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Richard Marconi v. United Airlines, No. A-000110-18T4

Client: United Airlines

Trial Counsel: Prudence M. Higbee, Esq. 

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

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 v. St. Barnabas Health, No. A-000270-18

Client: St. Barnabas Health

Trial Counsel: Christina M. Adinolfi Shea, Esq. 

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

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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Is Forty Years A Long Enough Wait to Strengthen the Intoxication Defense?

One of the many defenses employers can raise in a workers’ compensation case is that of employee intoxication.  N.J.S.A. 34:15-7 states that when an injury or death is intentionally self-inflicted, or when it is a matter of intoxication, the employee is not entitled to compensation.  However, the intoxication defense is rarely successful in New Jersey in part because of how the statute is currently written.

New Jersey Senate Bill 1420 proposes changes to N.J.S.A. 34:15-7.  While some of the changes are cosmetic in nature, and largely address grammar or structure, the specific purpose of the bill is to address the role of the intoxication defense in workers’ compensation claims.  If passed, intoxication would be the presumed cause of an accident in which an employee was proven intoxicated. This is a drastic change from the current practice, which requires intoxication to be the sole cause of the accident to be a successful defense.

Tlumac v. High Bridge Stone and the Intoxication Defense

At present, New Jersey Courts follow the interpretation set forth in Tlumac v. High Bridge Stone.  In Tlumac, the petitioner was in a tractor-trailer accident and sought to recover benefits.  The employer asserted the intoxication defense as blood tests indicated the petitioner was likely still intoxicated from the prior evening at the time of the accident.  The Supreme Court of New Jersey held that “the statutory defense of intoxication requires that intoxication be the sole cause of the accident to bar recovery for workers’ compensation benefits.”  Tlumac v. High Bridge Stone, 298 N.J. 567 (2006).  As such, the petitioner in Tlumac was awarded benefits despite his intoxication, as other factors such as the early morning hour or his long work shifts could have contributed to the accident.

In practice, this interpretation of the statute makes it more difficult for employers to claim an intoxication defense and bar an intoxicated employee from recovery.  Currently, if an employee can present other potential contributing factors to the injury he or she will likely be awarded compensation, regardless of their blood alcohol content.

New Jersey Senate Bill 1420

Partially in response to Tlumac, as well as the case law since that time, New Jersey Senate Bill 1420 was sponsored in February 2018 by Senator Christopher J. Connors and was referred to the Senate Labor Committee.  Among other edits, the bill proposes adding a ‘Part B’ to the present statute, which would state “[i]f the employee was intoxicated when the injury or death occurred, it shall be presumed that the injury or death was caused by the intoxication and the employee shall be barred from receiving workers’ compensation.”

A Shifting of Burdens

The Court in Tlumac concluded that the New Jersey Legislature intended for benefits to be “readily and broadly available” to injured employees, and thus placed the burden on the employers to show by a preponderance of the evidence that intoxication was the sole cause of the work related injury.  This interpretation makes it nearly impossible for an employer to deny claims based on employee intoxication, because it is not the blood alcohol level which will bar compensation, but the complete lack of any other potential contributing factor.

Were New Jersey Senate Bill 1420 to be made law, the employer would no longer need to prove that intoxication was the sole cause of the accident because the statute would plainly state a presumption that the injury was caused by the intoxication.  In effect, the burden of proof would shift from the employer back to the employee.  The employer would still bear the burden of showing that the employee was intoxicated at the time of the injury.  However, once intoxication was established, the employee would now need to overcome a statutory presumption that the intoxication was the cause of the accident, instead of simply providing possible alternatives.  While this bill still leaves some room for interpretation with the court, especially as to the extent of the burden of proof and what type of evidence or situation would be required to overcome the new statutory presumption, that shift would give a greater weight to this defense.

Application of New Jersey Senate Bill 1420

As an example, a petitioner has filed a claim petition against a respondent, claiming that the employee was in a motor vehicle accident and struck a pothole, causing the vehicle to flip.  The employee petitioned the courts for workers’ compensation benefits as this accident occurred while working.  The respondent denies the matter, asserting the intoxication defense, as the employee’s blood alcohol content was .13 at the time of the accident.

Under the Tlumac test, the respondent would need to prove that the sole cause of the accident was the petitioner’s intoxication.  If the petitioner showed that the pothole was a contributing factor and was a reason for the accident, the employee would still be awarded benefits under current case law.

If New Jersey Senate Bill 1420 is enacted, the outcome of that case would shift in favor of the respondent.  As soon as the respondent established the blood alcohol content was above the legal limit, it would be presumed that the accident was a result of the petitioner’s intoxication.  The petitioner would now need to prove that their intoxication was not the cause of the accident or be barred from recovery under statute.

How Likely Is This Bill to Become a Law?

Legislative intervention has been a long time coming in regard to this provision of the workers’ compensation statute.  This specific bill, however, is extremely ambitious and, given the nature of the proposed changes, this version of the bill is unlikely to make it out of committee.  In fact, this is the second time it has been proposed in recent history, with the first attempt being in February 2016.  It did not pass then, and it is still unlikely to pass now, as labor unions strongly oppose it.

A change of this magnitude will likely be viewed as too restrictive for a system with the goal of compensating injured employees.

Middle Ground and Compromise

Given that N.J.S.A. 34:15-7 has not been updated since January of 1980, it is definitely time for a change.  However, change comes in small stages, not radical shifts.  While workers’ compensation is based on the law, a lot of this practice is about compromise.

While the statute was created to protect workers’ rights, these laws are also meant to be fair for both parties.  We are more likely to see a law pass that focuses on changing the burden, or the recovery, in small yet impactful ways.  For example, a bill proposing a bar to recovery if intoxication is a substantial cause of the accident, or a bill proposing a decrease in award if the employee was intoxicated, would be far more likely to pass than what is currently proposed.  In either case, the intoxication defense would become something far more reasonable again, instead of a pipe dream for employers to pursue.

Conclusion

New Jersey Senate Bill 1420 would create a powerful shift in how the intoxication defense is litigated in workers’ compensation, but that type of change is unlikely to be approved.  A “substantial cause” bill might be a better alternative.

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Malone v. Pennsauken Board of Education, No. A-3181-16T1, 2018 N.J. Super. Unpub. LEXIS 1559 (App. Div. June 29, 2018)

Client: Pennsauken Board of Education

Appeal argued by: Adam M. Segal, Esq. 

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

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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Munch v. Atlantic Health System, No. A-1265-16T1, 2017 N.J. Super. Unpub. LEXIS 3153 (App. Div. December 21, 2017)

Client: Atlantic Health System

Appeal argued by: John W. Pszwaro, Esq. 

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

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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Key Supreme Court Decision on Arbitration is Not Likely to Affect State Workers’ Compensation Laws

In the recent decision of Epic Systems v. Lewis, 138 US 1612 (2018), the Supreme Court affirmed a preference for arbitration, ruling that agreements between employers and employees requiring individual arbitration are enforceable in employment contracts, even as a condition of the employment itself. Though the decision specifically addresses arbitration agreements limiting collective actions, the ruling could be extrapolated to validate other agreements between employers and employees. While this decision is unlikely to lead to arbitrations displacing New Jersey workers’ compensation statutory scheme, the Court’s dedication to arbitration could have indirect effects sooner rather than later.

Epic Systems v. Lewis

In Epic Systems the Supreme Court sought to settle the issue of whether arbitration agreements entered into as a condition of employment are enforceable. More specifically, the particular arbitration agreements at issue required individualized arbitration and banned collective judicial or arbitral proceedings such as class actions. The Supreme Court addressed three consolidated claims that “differ[ed] in detail but not in substance” as the Court noted. The example offered by the Court at the outset of the decision touched on the specific facts of one of the three cases: Ernst & Young LLP v. Morris.

In that case, Mr. Morris accepted employment with Ernst & Young and entered an agreement to arbitrate any disputes that may arise between him and the employer. The agreement specified that the arbitration must be on an individual basis. Different disputes with other employees would need to be heard in separate proceedings.

After his separation from employment, Mr. Morris raised wage and hour claims and alleged the employer violated the Fair Labor Standards Act (FLSA) for misclassification of employees, i.e. paying salaries without overtime. Mr. Morris sought to litigate this claim in federal court on behalf of a nationwide class. The employer argued that the employment agreement required all disputes be subject to arbitration and further required the dispute be brought by Mr. Morris alone.

Writing for the 5-4 majority, Justice Neil M. Gorsuch held that federal courts have long favored arbitration in light of its speed, simplicity, and inexpensiveness. Justice Gorsuch found no conflict with other federal laws and dispensed with the arguments that the class waivers in arbitration agreements violated Section 7 of the National Labor Relations Act (NLRA) which protects employees’ rights to engage in “concerted activities” in pursuit of their “mutual aid or protection.”

In upholding the validity of the arbitration agreements in all three consolidated claims, the Court held that employers do not violate the NLRA or the Federal Arbitration Act (FAA) by requiring employees to sign arbitration agreements that waive their rights to bring class action suits. The Court stressed that the FAA requires that arbitration agreements be enforced just like any other contract.

Though the specific facts of Epic Systems case do not relate to an agreement to arbitrate workers’ compensation claims, the Court’s analysis and commitment to arbitration agreements generally, forecast an application in a variety of disputes between employers and employees.

Effects in Employer/Employee Relationships

The Epic Systems decision has been generally regarded as a win for employers who may be more emboldened to include broad arbitration agreements in contracts of employment. Employers may feel more assured that, if contested, such agreements will be upheld as valid and enforceable. Of course, employers must weigh the potential benefits of arbitration such as expediency and lower litigations costs against the possible downside such as limited appellate rights.

That being said, surely this decision will impact the employer/employee disputes related to workplace conditions including those claims typically brought under the Fair Labor Standards Act, Title VII of the Civil Rights Act, and the Family Medical Leave Act as employees often seek to litigate these claims in a collective front.

Arbitration in New Jersey

The question we now face is how far the high Court might go to endorse arbitration agreements and whether that preference will change the landscape of employment contracts in New Jersey.

There is no question that arbitration is a favored means of dispute resolution in federal court. Pursuant to the Federal Arbitration Act, agreements requiring arbitration of certain disputes are to be enforced in the same manner and to the same extent as any other contractual provision. Indeed the FAA was passed by Congress “to reverse the longstanding judicial hostility to arbitration agreements … and to place arbitration agreements on the same footing as other contracts.” Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 24 (1991) (wrongful firing claim under ADEA subject to arbitration agreement).

Despite this clear directive under the FAA, in New Jersey, state courts have been fairly hostile to arbitration agreements and previously refused to enforce agreements that did not provide adequate notice of an individual’s right to sue, seek a jury trial, or file a class action law suit. Conversely, the Third Circuit has towed the line and has regularly upheld agreements to arbitrate.

Will Arbitration Replace Workers Compensation In New Jersey?

Despite the Supreme Court’s commitment to the validity of arbitration agreements and the FAA’s preference for arbitration as the favored means of dispute resolution, absent some legislative directive, it is unlikely that arbitrations will replace the workers’ compensation system in New Jersey.

First, New Jersey’s workers’ compensation scheme is statutory and Section 39 of the statute expressly declares that employers cannot limit an employee’s right to pursue workers’ compensation claims in New Jersey. Section 39 states that any “agreement, composition, or release of damages made before the happening of any accident” is contrary to public policy. This language appears specifically crafted to address agreements to arbitrate or agreements to completely waive the right to pursue a workers’ compensation claim.

However, the question remains whether the Federal Arbitration Act would supersede state law and allow arbitration to displace workers’ compensation claims. Indeed, two recent Supreme Court cases of AT&T Mobility v. Concepcion, 563 S. Ct. 333 (2011) and Kindred Nursing Ctrs. Ltd. P’ship v. Clark, 137 S. Ct. 1421 (2017) have upheld agreements to arbitrate in the face of contrary state common law and emphasized that the FAA permits arbitration agreements to be declared unenforceable ‘upon such grounds as exist at law or in equity for the revocation of any contract’, e.g. fraud, duress, unconscionability.

Nevertheless, not only would it be a stretch to conclude that the arbitration agreements could be used to circumvent an entire statutory scheme designed as remedial legislation, such a challenge might take a lifetime of litigation to obtain final judicial guidance on the issue.

Potential Indirect Effects in New Jersey

Even if New Jersey’s workers’ compensation system is not replaced with valid agreements to arbitrate, the preference for arbitration may have indirect effects. Such effects might be felt in third party litigation, typical of motor vehicle accidents and slip and falls, when an injured worker files a civil action in connection with the work-accident. As it currently stands, it is unlawful for employers to require waivers of third party claims. Vitale v. Schering–Plough Corp., No. 078294, 2017 WL 6398725 (N.J. Dec. 11, 2017) In Vitale, the New Jersey Supreme Court relied on Section 39 of the workers’ compensation statute to find that a waiver signed by an injured worker prior to the compensable accident was invalid. In light of the US Supreme Court’s decision in Epic Systems, it remains to be seen whether an agreement limiting third party claims to arbitration would be treated the same as an all-out waiver.

Another application of arbitration one may envision relates to employers with multi-state employees. Though Epic Systems dealt with arbitration agreements, it also underscored the Court’s preference to allow employers and employees to freely contract between themselves. Indeed the opening line of the majority decision reflects this philosophy when Justice Gorsuch asks “[s]hould employers and employees be allowed to agree that any disputes between them will be resolved through one-on-one arbitration?”  Applying this reasoning to multistate employees, it is not unimaginable for a court to validate choice of law or choice of venue agreements in employment contracts that commit to litigate work-related injuries in particular states and/or venues.

Conclusion

The Courts’ decision in Epic Systems does not directly threaten to undermine the workers’ compensation statutory scheme in New Jersey. However, the Court’s decision does represent a broader affirmation and commitment to the validity of arbitration agreements. It appears New Jersey’s workers’ compensation statute is on solid footing in its proscription of agreements subversive to the statute’s remedial purpose. However, it is unclear what indirect effects we can expect for employers and carriers alike.

Emenegilda Vargas vs. Costco

Client: Liberty Mutual and Costco

Trial attorney:  Ana-Eliza T. Bauersachs, Esq.
Brief attorney: Katherine H. Geist, Esq.

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

The petitioner filed a Motion for Medical and Temporary Disability Benefits in which she initially only sought treatment for the right shoulder.  Respondent initially opposed the motion as petitioner’s attorney failed to attach any medical documentation in support of the motion.  The petitioner then saw Dr. Becan who recommended treatment for not only the right shoulder but for the back as well.  Therefore, respondent scheduled a need for treatment examination with Dr. Yalamanchili to address the back (a report from Dr. Spagnuola addressing the right shoulder was previously secured.)

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Jessica Parmegiani vs. Cape May County

Client: County of Cape May and Inservco

Trial Attorney:  Michael L. Bileci, Esq.

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

In Claim Petition No. 2014-14853, petitioner, a CNA, alleged that occupational exposure due to constant and repetitive work from January 7, 2013 until February 14, 2014 caused injury to her lumbar spine.  Respondent denied this claim and petitioner filed a Motion for Medical Treatment.  Trial began before Judge French in Atlantic City with testimony of the petitioner who denied a prior history of lumbar complaints.  Subsequent to the petitioner’s testimony respondent secured prior accident records that included a positive MRI of the lumbar spine and pain management treatment records that included epidural steroid injections. This was directly contrary to what the petitioner claimed during her testimony.  Based upon the prior treatment records directly contradicting the petitioner’s testimony, the judge dismissed the Motion for Medical Treatment and the Claim Petition was subsequently dismissed.

Michael Certain v. Township of Woodbridge

Clients: Central Jersey JIF and Qual-Lynx

Trial attorney:  John Geaney, Esq.
Brief attorney:  Keith Nagy, Esq.

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

The petitioner sustained a compensable low back in jury on October 29, 2009 lifting garbage cans at work. He treated with Dr. Giordano who discharged petitioner in January 2010 with a final diagnosis of a sprain and strain superimposed on preexisting degenerative disc disease and disc space collapse at L5-S1.  Petitioner argued that the work injury objectively worsened his spine, leading to an MRI done in July 2010 and then three level fusion surgery in 2014.  Petitioner sought 40% partial permanent disability causally related to the work accident.

Trial commenced in this matter.  At trial, respondent proved that petitioner had a prior MRI in July 2009 which appeared to be related to pain while vacuuming in petitioner’s own home.  Respondent argued that the MRI of July 2009 was essentially the same as the MRI of July 2010, which was proof that there was no objective change between petitioner’s spine caused by the work injury of October 29, 2009.  Judge Robert D. Thuring dismissed the case and found petitioner was entitled to no compensation for his fusion surgery.

Jennifer Hernandez v. Hackensack Board of Education

Clients: Inservco/Hoboken Board of Education

Trial and brief attorney: Nicholas A. Dibble, Esq.

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

Jennifer Hernandez suffered a compensable ankle injury and received a month of authorized ankle treatment.  Thereafter she went to the authorized treating orthopedist and complained of right hip pain.  When right hip treatment was denied the petitioner filed a motion for medical and temporary benefits.  Respondent sent petitioner for a need for treatment evaluation with Dr. Wayne Colizza who diagnosed the petitioner with a torn labrum, but did not causally relate the need for treatment to the compensable work accident.  Instead, Dr. Colizza opined that a subsequent gym injury was the more likely cause of the petitioner’s need for right hip treatment.

Trial ensued in this matter before the Honorable John Gavejian in Hackensack.  Following the petitioner’s testimony, respondent offered the testimony of the nurse case manager to corroborate the findings of Dr. Colizza and the dearth of hip complaints in the authorized medical treatment records.   The nurse case manager testified to receiving a call from the petitioner several weeks after the accident.  During that conversation the petitioner told the nurse she was recently at the gym doing sit ups when she suddenly felt intense pain in her hip as she attempted to stand up from the floor.

Following the testimony of the nurse case manager, the petitioner offered the testimony of Dr. Fred Lee.  Dr. Lee testified that the petitioner initially injured her hip during the work accident and her symptoms subsequently progressed in the ensuing months.  He felt the petitioner would likely need surgery on the right hip.  Trial then continued with the testimony of respondent’s expert, Dr. Wayne Colizza, a board-certified, fellowship-trained orthopedist.  Dr. Colizza testified that the subsequent gym incident was the more likely cause of the petitioner’s condition.  Dr. Colizza felt that given the petitioner’s current complaints and her diagnosis of a torn hip labrum, if she had injured her hip in the original accident, the petitioner would have had immediate hip complaints.  Instead, there was no mention of the hip in any of the authorized treating records until after the subsequent gym accident. Dr. Colizza diagnosed the petitioner with a torn labrum and causally related the need for treatment to the subsequent accident that occurred at the gym while the petitioner was getting up off the floor from doing abdominal exercises.

After reviewing trial briefs from both sides Judge Gavejain dismissed the Motion for Medical and Temporary Benefits and found the petitioner was entitled to no treatment relative to her right hip.

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