (App. Div. Oct. 30, 2023), is interesting for a number of reasons.  The first question is whether the result would have been different if the case had been viewed as a recreational activity claim under N.J.S.A. 34:15-7.  Section 7 deals with recreational and social activity claims.  The Appellate Court opinion focused on the premises rule under N.J.S.A. 34:15-36.  There is no discussion in the decision about whether the petitioner was engaged in a recreational activity while driving the motorcycle in the State of Pennsylvania.  He said he chose to go west because it was a nice day to drive the motorcycle even though it lengthened the trip by 11 miles.  N.J.S.A. 34:15-7 provides that recreational activities are not compensable unless they are a regular incident of employment and promote a benefit to the employer beyond improvement of health and morale.   

The opinion also raises another interesting question:  what would have happened if the petitioner were an employee, rather than the owner?  There is little doubt that if an employee had been directed to drive to Hightstown for work purposes but instead decided to drive west four miles into Pennsylvania, the respondent’s argument would have been successful on deviation from employment.  A similar issue was raised in another unpublished case, Mackoff v. New Brunswick Saw Services, No. A-3625-19 (App. Div. July 14, 2021).  In that case the employee had a business meeting in West Caldwell, N.J. and said he intended to drive to the New Brunswick office of his company.  However, he was hungry and decided to have lunch in Kenilworth, N.J.  He said he went to the hot dog restaurant because he loved their hot dogs and it was a nostalgia place for him.  His accident was held not compensable because the Judge of Compensation found “the primary purpose for driving to the hot dog place was personal and not work related.”

Hartford Insurance Company also denied petitioner’s claim because of lack of workers’ compensation coverage on the date of the accident.  The policy had very recently expired when the motorcycle accident occurred. The opinion indicates, however, that the carrier was not able to produce witnesses from the broker who would have been needed to prove the employer had notice of cancellation of the workers’ compensation policy. 

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Worker Who Became Unconscious While Working Could Not Prove Subsequent Physical Injuries Were Work Related

The recent decision in Sykes v. George Harms Construction Company, Inc., No. A-3320-20 (App. Div. September 28, 2023) addresses an unusual claim involving a worker who was found passed out on the job while operating an excavator.  The petitioner filed a motion for medical and temporary disability benefits seeking an MRI of the neck, low back and shoulder.  Respondent opposed the motion, and the petitioner’s motion was tried to a conclusion. 

No one really knew for sure what happened on April 30, 2019 but it was clear that petitioner was found unconscious in the excavator he was operating.  Petitioner was a long-time employee of the company who was operating a 56,000 pound excavator on a bridge construction project in Manahawkin, New Jersey. The excavator and a separate dump truck were on the shoulder of Route 72.  There was a line of barriers separating the workers from traffic.  Petitioner was removing precut asphalt from the shoulder and depositing the asphalt in a dump truck.  His job required banging on a precut piece of asphalt with the bucket of the excavator to break it off and then go below the piece and scoop it up.  Once he had the asphalt in the bucket, he would swivel the cab around without moving the excavator tracks and dump the asphalt in the dump truck.

After about two hours of doing this work, petitioner said that a piece of asphalt broke loose, causing the excavator to pop backwards and the front part to lift up.   Petitioner further elaborated that the excavator “jolted” when he attempted to lift a piece of asphalt, causing him to “have a feeling of falling backwards” after which he had no specific recollection. Petitioner admitted to a history of seizures.  He believed that his head or body must have contacted something in the excavator.  At the time of his hearing, petitioner had not worked since the date of the accident and was experiencing headaches and pain in his neck, back and shoulder.    

The dump truck driver said that he was responsible for watching the excavator through his side mirror for hand signals from the operator that the truck needed to be moved forward or backward in loading the asphalt. He noted that after petitioner scooped a bucketload of asphalt and swung the arm of the excavator over the dump truck, there was a pause.  He then heard the tracks of the excavator and watched it start to pivot sideways and move toward the travel lanes.  This motion pushed a barrier about two to three feet into the travel lane and deposited a two-foot by three-foot piece of asphalt onto the roadway.

The dump truck driver radioed another worker to check on petitioner.  The dump truck driver then hopped over the barrier to waive off traffic from the hazard.  The worker who was sent to check on  petitioner found him “passed out.”  He was “sitting upright” in the upholstered operator’s chair, as he normally would, but his head was hanging down toward his chest.  The worker engaged the safety lever and climbed up into the cab to turn off the machine.  He reached across petitioner’s body to get to the keys when petitioner woke briefly and seemed to take a swing at him before passing out again. 

The foreman also testified and said that petitioner was initially unresponsive but eventually climbed out of the excavator without assistance. The foreman then used the excavator to pull the piece of heavy asphalt out of the road and slide back the barrier.

The CEO of George Harms also testified in the case.  He said that the operator’s chair included a headrest, and that there was at least a foot of space between the headrest and the rear cab window and approximately 18 inches between the chair and the windows on either side.  He added that the tracks of the excavator are controlled by foot pedals.  He surmised that petitioner’s foot must have activated one of the pedals, causing the excavator to pivot into the barrier.

The Honorable James Robertson, Judge of Compensation concluded, “neither the tamping of the bucket to break the asphalt nor the contact of the excavator with the Jersey barrier would have created the type of motion needed to create the injury that the petitioner claims that he suffered.”  The judge did not accept petitioner’s contention that “the jolting of the excavator and pulling up that piece of material” caused him to strike his head, rendering him unconscious.  The judge based this conclusion in part on the dump truck driver’s testimony that after petitioner had the asphalt in the bucket, he maneuvered the arm of the excavator over the dump truck and paused.  The judge concluded that this showed that petitioner was conscious “all the way around until the arm of the excavator was over the truck.”

The most interesting aspect of this case deals with case law on idiopathic cardiovascular events and related physical injuries.  Often a non-work stroke or heart attack occurs at work, followed by a fall causing a new injury.  Respondent need not pay for the cardiovascular incident, but respondent would have to pay generally for the physical effects of the fall if there is clear causation.  Petitioner’s counsel analogized to this well-defined principle of law.  He argued that regardless of whether it was a seizure that caused petitioner’s loss of consciousness or whether he struck his head during use of the excavator, his loss of consciousness occurred during the course of employment.  Therefore, petitioner contended, the physical injuries must be compensable. Judge Robertson rejected this argument stating as follows:  “there is no presumption that once a petitioner goes unconscious, that whatever else he claims happened to him must have happened during the course of the accident.”

Petitioner’s counsel cited to various cardiovascular incident cases that have been decided over the past 100 years where related physical injuries were held compensable.  Judge Robertson distinguished those cases: “[i]n all of those cases . . . there was no doubt what happened to the petitioner after the loss of consciousness.”  He noted that in Reynolds v. Passaic Valley Sewerage Comm’rs, 130 N.J.L. 437 (Sup. Ct. 1943), aff’d, 131 N.J.L. 327 (1944), Mr. Reynolds’ face got pressed against a burning coal stove.   In Spindler v. Universal Chain Corp., 11 N.J. 34 (1952), Spindler severely injured her hip when she tripped and fell on a concrete floor.  In George v. Great Eastern Food Products, Inc., 44 N.J. 44 (1965), a worker suffered an apparent non-work cardiovascular event and fell to the floor fracturing his skull.  The skull fracture was found to be compensable on the theory that the concrete floor was part of the work premises and contributed to the injury.

Judge Robertson found that there was no evidence that petitioner “suffered the impact that he thinks he did to cause the injury to the shoulder and the back.” The judge concluded that petitioner’s testimony was not based on what he saw or heard but only on “theory or conjecture.” He also based his decision on the testimony of respondent’s various witnesses who refuted the petitioner’s version of how he suffered physical injuries. Medical experts also testified in this case, but the judge found that this case turned on the facts. He was not persuaded by the testimony of the medical experts because their testimony on causation was premised almost entirely on the factual version petitioner provided to them.

The Appellate Division affirmed the decision of Judge Robertson on the ground that there was sufficient credible evidence to support the trial judge’s conclusions and affirmed “for the reasons expressed in Judge Robertson’s thorough and thoughtful opinion.”   

This case is important to practitioners and employers for two reasons.  First, there are not many published or unpublished appellate cases dealing with cardiovascular events and subsequent physical injuries. Secondly, this case represents a sub-type of cardiovascular event followed by alleged physical injury where the cause of the physical injury remains at issue.  In the reported cases noted above, the cause of the physical injury is quite clear.  For example, several involve cardiovascular events followed by a fall onto concrete resulting in a fractured skull.  In that type of case, causation is clearly established, but in this case the facts were always in dispute as to the cause of any head, neck, back or shoulder issue. The trial judge rejected the argument that there is a presumption that the subsequent physical complaints and injuries must be related to the idiopathic cardiovascular event. 

One final lesson in this case should be considered by practitioners and employers in regard to trials in general.  There are cases that depend heavily on facts and there are likewise cases that depend mostly on law or medicine.  This was a fact-based decision.  All too often employers and their attorneys fail to make that distinction and do not produce fact witnesses to support their denial of a case.  In a dispute over the facts where the case turns mostly on the facts, defense needs to bring in lay witnesses. This was a well-tried case by the respondent and its counsel dealing with complicated facts and legal issues, and respondent was able to produce credible testimony from a number of key fact witnesses.  The trial judge’s decision, which was endorsed completely by the Appellate Division, turned on the credibility of the testimony produced by respondent’s lay witnesses.

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Governor Signs Bill Raising Fees of Evaluating Physicians for Claimants

On July 20, 2023 Governor Murphy approved an amendment to N.J.S.A. 34:15-64 raising the maximum amount that physicians may be paid for opinions regarding need for treatment or estimates of permanent disability.  The maximum fee had been previously set at $600.  Under the new amendment, the maximum fee is now $1,000.  The goal of the bill was to provide parity between the amounts that physicians charge respondents for these kinds of medical evaluations and the amount physicians charge claimants.

Employers should take note of this change because the Division of Workers’ Compensation in New Jersey has a customary practice of assessing half of the cost of the examination of claimants on the employer in a percentage of disability settlement.  For example, if the expert for petitioner charges $600 for an examination and report, the employer would pay $300 and the employee would pay $300.  Now the Judge of Compensation can award $1,000 to the physician with $500 assessed against the employer and $500 assessed against the employee.  That amounts to about a 65% increase for employer and employee.  On Section 20 settlements, the employee pays the entire cost of his or her permanency examination.  There are far more percentage settlements in New Jersey than Section 20 settlements, perhaps two to one in favor of percentage settlements.

The question most asked is this: “Where does it say in the law that the employer must pay half of the cost of the petitioner’s examination on a percentage settlement?”  The answer is that there is no such provision in the law.  No statute in New Jersey requires the employer to pay part of the cost of the employee’s medical report.  There is no regulation that requires the employee to pay part of the cost of the employee’s medical report.  It is just an unwritten practice that has prevailed for many decades. I do not know when this custom commenced in New Jersey.

Another key question: “Does this new amendment affect cases that were filed before the Governor signed the law or only cases that are filed after the law was passed?”  The law says this Act shall take effect immediately.   It makes no comment on retroactivity. The Legislature has a habit of passing laws without addressing specifically when the law is meant to apply.   The language used in this bill is quite common in terms of taking effect immediately, but what was the intent of the legislators as to cases that were filed years ago but not yet resolved?  Does it matter if the medical examination already took place before the new amendment passed on July 20, 2023?

As a general rule, when there is no specific language prohibiting retroactivity, most laws are given secondary retroactivity as a practical solution rather than go back to the Legislature for clarification.  The term secondary retroactivity means that cases that are already in the system when a new law is passed generally get the benefit of the new legal provision.  But no one knows what the intent of the Legislature was specifically on this issue.  Cases that were settled before the law was passed this year and in prior years would not be affected by this new provision.  That is true retroactivity.  But this is certainly an area of ambiguity that should have been clarified. There may need to be guidance from the Division or the Legislature on this issue.  Does it apply to exams that took place before July 20, 2023?  Does it apply to all cases that were active in the Division but only those exams taking place after July 20, 2023?  We don’t know.

The amendment also has a new provision stating as follows: “A psychologist, nurse practitioner, or licensed clinical social worker who provides psychological treatment may be paid a fee, as permitted in accordance with the provisions of this section, for a report or testimony concerning that provider’s course of treatment of the injured worker in that provider’s role as a provider of treatment.”    This provision reflects the changing nature of medicine in New Jersey and in other states.  There are more and more cases involving care provided by psychologists, nurse practitioners and licensed clinical social workers.  In fact, many occupational medical providers retained by respondents have moved to expand potential medical providers beyond only physicians who have been graduated from medical school. 

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Ongoing Storm Rule Upheld Due to Plaintiff’s Inability to Establish Clear Endpoint to Precipitation
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N.J. Supreme Court Rules That Logs of Government-Related Emails From Elected Officials’ Personal Accounts Are Subject to Disclosure Under OPRA
Evidence
Court Determines Plaintiff’s Evidence of Black Ice “Conjecture” in Dismissing Complaint
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