Recent Win: Lesley Joseph v. Monmouth County

Client: Monmouth County

Appeal Argued by Carla P. Aldarelli

**Results may vary depending on your particular facts and legal circumstances**

Recently, in Joseph v. Monmouth County, A-4144-13T3 (App. Div. December 14, 2015), the Supreme Court of New Jersey denied certification of the Appellate Division’s affirmation of the trial court’s dismissal of this case.

Lesley Joseph, a nursing supervisor, worked at a nursing home owned by Monmouth County.  On June 9, 2011, Mr. Joseph was resting in the break room when his female assistant attacked him with a hammer, causing multiple injuries and cuts to his face and head.  Police and paramedics responded and took Joseph to the hospital.  Joseph filed a workers’ compensation claim.  Following an investigation the County questioned the compensability of the claim based upon the circumstances surrounding the attack.

Through its investigation, the County learned that Joseph had become involved in a pyramid scheme run by his assistant.  This scheme, called a “susu,” required an investment in which participants put money into a pot and then took turns sharing the amounts collected.  An example was provided where 20 employees would contribute $100 each week, then over the course of 20 pay periods, each employee would take turns collecting $2,000 during his or her assigned week.  No interest was paid.

Joseph participated in the pyramid scheme on three occasions.  He never collected any funds.  Trouble began when Joseph became concerned that his assistant said she had an upcoming wedding.  On June 9, 2011, Joseph approached his assistant to discuss her shift, however, he then told her that everyone in the “susu” was upset because people in the pool who were supposed to be paid the week prior had not yet been paid.  The assistant admitted that she used some of the “susu” money.  Shortly thereafter the assistant attacked petitioner and eventually pleaded guilty to aggravated assault with a deadly weapon.

The Honorable Lionel Simon III, Supervising Judge of Compensation, Monmouth Vicinage, held that the confrontation between the two employees did not arise from work but rather from the fact that Joseph felt he was not going to be paid from the “susu” on time.  Judge Simon further found that there was no nexus with work. The mere fact that the attack happened at work was not sufficient to establish coverage as it did not arise from work activities. Petitioner appealed the dismissal of his case.

In affirming the Judge of Compensation, The Appellate Court wrote, “Assuming there was no prohibition against sleeping in the break room, petitioner’s claim still could not be sustained because its origins were only related to his involvement in the susu scheme, a personal connection to the assistant that resulted in injuries for reasons wholly unrelated to their employment.”  The Court said that the attack arose from personal motivation and was not attributable to a risk of employment.  “Had petitioner not been a participant in his assistant’s susu, the attack would not have occurred. Once he became involved and questioned his assistant about the ‘invested’ money, he was attacked at a location that just happened to be their place of employment.”

The petitioner argued that work brought the two employees together and created the conditions that resulted in the confrontation.  However, the Judge of Compensation and the Appellate Division both noted that this was a case where the disagreement between the two employees arose from purely personal reasons unrelated to the work that they performed at the county nursing home.

Following the Appellate Division’s affirmation of this case, Joseph petitioned the New Jersey Supreme Court for certification.  The Supreme Court denied the Petition for Certification and assessed costs against Joseph.

Recent Win: Mary Grace Lawson v. New Jersey Sports and Exposition Authority

Client: New Jersey Sports & Exposition Authority

Case Tried by Prudence M. Higbee, Esq.

**Results may vary depending on your particular facts and legal circumstances**

The Petitioner alleged that on August 14, 2009, while working at her part-time job as an usher/ticket-taker, she was struck by the closing doors of a freight elevator causing her to fracture her left femur.  The compensability of this claim was accepted.  Since the parties were not able to agree on the calculation of petitioner’s average weekly wage, trial commenced on the issues of whether petitioner’s wages from her part-time job with NJSEA should be reconstructed to reflect a full-time work week and whether she is capable of maintaining full time employment.  At trial we maintained the position that an award of permanent disability must be based on petitioner’s actual earnings and hours and that the petitioner’s earning capacity was not diminished by this accident.

Petitioner testified at trial that she was hired by the New Jersey Sports and Exposition Authority as a part-time usher and ticket taker.  Petitioner testified that she would work approximately six hours on Saturday, Sunday and depending on the time of year, maybe one other day during the week.  This is typical for any part-time usher/ticket-taker. Petitioner’s duties as an usher included frequently performing seat checks, which required her to walk up and down the stadium steps repeatedly. Petitioner’s duties as a ticket checker required her to stand in one spot for approximately three hours while checking tickets. Of significance, Petitioner stood the entire time during her six hour shift.

At trial, the petitioner conceded that she was never given any permanent work restrictions by the treating physician.  She also agreed that she would return to a full time position if one was offered to her.  In fact, she testified to applying for numerous full time positions and receiving unemployment benefits following her discharge from treatment.  By receiving unemployment benefits she repeatedly certified that she was ready, willing and able to work.

At trial, petitioner’s medical expert conceded that although most petitioners he evaluates have a loss of permanent function, a majority return to work.  Although petitioner’s expert testified that an assessment of permanent disability involves an assessment of petitioner’s level of function, he conducted an inadequate and cursory investigation into petitioner’s recreational activities and job duties. Specifically, he testified that he was unaware of important details concerning petitioner’s return to work, her active lifestyle that included daily walks and swims, and her ability to perform household maintenance including cutting the grass for her parents.

Respondent’s medical expert testified that petitioner was capable of working on a full-time basis.  He based his opinion on the review of the medical records, including the treating physicians and the physiotherapy notes, diagnostic studies, which revealed the fracture had healed and the objective examinations.  Specifically, he noted the treating physician cleared petitioner for part-time work with restrictions in April 2010 and approximately one month later, on May 5, 2010, petitioner was cleared to resume work.

Respondent’s medical expert further testified that petitioner’s left leg condition had improved following a second surgery.   He based his opinion on the review of the medical records, including the treating physicians and the physiotherapy notes and diagnostic studies, which revealed the fracture had healed and the objective examinations.  Specifically, he relied upon a therapy note indicating that petitioner was able to move her left leg more after having the hardware removed as well as a report for the treating physician who discharged petitioner on June 10, 2014 without noting any restrictions.

Our trial brief highlighted the fact that an award of permanent disability must be based on petitioner’s actual earnings and hours.  We also emphasized the petitioner’s discharge from treatment without permanent restrictions, her collection of unemployment benefits certifying that she was ready, willing and able to work, her demonstrated return to her job and perform household chores and even her own admission during trial that her earning capacity was not diminished.

The Court denied the petitioner’s request to reconstruct these wages.   The Judge of Compensation predicated this conclusion on the lack of credible evidence in the record to support a finding that the petitioner has a permanent diminution of full-time wage earning capacity and is unable to work on a full-time basis because of her disability.  The Court agreed with our position and found the petitioner earned an average weekly wage of $106.19 at the time of the August 14, 2009 work accident.  These part-time wages gave rise to a capped permanency rate of $74.33.  By not having to reconstruct the wage respondent saved thousands of dollars.  For example, 35 percent of partial total at a reconstructed wage of $570 is $75,810.00. However, at the actual wage of $106.19, 35 percent of partial total is only $15,609.30.  As you can see, winning on this issue is huge!

Recent Win: Anitre Dorman v. Nordstrom

Client: Nordstrom

Case tried by: John H. Geaney, Esq.

**Results may vary depending on your particular facts and legal circumstances**

The petitioner filed three claim petitions in connection with this matter.  In the first the petitioner alleged her occupational duties as a sales manager caused hand problems and left and right elbow problems, specifically ulnar nerve compression.  The compensability of the elbow claim was accepted.  In the second claim the petitioner alleged occupational exposure from turning, twisting, bending and lifting resulted in cervical herniated discs as well as injuries to both arms.  This claim was denied.  In the third claim the petitioner alleged that on December 28, 2005 she was pulling a bin filled with winter coats when she injured her cervical spine. This claim was also denied.  Since the parties stipulated to the compensability of the first claim the primary issues at trial were compensability and permanency relative to the petitioner’s second and third claims alleging cervical injuries.

The trial in this matter commenced on August 7, 2013 and included nine days of testimony from seven witnesses before concluding on October 22, 2014.  Petitioner was the first to testify and she described pain in both her left arm and right arm.  The pain extended from her elbows to her fingers.  She also experienced muscle spasms in her neck along with difficulty moving her neck as well as tightness in both shoulders.  She described difficulty at home preparing meals, cleaning, dressing and sleeping.  She also indicated she no longer participates in physical activities such as bowling, swimming and volleyball.

Petitioner’s orthopedic medical expert testified to examining the petitioner on three separate occasions.  He testified that his estimate of permanency changed after each evaluation.  While he initially found the petitioner to be permanently and totally disabled he later limited his findings for the cervical spine to only one third of partial total.

Petitioner’s neurologic and psychiatric expert also testified to examining the petitioner on three separate occasions.  She estimated permanency at thirty percent of partial total due to a combination of the petitioner’s occupational exposure and the December 28, 2005 incident.

The testimony of respondent’s two lay witnesses ultimately proved pivotal to the Court’s decision.  First, the human resource manager at the store where the petitioner formerly worked offered her testimony.  She informed the Court that all new employees including managers attend a new hire orientation seminar where injury reporting procedures are reviewed.  The procedures require all employees to report any injuries directly to her.  She testified that while the petitioner reported injuries to her arms, she never reported that she injured her neck.

A senior technical examiner for the respondent testified on respondent’s behalf.  She indicated that if any injury was reported to her she would inform the human resources manager.  She described a conversation with the petitioner where the bilateral elbow claim was reported, but testified that the petitioner never informed her of a cervical claim.

Respondent’s orthopedic medical expert also testified during the course of trial concerning the existence of any orthopedic permanency. He questioned causal relationship between the alleged cervical claims and the petitioner’s work.  After reviewing the petitioner’s job description, medical records and performing a physical examination he diagnosed the petitioner with degenerative disc disease unrelated to her work.

The final witness was a neurologic expert for the respondent who addressed the existence of any neurologic or psychiatric permanency.  He found that the petitioner had no causally related disability to her neck.  He also found that due to petitioner’s significant pre-existing history of anxiety and depressive disorders, there was no evidence of work related permanent psychiatric disability.

Our trial brief highlighted the testimony of respondent’s human resource manager and senior technical examiner to show the petitioner never reported the alleged cervical injury and concentrated on the treating medical records to show that the petitioner did not mention a cervical injury less than a week after the alleged incident.  We also highlighted that the petitioner never offered the testimony of her co-worker who had allegedly witnessed the December 28, 2005 incident.

The Court ultimately determined that the petitioner did not suffer an injury to her neck as a result of either the alleged occupational exposure or the alleged December 28, 2005 incident.  The Court found the petitioner’s testimony in this regard to lack credibility while also finding the testimony of respondent’s human resource manager, senior technical examiner and medical experts to be credible.  In contrast, the Court found petitioner’s experts to be unconvincing.  Accordingly, the Court entered a dismissal with prejudice for both of the cervical claims that were at issue.

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Case Win: Gerald L. Hallquist vs. E.I. Dupont de Nemours

Client:  E.I. Dupont de Nemours

Case tried by Stephen T. Fannon

**Results may vary depending on your particular facts and legal circumstances**

The decedent, Gerald L. Hallquist, initially filed an inter vivos claim alleging that his occupational exposure to chemicals, primarily benzene, caused multiple myeloma (a hematological cancer). Following his death, the decedent’s wife filed a dependency claim. Respondent filed Answers to both claims denying compensability and reserving all defenses.

Prior to Mr. Hallquist’s death, his de bene esse deposition was taken and focus was placed on the alleged occupational exposure. The decedent was employed as a laboratory technician for respondent from 1968 to 1998. However, the decedent’s own testimony provided he only worked with the material alleged to have caused his cancer between 1977 and 1982. The decedent testified that respondent had a strict policy in place that required myriad safety procedures while handling materials. Employees who violated said procedures were subject to punishment, including discharge.  The decedent’s description of how the materials were tested in his workplace, along with his description of the safety/venting devices in the room, made it impeccably clear that there could not have been any actual exposure, meaning actual physical contact permitting absorption into the body. Furthermore, the decedent never testified as to the number of times or on what type of basis he was allegedly exposed to any chemicals with which he worked, including benzene. Finally, the decedent’s testimony did not proffer any evidence of specific exposure to benzene on which to base causal relationship. The decedent’s wife also testified in this matter, but strictly as to issues of dependency.

Following the decedent’s testimony, petitioner’s attorney’s settlement demand was $200,000.00 under Section 20. Respondent decided to continue with trial.

At trial, the main issue was whether the decedent’s alleged exposure to benzene caused his multiple myeloma.  Dr. Shanna Clark, PhD testified on respondent’s behalf and was admitted as an expert in the field of toxicology and cancer causation. Dr. Clark testified that the world literature quite simply has not found a confirmed causal link between benzene exposure and multiple myeloma.  Dr. Clark also testified that based upon her review of the decedent’s deposition, she could not conclude that the decedent’s specific multiple myeloma was in any way related to benzene exposure or any other exposure during the decedent’s employment for respondent.  Alternatively, petitioner’s expert, Dr. Leon Waller, testified that he is a primary care doctor, with no subspecialty in hematology or oncology.  On cross-examination, Dr. Waller admitted he could not recall precisely how long the decedent worked for respondent and admitted that he had no independent personal recollection of the decedent’s deposition as to the specifics of his benzene exposure, including chronicity or intensity.

Dr.Waller provided a net opinion not grounded in any scientific research and unsupported by his own submitted article on causation.

Following testimony, both sides submitted legal briefs.  Respondent’s brief emphasized that petitioner failed to meet her burden of proof in proving causal relationship between the decedent’s multiple myeloma and his alleged benzene exposure. The Judge agreed and found the testimony of respondent’s expert to be more credible. The Judge ruled that the world literature supports a lack of a confirmed causal link between the condition and the chemical. The Judge also held that petitioner failed to prove the decedent was sufficiently exposed to benzene, which might have caused his condition. Accordingly, the petitioner’s claim was dismissed in its entirety.

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Case Win: McQuaid v. Camden Board of Social Services

Client:  Camden Board of Social Services

Case tried by Stephen T. Fannon, Esq.

**Results may vary depending on your particular facts and legal circumstances**

Petitioner, a security guard, filed a claim alleging that on October 1, 2009, he slipped and fell on a sidewalk at an entranceway, resulting in numerous orthopedic injuries. Respondent denied the allegations of petitioner’s claim on the grounds that petitioner fell while on his way to work on a public sidewalk that was neither owned nor controlled by respondent.  Respondent filed a Motion to Dismiss with Prejudice under the “Premises Rule.”  Petitioner’s attorney filed an opposition to respondent’s Motion on April 1, 2011. The court agreed to bifurcate the case to hear testimony on the issue of whether the subject sidewalk could be considered part of respondent’s premises under N.J.S.A. 34:15-36.

Petitioner’s place of employment was the Aletha Wright County Administration Building, located at 600 Market Street in Camden, New Jersey. Other county agencies and offices occupied the administration building, including respondent, at the time of the accident. The building is large and occupies an entire city block. The building has two entrances, one on 6th Street and the other on Broadway. At trial, petitioner testified that on the date of the accident he was to report to work at 7:00 a.m. and had parked his car in a public parking lot. After parking the car, and while walking from his car to the 6th Street entrance, he tripped and fell on the sidewalk outside of the Administration building, of which respondent was a tenant. Petitioner confirmed that he fell at approximately 6:50 a.m., prior to the start of his shift, prior to him entering the building and prior to him being assigned his security post for the day.

Petitioner and a former security guard testified that respondent’s clients would often line up at the door of the building. Petitioner introduced photographs depicting a long line of people outside the building. However, further testimony revealed this picture was taken during an isolated incident; Hurricane Irene, which occurred years after the alleged date of accident. Petitioner and the security guard also testified that part of their daily duties and employment functions involved patrolling the sidewalk surrounding the administration building, controlling the lines outside of the building and walking employees outside to their cars.

Respondent offered the testimony of the Assistant Administrator for the Board of Services and the Board’s Chief of Security. Both witnesses confirmed the picture presented by petitioner was from Hurricane Irene, a once in a lifetime disaster situation, and that it had occurred years after the alleged date of accident. Chief Montes testified that the daily patrol or security enforcement for the sidewalk areas was the responsibility of guards employed by City Hall or the Camden City Police Department, and the security officers for respondent were not assigned to patrol outside the building. Both witnesses offered testimony that clearly documented that security guards for respondent did not exercise control of the sidewalk. Both witnesses supported the notion that guards were not only instructed to maintain the security of solely the building interior, but also that they had no reason to go outside, as there were never any crowds or lines, which was documented by photos taken by respondent and offered into evidence.  Furthermore, the Chief of Security testified that walking employees out to their cars was never a daily activity of a security guard employed by respondent.

At the conclusion of the trial, both sides submitted legal briefs. Prior to deciding the case, the Judge of Compensation inquired regarding possible settlement. Petitioner’s attorney’s settlement demand was $100,000.00. Respondent declined. Respondent highlighted that petitioner’s injury was not compensable as it occurred on his way to work, on a public sidewalk over which respondent, a tenant in the County-owned building, held no control whatsoever. The Judge agreed with respondent and found that the Chief of Security provided the most consistent and credible testimony during trial. The Judge ultimately ruled respondent neither patrolled nor controlled this public sidewalk. Based on same, the Judge held that petitioner failed to sustain his burden of proof and found petitioner’s injury was not compensable on the grounds that his injury did not occur during the course and scope of his employment.  Therefore, his recovery was barred under N.J.S.A. 34:15-36.

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