Court: Superior Court of New Jersey Appellate Division
Trial Attorney: Christina M. Adinolfi Shea, Esq.
Brief Attorney: Christina M. Adinolfi Shea, Esq. and Caroline N. Yount, Esq.
**Results may vary depending on your particular facts and legal circumstances**
The New Jersey Appellate Division decided on October 16, 2019, that a nurse who was walking from work premises to a parking lot following her shift at Jersey City Medical Center/RWJBH was not in the course of employment when she was struck by a motor vehicle.
Petitioner had appealed the ruling of a Judge of Compensation that her injuries did not arise out of and in the course of her employment. The Judge had found petitioner was injured on a public street, not within the control of the hospital and that the hospital did not exercise daily control and maintenance of the parking lot. The Appellate Division agreed that petitioner was not injured in the course of her employment and did not suffer a compensable injury.
**Results may vary depending on your particular facts and legal circumstances**
In the reported case of Marconi v. United Airlines, 460 N.J. Super. 330 (App. Div. 2019), the Appellate Division affirmed the dismissal of two claims against United Airlines for lack of jurisdiction. Richard Marconi lived in New Jersey and suffered a work injury to his left hip on January 31, 2015 working for United Airlines in Philadelphia. United paid full benefits to Marconi under Pennsylvania law, but eventually Marconi brought two claim petitions in New Jersey seeking permanency benefits that were not available in Pennsylvania. One claim petition was for the accident in 2015 and the other was an occupational claim alleging work exposures from 1988 to the present. Mr. Marconi admitted he was not hired in New Jersey and worked most of his career in Philadelphia, with only a brief period of employment at Dulles Airport.
United moved to dismiss both claim petitions for lack of jurisdiction in New Jersey. Petitioner argued that even if residency alone was insufficient for a finding of jurisdiction, Professor Larson’s fourth factor, namely “place where the industry is localized,” in conjunction with petitioner’s residency in New Jersey is sufficient for a finding of jurisdiction. However, the Appellate Division disagreed, explaining the concept of localization should be analyzed in terms of advancement of company interests, not its mere presence in the State. In this case, the Court found that, “nothing in the course of Marconi’s two-decade employment with United advanced the company’s localized interests in New Jersey. In these circumstances, although United maintained a localized business interest in Newark, New Jersey has no substantial interest in exercising its jurisdiction over the petitions.” As such, the Appellate Division affirmed the dismissals of both claim petitions.
Client: New Jersey Sports and Exposition Authority
Court: Appellate Division
Trial Attorney: Keith E. Nagy, Esq.
Brief Attorney: Keith E. Nagy, Esq. and John H. Geaney, Esq.
**Results may vary depending on your particular facts and legal circumstances**
Petitioner appealed the Workers Compensation Court’s finding that she was not entitled to wage reconstruction after a full trial on the issue. After trial, the lower court found that the petitioner did not sustain her burden of proof as she found the petitioner capable of a myriad of strenuous activities and found that the petitioner failed to prove that she lacked the potential for full time employment. Petitioner appealed arguing that she never returned to full-time employment and that she had a significant injury.
The Appellate Division affirmed the Workers’ Compensation Court’s finding that the petitioner did not sustain her burden of proof pursuant to Katsoris v. South Jersey Publishing Co., 131 N.J. 535 (1993). The Appellate Division noted that the applicable standard is that an enhanced award utilizing wage reconstruction is to compensate the injured employee “for his loss of earning capacity, i.e., diminution of future earning power.” Id. at 546 (quoting Torres v. Trenton Times Newspaper, 64 N.J. 458, 460-61 (1974)). That diminution includes the employee’s capacity to work full time either now or in the future. Id. at 548. The Appellate Division found that the record supported the Workers’ Compensation Judge’s findings that the petitioner’s accident did not diminish her capacity to perform full-time work.
**Results may vary depending on your particular facts and legal circumstances**
Petitioner obtained an award of 30% permanent partial disability in 2003 arising from a work-related motor vehicle accident dating back to 1999. The award was for a bulging disc at C6-7 and disc protrusions at L4-5 and L5-S1. Petitioner later reopened the award and sought total and permanent disability benefits with the Second Injury Fund. We successfully argued that petitioner’s subsequent increased disability was not related to the 1999 work accident but to subsequent non-work injuries.
[vc_row css=”.vc_custom_1523707422008{padding-right: 15px !important;padding-left: 15px !important;}”][vc_column][vc_custom_heading source=”post_title” font_container=”tag:h2|text_align:center” use_theme_fonts=”yes”][vc_column_text]Ashley Mollenthiel Fiore, Esq. and Andrea Schlafer, Esq. will be presenting at the South Jersey Claims Association Event on March 13, 2018. The presentation will focus on Key Workers’ Compensation Defenses – what you need to know to assist in limiting case exposure potential and to win cases! The presentation will also delve into Hot Topic Issues being litigated in Workers’ Compensation Court.[/vc_column_text][/vc_column][/vc_row][vc_row full_width=”stretch_row” content_placement=”top” bgtype=”dark” css=”.vc_custom_1523736111362{padding-top: 50px !important;padding-bottom: 0px !important;}”][vc_column width=”1/4″ css=”.vc_custom_1523736080043{margin-bottom: 35px !important;}”][/vc_column][vc_column width=”1/2″][vc_btn title=”Register Now!” style=”modern” align=”center” button_block=”true” link=”url:https%3A%2F%2Fwww.eventbrite.com%2Fe%2Fsj-claims-ce-class-march-13-2019-tickets-57664376703||target:%20_blank|”][/vc_column][vc_column width=”1/4″ css=”.vc_custom_1523736104702{margin-bottom: 35px !important;}”][/vc_column][/vc_row]
Julio Pendola fractured his ankle in 2014 picking up a customer and filed a petition in the Division of Workers’ Compensation. He asserted that he worked exclusively as a driver for Classic, which had over 100 cars. He purchased his own car after consulting with Classic. The company required Pendola to paint the car silver and affix the Classic logo to the sides and front of the car with the company’s phone number. Classic also required Pendola to purchase a two-way radio for installation in the car. Eventually they changed to computer tablets to dispatch drivers. All of these expenses were paid for by Pendola along with the medallion, gas, maintenance on his car and liability insurance.
Classic dispatched all the passengers which Pendola picked up. He could not pick up passengers off the street like a taxi driver. Pendola paid Classic $150 per week and then kept his fares, grossing between $500 to $700 per week. Pendola could work when he wanted to work. He had to keep the car clean and dress appropriately. Otherwise he would be suspended.
Testimony at trial revealed that Classic considered itself to be merely a dispatching service and that drivers were considered independent contractors. The color of the cars was an article of compliance with the City of Newark Taxi Division. The company would check on the cleanness of cars that were being used. The company also furnished drivers with business cards, receipts, vouchers for credit cards, and sometimes key chains and pens. The company did not issue a 1099 or W-2 because the company considered drivers not to be employees. The drivers simply would keep their fares.
The Judge of Compensation ruled in favor of Classic and found that Pendola was an independent contractor. The judge noted that Pendola was free to accept or reject fares and was not supervised by anyone. In regard to whether Pendola’s work was an integral part of Classic’s business, the Judge of Compensation found that Classic was not dependent on Pendola. No one driver was essential to the business.
On appeal the Appellate Division observed that drivers were not free to pick up any nearby passenger. They had to request the ride from the dispatcher, who would then decide which driver would get the assignment. The Court thought it significant that the company would evaluate the condition of cars. The Court disagreed on the analysis of the functional relationship between Pendola and Classic. “It cannot be seriously disputed that Pendola was one of the ‘cogs’ in Classic’s operation. His work as a driver willing to provide the rides Classic arranged was essential to the success of its business.”
The Appellate Division viewed Classic as more than a dispatching company but instead viewed it as a transportation company. The Court noted that it had found Classic to be an employer in a prior case along the same lines in 1999. It saw no reason to vary from that prior decision and reversed in favor of Pendola.
The case can be found at Pendola v. Milenio Express, Inc., d/b/a/ Classic, A-0225-17T2 (App. Div. October 26, 2018). It shows how New Jersey courts will likely consider drivers for companies like Lyft and Uber when such cases find their way to the Appellate level.
[vc_column][/vc_column][vc_column_text][/vc_column_text][vc_column][vc_custom_heading source=”post_title” font_container=”tag:h2|text_align:center” use_theme_fonts=”yes”][vc_column_text]This is a one-day seminar designed for practitioners, physicians and insurance professionals. Our audience is always participatory and interactive, and attendees come from all areas of the workers’ compensation world including adjusters, supervisors, attorneys, physicians, nurses, investigators, HR managers, managed care professionals, and all sizes of employers in both the public and private sector.[/vc_column_text][/vc_column][vc_row][vc_column][/vc_column][vc_column_text][/vc_column_text][/vc_row][vc_row full_width=”stretch_row” content_placement=”top” bgtype=”dark” css=”.vc_custom_1523736111362{padding-top: 50px !important;padding-bottom: 0px !important;}”][vc_column width=”1/4″ css=”.vc_custom_1523736080043{margin-bottom: 35px !important;}”][vc_btn title=”Seminar Schedule” style=”modern” align=”center” i_icon_fontawesome=”fa fa-calendar” add_icon=”true” link=”url:https%3A%2F%2Fmillenniumseminars.com%2F%23schedule||target:%20_blank|”][/vc_column][vc_column width=”1/2″][vc_btn title=”Register Now!” style=”modern” align=”center” button_block=”true” link=”url:https%3A%2F%2Fmillenniumseminars.com%2F%23register||target:%20_blank|”][vc_column_text]
First 15 registrants will receive a courtesy copy of Geaney’s New 2017 Workers’ Compensation Manual, a $220 Retail Value.
[vc_row css=”.vc_custom_1523707422008{padding-right: 15px !important;padding-left: 15px !important;}”][vc_column][vc_custom_heading source=”post_title” font_container=”tag:h2|text_align:center” use_theme_fonts=”yes”][vc_column_text]This is a one-day seminar designed for practitioners, physicians and insurance professionals. Our audience is always participatory and interactive, and attendees come from all areas of the workers’ compensation world including adjusters, supervisors, attorneys, physicians, nurses, investigators, HR managers, managed care professionals, and all sizes of employers in both the public and private sector.[/vc_column_text][/vc_column][/vc_row][vc_row full_width=”stretch_row” content_placement=”top” bgtype=”dark” css=”.vc_custom_1523736111362{padding-top: 50px !important;padding-bottom: 0px !important;}”][vc_column width=”1/4″ css=”.vc_custom_1523736080043{margin-bottom: 35px !important;}”][vc_btn title=”Seminar Schedule” style=”modern” align=”center” i_icon_fontawesome=”fa fa-calendar” add_icon=”true” link=”url:https%3A%2F%2Fmillenniumseminars.com%2F%23schedule||target:%20_blank|”][/vc_column][vc_column width=”1/2″][vc_btn title=”Register Now!” style=”modern” align=”center” button_block=”true” link=”url:https%3A%2F%2Fmillenniumseminars.com%2F%23register||target:%20_blank|”][vc_column_text]
First 15 registrants will receive a courtesy copy of Geaney’s New 2017 Workers’ Compensation Manual, a $220 Retail Value.
[vc_row][vc_column][vc_cta h2=”The Essential New Jersey Workers’ Comp Seminar” style=”classic” add_button=”bottom” btn_title=”Register Now!” btn_style=”flat” btn_size=”lg” btn_align=”center” btn_button_block=”” btn_i_icon_fontawesome=”fa fa-ticket” btn_add_icon=”true” btn_link=”url:https%3A%2F%2Fmillenniumseminars.com%2F%23register|||”]This is a one-day seminar designed for practitioners, physicians and insurance professionals. Our audience is always participatory and interactive, and attendees come from all areas of the workers’ compensation world including adjusters, supervisors, attorneys, physicians, nurses, investigators, HR managers, managed care professionals, and all sizes of employers in both the public and private sector.[/vc_cta][/vc_column][/vc_row]
It is not uncommon for injured workers to suffer additional injuries due to car accidents on the way to a physician’s office or physical therapist’s office. So what are the rules in New Jersey on compensability?
Q. Is the injured worker covered for workers’ compensation purposes in a car accident on the way to treatment?
A. The case of Camp v. Lockheed Electronics, Inc., 178 N.J. Super. 535 (App. Div.), certif. denied, 87 N.J. 415 (1981) provides the answer to this question. In that case the employee fell at work on December 27, 1968 injuring her coccyx, low back and right leg. Then a year later petitioner was driving back from a visit to her physician when she was seriously injured in a car accident on March 9, 1969. She ended up having surgery in 1970. Her lawyer failed to file a claim petition for the car accident, and the petitioner received no award of compensation. The Appellate Division reversed in favor of petitioner, noting that Professor Larson’s treatise on workers’ compensation summarized the law around the nation on this issue:
A fall or automobile accident during a trip to a doctor’s office has usually been considered sufficiently causally related to the employment by the mere fact that a work-connected injury was the cause of the journey, without any necessity for showing that the first injury in some way contributed to the fall or accident.
The basic rule then is that an injury on the way to authorized treatment is compensable.
Q. Is the injured worker covered in a car accident on the way to an IME for permanency?
A. There is no case directly on point but there is a case which states that an injury in a car accident on the way to a fitness for duty examination requested by the employer does not arise out of work. In this practitioner’s opinion, a commute to an IME for purposes of permanency is not compensable because there is no authorized treatment involved. That is the essence of the rule in Camp noted above. A claimant who pursues permanency benefits does so as part of a litigation process. Both parties send the claimant to respective experts, but the attendance at the exams is due to litigation, not for purposes of treatment.
Q. What if an occupational facility uses a company like Uber to pick up the injured worker from work or home and then take the employee to treatment? Is a car accident on the way to treatment covered under those circumstances?
A. In the opinion of this practitioner, such an injury would be compensable under the rule in Camp. It would make no difference that the injured worker was not driving his or her own car. The rule in Camp would still apply because the employee was on the way to authorized treatment.
Q. Does an employer have a lien if the injured worker sues another driver who causes a car accident on the way to treatment?
A. Yes, since the car accident is a workers’ compensation injury, the employer has lien rights to any recovery from that accident under N.J.S.A. 34:15-40.
More and more occupational facilities are offering to transport injured workers to PT or doctors’ appointments either from work or home, using Uber or Lyft or similar services. A motor vehicle accident in such circumstances will almost certainly lead to a civil law suit because fault will likely lie with either that of the transport service driver or the other driver. The employer must pay workers’ compensation benefits, but there is a high likelihood of a third party claim with subrogation rights reserved to the employer.
