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It is not uncommon for a claimant to file an occupational disease claim but then at trial attempt to prove a case that is much more like a traumatic injury claim.  The reverse is also sometimes true.  How do courts treat these shifting proofs?

In Rivera v. United Parcel Service, the claimant began with UPS in 1992, initially loading trucks.  He became a commercial driver in 1999, delivering packages that weighed between one ounce and 190 pounds. On May 3, 2004, Rivera filed a claim petition alleging that constant bending and lifting caused an occupational back condition.   UPS filed an answer denying the claim petition.

Trial ensued and petitioner said during his testimony that there was one particular day in July 2003 that was the cause of his back problem.  He said he was picking up for a company named Albees and felt sharp pain while lifting a 15-20 pound box.   He said he notified his supervisor,  Mr. Sam Battista, of his injury.  Nonetheless, he continued working and finished the day “with pain.”

Petitioner further alleged that Battista told him to go home the next day because he was still in pain. That was a Friday and he rested over the weekend and returned to work on Monday.  Rivera claimed that he was unable to get clearance to see a doctor at  Concentra, the company approved facility for workers’ compensation, on Monday because Battista’s manager was not working that day.   Rivera said he went to see his union shop steward, Mr. Chris Eltzholtz, who instructed him to see a personal physician using his health insurance.

Rivera obtained treatment through health insurance, including back surgery at NYU Medical Center.  NYU later intervened in the workers’ compensation case to obtain reimbursement of $49,525.35 for medical treatment it contended should have been paid in workers’ compensation.

During trial the following discussion took place on the record about the inconsistency between the claim petition and the proofs:

[The Court]:  The claim petition in this matter alleges occupational exposure on or about 1/2003?

[Counsel]: Correct.

[The Court]:  Did I mishear when I heard July, 2003? . . . . Well, in other words, the direct testimony, July, 2003, picking up at Albees? . . . . But yet the claim petition talks about January 2003, an occupational?

[Counsel]:  Right.  Those are not inconsistent. He also said, even after he finished picking up the box at Albee’s, he continued to lift boxes and continued to have problems.  That was the particular day when his back got really bad but he was having problems since January 2003, which is consistent with the treating records. . .

UPS called Battista as a witness.  He said he did not recall any conversation with Rivera about a back injury in July 2003.  He denied being petitioner’s supervisor at that time.  Battista also said that it did not ring true that the shop steward would have told petitioner to see his own personal physician.  There was apparently no testimony at trial from the shop steward.

Petitioner produced testimony from Ricky Lezott, a center manager employed by UPS.  Mr. Lezott said that Rivera was out of work from January 4, 2003 until April 21, 2003 and from August 12, 2003 to December 26, 2003.  He did not know whether the absences were work related.

The Judge of Compensation considered all the evidence and found that petitioner had sustained a compensable accident with UPS in July 2003.  He found petitioner to be credible in his testimony.  He also found that Rivera did not “precisely follow and adhere to UPS policy and procedures” in reporting and treating his injury but found that petitioner did report the incident to Mr. Battista.   This was a critical finding by the judge because it negated any notice defense that UPS might have had.

The case was ultimately concluded by another judge as the first trial judge retired.  The succeeding Judge of Compensation awarded petitioner 35% credit 5% for his back.  UPS was also ordered to reimburse NYU for $49,525.35.

UPS appealed and argued that there were inconsistencies in the claim petition and petitioner’s testimony that should have disqualified Rivera from an award. The Appellate Division addressed these inconsistencies:

We acknowledge that petitioner’s claim petition referenced an occupational claim manifesting in January 2003, while Judge Rosamond’s finding of compensability hinged upon the occurrence of a work-related injury in July 2003.  However, Rivera’s testimony alleged a specific accident in July 2003, and the case was tried as such.  Essentially, the judge disregarded this inconsistency and amended the pleadings to conform to the evidence.  In so doing, we perceive no error.

The Court also rejected the argument that it was unfair surprise to UPS for petitioner to discuss a July 2003 accident for the first time at trial since there was a treating report from Dr. Ferrer of August 5, 2003, furnished during pre-hearing discovery, referencing an incident in July 2003.  The case shows that judges will generally conform the pleadings to the proofs at trial.  In essence, the judge disregarded the language on the claim petition and focused on whether a work-related accident occurred pursuant to the proofs at trial.  There are risks to both parties when this happens:  if the trial judge had found that Rivera failed to provide timely notice of a specific accident, there would have been no award.  Lack of notice is a defense in New Jersey to traumatic claims but there is no notice defense in occupational disease claims.

The case can be found at Rivera v. United Parcel Service, A-0710-12T1 (App. Div. December 17, 2013).

By: Ian Zolty, Esq.

Have you ever heard of the anterolateral ligament? If you have not, don’t feel bad because almost no one was aware of it until recent months.

The research of two orthopedic surgeons, Dr. Steven Claes and Dr. Johan Bellemans from University Hospitals Leuven in Belgium, may be breaking new ground in the treatment of common knee injuries.  They have determined that there is a ligament in the knee, now named the anterolateral ligament, or ALL for short, that runs from the outer side of the thigh bone to the shin bone.  Writing in the Journal of Anatomy, the doctors said they believe that the ALL is found in 97% of all human knees.  Importantly, this ligament appears to play a role in anterior cruciate ligament (ACL) injuries, which are very common in workers’ compensation cases.

The Belgian surgeons came across an article on the ALL, first theorized by a French surgeon in 1879, but no one ever determined what its structure or function was.  The surgeons looked at 41 donated knee joints and found the ALL in all but one of the subjects.  They believe that this ligament gives way during ACL tears and plays a role in proper treatment and recovery of ACL injuries.

Despite having surgery and rehabilitation, some patients with ACL-repaired knees continue to experience incidents where their knee “gives way” during certain activities.  The Belgian surgeons believe this could be happening because treating surgeons are not addressing the torn ALL, which may be injured at the same time as the ACL.  This makes the knee more vulnerable to injury when it rotates.  ALL injuries may also be responsible for small fractures that usually are blamed on ACL injuries.  Therefore, a better understanding of the ALL may help physicians and orthopedic surgeons develop more sophisticated treatment methods for ACL tears and other common knee injuries.

It will be interesting to see what reaction this research has on treatment in the United States and whether treating doctors begin to address the role of the anterolateral ligament in workers’ compensation cases.

By: John H. Geaney, Esq.

In one of the most puzzling decisions in decades dealing with N.J.S.A. 34:15-40, the court in Dever v. New Jersey Manufacturers Insurance Company, 2013 N.J. Super. Unpub. LEXIS 2553, (App. Div. October 23, 2013) ruled that respondent has no lien on the medical portion of a third party claim against a UM or UIM carrier.

The case involved a motor vehicle accident which took place on January 3, 2000.  Plaintiff, John Dever, was an on-duty Atlantic City police officer who suffered injuries when his vehicle was struck by a vehicle driven by Alice Turner.  Plaintiff’s injuries were severe enough that he was granted an accidental disability pension effective January 1, 2001, awarding him two thirds of his pay for life free of state and federal taxes.

Dever settled his claim against Turner, who only had a $25,000 policy limit and then filed a claim under his underinsured motorist policy issued by NJM. At trial the parties stipulated liability based on an agreement to cap damages within the $500,000 policy limits as reduced by the $25,000 payment from Turner.

Notwithstanding the extent of Dever’s injuries, the jury determined that he had not proven a permanent injury and awarded Dever $275,000 as compensation for his economic loss.  He was not awarded pain and suffering damages. Both parties then challenged the verdict.  NJM argued that the jury overcompensated Dever for what it contended were temporary injuries because most of the treatment ended in May 2000.  The trial judge and the Appellate Division both rejected that contention and noted that Dever’s depression disrupted his ability to obtain and retain employment and therefore the jury verdict was supportable.

NJM also challenged the reimbursement of plaintiff’s medical expenses.  The workers’ compensation carrier paid all the medical bills.  Following the verdict, Dever moved for NJM to pay $8,482.11, arguing that he should not be forced to absorb his own medical expenses.  The trial judge agreed with Dever in a post-verdict motion because the judge no doubt expected that Dever would have to reimburse the workers’ compensation carrier for these medical expenses. The Appellate Division reversed.  The Appellate Division opinion noted that it was missing key information at the time it issued its decision.  “The workers’ compensation carrier paid all medical bills and we are told placed a lien on plaintiff’s recovery from the tortfeasor.  The record does not disclose whether the workers’ compensation carrier was paid $8,482.11 from plaintiff’s settlement with Turner.”

First, the Appellate Division noted that every automobile insurance policy must provide PIP benefits for the payment of medical expenses to the insured. The court further observed case law stating that an “injured person who was the beneficiary of the PIP payments could not and should not recover from the tortfeasor the medical, hospital and other losses for which he had already been reimbursed.” (citations omitted). Therefore, the court said, a plaintiff in this situation cannot offer evidence of the amounts collectible or paid under a standard automobile insurance policy of PIP benefits. The court added that when an accident victim is not compensated for medical expenses, the accident victim may recover medical expenses.

Next the court examined what happens when an accident victim incurs medical expenses arising from work.  It noted that workers’ compensation coverage is primary, as in this case, meaning that Dever’s medical bills were appropriately paid under workers’ compensation.  PIP carriers need not make payments which are covered by workers’ compensation.  In fact, had NJM paid the medical bills under PIP, the carrier would have had a right to recover those payments from the workers’ compensation carrier.

The court then discussed the subrogation rights of the workers’ compensation carrier under N.J.S.A. 34:15-40.  It said, “Section 40 has been found to require reimbursement when an employee obtains a recovery from his or her UIM carrier as a result of third-party liability.” Midland Ins. Co. v. Colatrella, 102 N.J. 612, 616-618 (1986).  This furthers the policy goal of workers’ compensation to avoid double recovery.

The court seemed to believe that there was tension between the automobile law and workers’ compensation law.  It said in a far-reaching opinion:

The record is not clear as to whether the workers’ compensation carrier invoked its lien against the $25,000 recovery from Turner.  We conclude such action would be inappropriate.  Under these facts, plaintiff’s medical expenses are the responsibility of the workers’ compensation carrier and are not reimbursable by defendant.  The trial court’s decision is reversed and the order for defendant to pay $8,482.11 representing plaintiff’s medical bills is vacated.

The court’s reasoning is hard to follow since it does not focus on the concept of double recovery so much as it does the concept of “permitted” recoveries.

Also, the Legislature has decreed workers’ compensation insurance must be the primary source of payment for work-related automobile injuries, and the cost of the employee’s medical expenses is born (sic) by the worker’s (sic) compensation carrier not the PIP insurance carrier.  Therefore, a section 40 lien, which attaches only to permitted recoveries, cannot include medical expenses from a New Jersey no-fault insured; there is no right to recover such expenses. Patterson v. Adventure Trails, 364 N.J. Super. 444, 448-49, 836 A.2d 856 (Law Div. 2003).  Allowing reimbursement to a workers’ compensation carrier from an employee’s UIM carrier is counter to the legislative intent of this express statutory reimbursement scheme.

It is important for practitioners to understand the limitations in this decision.  First, there was no workers’ compensation carrier involved in this case.  The compensation carrier’s identity is not disclosed, and there is no evidence that any party appeared or made any argument on behalf of the unidentified workers’ compensation carrier.  NJM was the UIM carrier in this case, and their counsel was arguing that the UIM carrier did not owe plaintiff the sum of $8,482.11.  The issue has to do with the common practice of putting medical bills “on the board” in civil cases for purposes of damages.  Since claimants in workers’ compensation cases with third party actions must typically repay part of their third party recovery to the employer to satisfy the workers’ compensation lien, claimants can put medical bills paid in workers’ compensation “on the board” as damages.  The jury is not advised that the bills have been paid by workers’ compensation.  Medical bills paid in workers’ compensation are not considered a collateral source, unlike PIP payments.

In this case, the court took this a step further. It not only said that the UIM carrier did not have to repay the sum of $8,482.11, but it went on to address the subrogation rights of the workers’ compensation carrier, which was not even involved in the proceeding.  As such, respondents can argue that the court’s holding in this case is what is called “dictum,” an observation that is unnecessary to the decision.

It is also important to note that this is an unpublished decision, which means it need not be followed by future appellate courts.  Nonetheless, the reverberations of this case will be felt by employers and carriers until further clarification is given in future litigation.  Claimants’ attorneys will seize on this case to argue that in a work-related car accident case, employers have no rights to subrogation of medical benefits.  The Dever case is already being widely discussed by practitioners throughout the state, and employers need to seek a published decision clarifying this decision since it seems contrary to the established policy against double recovery.

June Chalmers worked at a medical office, cleaning the office space with another colleague.  On August 20, 2010, she fell on a piece of pipe while at work and suffered injuries which led to serious infections.  Chalmers did not file a workers’ compensation claim and obtained treatment on her own.  However, she did file a civil law suit against Dr. Stephen Swartz, (hereinafter “Stephen”) who practiced with his father in the building.  She claimed that she was only employed by Dr. Stephen Swartz’s father, Dr. Harry Swartz, (hereinafter “Harry’), and she argued that she could sue Stephen because he owned the building where the medical offices were located.  Stephen’s attorney filed a motion to dismiss the case on the ground that Chalmers’s suit was barred by the exclusive remedy rule.

The key facts were as follows:  plaintiff Chalmers was hired in 2004 to clean the office.  Both doctors worked on the premises.  Harry began practicing medicine in the building in 1958, and his son Stephen joined the practice in 1987.  Stephen testified in his deposition that he spent ten hours a day treating patients at a local hospital and then saw patients in the medical building in the evening.  Both doctors practiced together, paid all expenses from a joint account, and obtained a workers’ compensation policy naming Harry and Stephen as policy holders.  There were no partnership papers, although the two doctors considered themselves to be in a partnership.

Chalmers contended that only Harry hired her and employed her.  He gave her direction in performing her job.  Harry’s name was on the W-2 forms and he signed her paychecks, although the checks were written on a joint checking account.

In 2006 Harry transferred title to the building to Stephen for a payment of ten dollars.  Stephen did not charge his father rent.

The trial judge ultimately granted the motion for summary judgment filed by Stephen and dismissed the case as barred by the exclusive remedy rule.  Chalmers appealed and argued that she was not an employee of Stephen.  The Appellate Division began by noting that clearly Chalmers was an employee and was not an independent contractor.  The question was whether she was a joint employee of both Stephen and Harry and therefore unable to sue either doctor.

The court did not feel that analogy to case law on joint ventures was appropriate.  “Because a joint venture is typically entered into for a limited, frequently one-time purpose, those principles have limited applicability here, beyond a general instruction to consider the totality of the circumstances.”  Instead, the court adopted “a commonsense view,” in concluding that Chalmers was an employee of both doctors.

She was paid from a joint checking account in the names of both doctors.  She was covered by a workers’ compensation policy in the names of both doctors.  The policy, including the employee notification poster, listed both doctors as her employers. . . Plaintiff’s work served the purposes of both doctors, because she cleaned the entire building in which the medical practice was located, as opposed to limiting her cleaning services to Harry’s work space. Even if Harry directed plaintiff’s work, there is no dispute on this record that she performed her work for the benefit of both Harry and Stephen, and they both paid for her work. (citations omitted).

For these reasons the Court affirmed the dismissal of Chalmers’ suit.  The Court did, however, allow the case to be transferred to the Division of Workers’ Compensation as if originally filed on time in the Division.  It cited the rule in Townsend v. Great Adventure, 178 N.J. Super. 508 (App. Div. 1981) for the proposition that the Division of Workers’ Compensation was the proper jurisdiction for the claim of Chalmers and allowing the transfer, even if out of time, was in the interest of justice.

This case may be found at Chalmers v. Stephen J. Swartz, A-1472-12T4 (App. Div. October 8, 2013).

Smile Alvarez worked as an International Service Manager for Continental Airlines.  He flew to Quito, Ecuador on October 21, 2001 and went to check his door to make sure it was in the disarm position.  On entering the airplane’s galley, he tripped and did a near somersault, striking his head, shoulders and neck on the airplane’s floor.  He refused to seek medical treatment in Ecuador.  Instead, he soaked in the hotel hot tub because he felt sore.

When he returned to the United States, he did not treat at Continental’s Whole Health Clinic in Newark.  He had planned an extended leave of absence to care for his ill mother and therefore took his leave.  He noticed sharp pain radiating down his left arm while on leave.  His hand was also numb.

In April 2002, Alvarez returned to his job in Houston, Texas.  He was unable to check in for a series of day flights because the pain in his arm was intolerable.  He saw a doctor at Continental’s Whole Health Clinic who gave him ibuprofen and sent him home.  He then went on sick leave and did not return to work for almost a year.

On April 12, 2002, Alvarez saw Dr. Diaz, a neurologist, who ordered an MRI, which showed a herniated disc.  He filed a workers’ compensation claim in Texas on April 19, 2002.  Continental denied that claim for failure to timely report an injury, or lack of timely notice.

On July 6, 2002, Alvarez underwent cervical fusion surgery.  Later in the month he filed a workers’ compensation claim in New Jersey asserting that he was injured on October 21, 2001.

Respondent filed a motion to dismiss the claim for lack of timely notice but the Judge of Compensation denied the motion.  Alvarez testified three times:  twice before the initial Judge of Compensation and a third time on December 14, 2012 before a second Judge of Compensation, who took over the case after the retirement of the first judge.

On January 25, 2013, the Judge of Compensation dismissed the case for failure to provide timely notice.  Petitioner appealed and argued that his delay in notifying the employer about his accident should be excused because he had been unaware of the causal link between the accident and the injuries he sustained.  The Appellate Division disagreed with petitioner, noting that the New Jersey Workers Compensation Act requires an employee to notify the employer of an injury at the latest within 90 days.  The court further stated:

N.J.S.A. 34:15-17 ‘serves to insulate employers from having to investigate an onslaught of passing accidents that do not result in injury and therefore do not constitute accidents under the statute.’

The Court added:

While the symptomatology emanating from Alvarez’s fall may have worsened over time, Alvarez was aware of the injury he incurred from the moment he struck his head, shoulders, and neck in the airplane galley.  Such injuries are wholly distinct from their latent and insidious progressive counterparts that prey upon their victims without any prior indication that they were even exposed to injury.

The lesson for practitioners is that the notice defense is viable in New Jersey.  It is a very generous defense in that the employee may be sometimes allowed up to 90 days to notify the employer of injury.  The converse is that the employer does not have to prove that the employee knew his diagnosis for the notice defense to be invoked. For the employer to win a notice defense, the employer must show only that a reasonable person would know he or she was injured in the accident and failed to provide notice within the 90-day period.

The case can be found at Alvarez v. Continental Airlines, A-3039-12T3 (App. Div. October 18, 2013).

New Jersey has a very powerful subrogation provision.  That message was emphasized in Greene v. AIG Casualty Company, A-6287-11T4 (App.Div. October 16, 2013), a published decision rendered by the Appellate Division.  It does not matter that the compensation case is ultimately found non-compensable: the employer still can enforce its lien rights as to prior payments made.

Kelly Greene worked for AIG and was injured on a wet floor in the lobby of the building where she worked.  AIG did not own the building and leased only a portion of the premises.  AIG initially denied the claim but thereafter paid substantial medical benefits without prejudice under N.J.S.A. 34:15-15. Greene also put AIG on notice of its subrogation rights under N.J.S.A. 34:15-40.

After investigating the lease agreement further, AIG eventually denied the claim as not arising out of the employment.  In the interim, Greene recovered $225,000 in a civil action against the landlord.  AIG sought reimbursement from Greene for two thirds of its workers’ compensation payments of $118,804.

Greene took the position that AIG was not entitled to reimbursement of its workers’ compensation lien if the case was found not compensable.  Counsel for both petitioner and AIG reached agreement that the case was not compensable given that AIG did not own or control the lobby area where the accident occurred.  The only issue was whether AIG was entitled to $79,203, representing two thirds of its payments. The Judge of Compensation held that since the case was not compensable, AIG was not entitled to its subrogation rights.  The Judge concluded:

Section 40 is a part of the Workers’ Compensation statute.  It is applicable in situations involving workers’ compensation claims and cannot be taken out of context to apply generally.  If the claim is determined not to be compensable, the section is inapplicable.  If it is compensable, the section applies.

AIG appealed from the order denying lien reimbursement.  In a decision of first impression, the Appellate Division reversed the decision of the Judge of Compensation and held that AIG was entitled to reimbursement for  two thirds of its payments of $118,804, notwithstanding that the claim was non-compensable.  The court wrote:

Contrary to petitioner’s argument, nothing in either Section 15 or Section 40 conditions reimbursement of the claim from a third-party settlement on whether the benefits the employer paid were owed in the first place. Section 15 expressly provides that any payments the employer makes are without prejudice to a defense of non-compensability, and Section 40b allows the employer reimbursement from the third-party recovery if the sum recovered by the employee is ‘equivalent to or greater than the liability of the employer.’”

The Court went on to state that its holding is consistent with the remedial purpose of the Act by “making benefits readily and broadly available to injured workers through a non-complicated process.” Tlumac v. High Bridge Stone, 187 N.J. 567 (2006).  The court said that this policy encourages employers to make prompt voluntary payments because it provides much needed medical and wage loss benefits to claimants while their claim is being investigated.  In addition, the court said that its decision is consistent with the policy in New Jersey against double recoveries.

In an interesting twist, petitioner argued that she was penalized by AIG’s voluntary payments in this case because she would have been better off, in retrospect, by directing the medical treatment through her health insurance, thereby not having to reimburse the carrier.  The court disagreed with this view, relying on the collateral source rule, N.J.S.A. 2A:15-97.  “Under our collateral source rule, petitioner would have been obliged to disclose to the court any amounts she received from her health insurer and they would have been deducted from any tort judgment. Perreira v. Rediger, 169 N.J. 399 (2001). Accordingly, had petitioner’s health insurer paid her medical expenses instead of AIG, the benefit would have accrued to the third-party tortfeasor, not to petitioner.”

This case is the only published decision on this rather unusual issue. The undersigned handled the appeal of this case for AIG.

 

Employer Is Entitled to Reimbursement of Lien Even If Comp Case Is Ultimately Found Not Compensable

Once again a plaintiff has failed to get past the exclusivity provision in the New Jersey Workers’ Compensation Act.  In Estate of Samuel Sellino and Phyllis Sellino v. Pinto Brothers Disposal, LLC., A-2064-12T1 (App. Div. September 23, 2013), the Appellate Division considered whether an employer could be sued for allegedly removing or bypassing a neutral relay switch leading to a tragic death.

Samuel Sellino worked for Pinto Brothers Disposal, LLC (Pinto Brothers).  On October 17, 2008, Sellino was working in Long Beach Township with Chris Pinto.  Sellino was driving the truck, and Pinto was getting on and off the truck to throw brush in to the garbage compactor.  Arriving at one house, Sellino exited the truck, and left the vehicle in drive with the parking brake engaged.  The truck started rolling down the street, and Sellino and Pinto pursued it.  Sellino fell under the wheels of the truck and died.

The company policy was that drivers must remain inside the cab and are not to leave the cab to assist co-workers.  One witness testified that Sellino had been told not to leave the truck before the fatality occurred.

Plaintiffs filed a suit and alleged that Pinto Brothers removed or bypassed a “neutral relay,”  which was an electrical switch that required the vehicle to be in neutral in order for the compactor to function.  The evidence was unclear whether the company did in fact remove or bypass the neutral relay but for purposes of the motion to dismiss the law suit, the court assumed that the company did bypass the switch.  Plaintiff’s expert testified that the death would not have occurred had the neutral safety switch not been bypassed.

Pinto Brothers moved to dismiss the law suit and prevailed at trial, arguing that the suit was barred by the exclusivity provision of the New Jersey Workers’ Compensation Act.  The Appellate Division affirmed that ruling.  The court said, “ . . . bypassing the neutral relay created a risk of injury to its employees.  This falls short of showing that Pinto Brothers acted with knowledge that such action was ‘substantially certain to result in injury or death to the employee.’”  The court noted that just knowing that a workplace is dangerous is not the same as engaging in intentional wrong.

The court also held that the type of accident that happened in this case is a fact of industrial life.  Indeed, Phyllis Sellino, the widow, testified that she was aware of injuries suffered by other garbage truck drivers involving similar factual situations.  Sellino himself was the driver of a truck that ran over an employee in the late 1980s.  “Accordingly, Sellino’s death and the circumstances in which it occurred cannot be considered to be ‘plainly beyond anything the legislature could have contemplated as entitling the employee to recover only under the Compensation Act,’”(citations omitted).

This case underscores a recurring theme that intentional harm suits must meet an extremely high burden of proof  in New Jersey and in fact, it is truly only the most rare case that can meet this standard.

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This blog article was researched and written by John H. Geaney, a member of the executive committee and equity partner at the law firm of Capehart Scatchard. The content of the this article is intended to provide general information on the topic presented, and is offered with the understanding that the author is not rendering any legal or professional services or advice. This article is not a substitute for legal advice. Should you require such services, retain competent legal counsel.

Opioid medications have become a major problem in the New Jersey workers’ compensation system.  The number of workers being prescribed opioids has increased dramatically along with other attendant problems, such as addictions to the medications, excessive periods of use, and large numbers of unused opioid pills due to over-prescribing.  Every workers’ compensation professional can attest to these and other problems with opioid medications, not to mention cases where urine testing shows no trace of opioids in the system despite repeated renewals of opioid prescriptions.

On September 30, 2013, Senator Raymond Lesniak and Senator Stephen Sweeney introduced a bill in the New Jersey Senate proposing that medical expenses shall not include coverage of opioid drugs unless the prescribing doctor does the following:

1) takes a thorough medical history and physical examination focusing on the cause of the patient’s pain;

2) does a complete assessment of the potential addiction of the patient to opioids, which would include a baseline urine test and assessment of past and current depression, anxiety disorders and other mood disorders associated with risk of opioid abuse;

3) provides a written treatment plan with measurable objectives, a list of all medications being taken and dosages, a justification for the continued use of opioid medications, a description of the pain relief from the medications, documentation of attempts at weaning, a description of how the patient responds to the medication, and alternative treatments under consideration;

4) provides a description of either sustained improvement in function and pain reduction or consultation with a pain management specialist (if the dosage exceeds 120 mg morphine-equivalent dose or if the duration of treatment exceeds 14 days);

5) provides an explanation to the patient of the risks and benefits of the prescribed medications and expected duration of treatment.

The Act will allow an employer, carrier or TPA to disqualify any physician from its network who fails to provide such documentation.  If approved, this bill would be a major step forward for the New Jersey workers’ compensation system.  New Jersey is a member of the National Prescription Drug Monitoring program, which allows physicians to check on an electronic database for prior or current prescriptions for controlled substances before dispensing narcotic pain medication to a patient.

The PDMP program along with this proposed bill would go a long way to curb the abuse of opioid medications in workers’ compensation, often among patients who have a history of problems with opioids and other controlled substances.  The bill simply establishes a list of best practices that physicians would need to follow in order to prescribe opioids in the workers’ compensation system, as well as in personal injury protection coverage in automobile insurance. It would not prevent the dispensing of medications to those with chronic or short term pain; it would simply require the physician to undergo careful written analysis before making the decision to prescribe opioid drugs.  Many pain management doctors already engage in these practices and require their patients to sign pain management contracts allowing for urine testing.  However, not all physicians who prescribe opioid medications follow these practices, and this bill is aimed squarely at those physicians

The undersigned will keep readers current on the status of this bill.   The bill is number Senate, No. 3003.

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This blog article was researched and written by John H. Geaney, a member of the executive committee and equity partner at the law firm of Capehart Scatchard. The content of the this article is intended to provide general information on the topic presented, and is offered with the understanding that the author is not rendering any legal or professional services or advice. This article is not a substitute for legal advice. Should you require such services, retain competent legal counsel.

Bill Creating Clear Guidelines in Dispensing of Opioid Medications Introduced in New Jersey Senate

In December 2006, Bobby Robinson was injured working at a construction site in Asbury Park, N.J. when a jack hammer “kicked back” and knocked him off a ladder.  He filed two workers’ compensation petitions:  one against Tishman Construction Corporation and the other against Air Joy Heating and Cooling, Inc.  The two companies asserted joint responsibility for workers’ compensation benefits and an order approving settlement was entered in the Division of Workers’ Compensation.

During the receipt of workers’ compensation benefits, Robinson also brought a civil suit against Tishman Construction Corporation (hereinafter “Tishman”).  Tishman filed an answer to the complaint contending that Robinson’s suit was barred by the exclusive remedy provision of N.J.S.A. 34:15-8, which prohibits civil suits against employers except in the case of intentional harm.  The question before the court was whether Tishman was in fact Robinson’s employer.

The construction site in Asbury Park was owned by Paramount Homes, which wanted to build three residential units on its property.  Paramount contracted with Tishman to provide administrative and supervisory staff for the site and to monitor labor levels and equipment, as well as manage trade contractors.  Tishman then entered into a contract with Air Joy as the HVAC subcontractor for the site.

Air Joy’s job was to install exhaust vents by cutting out duct openings in the exterior walls.  However, Air Joy could not use its own employees to do this.  The Local 595 Laborers Union (Local 595) claimed this project, and since Air Joy did not have any contract with the Union it could not hire union employees directly.  Air Joy relied on Tishman to do this because Tishman was a signatory to the labor union.  Air Joy would tell Tishman’s construction superintendent how many laborers were needed, and then Tishman would provide the laborers through the union.

Robinson was told to report to the construction site in August 2006.  He reported to Kenny, the Air Joy foreman.  Robinson said that while on the site Air Joy employees directed his work.  However, he submitted his time sheets to Tishman’s labor foreman.  Tishman employees gave the final sign-off on the time sheets before sending them to payroll.  Tishman paid Robinson directly and then charged Air Joy back for his wages.  The payor on the checks was Tishman.  Before he received a paycheck, Robinson would have to show his Social Security card and driver’s license to the appropriate individual at Tishman. 

Tishman’s project foreman testified that Robinson worked for Air Joy on loan from Tishman.  Tishman’s project foreman patrolled the site for safety issues and checked on employees.  Tishman retained the right to fire union workers and had exercised such power in the past.  When Robinson was injured, a Tishman employee called the ambulance that took him to the hospital, and Tishman filled out the accident investigation report.

The trial court found that Tishman was Robinson’s general employer and Air Joy was its special employer.  That gave both companies immunity from civil suit.  The Court of Appeals affirmed that decision, noting that both companies shared in responsibility for the workers’ compensation claim. The Court said that it was clear that Tishman was a general employer.  “There was an implied contract of hire based upon the fact that plaintiff’s services were procured by Tishman through his union, he performed work, and was paid.  Tishman paid his wages.  Tishman had the right to control the work and the power to both hire and discharge him. Tishman was plaintiff’s employer and is entitled to the immunity provided by the Act.”

This case shows that employers benefit from joint employer situations such as general and special employer relationships. Both the general and special employer are entitled to immunity from civil suit in the case of injury to a borrowed employee.  The case may be found at Robinson v. Tishman Construction Corp. of New Jersey, A-1370-11T4 (App.Div.June 28, 2013).

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This blog article was researched and written by John H. Geaney, a member of the executive committee and equity partner at the law firm of Capehart Scatchard. The content of the this article is intended to provide general information on the topic presented, and is offered with the understanding that the author is not rendering any legal or professional services or advice. This article is not a substitute for legal advice. Should you require such services, retain competent legal counsel.

New Jersey Public Entity Law Monthly – Vol. II, Issue 6

By: John H. Geaney, Esq.

In a piece of special legislation, Governor Christopher Christie signed into law Senate, No. 1469, on June 13, 2013.  The bill pertains to dependency benefits for surviving spouses of certain fire and police personnel who die in the line of duty.

Under current law in New Jersey, surviving spouses are entitled to dependency benefits of 70% of wages but such benefits end on remarriage.  In the event that remarriage occurs during the first 450 week period, the spouse is entitled to receive the remainder of the compensation which would have been due the spouse had the spouse not remarried, or 100 times the amount of weekly compensation paid immediately preceding the remarriage, whichever is the lesser.

The new law treats a surviving spouse of a deceased member of the State Police or member of a fire or police department or force differently than all other surviving spouses in New Jersey.  For example, under existing law a surviving spouse of an employee who earned $1,200 per week and died in 2013 in the course of employment would receive the maximum rate of $826 per week.  If the spouse remarried during the first 450 weeks, for example at week 300, the spouse would receive 100 times that rate or $82,600 as the final payment.  Benefits would then terminate on account of remarriage.

The new legislation exempts surviving spouses of state police, fire fighters and police officers from the so-called “remarriage penalty.”  In the example above, the surviving spouse would continue to receive $826 per week for life whether or not she or he remarried.  Dependency benefits would only end at death of the surviving spouse for spouses of state police, police and fire fighters.

The law is not retroactive for those surviving spouses who already received a lump sum payment or remarried prior to the effective date of this legislation.