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There are very few cases in workers’ compensation where a party asks a judge to recuse himself or herself. One recent case, Executrix of the Estate of Rosemarie Bellino v. County of Hudson, A-0275-11T4, (App. Div. April 30, 2013) provides guidance on the legal standard. (more…)

John Lance, a police officer for the City of Camden, New Jersey, was injured on May 10, 2004 in a work-related motor vehicle accident.  He received medical and temporary disability benefits in workers’ compensation.  However, he alleged that his workers’ compensation benefits were improperly terminated in October 2005.

On June 12, 2004, about a month later, Lance was directed to appear at police headquarters for a drug test.  He appeared and was given documents pertaining to the drug test.  He stated that he was unable to understand the documents and requested assistance.  When told he had to sign the documents, he refused and the test session was terminated.  The City then served disciplinary charges against Lance seeking his termination for failure to undergo the City’s drug test.

The City conducted hearings on the disciplinary charges in November 2005 and January 2006. Lance claimed that he was not able to defend himself at the hearing because of cognitive impairments which were exacerbated by his inability to obtain medical treatment after the termination of his workers’ compensation benefits.

On January 23, 2006, the hearing officer issued a report recommending termination of Lance’s employment.  The City proceeded to discharge Lance. Around the same time, hearings continued in the Division of Workers’ Compensation, and Lance prevailed in his claim for continued temporary and medical benefits.  Ultimately, the City paid $189,892 in temporary disability benefits and $65,220 in medical benefits. Plaintiff also received an accidental disability pension, which would pay him two thirds of his salary free of federal taxes, and free of state taxes until age 65.

Following his termination, Lance sued and claimed that the City violated his right against unreasonable searches and seizures by making him submit to a drug test.  He further claimed that the City retaliated against him for successfully obtaining workers’ compensation benefits and retaliated against him by delaying payment of his temporary disability benefits.  The trial court dismissed all of plaintiff’s claims and Lance appealed.

The Appellate Court rejected plaintiff’s employment discrimination claim:

While plaintiff alleged that he did not understand ‘what was going on’ when he appeared for the test, he provided no affidavit or certification supporting that allegation.  A police officer who unjustifiably refuses to comply with an order requiring that he undergo a drug test cannot be said to be performing his job in a manner that met the employer’s reasonable expectations.  Plaintiff provided no evidence showing that his refusal to submit to the test was medically justified.

As for the claim for retaliation due to the filing of a workers’ compensation claim, the Court acknowledged that there is a cause of action in New Jersey for retaliatory discharge for seeking workers’ compensation benefits.  In this case Lance contended that the City unlawfully retaliated against him for seeking workers’ compensation benefits by delaying payment of his temporary disability benefits. “The trial court correctly ruled that this claim should be pursued in the compensation case pending before the Division of Workers’ Compensation, in which plaintiff was seeking additional disability benefits.”

Regarding plaintiff’s charge that he was wrongfully terminated for successfully obtaining workers’ compensation benefits, the court said that Lance failed to offer any proof on this count.  “Plaintiff presented no evidence from which a fact-finder could conclude that the City ordered the test or discharged plaintiff because he obtained workers’ compensation benefits.”

This case can be found at Lance v. City of Camden, A-3157-11T3 (App.Div.April 18, 2013).

Peggy Young worked for United Parcel Services (UPS) as a delivery truck driver. She became pregnant in 2006 and was given a restriction from her doctor indicating that she should not lift more than 20 pounds for the first 20 twenty weeks of her pregnancy and no more than 10 pounds thereafter. Later her midwife reiterated the 20 pound lifting restriction. (more…)

Few New Jersey workers’ compensation cases turn on the issue of notice under N.J.S.A. 34:15-17 simply because the New Jersey statute allows up to 90 days in most instances to report a traumatic injury. The case of Ader v. Lebanon Township, A-0383-11T2 (App.Div.March 11, 2013) focused on this section of the law and whether there is a “knowledge requirement” as part of the statute. (more…)

There are no published cases dealing with resignation as part of workers’ compensation agreements in New Jersey. Contrary to other states where such resignation agreements are routine, New Jersey employers and carriers seldom negotiate resignation in connection with a workers’ compensation settlement. One main reason this practice does not prevail in New Jersey is that our state law focuses on loss of function as opposed to return to work. Temporary disability benefits end at maximal medical improvement in New Jersey, and most workers’ compensation settlements here involve claimants who are already back to the same or another job by the time of settlement. (more…)

Workers’ compensation practitioners should be aware that President Barack Obama signed the SMART Act on January 10, 2013 (H.R.1845). Just as a side, this bill was attached to a Medicare IVIG Access Bill which has nothing to do with Medicare Conditional Payments. (more…)

New Jersey, like many states, has had an ongoing problem with physicians and hospitals that balance bill injured workers for work-related care.  This problem has become more acute in the age of managed care reductions where medical providers dispute the amount they are paid and then send invoices to injured workers for the unpaid balance.  In response to this widespread problem, Governor Christopher Christie signed into law Assembly No. 2652 on November 19, 2012.  It is now known as P.L.2012, c.67.

The law reads as follows:

Fees for treatments or medical services that have been authorized by the employer or its carrier or its third party administrator or determined by the Division of Workers’ Compensation to be the responsibility of the employer, its carrier or third party administrator, or have been paid by the employer, its carrier or third party administrator pursuant to the workers’ compensation law, R.S. 34:15-1 et seq., shall not be charged against or collectible from the injured worker.

In addition, the law vests within the Division of Workers’ Compensation exclusive jurisdiction of any disputed medical charge arising from any claim for compensation for a work-related injury or illness.  This means that providers and hospitals who dispute charges arising from workers’ compensation care cannot sue civilly or use other means to collect on such charges.  The matter must be decided within the Division of Workers’ Compensation, which has well-established procedures for such medical reimbursement claims.  In fact, there are several thousand medical reimbursement claims currently being handled by the New Jersey Division of Workers’ Compensation.

The law goes on to state that “the treatment of an injured worker or the payment of workers’ compensation to an injured worker or dependent of an injured or deceased worker shall not be delayed because of a claim by a medical provider.”

This law makes good sense for all stakeholders in workers’ compensation.  The past practice of balance billing injured workers for authorized care caused tremendous anxiety for workers and their families.  For employers the law will eliminate a very inefficient system of permitting medical providers to sue in civil court for medical charges arising from workers’ compensation.  That practice alone led to procedural nightmares for employers and carriers as well as excessive legal costs.

The 2013 Manual is a compilation of prior editions with particular emphasis on cases decided in 2011-2012, as well as the addition of important chapters for practitioners of workers’ compensation.

Some of the 2013 Edition highlights are as follows:

• New chapter on catastrophic claims in workers’ compensation
• New chapter on calculating awards in workers’ compensation
• New chapter on confidentiality of medical information
• Revised chapter on the ADA Amendments Act
• Expanded analysis of bad faith claims
• Expanded analysis of intentional harm claims
• Expanded analysis of counsel fee issues in workers’ compensation
• Expanded analysis of Medicare Secondary Payer Statute and Guidance from the New Jersey Division of Workers’ Compensation
•  55 pages of additional text

Some of the 70 new cases that are covered in the 2013 Manual are:

Van Dunk v. Reckson Associates (exclusive remedy)

• Quereshi v. Cintas Corporation (counsel fees)
• Burn Surgeons of St. Barnabas v. Shoprite (medical reimbursement)
• Stancil v. ACE USA (bad faith/exclusive remedy)
• Jackson v. Twp. of Montclair (fraud)
• Hersh v. County of Morris (parking lots)
• Brooks v. Board of Trustees (disability pensions)
• Sentinel Ins. Co. Ltd. v. Earthworks Landscape Constr. LLC (jurisdiction)
• Gioia v. Herr’s Foods (temp benefits post-termination)
• Russo v. Hoboken Board of Ed. (statute of limitations)
• Kudelka v. City of South Amboy (rights of PIP carriers)
• DuBrel v. Maple Crest Auto Group (fraud)

If you are interested in ordering the manual, please call Carol Wright at (856) 813-4143 or email her at  cwright@capehart.com. You may also visit www.njicle.com.

On August 1, 2012, the New Jersey Supreme Court weighed in on an issue that has important implications for all practitioners of workers’ compensation in this state. The decision in Stancil v. ACE USA A-112-10, 06764. The case concerned a civil law suit stemming from the handling of a compensable work accident that occurred on May 14, 1995. Wade Stancil was injured in 1995 working for Orient Originals and received an award of total and permanent disability. (more…)

Danielle Fry worked as a cook for Palroll Inc., trading as the Lakeside Tavern in Branchville, N.J. Palroll operated the tavern and also owned the building in which it was located. The owners of Palroll were the Rohls.

On April 13, an employee of a bottling company delivered fifteen canisters of soda and one CO2 canister to the tavern. These canisters were placed in a narrow passage near the tavern’s kitchen.

While these canisters were being delivered, Fry was making pasta salad. She walked from the stove through the narrow passage to get some pasta. When she went to return the box of pasta some time later, her right kneecap struck the side of one of the canisters, causing her to fall and suffer injury.

Fry attempted to sue both Palroll and the Rohls, both of whom argued that they were immune from suit because they employed Fry. The Appellate Division noted, “As an employee of Palroll, Fry’s right to recover from her employer for work-related personal injury would ordinarily be limited to claims brought under the Workers’ Compensation Act, N.J.S.A. 34:15-1 to -142. See N.J.S.A. 34:15-8.”

Fry argued that she should be permitted to sue both Palroll and the Rohls in their capacity as landlords of the tavern. The Court disagreed, “However, as we held in Kaczorowska v. Nat’l Envelope Corp., 342 N.J. Super. 580, 592 (App.Div. 2001) (citations omitted), a ‘dual capacity’ approach is ‘disfavored, if not outright disapproved’ in New Jersey.”

The Court went on to note that the claim plaintiff was advancing did not focus on a structural defect in the building itself owned by Palroll and the Rohls.

“Here, the alleged negligence related to a transient condition in the workplace, rather than a structural or similar problem with the building. For that reason, we conclude that Fry’s claims against Palroll and the Rohls are barred by the Act.”

This case is important as it underscores that the so-called “dual capacity” doctrine is not favored in New Jersey law.