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McNeil v. Township of Ewing et al.

Client: NIP Management Services, LLC,
Claims Administrator for the Garden State Municipal Joint Insurance Fund

Court:  Mercer County Superior Court

Trial Attorney:  Christopher J. Carlson, Esq.

Plaintiff brought a claim alleging a variety of very serious injuries to several parts of her body which she attributed to a minor motor vehicle accident where a police officer in the course of his employment lightly struck the rear of the vehicle in which Plaintiff was a passenger.  Similar bodily injury claims asserted on behalf of her two children were dismissed via a Motion for Summary Judgment relying upon the Tort Claims Act, but Plaintiff’s claim was permitted to proceed to trial.  Liability was accordingly stipulated, with the issue of damages to be decided by the jury.

After thorough cross-examination of Plaintiff which called into question her version of the accident and what allegedly happened to her body within the vehicle, and thus her credibility, the jury was shown vehicle “damage” photographs and heard the testimony of the vehicle owner, who acknowledged that the vehicle was never repaired after the accident.  Thereafter, the defense relied upon the report and testimony of an accident reconstructionist and a biomechanist, arguing that- contrary to her testimony- the minimal impact would not have subjected Plaintiff’s body to forces severe enough to cause her significant and permanent injury, which Plaintiff was required to prove in order to prevail under the Tort Claims Act, applicable to this matter given the status of Defendants as a municipal entity.

Thorough cross-examination of Plaintiff’s medical expert, combined with credible testimony from the defense medical expert, presented the jury with evidence that many of Plaintiff’s alleged injuries were at least to some extent pre-existing, and completed the presentation of a defense that comprehensively refuted each aspect of Plaintiff’s claim.

The jury accordingly returned a verdict for our clients, finding that Plaintiff’s alleged injuries attributable to the accident did not satisfy the Tort Claims Act.

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Richard Marconi v. United Airlines

Client: United Airlines

Trial Counsel: Prudence M. Higbee, Esq. 

The petitioner, a New Jersey resident who works for the respondent as an aircraft mechanic at the Philadelphia International Airport in Pennsylvania, filed two claim petitions. Claim Petition 2016-31488 alleges that on January 31, 2015 the petitioner injured his left hip while changing brakes, tires and helping a co-employee with an engine job. The respondent admitted this claim but alleged that it made full payment of benefits to petitioner under Pennsylvania workers’ compensation law. Claim Petition 2016-31489 alleges that petitioner’s repetitive duties as an aircraft mechanic working for respondent during the period commencing from January 1, 1986 through the present caused injury to his left hip. Respondent denied compensability of this claim leaving petitioner to his proofs.

Respondent filed a Motion to Dismiss both claims for Lack of Jurisdiction arguing that although petitioner is a New Jersey resident the injuries alleged in the Claim Petitions occurred in Pennsylvania where the contract of hire was also executed. Of note, the New Jersey’s Workers’ Compensation Act does not have an extra-territoriality jurisdiction provision and instead requires consideration of the particular facts of a case.

In finding for the respondent the trial judge noted six possible grounds for asserting applicability of a particular state’s compensation act: 1) place where the injury occurred; 2) place of making the contract; 3) place where the employment relation exists or is carried out; 4) place where the industry is localized; 5) place where the employee resides; or 6) place whose statutes the parties expressly adopted by contract.

The trial judge found that the petitioner’s contact with New Jersey in performing his job are not material in nature, nor is there any connection to the injury. Although the Newark, New Jersey Airport is a “hub” with vastly more mechanics than Philadelphia, the petitioner only called there for advice and at most “once every couple of months.” The petitioner could not recall ever working in the Newark, New Jersey airport and he never picked up any parts in Newark.

After reviewing those factors the trial judge ultimately noted that the alleged injuries occurred at the petitioner’s place of employment in Pennsylvania where the contract of hire was also signed. The Judge noted that the localization of the industry noted in prong four has never been found to confer jurisdiction on a respondent. After acknowledging a present dispute among the Appellate Division panels, the trial judge found that although the petitioner did reside within New Jersey that residency alone is insufficient in conferring jurisdiction. The petitioner has subsequently filed an appeal of the trial judge’s findings. That appeal is presently pending before the New Jersey Superior Court Appellate Division.

 

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Emily Manuel vs. St. Barnabas Health

Client: St. Barnabas Health

Trial Counsel: Christina M. Adinolfi Shea, Esq. 

Capehart Scatchard recently prevailed at trial in the matter of Emily Manuel v. St. Barnabas.  In that case the court bifurcated the trial to first address whether the injury sustained by the petitioner was due to an accident that arose out of the course and scope of her employment at St. Barnabas.  The facts of the case were largely undisputed.  On the evening of December 30, 2015 the petitioner was employed by the respondent as an emergency room nurse.  The petitioner drove to work and parked at one of two adjacent lots across the street from the hospital where she worked.  The two lots were owned by a private company and hospital employees had money taken out of their paychecks for the privilege of parking in the private lots.  The petitioner chose to park in the lot and was provided a sticker to place on her vehicle.  The sticker was provided by the hospital.  There was a designated walkway and the lot had a sign posted indicating that parking was for hospital employees only.  The petitioner testified that the majority of nurses parked in the two lots and the company who owned the lots provided shuttles from the hospital to the lots.

On the evening in question, after completing her shift, the petitioner left the hospital, walked off the property towards the private lots and began to cross the street to the lots within a crosswalk when she was hit by an oncoming car.

A member of the security team testified on respondent’s behalf that approximately half of the employees used the lots in questions, however, other places employees could park included metered parking, a visitor’s lot and a light rail system that services the hospital.  He testified that the hospital leases spots in these lots directly from the parking lot owner with money being recouped out of the employees’ paychecks. He further testified that the hospital exercise no control over the lots and performed no maintenance or snow removal. Despite provisions in the contract concerning use of the lot by unauthorized vehicles and maintenance of the lot by the employer, the hospital never undertook any of these functions.  However, the petitioner contended the existence of these functions in the lease allowed the respondent to control the lots, but they chose not to do so.

The primary issue before the court was whether the facts set forth fall within the purview of the Supreme Court decision Hersh v. County of Morris, or if they are distinguishable. In Hersh the Supreme Court found that the garage used by employees was not part of the premises of the employer, and significantly, the employer did not control the garage.  It was neither owned nor maintained by the employer.  “The employer derived no direct business interest from paying for employees to park in the garage.  Most importantly, the accident occurred on a public street not under the control of the employer.  In walking a few blocks from the garage to her workplace, Hersh did not assume any special or additional hazard.”  The Hersh Court went on to state the following: When the legislature amended the Workers’ Compensation Act and added the phrase “excluding areas not under the control by the employer.” N.J.S.A. 34:5-36 intended to clarify that employers are liable for more than “just the four walls of an office or plant”, but the plain language of the act reveals it is not intended to expand the employer’s liability to publically owned areas not under direct control of the employer.

Applying the principles from Hersh the judge of compensation first concluded that the lot was not owned or maintained by the employer and although the lease agreement allowed the employer to exercise limited control of the parking garage, the garage owners actually exercised daily control and management of the garage. Second, the petitioner was injured on a public street not within the control of the respondent where the petitioner was directed not to cross.  Third, the respondent provided an alternate means to get to the garage, namely a shuttle bus, however, the petitioner chose not to use it, but to walk to the garage.

Based upon the aforementioned reasons the trial court found the injuries sustained by the petitioner did not arise out of or in the course of her employment with the respondent.  The petitioner has now filed an appeal of the trial judge’s decision. The appeal is presently pending before the New Jersey Superior Court’s Appellate Division.

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Patrick Malone vs. Pennsauken Board of Education

Client: Pennsauken Board of Education

Appeal argued by: Adam M. Segal, Esq. 

In Malone v. Pennsauken Board of Education, A-3181-16T1 (App Div June 29, 2018), the Superior Court of New Jersey Appellate Division reversed the decision of a workers’ compensation judge finding compensability in an occupational exposure case.

Patrick Malone started working for the Pennsauken Board of Education in 2007 as a custodian. At trial he testified that he would sweep floors, take out the trash, clean the blackboards and desktops, remove gum and shoe marks from floors and clean toilets, floors and walls. He also testified that in the summer he would remove furniture and filing cabinets and put them in the hallway so that classrooms could be cleaned. He said he did a lot of kneeling, stooping, and squatting, but he never said how frequently he did any of these tasks. He had been doing this work for many years with other employers. By 2012 he began to experience constant pain in both knees and was diagnosed with osteoarthritis in both knees. He subsequently had both knees replaced.

Malone filed an occupational claim petition against the Pennsauken Board of Education, alleging that his work duties aggravated his preexisting but asymptomatic osteoarthritis, requiring bilateral knee replacements. The Board of Education denied the claim.

At trial, petitioner produced Dr. Ralph Cataldo, an anesthesiologist, as his expert. Dr. Cataldo said that he found objective findings consisting of surgical scars from the knee replacements and some swelling about both knees. He said that in his opinion the work duties aggravated petitioner’s preexisting osteoarthritis because petitioner was asymptomatic in 2007 and was symptomatic after performing work duties. He estimated 70% permanent partial disability in each leg.

Respondent produced Dr. Francis Meeteer, a family and occupational medicine physician, who testified that petitioner’s osteoarthritis condition was chronic, progressive and degenerative and due to the natural aging process, not to work.

The Judge of Compensation found Dr. Cataldo to be more credible and awarded petitioner 55% permanent partial disability credit 20% for prior disability plus one year of temporary disability benefits for the year petitioner was out of work because of his knees. The permanency award came to $109,214. Petitioner returned to work for the Board of Education.

Respondent appealed and argued that Dr. Cataldo’s opinion was a net opinion, meaning that he never provided any medical basis to support his opinion on causation. The Appellate Division agreed, noting that there was minimal evidence in this case.

“First, there was no evidence concerning how often and to what extent Malone engaged in the various physical activities about which he testified to perform his job duties. Simply to identify the tasks he performed and that they entailed “a lot” of kneeling, stooping, and squatting fails to impart any reliable information about how arduous and physically demanding Malone’s job actually was.”

The Appellate Court added that the medical evidence was also deficient. “Second, the only objective medical evidence Cataldo identified were the surgical scar and the swelling he found around each knee. Neither form of evidence indicates – and Cataldo did not explain – how Malone’s job duties aggravated the underlying osteoarthritic condition.”

The Court said that the record is devoid of the necessary objective medical evidence to establish a causal connection between Malone’s bilateral knee condition and his work duties.

For these reasons, the Appellate Division reversed the award and ruled in favor of the Board of Education. The Court did not remand the case for further findings.

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Dana Munch v. Atlantic Health System

Client: Atlantic Health System

Appeal argued by: John W. Pszwaro, Esq. 

In Munch v. Atlantic Health System, A-1265-16T1 (App. Div. December 21, 2017) the Appellate Davison held that a Judge of Compensation cannot order a respondent to pay temporary disability benefits without the filing of a Motion for Temporary Benefits.

Petitioner, Dana Munch, worked as a paramedic for Atlantic Health System (AHS) and witnessed the death of a child during the course of her employment on October 12, 2014. She received authorized treatment and temporary disability benefits from November 14, 2014 to January 14, 2015. She then returned to work.

On June 18, 2015 petitioner had a hand injury at work and received temporary disability benefits from June 22, 2015 through April 21, 2016. During this period of time she began treating with Dr. Nayak, a psychologist, for a psychiatric reaction to the October 12, 2014 incident noted above. Dr. Nayak treated petitioner from January 2016 through June 2016.

A key fact in this case is that petitioner failed to return to work in June 2016 and was therefore terminated.

On August 16, 2016, petitioner filed a claim petition for psychiatric injuries related to the incident on October 12, 2014. AHS accepted the case as compensable. Petitioner did not request temporary disability benefits, nor did she file a motion for temporary disability benefits.

The first listing of the case occurred on November 2, 2016. Counsel for petitioner presented the Judge of Compensation with a report from Dr. Nayak, the psychologist, dated October 28, 2016. The doctor said that petitioner suffered from post traumatic stress disorder related to the October 12, 2014 incident. He added, “Ms. Munch has not been able to return to work for the duration of time that I have been treating her since January 18, 2016. Furthermore, I believe within a reasonable degree of probability based on my expertise as a clinical psychologist that in Ms. Munch’s current psychological state she will not be able to return to her old job as a paramedic at the present time.”

After reading this letter, the Judge of Compensation indicated that he was inclined to enter an order for payment of temporary disability benefits. Capehart Scatchard represented AHS and argued that there had been no motion filed and no request for temporary disability benefits from petitioner. Further, defense counsel argued that petitioner had no job and therefore no wage loss to replace. Moreover, counsel argued that Dr. Nayak failed to explain why petitioner was able to return to work after the October 12, 2014 incident up until June 2015 when she injured her hand but now could not work.

The Judge of Compensation allowed oral arguments on the issue of temporary disability benefits at the same first court listing but denied a request by AHS for a three week adjournment.   The Judge then entered an order for temporary disability benefits without requiring a motion for medical and temporary disability benefits to be filed. AHS appealed.

The Appellate Division reviewed the administrative rules that require a motion to be filed for an order to be entered for temporary disability benefits. The Court said, “Petitioner did not undertake any of the steps pursuant to N.J.A.C. 12:235-3.2 to support an award of temporary disability benefits. Thus, Atlantic had no opportunity to respond to or oppose an award of benefits.”

The Court added,

“The Workers’ Compensation judge did not afford Atlantic an opportunity to challenge the legal or factual basis for awarding benefits to petitioner despite Atlantic’s request for a brief adjournment to submit such opposition. Moreover, there were no depositions, sworn statement, or documentary evidence (other than Dr. Nayak’s letter) submitted in support of petitioner’s claim.”

The court then cited the basic principle in law regarding due process. “In accordance with due process principles, the opportunity to be heard, ‘includes not only the right to cross-examine the adversary’s witnesses but also the right to present witnesses to refute the adversary’s evidence.’”  Paco v. Am. Leather Mfg. Co., 213 N.J. Super. 90, 97 (App. Div. 1986).

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Maradiaga-Munguia v. Pleasantville Public Schools, et als., Docket Number ATL-L-830-15

Client: Pleasantville Public Schools

Brief Attorney:  Jessica M. Anderson, Esq.

Plaintiff, a special needs student at Pleasantville High School, claimed that he was assaulted by a substitute teacher who pulled down his pants in the hallway of the high school causing him emotional injuries which lead to his attempt to commit suicide.  Defendants filed a motion for summary judgment arguing that they were not responsible for the substitute teacher’s intentional acts, are immune from liability for failure to enforce the law and for failure to provide police protection, and that Plaintiff’s injuries did not meet the Tort Claims Act threshold because he failed to produce objective medical evidence of a permanent injury.  Plaintiff opposed the motion arguing that Defendant negligently trained and supervised its employees, Defendant failed to place Plaintiff in the proper school environment, and Plaintiff met the Tort Claims Act threshold because he suffered from cerebral palsy.  The court disagreed and granted Defendant’s motion for summary judgment for the reasons stated in their brief.

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J.L. v. City of Vineland Board of Education, Docket Number CUM-L-193-18

Client: Vineland Board of Education

Brief Attorney:  Jessica M. Anderson, Esq.

Plaintiff, a student, claimed that she was sexually assaulted by a janitor who grabbed her by the shoulder while she was walking down the hallway, hugged her, gave her a kiss, and told her that he loved her.  Plaintiff further claimed that on different occasions the same janitor would wait by Plaintiff’s locker and follow her during the day.  We filed a  motion in lieu of answer for failure to state a claim arguing that Defendant was not liable for the janitor’s intentional acts and Defendant is immune from liability for failure to enforce the law.  The court agreed and granted our motion to dismiss Plaintiff’s Complaint.

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Marano v. Clifford J. Schob, M.D.

Client: PMA and GSMJIF

Court:  Appellate Division

Brief Attorney:  Christopher J. Carlson, Esq.

In Marano v. Clifford J. Schob, M.D., A-33915-16T2 (App. Div. June 20, 2018), the Appellate Division held that New Jersey’s lien provision does apply to funds that an injured worker received in a medical malpractice suit pursuant to the terms of a “high/low” agreement. The case affirmed a prior ruling in Pool v. Morristown Memorial Hospital, 400 N.J. Super. 572 (App. Div. 2008) but dealt with a new regulation that was passed after the Pool decision.

The case stemmed from a work-related injury to a police officer employed by the Union Township Police Department. The Township was a member of the Garden State Municipal Joint Insurance Fund (GSMJIF). PMA was the third party insurance administrator for the GSMJIF. Officer Marano injured his back on July 12, 2010 arising from work and received $51,779.81 in workers’ compensation benefits, including $5,403.07 for nurse case management charges.

Marano filed a suit in the law division alleging that Dr. Clifford Schob was negligent in failing to advise him to visit an emergency room and was negligent in not properly diagnosing his condition. The parties to the medical malpractice suit agreed to arbitrate the suit with the agreement that following the arbitrator’s decision, plaintiff would receive at least $250,000 (the “low”) but no greater than $750,000 (the “high”). The arbitrator arbitrated the case over two days and found no cause of action against Dr. Clifford Schob and dismissed the law suit. However, based on the high/low agreement, plaintiff was paid $250,000 even though Dr. Schob was found not to be at fault.

The issue in this published decision arose because plaintiff refused to reimburse PMA Insurance Company and the Garden State Municipal Joint Insurance Fund its statutory two thirds of the $51,779.81 paid to Officer Marano. The GSMJIF refused to compromise the lien, so plaintiff filed an order to show cause and a verified complaint in the Law Division seeking a declaration that the payment in the high/low agreement was not subject to any workers’ compensation lien.

The thrust of the argument made by plaintiff was that this issue was not the same as one previously decided in Pool above. Plaintiff argued that N.J.A.C. 11:1-7.3(a) was passed after Pool was decided. That regulation provides that a medical malpractice insurer must notify the Medical Practitioner Review Panel of any medical malpractice settlement, but not in a high/low agreement where the arbitrator found no liability on the part of the medical practitioner. That language excluding the notification provision for no cause decisions in high/low agreements was added in 2009 after Pool. Plaintiff argued that fewer high/low agreements will be negotiated if Marano is ordered to reimburse the GSMJIF. He said that future plaintiffs will have to demand higher “low” figures to take into account lien obligations.

The Appellate Division affirmed the trial judge stating:  “That concern has no relationship to a compensation carrier’s rights under Section 40 to impose a lien on the recovery.” The Court noted that there is a strong public policy in New Jersey preventing double recovery. It said that “whether an alleged tortfeasor is ultimately held to be liable does not affect the enforceability of a lien.”

As to the nurse case manager fees, the court remanded to the Law Division to decide whether those charges should be considered medical expenses under the New Jersey Workers’ Compensation Act.

Petitioner has filed a petition for certification with the Supreme Court.

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Perkins v. County of Monmouth, MON-L-2916-17

Client: County of Monmouth

Brief Attorney:  Jessica M. Anderson, Esq.

Plaintiff suffered a broken collar bone, two fractured vertebrae, and required fifty stitches to his head when he dove into a piling at Whiting Beach.  Plaintiff claimed that the area was marked off by flags indicating that this activity was safe.  Defendant filed a motion in lieu of answer arguing that they did not own, control or maintain the property.  The Court granted Defendant’s motion on October 27, 2017 and declined to consider Plaintiff’s opposition which was filed three days before the motion return date.  Plaintiff subsequently filed a motion for reconsideration arguing that the Monmouth County Health Department’s website stated that they inspected public beaches and therefore Defendant could be responsible for placing the flags.  Defendant opposed the motion arguing that the County of Monmouth was immune for failure to inspect, or negligent inspection of property pursuant to N.J.S.A. 59:2-6.  The Court denied Plaintiff’s motion for reconsideration finding that even if Defendant inspected the property, Defendant would be immune pursuant to N.J.S.A. 59:2-6.

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Colgan v. County of Monmouth, Docket Number MON-L-1761-16

Client: County of Monmouth

Brief Attorney:  Jessica M. Anderson, Esq.

Plaintiff suffered an injury to his hand requiring open reduction and internal fixation surgery when he tripped on the lip of a sidewalk which abutted a gravel parking lot.  Plaintiff’s liability expert opined that the one and three-eight inch elevation between the gravel and the curb was a tripping hazard that easily could have been cured by the County re-grading the gravel.  Defendant moved for summary judgment arguing that Plaintiff did not meet the elements of a dangerous condition as required by the Tort Claims Act because the defect was a minor imperfection of public property, the County did not have actual or constructive notice of the defect, and the County’s conduct was not palpably unreasonable.  Plaintiff opposed the motion arguing that through his expert report, he had met the required elements.  The Court disagreed and granted Defendant’s motion for summary judgment finding that Plaintiff’s expert did not take measurements of the defect until six months after the accident and therefore failed to establish the elements of a dangerous condition for the date of the accident.

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