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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 Crucial Importance of Examining Treating Medical Records and Employee Accident Forms

Many workers’ compensation cases involve unwitnessed orthopedic injuries.  Consider a case where an employee alleges that he or she felt sharp back pain around 11 a.m. in aisle 4 of the store while stocking shelves.  Suppose there is no security video.  Suppose further the employer provides treatment under Section 15 without admitting liability but still questions the claim.  How do adjusters and defense counsel investigate such a claim?  The answer lies in a thorough review of all relevant treating medical records as well as any employee accident form.

That brings us to the next question:  what exactly does one look for in a medical file or an employee accident form? There are a number of basic rules that apply to all cases involving unwitnessed accidents when it comes to assessing compensability and credibility.

First, look for inconsistencies on when the accident occurred and when the employee first felt pain.  In New Jersey the first treatment is usually rendered by an occupational facility, often followed with physical therapy and often a referral to an orthopedic specialist.  The starting point is always the very first medical record closest in time to the alleged incident.  Follow the trail.  Is the date of injury consistent in each record?  Are there long gaps in time between the date of the alleged incident and the first treatment?  Does the location of the pain remain consistent or do new injured bodily areas appear 45 days post injury?  These are all important indicators in evaluating compensability and credibility.

The next step is to focus on the mechanism of injury itself.  Again, start with the first date of treatment.  Don’t focus on the ultimate diagnosis three months later.  When a case is credible, the mechanism of injury is consistent.  The most important document to read in regard to evaluating the mechanism of injury is the employee accident form.  If the employer uses employee accident forms completed by the injured worker in his or her own handwriting, this is the most helpful document.  All employers have First Report of Injury Forms, but these forms are far less helpful than employee accident forms.  Why?  Because first report forms are usually completed by someone like a supervisor who only knows what he or she has been told.  The employee accident form has no potential for a “hearsay” objection. It is filled out by the injured worker close in time to the incident, so it stands to reason that the information will be the most accurate. By contrast, the first report form may not be filled out until weeks later.

The adjuster or defense lawyer should compare the description of the mechanism of injury on all forms and on all medical records.  Does the version of the injury vary markedly over time or does it remain the same?  If it remains the same, that helps make the claim credible.  If the employee states initially that she slipped but did not fall and felt back and knee pain, but a month later states that she slipped and fell hard on her left side and back, that is a significant discrepancy.  That fact alone may not win the case for the defense, but in conjunction with other facts, it may be pivotal.  For a physician, slipping but not falling may make a huge difference in causation analysis.

Practitioners must remember that from a legal viewpoint there are claims which may not be compensable because they may not arise from work.  That is why focusing on the precise mechanism of injury is critical.  So if the first medical records says, “employee was just walking on a flat surface and felt knee pain,” that claim may be dismissed as not arising from work or as an idiopathic event.  In New Jersey an accident requires an “unexpected event.”  Walking on a flat surface is something we all do all day long at work and at home.

There are often questions in medical records put to the injured worker by the medical professional about the cause of the injury.   A claim petition may be filed shortly after the alleged accident and may refer to a specific date of injury in the parking lot or in the store.   But suppose the first medical record reads something like this:  “Employee has had pain for a week. No trauma.”  That would be inconsistent with the allegations on the claim petition and may well justify a denial.

Defense practitioners must identify the specific location where the incident took place or when the first pain was experienced. If the employee accident form reads, “Employee lifted a machine in the store and felt immediate back pain,” but the first medical record reads, “Employee awoke at home with sudden back pain this morning,” there is a difference here.  The petitioner’s counsel may be able to reconcile the two statements or the two statements could point to a larger credibility issue.  These are the kinds of details that the defense must consider.   

Prior relevant medical records are hard to obtain in many states, but they often make a critical difference.  Some states like New Jersey have no specific discovery rules for getting prior records, but most doctors and physical therapists do ask about prior relevant medical conditions.  Example: “Have you ever had treatment to your left knee before this incident?”  If the employee answers in the affirmative, those records need to be obtained.  Judges will back that kind of discovery.  If the MRI reads, “Compare to prior MRI in 2019,” then the prior MRI must be obtained in order for the physician to opine that the present knee pathology arises from work. 

Sometimes the prior injury may have taken place 15 years ago and will have little relevance on the issue of compensability, but the records could still be relevant later for potential credits at the time of the award.  In contrast, there are cases where the employer may discover that the injured worker has been treating for a non-work injury in the weeks just before the work injury. This is a big red flag.  In that case, the reason for the employee’s pain may not be work activities at all but a continuation of a prior non-work injury.

It is worth highlighting one more point.  This practitioner has found it invaluable to read the notes of the physical therapists. Too often practitioners focus heavily only on the notes and diagnoses of the orthopedic specialist.  Those notes may be very good. However, bear in mind that the specialist generally sees the employee fewer times than the physical therapist.   Another point to consider is that more and more doctors use electronic medical reports that carry forward the same initial history throughout the chart.  Physical therapists spend a good deal of time with patients.  In one of my cases the physical therapist noted, “Employee’s knee is much worse today.  He was mountain climbing over the weekend and fell hard on his knee.”   That was found to be a new accident that broke the chain of causation.

Remember this point:  judges try to evaluate all the evidence and assess credibility of the injured employee, other lay witnesses, and medical witnesses.  They too are looking for consistency from both the employee in his or her case and the employer in their case.  Details matter to judges. There is no shaped mold that fits every workers’ compensation case.  Defending cases is not like baking.  But there is a logical process to use in studying every case. Unwitnessed accident cases can be very hard to defend, but a rigorous effort to obtain all relevant medical records and employee accident forms can make the difference between getting a win or a small Section 20 versus a substantial award.

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Appellate Division Holds That Public Employee Injured In Shared Parking Lot With Employees And The Public Is Not Covered For Workers’ Compensation Purposes And Can Sue Her Employer

When an employee is injured on the employer’s premises, including a parking lot owned and controlled by the employer, it is fundamental that such a claim is work related.  If this injury is caused by the actions of another employee, it is also fundamental that the two employees cannot sue each other or their employer in negligence.  Given these well-established rules, the published Appellate Division decision in Lapsley v. Township of Sparta, A-0958-19T3, (App. Div. January 29, 2021) is a real head scratcher.

Diane Lapsley worked as a librarian for the Township of Sparta.  The library sits within a municipal complex including three common-use parking lots, a baseball field, and the offices of the Sparta Township Board of Education. Petitioner could park in any of the lots.  On February 3, 2014 the library closed early on account of weather conditions, and petitioner’s husband came to pick Ms. Lapsley up.  Petitioner stepped off the library curb and walked about 18 feet into the lot when a township Public Works employee drove a snowplow into Mr. and Mrs. Lapsley.  Petitioner suffered serious injuries and required multiple surgeries. 

Ms. Lapsley brought a civil suit alleging negligence against the Township of Sparta and its Department of Public Works.  The Township moved to dismiss the suit because the exclusive remedy for an injured worker arising out of work is in the Division of Workers’ Compensation.  The case eventually moved to the Division of Workers’ Compensation for a determination of compensability. The Judge of Compensation found that the injury was compensable. The reasons were sound:  the Township owned, maintained and controlled the parking lot where the accident occurred.  

Petitioner appealed and argued that her injury was not compensable because it did not arise from her employment and because she was not engaged in any task for her employer’s benefit when the injury occurred.  The Appellate Division reviewed the relevant law in N.J.S.A. 34:15-36, which states that “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 ….”  This is the provision that the Judge of Compensation properly relied on.

Nonetheless, the Appellate Division reversed the decision of the Judge of Compensation and found that Ms. Lapsley was not within the scope of her employment when she was injured.   Even though the Court acknowledged that the Township owned the parking lot next to the library where petitioner was injured, the Court based its decision on certain considerations seemingly never cited before by any other court.  The Court said, “It was stipulated that petitioner was off-the-clock at the time of the accident and exited the library premises.”  But the Supreme Court decision in Ramos v. M & F Fashions specifically noted that New Jersey has no clock in or clock out rule.  Employees often linger at work long past the end of their day and arrive at work long before they may clock in, but nonetheless they are covered for purposes of workers’ compensation once they reach the work premises unless they deviate from employment.

The Court next relied on another principle not found within the New Jersey Workers’ Compensation Act. “Library employees were not given any instructions about where in the subject lot to park or indeed whether to park in that particular lot, on the street, or anywhere else in town where parking may be available.  Nor were library staff instructed on the manner of ingress or egress.”  To this practitioner’s knowledge, there are no published cases that have ever restricted the premises rule to a need to instruct employees about parking in public lots.  This petitioner was on the adjacent parking lot to the building where she worked when she was injured. The Court seems to be saying that since the Township did not require petitioner to park in that particular lot, and she could have parked elsewhere, her injury was not compensable.  This seems illogical.

The last point which the Court made was that the lot was shared with other municipal employees and members of the public alike. The Court postulated, “Thus, the stipulated facts established that petitioner’s employer exercised no control of its employee’s use of the subject lot, that control being a critical element of the premises rule’s application.”  This comment misses the emphasis in the statute on the words, “excluding areas not under control of the employer.”  It is not the employee’s use of the lot that matters but the employer’s control of the lot that the employee is injured on.

This is a reported decision and therefore it must be studied by practitioners and evaluated.  What this decision meant is that a badly injured worker was able to get around the exclusive remedy provision in order to sue her employer and make a much greater financial recovery.  From the employer standpoint, and public employers in particular, this case would expose employers to extremely costly civil litigation.  The exclusive remedy should have been applied here, and the Judge of Compensation was clearly correct.

From the employee standpoint, the case raises a number of alarming questions.  Does it mean that New Jersey employees lose workers’ compensation coverage when they “clock out?”  The Supreme Court has already stated that clocking in or out is not a precondition for employment coverage.  Does it mean that injured workers lose coverage when they are injured on a public lot simply because the public lot is shared by fellow employees and the public?  All municipal parking lots are shared by employees and the public.  Why would that matter?  Does it mean that a public employer is not liable for injuries in its own parking lot if it has not instructed employees on the manner of ingress or egress?   

In short, for both employers and injured workers, the Lapsley case is singularly problematic. Its rationale does not square with any prior decisions.

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Appellate Court Rejects Compensability Of Assistant Prosecutor’s Fall En Route To Coffee Shop

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

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

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

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

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

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

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

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

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Appellate Court Rules That There Is No Section 40 Lien Deduction For Petitioner’s Share Of Counsel Fees Paid In Workers’ Compensation

We all know certain events are going to happen every year:  Alabama is going to play for the national football championship, your property taxes will certainly rise, Tom Brady will be in the Super Bowl, and most likely of all – someone is going to challenge the way Section 40 liens are calculated in New Jersey.  This year the lien challenge has already occurred in Panckeri v. Allentown Police Department, No. A-2015-19 (App. Div. March 2, 2021).

Police Officer Daniel Panckeri was injured on April 15, 2012 rendering assistance at the scene of a motor vehicle accident. While attempting to stop one of the cars that was rolling into oncoming traffic, Panckeri suffered injuries to his left foot that resulted in an award of thirty three and one third percent permanent disability.  He reopened the case two years later and received an increase to forty percent of the foot.

Panckeri also settled a third party suit for $99,000 and respondent asserted its full lien for the gross amount of its workers’ compensation payments: $16,547.13 for temporary disability benefits, $16,287.05 in medical benefits, $16,560.01 in permanency benefits for the first settlement, and $4,323.09 for the reopener settlement.  That meant that the Township was entitled to be reimbursed two thirds of all these payments minus $750 in costs because the third party settlement amount was higher than the total amount of workers’ compensation payments.

The issue in this case centered on the fees petitioner paid his attorney and whether they should be included in the lien.  In the original workers’ compensation case the Judge of Compensation assessed against petitioner $1,524 for Panckeri’s share of counsel fees and costs and another $844 for Panckeri’s share of counsel fees and costs on the reopener claim.  Panckeri argued that the workers’ compensation lien should not apply to his payments of counsel fees and costs on the two cases because he never received those funds.  He argued they should be deducted before respondent calculates its lien.

The Judge of Compensation, Christopher B. Leitner, ruled in favor of the Allentown Police Department and held that there should be no reduction of $2,368 for the two combined awards of counsel fees and costs assessed against petitioner because the New Jersey statute does not sanction any such exception.  The judge ruled that the statute is designed to avoid double recoveries, and the only cost allowance allowed by the statute is $750.  Judge Leitner further observed that the Act is “silent’ with regard to costs incurred in the workers’ compensation matter by the petitioner.  Finally, Judge Leitner observed that the Legislature amended N.J.S.A. 34:15-40 in 2007 to raise the cost allowance from $250 to $750 and specifically “examined exemptible fees and costs,” choosing “only to increase the deductible amount,” and “not to include any new interpretation.”

On appeal Panckeri argued that the attorneys’ fees and costs he paid in the workers’ compensation case were not made for his “benefit or enjoyment” and therefore were not “compensation payments.”   The Appellate Division did not agree. “We affirm substantially for the reasons articulated by Judge of Compensation Christopher B. Leitner, in his thoughtful and thorough written decision.”

The Appellate Division observed that the case relied on by Panckeri, namely Kuhnel v. CNA Insurance Cos., 322 N.J. Super. 568 (App. Div. 1999) is not really on point.  That case held that a Section 40 lien does not include rehabilitation nursing services in most cases and does not include the respondent’s portion of petitioner’s attorney’ fees nor expert fees for defense IMEs.  The Court concluded that Kuhnel did not address at all whether petitioner can deduct his portion of fees and costs paid in the workers’ compensation case.  Lastly, the Court said that the Legislature could have amended Section 40 in 2007 to make such an adjustment, but it chose not to do so.

New Jersey Supreme Court Rules That Employee Volunteer at Family Fun Day Event Was Performing Work Duties And Was Not Engaged In A Social Or Recreational Activity

In 1979 the New Jersey legislature adopted a change to N.J.S.A. 34:15-7 to add that recreational and social activities are not compensable unless the injured worker could prove that the activity promoted a benefit to the employer beyond improvement of health and morale.  Prior Supreme Court cases have already made clear that if an employer compels attendance at a social or recreational event, then an injury during a social or recreational activity will be found to be compensable.  But it has taken over 40 years for a case to get to the Supreme Court which defines what constitutes a social and recreational activity in the first place, and what sort of activities satisfy the standard of proof of a benefit beyond improvement of health and morale.  Last week’s Supreme Court decision in Goulding v. NJ Friendship House, Inc., (A-48-19) provides very helpful answers.

The key facts are simple.  Goulding was an employee of North Jersey Friendship House, Inc., which is a non-profit that assists individuals with developmental disabilities.  She worked Monday to Friday as a chef/cook, and she cooked meals for Friendship House’s clients, as well as teaching vocational classes.

Goulding was injured on Saturday, September 23, 2017 when Friendship House hosted its first “Family Fun Day.”  It planned to host this event annually going forward. The stated purpose of the event was to offer a fun and safe environment for the clients of Friendship House and their families.  As such, Friendship House asked for volunteers to work the event.  Employees were under no obligation to attend the event.  Goulding volunteered.

Goulding arrived between 8:30 and 9:00 a.m. and started setting up for breakfast.  After breakfast was concluded, she began preparing for lunch.  She injured her ankle when she stepped in a small pothole in the parking lot and fell.  Several people assisted her in getting up and helping her ice her foot.  She continued working, helping the other cooks prepare lunch.  She never participated in any of the games or activities at the event, and she left around 2:30 p.m.

A claim petition was filed as well as a motion for medical and temporary disability benefits. Goulding sought surgery to repair her injured ankle as well as temporary disability benefits from the date of her injury.  Both the Judge of Compensation and the Appellate Division found against petitioner.  The Judge of Compensation ruled that Family Fun Day was a social and recreational event. The Judge found that there was no proof that this event “was a regular incident of employment.”  The Judge observed that petitioner volunteered to participate and was not pressured to do so. Finally, the Judge found that there was no proof of a benefit to Friendship House beyond improvement of health and morale.  For much the same reasons, the Appellate Division affirmed.

The New Jersey Supreme Court granted certification.  Goulding argued before the Supreme Court that she was there to work and was never engaged in any recreational or social activities. She also argued that even a first annual event can be considered to be a regular incident of employment.  She added that there was a benefit beyond improvement of health and morale for Friendship House because the event furthered the mission of the non-profit in providing services to clients and their families. 

For its part Friendship House argued that the law does not apply to those who truly volunteer and have no expectation of financial consideration.  Friendship House also argued that this situation was unlike those cases where the Supreme Court found coverage because an employee was compelled to perform some task.  There was no compulsion in this case. Finally, Friendship House argued that this was not a fundraiser and there was no benefit to Friendship House beyond improvement of health and morale.

The Supreme Court first observed that just because an activity is non-compulsory does not mean that it must be considered a social or recreational activity.  The Court found that Goulding was working at the event and as to her, the event was not a social or recreational activity. The Court said, “In contrast to prior cases where the employees were participating in the social or recreational activity – playing softball, golfing, or attending a picnic – Goulding was facilitating Family Fun Day by cooking and preparing meals for clients of Friendship House, just as she does in her regular employment. Accordingly, Family Fun Day, as to Goulding, was not a social or recreational activity.  And, because Friendship House has advanced no other applicable exception under the Act, Goulding’s injuries are compensable.”

Next, the Court tackled the language of the statute itself.  The Court concluded that even if Goulding’s activities were considered social or recreational, she met the statutory exception.  The Court viewed the event as a regular incident of employment because it was sponsored by Friendship House and because it was planned to be an annual event.  The more difficult question was whether there was a benefit to Friendship House beyond improvement of health and morale. The Court highlighted the following points:

  • There was nothing in the trial record suggesting employees and their own families were invited to attend as guests;
  • The event’s purpose was “celebrating clients or members, their families, and the community.”
  • Friendship House received the “intangible benefits” of promoting itself and fostering goodwill in the community
  • The experience enjoyed by the clients and their families constituted “a separate benefit in and of itself.”

There is a fundamental problem with the Court’s primary holding that Ms. Goulding was working during this event and not engaging in a social or recreational activity.  The logical conclusion of the decision that Goulding was working at the Fun Day event brings into play the Fair Labor Standards Act. The Court observed that Goulding did not participate in any fun activities but it failed to address the elephant in the room — whether Friendship House was required to pay Goulding and other non-exempt cooks like her who were doing their regular jobs.  If they were truly working, of course they would have to be paid.

More than likely Ms. Goulding volunteered to cook and probably had no expectation of being paid. She probably felt her contribution to the event would be better served by cooking and interacting with clients in that manner, as opposed to playing games with clients. She could have changed her mind at any point or she could have done both.  The case will have the negative effect of deterring employers from hosting positive events like this Family Fun Day event because the employer will have to figure out ahead of time who will be working and who will not be and then pay those volunteers who were considered to be working.  Employers will also have to keep accurate time records in order to make correct payments.

The Court’s alternative analysis was the right one.  Petitioner was able to meet the statutory exception to the law in N.J.S.A. 34:15-7.  In this practitioner’s view, petitioner was involved in a social and recreational activity and was not working.  She proved to the Supreme Court that there was a benefit to Friendship House greater than improvement in health and morale.  The Court therefore concluded that she should therefore be covered for workers’ compensation purposes.  This analysis avoids the FLSA issue for future employers who host events like this.

For employers, practitioners and judges, the focus should be now on whether the goal of the employer-sponsored activity is targeted to serving clients and promoting business opportunities as opposed to promoting health and morale of the employees through an employee softball game or an employee picnic, for example.  If the objective is to reach out to the community at large and promote goodwill or company advertisement of its services, this case suggests that an injury to a volunteer during such an event will be considered compensable for workers’ compensation purposes. If the purpose is just to promote health and morale of employees, the activity is not compensable.

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New Jersey Assembly Committee Votes To Approve Hiring Preference Bill As Part of New Jersey Workers’ Compensation Act

Employers need to be aware of an Assembly bill that would turn the workers’ compensation statute into an employment protection law.  The Assembly Labor Committee recently passed A-2617 sponsored by Assembly members Murphy, Benson, and Reynolds-Jackson.  The bill will require an employer with at least 50 employees to provide a hiring preference to an injured employee who has reached maximal medical improvement, is unable to return to his or her former position, but can perform the essential duties of an existing, unfilled position.

This bill is problematic for employers for many reasons: first, it attempts to turn a statutory benefits law – the New Jersey Workers’ Compensation Act — into an employment protection statute.  Second, there are already labor laws in New Jersey that protect employees, such as the New Jersey Law Against Discrimination and the ADA.  Third, there is no explanation of the circumstances in which employers can reject the preference or prove it should not apply.  In fact, there is no mention that the employer has any right whatsoever not to provide a job to someone who fits the criteria noted above.

Suppose the injured employee is less qualified than another applicant for the open position. Does the injured worker’s status as one who has reached maximal medical improvement trump the more qualified applicant’s credentials? Suppose the outside applicant also has a disability and is more qualified for the job? Further, in what court would the law be enforced?  New Jersey workers’ compensation judges do not have the power to enforce employment laws.  Clearly, claimants cannot prosecute failure to rehire claims in workers’ compensation court.

The Workers’ Compensation Act provides for medical, temporary and permanent partial and total disability benefits. That is all the statute has ever been intended to do.  If the law is only enforceable in civil court, why is this law not being considered as part of the NJLAD?  One overriding question employers will have is what does this proposed bill do that the NJLAD and ADA do not already do? This proposed bill also fails to mention anything at all about requests for reasonable accommodation, the need for an interactive dialogue or defenses of the employer such as undue hardship.  In that sense, this proposed bill seems to override existing disability discrimination laws.

Upon committee approval of the legislation, Murphy, Benson and Reynolds-Jackson issued the following joint statement:

“Work related injuries can be traumatic and devastating. No injured employee should be left without options for work. This bill will ensure that those who are unable to return to their previous position will still be able to put their efforts towards helping in a different role for their employers.

 “Those who have been injured in their place of work should not be cast aside with unemployment if they cannot resume their previous position. These people are still valuable employees who can contribute to their employers and company.

“The transition back to work after suffering an injury can be difficult. It is important for companies to offer ways for these employees to continue to contribute in the workplace, provide for their families, and resume successful careers.”

These sentiments are worthy of consideration, yet one must ask the committee members why would an employee who has a work-related spinal condition and reaches maximal medical improvement be entitled to greater protection than an employee who has the same spinal condition from a congenital cause and reaches maximum medical improvement?  Why should employment rights be dependent on workers’ compensation status?  The answer is they shouldn’t be and that the bill makes no sense.  Anyone who has a disability, be it work or non-work related, has equal rights under existing state and federal laws to reasonable accommodation. The committee statements stunningly suggest that that New Jersey Law Against Discrimination — one of the most progressive in the nation — has suddenly become outdated and inadequate.  This will come as news to employers and employment lawyers.

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Appellate Division Affirms Dismissal of Occupational Tinnitus Claim

There are not many Appellate Division decisions on occupational hearing loss and tinnitus, which is why the decision is of interest in Donzella v. SG Performance Plastics Corp., A-2408-19T3 (App. Div. January 12, 2021). 

The case involved an employee of SG Performance who worked at its manufacturing warehouse in August 2015.  He and 30 other employees worked around multiple machines.  He wore eyeglasses and gloves but no hearing protection.

One month after beginning his employment, Donzella went to St. Joseph’s University Medical Center in Paterson and stated that he was very dizzy.  He was given Meclizine for treatment of motion sickness and vertigo.   He never returned to work at SG Performance but did eventually get a job in 2017 at the State of New Jersey Water Commission.

Petitioner saw Dr. Festa, an ENT physician, who noted petitioner’s hearing levels were normal.  Next he saw another ENT, Dr. Samadi, who diagnosed bilateral tinnitus and sensorineural hearing loss.  He later added a diagnosis of a deviated nasal septum. 

Petitioner filed a claim petition on November 10, 2015 for his dizziness, vertigo and hearing loss.  He amended the CP nearly two years later to allege occupational exposure to excessive noise from August 3, 2015 through September 30, 2015.  Petitioner was seen by Dr. Gerald West, another ENT, who diagnosed tinnitus due to extreme noise exposure in 2015.  Dr West estimated 25% permanent partial disability for tinnitus but noted that the petitioner’s hearing was within normal limits.

Respondent retained Dr. Steven Freifeld, who observed that petitioner still complained of bilateral hearing loss and sensitivity to noise as of September 2018.  However, his dizziness had abated.  Dr. Freifeld felt that there was no hearing loss and found that his symptoms were not work related.

The experts in this case did not testify but their reports were introduced into evidence in lieu of testimony.  This procedure is known as a trial on reports.  The Judge of Compensation did not find petitioner’s testimony to be credible on certain points.  The judge commented that petitioner described the machines as being loud but admitted that he could hear directions and instructions from his supervisor if the supervisor raised his voice.  Furthermore, the judge observed that neither Dr. Festa nor Dr. Samadi commented on causation between work and his symptoms. Finally the judge said, “there was no data, study or reference of any kind to suggest that this condition was caused by the limited noise exposure.”

In ruling for the respondent, the Judge of Compensation found Dr. Freifeld to be the most credible of all the ENT physicians in this case.  The judge accepted Dr. Freifeld’s opinion that petitioner had vestibular neuronitis, a condition that can happen to someone at any point in time.  The judge found no evidence causally relating this condition to work.

The Appellate Division deferred to the expertise of the Judge of Compensation and affirmed the dismissal of the case because there was ample evidence to support the decision below.  The case underscores that in any occupational hearing loss or tinnitus case, there must be a record established of specific work conditions, such as decibel levels, in tandem with consideration of medical studies or data connecting fairly common conditions like tinnitus or noise sensitivity to the specific work conditions.

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Adverse Reactions to Vaccinations: Current Issues in Workers’ Compensation

As the Moderna and Pfizer COVID-19 vaccines begin to be administered to the population in the United States, many clients have asked whether an adverse reaction to the COVID-19 vaccine would be considered compensable if the employer were to offer a voluntary vaccination program at some time in the future.  Many employers currently offer such programs during flu season.  This is an important question but unfortunately there is precious little case law to guide us in New Jersey and in most states.   

The last published case in New Jersey on the compensability of an adverse reaction to a vaccine goes all the way back to 1949 in Saintsing v. Steinbach Company, 1 N.J. Super. 259 (App. Div. 1949). The case involved an employer which sent out a notice strongly urging employees to get the smallpox vaccine.  The notice read, “On April 23, 1947, we will provide free inoculation to all those who choose to be immunized against smallpox.  We are sure that everyone is aware of the current spread of smallpox and we strongly urge that you take advantage of this service, which we are glad to provide in the interest of your health.”

Most of the company employees, including the petitioner, were vaccinated, but petitioner developed a reaction that caused her to lose time from work and to suffer partial permanent disability.  The respondent’s personnel director testified at trial that this vaccination offer was made to promote morale, create a happier environment for employees and to reduce absenteeism.  He stressed that the vaccination was entirely voluntary.  The Judge of Compensation ruled that the adverse reaction was compensable.  The Monmouth County Court reversed in favor of the employer, but the Appellate Division reversed again in favor of the employee.  The Appellate Division focused on two factors:  one, that the employer strongly urged employees to be vaccinated, and two, the mutual benefit doctrine.  “We have concluded that the activity was mutually beneficial, that the risk was reasonably incident to the employment and that the petitioner’s injury resulted from an untoward event or accident arising out of and in the course of her employment….”

The better argument is that adverse reactions to voluntary vaccination programs offered by employers are not covered under workers’ compensation and that Saintsing has been effectively overruled by subsequent statutory changes.  First, the New Jersey Workers’ Compensation Act underwent a wholesale revision in 1979.  There is no mention of the mutual benefit doctrine in the modern statute, and there are very few post-1979 cases that discuss the doctrine.  The court in Saintsing based its decision largely on the mutual benefit doctrine along with a “strong urging” by the employer to participate in the program.  Before 1979, there were literally scores of cases whose outcome depended on the mutual benefit doctrine.  In fact, the Saintsing case has not been discussed by any published case in New Jersey since 1979.

More importantly, a new provision was added in 1979 to N.J.S.A. 34:15-7 which moved courts away from the nebulous mutual benefit doctrine.  The law adopted in 1979 states that social activities are not compensable unless the employee can show the activity is a regular incident of employment and promotes a benefit beyond improvement of health and morale.  The main purpose an employer would have in offering a vaccination program to employees is precisely improvement of employee health and morale.  Of course there may be some mutual benefit to the employer but that is not the test in this statute. The injured employee would have to show that a critically important public health program is really focused on some other benefit to the employer beyond the obvious one:  making sure its employees are healthy and not spreading a highly contagious and deadly virus to others.  Until a reported decision comes down, no one can know for sure how the Appellate Division or New Jersey Supreme Court will rule on this issue.

What if the employer mandates that an employee must get the vaccine as a condition of continued employment, and then the employee develops an adverse reaction?  The mandatory nature of the program would likely result in a ruling for petitioner.  There are a number of New Jersey Supreme Court cases that have held that employees who are required to undertake certain actions that would otherwise be non-compensable and then are injured performing those actions are covered for purposes of workers’ compensation.  The theory of these cases is that compelling an employee to perform an action renders the action compensable.

When a vaccine is not compensable in workers’ compensation, are there any benefits available to someone who develops an adverse reaction to the vaccine?  The answer is yes.  There are two important federal programs that assist such individuals. The first is the National Vaccine Injury Compensation Program.  Petitions must be filed, with limited exceptions, within three years after the first symptom of the alleged vaccine injury, or within two years of the death and four years after the first symptom of the alleged injury the resulted in death.

The other program is called the Countermeasures Injury Compensation Program.  Compensation under this program includes unreimbursed medical expenses that health insurance did not cover, lost employment income, and a survivor death benefit.  A countermeasure is a vaccine, medication, device, or other item that is used to prevent, diagnose or treat a public health emergency or a security threat.  COVID-19 is among the specific public health threats covered in the program.

It is important to realize that there is one and only one statutory provision in the New Jersey Workers’ Compensation Act that applies to injuries arising from the administration of a vaccine.  This statute is part of the 2019 Thomas P. Canzanella Law, but it applies solely to first responders and public safety workers.  The statute can be found at N.J.S.A. 34:15-31.6.  It reads:  “Any injury, illness or death of any public safety worker, resulting from the administration to the worker of a vaccine including, but not limited to, smallpox vaccine, to prepare for, or respond to, any actual, threatened, or potential bioterrorism or epidemic, as part of an inoculation program in connection with the worker’s occupation, geographical area, or other category that includes the worker, or resulting from the transmission of the disease from another employee or member of the public inoculated under the program, is presumed to arise out of and in the course of the employment and all care or treatment of the worker, including testing, diagnosis, surveillance and monitoring of the worker’s condition, and all time during which the worker is unable to work while receiving the care or treatment is compensable under the provisions of R.S. 34:15-1 et  seq.”  As with other statutory presumptions, the employer can rebut the presumption by a preponderance of the evidence standard, meaning proof by more than 50% that the adverse reaction is not work related.

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Appellate Division Holds Insurance Carrier Failed to Prove Proper Cancellation of Policy

It remains very difficult for New Jersey insurers to cancel policies in workers’ compensation.  Strict compliance with N.J.S.A. 34:15-81 is required because the state’s policy favors continuation of insurance coverage. The decision in Pierson v. Travelers Indemnity Company, A-3838-19T2 (App. Div. December 7, 2020) illustrates the specific problem of cancellation related to non-payment of an audit increase of premium.

Nelson Pierson alleged he was injured at Tremarco Brothers on May 7, 2016.  The carrier moved to dismiss the workers’ compensation claim petition based on the cancellation of Tremarco’s insurance coverage.  The coverage at issue began in March 2014.  Tremarco applied to the New Jersey Workers’ Compensation Plan for assignment of an insurance company for workers’ compensation coverage.  Travelers was assigned and provided coverage for 2014-2015.  It also issued a policy for 2015-2016.

The problem in this case began when the carrier requested an audit during the second policy term.  The carrier said that Tremarco failed to cooperate with the audit.  The result of the audit led to an amount almost double the previously billed premium.  In the pivotal allegation of the case, the carrier alleged that it sent on July 6, 2015 a notice that declared the policy would be cancelled on July 24, 2015 if Tremarco did not pay the additional premium.  When Tremarco failed to pay the additional premium by July 24, 2015, the policy was cancelled.

Travelers produced as its witness Timothy Lukes, a senior account manager underwriter, but Lukes was not actually the individual who handled the Tremarco account. Therefore Lukes’ testimony was limited to discussion of how the carrier conducts premium audits and cancellation of policies.  The Judge of Compensation noted that Lukes was “unable to explain specific actions or the reasons for the actions taken by Travelers on the Tremarco account.”  The individual who actually handled the Tremarco account was not called to testify.

It was the position of the carrier that the July 6 notice would have advised Tremarco that the policy would be cancelled on July 24 unless the additional premium were timely paid.  The Judge of Compensation felt that this testimony was at odds with another statement Lukes made, namely that when an additional premium after an audit is being sought, the notice would not ordinarily state that a failure to pay would result in cancellation, only that the failure “can affect your insurability.”

The Judge of Compensation concluded that the cancellation was not clear and unambiguous.  The carrier appealed, and the Appellate Division affirmed the conclusion of the Judge of Compensation, rejecting the cancellation. The Appellate Division found it significant that the carrier never produced a witness with personal knowledge of the mailing and receipt of the cancellation notice. The Appellate Division recognized that “facts about mailing may be proven with evidence of an office custom,” but the Court did not believe that sufficient evidence of office custom was proffered. The Court concluded that ultimately it was not clear what the July 6 notice actually said.  That fact more than any other doomed the cancellation.

The case shows just how hard it can be to effect cancellation of a policy in New Jersey even when an insured refuses to participate in an audit of its premium and then fails to make timely payment.  The public policy in favor of continuation of coverage is so powerful that it can only be overcome with absolute precision with respect to every element of N.J.S.A. 34:15-81, and any variation whatsoever can result in voiding an otherwise legitimate attempt to cancel a workers’ compensation insurance policy.

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The Crucial Difference Between Impairment And Disability In Workers’ Compensation

Understanding the difference between “impairment” and “disability” is important in properly reserving files and in defending workers’ compensation cases.  Many people use the terms synonymously, but there is an important legal distinction.  An impairment refers to a problem with the structure or organ of the body.  Disability focuses on the functional limitations that are caused by the impairment with regard to performing activities at work or outside work.

This may sound like a subtle distinction but it makes a difference in the value of workers’ compensation cases and the validity of certain IMEs.  Two employees who are the same age can have the same injury, perhaps a medial meniscus tear requiring surgery, and both may file a workers’ compensation claim seeking an award of partial permanent disability for the leg.  Employee A has unsuccessful knee surgery and has had to give up her favorite passion of running.  Employee B has successful knee surgery and is able to pursue her favorite passion of running.  She has run several 5k races as fast as ever and even a few half marathons.  They each had the same impairment of the knee but would they receive the same award in court?  If you said no you are correct because they don’t have the same level of disability.

The New Jersey Supreme Court explained in Perez v. Pantasote that the employee must not only show an injury which restricts the function of the body or an organ (an impairment) but must also show either a lessening to a material degree of working ability or “a substantial interference with the other, non work-related aspects of petitioner’s life” (the disability).

What are the implications of this distinction for medical experts, adjusters, lawyers and judges? Let’s start first with medical experts.  If a medical expert is going to provide an opinion in an IME that an injured worker has a disability of a certain percentage, the expert has to consider how the injury affects the worker’s work life or non-work life.  Last week I read an IME from an often-used petitioner’s orthopedic expert who concluded that an employee had multiple disabilities from a significant accident.  When you added up the various disability estimates, they totaled over 100%.  There were several significant impairments – fractures and tears.  But on closer inspection of the report, it was noteworthy that the medical expert never asked whether the employee had ever returned to work (he had), whether the injury caused a reduction in hours (it had not), whether the individual had reduced non-work activities, whether the individual had given up hobbies or exercise, and indeed whether this accident had affected the worker’s function in any way whatsoever.  The expert’s disability estimates were in essence meaningless because he knew nothing about the man’s life before the accident and after he reached maximal medical improvement.

The problem with this particular IME was that the doctor focused only on impairment but not on disability.  He did observe that the accident caused daily pain and that cold and damp weather aggravated discomfort. But that is not enough.  Very often IME physicians evaluate medical records instead of the individual.  Examiners on both sides make this mistake from time to time. The IME physician may do a great physical examination, a splendid summary of the treating records but still neglect to ask questions about the effect of the work injury on the examinee’s work life or non-work activities compared to the level of function before the injury occurred.

What are the implications for adjusters and defense lawyers?  When new files come in, it is critical to reserve the case for likely exposure.  The medical records are reviewed, particularly objective studies like MRIs and operative reports, and a reserve is established based on medical impairment. That is all we have at the initial stage.   It is too early to know the effect that this accident will have on work or non-work life because no one really knows at the outset whether the worker will return to work, or even return to work and get a second job, or return to doing all his or her former non-work activities. So the initial focus is limited to impairment.  As the case progresses, the focus needs to shift to the level of function of the injured worker in all aspects of life, namely the overall disability.  That is why it is helpful to obtain prior medical records and to investigate through the employer what the employee’s activity level was before the accident. 

The New Jersey workers’ compensation system has a major flaw in allowing virtually no discovery, so often the only way to find out about level of function outside work is through social medial searches or field surveillance.  An IME performed after MMI has been reached is also helpful when the IME doctor asks the right questions.  Did the worker golf before the accident but now cannot golf any longer due to severe back pain?  Did the worker recover so well that she or he added a part-time construction job on top of the original job?  Is the worker now unable to do overtime work?  Once the lawyer or adjuster has this information, very accurate reserves for disability awards can be established.

For judges this distinction between impairment and disability is always important.  Every good Judge of Compensation understands that the award is not based on a diagnosis.  Judges don’t award disability based on operative reports or MRI results.  They try to get a sense of the effect of the injury on the injured worker’s work life and non-work life, and they factor that information into the value of the case.  A judge will have extensive knowledge and experience with workers who undergo surgery for complete rotator cuff tears, for example, but the judge wants to know what the impact of this injury and surgery was in this particular worker’s case.   Disability awards are case by case.

Take the hypothetical of an athlete like Cody Bellinger, for example, the Los Angeles Dodgers 2019 National League MVP. In the recent 2020 World Series, Bellinger hit a home run and after he touched home plate, he high fived a teammate, causing his shoulder to suddenly dislocate.  This had happened to him before, so he popped his shoulder back into place and stayed in the game.  Following the World Series, he had surgery to repair the shoulder.  If he were to file a workers’ compensation claim petition under New Jersey law, what would the Judge ask?  What would be relevant for an athlete?  The Judge of Compensation would consider whether he was able to recover the ability to throw a ball from center field to second base on the fly, hit home runs like he used to, and raise his arm overhead to catch a fly ball.  The judge would not base the award solely on the fact that he had a shoulder dislocation but on the impact of his impairment on his career and non-work activities.  If the injury turned out to have no impact on any of his life functions, the award could be as low as zero. 

This explains why it is ultimately insufficient for lawyers to say to clients that an operated rotator cuff tear is worth 25% permanent partial disability in New Jersey.  That statement tends to equate impairment with disability. The award in each case depends on the extent of recovery, the ability to restore pre-injury functions, and the ability to function at work and at home.  Some people with rotator cuff tears have minimal issues post-surgery, and their award may be far less than 25%.  For others the injury could end a career and be worth far more than 25%.   The lesson is that workers’ compensation practitioners need to focus heavily on the level of function both before the accident and after treatment has ended.  For practitioners and IME doctors, a thorough investigation of pre injury and post injury functions is essential in every case in order to accurately assess disability.

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