NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.
Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.
Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.
As the Moderna and Pfizer COVID-19 vaccines begin to be administered to the population in the United States, many clients have asked whether an adverse reaction to the COVID-19 vaccine would be considered compensable if the employer were to offer a voluntary vaccination program at some time in the future. Many employers currently offer such programs during flu season. This is an important question but unfortunately there is precious little case law to guide us in New Jersey and in most states.
The last published case in New Jersey on the compensability of an adverse reaction to a vaccine goes all the way back to 1949 in Saintsing v. Steinbach Company, 1 N.J. Super. 259 (App. Div. 1949). The case involved an employer which sent out a notice strongly urging employees to get the smallpox vaccine. The notice read, “On April 23, 1947, we will provide free inoculation to all those who choose to be immunized against smallpox. We are sure that everyone is aware of the current spread of smallpox and we strongly urge that you take advantage of this service, which we are glad to provide in the interest of your health.”
Most of the company employees, including the petitioner, were vaccinated, but petitioner developed a reaction that caused her to lose time from work and to suffer partial permanent disability. The respondent’s personnel director testified at trial that this vaccination offer was made to promote morale, create a happier environment for employees and to reduce absenteeism. He stressed that the vaccination was entirely voluntary. The Judge of Compensation ruled that the adverse reaction was compensable. The Monmouth County Court reversed in favor of the employer, but the Appellate Division reversed again in favor of the employee. The Appellate Division focused on two factors: one, that the employer strongly urged employees to be vaccinated, and two, the mutual benefit doctrine. “We have concluded that the activity was mutually beneficial, that the risk was reasonably incident to the employment and that the petitioner’s injury resulted from an untoward event or accident arising out of and in the course of her employment….”
The better argument is that adverse reactions to voluntary vaccination programs offered by employers are not covered under workers’ compensation and that Saintsing has been effectively overruled by subsequent statutory changes. First, the New Jersey Workers’ Compensation Act underwent a wholesale revision in 1979. There is no mention of the mutual benefit doctrine in the modern statute, and there are very few post-1979 cases that discuss the doctrine. The court in Saintsing based its decision largely on the mutual benefit doctrine along with a “strong urging” by the employer to participate in the program. Before 1979, there were literally scores of cases whose outcome depended on the mutual benefit doctrine. In fact, the Saintsing case has not been discussed by any published case in New Jersey since 1979.
More importantly, a new provision was added in 1979 to N.J.S.A. 34:15-7 which moved courts away from the nebulous mutual benefit doctrine. The law adopted in 1979 states that social activities are not compensable unless the employee can show the activity is a regular incident of employment and promotes a benefit beyond improvement of health and morale. The main purpose an employer would have in offering a vaccination program to employees is precisely improvement of employee health and morale. Of course there may be some mutual benefit to the employer but that is not the test in this statute. The injured employee would have to show that a critically important public health program is really focused on some other benefit to the employer beyond the obvious one: making sure its employees are healthy and not spreading a highly contagious and deadly virus to others. Until a reported decision comes down, no one can know for sure how the Appellate Division or New Jersey Supreme Court will rule on this issue.
What if the employer mandates that an employee must get the vaccine as a condition of continued employment, and then the employee develops an adverse reaction? The mandatory nature of the program would likely result in a ruling for petitioner. There are a number of New Jersey Supreme Court cases that have held that employees who are required to undertake certain actions that would otherwise be non-compensable and then are injured performing those actions are covered for purposes of workers’ compensation. The theory of these cases is that compelling an employee to perform an action renders the action compensable.
When a vaccine is not compensable in workers’ compensation, are there any benefits available to someone who develops an adverse reaction to the vaccine? The answer is yes. There are two important federal programs that assist such individuals. The first is the National Vaccine Injury Compensation Program. Petitions must be filed, with limited exceptions, within three years after the first symptom of the alleged vaccine injury, or within two years of the death and four years after the first symptom of the alleged injury the resulted in death.
The other program is called the Countermeasures Injury Compensation Program. Compensation under this program includes unreimbursed medical expenses that health insurance did not cover, lost employment income, and a survivor death benefit. A countermeasure is a vaccine, medication, device, or other item that is used to prevent, diagnose or treat a public health emergency or a security threat. COVID-19 is among the specific public health threats covered in the program.
It is important to realize that there is one and only one statutory provision in the New Jersey Workers’ Compensation Act that applies to injuries arising from the administration of a vaccine. This statute is part of the 2019 Thomas P. Canzanella Law, but it applies solely to first responders and public safety workers. The statute can be found at N.J.S.A. 34:15-31.6. It reads: “Any injury, illness or death of any public safety worker, resulting from the administration to the worker of a vaccine including, but not limited to, smallpox vaccine, to prepare for, or respond to, any actual, threatened, or potential bioterrorism or epidemic, as part of an inoculation program in connection with the worker’s occupation, geographical area, or other category that includes the worker, or resulting from the transmission of the disease from another employee or member of the public inoculated under the program, is presumed to arise out of and in the course of the employment and all care or treatment of the worker, including testing, diagnosis, surveillance and monitoring of the worker’s condition, and all time during which the worker is unable to work while receiving the care or treatment is compensable under the provisions of R.S. 34:15-1 et seq.” As with other statutory presumptions, the employer can rebut the presumption by a preponderance of the evidence standard, meaning proof by more than 50% that the adverse reaction is not work related.
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John H. Geaney, Esq., is a Shareholder and Co-Chair in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.
Effective January 1, 2021, the mileage reimbursement rate for Alabama will be 56.0 cents per mile, a 1.5 cent decrease from 2020.
On December 21, 2020 the Alabama Supreme Court issued Administrative Order No. 9 which extended its previous orders concerning workers’ compensation and taking witness testimony remotely during the pandemic. This means that the following rules will be in effect through April 30, 2021:
In addition to the above, the rules that provide for remotely swearing in and taking witness testimony are also extended.
About the Author
This blog submission was prepared by Mike Fish, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third-party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Fish by e-mailing him at mfish@fishnelson.com or by calling him directly at 205-332-1448.
Legal Update by Attorneys Alison Stewart, Nick Cooling, and Law Clerk Jordan Gehlhaar
In Deng v. Farmland Foods, it was determined that “shoulder” under § 85.34(2)(n) is not limited to the glenohumeral joint, and at least includes the muscles that make up the rotator cuff. Ourbriefing of Deng suggested there would be increased litigation surrounding this issue to further define what constitutes the shoulder. One of the first appeal decisions following the shoulder expansion came inRosa Chavez v. MS Technology, LLC.
Claimant Chavez sustained tears of several rotator cuff muscles (supraspinatus, infraspinatus, and subscapularis), as well as tears to her biceps tendon and labrum. She had a surgical repair of the rotator cuff including extensive debridement, tenotomy, and decompression. Claimant argued her biceps injury should be compensated as an arm injury under § 85.34(2)(m), rather than a whole body injury under § 85.34(2)(v).
Claimant’s expert, Sunil Bansal, M.D., opined the rotator cuff tendons were proximal to the glenohumeral joint, and did not address the labrum. The Commissioner found the rotator cuff and the labrum are both close in proximity to the glenohumeral joint and crucial to its proper functioning. Therefore, a labral tear should be compensated as a shoulder under section 85.34(n).
The claimant also argued the subacromial decompression should be compensated as an unscheduled injury because it involved “changes to the body as a whole.” Based on the record’s description of the procedure, and common definitions of acromion, the Commissioner also found the acromion to be closely connected with the glenohumeral joint in location and function – it forms part of the socket and protects the glenoid cavity.
Alternatively, claimant argued her biceps injury was an injury to the arm, and the combination of an arm and shoulder injury should allow compensation under the “catch all” provision of 85.34(2)(v). The Commissioner declined to address this argument, finding claimant failed to prove an injury to the arm since the impairment ratings were based solely on range of motion deficits in the shoulder.
All permanent disability was found compensable as a shoulder under § 85.34(n). Dr. Bansal’s impairment rating was found to be more convincing and accurate than Dr. Peterson’s rating. Claimant Chavez was compensated PPD benefits according to the ten percent upper extremity rating based on 400 weeks.
Peddicord Wharton will continue to monitor case law on this issue.
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NOTICE TO THE PUBLIC
The determination of the need for legal services and the choice of a lawyer are extremely important decisions and should not be based solely upon advertisements or self-proclaimed expertise. This disclosure is required by rule of the Supreme Court of Iowa.
Peddicord Wharton Legal Updates are intended to provide information on current developments in legislation impacting our clients. Readers should not rely solely upon this information as legal advice. Peddicord Wharton attorneys would be pleased to answer any questions you may have about this update. ©2020 Peddicord Wharton. All Rights Reserved.
By Attorneys Alison Stewart, Nick Cooling, and Law Clerk Jordan Gehlhaar
The Iowa Supreme Court recently released an opinion in Terry v. Dorothy, ruling on a gross negligence claim against a co-employee. In October of 2015, Brian Terry, an employee of Lutheran Services in Iowa, sustained serious injuries after he was attacked by a client. Brian filed a workers’ compensation claim, which was resolved by a final compromise settlement pursuant to Iowa Code section 85.35(3). The settlement documents consisted of a “Compromise Settlement,” and “Additional Terms of Settlement.”
The Compromise Settlement contained release language in which Claimant Terry discharged the employer and insurance carrier from all liability pertaining to the accident under workers’ compensation law. The Additional Terms provided the settlement was a “final discharge of all claims and demands that may exist against [LSI and their insurance carrier] and any of theiremployees by reason of . . . employment.” (emphasis added).
In October of 2017, Brian Terry and his wife brought claims in the district court against Meghan Dorothy, Brian’s supervisor at the time of the injury. The petition alleged gross negligence when the supervisor put Terry in a one-on-one situation with a likelihood of assault. Additionally, Terry’s wife brought a loss of consortium claim. Dorothy moved for summary judgment relying in part on the release language in the settlement between Terry and LSI. The district court granted the supervisor’s motion for summary judgment reasoning that Terry lost further rights to pursue damages under Iowa Code section 85.20 (rights exclusive) and 85.35(9) (settlement as a final bar).
The Terry’s appealed and the majority in the Court of Appeals reversed. It was found that the statutory settlement before the Workers’ Compensation Commissioner only released statutory claims, not common law claims such as gross negligence. The majority also found that contractual theories were not properly before the court.
The Iowa Supreme Court vacated the Court of Appeals and affirmed the district court’s grant of summary judgment. The Supreme Court agreed that gross negligence was a common law claim and not within the scope of workers’ compensation. Statutory immunity for claims under workers’ compensation previously applied only to employers, not co-employees. In 1974, the statute was amended extinguishing common law claims against co-employees - except those founded in gross negligence.
Summary judgment was granted on contract grounds. Since a release is a contract, basic principles of contract law apply. The Compromise Settlement is limited to release of workers’ compensation claims and was therefore not enough to provide a basis for summary judgment of the common law claims. However, the “Additional Terms of Settlement,” containing broad language releasing all employees from any and all liability, was sufficient to distinguish the gross negligence claim.
Absent legislative amendment, gross negligence claims must be specifically bargained for and enumerated in a settlement release to bar further action against co-employees arising from a work injury.
Peddicord Wharton will continue to monitor this issue.
If you'd like to sign up for our e-newsletter, please click here.
~~~~~~~~~~~~~~~~~~~~~~~~~~~
NOTICE TO THE PUBLIC
The determination of the need for legal services and the choice of a lawyer are extremely important decisions and should not be based solely upon advertisements or self-proclaimed expertise. This disclosure is required by rule of the Supreme Court of Iowa.
Peddicord Wharton Legal Updates are intended to provide information on current developments in legislation impacting our clients. Readers should not rely solely upon this information as legal advice. Peddicord Wharton attorneys would be pleased to answer any questions you may have about this update. ©2020 Peddicord Wharton. All Rights Reserved.
On December 11, 2020, the Alabama Supreme Court rendered a decision finding that collateral estoppel does not violate the constitutional right to a trial by jury. This finding was based on a review of a Motion for Summary Judgment Order granted in favor of the employer by the Circuit Court of Shelby County, Alabama, in a retaliatory discharge case.
In that case, the employee was terminated for misconduct according to the employer. The termination occurred after a worker’s compensation claim had been filed. The employee ultimately filed for unemployment, and the city defended the unemployment claim, asserting that he was not due unemployment because he was terminated for misconduct. The record clearly showed that the employee and employer proceeded to a hearing with both parties presenting evidence and securing testimony of witnesses before an administrative officer. The initial ruling by the unemployment board was that the employee was terminated for misconduct. The employee appealed this decision on multiple levels, but he ultimately chose not to move forward and appeal it all the way to the Circuit Court. The employee instead amended his complaint in his workers’ compensation case to add a retaliatory discharge claim shortly before the final decision was issued by the unemployment board. The employer filed a Motion for Summary Judgment which was granted but then set aside due to service issues. The Summary Judgment was reinstated and ultimately denied by the court, which found that it was not ripe for a decision at that time. Discovery in that case went forward, and the employer ultimately renewed its Motion for Summary Judgment. The employee filed its opposition arguing that he did not have adequate opportunity to litigate the issue and that applying collateral estoppel would violate his constitutional right to a trial by jury.
The Supreme Court held that, for collateral estoppel to apply in these types of cases, the same parties must be identified in both actions. In addition, the parties must have adequate opportunity to litigate the issues upon which collateral estoppel is being based. The Supreme Court ultimately determined that the employee had adequate opportunity to argue that he was wrongfully terminated in his unemployment case. This included the chance to submit evidence as well as call witnesses to testify. Even though the employee did not take advantage of his opportunity to litigate the issue, collateral estoppel could still be applied. Therefore, the decision at the unemployment hearing that he was terminated for misconduct prevented the employee from now arguing he was terminated solely because he filed a workers’ compensation claim.
The Supreme Court then addressed the employee’s argument that applying collateral estoppel in cases where the prior decision was administrative only and not decided by a jury was a violation of his constitutional rights. The Alabama Supreme Court stated that while it had not addressed the issue, multiple other courts had, including the United States Supreme Court. The Alabama Supreme Court cited cases which held that courts have not hesitated to apply res judicata when an administrative agency was acting in a judicial capacity to resolve disputed issues of fact involving the same parties. B&B Hardware, Inc. v. Hargis Industries, Inc., 575 U.S. 138, 150, (2015) in which the United States Supreme Court stated, “The Court has already held that the right to a jury trial does not negate the issue-preclusive effect of a judgment, even if the judgment was entered by juryless tribunal”. Id. The Alabama Supreme Court stated that the United States Supreme Court held that the 7th Amendment does not prevent competent tribunals from issuing judgments that have a preclusive effect. Therefore, the Alabama Supreme Court held that if the administrative process in question had the characteristic of adjudication, there would be no reason why the administrative proceeding should not have the same preclusive effect that a court decision would have. The Court noted that the reasoning behind this was that the administrative proceeding that the employee was involved in had the essential elements of adjudication which included adequate notice to persons who were bound by the adjudication and the right on the behalf of the party to present evidence and legal arguments to support their contentions and/or to rebut evidence and argument made by the opposing party. As a result, the Alabama Supreme Court ultimately determined that collateral estoppel would still apply and would not violate the constitutional right to trial by jury in cases where an employer seeks to have the decision in an unemployment hearing preclude a retaliatory discharge claim under the Workers’ Compensation Act.
MY TWO CENTS
As we have noted in prior blog posts, decisions in unemployment hearings can be beneficial in a workers’ compensation case that involves a retaliatory discharge claim. For this reason, we recommend to all employers that they secure legal representation and fully participate in the unemployment hearing to secure a favorable decision.
ABOUT THE AUTHOR
The article was written by Joshua G. Holden (with contributions from all attorneys with Fish, Nelson & Holden, LLC), Esq. a Member of Fish, Nelson & Holden, LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation and related liability matters. Mr. Holden is AV rated by Martindale-Hubbell, which is the highest rating an attorney can receive. Holden and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields
Get Keen on the Vaccine: Considerations for Employers Considering a Mandatory COVID-19 Vaccine - Webinar
12/17/20 - 12:00 p.m. EST
Thu, Dec 17, 2020 12:00 PM - 1:00 PM EST
With the release of a new COVID-19 vaccine comes hopes of a return to "normalcy" and new concerns for how to protect your workforce. Can you make vaccines mandatory for your employees? If so, what considerations must you take into account as you craft your policies? In this webinar, Spilman attorneys Carrie Grundmann, Megan Mullins, and Eric Kinder will walk you through how to manage this transition while ensuring you stay compliant with existing labor and employment laws.
https://register.gotowebinar.com/register/8129411155170322700
By Carrie H. Grundmann
336.631.1051
cgrundmann@spilmanlaw.com
Coronavirus Considerations and Hot Topics Heading into 2021
By Carrie H. Grundmann
336.631.1051
cgrundmann@spilmanlaw.com
When much of the country locked down in March 2020, very few expected us to still be dealing with this pandemic in December 2020. And yet, here we are. In fact, coronavirus cases are rising sharply throughout much of the country, and the prospect of additional shutdowns is growing more probable by the day. Not all news is bad. Pfizer, Moderna and AstraZeneca have produced what appear to be viable vaccines that could be available as early as this month. As we look to 2021, here are a few issues that employers should have on their radar.
Expiration of Paid Leave Under FFCRA
Since April 2020, many employers have been providing up to two weeks of paid sick leave and 10 weeks of paid family medical leave to employees impacted by the coronavirus pursuant to the Families First Coronavirus Response Act ("FFCRA"). Barring an agreement being reached in Congress to extend these leave laws (which seems unlikely between now and the inauguration), these paid leave provisions -- and the employer tax credits associated with providing the leave -- expire on December 31, 2020.
Employers should take steps now to determine how they will handle absences related to COVID-19 after December 31, 2020. Even where an employer chooses to discontinue paid leave, they should still provide flexibility, including considering telework, to employees who must be absent because of COVID-19.
Once you have determined how you will handle COVID-19 absences, communicate with your workforce. All employees should be provided advance notice that the FFCRA expires at the end of December as well as how COVID-19-related leave will be handled after that. If there are employees who will be out on FFCRA-related leave as of December 31, 2020, you should clearly communicate with them how their paid leave will be impacted, if at all.
Mandatory Coronavirus Vaccinations for the Workplace
With viable vaccines on the horizon, many employers want to know: Can they require employees to get vaccinated?
The answer is yes, but with exceptions.
In 2009, the EEOC issued guidance on this very issue, but in the context of the flu shot vis-à-vis H1N1. As part of its 2020 guidance to employers, the EEOC reissued its 2009 guidance, thus, it is clear the EEOC would recognize certain exceptions to any mandatory vaccination requirement. According to the EEOC, employees may be exempt from an employer's mandatory vaccination requirement under one of the following circumstances:
The Americans with Disabilities Act may exempt an individual who has a disability that prevents them from getting the vaccination; or
Title VII of the Civil Rights Act requires employers to grant an accommodation to an employee where his/her sincerely held religious belief prevents them from receiving a vaccination.
Employers faced with either a disability or a religious exemption should engage in an interactive discussion with the employee to determine what accommodation might be granted. In many cases, the appropriate accommodation will be an exemption from the vaccination, perhaps coupled with other safeguards, such as mandatory mask usage even when other employees are no longer required to wear theirs. Regardless, employers remain free to encourage (rather than require) and/or facilitate employees receiving the vaccination. While there is no requirement that employers pay for these vaccines, employers may find the convenience of providing vaccinations to its workforce to be worth the cost in light of increased productivity, much like some employers have long provided free flu vaccinations.
The situation with the coronavirus remains in flux and likely will remain so for the near future. Employers who have questions about handling coronavirus issues should contact their legal counsel, or the Spilman COVID-19 Task Force.
In 2017, Claimant slipped and fell, injuring her knee. In 2020, Claimant filed a Petition alleging 6% permanency to her left lower extremity, specifically the knee, based upon Dr. Bandera’s opinion, relying on the 5th Edition of the AMA Guidelines for Rating Permanent Impairment. The Board denied the Petition, relying on the opinion of the defense medical expert, Dr. Piccioni. The Board noted that unlike Dr. Bandera, Dr. Piccioni is a Board certified orthopedic surgeon. Dr. Piccioni’s review of the records of claimant’s treating orthopedic surgeon, Dr. Leitman, showed that claimant recovered fully from her injuries within 2-3 months, when she was released to full duty and to be seen as needed. Dr. Piccioni agreed with Dr. Leitman’s assessment that following the 2-3 month point, claimant’s knee was “benign.” No treating provider ever recommended claimant use any sort of ambulatory aid, proceed with injections, or discussed surgical options. Claimant only followed up with Dr. Leitman once after the 2-3 month mark, where he again referred to the knee as “benign.” The Board questioned Dr. Bandera (not a surgeon) going against the opinions of two orthopedic surgeons, especially as Dr. Bandera did not evaluate the claimant until over 2 years had elapsed following the work accident. The Board was also very critical of Dr. Bandera’s attempts to analogize claimant’s knee bruise diagnosis with patella subluxation and fracture diagnoses in the 5th Edition of the AMA Guides, as Dr. Piccioni testified credibly that these were not appropriate comparisons. The Board agreed with Dr. Piccioni that the 6th Edition of the Guides, which allowed for a zero rating for claimant’s specific diagnosis, even with continued credible subjective complaints, provided a much more fair and accurate representation of claimant’s true functional abilities in the knee. Should you have any questions concerning this Decision, please contactGreg Skolnik, or any other attorney in Heckler & Frabizzio's Workers’ Compensation Department. Darlene Cole v. State, IAB Hrg. No. 1463877 (Oct. 13, 2020). |
It remains very difficult for New Jersey insurers to cancel policies in workers’ compensation. Strict compliance with N.J.S.A. 34:15-81 is required because the state’s policy favors continuation of insurance coverage. The decision in Pierson v. Travelers Indemnity Company, A-3838-19T2 (App. Div. December 7, 2020) illustrates the specific problem of cancellation related to non-payment of an audit increase of premium.
Nelson Pierson alleged he was injured at Tremarco Brothers on May 7, 2016. The carrier moved to dismiss the workers’ compensation claim petition based on the cancellation of Tremarco’s insurance coverage. The coverage at issue began in March 2014. Tremarco applied to the New Jersey Workers’ Compensation Plan for assignment of an insurance company for workers’ compensation coverage. Travelers was assigned and provided coverage for 2014-2015. It also issued a policy for 2015-2016.
The problem in this case began when the carrier requested an audit during the second policy term. The carrier said that Tremarco failed to cooperate with the audit. The result of the audit led to an amount almost double the previously billed premium. In the pivotal allegation of the case, the carrier alleged that it sent on July 6, 2015 a notice that declared the policy would be cancelled on July 24, 2015 if Tremarco did not pay the additional premium. When Tremarco failed to pay the additional premium by July 24, 2015, the policy was cancelled.
Travelers produced as its witness Timothy Lukes, a senior account manager underwriter, but Lukes was not actually the individual who handled the Tremarco account. Therefore Lukes’ testimony was limited to discussion of how the carrier conducts premium audits and cancellation of policies. The Judge of Compensation noted that Lukes was “unable to explain specific actions or the reasons for the actions taken by Travelers on the Tremarco account.” The individual who actually handled the Tremarco account was not called to testify.
It was the position of the carrier that the July 6 notice would have advised Tremarco that the policy would be cancelled on July 24 unless the additional premium were timely paid. The Judge of Compensation felt that this testimony was at odds with another statement Lukes made, namely that when an additional premium after an audit is being sought, the notice would not ordinarily state that a failure to pay would result in cancellation, only that the failure “can affect your insurability.”
The Judge of Compensation concluded that the cancellation was not clear and unambiguous. The carrier appealed, and the Appellate Division affirmed the conclusion of the Judge of Compensation, rejecting the cancellation. The Appellate Division found it significant that the carrier never produced a witness with personal knowledge of the mailing and receipt of the cancellation notice. The Appellate Division recognized that “facts about mailing may be proven with evidence of an office custom,” but the Court did not believe that sufficient evidence of office custom was proffered. The Court concluded that ultimately it was not clear what the July 6 notice actually said. That fact more than any other doomed the cancellation.
The case shows just how hard it can be to effect cancellation of a policy in New Jersey even when an insured refuses to participate in an audit of its premium and then fails to make timely payment. The public policy in favor of continuation of coverage is so powerful that it can only be overcome with absolute precision with respect to every element of N.J.S.A. 34:15-81, and any variation whatsoever can result in voiding an otherwise legitimate attempt to cancel a workers’ compensation insurance policy.
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John H. Geaney, Esq., is a Shareholder and Co-Chair in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.